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TRAPPED IN THE CAB
Q: At a construction project, I was assigned to operate a diesel-powered excavator to remove a
massive bulkhead constructed of timber cribbing which was built into the banks of a creek that was an inlet of
the East River. The bulkhead served to stabilize the shoreline and prevent erosion into the creek. The job
required me to excavate the below-grade timber cribbing and hoist it to higher ground, above the tidal plane.
I would dip my bucket into the water and scoop out material. Then I would rotate my excavator
and pile the spoils as high on the shoreline as the reach of my excavator would allow. My accident happened on
my second day. There was no project superintendent on site, and no spotter to assist me.
At the edge of the creek, the land was sloped and unshored. The excavator lost traction and slid
downward toward the water, like it was on rails. There was no temporary shoring at the waterline to arrest the
slide, and the excavator tipped sideways into the waters. It quickly sank to the bottom with me trapped in the
operator’s cab. The cab filled with water, but I could not open the door to escape. As the water reached the top
of the cab, I managed to squeeze out of a window. A: Section 241(6) of the Labor Law imposes upon owners and general contractors, and their agents,
a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with
the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To
prevail, you must establish the violation of an Industrial Code Rule that sets forth specific, applicable safety
standards, and that your injuries were proximately caused by such violation.
Many such rules come to mind. Under Rule 23-4.2(a), certain sides or banks of a trench or
excavation must be provided with sheeting and shoring. Under Rule 23-4.2(c), any unbraced sloped excavation
which extends below the ground water table must be under the direct supervision of an experienced person.
Under Rule 23-4.4(a), where any excavation is not protected by sloped sides or banks, it must be protected by
sheeting, shoring and bracing. Under Rule 23-9.4(c), where power shovels and backhoes are used for handling
material, firm, level and stable footing must be provided. Under Rule 23-9.5(a), excavating machines must not
be used where unstable conditions or slopes of the ground or grade may cause such machines to tilt
Your attorney will also allege a violation of section 200 of the Labor Law, which is a codification
of the common-law duty imposed on owners, contractors, and their agents to provide workers with a safe place