The Occupational Safety and Health Administration (OSHA) can seriously affect any contractor or construction project. Compliance with OSHA regulations can be time-consuming and tedious, but essential to maintain a viable position in the construction industry. This month, as always, we report on recent developments in the world of OSHA.

Knowledge of OSHA Trenching Requirements— Evidence Against Contractor in Employer Intentional Tort Case?

Failure to follow OSHA regulations often results in citations, possible monetary fines, and occasionally the filing of criminal charges against a contractor. That’s a strong deterrent, but is that all that can happen to a contractor? No. The court in Ross v. William E. Platten Contracting Company, 2007-Ohio-5733, determined that an employer’s failure to follow OSHA trenching regulations could also be used as evidence to help show that the employer committed an intentional tort.

In Ross, Reliance Mechanical Corporation, the general contractor, agreed to replace a broken sanitary sewer that was buried beneath parts of the Cleveland Hopkins International Airport terminal. The general contractor hired William E. Platten Contracting Company, a subcontractor that “specializes in excavations,” to perform the excavation work necessary for the repair of the damaged pipe.

The only role that the general contractor had was to locate the damaged pipe and tell its subcontractor where to dig. The subcontractor was responsible for cutting and removing concrete, excavating the trench, backfilling the trench once the general contractor completed repairs to the pipe, and replacing the concrete. The subcontractor provided the labor and equipment to perform the excavation work.

During the course of the excavation, one of the subcontractor’s employees was ordered to complete the excavation close to the pipe by hand. Before entering the trench, the employee told his supervisor that the trench needed shoring. No shoring was added before the employee entered the trench. 

The employee sustained serious injuries when the trench later collapsed.

As a result of his injuries, the employee filed a personal injury action against both the subcontractor and the general contractor. The subcontractor argued that the employee’s claim did not meet all of the requirements for intentional tort. The general contractor asserted that it owed no duty of care to the subcontractor’s employee because the subcontractor was an independent contractor hired to do an inherently dangerous job. The trial court granted both the subcontractor’s and the general contractor’s Motions for Summary Judgment and the employee appealed.

The appellate court upheld the summary judgment ruling in favor of the general contractor. According to the appellate court, the general rule is that a general contractor owes no legal duty to employees of an independent contractor. An exception to the general rule exists where “the general contractor actively participates in the project or has exclusive control over a critical variable in the work environment.”

The appellate court determined that the general contractor did not control the subcontractor’s employees, did not supervise the way in which the subcontractor’s employees completed their work, did not direct the employee to enter the trench, did not actively participate in the excavation of the trench, and that the general contractor did not deny permission to use safety procedures or equipment to eliminate hazards. The appellate court, basing its decision on the subcontractor’s total control of all aspects of the excavation, upheld the trial court’s decision in favor of the general contractor.

The employee also brought an action against the subcontractor for intentional tort. The employee was required to show that: (1) his employer knew the dangerous condition existed; (2) that his employer had knowledge that if the employee was subjected to the dangerous condition then harm to the employee was a substantial certainty; and (3) that his employer, with such knowledge, required the employee to be subjected to the dangerous condition.

Did the subcontractor’s failure to provide shoring make the harm to the employee a substantial certainty? The appellate court reversed the judgment in favor of the subcontractor and sent the case back to the trial court to make a determination.

This reversal was based on evidence that the subcontractor was aware of OSHA guidelines requiring the use of shoring or protective devices for all excavations deeper than five feet. The excavation was deeper than five feet and the subcontractor did not provide any protective devices. In addition, the excavation had unstable walls and had standing water that was pumped out on a regular basis. The appellate court determined that “evidence is in conflict concerning whether [the subcontractor’s] refusal to install shoring made the harm that the employee suffered a substantial certainty.”

It’s likely that this case would not have occurred if the subcontractor had provided the shoring protection required by OSHA trenching regulations. The subcontractor must now return to trial court, pay more legal fees, and face the possibility of a judgment in favor of the employee all because OSHA regulations were disregarded.