Engineer’s Corner: Contractor, Project Manager Convicted in Wrongful Death: What It Means for the Underground Industry

I recently served as an expert witness in a wrongful death (involuntary manslaughter) case in California related to a trench collapse.  In this particular case, the court held the prime contractor and project manager personally responsible for not following state laws regarding worker protection in excavations and sentenced each to two years in prison.  This was an important case as it increased prominence and showed an increased willingness by OSHA and prosecutors to prosecute egregious cases which show a  disregard for worker safety.

The worker, who died, had been performing part of the excavation work on a hillside home construction project.  The subcontractor had excavated a series of one-sided vertical cuts of 8 ft and 11-ft with no sloping or benching.  The subcontractor’s crew had begun forming footings and placing concrete at the base of these excavations when one of the vertical cuts caved in on the worker, resulting in the worker’s death.

I was first introduced to this case in December 2010, when a contractor called me on a quiet Sunday morning.  That contractor had been tasked with creating a safe recovery plan that would require an engineered excavation plan, to recover a body that had been buried the previous day.  The contractor and I were both new to the project, having played no part in the initial work, however, the contractor asked me for a plan to allow the recovery team to do its job safely.  This was a tragic accident and it took about 3 days for the body to be recovered, while the family waited at the caution tape on the job site.

I was reintroduced to the case in the summer of 2015 when the district attorney prosecuting the case asked me to testify as an expert witness at the trial.  I hadn’t followed the case closely, but effectively the district attorney wanted me to explain the following topics to the jury:

1. Federal and State OSHA safety regulations require contractors to protect workers in excavations
2. Through the normal course of obtaining a contractor’s license and performing construction work a contractor performing underground work should be aware of these requirements, and
3. Through an understanding of OSHA Subpart P, Excavations there were means and methods that could and or should have been used to prevent the accident from happening.

It was not my job to convict the defendants; I would be explaining the regulations and process at a layperson level.  The district attorney’s job was to present these regulations and processes to the jury and show that the defendants were aware of the requirements, conspired to avoid them and as a result, the worker was killed in a trench collapse.

One of the more fascinating topics from the case was the amount of time spent discussing the essence of OSHA Subpart P, which is:

1. The general duty clause provides that every worker shall be protected from injury, and
2. Subpart 1926.652(a)(1) provides that each employee in an excavation shall be protected from cave-ins by an adequate protective system.

These are two points that most individuals in the underground industry are very aware of and form the basis for a lot of what we in our industry do every day. During my testimony, I walked the jury through these concepts, much as I would a new engineer starting in our engineering practice. At the end of the process, I believe the judge and the jury understood the basic concepts and responsibilities for worker protection in an excavation.

During the trial, it became clear that there were extenuating circumstances in this case as it related to the management of the project:

• The subcontractor had walked off the job several days before the collapse due to non-payment for work,
• The prime contractor located a day worker crew to perform work on a Saturday in order to show some progress to the owner to receive payment,
• The excavation was on the extremely stiff ground that had stood for months during formwork and concrete pours under the watchful eyes of city inspectors, design engineers, geotechnical engineers, and the workers,
• The city issued building permits without addressing the issue of excavation safety (the fact is that excavation safety is temporary, relies on means and methods, and is solely the contractor’s responsibility), and
• Most importantly, three days before the collapse and accident occurred the city inspector issued a red tag stop work order due to excavation safety issues (he had handed it to the project manager/superintendent off-site and it was never posted so the workers could see it).

The contractor’s defense had centered on him being a “paper contractor” only and pointing to the subcontractor for the creation of the excavation. However, under review of the facts, the court found that the application of OSHA Subpart P disputed this account.  The explanation given for this finding focused on these major points:

1. The owner and his engineer have to make a provision for worker safety in the contract to ensure that only responsible contractors with a commitment to safety and good safety records are allowed on the project.
2. In conformance with OSHA safety requirements, the prime contractors have to have a safety commitment and plan that ensures the commitment is adhered to, which translates to hiring subcontractors that agree to and follow all of the project safety requirements.
3. In the case of an excavation contractor, there is an excavation safety requirement in the contract that must be performed. The prime contractor, in this case, a “paper contractor”, has to follow through and ensure that it is being taken care of by a review of the safety plans and excavation safety plan submittals.  It is very important to understand that the requirement to ensure compliance cannot be pushed off and or avoided due to ignorance on the subject.
4. The excavation contractor has to plan the excavation, including worker safety provisions, have a supervisory system in place to make sure the plan is adhered to in the field, and ensure that workers are educated and properly trained to carry out the plan.
5. The workers in excavation have to follow and adhere to all excavation safety requirements.

In this case, the court found the prime contractor failed to adhere to points 2 and 3 above.  On point 2, the prime contractor had failed to have a safety commitment and corresponding safety plan.  Further, the prime contractor did not check to ensure the subcontractor had an excavation permit.  On point 3, the prime contractor and his project manager did not ensure that the subcontractor was doing excavation safety planning, conducting safety meetings, and or conforming to OSHA Subpart P excavation safety requirements.

Historically, the failure to adhere to these two points contributes to a negligence case on behalf of the contractor and potentially individuals involved with the project.  The fact the prime contractor and project manager did not follow the stop work order and the fact the excavation planning and safety requirements had not been adhered to for monetary gain contributed to a set of circumstances where the court could hold each of the parties criminally liable.

Please note that I am not a lawyer. Therefore, this summary is not meant to point fingers at anyone nor am I attempting to make legal conclusions. This case is simply an important reminder of the responsibility for safety every underground contractor has for his or her employees.  Some of those key requirements are:

• Every person and entity from the worker in the trench to the prime contractor and even the owner of the project has an integral and important part to play in protecting workers in an excavation.
• The requirements at every level are different, but they cannot be ignored or delegated.
• Each party on any excavation project should understand at each level what the requirements are and what must be done to fulfill those requirements.
• Excavation safety planning is a construction function, not a design function, meaning that it is temporary and heavily reliant on means and methods.
• Cost is often the major factor that drives the extent and quality of excavation safety measures. These costs cannot be avoided without consequences, in this case, a life was lost and the prime contractor and his project manager are in jail.