Earlier this month, Julie Ferguson blogged the hazards of unsafe trenches. Today we examine the consequences of unsafe trenching for Oscar Avalos, a laborer for a Texas-based company involved in the installation of sewer pipes. The good news for Oscar is that a jury awarded him $4.5 million for the general contractor’s negligence in supervising his jobsite; a court of appeals has upheld the award. The bad news, of course, is that Avalos will never work again.
Nowak Construction, a Kansas-based company, was hired by the city of El Paso, Texas, to install new sewer lines. James Heiman, Nowak’s onsite superintendent, was neither an engineer nor safety expert. In their plans submitted to the city, Nowak proposed using trench boxes for safety, a proven means of preventing trench collapse. Unfortunately, when they hired Rocking Q as a subcontractor, they did not require that Rocking Q adhere to the trench box procedure. Instead, they deferred to Rocking Q’s decision to use “sheet piling” – a form of bracing in which steel plates are driven into the ground with a backhoe and then secured with chains. This alternative plan was never submitted to the city for approval.
Thus we have a jobsite where digging and maintaining trenches are a constant activity, where the original safety plan has been scrapped, and where an alternative plan is in effect. Rocking Q did not use any cross-bracing to support the street plates. Rocking Q’s owner testified that no one from Nowak told him that this was unsafe or asked him to use cross-bracing. Further, an engineer representing the City visited the work site daily and never criticized the trench safety system (in itself fodder for another blog posting).
On the evening of September 13, 2006, 1.15 inches of rain fell within a two-hour period. At about 7:30 the next morning, site super Heiman went to the area where the Rocking Q crew was working. He then went to work about 150-feet away, within sight of the Rocking Q crew.
Here comes the astonishing part: Heiman testified that he returned to the area at around 12:30 or 1 p.m. and saw that the street plates were not anchored in any way – they had neither chains nor cross-bracing. Heiman did not mention to anyone that he thought the site was unsafe. Just two hours later, the dirt behind a street plate collapsed, causing the plate to fall on Avalos while he was working in a trench. The unanchored plates, intended as safety barriers, were transformed by unstable earth into moving objects with catastrophic impact. Avalos was totally disabled in the accident.
Initially, Avalos’s injuries were covered by workers comp. But he also sued the GC Nowak for negligence. In the course of the testimony, Novak’s lack of safety oversight was exposed:
Heiman testified that the street plates were tied back with a chain. Heiman had never before worked on a job in which street plates were used for trench safety. He had some initial concerns about [the subcontractor's] system because no structural supports were used for the street plates. According to Heiman, [the sub] told him “that’s the way they do it in Texas.” Heiman called Mr. Nowak to report his concerns, but he also told Mr. Nowak that [the sub]’s system seemed to be working. Mr. Nowak spoke with [the sub], who assured him that the plates were being hammered into the ground properly and that a chain was being used to anchor the plates. Mr. Nowak then approved the use of street plates for trench safety.
By giving a verbal OK to the revised trench safety plan, and by not seeking El Paso’s approval for the change, Nowak assumed liability for the consequences. When the trench failed, Nowak became the responsible third party for Avalos to sue.
The Eyes of a Stranger
One of the intriguing aspects of this case is the way everyone overlooked an obvious hazard, including the city’s own site inspector. Trenches were routinely secured by plates driven into the ground. There were no cross braces – indeed, no requisite trench boxes – in view. Based upon the testimony, it appears that chains to secure the plates were not used consistently.
Because we are consultants, LynchRyan always has the benefit of seeing job sites for the first time. We view the work being performed with the eyes of a stranger, because we are, literally, strangers. As part of our approach to safety, we encourage companies to look at the work being done as if they had never seen it before. Routine fosters indifference. I once toured a large warehouse with the company safety director. We came across an employee awkwardly pulling a bulky box from a shelf above his head; a rolling ladder stood a few feet away. What I saw was a very unsafe practice which could easily have been mitigated by using the ladder; what the safety director saw was his buddy, Ralph. He waved to Ralph and we moved on.
Everyone knows that trenches are dangerous. As OSHA frequently notes, “an unprotected trench is an open grave.” Yet even in companies whose only work involves trenches, the hazards persist. Despite OSHA’s videos, PowerPoints, brochures, and posters highlighting trench hazards – along with well-publicized fines for failure to comply – bad safety practices in trenching persist. In losing this liability case, Nowak has probably learned a painful lesson. But I shudder to think that big time lawsuits are the only effective way to motivate management to take trench risks seriously.