$1.8 Million Settlement for Workplace Trench Collapse Injuries
Gerald Clark of the Clark Law Firm won a $1.8 million settlement for an injured worker which was paid by the insurance companies for the general contractor and resident engineer.
The project involved the removal and replacement of municipal water pipes at a community located in a wetlands area adjacent to the Metedeconk River in Brick Township, New Jersey. The Township hired an on site engineering firm to be in charge of overseeing, administering and managing the construction project. Below that was a general contractor who in turn hired the plaintiff’s direct employer to handle the actual work of digging the trenches, installing the pipe, and backfilling. The Clark Law Firm client was a laborer who was severely injured (leg and back) when an unprotected trench caved in on him.
The Township passed a resolution authorizing the on site engineer to provide “construction administration/management” services in connection with the project. Under the contract the engineer agreed to manage the construction project and assume full responsibility for its negligent acts or omissions. The project general contractor had submitted a bid form document wherein its estimated cost of construction services included all trench “excavation, shoring, backfill…” in the amount of $1,102,515. The construction documents also stated that the general contractor will comply with all applicable safety standards including OSHA, will supervise the work, and will be fully responsible for the negligence of its subcontractors. Under the contract documents the resident engineer also had the responsibility to give instructions and orders to the contractor related to job safety and have control over the details of the trench excavation.
OSHA refers to the federal workplace safety regulations which are designed to prevent needless injury and death to workers. OSHA standards require that all trenches greater than 5 feet deep must be protected from cave ins by one of three trench protection methods: sloping, benching or shoring. Trenches less than five feet deep must be protected if there is a potential for a cave in due to certain risk factors including soil type and water in the soil.
The general contractor on the project had a responsibility to see to it OSHA’s trench protection rules were followed. The construction manager and resident engineer of the project also had a responsibility to manage safety and enforce OSHA’s trench protection rules.
The work involved digging trenches totaling 2800 feet in length, four feet wide, typically 4-5 feet deep. The project was located in a wetlands area. The soil in the trenches was sandy and wet. Dewatering was necessary, but does not eliminate collapse risk. Sandy soil is considered Type C, the least stable and most prone to collapse. Both the general contractor and resident engineer knew about these conditions and there were several prior collapses on the project.
Both the general contractor and resident engineer failed to enforce OSHA’s trench safety rules. At no point prior to this incident did either require the trenches be protected from cave ins; trench protection was pretty much never used on this job. Contrary to OSHA safety rules, at no point did an OSHA competent person inspect the trench to determine if a collapse was likely nor was there any inspection of the soil to determine its type and propensity to collapse.
The Clark Law Firm client worker was in one of the unprotected trenches working on the pipe installation work when a 3 foot section of the trench, including part of the asphalt pavement at the top collapsed down and struck him in the leg. The trench was about 4′ 9″ deep. The resident engineer was on site at the time of this trench collapse. Trench protection would have prevented this incident. Both the general contractor and resident engineer had the power, authority and responsibility to enforce OSHA’s trench safety rules, but chose not to; they never required any trench protection.
Both the general contractor and resident engineer agreed in their contracts to assume full responsibility for their negligent acts or omissions. The General Contractor had a non-delegable responsibility to ensure OSHA compliance on the project with regard to its own workers and subcontractors. The construction manager and resident engineer also had a responsibility to see to it the contractor followed OSHA work safety rules. The injured worker did nothing wrong to cause the incident.
A former OSHA official and construction safety expert concluded the worker was exposed to crushing and struck by hazards. He was working in a trench approximately 4’8” deep that was not inspected by a competent person from the general contractor as required by the contract documents and OSHA safety rules. There was no shoring, benching, sloping or shield system being used at the time to protect workers from the dangers of working in trenches. The area where this work was being done was sandy soil and water was known to be a problem in this area. OSHA regulations require daily inspections be conducted by a competent person prior to the start of work for evidence of a situation that could result in possible cave-ins.
The expert concluded the general contractor violated the principles and practices of construction safety management because they failed to take reasonable steps to ensure that the trenches at the site were safe and in compliance with OSHA regulations. They failed to plan, monitor and ensure that the trench was dug in compliance with OSHA regulations. He opined the general contractor and resident engineer violated the aforementioned OSHA regulations and permitted workers to be exposed to crushing and struck -by hazards at this worksite. Their failure to make sure trenches were inspected by a competent person prior to beginning work on a daily basis as required by the OSHA regulations was the responsibility of the general contractor and these failures resulted in the injuries to Jose de Pinho.
The expert also opined that the resident engineer violated the principles and practices of construction safety management because they failed to take reasonable steps to ensure that the trenches at the site were safe and in compliance with OSHA regulations. They failed to plan, monitor and ensure that the trench was dug in compliance with OSHA regulations. The resident engineer had the responsibility under their contract with the owner to see to it the work was being done in accordance with the provisions of the contract which required compliance with OSHA regulations. The resident engineer failed to ensure trench work was done in compliance with OSHA regulations. The resident engineer was on site every day trench work was being done and yet did nothing to ensure workers were provided adequate protection from cave in and struck by hazards.
As a result the worker sustained severe injuries including fracture of the left tibia and fibula and herniations in the spine. He underwent extensive medical treatment including surgery. He had substantial lost wages and past and future medical bills. Gerald Clark of the Clark Law Firm won a $1.8 million settlement for the injured worker which was paid by the insurance companies for the general contractor and resident engineer.
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