The trial of this Claim involving a trench collapse was bifurcated and the
decision herein addresses solely the issue of liability.
seeks damages pursuant to Labor Law §241(6), his central contention being
that the failure to shore or brace the trench in which he was directed to work
violated provisions of the Industrial Code and that such violations were the
proximate cause of his injuries
Claimant was employed by New York Water Service Company (NY Water), a private
company which provides water service to portions of Nassau County. On April 3,
1997, the date Claimant was injured, NY Water was repairing an underground
water main, which was located beneath Carmen Mill Road in Massapequa, Nassau
. NY Water did not possess a Highway Work Permit for the repairs made on
April 3, 1997, nor did NY Water notify the State Department of Transportation
(DOT) before commencing the repairs on that date.
On April 3, 1997, Claimant was a member of a four person work crew, headed by
the working foreman, Michael Kane (Kane), a 25 year employee of NY Water. Kane
testified that as the working foreman he was responsible for directing the work
and the crew. On the day in question, Kane observed the work being performed
and witnessed the collapse of one bank of the excavation site onto Claimant's
When the crew arrived at the Carmen Mill Road site, water was "coming up pretty
through the asphalt. Consequently, the crew notified customers, shut off water
and then made test holes to ascertain where to dig to access the water main.
The crew used a backhoe to excavate "mostly sand and mix" to reach the water
main. Kane described a water main as generally being four feet beneath the road
surface and he stated that he had no reason to believe the Carmen Mill Road
water main was closer than that to the road surface. In order to make the
necessary repairs to the 12-inch water main it was necessary for the crew to dig
beneath the water main. Kane testified that he did not instruct the crew to
brace or shore the excavation. On cross-examination, he testified that he made
no measurements of the excavation and made the decision not to brace or shore
the excavation based upon his experience. Claimant, who held no position of
authority on the work site, was required to enter the excavation to clean around
the main and apply the repair clamp. Kane stated that Claimant performed his
duties according to the instructions he was given.
Kane testified that he was generally aware of some requirements for shoring
excavations and when confronted with his deposition transcript, acknowledged
the specific requirement that excavations deeper than five feet must be shored.
When pressed as to the depth of the at-issue excavation, Kane, who did not enter
the excavation, approximated the depth at five feet - more or less.
Claimant, a laborer with six years experience on the job, testified that he
followed all the instructions he was given on April 3, 1997. Claimant explained
that his duties required him to enter the excavated area, which he accomplished
by sliding into the hole or trench. Once in the excavation, Claimant cleared
dirt from beneath the water main to create enough space to both clean the water
main using a "chain scraper" and to apply the repair clamp. While using the
chain scraper, it was necessary for Claimant to straddle the water main and lean
forward, bringing his chest within three feet of the water main. Claimant, who
testified he was 5' 10" tall, said that while standing in the hole "my head was
below the roadway surface" and I "could barely touch the top of the road surface
with my hand." On cross-examination, Claimant conceded that he had no
generalized knowledge of the "New York State safety rules" which required
shoring or bracing. Claimant did not request shoring and bracing on April 3,
1997 and to his knowledge such equipment was not available at the Carmen Mill
Road site. During his tenure with NY Water, Claimant had been on only one prior
job - installing an oil tank - where a "box type" shoring was used. Claimant
testified he was injured on April 3, 1997 when one wall of the excavation
collapsed, pinning his leg to the water main.
In order to establish a cause of action under Labor Law §241(6), Claimant
must allege and prove the Defendant violated a rule or regulation of the New
York Industrial Code, which sets forth a specific standard of conduct, as
opposed to a general reiteration of common law principles (
Ross v Curtis-Palmer Hydro-Electric Co.
, 81 NY2d 494). Moreover, the
violation of that specific standard must be shown to be a proximate cause of the
accident. (Ares v State of New York
, 80 NY2d
Claimant has identified Industrial Code regulations12 NYCRR § 23-4.1(b);
§ 23-4.2(a); §23-4.2(g) and § 23-4.4(a) to establish his claim
under Labor Law §241(6) each of which this Court has held to contain
specific guidelines (
, Morton v State of New York, supra)
which, if applicable,
could establish a claim pursuant to Labor Law § 241(6). The Court will
focus on the at-issue regulations which require, in sum and substance, that
excavations which are five feet in depth, or greater, be protected either by
banked or sloped sides (see, § 23-4.2[a]) or "sheeting, shoring and
bracing" (§ 23-4.4[a]).
The record evidence establishes, and the Court finds, that the excavation on
Carmen Mill Road was neither protected by sloped or banked sides nor appropriate
sheeting, shoring or bracing. However, Claimant has failed to establish that
the soil composition was such that would require appropriate safety measures for
an excavation less than five feet deep (
see, Monsegur v Modern Comfort Technology
, 289 AD2d 307). Thus, the
critical inquiry, as it was on the summary judgment application is the depth of
the excavation. In this regard, the Court credits the testimony of the Claimant
as to the depth of the excavation and finds it to be more than five feet deep.
The Court is persuaded by Claimant's reference to the depth of the hole relative
to Claimant's stated height. The testimony of Kane, although equivocal, is not
inconsistent with the Court's finding given his testimony regarding the usual
depth of a water main (four feet), the size of the water main (12 inches) and
the need to excavate beneath the main to effectuate the repairs.
In light of the foregoing, the Court finds that 12 NYCRR
§ 23-4.2(a) and § 23-4.4(a) were violated when the requirements for
safeguarding excavations from collapse were not followed. On the instant
facts, it necessarily follows that § 23-4.1(b) was also violated by the
absence of banking or shoring. The Court further finds that the foregoing
violations of the Industrial Code were a proximate cause of Claimant's accident,
and as such a violation of the Defendant's nondelegable duty under Labor Law
, Celestine v City of New York
, 59 NY2d 938,
aff'g on opn
. at 86 AD2d
Claimant entered the unguarded
excavation at the direction of his working foreman. There was no testimony that
Claimant's actions while performing his required work contributed to the
collapse which injured him. Moreover, Claimant candidly testified that he
lacked knowledge of the applicable safety standards. Thus, the Defendant,
although afforded an opportunity at trial, failed to establish by a
preponderance of the credible evidence that any comparative negligence was
attributable to the Claimant.
Accordingly, the Court finds the Defendant was negligent and 100% liable for
the injuries sustained by the Claimant on April 3, 1997.
All motions made at the time of trial, not heretofore determined, are deemed
The Clerk of the Court is directed to enter an interlocutory judgment on the
issue of liability in accordance with this decision. The Court will set this
matter down for a trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
The parties shall appear at a conference to be held on May 7, 2003 at 12:30
p.m. in Chambers, State Office Building, Veterans Memorial Highway, Hauppauge,