Fernandes v. DAR Development Corp. – Trench Collapse Work Injury Lawsuit

The Occupational Safety & Health Administration reports two workers are killed monthly in the U.S. due to trench collapses. Employers owe their workers a duty to create a hazard-free work environment that doesn’t imperil employees and put them at risk for serious injury or death. constructionsite1.jpg

Cave-ins in particular pose a grave risk, and are more likely to be fatal than other types of excavation-related accidents.

The recent case of Fernandes v. DAR Development Corp. involved a worker who was injured as a result of a trench collapse. The case, a third-party work injury lawsuit, was recently before the New Jersey Supreme Court.

This situation is a bit unique in that for many people injured on the job, workers’ compensation is the exclusive remedy. That is, employers who carry workers’ compensation insurance are immune from civil litigation by workers who are hurt – regardless of whether the company acted with negligence.

But this immunity does not extend to manufacturers of defective products, certain general and subcontractors or to completely separate third parties that may be negligent. This is referred to as “third-party liability,” and this was the case here.

Trial court issued a verdict in favor of plaintiff, and that verdict was upheld by both the appeals court and the state supreme court, despite arguments by defense it was unfairly barred from bringing evidence of plaintiff’s negligence. The courts ruled comparative negligence was properly not introduced, given that the injured worker was unreasonably confronted by a known risk and had no meaningful choice in the manner in which he completed his task.

According to court records, plaintiff was working at a residential construction site where defendant was the general contractor. Plaintiff’s employer, a plumbing and heating company, was the plumbing contractor. The general contractor and subcontractor had an extensive work relationship, where the general contractor had given the subcontractor all of its excavation work to the subcontractor over a two-year span.

Here, construction of the home required a 700-foot sewer trench extending from the home to the street. The trench was 2.5-feet wide and 5-feet deep and had a makeshift stairway to help workers get in and out.

On the day of the accident, plaintiff was climbing out of the trench when it collapsed, burying him chest-high in stones and dirt. He was seriously injured and has been unable to work since. Despite the severity of his injuries, the company president drove the worker home that day and picked up his son to finish the job.

All agree the accident would not have occurred had the trench been outfitted with OSHA-recommended safety features. The main dispute during trial was who was at-fault for this: The subcontractor (plaintiff’s employer, who was entitled to immunity) or the general contractor (who was not).

The project manager for the general contractor, who was the highest safety authority at the site and was there every day, had no OSHA training. The general contractor had no written health or safety program and there were no safety meetings conducted. It was this individual who determined no protective measures were necessary at the trench site because the “dirt was good,” and therefore a collapse was not likely to occur.

Ultimately, it was determined that the general contractor has a non-delegable duty to ensure the safety of the workplace, and that includes properly addressing work safety concerns pertaining to subcontractors onsite.

Defense wanted to introduce evidence that plaintiff got into that trench knowing it was unsafe and was thus comparably negligent, but the court denied this request.

Jurors awarded plaintiff $800,000 in damages, and that verdict has been affirmed.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Fernandes v. DAR Development Corp., July 28, 2015, New Jersey Suprem Court

More Blog Entries:
Trench Collapse Work Injury Results in $424K OSHA Fine, July 30, 2015, Spartanburg Work Injury Attorney Blog

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