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When two workers that were trapped and drowned in a collapse trench, a general contractor and its president were indicted by a Grand Jury for manslaughter, negligent homicide and reckless endangerment. The facts as described by the court are these: The general contractor was installing a water and sewer line. During excavation of a trench where the sewer lines were to be installed, the work crews discovered a six-inch, pressurized water pipe. This pipe was not on any map and was not marked on the pavement. The pipe cut across the trench and then ran parallel to the path where the lines were to be placed.

The contractor immediately stopped the work and conferred with the City plumbing inspector familiar with the prevalent safety practices at the City excavation sites. After this consultation, the contractor, in the presence of the City inspector, instructed the workers to resume the excavation, “but told them to take certain precautions by moving the trench several inches away from the pipe. In addition, the workers hand-dug every few feet to ensure the pipe was not disturbed during the excavation.” At some point the trench wall suddenly collapsed and the water pipe burst, flooding the trench and drowning two trapped workers.

After the company and its president were indicted, they filed motions with the court asking that the charges be dismissed on legal sufficiency grounds. The trial court granted the motion as to the manslaughter and reckless endangerment charges. In affirming that decision, the appellate court stated that it could find nothing in the proof presented to the Grand Jury suggesting that the defendants “consciously disregarded a substantial and unjustifiable risk” of death or serious physical injury sufficient to sustain a charge that they were “reckless.” What persuaded the court was that the contractor consulted the City plumbing inspector and, before resuming the work, cautioned the workers to avoid the pipe by moving the trench as far away from it as conditions permitted. The workers also frequently checked the location of the pipe. “Thus, defendants did not disregard a risk. On the contrary, they took steps to avert it. Furthermore, the workers’ deaths were an unforeseeable consequence of defendants’ conduct.” People v. Roger Reagan, 1999 NY Lexis 3732 (Nov. 18, 1999).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 2, No. 3 (Mar 2000).

Copyright 1999, ConstructionRIsk.com, LLC