The Florida-based DeWitt Excavating, Inc., was an underground utility contractor performing excavation and pipeline installation work. Dewitt had been engaged in a project involving the replacement of underground utilities along Colonial Drive in Winter Garden, FL. The work required the installation of a force main pipe within an excavation located adjacent to a roadway frequently used by vehicle traffic. During the course of the project, OSHA conducted an inspection of the excavation after observing employees working inside the trench.

The OSHA compliance officer observed three employees installing pipe fittings inside an excavation approximately eight feet deep, six feet long and four feet wide. The trench walls were largely vertical and lacked any protective system such as shoring, shielding or a trench box. The excavation was located near exposed utility lines and adjacent to the roadway. Soil conditions were classified as Type C soil, the least stable soil classification under OSHA’s excavation standards. Despite these conditions, employees continued to work within the trench without cave-in protection in place.

Following the inspection, OSHA issued a citation alleging a violation of 29 C.F.R. §1926.652(a)(1), the excavation safety standard requiring that employees working in excavations be protected from cave-ins through an adequate protective system. Under the standard, such protection is required unless the excavation is made entirely in stable rock or is less than five feet deep and a competent person determines there is no indication of a potential cave-in. Here, the excavation exceeded eight feet in depth, therefore requiring required protection.

At the hearing before the Administrative Law Judge (the ALJ), the parties did not dispute that employees were working inside the excavation. Instead, the proceedings centered on whether Dewitt could avoid liability by asserting that the violation resulted from supervisory employee misconduct. The company argued that its foreman was responsible for the unsafe condition and that the employer should therefore not be held accountable.

The ALJ rejected this defense as Dewitt’s foreman was present at the job site and directed the employees working in the excavation. Supervisors such as foremen are responsible for enforcing safety requirements, their knowledge of hazardous conditions is generally imputed to the employer. As the decision noted, when a supervisor is involved in the misconduct, the burden on an employer seeking to establish the defense of unpreventable employee misconduct becomes significantly more difficult.

Here, the foreman had also received competent-person training regarding excavation safety requirements through a prior employer and understood that trenches deeper than five feet required protective systems. Nonetheless, the excavation at issue was allowed to proceed without sloping that satisfied OSHA’s requirements or the use of a trench box.

The decision also highlighted the importance of competent-person inspections. OSHA’s excavation standards require that excavations and surrounding areas be inspected by a competent person prior to the start of work and as conditions change. Such inspections are intended to identify hazards such as unstable soil conditions, water accumulation, or structural instability. In this instance, there was insufficient evidence that meaningful inspections were conducted or documented before employees entered the trench.

Trench boxes were actually available to the company but were not brought to the work location. The failure to utilize readily available protective equipment further undermined Dewitt’s defense that the violation resulted from unforeseeable employee misconduct.

Based upon the evidence presented, and Dewitt’s prior citations for excavation-related violations, the ALJ concluded that the violation was willful (a classification that occurs when an employer is found to knowingly disregard OSHA requirements or demonstrates plain indifference to employee safety and that also warrants higher fines).

Here, employees were permitted to work inside an unprotected trench exceeding eight feet in depth with nearly vertical walls and unstable soil conditions. The ALJ affirmed the citation and assessed a penalty of $25,000 against the employer.

The decision in DeWitt provides three key reminders for contractors engaged in excavation and underground utility work: that excavations deeper than five feet must be protected from cave-ins through an adequate protective system designed for the soil conditions present; that employers must ensure that competent persons perform and document inspections of excavations before employees enter the trench; and, finally, supervisors must actively enforce safety requirements rather than disregard them.

Excavation hazards remain one of the most predictable-yet-preventable dangers on construction sites. Proper planning, protective systems and vigilant supervision remain the most effective means of protecting workers from trench collapse and ensuring compliance with OSHA’s excavation standards.

About the author: Costas Cyprus, Esq., is a partner at the firm of Welby, Brady & Greenblatt, LLP, in White Plains, NY. He practices construction law and commercial litigation and can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

Published: March 17, 2026.