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Builder Fights OSHA in Trench Death

Friday, June 17, 2011

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Is a contractor responsible for a sub’s fatal wrongdoing or mistakes?

Yes, says the Occupational Safety and Health Administration, which has slapped a Pennsylvania construction company with three willful citations and $168,000 in fines in the death of an independent contractor.



Excavating is one of the most hazardous operations in construction, says OSHA.

No way, says the construction company, which is contesting the case.

In fact, the answer may depend on whether the sub is really a sub, or an employee.

Fatal Trenching Accident

OSHA has accused Eclipse Builders Inc., of Etters, PA, of exposing what it calls “two employees” to trenching hazards after a trench cave-in killed one and seriously injured another on Dec. 14, 2010.

Eclipse, the property owner, had hired Jory Raber III, 20, of Goldsboro, PA as an independent contractor to install stormwater drainage pipes in a trench. Raber took over the job after Eclipse fired the previous contractor because "they didn't know what they were doing," Eclipse founder Edward Shami told The York Dispatch.

Raber and another worker were in the trench, which was about 60 feet long and 18 to 20 feet deep, when one of the walls caved in, killing Raber and trapping his co-worker, Joshua Gemmill.

OSHA said the trench lacked any protection, such as a trench box or proper sloping.

The site was so unstable that emergency responders from four counties had to reshape and shore up the trench before they could safely enter, rescue the seriously injured Gemmill, and recover Raber’s body in an operation that took more 100 people over 14 hours, local newspapers reported.

(The York Daily Record detailed the rescue logistics in a graphic called “Anatomy of a Rescue.”).

OSHA Citations

The OSHA violations against Eclipse allege failure to:

· Provide a safe means of egress in trench excavations deeper than four feet that would require employees to travel no more than 25 feet laterally;

· Place and keep excavated or other materials or equipment at least two feet away from the edge of excavations;

· Protect employees entering excavations from cave-ins with an adequate protective system;

· Have a competent person conduct daily inspections of excavations, adjacent areas and protective systems; and

· Train employees to recognize and avoid unsafe conditions in the work environment.

A willful violation—OSHA’s most serious level of infraction— is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health.

"This tragic incident did not have to happen," said Kevin Kilp, director of OSHA's Harrisburg Area Office. "Excavating is recognized as one of the most hazardous construction operations, so it is vital that the company immediately comply with the OSHA standards designed to protect workers from these kinds of hazards."

‘We’re Not Responsible’

Eclipse, however, filed notice June 10 with OSHA that it would contest the case, contending that it was not an excavation contractor and thus not liable for those activities.

Shami told the York Daily Record that he had hired Raber to work on the drain and was "letting them do their job."

"OSHA thinks we should have told them how to do their job," Shami said. "The normal order of business is to sign a contract and let them work."

He added: "As far as we're concerned, we're simply a property owner.”

Shami told The York Dispatch:  "I don't know what grounds they have to make us have responsibility over it. We're not responsible for this accident."

Carpenter or GC?

Shami—himself a former subcontractor—told reporters that Eclipse is a carpentry company.

However, Eclipse’s website says the company was founded as a carpentry business but “has grown into a small General Contracting Firm specializing in commercial and residential new construction projects. We have retained our Sub-Contractors and tradespeople in order to continually serve our clients' needs no matter how small or large the project may be.”

The company declined to comment Friday.


Tagged categories: Contractors; Health and safety; OSHA; Subcontractors

Comment from brian ofarrell, (6/20/2011, 6:51 AM)

Many GC's are using independant subs instead of hiring employees. A GC that hires an independant sub that does not have proper WSIB coverage or safety training should not be allowed to claim ignorance in the event of an incident. Many of these independants underprice work and can not do it safely or properly at the prices quoted. A GC is responsible for all people on their jobsite whether employed by them or not.

Comment from Richard Croft Jr, (6/20/2011, 9:23 AM)

Under OSHA's general duty clause ((a) Each employer -- (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. (Section 5(a)(1) OSH Act) (b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.) the GC, the owner, and the sub are all most certainly able to be held liable for any injury or death. The comments about "independents" or subs bidding work cheaply and not being able to do the work properly and safely is spot on. When the playing field becomes level, and it clearly is not even close, the more safety conscious companies will be able to compete. Until then bidding is fierce, margins are low, and people ARE MOST CERTAINLY AT RISK!

Comment from Richard McLaughlin, (6/20/2011, 9:44 AM)

It a shame that it is true, but what Mr. Croft said does ring too true. The biggest reason I'm no longer in the field is for years I saw work I had been competitive in bidding on goto companies whose bid was so low, sometimes 65-75% low, that the bid would not have covered my cost for providing a safe work environment. A lot of those guys are gone no, but the bell they rung is still vibrating.

Comment from Lalit Mehra, (6/20/2011, 9:54 AM)

The real question is that while the GC is responsible for providing a safe work place for its employees, who is responsible to provide a sfe work place for an independent contractor. If GC hires an inspector and the inspector is an independent contractor, is it GC's responsibility to provide a safe work place for the inspector? Generally GC's have good legal representation and the independent contractors do not and are at a disadvantage.

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