I Work in Digging & Excavation – What Are My Rights?

According to federal work injury data, excavation and trenching are among the most hazardous construction operations. In fact, the fatality rate for excavation work is 112 percent higher than the rate for general construction work, the Occupational Safety and Health Administration (OSHA) reports.

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A worker who is injured in a digging or excavation accident may have the right to recover under different sections of New York Labor Law. A claim may lead to compensation for past and future medical costs, lost earnings and the pain and suffering caused by the accident.

Types of Digging & Excavation Accidents

Among the potential hazards in digging and excavation are:

  • Cave-ins

    The collapse of an excavation poses the greatest risk to a worker’s safety. Workers caught in a cave-in can be buried, smothered or crushed. The loss of oxygen in a trench collapse for even a short period of time can cause irreversible brain damage.

  • Falls

    Any open space is a potential fall hazard. Ladders, stairs, ramps or other means of access to an excavation site also present fall hazards. As the depth of an excavation increases, so does the risk of severe injury.

  • Falling loads

    Falling, rolling or sliding material or equipment in an excavation can strike and or crush anyone below. Excavated material set too close to the edge of a trench or excavation can roll back on top of workers, causing serious injuries or death. All heavy equipment should be kept away from trench edges.

  • Hazardous atmospheres

    Trenches and similar excavations are restricted spaces that present a risk of oxygen depletion due to toxic fumes, fires or water accumulation. There is also a possibility of striking underground utilities. Natural gases such as methane or gas or water from a broken utility line could quickly displace oxygen as they fill the trench and cause suffocation or drowning. Striking an electrical line could result in burns or electrocution.

Types of Digging & Excavation Accident Claims

If you were injured in a digging or excavation incident at a construction site, you may be able to recover compensation under New York Labor Law. The different sections that may apply to your case are:

  • Labor Law § 240(1)

    If you were injured due to a fall or a falling object in an excavation, you may be able to establish that your injury was an elevation-related risk. If you can establish that the failure of a construction site owner, contractor or agent to provide adequate safety devices caused your injury, you may assert a claim under this section.

  • Labor Law § 241(6)

    Rule 23 of the New York State Industrial Code contains an extensive list of regulations that apply to excavations. These rules are found under § 23-4. They include a rule that prohibits anyone from being allowed to enter a trench or similar excavation "where he may be exposed to side or bank failure or cave-in unless proper safeguards for his protection have been provided." If you can prove that a construction site owner, contractor or agent violated these rules, and the violation served as a cause of your injury, you may be entitled to seek compensation.

  • Labor Law § 200

    If the owner, contractor or agent had notice that a dangerous condition existed and controlled or supervised your digging or excavation work, they may be liable under this statute. In addition to citing a violation of a New York State Industrial Code rule as the basis for your claim, you could also cite a violation of OSHA regulations concerning excavation. In particular, OSHA requires that each employee in an excavation be protected from cave-ins by "an adequate protective system" except where the excavation is made entirely in stable rock or is less than five feet in depth.