Houston Trench Collapse Accidents

Michael Grossman and the Attorneys at Grossman Law Offices Want to Help You With Issues Stemming from a Trench Collapse

In the United States, thousands of miles of trenches are dug on an annual basis for a variety of purposes – installing utilities, burying cable or pouring foundations, just to name a few.

If dug improperly, trenching and excavation puts employees at tremendous risk of serious injury or wrongful death.

The collapse of a trench or a cave in poses the greatest threat to employees and can cause a wide array of life-threatening injuries: brain trauma, spinal cord injuries, suffocation, crushed bones and drowning. If you have been injured or a loved one has been killed as a result of a trench collapse, then you may be eligible to file a personal injury lawsuit or wrongful death claim to recovery damages for the harm that has been done to you or your family member. Michael Grossman and his associates at Grossman Law Offices have compiled 20 years of experience handling wrongful death and personal injury lawsuits resulting from trench collapses and other construction-related accidents. We want to help you understand your legal rights, so you feel more comfortable with the tragic situation in which you find yourself.

OSHA Recommended Trench Safety Measures and Regulations

The Occupational Safety and Health Administration was created to protect the safety of workers, and OSHA suggests the use of three different types of safety systems for trenches:

• Sloping refers to the method in which the trench wall is dug. By angling the wall of the trench away from the excavation, employees are afforded a degree of safety while working in the trench.
• Shoring is the act of installing aluminum or hydraulic support beams to reduce the chances of the walls of the trench crumbling.
• Shielding is the use of a trench box to keep soil from caving in on the workers.

In order to address the extreme danger inherent in trench collapse, OSHA has passed several regulations regarding the safe construction of trenches:

• If a trench is five-feet deep or deeper, then it must have a protective system in place to safeguard workers. If the trench is 25-feet deep or deeper, then a certified engineer must design the protective system.
• A competent person must inspect the trench’s condition on a daily basis before employees go to work in it.
• Heavy equipment should be kept at least two feet away from trenches, and ladders or stairs should be provided to all trenches greater then four feet deep.

All employers owe a duty to take reasonable care to keep their workplace safe for their employees. In order to do so from a legal standpoint, the employer must follow all OSHA rules and regulations and make sure all employees are properly outfitted and trained to perform the duties of the job for which they were hired.

What to Know About Workman’s Compensation in Construction Cases

If your employer has violated any of these OSHA regulations resulting is a trench collapse that injured you or killed a loved one, then you may have the right to file a workers’ compensation claim or a wrongful death lawsuit. However, workers’ compensation laws are not easily comprehended. Construction companies are not required by the state of Texas to purchase workman’s compensation insurance, and how to pursue compensation depends entirely on whether or not your employer carried workers’ comp coverage, known as a subscriber, or didn’t, known as a nonsubscriber. You must first determine whether or not your employer is a subscriber or a non-subscriber, because the method for recovering compensation differs completely for subscribers and nonsubscribers.

Employers who choose to carry workers’ comp insurance receive protection against lawsuits in the event of a work-related injury. In this case, any settlement must be negotiated with the insurance company. The non-subscribers; however, are subject to lawsuits. In order to punish nonsubscribers for creating litigation, victims face much easier standards of proving negligence once the case does go to court. With danger lurking everywhere on a construction site, you would think that every employer would purchase workmen’s compensation insurance. Unfortunately, that’s not the case, for workers’ comp insurance is very expensive. Thus, many companies decline to purchase the insurance. Additionally, in order to avoid a lawsuit, many employers will pretend that they have the insurance when a worker is injured. You can’t take your employer’s word if he or she claims the company subscribes to workers’ comp insurance. You need an experienced Houston construction accident lawyer to reveal the truth, so you know what course of action to pursue.

Subscribers

Subscribing to workers’ comp insurance provides employers more than just insurance – they also receive protection against lawsuits. If you are injured or a family member has been killed in a trench collapse, you cannot sue a subscribing employer unless he or she has committed gross negligence resulting in a fatality. However, that doesn’t mean you’re going to receive the compensation you deserve.

While it may seem that the insurance carrier should be concerned with looking out for the needs of injured parties, and after you’ve been injured or a loved one has been killed in a trench collapse all of the medical expenses, lost wages and pain and suffering would be compensated adequately. However, insurance companies are in business to make money, not help people.

Both insurance companies and non-subscribing employers will try to avoid fairly compensating their injured employees, and countless construction workers each year in Houston and around Texas are unfairly denied the fair compensation to which they are entitled.

While the purpose of workmen’s’ compensation laws is to decrease excessive litigation caused by accidents and injuries in the work place, sometimes an experienced Houston construction accident lawyer is required to make the insurance companies give you the compensation you deserve.

Rest assured that the insurance company will come armed with a team of specialized lawyers who will attempt to bully you into accepting a settlement that does not adequately compensate you for your injuries and lost wages just to increase their profitability. You need he help of an attorney who can differentiate between a fair settlement and one that does not meet your needs.

Exceptions for Suing Subscriber Employers

There are only two instances that allow an injured employee to file a lawsuit over an injury suffered during a trench collapse whether or not the employer has subscribed to workers’ compensation insurance:

• If your loved one’s death was caused by his or her employer’s gross negligence, then you may file a wrongful death lawsuit. If your loved one dies in a trench collapse after the trench was declared safe by an inspector who simply made a miscalculation, then that is standard negligence. However, if your loved one’s employer ordered the deceased to work in a trench that the employer knew was unsafe, then that’s gross negligence.
• Or, in some cases, someone else’s negligence besides the employer may have led to a trench collapse that injured your or killed your loved one. The owner of the property may not have provided safe working conditions, another contractor may have placed heavy equipment too near the trench leading to the collapse, or the engineer who designed the trench may have done so improperly. In this case, you can file a lawsuit against the responsible party or parties instead of the employer. In this case, you will need the assistance of a skilled and experienced attorney who knows how to devise strategy for trench collapse cases for a complex work-related claim like this. Identifying all responsible parties and holding them accountable for the injuries they have caused requires experience.

Non-subscribers

Particularly in construction where insurance costs can be enormous, many employers avoid subscribing to workers’ comp insurance. If you are facing a claim against a so-called non-subscriber, then you will likely need the help of a crafty lawyer to ensure you will receive the just restitution you deserve.

Since workers compensation laws in Texas are designed to punish non-subscribers, the damages injured workers can receive will be greater than if your employer had subscribed to workers comp insurance and the burden of proof for negligence is easier to meet.

Since the law only gets more complex in non-subscriber cases, you need the knowledge of a crafty Houston construction accident lawyer to help you through the challenging process.

Initially, the victim, also known as the plaintiff, needs to file a claim with the employer, informing him or her of the injury suffered in the trench collapse and the requested restitution for the harm caused. If the employer agrees to pay or negotiates a settlement, then the case is resolved, allowing everyone to return to the enjoyment of his or her life. However, that’s not generally the way claims against nonsubscribers work out. In most cases, the employer refuses to negotiate or pay, and the victim must file a lawsuit to secure the compensation he or she deserves. As the injured party, the plaintiff holds the burden of proof for demonstrating that the negligence of the employer caused the trench collapse, resulting in the injury and that the injury has incurred medical expenses, lost salary, pain and suffering. Fortunately for the injured, the standard of proof for negligence is much easier to meet than gross negligence and is fairly easy to prove.

Defenses of the Nonsubscribers

If your or your loved one’s employer declined to purchase workers’ compensation insurance, then he or she isn’t likely to become generous and agree to pay an injured employee or the loves one of a wrongfully killed employee for the harm done to him or her. However, since workers comp laws are designed to punish nonsubscribers, they have little recourse to avoid paying compensation to injured employees. In fact, there is only one defense afforded nonsubscribers.

Sole Proximate Cause

The sole proximate cause defense is the only true defense a non-subscribing employer has following a trench collapse that injures an employee. That means they are going to blame you for your own injuries or your loved one for his or her wrongful death. The sole proximate cause defense is to prove that the employee’s injury was caused 100 percent by the employee’s own negligence. They will attempt to sully your reputation or that or your family member, attempting to show that you or your loved one was a routinely negligent employee who caused the trench collapse with your own or his or her own negligence.

You can bet that the nonsubscribing employer, who wouldn’t spend money on workers’ comp coverage to protect his or her employees, will be glad to pay for attorneys to defend themselves. They will come to court armed with experienced construction accident specialists who know how to make victims look negligent if they don’t have an equally crafty lawyer to deflect the fault back onto the negligent employer.

Employer-Employee Relationship

The only way nonsubscribers can avoid liability after a trench collapse that injures an employee is the sole proximate cause defense, but many nonsubscribers begin trying to avoid that responsibility before the accident has even occurred. Employers do not owe a duty to provide safe working conditions for contractors or temporary workers, so many construction companies hire their employees as contractors. Then, if injuries occur, the employer can avoid paying compensation by denying the existence of an employer-employee relationship. Why should an employer be responsible for your injuries, if you were never actually employed by them?

While many Houston construction companies will make the claim that their workers are contractors, when the employer knows an actual employer-employee relationship exists in the eyes of the law. In many of these cases, an injured worker can still obtain compensation. Just because your employer claims you are a contractor doesn’t mean that’s how the law classifies you. Legally speaking, you may in fact be an employee who is entitled to recover fair compensation for injuries you suffered on the job.

You need a Houston construction accident attorney who knows how to establish the employer-employee relation. Our attorneys know you must meet at least one the following requirements:

• The employer withheld social security or taxes from your paycheck.
• The employer supplied the essential equipment for the job .
• A specific work schedule has been set for the job by the employer.
• The employer managed, oversaw or inspected your work .
• You performed a task or signed a document that limits your rights while working for the employer, for example: taking a drug test or signing a document that states compliance with an employee handbook.
• You have been employed for an undetermined period of time and not just for a single job.
• You are paid by a salary or an hourly wage and not on a case-by-case basis.

Our attorneys will investigate thoroughly to prove your employer-employee relationship by demonstrating the existence of one of these standards. We will examine pay stubs, depose co-workers, and review contracts to prove that you were an employee when you were injured on the job.

Types of Damages

The loved ones of an employee killed in a trench collapse may pursue two types of damages: wrongful death damages and survival damages.

Wrongful Death Damages

Only spouses, children, parents and in rare cases siblings may pursue wrongful death damages. Wrongful death damages may include compensation for:

• The victim’s medical expenses prior to death
• Funeral bills
• Loss of financial support supplied by the victim
• Mental and emotional turmoil
• The loss of the unique consortium provided by the deceased

Survival Damages

Survival damages provide the family of the deceased compensation for the damages the victim could have pursued had he or she only suffered injuries in the trench collapse and not died. Only the closest living relative of the victim is permitted the opportunity to seek survival damages, descending from spouse to children to parents and finally to siblings. Examples of survival damages include:

• Medical bills the victim would have incurred had he or she just been injured.
• Lost wages for the hospital stay the victim would have had if he or she had survived and recovered.
• Lost earning potential due to possible long-term debilities.
• The victim’s physical pain and suffering.
• Emotional or mental trauma the victim would endured during the rehabilitation process if he or she had survived.

Claims for wrongful death and survival damages require separate strategies and must also be filed separately. Inexperienced lawyers can easily be confused by the complexities of these procedures, and people with no legal experience at all will be doomed to failure. You need the help of an experienced Houston construction accident attorney.

We Can Help

After twenty years of litigating wrongful death and personal injury cases involving trench collapses, our attorneys have mastered these procedures, and we can ensure all your family members who have suffered due to the loss of your loved one will receive damages for the pain and suffering they have incurred. To find out how we can help or just to get answers to questions about your case, feel free to call us for a free consultation at 1-855-392-0000 (toll free). We’re waiting to help you.