Cave-Ins and Collapse – A Significant Peril
18 September 2024
As is well documented and reported, a cave-in or trench collapse can lead to serious injuries and even death. In fact, it was recently noted that over the last decade, at least 250 workers have unfortunately died from such instances1. Safety precautions must be taken during these activities, including the use of trench boxes and/or proper shoring, as well as the use of hard hats. Furthermore, spoil piles must be placed at a safe distance to avoid collapsing into the trench, imperiling workers. The decision in Secretary of Labor v. Arrow Plumbing, LLC is instructive, and should again remind construction companies engaged in excavation of the necessary steps they must take to properly protect their workers during trenching activities.
Arrow Plumbing, LLC (“Arrow”) provided plumbing work for municipalities in Missouri. Arrow had been previously cited by OSHA on two separate occasions (and had settled). In the first occasion, in December 2016, they were cited for improper trenching as the trench walls were not benched or sloped, no trench box was used, and spoil piles were adjacent to the edge of the trench and not held back. During excavations, in that instance, a sewer main was struck and caused a rupture, and as the excavator operator entered the trench, the wall collapsed from the weight of the spoil piles, and tragically killed him. On the second occasion, in January 2017, OSHA inspected another site and cited Arrow for again failing to provide cave-in protection, having utilities unsupported, and failing to keep spoil piles at least 2 feet from the edge of the excavation. Given this history, Arrow was on the Severe Violator Enforcement Program, a publicly available list maintained by OSHA of employers issued a willful violation directly related to a fatality and on OSHA’s radar.
On August 20, 2020, Arrow was replacing a sewer line and conducting excavation operations pursuant to a contract with the City of Grain Valley, in Missouri when it was cited by OSHA. Arrow was excavating the front yard of a residential property when an OSHA officer appeared upon receiving a complaint about an unsafe worksite. The OSHA officer observed the Arrow’s owner, Rick Smith and its site supervisor Joshua Brackenberry working inside an excavation without wearing a hardhat. No trench box was used for the excavation. The OSHA officer took measurements of the excavation, which ran from an east-west direction and recorded the width at its opening to be 12’10”, the depth to be 9’3” and the length to be more than 22’2”. Smith during testified that after the OSHA officer left, he took his own measurements of the width of the excavation’s opening, and recorded it as 14’6” and the excavation floor was 2 ½ or 3 feet wide. The OSHA officer observed spoil piles along the south wall and to east of the worksite, and although she took soil samples, she did not measure the spoil piles or their distance from the edge of the excavation. She also observed utility lines in the excavation, including a white pipe fitted with a coupling, as well as an electrical line and a gas line.
Prior to beginning work, Brackenberry, as the competent person, held a safety meeting with Mr. Smith to discuss dangerous situations that could be encountered at the site as well as the challenges of excavating in the front yard of a residential property, and close to the neighbor’s property line. On the previous day, August, 19, 2020, Brackenberry had excavated at the site and bore a hole under the road so that a 4-inch pope could run underground and tie into the home. He also located the electrical and gas lines and excavated around them with a shovel and had observed that the coupling had separated from the conduit on the electrical line. He also piled the excavated soil outside the excavation while another employee moved it to the road for removal by the City. On August 20, 2020, Brackenberry was not using a trench box because he believed that the excavation was properly sloped to prevent a cave-in. Even Smith who observed that the southern wall of the excavation was nearly vertical, did not have safety concerns and proceeded to enter the excavation with Brackenberry. Smith also believed the utility lines were safely secured by the walls of the excavation and not at risk of breaking. At the time, the two men had installed 10 to 12 feet of pipe when the OSHA officer arrived but there was conflicting testimony as to how close they were standing near the utility lines while working in the excavation with Brackenberry indicating they were 10 feet away, Mr. Smith indicating they were 15 to 20 feet away and the OSHA officer testifying that they were 3 to 4 feet away.
Arrow was cited by OSHA for failure to have its employees wear helmets while working in the excavation, a failure to support or protect utility lines and repeat offenses for failure to keep excavated materials at least 2 feet from the edge of the excavation and failure to protect employees from cave-ins and imposed significant monetary penalties. After a hearing and review of all the evidence, the Administrative Law Judge (“ALJ”) found that Secretary of Labor and met its burden against Arrow for most of the citation items.
The relevant safety standard provides that employees working in areas with possible dangers of head injuries from falling or flying objects by protective helmets. Here, neither Smith nor Brackenberry were wearing hard hats, which they saw as a nuisance, limiting their field of vision. Brackenbury was working alongside excavation walls that exceed his height and there were tools and spoil piles near the edge of the excavation, and it was reasonably foreseeable they that they could fall or get kicked into the excavation striking an employee and causing serious head injuries.
The ALJ agreed with the Secretary that Arrow also violated the safety standard providing that when an excavation is “open, underground installations shall be protected, supported, or removed as necessary” to protect employees. Here, neither the gas lines nor electrical lines were properly supported and expert testimony noted that industry standards require some type of structural support such as lumber supports, which were not present herein. Smith’s testimony that “live” lines were light and sufficiently supported by the walls of the excavation was unavailing. Furthermore, the OSHA officer testified that she did not observe anything supporting or protecting these lines during her inspections.
The ALJ vacated the citation against Arrow for violation of the standard which provides that materials or equipment are to be kept least 2 feet from excavations or by the use of retaining devices to prevent hazards from rolling or falling in the excavation because the OSHA officer, here, had actually failed to take measurements of the spoil piles during the investigation and there was insufficient evidence on the record.
Lastly, the ALJ affirmed the citation against Arrow for failure to provide an adequate protective system such as the trench box which actually was present at another location at the site but not used. Arrow’s explanation that such protection was unnecessary since the trench was wider than it was deep was insufficient and actually wrong based on either set of measurements. Furthermore, the almost vertical wall on its southern side should have required some protective systema and even if there was an issue with the neighboring property line, a trench box could have been used, but was not.
In light of its repeat offenses, Arrow was assessed monetary penalties in the amount of $163,058 so as to act inflict “pocket-book deterrence”.
If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445