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Morris County

The plaintiff contended that the defendant property owner, who was acting as general contractor during the construction of his home, and the codefendant excavation subcontractor negligently failed to plan for the safe excavation of a trench that was dug in connection with the preparation of the foundation for a new home construction. The trench reached a maximum of nine feet in depth at the center and exceeded the depth that triggered the requirement for shoring under OSHA. The plaintiff maintained that while the decedent was working in the trench, a collapse suddenly occurred causing the decedent to be struck in the head by a tool, rock or other object, suffering immediate death. The decedent left a wife and two young sons.

The evidence disclosed that the incident occurred on the first day of the construction project. The plaintiff’s safety expert contended that the trench should have been shored up to provide support as well as meeting OSHA regulations regarding trench work.

The defendants indicated that because the codefendant excavator observed material sloughing off the sides and realized that the trench was unsafe, the decision was made to close the work site early in the day, bring in stone the following day to half fill the trench and to use plywood to brace the upper half. The defendant general contractor maintained that he told the decedent to get out of the trench, but that the decedent refused to do so. The general contractor contended that he then entered the trench briefly in order to hurry the decedent and that as the contractor was exiting, he heard a sound, turned and observed that the decedent was partially buried and was bleeding from the head.

The plaintiff denied that this position should be accepted and the plaintiff would have argued that the jury should take into account the inability of the plaintiff to present eyewitness testimony to rebut the defendant’s account. The plaintiff would have further argued that the jury should consider that the defendant had no perimeter tape or other warnings.

The plaintiff’s would have also maintained that irrespective of the defense position regarding the warnings, the defendants were clearly negligent in failing to initially plan for safety. The plaintiff contended that although the excavating subcontractor had the most experience, the defendant property owner/general contractor also had significant experience and should have minimized the hazards in the first instance by effectuating a safety plan, rather than relying on warnings after the hazard was created.

The defendants contended that the decedent also had experience working in trenches and was comparatively negligent. The plaintiff would have countered that the decedent’s prior experience primarily involved working in much wider areas and not in the confines of a narrow trench The evidence disclosed that as the trench caved-in, the decedent was struck in the head with a rock, tool or other hard object and immediately lost consciousness. The police and paramedics rushed to the scene, but the decedent could not be revived.

The decedent left a wife and two sons, age 12 and 5 at the time of the death. The plaintiff contended that as a contractor, the decedent did most of his work in the warmer months and that at other times, he had been very involved in his sons’ lives. The plaintiff would have introduced evidence of income loss that exceeded $________, including the value of the loss of guidance and advice under Green vs. Bitner.

The case settled prior to trial for $________, including $________ from the general contractor/owner and $________ from the co- defendant excavating subcontractor.

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