Injury at Washington Landfill Raises Questions About Jobsite Safety and Contractor OversightInjury at Washington Landfill Raises Questions About Jobsite Safety and Contractor Oversight

Consultant-client relationships can encounter bumps in the road for a variety of reasons.  Perhaps none of them more unpleasant than when an aspect of the work harms a third party.  If the matter ends up in court, both consultant and client commonly face a claim for negligence.  

From the consultant’s standpoint, a plaintiff will claim a breach of duty to act at a recognized level of professional know-how and care, which resulted in loss, injury or other damages.  Contractual safeguards, however, can go far in successfully minimizing consultant exposure in the event of a lawsuit.

Besides spelling out the scope of work to be performed, a carefully prepared contract for consulting services identifies aspects of the work for which the consultant assumes no responsibility or, even better, designates the party upon whom such responsibility falls.  A wrap-around indemnification clause and a hold-harmless provision can further protect the consultant against third party claims stemming from a client's shortcomings.  In addition, some states, by statute or judicial decree, limit consultant liability. 

Pierce County Recycling, Composting and Disposal LLC, which conducts business as  LRI, operates a municipal solid waste landfill on a 320-acre site in Graham, Washington, which is about 16 miles southeast of Tacoma.  There came a time when the company needed a new waste disposal cell.  LRI moved the soil excavated from the cell construction site to the west slope of the landfill where it was also making repairs to contain leachate.   

LRI contracted with Scarsella Brothers as a general contractor to build the cell and perform the repairs.  SCS Engineers joined the project as a consultant to design the cell, to provide field engineering for remediation of leaching sites, and to provide construction quality assurance services. 

Under its contract with LRI, Scarcella assumed sole responsibility for the “means, methods, techniques, sequences and procedures of construction." Scarsella was also obliged to provide all necessary equipment and “for initiating, maintaining and supervising all safety precautions and programs." Scarsella agreed to "take all necessary precautions for the safety of . . . all persons on the site," and to "provide the necessary protection to prevent damage, injury or loss to all persons on the site."  It was "solely responsible for the safety of its employees, subcontractors, agents, representatives, and invitees."  Notably, LRI and SCS were expressly not responsible for “the safety precautions and programs incident thereto."

All of the work done by SCS at the landfill was covered by a single contract between SCS and Waste Connections (WC) and its subsidiaries. (The relationship between WC and LRI does not appear in the court record, but LRI did not dispute being bound by that contract.)  SCS and Scarcella had no contractual relationship. 

The contract provided that SCS would be responsible for its own activities and those of its employees and subcontractors. In particular, SCS would not "direct, supervise or control the work of [LRI's] consultants and contractors or their subcontractors."  Moreover, SCS expressly would not "advise on, issue directions regarding, or assume control over safety conditions and programs for others at the [jobsite]." The contract further provided that "[n]either the professional activities of" [SCS], nor the presence of its employees, would "be construed to imply that [SCS] control[led] the operations of others or [had] any responsibility for jobsite safety."

According to SCS’s postconstruction report, it prepared technical specifications, construction drawings, and construction quality assurance guidelines. It kept daily records of construction progress, including information about tests related to Scarsella's work, areas of non-conformance and required corrective actions.  It also prepared field reports summarizing ongoing construction activities and discussions with Scarsella.

LRI's contractor orientation briefing listed "potentially deadly [landfill gas]" as a workplace hazard, but its section on required personal protective equipment and safe work practices did not mention gas monitors. Scarsella did not require its employees to wear gas monitors at the landfill.

John Neice was a Scarsella employee who worked on the cell construction project. In addition to other work, he helped repair leachate seeps that SCS had identified.  One morning,

Neice worked on an excavation on the west slope of the landfill that had been emitting an especially strong smell.  While determining whether the excavation was deep enough, "gas shot up and got [him]."  He fell to his knees and vomited.  Later, his daughter picked him up and drove him to a hospital where it was determined his lungs suffered serious injury.

Incidentally, another Scarsella employee was also near the excavation when the gas escaped. A Scarsella superintendent quickly moved that employee away from the area because an LRI employee's gas monitor was going off.  However, no Scarsella employees, including Neice, had gas monitors.

Neice got workers’ compensation benefits as a result of his on-the-job injury, which precluded any lawsuit against Scarsella.  Looking for redress, he sued LRI and SCS, claiming that the companies negligently caused his injury.  The lawsuit identified both entities as general contractors and claimed that their negligence was based on breaches of a general contractor's common law duty to provide a safe workplace, as well as breaches of a general contractor's duty

to comply with state safety laws. The suit also claimed that both defendants breached a landowner's duty to business invitees and were thus liable under a theory of premises liability.

The defendants separately moved for summary judgment, arguing that only Scarsella was responsible for Neice's safety.  SCS also argued that it was entitled to immunity under a state statute that exempts design professionals from suit under certain circumstances.

The parties presented evidence in the trial court on the roles LRI, SCS and Scarsella played in the cell construction project. Neice testified that, as a Scarsella surveyor, he primarily worked on building the new cell. Though work on the west slope was part of the contract between LRI and SCS, Neice noted that the leachate seep repairs on the west slope were "not [his] regular work."  SCS and LRI asked Neice to perform the repairs because they were worried that leachate would get into the groundwater.  

When deposed, Neice’s supervisor, a Scarcella employee, testified that SCS did not direct Neice’s leachate repair work. He said that the "minimum, bare requirement [was] to make the leachate go down instead of out," implying that an engineer's supervision was not necessary for this task.

A different Scarsella employee testified that for all projects done on the landfill, SCS inspected Scarsella's work to ensure compliance with project specifications but did not

take on a supervisory role.  However, Neice testified that his daily instructions generally came from both his Scarcella supervisor and SCS. He said that an SCS employee instructed him to survey specific excavations, measure the amount of material being excavated, and measure the amount of material put back in. And he said that on the morning of his injury, an SCS employee gave him specific directions for surveying an area for repair.

SCS’s project director testified that he did not believe any SCS employees were onsite when Neice was injured.  Indeed, an SCS report from that day notes that the company's staff arrived at the landfill more than an hour after the injury. Furthermore, although Neice testified that SCS directed what surveying was necessary and what information had to be collected, he did not say that SCS told him how to carry out his measurements or what safety precautions to take.

Neice testified that no one from LRI or SCS told him landfill gas was harmful. When asked if he ever requested that either company monitor the gas, Neice replied, "I didn't even know there was deadly gases out there. How could I ask them to monitor something I don't know?"

A professional engineer who served as Neice's expert witness, declared that exposure to landfill gas is “known to result in adverse health effects," including lung damage, unconsciousness and death.  He believed that LRI and SCS understood the hazard landfill gas presents but stated that they failed to communicate the danger to Scarsella or its employees. He declared that the "risk of exposure to landfill gas can be reasonably mitigated" by gas monitors, describing them as a "prudent administrative control . . . utilized by industry to warn users of the hazards of the atmosphere that they are working in."  And he concluded that but for LRI's failure to require Scarsella employees to wear gas monitors, "it is more likely than not that Neice would not have suffered an inhalation exposure and injury from the landfill gas."  

The trial judge granted both defendants' motions for summary judgment. On appeal, a three-judge panel reversed the lower court's grant of summary judgment as to Neice's premises liability claim because serious questions existed about whether LRI had breached its duty to Neice as a business invitee.  Otherwise, the panel upheld summary judgment in favor of LRI with respect to Neice's other claims because Neice failed to establish that LRI retained the ability to supervise the manner in which Scarsella employees, like Neice, did their work.  The appeals court also ruled that summary judgment for SCS was proper because the company is exempt from suit under state law.  Among other factors supporting immunity, SCS, by contract, assumed no responsibility for Scarcella employees' safety and did not exercise control over the premises where the work was performed.

Claims Against LRI

To establish negligence, Neice needed to prove that LRI had a duty to him, that LRI breached its duty, and that the breach was the proximate cause of his injury – that is, the harm he suffered would not have occurred but for LRI’s acts or omissions. Neice argued that LRI was liable for his injury under a theory of premises liability, which is a form of negligence.

 The duty of care in a premises-liability case is based on the status of the plaintiff on the property: trespasser, licensee or invitee.  Invitees are business visitors to the property who are sought, expressly or implicitly, to provide an economic benefit to the owner. One who owns or occupies and controls land can be held liable for physical harm to an invitee by a condition on the property, but only if they (a) knew or by the exercise of reasonable care could have discovered the condition and should have realized that it involved an unreasonable risk of harm to such invitee; (b) should have expected that the invitee would not discover or realize the danger or would fail to protect themselves against it; and (c) failed to exercise reasonable care to protect the invitee against the danger.

LRI responded that summary judgment on this claim was proper because Neice was not a business invitee. It added that it cannot be liable under a theory of premises liability because it retained no control over Neice's work or the area where he was working. The panel disagreed.

"The employees of an independent contractor hired by the landowner are [business] invitees,” the panel wrote.  “Here, Neice was LRI's business invitee because he was the employee of an independent contractor that LRI hired.  * * *  [T]he record contains support for the proposition that LRI knew or, by the exercise of reasonable care, would have discovered the possibility of Neice becoming injured by landfill gas. The professional engineer who served as Neice's expert witness declared that exposure to landfill gas ‘is known to result in adverse health

effects.’ Additionally, LRI's orientation briefing listed the presence of potentially deadly gas as a hazard associated with activities on the landfill.

 “There is also a question of fact about whether LRI should have expected that Neice would not realize the danger or fail to protect himself against the danger,” the panel continued. “Scarsella admitted that it did not require its employees to wear gas monitors when they worked at the landfill. The record shows that LRI and Scarsella worked closely together, so it is hard to imagine that LRI was unaware that its general contractor's employees were working without gas monitors. * * * [T]he record . . . suggests that LRI was aware that Scarcella employees were not protecting themselves from hazardous landfill gas.

"Finally, there is a question of fact about whether LRI failed to exercise reasonable care to protect Neice from the danger. Neice's expert witness declared that the ‘risk of exposure to landfill gas can be reasonably mitigated’ by gas monitors, which are a ‘prudent administrative control . . . utilized by industry to warn users of the hazards of the atmosphere that they are working in.’ But LRI's orientation briefing shows that it did not require contractors to wear gas monitors, despite requiring them to wear other personal protective equipment like hard hats and safety glasses. And the record shows that at least some LRI employees had access to gas monitors.”

In addition, the panel noted testimony from Neice's superintendent that, shortly before the injury, the excavation where the injury occurred smelled especially bad. “[T]hat Scarsella employees continued working there suggests that Neice was not the only employee who did not understand the danger,” the panel said.  “[W]e have to assume at this stage that Neice was not properly briefed about gas monitors as a safety precaution.”

LRI further argued, unsuccessfully, that because gas escaped only when Scarsella began excavating, Neice cannot prove LRI's acts or omissions proximately caused his injury.  The appeals court referred to testimony from Neice's expert who declared that but for LRI's failure to adequately warn or to require Scarsella employees to wear gas monitors, "it is more likely than not that Neice would not have suffered an inhalation exposure and injury from the landfill gas."  Moreover, right after Neice got injured, Neice's superintendent said he got a different Scarsella employee away from that area because an LRI employee's gas monitor was going off.  Anticipating what Neice might present to a jury, “[this evidence] indicates that if Neice had been wearing a gas monitor, its alert would have prompted him to get away from the area before the landfill gas injured him,” the panel concluded.

Neice argued that LRI is also liable for his injury because it controlled the landfill and the way Neice carried out his work, so it was in the best position to ensure the working environment was safe under the safe workplace doctrine, which imposes duties on both general contractors and jobsite owners to provide a safe place to work in all areas under their supervision and control. On that claim, the appellate panel was unconvinced.

“If a general contractor hires an independent contractor, it is not liable for injuries to the independent contractor's employees unless it retains control over those employees' work,” the appeals court stated.  “Here, Neice did not present evidence that LRI retained the right to direct the manner in which Scarsella employees carried out their work. LRI's contract with Scarsella provided that Scarsella was ‘solely responsible for the means, methods, techniques, sequences and procedures of construction.’ It also provided that Scarsella was ‘responsible for initiating, maintaining and supervising all safety precautions and programs.’"

Even more significant, no witness testified that LRI actively supervised their work or assumed responsibility for their safety. Neice's superintendent said LRI required Scarsella to “make the leachate go down instead of out," but, observed the panel, “this does not amount to testimony that LRI controlled the manner in which Scarsella employees achieved that goal.”

Finally, Neice argued that LRI had breached its duty under state industrial safety regulations by failing to require Neice to wear a gas monitor.  However, Washington State courts have ruled that jobsite owners have a duty to comply with these rules only if they retain control over the manner in which contractors complete their work.  “Neice has failed to present a genuine issue of fact as to whether LRI retained control over the manner in which Scarsella employees completed their work,” the court said.

Claims Against SCS Engineers

State law provides that, in general, an injured worker 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" unless the design professional (i) exercised control over the portion of the premises where the worker was injured, (ii) assumed responsibility for safety practices by contract, or (iii) negligently prepared design plans and specifications.

Neice unsuccessfully claimed that the statute does not protect SCS because the landfill was not a construction site and because SCS exercised control over the portion of the landfill where Neice was injured.  

Neice did not dispute that SCS is a design professional nor did he allege that the third exception applies.  Although Neice argued otherwise, the record clearly established that SCS  performed services on a construction site; the heavy equipment work on the west slope where Neice was injured was indeed a construction project.  The lower court record established that LRI hired SCS to help complete a structure, namely a "composite-lined waste disposal cell with leak detection and leachate collection systems." As part of this project, LRI and SCS transferred soil excavated from the new cell construction to existing cell sites on the west slope of the landfill using heavy equipment.

“Though they occurred at separate locations, the activities on the cell construction site and the west slope were interrelated parts of the same ‘overarching plan’ that LRI hired [SCS] to perform,” the panel continued.  “[SCS] contracted to consult on a construction project for which

LRI also hired Scarcella, a general manager whose role was to manage the construction.  *  *  *  [SCS] was performing services on a construction site when identifying and repairing leachate seeps on the west slope.”

SCS did not, by contract, undertake responsibility for Scarsella employees' safety practices. Quite the opposite: The agreement provided that SCS would not "advise on, issue directions regarding, or assume control over safety conditions and programs for others at the [jobsite]."  The project addendum addressing SCS’s work on the landfill had no language about assuming responsibility for other contractors' safety practices.  And if further proof were necessary, the contract between Scarsella and LRI provided, "Neither [LRI] nor [SCS] shall be responsible for [Scarsella's] means, methods, techniques, sequences[,] or procedures of construction, or the safety precautions and programs incident thereto."

SCS argued that it exercised no control over the location where Neice was injured.  On the other hand, Neice said that he generally got instructions for daily work from both his superintendent and SCS and, in particular, that on the morning of the incident, SCS gave him specific directions for making the repair that led to the injury.  His statement conflicted with the SCS field report and testimony from an SCS project director, indicating that none of the company's employees were at the construction site until about an hour after Neice got injured.  

“However, even assuming Neice's testimony is true, SCS did not step into the shoes of the landowner to actually exercise control over the portion of the premises where Neice was injured,” the panel found.  “[SCS]’s contract emphasizes that their role was as an engineering consultant, not a general contractor. * * * There is no suggestion that [SCS] ever had actual control over this portion of the landfill in the sense of undertaking management of safety precautions for Scarcella or LRI's workers, the basis of Neice's claim. * * * [D]ismissal of Neice's claims against [SCS]was appropriate based on immunity.”

Neice v. Pierce County Recycling, Composting and Disposal, LLC, et al., No. 58519-7-II,

Wash. Ct. App., Div. 2, Oct. 15, 2024.