In October of 2019, a Boston judge sentenced the owner of an excavating company to two years in jail after two of his employees were killed while working in a trench. While OSHA frequently uses monetary sanctions to deter owners from failing to comply with its safety standards, it is truly a rare event for a court to impose criminal penalties on an owner. Unfortunately, this was not the first time OSHA had cited this company for failing to utilize protective systems. Simply put, this tragic accident was entirely avoidable.
The accident itself occurred in the fall of 2016, as two workers were working in an unprotected trench. The lack of a protective system allowed dirt surrounding the trench to slough off into the trench, burying the workers waist deep. As a result of the dirt being displaced, a nearby fire‑hydrant system malfunctioned, flooding the trench with water, and ultimately drowning these two workers. Because this accident was avoidable and foreseeable, the judge not only charged the company with the workers’ deaths, but also found the owner of the company personally responsible.
To make matters worse, during its investigation of the accident, OSHA discovered that the company had falsified documents it supplied to investigators, including sign-in sheets for excavation and trenching training sessions and signed acknowledgements of receipt of personal safety equipment. Still, during the trial, the owner of the company argued that the City had failed to maintain the fire-hydrant system that collapsed into the trench, and thus the City was ultimately responsible for the workers’ deaths. However, the judge remained unconvinced by this argument, and instead sentenced the owner to two years in jail.
While the owner of the excavating company from this case displayed what not to do, it is just as important that contractors, when faced with similar situations, know what to do. As a basic recap, OSHA requires contractors that perform trenching work to adhere to the following minimal standards:
- Trenches five feet deep or greater require a protective system (unless excavation is made entirely in stable rock);
- Trenches twenty feet deep or greater require that the protective system be designed by a registered professional engineer;
- Determining the proper protective system (for all depths) depends on a number of factors, including soil classification, depth of cut, water content of soils, changes due to weather or climate, and other operations being conducted nearby;
- Trenches need to be inspected daily by a competent person (i.e., an individual who is capable of identifying existing hazards and who is also authorized to take prompt corrective measures to eliminate or control these hazards); and
- Access in and out of the trench needs to be located within 25 feet of all workers.
The
lesson here is simple: not only are owners responsible for what happens under
their watch, but they also need to enable their workers to be a competent person (as defined in OSHA’s
rules). By providing this agency to their workers, owners can ensure that
workers feel enabled to address these types of issues as they arise in the
field. Only through collaboration between owners, workers, and OSHA can we hope
to protect workers from these avoidable accidents.
CONTRACTOR’S CORNER is a series providing updates on current and developing topics affecting the construction industry. If you have questions, comments, or recommendations for future installments, please email aaron@wellelaw.com.
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