This matter arose from a work-place accident in August 2021 when an excavator bucket detached from the excavator, striking an employee of American Civil Constructors, LLC, during the installation of freshwater piping. ACC had been retained to install new roadways and underground utilities.

Sean Fabela was the ACC’s superintendent and supervised all of ACC’s crews. George Trehal was the foreman of the crew that included a mainline hoe operator, a head pipelayer and two laborers. On the day of the accident, Foreman Trehal directed the hoe operator and head pipelayer to use the excavator to widen and deepen a trench prior to the installation of a water pipe section to a fire hydrant. The head pipelayer entered the trench and asked for a pipe plug while Foreman Trehal had walked about 50 feet to 100 feet away and on the other side of the excavator to perform another task.

At that time, the bucket had not yet been connected to the excavator, but Foreman Trehal understood that the bucket would be needed to conduct the excavation operations for that day. Excavator operators change buckets and attachments frequently during their daily operations. A 24-inch-wide bucket, weighing about 2,500 lbs., was connected to the excavator and was used to deliver the pipe plug inside the trench. The pipelayer approached the bucket to retrieve the pipe plug when the bucket suddenly detached, striking the pipelayer in the shoulder and torso. Tragically, the worker died from his injuries. Following an investigation by the police, OSHA was contacted and investigated, which included taking photographs and interviewing witnesses.

Ultimately, OSHA issued a Citation for a violation of the general duty clause, which requires that an employer furnish a workplace that is free from recognized hazards, and which may cause or are likely to cause death or serious harm. OSHA alleged that ACC’s employees were exposed to a crushing hazard from the unexpected release of the bucket from the coupler.

ACC contested the Citation and retained an expert engineer to determine whether the excavator and coupler were operating properly at the time of the accident. The process and pieces of equipment to install the bucket to the excavator were discussed in detail, including the use of a hydraulic coupler as well as the use of front and back pins.

ACC’s Safety Program was discussed during the hearing before the Administrative Law Judge (ALJ). ACC’s written Safety Management Program required (under various types of training) its site supervisors to conduct safety meetings and foremen to conduct weekly “toolbox talks.” Daily job safety analyses (JSA) were completed by the site supervisors to identify specific work hazards for the day’s planned activities. A site-specific safety plan was also prepared to re-emphasize relevant portions of ACC’s safety program.

Furthermore, ACC had various work rules communicated to its employees—such as staying out of the “line of fire” by prohibiting them from entering swing zones of heavy machinery. If tasks required an employee to be within the swing zone, ACC required employees to make eye contact with the operator and maintain it while the employee was within the zone to ensure the operator’s awareness that the employee was in the swing zone. ACC also had a work rule prohibiting standing under suspended loads.

Although ACC’s management understood this rule to include excavator buckets, the ALJ found the record was not clear that employees understood this to also include excavator buckets. ACC further had a work rule requiring excavator operators to conduct the previously referenced “ground test” to ensure that any attachment was properly connected and locked. Moreover, ACC’s safety program included routine audits and job-site inspections conducted by ACC’s safety director. The safety director also advised employees on safety hazards, conducted employee training and toolbox talks. Formal inspections were also documented. On this project, the safety director conducted several safety inspections and imposed corrective actions as needed. Site Superintendent Fabela inspected the job site daily for safety issues, and Foreman Trehal completed daily JSA to discuss safety issues and alerting his crew of certain dangers, including trench sloping and staying out of the line of fire.

A JSA from a few days prior to the accident had even discussed warnings for standing under a suspended load in reference to rigging.

ACC’s progressive disciplinary action policy required an employees’ supervisor to provide a verbal warning for a first offense, a written warning for a second, and termination for third offense. ACC’s policy requires all warnings and proposed solutions to be documented and placed in an employee’s personnel file. However, ACC provided very limited documentation pertaining to disciplinary actions, which also did not pertain to employees being in the line of fire, failing to perform ground tests or working underneath the bucket of an excavator.

During the trial, Foreman Trehal admitted he did not follow ACC’s progressive disciplinary policy, he never documented violations and was unaware that he had to but would rather just yell at employees if he observed a violation to correct their behavior. He recalled having yelled at the deceased employee for being in the swing zone without the operator seeing him on a prior site. He also yelled at the operator on two prior occasions when operating an excavator with an improperly attached bucket after failing to conduct the ground test. Mr. Trehal admitted to never documenting these violations or administering any formal discipline.

The ALJ found that the Secretary (of Labor) met its burden of proof that ACC knew or with the exercise of reasonable diligence could have known of the hazardous condition. A failure to establish an adequate program to promote compliance with the relevant safety standards may be used by the Secretary to prove constructive knowledge of the hazardous condition by the employer. Here, ACC was deemed to have failed to establish an adequate program to promote compliance with its safety standards. Although it had various rules in place, ACC failed to effectively enforce those rules when violations were detected. Foreman Trehal would merely yell at employees to correct their behavior but never formally disciplined them nor documented their violations in their personnel files as he was even unaware of this ACC policy.

The failure to progressively discipline the operator for repeated failures to perform ground tests after attaching a bucket to the excavator, and the failure to clearly communicate to employees “that elevated excavators should be avoided as suspended loads, may have directly contributed to the hazardous conditions and accident.”

Given that ACC’s own supervisory employees failed to follow the progressive disciplinary policy, it could also not claim the affirmative defense of unpreventable employee misconduct—and so the Citation was affirmed against ACC.

About the author: Costas Cyprus, Esq., practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 or [email protected]. Articles in this series do not constitute legal advice and are intended for general guidance only.