Charges laid in TESC student housing death bear striking similarities to Whatcom County tragedy

A case of carbon monoxide (CO) poisoning at The Evergreen State College (TESC) that has striking parallels to the 2021 deaths of two people in Point Roberts, WA, has led to charges against two men accused of improperly installing a gas appliance.

A father and son, Frank McCutcheon, 53, and Brett McCutcheon, 32, have been charged with manslaughter in the second degree after a 21-year-old Evergreen State College student, Jonathan Rodriguez, died December 11, 2023, from CO poisoning due to the improper installation of a tankless hot water heater. Two female students, ages 19 and 20, were treated for CO poisoning but survived.

The two men were service technicians working for the heating-ventilation and air conditioning contractor Olympia Sheet Metal, based in Tumwater.

The charges were laid July 11 by the Thurston County Prosecuting Attorney’s Office following receipt of an investigative report issued by the Washington State Patrol after a three-month investigation. The Washington State Patrol hired a Texas-based forensic engineering firm, Bison Engineering (BE), to examine the modular housing unit the three students occupied to determine the source of the CO. BE investigators discovered a new tankless water heater inside the unit had not been installed per installation instructions nor according to national fuel gas codes. According to the engineering report, both the intake and exhaust vents were improperly installed.

Housing staff turned off alarms

The heater had been installed on December 4, but it wasn’t until December 11 that CO detectors began sounding off. Housing employees turned off the detectors a number of times, believing the problem was due to the detectors being faulty.

According to the Thurston County Prosecuting Attorney's Office, a technician who arrived later in the evening began moving through the unit to check the detectors and found the three students in distress. Rodriguez was declared dead on the scene.

According to the charges, the forensic engineer found that “no outside combustion air was provided to this unit … the exhaust piping was not sealed and properly connected, the improper air intake and exhaust venting was the cause of the carbon monoxide, and the unit had not been installed per the manufacturer’s installation instructions or in accordance with National Fuel Gas Code.”

The engineer also stated that the heater’s installation was outside of the accepted practice in the industry and was a negligent installation, according to the affidavit of probable cause.

Under Washington state law, a person is guilty of manslaughter in the second degree when, with criminal negligence, he or she causes the death of another person (RCW 9A.32.070). Manslaughter in the second degree is a class B felony.

The law states a person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.

What happened in Point Roberts

The Evergreen State College tragedy has striking similarities to the deaths of Murray Church and Gail Amundsen, who died of CO poisoning in their Point Roberts home on Thanksgiving 2021. Their deaths were also due to the improper installation of a gas appliance, in their case, a condensing boiler installed in their newly constructed home by Custer-based Andgar Home Comfort.

The installer failed to replace the furnace’s injector with one designed to be used with propane instead of the natural gas injector that comes standard from the factory. Point Roberts has never had natural gas service and all gas appliances must be converted for use with propane, a fact that is well-known to businesses installing gas appliances in Point Roberts.

The Andgar installer also failed to perform tests required by the furnace manufacturer that would have highlighted the error. He failed to place a sticker saying the furnace had been converted to propane and the exhaust pipes leading to the outside appeared to be installed incorrectly. It was the exhaust pipe’s failure after it was blown apart that allowed CO to accumulate inside the residence, leading to the two deaths.

In this case, no alarms were set off. According to the Whatcom County Sheriff’s Office (WCSO) investigation, no CO detectors had been installed by the electrical contractor, Shoreline Electric, despite the fact that CO detectors have been required in new and remodeled residences since 2011.

In addition, Whatcom County issued a final occupancy permit despite the obvious deficiencies with the furnace installation and the lack of CO detectors.

A civil lawsuit filed by the children of the couple against the furnace manufacturer, the county, Andgar, Shoreline Electric and general contractor Optimum Contracting was partly settled for $8 million earlier this year. Neither the county nor the furnace manufacturer was part of the settlement, and the lawsuit against them continues.

Determined to have been an accident

Following the news of the charges being laid against the Tumwater two, The Northern Light contacted Whatcom County Sheriff Donnell Tanksley to ask how the sheriff’s office and the prosecutor’s office work together to determine if charges should be laid, especially in cases where the criminal element may not immediately be apparent. In response, WCSO spokesperson Deb Slater wrote in an email that “The WCSO consults with the prosecutor’s office on a case-by-case basis. In this case, it was determined that this was a tragic accidental event with no intent to harm anyone.”

In a follow-up email, The Northern Light asked if the WCSO had consulted with the prosecutor’s office specifically on the Murray/Church case; it had been mutually determined that it was an accidental event. In response, Slater wrote, “The WCSO forwarded a copy of the investigation to the civil division of the prosecutor’s office. The WCSO determined that there were no grounds for criminal charges.”

In a phone interview on August 27, Whatcom County prosecutor Eric Richey was asked how the Whatcom County Prosecuting Attorney’s Office and the WCSO would normally determine if criminal charges were warranted. “The way it works is, we have conversations with the sheriff’s office, they’ll meet with us and talk it through, and we’ll make a determination,” Richey said. Told that in this case the WCSO had merely forwarded a copy of the investigation and had determined on their own that no criminal charges were warranted, Richey asked, “So they said they had dropped off something at the civil department?” When told, “Yes,” Richey merely replied, “Okay.”

Asked if the lack of discussion between the two agencies surprised him, Richey said, “You know, I can’t really comment on that, we are a party to civil litigation at this time.”

Asked if he was able to explain why charges had been laid in the Evergreen College case but not in the arguably more negligent case in Point Roberts, Richey said, “I can only say that I have not had a criminal case referred to me for criminal charges involving this. I can go further on that and say criminal charges are not always filed. I don’t know what happened here. I guess I don’t want to comment any more than that. I really can’t comment.” Asked if the prosecutor’s office might be interested in taking a deeper look at the case, Richey said, “Again, I’m not going to comment on that.”

Following the deaths, in December 2021 The Northern Light made an open public record request of Whatcom County, asking for copies of all communications received or sent by county staff regarding the circumstances behind the couple’s death. There was just one email that included the county prosecutor’s office. In it, county public works assistant director Steve Roberge asked civil prosecutor Royce Buckingham to weigh in on the county’s response to an enquiry made by The Northern Light on December 13 regarding the deaths. Roberge wrote, “Royce, would like to discuss our response with you prior to giving it. Let me know if that should be a separate meeting or if we can incorporate in our 11 [a.m. meeting]?”

One of the questions asked by The Northern Light was how an occupancy permit was issued given the glaring deficiencies in the final inspection process. Roberge responded by writing, “We know that the house was inspected by our staff prior to occupancy. At the time of inspection, the house was approved for occupancy. Carbon monoxide detectors are required for new construction and are included in the final inspection review.”

On January 23, 2023, the county filed its response to the lawsuit brought against it and the other parties. In it, the county took the position that while the county’s “actions were taken pursuant to a duty owed to the public and required by statutes that require the Defendant to inspect buildings … [T]he Defendants owed no duty to the Plaintiffs as individuals.”

The county then cited a case that says the public duty doctrine “creates a duty [only] where the building inspector has actual knowledge of an inherently dangerous and hazardous condition.” It then went on to say, “However, the Defendant did not have actual knowledge of an inherently dangerous and hazardous condition at 549 Calder Drive…”

Given that furnaces and CO detectors are part of the final inspection, and the lack of a required sticker attesting that the furnace had been converted to propane could indicate "an inherently dangerous and hazardous condition," one could infer that the building inspector did not actually check either the furnace or the detectors.

In a follow-up open public records request made by The Northern Light on August 20 asking for all WCSO and prosecutor’s office communications regarding the Church/Asmundsen deaths, public records officer Rick Gregory estimated it would take until September 30 to provide any records and would take until December 6 before a search of the county’s email server could be undertaken. 

Editors Note: This story was republished with permission from The Northern Light, the weekly community newspaper serving Blaine, Birch Bay and Semiahmoo, Washington since 1995.