Eye for an eye, really? Irresponsible developers pay heed to the Code of Hammurabi!
Since the dawn of civilization, irresponsible builders did not survive in the marketplace. They did not survive, period. Under the ancient Code of Hammurabi of Babylon (circa 1800 BC) any builder who negligently built a home that later collapsed and killed the home owner “shall be put death.” Recently, citing to the Code, the Supreme Court of Washington recently, sternly reminded owners, engineers and contractors of their responsibility for worker safety. Michaels v. CH2M Hill, Inc., 2011 WL 2077653 (Wash).
In 2004, a digester dome at Spokane’s sewage treatment plant collapsed, killing one City of Spokane employee and injuring two others. The massive digester had a capacity of 2.25 million gallons. Its purpose was to take raw solids, circulate them for several weeks at a high temperature in an anaerobic process, and turn the solids into fertilizer. The injured parties, who were standing on and adjacent to the digester when it collapsed, sued CH2M Hill Inc., the project engineer that had contracted with the City as a consultant for the 10-year capital improvement project to upgrade the plant.
The Plaintiffs alleged, in part, that CH2M had failed to properly advise them and the City, in writing, of the downstream effects of altering the direction of sewage flow at a valve-like transfer station leading to the digester. Prior to the accident, the workers noticed pressure rising in the digester and, in an attempt to relieve that pressure, began conducting a transfer to move sludge from that digester to another. However, CH2M had recently suggested a design change for that valve and related system, which had been implemented, and the effect of that change was significant. Instead of transferring sewage out of the digester, the new system simply transferred the sludge to a “deadhead”, causing no relief in pressure whatsoever. Unfortunately, the City workers did not know this and believed the transfer would relieve pressure. Ultimately, the digester’s dome collapsed, causing one of the workers who was working on top of the dome to fall into the digester and die, while the other two were blown clear by a wave of sludge and suffered serious injury.
CH2M raised numerous defenses to the claims, namely it was immune from suit under the design professional immunity statute. The trial court rejected CH2M’s argument and, after direct review, the Washington Supreme Court affirmed. The majority opinion concluded the negligence at issue did not occur on a “construction project,” making the immunity site inapplicable. The court also held that there is no immunity from “the negligent preparation of design plans and specifications.” According to the trial judge, CH2M did not perform any engineering analysis of the effects the design changes had on the system and failed to prepare and distribute a written analysis of the changes, subjecting it to liability. The concurring opinion, by Justice Madsen, agreed with the ultimate decision, but held there was no need to analyze whether the negligence occurred on a construction project. If a designer’s plans or specifications are deemed to be negligently deficient, the designer is liable, end of analysis, according to Justice Madsen.
The lesson from this case is to clearly allocate the responsibility for implementing a written protocol to advise parties, including workers, of the effects of design and/or construction changes.
