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Trench Work Fatalities: Wrongful Death and Subcontractor Duties

I. Injured at Work

Among the most dangerous occupations in America are those who are trench and excavation work operators. Studies show the safety trend is going the wrong way, too. There are even euphemisms used by people who do the digging work, making light of the daily dangers they face. But there was nothing funny about the death of Thomas S., one Sunday afternoon. Due to the work of a wrongful death attorney, an unfortunate dismissal of this case was reversed, and liability was assessed against a subcontractor.

II. Setting the Stage For Death

Work was going well ahead, at the Research Triangle Park development site in Durham County, even though employees had a tough schedule ahead of them. Working on a Saturday and Sunday was one way to keep on schedule. Whenever a wrongful death is alleged at a worksite, a wrongful death attorney is going to carefully examine who is in charge of the site. In this case, there was the major developer for the project, who had hired in turn a general contractor. The general contractor hired Thomas S.’s subcontractor/employer for the specific job of digging a sanitary sewer line on Chin Page Road.

The Saturday before the accident, the contractor and the subcontractor were both working on sewer line ditches. Although the subcontractor had been hired to dig both lines, in order to save time, the general contractor also worked on one of the trench sites. These factors suggested that time was given more priority that some aspects of safety. The wrongful death attorney later showed that the trenches had failed to be properly sloped, shored or braced, and didn’t have a trench box. In fact, they were seen as so risky that the general contractor had refused to let his crew work in them without a trench box.

III.   Wrong To Say: “It’s not my responsibility!”

The ditch collapse came at 9:30 in the morning. One side of the trench almost completely slid in, totally bearing Thomas. A coworker was buried up to his armpits, but he was extricated. For hours, workers continue to try to dig Thomas out. They refused to take help, however from a security guard who is working for another company… The security guard had even volunteer to call the rescue squad. By the time Thomas was taken from the bottom of the pit, he was dead. The wrongful death attorney pointed the depth of the pit and the vertical sides. An expert brought in by the wrongful death attorney pointed out that the trench was being sloped less than it had been, and described it as “unsafe,” and that the expert himself “would never put a man in it.”

The wrongful death attorney stressed that allowing the trial court dismissal to stand would send a message that when it came to worker safety, some duties could be safely shuffled off…or delegated to the black hole of bad luck.

This wrongful death attorney also stressed the existence of evidence, on appeal, that attention should have been paid to both the soil conditions and topography. Expert studies of these two particular specifics certainly indicated that a trench box was the best possible way of protecting the workers. In fact, the general contractor had actually obtained a trench box for the subcontractors. Tragically, the subcontractor did not get a trench box for this particular crew, of which Thomas was a member. There was also, as noted earlier, mounting pressure to get the job done quicker. Several times a day, someone from the general contractor checked to see how the work is progressing. There was a complaint to the men (later rescinded by the contractor) that the backhoe wasn’t being operated “fast enough.” There was later conflicting testimony about the safety during this specific period of time.

While one worker argued that it “could’ve been a little safer,” the wrongful death attorney later established that the trench construction itself violated 0SHA rules. Every ditch deeper than five feet needs special permits. After the death had occurred, in preparation for trial and suit, the wrongful death attorney had researched appropriate health safety standards, both in the state of North Carolina and federal OSHA standards, to prove deviation from those rules. An expert in wrongful death helped establish what should’ve been done…with a greater hope, that these accidents can be prevented in the future, as well.

This case brought home to North Carolina contractors the safety risks of trench work: more than three dozen deaths will probably occur this coming year. Most of those deaths are all too similar to this case: cave- or slide-ins. NIOSH researchers have found that trenching and excavation hazards during construction led to 488 deaths between 1992 and 2000 – up to an average of 54 fatalities each year. The vast majority of those fatalities occurred in companies with fewer than 50 workers

IV.  Contractor liability for subcontractors…

…was also a key issue raised by the wrongful death attorney in this case. To allow negligent hiring, inadequate supervision or training, or sloppy retention of a subcontractor, could have the same effect of ducking responsibility. The wrongful death attorney showed these specifics, and what the general contractor could have done to better supervise the specific operations by the subcontractor. As mentioned above, the trench box lay unused the day of death.

Conclusions:   

The North Carolina Supreme Court judges were unanimous in agreement with the wrongful death attorney about why worker’s compensation should not be the only recovery in this case. The court justices believed that the wrongful death attorney had proven the death “was the result of intentional conduct by his employer which the employer knew were substantially certain.” This carelessness by the employer was itself likely to have led to serious injury or death. Because it was so intentional, or careless, the court agreed the wrongful death attorney could properly pursue this claim as an intentional tort committed by the employer.

Wrongful death claims are among the most burdensome of legal cases for the survivors. They require the most experienced of wrongful death practitioners. Similarly, if a family member or a loved one have been hurt in a workplace incident—or have questions about a prior or recent accident, related to someone’s careless actions, or involving related claims or wrongful death, please contact us.  You will speak with a wrongful death or a workers compensation attorney who can best answer your questions about how your cases may relate to each other.  There is never a fee for this initial consultation.

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