NJ Trench Warfare: When Can a Construction Worker Sue for Negligence?
On the morning of May 6, 2024, tragedy struck a Kenilworth construction site, as a 29-year-old worker from Cranford, NJ, sustained fatal injuries in a trench collapse. Workers were installing precast storm-drain components in an unprotected trench at 351 Monroe Avenue near 12th Street. The worker had been positioning trench liner fabric inside the excavation when the trench collapsed, burying him beneath soil, mud, and concrete. Kenilworth Police, Fire, and EMS responded and attempted lifesaving measures, but he had suffocated and was pronounced dead at the scene. The incident raised questions about safety compliance at construction sites, as well as the rights of workers who are injured or killed while working at a noncompliant site. Since Razi & Giampa Law in Paramus represents injured construction workers, we want you to understand workers’ rights under these circumstances.
Subsequent investigation of the fatal trench collapse
The U.S. Department of Labor’s Occupational Safety and Health Administration opened an investigation. Its May 6 inspection of the site revealed two serious safety violations and one designated “willful.” OSHA levied fines in excess of $87,000 for the infractions. The OSHA summary states the worker suffered fatal injuries due to suffocation from being trapped under collapsed dirt.
OSHA regulations spell out the protective standards for excavations in 29 C.F.R. §1926 Subpart P, which list three basic requirements:
- Protective systems — Where the excavation is five feet deep or greater (unless a competent person determines there is no potential for cave-in), protective systems such as sloping, benching, shoring, or shielding (trench boxes) are mandatory.
- “Competent person” — A qualified individual must inspect excavations daily and after triggering events (rain, vibrations), and authorize protective measures.
- Other required practices — OSHA trenching guidance requires safe means of access/egress, keeping spoils and equipment set back from trench edges, controlling water accumulation, and conducting atmospheric testing where hazardous atmospheres are possible.
The May 6 OSHA inspection indicates that the contractor violated standards. Unfortunately, even though OSHA violations can serve as evidence of negligence, the violations do not confer a right for an injured worker to sue for negligence. They merely expose the contractor to OSHA discipline.
A quick primer on trenches as used in construction
Before we go further, it might be helpful to explain a little about trenches in construction work. Trenches are narrow excavations deeper than they are wide, used to install utilities, drainage systems, foundations, and other below-grade work. The most frequent mistakes that lead to trench collapses include:
- No protective system (failure to slope, shore, bench, or use a trench box)
- No “competent person” oversight or inadequate inspections
- Spoils/equipment too close to edge, adding surcharge weight that causes collapse
- Failure to control water (pumping, dewatering), allowing saturated soils to lose strength
- Working in unstable soils (fill, loose backfill) without proper systems
- Improper/absent access or emergency procedures and inadequate training or fall protection protocols
OSHA lists being “caught in or between” as one of its Focus Four (a/k/a Fatal Four) construction accidents that project supervisors must guard against.
Legal framework for construction accident lawsuits in New Jersey
Ordinarily, worker’s compensation is the exclusive remedy against a direct employer for on-the-job injuries. The law that creates no-fault insurance for workers also protects employers from lawsuits, even when the employer was provably negligent. To sue for negligence, injured workers must identify an at-fault party with whom they do not have an employer-employee or coworker relationship.
A civil tort claim is viable against so-called third parties, such as the property owner, the general contractor, other subcontractors, equipment suppliers, or manufacturers, if negligence by those parties caused or contributed to the injury. New Jersey courts routinely allow third-party suits where the non-employer had control over the workplace or failed in an independent duty of care.
The threshold consideration is control of the worksite. If a third party exercised enough control over how the excavation was done (scheduling, methods, safety oversight), a court might find that the party owed a duty of care to the worker. Since the safety violations breached that duty of care, the worker or the worker’s estate could sue that party.
In the Kenilworth tragedy, the OSHA inspection documenting an unprotected trench provides great support for a negligence action. The question is whether workers’ compensation law bars action against the negligent party. The case will most likely turn on the question of who exercised control over the excavation.
Contact Razi & Giampa Law for a free construction accident consultation
Razi & Giampa Law in Paramus provides highly professional and compassionate legal representation for victims of construction accidents in Bergen County and throughout New Jersey. To schedule a free consultation, call us today at (201) 534-5011 or contact our firm online.
