Trench Collapses in New York: Labor Law § 241(6) and the Shoring Rules That Protect Workers

Every day, New York City streets are opened up for sewers, water mains, gas lines and utility work. Usually we see these at the weekends on certain streets. For example, along 2nd Avenue every weekend, some of the roads are shut down and construction vehicles and workers are hard at work within the trenches. Is it the 2nd Avenue subway line? New Con Ed piping? Or is it for fiber optic cables? Who knows. But what we do know is that the trenches that make that work possible are some of the most dangerous places on any construction project. When a trench wall gives way, or the steel and timber holding it back comes loose, the workers below have nowhere to go.

New York law treats this work as inherently dangerous, and it puts the responsibility for trench safety on the owners and contractors who profit from it. This guide explains how Labor Law § 241(6) and the Industrial Code's excavation rules protect workers in and around trenches, and what those rules actually require.

What Labor Law § 241(6) says

Labor Law § 241 applies to contractors and owners when they are constructing or demolishing buildings or doing excavation work in connection with it. Subdivision 6 sets the standard:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.

Labor Law § 241(6)

Note the words "excavation" and "shored." The Legislature had trench work squarely in mind.

How a § 241(6) claim works

• You need a specific Industrial Code rule. A § 241(6) claim must be based on a violation of an Industrial Code regulation that sets a specific standard of conduct, not just a general reminder to be safe. The trench rules discussed below are the kind of specific rules that qualify.
• The duty is nondelegable. Owners and general contractors cannot pass the responsibility off to a subcontractor. They can be held liable even if they never supervised the work, never controlled the site and never knew about the violation, as long as someone in the construction chain was negligent.
• It is not automatic liability. Unlike Labor Law § 240(1), a violation of the Industrial Code under § 241(6) is evidence of negligence for the jury to weigh, and a worker's own share of fault, if any, can reduce the recovery.
• It protects workers, not just the one who got hit. As our own appeal confirmed in Leonard v City of New York, 216 AD3d 51 (1st Dept 2023), a worker hurt rescuing a coworker endangered by a Code violation can also be protected. More on that below.

Most injured construction workers cannot sue their own employer because of the workers' compensation system. A § 241(6) claim is brought against the property owner and general contractor instead, which is why these rules matter so much. For the bigger picture, see our guide to New York Labor Law 200, 240(1) and 241(6).

The Industrial Code's trench and excavation rules

Subpart 23-4 of the Industrial Code (12 NYCRR Part 23) governs excavation operations. These are the provisions that come up most often in trench collapse cases.

Sheeting and shoring for trenches five feet or deeper: 12 NYCRR 23-4.2(a)

• Whenever anyone works in or is lawfully in a trench five feet or more deep with sides steeper than the Code's Table I allows, the sides must be protected with sheeting and shoring.
• That sheeting and shoring must be in contact with the sides of the trench.
• A designated person must carefully inspect it at least once a day, and more often after rain, when ground water or surface water appears, when there are heavy vibrations, or when extra loads are placed near the edge.
• Additional protection against slides and cave-ins must be provided whenever necessary.
• Trenches more than three but less than five feet deep in clay, sand, silt, loam or mixed soil also need side protection, unless a qualified person has examined the sides, found them stable, and signed a dated written certification kept at the site.

Read 12 NYCRR 23-4.2

Sloping instead of shoring: 12 NYCRR 23-4.2(b)

Where the sides can be cut back without undermining buildings, utilities or roads, the sides may be sloped instead of shored, but only to the angles in Table I, which depend on the soil and the depth. Stable rock may have vertical sides. Soft or wet soil needs a much gentler slope. When sloping and shoring are combined, the Code requires a level bench at least 24 inches wide between them.

Keeping loads and debris back from the edge: 12 NYCRR 23-4.2(f) and (g)

Excavated soil and other loads must be kept at least 24 inches back from the edge of an open excavation and piled so nothing can slide, fall or roll in, unless a barrier is installed to hold it back. Loose rock and other material that could fall on workers must be cleared from the sides and the area around the excavation.

Guarding excavations next to streets and sidewalks: 12 NYCRR 23-4.2(h)

Open excavations next to a sidewalk, street or other public area must be effectively guarded with a substantial fence or barricade, sheeting extended at least 42 inches above the ground, or a properly supported covering strong enough for any vehicles that may cross it.

Sheeting, shoring and bracing: 12 NYCRR 23-4.4

• (a) If the sides are not sloped as Table I requires, anyone in the excavation must be protected by sheeting, shoring and bracing that meets the Code's Tables II, III and IV.
• (b) Shores, struts and braces must be big enough and braced well enough to carry the loads on them. The ends of every brace must be individually anchored and fastened so the brace cannot shift or slip. Inclined braces may not be set at more than 30 degrees from horizontal.
• (c) Every earth-supported shore, strut or brace must bear against a footing large and stable enough to keep it from sinking, yielding or shifting.
• (e) A trench box or other movable shield may be used instead of sheeting and shoring, but it must be just as strong, and anyone outside its protection must still be protected by sheeting and shoring.
• (f) Screw jacks may be used as cross bracing. Whatever cross bracing is used must be truly horizontal, securely fastened, and blocked so it cannot shift or slip.
• (h) Excavations that run alongside existing pipelines, utilities or structures must be tightly sheeted and shored where those lines are exposed.
• Deep trenches. For any trench over 20 feet deep, the sheeting, shoring and bracing must be designed by a New York licensed professional engineer, and the plans must be kept at the site.

Read 12 NYCRR 23-4.4

When shoring fails: a real example

In one of our cases, a union carpenter was working on a City sewer and water main project in the Bronx when a trench wall collapsed. A heavy steel beam that had been supporting the wall fell four to five feet onto a coworker's leg. Our client climbed into the trench to lift the beam off him and suffered a herniated disc that eventually required a lumbar fusion. The claim was built on 12 NYCRR 23-4.2(a) and 23-4.4(a), (b), (c) and (f).

On appeal, the Appellate Division, First Department noted that the defendants did not dispute that those trench rules are specific enough to support a § 241(6) claim, or that they were violated. The question was whether the law protected a worker hurt rescuing someone else. The court held that it can (Leonard v City of New York, 216 AD3d 51 [1st Dept 2023]). The case later settled for $2,750,000. Read the full story, and see our guide to the danger invites rescue doctrine.

Warning signs on a trench job

• Workers sent into a trench five feet or deeper with no shoring, no trench box and no sloping.
• Shoring or sheeting that is not tight against the trench walls.
• Braces or struts that are not anchored, not level, or are shifting or slipping.
• Soil piles, equipment or materials stacked right at the edge.
• Water in the trench, recent rain, or heavy equipment and traffic vibrating nearby, with no one re-inspecting the shoring.
• Cracks, bulges or loose material on the trench walls.

What to do after a trench or excavation accident

• Get medical care right away, and tell the doctors exactly how you were hurt.
• Report the accident to your supervisor and make sure it is written down.
• If you can, take photos of the trench, the shoring and bracing, any trench box, the soil piles and any signs or permits at the site.
• Write down the names of coworkers who saw what happened, and the names of the contractors and companies on the job.
• Do not give a recorded statement to an insurance company before speaking with a lawyer.
• File for workers' compensation, and speak with a construction accident lawyer about a claim against the owner and general contractor.

Talk to a lawyer who knows trench cases

Trench collapse cases turn on the details: how deep the trench was, what the soil was, what shoring was used and whether it was inspected. We take these cases apart rule by rule, and we are prepared to take them to the Appellate Division and to trial. If you or a family member was hurt in a trench or excavation accident in New York, learn more about our New York City construction accident practice.

Attorney Advertising. Prior results do not guarantee a similar outcome. This article is general information, not legal advice. The Industrial Code is summarized from the published regulations; check the current official text before relying on it.