Labor Law 16 : Trench

Q: On a roadway excavation, the City had hired my employer as the prime contractor for the work.  It had hired an independent engineer to perform inspection services in connection with the project.  I was ordered to go into the trench to dig by hand.  Because the trench was not protected by any shoring or sheeting, it collapsed.  Who should we sue, and who will pay?

A: You need to commence a personal injury action against the City, alleging violations of sections 200 and 241 of the Labor Law.  Section 200 merely codifies the common-law duty of an owner or general contractor to provide a safe place of work.  Section 241 imposes a nondelegable duty upon owners, contractors and their agents to provide reasonable and adequate protection and safety to those employed in construction, excavation or demolition work.

The City will probably commence a third-party action against the engineer seeking to recover on theories of contractual and common-law indemnification.

In a typical scenario, your negligence claim under section 200 will be dismissed, but your statutory claim under section 241 will proceed toward trial.  It is likely that both the City and the engineer are at fault; the main question is as to apportioning that fault.

While the duty imposed by section 241 may not be delegated, the burden may be shifted to the party actually responsible for the accident, either by way of a claim for apportionment of damages, or by contractual language requiring indemnification.  Suppose that the City was only vicariously liable for violating section 241, and that the engineer is the party actually responsible for the incident.  In that case, the City is entitled to full common-law indemnification, and need not pay insofar as the engineer can.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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