171 Wash. 2d 587 | Wash. | 2011
Lead Opinion
¶1 There was a catastrophic failure at the Spokane wastewater treatment plant. One man was killed, two others were severely injured. The survivors successfully sued an engineering firm that was working with the city at the time. We must decide whether that firm enjoys Industrial Insurance Act immunity under RCW 51.24.035. The appellants also challenge the trial judge’s rulings on duty, cause in fact, legal cause, superseding cause, and 26 specific findings of fact. Finding no error, we affirm.
FACTS
¶2 On May 10, 2004, a digester dome at Spokane’s sewage treatment plant collapsed. The collapse dropped Mike Cmos into sewage sludge, where he drowned. The trial judge observed that “Mike Cmos arguably suffered one of the most disgusting and terrible deaths imaginable.” Clerk’s Papers (CP) at 3048. Cmos’s body was removed from the digester days later by the Spokane Fire Department. Dan Evans was thrown from the top of the dome and drenched with sewage sludge and Larry Michaels, who was on the ground, was knocked down by the wave of cascading sludge. Evans, Michaels, and Cmos’s family sued CH2M Hill Inc. for negligence.
¶3 The collapse took place at the Spokane Riverside Park Water Reclamation Facility. This plant was built in 1977 and had three sewage digesters. Ex. 57 (after-accident report of the Spokane Fire Department). These “digesters” have been described as resembling a small domed sports stadium. Id. “Digester 3,” where the accident happened, had a capacity of 2.25 million gallons. Id. “The purpose of the digester is to take raw solids [and] circulate! ] the solids for 20 to 40 days at approximately 100 degrees Fahrenheit in an anaerobic process until they are stable and able to be
¶4 CH2M is an engineering firm. It had been hired by the city in 1998 as an engineering consultant for a 10-year capital improvement project to upgrade and retrofit the sewage plant. The plant was to continue operating during the improvements. Among other things, CH2M was hired to design and manage an upgrade to and redesign of the recirculation and heating systems for the digesters. During the anticipated 10 year retrofit, CH2M also contracted to “provide ‘on-call’ services for plant operations.” CP at 3110 (Finding of Fact (FOF) 15). Kelly Irving, an engineer and CH2M employee, acted as the on site program manager for CH2M. He is also a named defendant in this action.
¶5 It seems that the plant had been struggling to keep the digester tanks warm enough for necessary bacterial activity, especially as the density of biosolids in the digesters increased. Instead of heating the tanks directly, sewage was circulated through heaters and back again to the tanks. Cold raw sludge was also fed directly into the digester tanks. As an interim fix for the temperature problem, Irving suggested separating the incoming unheated sludge flow from the heated sludge flow. On May 3,2004, one week before the collapse of the digester, this option was discussed at a regularly scheduled meeting of sewage plant employees. Irving suggested using valves to separate the flows. These valves would redirect sludge through a previously unused pipe into a newly isolated line, which had originally been designed as a suction line for removing sludge from the digester, and to close off the intersection between the recirculation line from the heater and the incoming raw feed. City employees suggested using “skillets” instead of valves “because it would be more expedient and less expensive.” CP at 3113 (FOF 32). The trial court found, in a challenged finding of fact, that “Irving and CH2M accepted
¶6 Irving made recommendations as to where the skillets were to be placed. The changes to the pipes were made over the next few days. The trial court found that Irving and CH2M did not perform “any engineering analysis of the effects the flow separation and the skillets would have upon the City’s operation of the digesters” and that they did not prepare a written analysis of the changes. CP at 3115 (FOF 40). The installation of the skillets did not merely change some regular pattern of flow: it also necessitated a change in the valving used by plant operators to transfer sludge between the digesters. Unfortunately, neither the plant superintendent, operations supervisor, nor the maintenance supervisor was aware that the installation of the skillets would change the valving used by the city plant operators for the transfer of sludge between digesters.
¶7 A few days later, the sewage plant shift supervisor, Terry Headley, a city employee, “became concerned that Digester 3 was too full” and ordered his subordinates to transfer some of the sludge to Digester 2. CP at 3116 (FOF 46). Headley knew that the skillets had been installed and where. However, Headley had not been instructed on “the effects of the installation of the skillets on the valving employed by the plant operators for pumped transfers of sludge.” CP at 3117 (FOF 49). The workers on shift “twice attempted to trace the piping of the digesters to determine how to valve a pumped transfer from Digester 3 to Digester 2, checked and rechecked their work and believed they had valved correctly for such a pumped transfer in light of the installation of the skillet.” CP at 3117 (FOF 51). Unfortunately, the configuration of valves and skillets they chose
¶8 Meanwhile, it appears that foam from the sludge was beginning to leak out of pressure relief valves at the top of the dome and run down the outside of Digester 3. The superintendent of the plant, Timothy Pelton, was worried about the sludge entering the Spokane River, and asked Cmos, Evans, and Michaels to help him divert it. Cmos and Evans climbed the dome with a fire hose to siphon off the foam while Pelton and Michaels guided the other end of the hose into a drain.
¶9 All the while, the digester continued to fill with sewage sludge. The city employees knew that Digester 3 was getting dangerously full but believed that the fastest way to relieve the pressure was to continue to do what they were doing. Unfortunately, they were wrong, and Digester 3 continued to fill until it collapsed. The trial judge found that Cmos was alive and conscious when he dropped into the 100 degree sewage sludge and that he died in “excruciating physical pain ... in darkness, pain and utter helplessness.” CP at 3123 (FOF 81). He left behind a wife and 12-year-old daughter. Evans suffered “a fractured pelvis, fractured tibia, fractured ribs, serious back injuries including compression fractures of vertebrae, [and] sludge aspiration causing a permanent 20% reduction in lung capac
¶10 The city hired an engineering firm, Exponent, to investigate the disaster. Exponent concluded that the dome actually floated up on the rising sludge and rotated, fracturing the anchors that had held the dome to the digester walls and cracking the dome. It concluded that there were three main causes of the accident: the blocked overflow pipe; a malfunctioning monitoring system inside the digester; and the final, failed attempt to transfer sludge out of the digester. Exponent also concluded that “[t]he pumping of liquid beyond the maximum design level and into the dome was the principal and sufficient cause of the accident.” Ex. 71, at 33.
¶11 The plaintiffs filed a negligence action against CH2M and Irving. The city of Spokane, as the employer of the plaintiffs, was immune under the Industrial Insurance Act. All parties agreed that the city was negligent. The issue at trial was the negligence, if any, of CH2M, not the city. After a three week bench trial, Judge Austin ruled for the plaintiffs. The Court of Appeals certified the case to this court.
ANALYSIS
¶12 We review de novo questions of law, including the meaning of immunity statutes, duty, and legal cause. Soltero v. Wimer, 159 Wn.2d 428, 433, 150 P.3d 552 (2007) (citing Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 942, 845 P.2d 1331 (1993)); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Cause in fact is a factual question left to the trier of fact unless reasonable minds could not differ. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (citing Sherman v. State, 128 Wn.2d 164, 183, 905 P.2d 355 (1995)). We review findings of fact for substantial evidence. Soltero, 159 Wn.2d at 433.
¶13 CH2M contends that it and its agents enjoy Industrial Insurance Act immunity under RCW 51.24.035. This statute has not been considered in any published Washington court opinion. However, the Industrial Insurance Act itself is regularly before Washington courts, and there is a body of law to guide us. The legislature has instructed us that the act “shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.” RCW 51.12.010. To accomplish the legislative objective, our “ ‘guiding principle in construing provisions of the Industrial Insurance Act is that the Act is remedial in nature and is to be liberally construed in order to achieve its purpose of providing compensation to all covered employees injured in their employment, with doubts resolved in favor of the worker.’ ” Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 811, 16 P.3d 583 (2001) (quoting Dennis v. Dep’t of Labor & Indus., 109 Wn.2d 467, 470, 745 P.2d 1295 (1987)). The act is “the product of a grand compromise” between workers and employers. Birklid v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278 (1995) (citing Stertz v. Indus. Ins. Comm’n, 91 Wash. 588, 590-91, 158 P. 256 (1916), abrogated in part by Birklid, 127 Wn.2d 853). “Injured workers were given a swift, no-fault compensation system for injuries on the job. Employers were given immunity from civil suits by workers,” with exceptions not relevant here. Id. The benefits to injured workers, while comparatively quick and sure, are often far less than would be available to them in tort. Minton v. Ralston Purina Co., 146 Wn.2d 385, 390, 47 P.3d 556 (2002).
¶14 Third party tortfeasors are not parties to the grand compromise and injured workers may sue such tortfeasors. RCW 51.24.030; Flanigan v. Dep’t of Labor & Indus., 123 Wn.2d 418, 425, 869 P.2d 14 (1994). If such suits are successful, both the worker and the State benefit as the State
f 15 With these principles in mind, we turn to the immunity provision before us.
(1) Notwithstanding RCW 51.24.030(1),[3] the injured worker or beneficiary may not seek damages against a design professional who is a third person and who has been retained to perform professional services on a construction project, or any employee of a design professional who is assisting or representing the design professional in the performance of professional services on the site of the construction project, unless responsibility for safety practices is specifically assumed by contract, the provisions of which were mutually negotiated, or the design professional actually exercised control over the portion of the premises where the worker was injured.
(2) The immunity provided by this section does not apply to the negligent preparation of design plans and specifications.
(3) For the purposes of this section, “design professional” means an architect, professional engineer, land surveyor, or landscape architect, who is licensed or authorized by law to practice such profession, or any corporation organized under*600 chapter 18.100 RCW or authorized under RCW 18.08.420 or 18.43.130 to render design services through the practice of one or more of such professions.
RCW 51.24.035 (emphasis added). Statutory grants of immunity in derogation of the common law are strictly construed. Plano v. City of Renton, 103 Wn. App. 910,911-12,14 P.3d 871 (2000) (citing Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437-38, 824 P.2d 541 (1992)).
¶16 CH2M argues that the entire plant was a construction project, entitling it to immunity under subsection .035(1). It also argues that it had not prepared design plans and specifications and thus the exclusion from immunity under subsection .035(2) does not apply. The plaintiffs argue that a working sewage plant is not a construction site as contemplated by the legislature and that CH2M did negligently prepare design plans and specifications.
A. Construction Projects
¶17 The immunity found in RCW 51.24.035(1) is limited by its terms to a design professional performing professional services “on a construction project” or any employee of a design professional assisting or representing the design professional performing professional services on the “site of the construction project.” The trial judge found that “the area of the plant where the skillets were installed was not a construction project nor a construction site within the meaning of RCW 51.24.035(1).” CP at 3128 (FOF 94). Whether or not the area where the act of alleged negligence occurred was a construction site is a question of fact. We review questions of fact for substantial evidence. See Soltero, 159 Wn.2d at 433 (citing Nordstrom Credit, 120 Wn.2d at 942). CH2M argues that as a matter of law, the immunity statute “unquestionably applies” to any building complex where some construction was occurring and that no reasonable person could fail to find that the accident took place on a construction project or on a construction site. Br. of Appellant at 43, 45.
¶19 While the trial court made no specific, relevant finding of fact, the findings imply, and the evidence supports, that some parts of the sewage plant campus were under construction. Finding of fact 94 tells us that “at all pertinent times prior to and on May 10, 2004, the area of the plant where the skillets were installed was not a construction project nor a construction site within the
¶20 We conclude it does not. Clearly, if no construction was occurring on the campus, the immunity provisions of RCW 51.24.035 would not be at issue. CH2M’s contract with the city contemplated at least two main activities. One was to retrofit the Spokane Riverside Wastewater Treatment Plant and the other was to maintain the plant to continue to function as it had on a day to day basis.
¶21 CH2M argues that whether or not the discrete act of alleged negligence was related to construction is immaterial. CH2M argues it has immunity for any professional services rendered on a construction project site and that the entire wastewater treatment facility was a construction site within the meaning of the statute. An aerial photograph of the Spokane wastewater treatment facility shows at least a dozen buildings and several parking lots, not unlike our
¶22 We must read statutes in context with the whole statutory scheme, which in this case includes both the injunction to construe the title liberally in favor of reducing suffering and the private suit provision. Rivas v. Overlake Hosp. Med. Ctr., 164 Wn.2d 261, 266-67, 189 P.3d 753 (2008); RCW 51.24.030; RCW 51.12.010. Taken as a whole, it appears to us that the legislature intended to protect design engineers from the sort of liability imposed on general contractors for workplace negligence, but not to protect them from their own negligence.
¶23 In addition to limiting the immunity in question to professional services on the site of the construction project, the statute also excludes from immunity “the negligent preparation of design plans and specifications” RCW 51.24.035(2) (emphasis added).The trial judge found that “[t]he Irving proposal to separate sludge flows referenced above in these Findings constitutes negligent preparation of a design plan within the meaning of RCW 51.24.035(2).” CP at 3128. CH2M contends that since it put no relevant plans or specifications in writing, this statutory safe harbor for actions based on negligent design plans and specifications does not apply. Br. of Appellant at 45.
¶24 A similar argument was rejected by the Kansas Supreme Court under the Kansas design professional immunity statute.
Anderson was charged with the responsibility of testing the pipe. In order to perforin its professional responsibilities, Anderson required that the concrete pipe be cut into four pieces and gave specific directions on the location of the cut lines. We perceive no appreciable distinction between providing the specifications for pipe cutting through a professional drawing or by physically marking on the pipe.
Id.
¶25 We agree with the Kansas Supreme Court and perceive no appreciable difference in recommending a change in the piping of the sludge and the locations of the skillets under CH2M’s “on call” service agreement and preparing written plans and specifications to accomplish the same thing. We find it difficult to believe that the legislature intended to allow design professionals to escape liability for negligent work by not writing down their plans or specifications.
2. Duty
¶26 The plaintiffs brought a negligence suit, requiring them to “establish the existence of a duty, a breach thereof, a resulting injury, and proximate causation between the breach and the resulting injury.” Schooley, 134 Wn.2d at 474 (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)). The trial judge found that CH2M “owed these plaintiffs ... both a contractual and a common law duty to exercise that degree of skill and diligence normally employed by professional engineers or consult
¶27 Design professionals have long had a duty of care recognized at law.
¶28 Historically, there “are two common bases for civil liability of design professionals - negligent supervision of the worksite and negligent design,” at least for work site injuries. Amicus Br. Wash. State Ass’n for Justice Found, at 10
¶29 We recently held that an “engineer’s duty of care extends to safety risks of physical damage to the property on which the engineer works.” Affiliated, 170 Wn.2d at 456 (lead opinion); id. at 461 (Chambers, J., concurring). Affiliated did not include a claim for personal injury. At least since the time of Hammurabi’s code, construction design professionals had a duty not to cause injury or death because of a collapse of a building and we see no reason why tort law would give less protection to workers on that property than to the property itself. See supra note 8. This is in accord with the general principle that “[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7(a) (2010). In this state, “[w]hen a duty is found to exist from the defendant to the plaintiff then concepts of foreseeability serve to define the scope of the duty owed.” Schooley, 134 Wn.2d at 475 (citing Burkhart v. Harrod, 110 Wn.2d 381,395, 755 P.2d 759 (1988)). Of course, “[a]n actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious,” Restatement (Third) of Torts, supra, § 29, but that will be considered more below.
3. Breach
¶31 CH2M assigned error to the trial court’s findings regarding breach but devoted no specific argument to the issue. We review findings of fact for substantial evidence, and questions of breach are typically reserved for the finder of fact. Soltero, 159 Wn.2d at 433; Johnson v. State, 77 Wn. App. 934, 937, 894 P.2d 1366 (1995) (citing McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 324-25, 255 P.2d 360 (1953)). Briefly, after a three week trial, the court found that CH2M’s failure to perform an “engineering analysis” of the impact of the skillets, its failure to “communicate to the City’s plant supervisors ... in writing or otherwise, the effects of the installation of the skillets on the valving,” and its failure to provide “written analysis ... constituted a failure to exercise the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services.” CP at 3115-16. Based on our review of the testimony, we hold there was substantial evidence to support the court’s findings.
4. Proximate Cause
¶32 CH2M contends that even if it owed a legal duty to the plaintiffs and breached that duty, it was not the proximate cause of their injuries. Proximate cause can be divided into two elements: cause in fact and legal cause. Schooley, 134 Wn.2d at 478. As CH2M challenges both elements, we will discuss them in turn.
¶33 “ ‘Cause in fact’ refers to the actual, ‘but for,’ cause of the injury, i.e., ‘but for’ the defendant’s actions the plaintiff would not be injured. Establishing cause in fact involves a determination of what actually occurred and is generally left to the jury.” Id. at 478 (citation omitted) (citing King v. City of Seattle, 84 Wn.2d 239, 249-50, 525 P.2d 228 (1974), rejected on other grounds by City of Seattle v. Blume, 134 Wn.2d 243,260,947 P.2d 223 (1997) (rejecting the “ ‘business judgment rule’ ” of King)). The trial court found that “[t]he Defendants’ failure to comply with the applicable engineering standard of care was a proximate cause of the death of Mike Cmos and the bodily injuries of Dan Evans and Larry Michael.” CP at 3129.
¶34 CH2M contends that “the alleged causation is so implausible as to defy all reasonableness.” Br. of Appellants at 61. Essentially, it asks us to substitute our factual judgment for that of the trier of fact. It contends, and we have no reason to doubt, that if the operators had realized that Digester 3 was filling instead of draining, they could have prevented the accident. E.g., 14 RP (Sept. 29, 2008) at 2076-2106 (testimony of defense expert Anderson).
B. Legal Cause
¶36 “The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability. A determination of legal liability will depend upon “ ‘mixed considerations of logic, common sense, justice, policy, and precedent.’ ” Schooley, 134 Wn.2d at 478-79 (internal quotation marks omitted) (quoting King, 84 Wn.2d at 250). Here, the question is whether we should hold that an engineering firm is potentially liable when it gives engineering advice, people follow its advice, and that advice is a contributing cause of a collapse of a structure. The analysis of whether a duty is owed and legal causation exists are intertwined. “ ‘[Wjhether liability should attach is essentially another aspect of the policy decision which we confronted in deciding whether the duty exists.’ ” Hartley v. State, 103 Wn.2d 768, 780, 698 P.2d 77 (1985) (quoting Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 476, 656 P.2d 483 (1983)).
¶37 CH2M contends that any breach of its duty “ ‘is too remote or insubstantial to impose liability.’ ” Br. of Appel
¶38 In Hartley, Janet Hartley was killed by a drunk, but validly licensed, driver. The driver had a long history of drunk driving charges. Her family sued the State and county, reasoning that if the drunk driver’s license had been revoked, he would not have been driving and she would not have been killed. Applying general principles of proximate causation and the public duty doctrine, a doctrine unique to government entities, we held that the government owed no legal duty to the victim of a drunk driver for failing to revoke the driver’s license. We cautioned that “ [t]his is not to say that there cannot be more than one party who is legally liable; but here the failure of the government to revoke Johnson’s license is too remote and insubstantial to impose liability for Johnson’s drunk driving.” Hartley, 103 Wn.2d at 784 (citations omitted) (citing Kaiser v. Suburban Transp. Sys., 65 Wn.2d 461, 398 P.2d 14, 401 P.2d 350 (1965)).
¶39 In essence, CH2M contends that its alleged negligence should not be deemed a legal cause of plaintiffs’ injuries because those injuries are too remote. But, again, contractors have been potentially liable for their own negligence at least since the time of Hammurabi. Again, the trial court found that CH2M’s breach of duty set into motion events that were one of the causes of the collapse of the digester and the cause of the plaintiffs’ injuries, and that but for the breach of duty, the collapse would not have occurred. We find no error.
¶40 CH2M also contends that the city’s negligent and reckless behavior was an intervening force and a superseding cause. The trial judge did not find the city was reckless.
Pursuant to § 447(a) of Restatement (Second) of Torts, even if the intervening act of the third person constitutes negligence, that negligence does not constitute a superseding cause if “the actor at the time of his negligent conduct should have realized that a third person might so act”. In fact,
If the likelihood that a third person may act in a particular manner is . . . one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 813, 733 P.2d 969 (1987) (alteration in original) (quoting Restatement (Second) of Torts § 449 (1965)).
¶41 CH2M contends there were 10 intervening acts of municipal negligence: (1) that the city did not maintain a reasonable fail-safe overflow system, (2) that it had an inaccurate sludge measuring system, (3) that it did not have a good chain of command, (4) that it did not have good
CONCLUSION
¶42 Finding no error, we affirm the trial court’s judgment.
CH2M makes much of the fact that it initially recommended installing valves, not skillets. The significance of this is not apparent to us. It appears the skillets performed the same function as closed valves. Once installed, they blocked off the flow of the sludge. No evidence has been called to our attention that the skillet failed to operate as intended.
“SCADA” is an acronym for “Supervisory Control And Data Acquisition.” CP at 3316 n.ll. It appears at the sewage plant, the SCADA consisted, at least in part, of “sensors [that] measure pressure____[T]he pressure is converted to height with knowledge of the fluid specific gravity.” Ex. 71, at 61.
3 RCW 51.24.030(1) generally authorizes injured workers to sue third party tortfeasors.
CH2M draws our attention to definition “3d” of “project” in Webster’s, contending it is the most “apt.” “ ‘[A] vast enterprise usu. sponsored and financed by a government <demands made for setting up public work [projects . . . > <the [project], as authorized by Congress ... provided for a ten-year expenditure of $88 million ....>’” Br. of Appellant at 44 n.23 (quoting Webster’s Third New International Dictionary 1813 (1993)). We find it unlikely that was the definition the legislature had in mind.
The contract required CH2M to “provide overall program management and preliminary & conceptual engineering service for the City’s 10 year treatment plant [capital improvement plan].” Ex. 1, at 1 (Standard Consultant Agreement).
Further support for this appears in the academic literature. At common law,
[w]orkers injured on the job site often sue architects for negligent design or breach of a duty of supervision. The negligent design cases present few theoretical difficulties since the standard of care is well-established and the architect has no argument that others should bear the liability. When the worker alleges breach of a duty of supervision, however, the issues of the existence of a duty and allocation of liability are complicated by the worker’s inability to recover from his employer and by the statutory imposition of supervision duties.
Note, Architectural Malpractice: A Contract-Based. Approach, 92 Harv. L. Rev. 1075, 1094-95 (1979) (footnotes omitted). Read against this backdrop, the immunity statute makes a great deal of sense. It protects architects and similar professionals from liability for work site injuries not caused by their own negligence, but not for injuries that stem from their own professional work.
The Kansas statute is substantially similar to ours. It provides:
Except as provided in the workers compensation act, no construction design professional who is retained to perform professional services on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project, shall be liable for any injury resulting from the employer’s failure to comply with safety standards on the construction project for which compensation is recoverable under the workers compensation act, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications.
Kan. Stat. Ann. § 44-501(f). Like Washington’s statute, it provides that design professionals are liable for their own negligence in drawing up plans or specifications, but not, absent a contract so providing, responsible for work site safety. Cf. RCW 51.24.035.
“The Code of Hammurabi of Babylon provided that a builder who constructed a house for a man, but did not make his work strong, with the result that the house that he built collapsed and so caused the death of the owner of the house, should be put to death.” Donald M. Zupanec, Annotation, Architect’s Liability for Personal Injury or Death Allegedly Caused by Improper or Defective Plans or Design, 97 A.L.R.3d 455 § 2[a], at 459 (1980) (citing Architectural Malpractice Litigation, 19 Am. Jur. Trials § 4, at 231); see also Code of Hammurabi 229, 234, available at http://avalon.law.yale.edu/ancient/hamframe.asp (last visited May 18, 2011).
The lead opinion, representing the view of two justices, held that “the measure of reasonable care for an engineer undertaking engineering services is the degree of care, skill, and learning expected of a reasonably prudent engineer in the state of Washington acting in the same or similar circumstances.” Affiliated, 170 Wn.2d at 455 (lead opinion). The concurring opinion, representing the views of four justices, held that “[p]rofessionals, including engineers, owe a duty to ‘exercise the degree of skill, care, and learning possessed by members of their profession in the community.’ 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 15.51, at 504-05 (3d ed. 2006).”Id. at 462 (Chambers, J., concurring).
See Br. of Appellant at 53-54 (citing Hertog, 138 Wn.2d at 275-76) (State had a duty to adequately supervise sex offender and could be held liable to child raped by said offender); Taylor v. Stevens County, 111 Wn.2d 159, 759 P.2d 447 (1988) (public duty doctrine barred suit against county for negligently administering its building code); Peck v. Horrocks Eng’rs, Inc., 106 F.3d 949, 952 (10th Cir. 1997) (under Utah law “an engineer with construction inspection responsibility over a construction project owes no duty to an independent contractor’s employees” (citing Peterson v. Fowler, 27 Utah 2d 159, 162, 493 P.2d 997 (1972))); Hobson v. Waggoner Eng’g, Inc., 878 So. 2d 68, 76-77 (Miss. Ct. App. 2003) (engineering consultant had no duty to ensure worker safety on construction site of a waste lagoon and concluding that plaintiff had pleaded insufficient facts to show any negligence in design); Herczeg v. Hampton Twp. Mun. Auth., 2001 PA Super 10, 766 A.2d 866 (2001) (no duty to warn of someone else’s unsafe practices); Jones v. James Reeves Contractors, Inc., 701 So. 2d 774 (Miss. 1997) (same).
Briefly, the trial judge found, among other things
40. Neither Irving nor any other CH2M employee performed any engineering analysis of the effects of the flow separation and the skillets would have upon the City’s operation of the digesters, and failed to understand or discover the skillets would alter valving used by City plant operators ....
41. The failure of Irving and CH2M to perform such engineering analysis constituted a failure to exercise the degree of skill and diligence normally employed by professional engineers or consultants ....
42. . . . [N]either the plant Superintendent, the Operation Supervisor nor the Maintenance Supervisor were aware that installation of the skillets would change valving used by City plant operators ....
43. CH2M and Irving failed to communicate to the City’s plant supervisors ... in writing or otherwise, the effects of installation of the skillets ....
44. The failure of CH2M and Irving to provide the written analysis ... to the City’s plant supervisors before the installation of the skillets, constituted a failure to exercise the degree of skill and diligence normally employed by professional engineers.
CP at 3115-16.
Defense expert Anderson did testify that the city was reckless. 14 RP (Sept. 14, 2008) at 2106.
Concurrence Opinion
¶43 (concurring) — I agree with the result the majority reached because I agree with its holding that CH2M Hill Inc. negligently prepared design plans and
ANALYSIS
¶44 The majority gives significant deference to the trial court’s “finding of fact” that “ ‘the area of the plant where the skillets were installed was not a construction project nor a construction site within the meaning of RCW 51-.24.035(1).’ ” Majority at 600 (quoting Clerk’s Papers (CP) at 3128). This deference rests on the majority’s erroneous belief, apparently shared by the trial court, that whether the accident involved a construction project or construction site is a question of fact. Id.; see CP at 3128 (trial court’s findings of fact and conclusions of law mischaracterizing this legal conclusion as a “finding of fact”). To the contrary, the determination of whether CH2M was retained to perform services on a construction project and whether Kelly Irving was performing services on the site of a construction project requires a court to interpret the statutory terms “construction,” “project,” and “site” before applying these terms to the relevant facts. RCW 51.24.035(1). Questions of statutory interpretation are questions of law, subject to de novo review. Conom v. Snohomish County, 155 Wn.2d 154, 157, 118 P.3d 344 (2005). Accordingly, the substantial deference the majority accords to this “finding of fact” is misplaced.
¶46 The majority finds further support for its narrow reading of RCW 51.24.035(1) in the notion that statutory grants of immunity in derogation of common law are narrowly construed. Majority at 600. However, this statute does not derogate from common law and instead appears to codify the common law.
¶47 In Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 722 P.2d 819 (1986), a case that predated RCW 51.24.035 by one year, the Court of Appeals considered whether Bechtel, a consultant engineering firm at the Hanford site charged with construction duties, owed a duty to provide a safe work site for workers at the Hanford plant. Id. at 245-46. The court’s inquiry focused on Bechtel’s contractual duties to ensure workplace safety and the level of supervision Bechtel was required to provide. Id. at 249. This inquiry mirrors that under RCW 51.24.035(1), under which a third party design professional is liable for work site injuries only if it has contractually assumed responsibility for safety or exercised actual control of the work site. Similarly, in Loyland v. Stone & Webster Engineering Corp., 9 Wn. App. 682, 514 P.2d 184 (1973), overruled on other grounds by Bayne v. Todd Shipyards Corp., 88 Wn.2d 917, 922,568 P.2d 771 (1977), injured workers brought suit against Stone & Webster Engineering Corporation, which had contracted with a public utility district to design, supervise, and exe
¶48 In sum, at common law, third party design professionals were liable for work site injuries only when they assumed responsibility for safety or exercised actual control. E.g., Riggins, 44 Wn. App. at 249; Loyland, 9 Wn. App. at 687. In ensuring immunity for design professionals who assume no such responsibility and exercise no such control, RCW 51.24.035(1) effectively codifies common law and by no means derogates from it.
¶49 With these principles in mind, I would hold that CH2M was retained to provide engineering services on a construction project within the meaning of RCW 51-.24.035(l).As the majority correctly notes, we consult a common dictionary for undefined statutory terms in the absence of clear evidence that the legislature intended otherwise. Majority at 601 (citing City of Spokane ex rel. Wastewater Mgmt. Dep’t v. Dep’t of Revenue, 145 Wn.2d 445, 454, 38 P.3d 1010 (2002)). Webster’s Third New International Dictionary 489 (2002) defines “construction” as “the act of putting parts together to form a complete, integrated object : fabrication.”
¶50 A “site,” in contrast, is a physical location, but it is also defined broadly, and — contrary to the majority’s interpretation — without reference to a fixed radius. Relevant definitions of “site” in Webster’s include “the local position of building, town, monument, or similar work either constructed or to be constructed [especially] in connection with its surroundings,” “a space of ground occupied or to be occupied by a building,” or “the scene of an action ... or
¶51 CH2M was retained to provide program management and engineering design services for the city of Spokane’s 10-year capital improvement program at the Advanced Wastewater Treatment Plant. The capital improvement program included a physical upgrade of existing facilities, among other improvements. A “construction project,” namely a 10-year undertaking to improve the physical facilities, was underway throughout the entire term of CH2M’s contract. Accordingly, CH2M was “retained to perform professional services on a construction project” within the meaning of RCW 51.24.035(1), regardless of whether actual, physical building was taking place at the time and precise location of plaintiffs’ injuries. Thus, Kelly Irving was an “employee of a design professional who [was] assisting or representing the design professional in the performance of professional services on the site of the construction project.” RCW 51.24.035(1).
¶52 Moreover, even if the statute were read more narrowly, it is indisputable that in assisting with the placement of skillets — the synthesis of parts to form an integrated whole — Mr. Irving performed professional services
¶53 Accordingly, the trial court misinterpreted RCW 51.24.035(1) in concluding that the area of the sewage plant where the skillets were installed was neither a construction project nor a construction site within the meaning of this statute. Similarly, Timothy Pelton’s testimony that the nearest construction was “several hundred feet away” does not negate the conclusion that CH2M was retained to perform professional services on a construction project and that the entire sewage treatment plant was the site of a construction project within the meaning of RCW 51.24-.035(1). See 8 Verbatim Report of Proceedings (Sept. 17, 2008) at 1114-15. Thus, the majority errs in relying on Mr. Pelton’s testimony and the trial court’s “finding of fact.” Majority at 601-02.
¶54 In addition, the majority misstates the relevant inquiry when it reasons that “[t]he question is whether the existence of construction somewhere on the campus triggers the immunity of RCW 51.24.035.” Id. at 602. CH2M’s immunity under this statute stems not from discrete construction activities elsewhere on the plant but rather from the engineering firm’s managerial role in an ongoing, plant-wide construction project. Thus, the majority’s focus on spatial distances is misplaced, and its analogy to our capitol campus inapposite. See id. 602-03.
¶55 As the majority acknowledges in a footnote, design professionals are particularly vulnerable to suits by injured workers under workers’ compensation schemes that immunize employers from such lawsuits. Id. at 603 n.6. As one commentator noted prior to the enactment of immunity statutes, such as RCW 51.24.035,
*621 [t]he problem caused by workers’ compensation statutes is illustrated by Erhart v. Hummonds, [232 Ark. 133, 134, 334 S.W.2d 869 (1960)] where the court used a strained interpretation of the contract to uphold a jury verdict against an architect in a wrongful death case. . . .
Such distortions reflect the dilemma courts face when workers’ compensation legislation prevents workers from pursuing tort claims against the one party most often at fault, the employer. Recovery from the employer is limited to a statutory amount by the legislative bargain which eliminated the need to prove negligence. Because the amounts available from this source in most states are grossly inadequate as compensation, the injured worker has an incentive to seek out third parties who are not immune to suit.... Courts are thus often forced to choose between leaving a worker largely uncompensated for an injury and imposing liability on a party whose fault is comparatively minor.
Note, Architectural Malpractice: A Contract-Based, Approach, 92 Harv. L. Rev. 1075, 1095-96 (1979) (footnotes omitted). Workers’ compensation schemes are one of several recent developments that have resulted in the significant expansion of design professionals’ liability for construction accidents. See generally id. (arguing that design professionals have been increasingly subject to personal injury suits while their actual influence over work site safety has declined); Gary E. Snodgrass & William S. Thomas, Defending Design Professionals: Is Contract Language an Adequate Shield?, 64 Def. Couns. J. 389 (1997) (discussing use of expert testimony to impose duties on design professional in the absence of corresponding contractual duties); Jeffrey L. Nischwitz, Note, The Crumbling Tower of Architectural Immunity: Evolution and Expansion of the Liability to Third Parties, 45 Ohio St. L. J. 217 (1984) (discussing factors contributing to the expansion of design professionals’ liability to third parties, including the fall of the privity doctrine, the decline of the owner acceptance rule, workers’ compensation schemes, and the tendency of courts to impose common law duties on design professionals notwithstanding contractual provisions expressly disclaiming liability).
¶57 Finally, although the majority repeatedly emphasizes the remedial purpose of the Industrial Insurance Act (IIA), Title 51 RCW, its narrow interpretation of the terms “construction project” and “site of the construction project” does not necessarily serve this purpose because a narrow construction of “immunity” in turn narrows the scope of the design professional’s duty to injured workers. If statutory “immunity” is defined so narrowly as to not apply, the design professional is liable in tort to the injured worker only if the latter can prove negligence on the part of the former. In particular, to make out a negligence claim, the injured worker must establish the design professional’s duty to ensure worker safety. Riggins, 44 Wn. App. at 249. The scope of this duty is likely to correspond to the scope of the construction project for which the design professional was retained. Where a construction project is seen as a long-term undertaking that spans an entire campus, and a court finds that a design professional has a contractual or common law duty to ensure work site safety, that duty will extend to the entire project and persist throughout the duration of the project. In contrast where the construction project is construed more narrowly, a court is likely to limit the scope of the design professional’s duties accordingly. Thus, while the majority’s narrow conception of construction projects dramatically curtails design professionals’ statutory immunity under RCW 51.24.035(1), it does not
¶58 In this case, I would hold that CH2M was negligent in preparing design plans and specifications. See RCW 51.24.035(2). Thus, I agree with the result the majority reached here. However, because immunity under RCW 51.24.035(1) does not apply to the negligent preparation of design plans and specifications, and because the majority held that CH2M’s recommendations amounted to the negligent preparation of design plans and specifications, the majority had no need to reach RCW 51.24.035(1). See RCW 51.24.035(2); majority at 605. Thus, its construction of the terms “construction project” and “site of the construction project” is dictum. Because I am concerned that the majority’s strained reading of RCW 51.24.035(1) was not only gratuitous but also in conflict with the statutory text, I cannot endorse the majority’s reasoning.
Among the various definitions of “construction” in Webster’s, only the second and fourth are conceivably relevant here. These definitions read in their entirety:
2a : the act of putting parts together to form a complete integrated object : fabrication < during the [construction] of the bridge > b (1): the form or manner in which something has been put together : design < several ships of similar [construction] > < an analysis of the [construction] of a time bomb > (2) : the science or study of building or erection < two years in college mastering ship [construction] > c : something built or erected : structure < raw new [construe*618 tionsis along a highway >----4a: the act of constructing a geometrical figure; also : its result b : an abstract or nonrepresentational sculptural creation composed of separate and often disparate elements.
Webster’s, supra, at 489.
Webster’s provides a number of definitions for “project,” only two of which are applicable here:
1: a specific plan or design: as a [obsolete] : a tabular outline : draft, pattern b : a devised or proposed plan : a scheme for which there seems hope of success : proposal < presented his [project] to the committee > < he discusses his \projeci\s with her -Current Biog. > ... .
3 : A planned undertaking: as a: a definitely formulated piece of research b (1) : an undertaking devised to effect the reclamation or improvement of a particular area of land < the construction of small irrigation [projects -W. O. Douglas > (2) : the area of land involved c : a systematically built group of houses or apartment buildings; [especially] : one that includes community facilities and has been socially planned with government support to serve low-income families d : a vast enterprise [usually] sponsored and financed by a government < demands made for setting up public work [projects -Amer. Guide Series: N.Y. > <the [project], as authorized by Congress ... provided for a ten-year expenditure of $88 million -Current Biog.>
Webster’s, supra, at 1813 (last alteration in original).
Potentially relevant definitions of “site” read, in their entirety:
2 a : the local position of building, town, monument, or similar work either constructed or to be constructed [especially] in connection with its surroundings < how Oxford and Cambridge in particular came to be chosen for [site]s — A.T. Quiller-Couch> <suitable [site] for a factory> < his structural solutions and his great sense of [site] — Lincoln Kirstein > b : a space of ground occupied or to be occupied by a building coffered the city a library... if the city would provide a [site] — Amer. Guide Series: Md. > c : land made suitable for building purposes by dividing into lots, laying out streets, and providing facilities (as water, sewers, power supply) < desirable corner [sitéis are available > < waterfront [site]s for summer cottages >
3 : the scene of an action < battle [site] > < [site] of the murder > < [site] of an auto collision > or specified activity < mining [site] > < picnic [site] > < launching [site] for a rocket > < choosing a [site] for a convention > < [site] of a bone fracture >.
Webster’s, supra, at 2128.