The law that applies to your claim
Industrial Code 23-4 — excavation
Requires that the sides of excavations be shored, sloped, sheeted or otherwise supported where necessary to prevent collapse, that spoil be kept back from the edge, and that safe access and egress be provided.
OSHA 29 CFR 1926 Subpart P
The federal standard: a protective system is generally required for excavations five feet or deeper, soil must be classified by a competent person, spoil piles kept at least two feet from the edge, and a ladder or ramp within 25 feet of lateral travel. Violations are strong evidence of negligence.
The competent-person requirement
Excavations must be inspected daily and after every rainstorm by a designated competent person with authority to stop work. Whether such a person existed, and what they recorded, is usually the first question.
Why these are so often fatal
Collapses happen without warning and bury a worker in seconds. Even a partial burial to the chest can be fatal from compression before anyone can dig someone out, and rescue attempts frequently injure the rescuers when the trench fails again.
Almost every one is preventable. The box, shoring or sloping that would have prevented it is standard equipment, and the reason it was absent is usually schedule or cost.
What went wrong, usually
- No trench box, shoring or sloping in an excavation deep enough to require it
- Soil misclassified — treating previously disturbed ground as stable
- Spoil piled at the lip, loading the wall
- Water accumulation after rain, undermining the sides
- Vibration from nearby equipment or traffic
- Undermined or unsupported utilities crossing the trench
- No ladder within reach, so a worker could not get out
Evidence is buried — literally
After a collapse the trench is usually filled or made safe immediately, and the evidence goes with it. What survives: the daily inspection records, the soil classification, equipment rental records showing whether a trench box was ever on site, utility mark-out records, weather data for the preceding days, and photographs taken by responders.
Where no shoring was rented and none appears in any record, that absence is the case.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
The trench was only about five feet deep.
Five feet is where the federal protective-system requirement generally begins, and collapses at that depth are regularly fatal. Depth alone does not make a trench safe.
My employer said the soil was solid.
Soil classification must be performed by a competent person, and previously disturbed ground is by definition less stable. An assurance is not a classification.
Does §240 apply to a trench collapse?
Often not, because the hazard is not usually elevation-related. These claims typically run through §241(6) and Industrial Code 23-4, which is why the code analysis matters so much here.
