New York State Court of Claims

New York State Court of Claims
HUBBARD v. STATE OF NEW YORK, # 2018-053-011, Claim No. 123817

Synopsis

After a bifurcated trial on the issue of liability, the Court finds that claimant failed to establish that the State asserted sufficient supervisory control to support a claim for a violation of Labor Law 200.  The Court also finds that no violation of Labor Law 241 (6) occurred because the lack of sheeting and shoring was not the proximate cause of claimant's injuries.

Case information

UID: 2018-053-011
Claimant(s): DALE HUBBARD
Claimant short name: HUBBARD
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123817
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: COLLINS & COLLINS ATTORNEYS, LLC
BY: Samuel J. Capizzi, Esq.
Ethan W. Collins, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 9, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On February 10, 2012, claimant Dale Hubbard was injured while repairing a water main break at the Collins Correctional Facility (Collins) in Collins, New York. The claim alleges that the State was negligent and violated Labor Law 200 by failing to provide claimant with a safe place to work and violated Labor Law 241 (6) and 12 NYCRR 23-4.2 (a) by failing to provide sheeting and shoring to the excavation where claimant was working, which was a factor in causing his injuries. The claim was commenced on January 23, 2014 and the answer filed by the State on February 21, 2014.

The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on July 17, 18 and 19, 2018. The claimant's proof consisted of testimony from the claimant, Mark Brammer (president of claimant's employer, STC Construction, Inc. [STC]), Peter Ochal (STC project manager), and expert testimony from Peter Tasca and Edward Casey, Jr. Exhibits received into evidence included photographs, workers compensation C-2 forms, the New York State Office of General Services (OGS) contract and construction reports, and other letters, reports and invoices. In defense of the claim, the State's witnesses included Jeffrey L. Westerman (OGS engineer), David Baer (retired OGS area supervisor), William Schmitz (Gernatt Asphalt & Gravel Products Co. [Gernatt] quality control manager), and expert witness John Coniglio. Exhibits received into evidence on behalf of the State included a plot plan of Collins, Gernatt scale tickets, a material safety data sheet, and photographs. Following the trial, the parties requested and were granted additional time to prepare and submit post-trial memoranda.

During the course of the trial, the State moved to have Exhibit A, a key plot plan of the Collins facility, placed under seal. The claimant had no objection to the State's motion. Exhibit A represents a "to scale" map detailing all buildings and fence locations within both the Collins I facility (Collins) where claimant's accident occurred and the Collins II facility, which is also known as the Gowanda Correctional Facility. The exhibit was utilized by the State during its direct examination of Mr. Westerman to identify the specific location of the OGS trailer where Westerman worked and its proximity to the location of the job site where the claimant's accident occurred. This document was not referenced for any other purpose during the trial and was not utilized in any manner by claimant in his proof. The State represented that this exhibit is not otherwise available to the general public and is not disclosed in order to maintain security for these correctional facilities and in order to protect the safety of the Department of Corrections and Community Supervision (DOCCS) employees working at these facilities. As such, in accordance with 22 NYCRR 216.1, the Court ruled that the State established good cause to place this exhibit under seal. In doing so, the Court has considered the interests of the public and concluded that the interests of the State in its operation and maintenance of secure correctional facilities and to protect the safety of its employees at these facilities outweighs any interest the public might have in obtaining access to this key plot plan.

TESTIMONY OF DALE HUBBARD

Claimant Dale Hubbard testified that he is a member of Laborer's Local Union 600 and was employed as a laborer by STC from the year 2000 until the day of the subject accident on February 10, 2012. Claimant testified that he was told he would be working with STC project manager Peter Ochal to repair a water main break at Collins on a two day job commencing February 9, 2012. On the first day, he drove to the job site with Ochal. Upon their arrival, they met with the OGS engineer, Westerman, who took them to the location of the water main break. Claimant identified three photo exhibits depicting the general location of the water main break at Collins (Exhibits 13, 15 and 16). He testified that these photographs also show the sand that was "blown out of the hole" due to the water main break and that there was a high sand content in the soil. Claimant described the water main break as being located adjacent to an interior fence and sidewalk where employees gained access to the Collins facility. He testified that they were instructed by Westerman which sections of fence could be removed and rolled back and told that they were not to disturb the fence post immediately adjacent to the hole. He also testified that they were told by Westerman to create a walkway so that the employees could go safely in and out of the facility past the work site.

Claimant testified that photo Exhibit 4 depicts the water pipe with the "band-aid" or patch around it after they had fixed the leak. This photo also shows the water that surrounded the pipe, as well as the exposed fence post set in concrete that they were instructed not to remove. He explained that the process to locate the broken water pipe was performed gradually, approximately one foot at a time and was done jointly by claimant with a shovel and Ochal operating the excavator. Claimant testified that at one point the entire hole was filled with water and had to be pumped out before they could repair the water main.

Claimant identified photo Exhibit 5 as depicting the condition of the pipe after they first found it. In this photo, the water can been seen coming out of the pipe where the break existed. He identified photo Exhibit 6, which depicts a different view of the water coming out of the pipe. Claimant identified himself as the individual depicted in photo Exhibit 1 going down the ladder into the hole. He testified that this photo also shows him carrying the patch that he would use to repair the broken water main. Claimant testified that the patch was provided by Westerman and that Ochal and Westerman observed him as he performed the repair. He testified that the hole was over seven feet deep from the water pipe to the surface.

On the second day of the job, claimant testified that the process of backfilling the hole took place. He testified that there were no photos taken of the work on the second day as Westerman was not present. Claimant testified that when he arrived that morning, the pump was still pumping water out of the hole and it was not entirely dry. He and Ochal pulled the pump out of the hole and began to backfill. Claimant testified that Ochal went to Gernatt to obtain the gravel fill and that he returned with a fill that he was instructed by Westerman to use. He testified that Westerman had told Ochal in his presence that OGS had fill set aside for their use at Gernatt. Claimant testified that when Ochal tipped the truck to empty the load of fill, water came running out of it and he had never seen such watery fill. He characterized the composition of the fill as primarily clay and sand. Claimant worked in the hole as the fill was placed into it, and utilized a tamping machine or tamper which vibrated to level and compact the fill. He testified that the tamper weighed approximately 250 lbs.

Claimant testified that as he began working with the tamper, he soon experienced problems with it sinking into the fill due to the high water content and clay in the fill. As the tamper sank, he testified that it would create a suction that made it more difficult for him to lift and move the tamper. Claimant testified that as he used the tamper, it kept bringing the water up from inside the hole. He testified that he told Ochal about these problems with the fill before Ochal left to obtain a second load of fill. Claimant testified that as he continued to tamp, sand from the fissures on the side of the hole broke off and dropped into the hole. Claimant identified these fissures in photo Exhibit 6. He testified that sheeting and shoring would have prevented the sand from these fissures from dropping into the fill at the bottom of the hole that he was tamping.

Claimant had continued to work in the hole as Ochal arrived with the second load of fill. He characterized the second load of fill as worse than the first, describing it as dirty gravel with clay and sand in it. He testified that he continued to complain to Ochal about the quality of the fill. Claimant then explained that as the fill got higher in the hole, it became more difficult to work with the tamper because it would sink further. He testified that he was jerking and pulling on the tamper to get it out and continue his work. Claimant testified that it was after two or three of these lifts that he injured himself. He stated that he felt a snap that he initially believed was a broken rib and that he told Ochal that he had been injured. Claimant testified that Ochal's response was that he should finish backfilling the hole and they could then put the fence back up, go home and claimant would then have the entire weekend to rest. Claimant testified that he continued to work but the tamping was no easier. He testified that they completed the work that day but claimant could not recall how many additional loads of fill were necessary to completely fill the hole. Claimant testified that the type of fill brought by Ochal was the same each time and its consistency did not change.

On cross-examination, claimant confirmed that he testified in his deposition that he was injured while tamping the second load of fill. He stated that it took him about 20 minutes to tamp each level. Claimant testified that he had used a tamper over 20 times before on ten different work sites. He testified that when he felt the pop, Ochal was not present and was in the process of getting another load of fill. When Ochal returned, claimant testified that he told him that he had injured himself. Claimant also testified that after he complained about the content of the fill, Ochal went to the OGS trailer to speak with Westerman. He was not present when Ochal spoke to Westerman. He testified that this conversation between Ochal and Westerman occurred before he was injured. Claimant testified that Ochal stated to him that Westerman had told him that they were to use the gravel fill that was supplied to them. He testified that the loads of gravel fill were all from Gernatt. Claimant testified that on the day of the accident, Westerman did not come to inspect their work or to observe them filling and tamping the hole. He testified that he did not know where Westerman was on the day of the accident.

On redirect examination, claimant testified further concerning photo Exhibit 4 and testified that it was the wall of the hole opposite the sidewalk that was caving in as he was operating the tamper. He also testified that as the hole filled, the cave-in of that wall and its sandy soil continued. Claimant testified that he attempted to kick the sand to the back wall to reduce the amount of sand that was mixing in with the fill that he was tamping.

TESTIMONY OF JEFFREY L. WESTERMAN

Westerman testified that he has been employed by OGS in their division of construction for 12 years. His title with OGS at that time was assistant building inspection engineer. He testified that he was the engineer in charge (EIC) for the Collins water main break project. Westerman identified Exhibit 24, entitled "OGS Cost Plus Percentage Fee Emergency Contract form," as the contract utilized for this project and that he was responsible for approving the work performed under the contract.

Westerman identified Exhibit 33, entitled, "Daily Labor Report for Project EB840," which he testified contains a description by the contractor of the work performed on the first day of the project, February 9, 2012. He stated that his role was to verify that this work was actually performed. Westerman testified that Exhibit 33 had Ochal's and his handwriting on it in the area entitled "EIC Comments." He testified that these comments show that he approved the work performed. Westerman testified that he observed the work being performed on February 9, 2012 and took photographs of the work progress (Exhibits 1 - 20). He testified that the photo exhibits of the work were all taken by him on the first day of the job. Westerman verified in his testimony that the pipe clamp used to repair the pipe was supplied by him and that the contractor was then responsible to purchase another to replace it.

Westerman was then questioned about the decision whether to use sheeting and shoring in the hole. He testified that he was familiar with the regulation that required sheeting and shoring to be utilized when a hole is five or more feet deep or if the soil content is of a specified type. Westerman testified that sheeting and shoring was not required for this hole on either day of the project as it was February and the soil was frozen down to the frost line. He also testified that the soil surrounding the hole was cohesive based upon his observations but that he did not test the soil. Westerman testified that he would not have objected to the use of sheeting and shoring if the contractor wanted to utilize it and did not recall whether Ochal ever requested to use sheeting and shoring.

Westerman identified Exhibit 35 as the Daily Labor Report for the second day of the project. He testified that he understood the term "select fill" in this instance to mean fill that was appropriate for a backfill job. Westerman testified that he would typically inspect the fill before it was used as he had to approve the fill. In his deposition taken three years prior to this trial, he had testified that he approved the fill that was utilized at this job site. He also stated at his deposition that he would not sign off or approve the Daily Labor Report unless he saw the fill and the compaction of the material.

Westerman testified that he left work early on the first day of the project and came in late on the second day at 10:00 a.m. and took no photographs. Westerman testified that if the fill was mixed with clay, sand or any foreign matter, it would not be acceptable and he would not have approved it. He testified that it was not possible that he did not inspect the fill utilized on the day of the accident. He claimed at trial that he was on the job site to inspect the fill before it was placed into the hole and compacted, however, in his deposition testimony he had stated that he had no recollection of anything that happened on the second day of the project. Westerman was shown Exhibit 34, a Daily Material and Equipment report dated February 10, 2012, which details the equipment and material that would be billed following STC's completion of the work. He testified that he had to certify that each was performed based upon his observations at the job site. He testified that he would have been there to verify and then sign off on these sheets. He testified that this exhibit states that five loads of minus one inch (-1") crusher run gravel were used to fill the hole. In the direct examination by the Assistant Attorney General, Westerman reiterated that the means and methods to be utilized on the project were determined by STC with no input from him. He testified that his responsibility was to observe the work and he was not required to be constantly present during the entire process. Westerman testified that he would only be present at certain stages such as testing, examination of the pipe before it is covered up, and to inspect the backfill. He believed that he was present during each phase of the work. Westerman testified that he had previously worked with -1" crusher run gravel and that it was appropriate as backfill over a water pipe to protect it and provide proper compaction. He did not observe any safety issues at the job site. Referencing photo Exhibit 4, he testified that the observable lines on the wall of the hole show the teeth of the bucket from the excavator. Westerman did not observe the presence of any sloughing or fissures with material falling into the hole and did not characterize the hole as being unstable at any time.

Westerman testified that he knew that he came in at 10:00 a.m. on February 10, 2012, because that was what was on his time sheet. He also testified that his time sheet indicated that he left the previous day at 1:30 p.m., which he stated was because he was experiencing back pain. Westerman testified that the OGS trailer at Collins was about a 15 to 20 minute drive from the job site within Collins. He testified that the fill was obtained from Gernatt and that there was nothing wrong with the -1" crusher run gravel. He did not observe any "dirty fill" and did not hear any complaints from Ochal or claimant that there was anything wrong with the fill. Westerman also testified that proper compaction can occur with wet fill. He stated that if a trench box was utilized, it would have to be removed before the backfill operation occurred. He testified that he was not told on February 10, 2012 that claimant had injured himself. If he had, Westerman would have been required to complete an accident report on that date.

On redirect examination by claimant's counsel, Westerman denied that he instructed STC to go to Gernatt. He testified that he would have recommended Gernatt as this was an emergency project and they were only about five minutes from Collins, but that decision was ultimately up to STC. Westerman denied that OGS had a stockpile of fill at Gernatt that STC was required to use.

TESTIMONY OF DAVID BAER

David Baer testified that he was formerly an OGS area supervisor in the design and construction unit. He testified that he was not working when the contract was performed by STC at Collins and did not inspect their work. Baer testified that he only approved payment of the emergency work as set forth on Exhibit 24, the Cost Plus Percentage Fee Emergency Contract. He was shown Exhibits 41 and 34, the Daily Material and Equipment Reports for February 9 and 10, 2012, respectively, which detailed the material and equipment utilized by STC on the job site. Baer testified that he relied upon Westerman's judgment as the EIC that the use of the -1" crusher run gravel was appropriate for this job. He testified that the fill material in this emergency contract did not require him to be physically present to inspect the fill.

TESTIMONY OF MARK BRAMMER

Mark Brammer is the president of STC, a construction company that began in 1996 and employs 35 people. At the time of claimant's accident, he was then vice president. Brammer testified that STC would receive emergency contract bids from OGS by fax and they were awarded the contract for the emergency work at Collins as set forth in Exhibit 24, the Cost Plus Percentage Fee Emergency Contract Notice to Bidders. He testified that with OGS emergency contracts, they are generally required to start the work the day following the award of the bid.

Brammer testified that the work crew sent to perform this contract included Ochal and claimant. He testified that STC had previously performed other work for the State in addition to emergency contract work. Brammer testified that he had a general knowledge of the work to be performed and that when they arrive on site they are then directed by OGS where to go and what to do. He testified that OGS also tells them how they want the job done and what material and equipment they should use. Brammer stated that on this particular contract they were directed by OGS what product to use as backfill, but did not know if they were directed where to obtain the fill. He did not go to this job site but knew that OGS had to approve each stage of the job as it was completed. He also testified that they had to approve the material used and the manner in which the work was to be performed.

Brammer identified Exhibit 21, the C-2 Workers Compensation Employer's Report of Work-Related Injury that was prepared by his safety director, Michael J. Murphy. This report indicated that claimant was operating a tamper to compact gravel fill in an excavation being refilled. It also indicated that claimant stated that his accident was caused by pulling upward and lifting the plate tamper. Murphy set forth in the accident description that claimant was "operating plate tamper, compacting gravel and, because of nature of gravel fill, was required to repeatedly pull/lift tamper up and out of depressions."

On cross-examination by the Assistant Attorney General, Brammer testified that the decision whether to use sheeting and shoring was made by Ochal and this determination was made by him based upon how deep the hole would be and the quality of the soil. As such, Brammer testified that OGS played no role in that decision. He also admitted that Ochal did not need to be told how to perform this work by OGS as he was familiar with these repairs and had previously repaired water main breaks. He also testified that Ochal was familiar with OGS general job specifications, as well as those contained in Exhibit 24, the emergency contract.

Brammer testified that the first time he was advised that claimant had been injured on the job site was a number of days after the work was completed. At that time, Brammer testified that claimant stated to him that he had injured his shoulder while taking down and putting up the fence. He testified that claimant did not state that he had been injured working with the tamping machine. He agreed that the typewritten C-2 form (Exhibit 22) prepared by Murphy at question D. 3. states that claimant gave notice of his injury orally to Murphy on March 19, 2012, approximately five weeks following the accident.

TESTIMONY OF PETER OCHAL

Ochal testified that he is employed by STC as a project manager and his title at the time of the accident was superintendent. He testified that he was first notified that STC had won the bid for the emergency contract at Collins on February 8, 2012. On that date, he met with Westerman at the OGS trailer outside of Collins, who then took him to the location of the water leak. Ochal identified photo Exhibits 7 and 10 as depicting the area that he was shown where the water leak existed and that Exhibit 10 shows the presence of sand and water. He testified that he operated the excavator to create the hole adjacent to the sidewalk to locate the broken water pipe. Ochal testified that photo Exhibit 4 depicts the hole that was created that he estimated to be ten feet long, eight feet wide and five feet deep. In photo Exhibit 4, the repaired pipe with the blue repair clamp is depicted at the bottom of the hole. Ochal testified that sheeting and shoring was not necessary as the walls of the hole were stable and as it was February, the ground was frozen to the frost line. He was shown the emergency contract notice to bidders (Exhibit 24) which at page 2 states that the waterpipe is approximately seven feet below the ground. Ochal testified that he did not see this document before performing the work and that the hole could have been deeper than five feet.

Ochal testified that after the leak was located, he consulted with Westerman how he wanted him to repair the break in the water line and it was agreed that they would use a repair clamp provided by the State. Ochal testified that photo Exhibit 1 shows claimant carrying the repair clamp into the hole. He observed Westerman taking photos during this process. After the repair clamp was attached, they tested the pipe to make certain there were no leaks before they proceeded with the backfilling process. Ochal testified that they may have placed some pea gravel or bedding stone around the pipe prior to ending the first day of work.

Ochal testified that he was directed by Westerman what material to obtain as backfill for the hole, namely, -1" crusher run gravel. He testified that Westerman did not ask him what gravel fill he preferred. Ochal testified that on the second day of the job, he went to Gernatt alone using a one-ton truck and once there, he was directed by a Gernatt employee where to go to obtain -1" crusher run gravel. The fill was then placed into his truck and brought back to the job site. Ochal obtained a total of five loads of -1" crusher run gravel in this manner. The fill was placed into the hole in six inch increments using the excavator and then claimant utilized the tamper to compact and level the fill. Ochal agreed that the fill was wet and that claimant told him that the fill was wet. He also testified that the wet fill slowed the tamping process that day by about 10% to 15%. Ochal agreed that there was sand on the side walls of the hole, which is depicted in photo Exhibit 4. He did not agree that sheeting or shoring was necessary as the side walls of the hole were stable. Ochal testified that he completed the daily labor reports (Exhibits 32, 33 and 35), which he presented to Westerman for his review and to sign-off so that STC would be paid for their work.

On cross-examination by the Assistant Attorney General, Ochal testified that he has been employed with STC for 24 years and had repaired broken water lines on five prior occasions. As such, he knew how to do this job, which he stated included preparing and marking off the work site, digging the hole, and evaluating the soil to determine whether to utilize sheeting and shoring. He described the soil in the subject hole beneath the top soil as a very cohesive gravel mixture with elements of clay and sand but predominantly gravel. Ochal testified that the -1" crusher run gravel was not located in a specific pile for the State but was in a pile accessible to any customer. With each load, Ochal testified that he was given a ticket by Gernatt and the scale tickets (Exhibit C) were then listed by him on the Daily Material and Equipment Report for February 10, 2012 (Exhibit 34). Ochal testified that it was a five to ten minute drive to get from the work site to Gernatt. The first load was picked up at 8:44 a.m. and the second load was picked up at 9:28 a.m.

Ochal confirmed his deposition testimony that he saw a representative from OGS approximately four times during the two days of the project. Ochal testified that the OGS representative came and stayed very briefly on each occasion for only five to ten minutes. Ochal testified that the OGS representative inspected their work at the start, when they located the break, discuss with them how to repair the pipe and what type of material to use as backfill, and how STC was to leave the work site at the end of the day.

Ochal testified that he believed that the -1" crusher run gravel was acceptable for use on this job. He did not observe any problems with the fill or believe that it was defective in any manner or that it was "dirty fill". He testified that moisture in the fill can help compaction but here there was more moisture which slowed the compaction but did not otherwise affect the process. He also did not witness any sloughing or soil falling off the walls. Ochal denied claimant's allegation that he went to speak with Westerman at the OGS trailer to complain about the wet condition of the -1" crusher run gravel or to ask to use a different fill. He was also asked if photo Exhibit 4 exhibited gouge marks in the soil, which he stated were caused by the teeth of the excavator bucket. He testified that he was not directed by OGS how to dig, or compact or backfill the hole. Ochal was questioned on the procedure followed when backfilling a hole with a trench box. He stated that if a trench box had been used, it would have to be raised after each six inch interval of backfill so that the fill could be properly compacted.

Ochal testified that claimant never stated to him that he had been injured while backfilling the hole. As such, he did not prepare an accident report. He testified that he first learned of claimant's injury several weeks after the job was completed when he was asked by Brammer if an accident had occurred with claimant at the Collins work site. Ochal testified that he responded to Brammer that he did not recall any accident while they were working at the Collins work site.

TESTIMONY OF PETER TASCA

Tasca testified as an expert witness for claimant and was previously a construction safety inspector for 36 years with the New York State Department of Labor. Tasca opined that the soil at the job site was sandy soil, basing this determination upon his examination of photo Exhibit 15. He also opined that the hole was in excess of five feet and required sheeting and shoring, basing this determination upon his examination of photo Exhibits 4 and 6, and the contract document that stated "approx. 7' below ground" (Exhibit 24). With respect to Industrial Code 12 NYCRR 23-4.2 (a), Tasca opined that sheeting and shoring was required at this job site. He also opined that the left side of the hole was "falling in", referring to photo Exhibit 6 to point out what he believed to be a fissure or crack at the top left side of the hole. Tasca further opined that as a result of the failure to utilize sheeting and shoring, sand and clay fell from the walls onto the floor of the hole and interfered with claimant's tamping operation. He testified that the sand and clay made the tamping too loose and did not provide sufficient compaction. He also offered his opinion that the -1" crusher run gravel that was utilized was "dirty fill" and was not proper for this job. He testified that "select material" should have been utilized, although he never specified what he meant by the use of that term. Tasca concluded his direct examination by opining that the use of the -1" crusher run gravel was a substantial factor in causing claimant's injury.

On cross-examination, Tasca admitted that he is not an engineer and does not have any background in geo-technical engineering. He also admitted that he never drew any samples of the soil at the job site or performed any test to analyze and determine its content. Tasca testified that he was not aware that Ochal had testified that the -1" crusher run gravel used was not "dirty fill". He agreed that this testimony would have changed his opinion as to whether the fill was "dirty fill" and also agreed that Ochal was in a better position to evaluate the fill used on this job as he was present at the job site and operating the excavator. With respect to the requirement to have sheeting and shoring, Tasca agreed that claimant was standing in a hole of less than five feet when he was allegedly injured. He also agreed that a hole less than five feet did not require the use of a trench box. Finally, Tasca retracted his earlier opinion testimony and stated that the tamping did not include any soil falling from the side walls of the hole and that claimant was tamping only what gravel fill had been placed into the hole.

TESTIMONY OF EDWARD CASEY, JR.

Casey testified as an expert witness for claimant in the field of work site safety and is presently the Highway Superintendent for the Town of Hamburg. He testified that he is familiar with backfilling operations and with the use and types of gravel fill utilized for these operations. Casey testified that photo Exhibits 16 and 20 showed sand bubbling up with the water and that in his opinion there was an excessive amount of sand in the soil. He opined based upon his review of these photos and claimant's deposition testimony that the soil would be characterized under OSHA standards as type "C" soil, which required shoring. Casey also opined based upon claimant's deposition testimony that the fill did not appear to be -1" crusher run gravel based upon the way that it acted when claimant was trying to compact it. He did not believe that -1" crusher run gravel would create a pudding type consistency as claimant described. Casey also testified that since claimant stated that it was easy to put a shovel into it, this was further evidence that the fill was not -1" crusher run gravel and he would characterize it as "dirty fill".

Casey testified that it was the State's responsibility to inspect the gravel fill before it was placed into the hole. He also testified that if it was determined to be "dirty fill", that it should be rejected and the job stopped. Casey also opined that the person selecting the fill has a responsibility and obligation to inspect it before it goes into the hole. He testified that the primary purpose of shoring is to prevent a cave-in and harming the individual in the hole. Casey concluded his direct testimony opining that the gravel fill was a substantial factor in causing the accident.

On cross-examination, Casey admitted that he did not test or analyze the soil. He also clarified his opinion testimony by stating that -1" crusher run gravel was appropriate for use in backfilling, but that this fill was "dirty fill" and thereby not appropriate. Casey was advised that Ochal had testified that it was not "dirty fill" but he testified that this would not change his opinion. Casey opined that because Ochal testified that it took 10 to 15% longer to tamp, this indicated to him that it was "dirty fill". Casey admitted that Ochal was in a better position to assess the fill content than someone merely looking at photographs. Casey, like Tasca also agreed that claimant was not tamping any soil that had fallen from the walls when he was hurt and as a result, sloughing off the walls was not a causal factor in bringing about claimant's injuries.

TESTIMONY OF WILLIAM SCHMITZ

Schmitz testified that he is employed by Gernatt and is in charge of quality control and marketing. He stated that he has been employed with Gernatt for 35 years, including 34 years involving quality control. Schmitz testified about the production and testing procedures followed to grade fill types and stated that their products are certified by the NYS Departments of Transportation and Environmental Conservation, as well as the NYS Thruway Authority. He testified that prior to the date of claimant's accident, Gernatt had not received any complaints that they were supplying "dirty fill". Schmitz testified that Exhibit B provides a detailed description of how -1" crusher run gravel is produced. He testified that separate piles of fill are produced, however, Gernatt did not make a special pile of -1" crusher run gravel for OGS as alleged by claimant. Schmitz was referred to the scale tickets, Exhibit C, which he testified would have been notarized if a special stock pile had been utilized.

On cross-examination, Schmitz testified that he did not observe the truck or any of the loads of -1" crusher run gravel that were picked up by Ochal on the date of the accident. He also testified that the test results for the pile of -1" crusher run gravel that was accessed by Ochal were compiled between April and November 2009. Schmitz did not bring the test results with him to trial. On redirect examination, Schmitz testified that if the test results were irregular, he would have known and he had no knowledge of any irregular test results during that specific time period.

TESTIMONY OF JOHN CONIGLIO

Coniglio appeared as an expert witness for the State and testified that he is the managing director and owner of Occupational Safety and Environmental Associates, a safety and environmental consulting firm. His professional activities consist of providing support for heavy construction projects in the United States, Mexico and China. He testified about his background in safety engineering and that he is a certified safety professional and familiar with projects involving construction sites, trenching and excavation. Coniglio testified that he has also been involved with the aggregate or gravel business and is familiar with the manufacture of gravel fill and how it is produced.

Coniglio opined that the -1" crusher run gravel was appropriate for use on this project. He testified that although the fill was wet, rock does not absorb water and the fact that it was wet did not make the fill defective and opined that the fill was not defective in any respect. Coniglio opined that the hole was clearly over five feet and required sheeting and shoring. However, he testified that if it had been used in this excavation, it would have been necessary to lift the sheeting out before they began the backfill operation. Further, Coniglio testified that there was no evidence that soil was falling off the wall into the gravel that claimant was tamping. As a result, Coniglio opined that the absence of sheeting and shoring was not a factor in causing claimant's injury. He opined that the accident was the result of the usual and customary danger associated with the operation of a tamping machine. It was Coniglio's opinion that the claimant's injury was caused by the saturated condition of the excavation from the water main break that caused the tamping machine to bring up water from below, which in turn caused the tamping machine to sink.

On cross-examination, Coniglio agreed that he did not view the specific gravel fill that went into the hole on the day of the accident and that there were only two witnesses at the hole who did, Ochal and claimant. Coniglio testified that if the gravel had a pudding consistency, this would be evidence of a high degree of clay and sand. However, he believed that any clay and sand was coming up with water from within the hole, which was caused by the operation of the tamping machine.

LAW AND ANALYSIS

Labor Law 200 is a codification of an owner or contractor's common-law duty to provide workers with a reasonably safe place to work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). These cases fall into two broad categories, namely, those which involve the manner in which the work is performed where it is established that the property owner or general contractor exercised supervisory control over the activity that brought about the injury (Comes v New York State Elec. and Gas Corp., 82 NY2d 876 [1993]); and those cases where a dangerous, defective or unsafe condition caused the claimant's accident and the property owner or general contractor created the condition or had actual or constructive notice of it (Bannister v LPCiminelli, Inc., 93 AD3d 1294 [4th Dept 2012]; see also Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139 [1st Dept 2012]; Aguilera v Pistilli Const. & Dev. Corp., 63 AD3d 763 [2d Dept 2009]; Cook v Orchard Park Estates, Inc., 73 AD3d 1263 [3d Dept 2010]).

In order to establish a Labor Law 200 or negligence cause of action based on the manner in which the work was performed, the claimant must establish that the property owner or general contractor exercised supervisory control, i.e., they had "the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). The courts have held that the requisite supervisory control requires that the owner or contractor have more than a mere presence at the work site or more than a mere authority to enforce general safety standards (Soshinsky v Cornell Univ., 268 AD2d 947 [3d Dept 2000], citing Moutray v Baron, 244 AD2d 618, 619 [3d Dept 1997], lv denied 91 NY2d 808 [1998]). In this regard, it has been held that an owner or contractor who exercises general supervisory authority at the work site to oversee the progress of the work or to inspect the work as it proceeds is not sufficient control to impose liability under Labor Law 200 (Alexandre v City of New York, 300 AD2d 263 [2d Dept 2002], citing Kvandal v Westminster Presbyt. Socy. of Buffalo, 254 AD2d 818 [4th Dept 1998]). The standard to be applied is whether the owner or contractor "gave anything more than general instructions as to what needed to be done, as opposed to how to do it" (Jones v County of Erie, 121 AD3d 1562, 1563 [4th Dept 2014], citing O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [1st Dept 2006 ], affd 7 NY3d 805 [2006]).

The claimant alleges that the State, through the OGS and its EIC, Mr. Westerman, supervised, directed and controlled claimant's employer with respect to the performance of the emergency contract to repair the water main break. The emergency contract (Exhibit 24) specified that the work to be performed by STC for OGS was to:

"[e]xcavate and repair underground water main. Removal and replacement of privacy fence may be required. Removal & Replacement of sidewalks and a portion of the adjacent asphalt roadway will be required. The leak is currently isolated. Waterline is ESTIMATED to be 8" diameter approx. 7' below ground."

Westerman testified that his responsibility as the EIC was to approve the work performed under this contract and to verify that the work was actually performed. He testified that he was only to observe the work and it was not required that he be constantly present during the entire process. Westerman testified that he was to be present at specific stages such as testing, examination of the pipe before it was covered up and to inspect the backfill.

Westerman testified that on the first day of the job, he observed the work being performed and took photographs as the work progressed (Exhibits 1-20). On the second day of the job, he testified that he typically inspected the fill before it was placed in the hole. In his deposition testimony, Westerman stated that he had approved the fill as he would not have otherwise signed off and approved the Daily Labor Reports (Exhibits 32, 33, 35). However, he also stated at his deposition that he had no recollection of anything that happened on the second day of the project. Westerman's deposition testimony conflicted with his trial testimony in that he testified at trial that he arrived late for work on the second day as he logged into his time sheet at 10:00 a.m. As such, I find that the proof at trial established that by 10:00 a.m., Ochal had already delivered the second load of fill and was placing it into the hole with the excavator, where it was being tamped by claimant (Exhibit C).(1) The claimant testified that Westerman exercised greater supervisory control, alleging that he dictated how the excavation and patching was to be performed and that he had to approve each step before Ochal and claimant could proceed. Claimant testified that on the first day of the job, Westerman met them at the work site and told him and Ochal what he wanted done. He testified that Westerman came out to the job site a second time that day to show him where the manhole was so that claimant could place a discharge hose to draw out the water from the hole. He also testified that he observed Westerman at the work site taking photographs. Claimant testified that once the leak in the pipe was located, the patch to repair it was provided to them by Westerman and that Ochal and Westerman observed him while he performed the repair. On the second day of the job, claimant testified that Westerman did not come to inspect their work or to observe them filling and tamping the hole. He testified that he did not know where Westerman was on the second day. Finally, claimant alleged that Westerman had previously told Ochal in his presence that OGS had gravel fill set aside for use on this job. This, Ochal and Westerman both denied.

Brammer, president of STC was never present at the job site. He testified based upon his prior experience performing contracts for the State that when STC employees arrive at the job site, they are directed by OGS where to go, what to do, how they want the job done, and what material and equipment to use. In addition, Brammer testified that for this emergency contract, OGS had directed STC what product to use as backfill. He testified that OGS had to approve each stage of the job as it was completed.

Ochal, the STC superintendent at the job site, testified that he had repaired broken water lines on five prior occasions and knew how to do this job. He testified that this required him to mark off the work site, dig the hole, and evaluate the soil to determine whether it required sheeting and shoring. Ochal testified that on the afternoon prior to beginning the job, he met with Westerman, who showed him the location of the water leak. When he returned on the first day of the job, Ochal removed sections of the fence, operated the excavator and dug the hole adjacent to the sidewalk to locate the broken water pipe. He testified that after the leak was located, he consulted with Westerman as to how he wanted the leak in the pipe repaired and that it was agreed that STC would install a repair clamp provided by the State. Ochal testified that claimant installed the clamp, they tested the pipe for leaks, and then ended the first day of work by adding stone or pea gravel underneath and on top of the pipe.

Ochal testified that Westerman had previously told him what type of fill he was to use to backfill the hole. He testified that on the second day of the project he went to Gernatt to obtain -1" crusher run gravel and that contrary to claimant's testimony, it was not located in a specific pile for use only by the State, but was located in a pile accessible to any customer. Ochal obtained five loads of fill and used the excavator to place the fill into the hole and claimant utilized the tamper to compact and level the fill. Ochal, like claimant, testified that he did not observe Westerman at the job site on that second and final day of the work.

Ochal's testimony of what occurred at the work site varied to some degree with the general statements made by Brammer that implied that the State had greater direction and control. Ochal's deposition testimony also indicated that he saw an OGS representative (Westerman) only four times during the two days of the job and that each time he came, the OGS representative stayed very briefly, for only five to ten minutes. He also testified at his deposition that the OGS representative inspected their work at the start, when they located the break, discussed how to repair the pipe and what material to use as backfill, and how STC was to leave the work site at the end of the day. Ochal, like claimant, testified that Westerman never appeared to observe or inspect their work on the second day of the job.

It is the finding of the Court, based upon the testimony of the witnesses and observing their demeanor while doing so that the proof failed to establish that the State asserted sufficient supervisory control to establish a violation of Labor Law 200. The proof at trial established that the State exercised no more than general supervisory authority at the work site to oversee the progress of the work or to inspect the work as it proceeded, which is insufficient to establish a violation of Labor Law 200 (Kvandal, supra). The Court finds that the State did not give "anything more than general instructions as to what needed to be done, as opposed to how to do it" (Jones, supra).

In the alternative, claimant alleges that the State violated Labor Law 200 in that they created a dangerous condition by requiring claimant's employer to use "dirty fill" and by failing to require sheeting and shoring. It is not disputed that Ochal was ordered by Westerman to utilize -1" crusher run gravel as backfill and that he obtained five loads of fill from Gernatt. It is also undisputed that there were only two people who observed and worked with the -1" crusher run gravel, namely, claimant and Ochal. Claimant characterized the fill in his testimony as "dirty fill", which he characterized as being composed of primarily clay and sand. He testified that when Ochal arrived with the first load of -1" crusher run gravel and tipped the dump truck to empty the load, water came running out of it. Claimant testified that the fill obtained by Ochal from Gernatt was not what they would usually use for backfilling and that when he began working with the tamper, he soon experienced problems with it sinking into the fill and it kept bringing water up from inside the hole. Claimant testified that he told Ochal about these problems and that Ochal went to the OGS trailer to speak with Westerman about the deficiencies in the fill and to request the ability to select a different fill.

On the other hand, Ochal testified that the -1" crusher run gravel he used was acceptable for this job. He did not observe any problems with the fill or believe that it was "dirty fill" or defective in any manner. Ochal denied claimant's allegation that he agreed that the fill was not appropriate or that claimant had told him of problems he was experiencing when tamping or that he ever asked Westerman if they could use a different fill.

Schmitz, Gernatt's quality control officer, testified that the -1" crusher run gravel was manufactured in accordance with standard procedures followed to grade fill types and was certified by the NYS Department of Transportation and Environmental Conservation and the NYS Thruway Authority. He also testified that prior to the date of claimant's accident, Gernatt had not received any complaints that this grade fill was "dirty fill."

Both parties expert witnesses, Casey and Coniglio, agreed that -1" crusher run gravel was appropriate for use with this excavation. Where the expert witnesses differed was whether the characteristics of this fill made it "dirty fill". Ochal testified that moisture in the fill can actually help compaction and although he agreed that there was more moisture in this fill than typically seen, it only slowed the work by 10 to 15% and did not otherwise affect the process. Casey disagreed with Ochal and testified that the pudding like consistency when tamped as described by claimant and the fact that it slowed the work by 10 to 15% indicated to him that this was, in fact, "dirty fill". Casey admitted that his opinion was based solely upon the description of the fill by claimant in his deposition testimony. The defendant's expert, Coniglio, opined that even if the fill utilized was wet, since rock does not absorb water, the mere fact that the fill was wet did not alone make it defective or "dirty fill." Unlike Casey, it was Coniglio's conclusion that the claimant's allegation that the fill had a pudding consistency when tamped was possible but not the result of utilizing "dirty fill." It was Coniglio's opinion that this was the natural result of the clay and sand in the fill mixing with water that was coming up from within the hole as claimant operated the tamping machine.

Upon listening to claimant, Westerman, Ochal, Brammer, Schmitz and the three expert witnesses, and evaluating their testimony and observing their demeanor while doing so, it is the finding of the Court that claimant failed to establish by a preponderance of the evidence that the fill was "dirty fill" and not appropriate for use as backfill. This finding is based in part, upon my determination that claimant's testimony was not credible. It is also based, in part, on the fact that no evidence was offered that Gernatt had previously supplied -1" crusher run gravel that was labeled as "dirty fill". I also did not find the testimony of claimant's experts to be convincing on this issue. As to Tasca, he equivocated on his opinion that the fill was "dirty fill" and agreed that Ochal was in a better position to evaluate the fill. I find that Ochal was a very credible witness and other than claimant, he was the only one who saw and worked with the fill. Ochal testified that the fill was appropriate for this project and was not defective or "dirty fill". He also never testified that the fill was too wet or that it had a pudding like consistency.

Casey identified three factors that led him to conclude that this was "dirty fill". He testified that two factors alleged by claimant were that the fill had a pudding like consistency when tamped and it was easy to put a shovel into it. The third factor was that Ochal testified that the wet fill took 10 to 15% longer to tamp. Casey never offered any explanation to justify why if it was easy to place a shovel in it that this made the fill, "dirty fill". As to the pudding like consistency statement, he did not explain why this factor made the fill "dirty fill". Coniglio offered a plausible, alternative explanation that this pudding consistency was not because the fill was dirty but was the result of water already in the hole coming up from below as the tamper vibrated and compacted the fill. Furthermore, Casey testified that he did not consider Ochal's testimony in forming his opinion, only claimant's. With respect to the additional 10 to 15% time it took to tamp, claimant testified that it took him approximately 20 minutes to tamp each six inch layer of fill, so an additional 10 to 15% would mean that dry fill would have been tamped in about 18 minutes. As a result, tamping took an additional two minutes per six inch level. Casey offered no basis for his conclusion that an additional two minutes of tamping per level led him to conclude that this was "dirty fill". Casey did not offer any reasoning as to how any of the three factors cited made the fill "dirty fill". As a result, I find that both Tasca's and Casey's opinions are speculative and unpersuasive to establish that the fill was, in fact, "dirty fill".

As previously stated, the Court finds that claimant's testimony concerning the circumstances of his accident and the events following were not credible. Claimant testified that he immediately notified Ochal upon his return from Gernatt that he had injured himself operating the tamping machine. Ochal denied that claimant ever advised him that he was injured at that time or at any later time that day. Neither Ochal nor Westerman testified that they were aware that claimant injured himself and neither prepared an accident report, which they both indicated would have been completed that very day if an accident had occurred. Furthermore, Brammer testified that he was the first to learn when claimant advised him that he was injured at this job, which was about five weeks later. However, Brammer testified that claimant stated to him that he was injured as a result of taking down and putting up the perimeter fence, never telling him what he testified to at trial concerning the tamping machine.

As a result, I do not find the evidence at trial was convincing that claimant was injured while tamping. The proof established that Ochal returned to the work site with the third load of fill at about 10:20 a.m. (Exhibit C). Claimant alleged that after he told Ochal he was injured, he was instructed to continue working so that they could complete the job and "then he could go home and rest for the weekend." If claimant's testimony was believed, then after he injured his left shoulder, left arm and lower back while tamping the second load of fill, he was then able to continue operating the 250 lb. tamping machine for the next two hours while he tamped three additional loads of fill with a pudding like consistency that caused the tamping machine to constantly sink. As claimant testified that each load took him approximately 20 minutes to complete and since the last load of fill would have arrived at approximately 12:00 p.m., claimant would not have completed tamping until 12:20 p.m. or later and then would then have assisted Ochal in moving the perimeter fence back into position and clearing the job site before they finished and they left Collins together.

Ochal testified that he first learned of claimant's injury after claimant reported it to Brammer. He testified that he was asked by Brammer if an accident had occurred with claimant at the Collins work site and he responded that he did not recall any accident occurring. During the course of the trial, I found both Brammer and Ochal to be credible witnesses. As such, I find that claimant did not notify Ochal that he had injured himself on February 10, 2012, that he first notified Brammer of a work related injury several weeks later, and that he informed Brammer that the injuries were caused as a result of moving the fence. Accordingly, I find that claimant failed to establish that a dangerous or unsafe condition existed that caused his injuries and as such, claimant has failed to establish a negligence cause of action or a Labor Law 200 violation.

The claimant also alleges that the State created a dangerous condition and violated Labor Law 200 by failing to utilize sheeting and shoring on the walls of the hole. This is based upon an alleged violation of Industrial Code regulation 12 NYCRR 23-4.2 (a), entitled, "Trench and area type excavations," which is the same regulation that forms the basis of claimant's cause of action alleging a violation of Labor Law 241 (6). As such, this allegation is properly asserted as the basis for a cause of action alleging a violation of Labor Law 241 (6) and not one alleging a violation of Labor Law 200.

The claimant asserts a cause of action alleging that the State violated Labor Law 241 (6), which imposes upon owners and general contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in construction, excavation or demolition work. A claimant alleging a violation of Labor Law 241 (6) must establish that there was a violation of a specific safety regulation promulgated by the Commissioner of the NYS Department of Labor and that each claimed violation was a proximate cause of his injury (Ross, supra at 501-502). Herein, the allegation is that the State's failure to utilize sheeting and shoring created a dangerous condition, which alleges a violation of 12 NYCRR 23-4.2 (a), entitled, "Trench and area type excavations."(2)

It has been held that 12 NYCRR 23-4.2 is specific enough to form the basis of a Labor Law 241 (6) cause of action (see Wells v British Am. Dev. Corp., 2 AD3d 1141 [3d Dept 2003]; Matter of Fischer v State of New York, 291 AD2d 815 [4th Dept 2002]). This Court previously ruled that regulation 23-4.2 (a) is sufficiently specific to form the basis of a Labor Law 241 (6) cause of action (Hubbard v State of New York, UID No. 2017-053-521[Ct Cl, Sampson, J., May 12, 2017]).

As stated above, I do not find that claimant's injuries resulted from his work inside the excavation. However, if his injuries were the result of tamping inside the hole, I would find that the lack of sheeting and shoring was not a factor in causing the claimant's injuries. In this regard, Brammer testified that the decision whether to use sheeting and shoring was made by Ochal and this determination was based upon how deep the hole would be and the quality of the soil. He also testified that OGS played no role in that decision. Ochal testified that he was familiar with the subject Industrial Code regulation and that he determined that sheeting and shoring was not necessary. He testified that the soil beneath the top soil was frozen and was a very cohesive mixture that was predominantly gravel with elements of clay and sand. He also testified that the side walls of the hole after excavation were stable. Westerman testified that sheeting and shoring was not required on either day of the project. He testified that although he did not test the soil to determine its content, he also believed that the soil surrounding the hole was cohesive. The parties' expert witnesses did not agree with Ochal and Westerman. All three expert witnesses agreed based upon their examination of the photo exhibits that the hole was deep enough to have required sheeting and shoring.

The Court finds that the subject hole created by the excavation required sheeting and shoring be placed as required by 12 NYCRR 23-4.2, but no violation of Labor Law 241 (6) occurred because the lack of sheeting and shoring was not a proximate cause of claimant's alleged accident. In this regard, Ochal testified that the walls of the excavation were stable and he did not witness any sloughing or soil falling off the walls into the hole. Casey testified that the primary purpose of shoring is to prevent the soil from the walls of the hole from caving in and harming the individual in the hole. He agreed that there was no evidence that claimant was struck by any soil falling off the walls. In addition, both Tasca and Casey agreed that claimant was not tamping any soil that had fallen from the walls when he was hurt and that sloughing of soil from the walls was not a factor in causing his injury. Coniglio also testified that there was no evidence that soil was falling off the walls into the gravel that claimant was tamping. It was Coniglio's opinion that the absence of sheeting and shoring was not a factor in causing claimant's injury. In fact, his uncontroverted testimony was that if shoring had been used, it would have been removed on the second day to enable the backfill operation to be accomplished. As such, it is the finding of the Court that the violation of 12 NYCRR 23-4.2 was not a proximate cause of claimant's alleged accident and that claimant failed to establish a violation of Labor Law 241 (6).

On the issue of liability, the Court finds that the State is not liable to claimant for his injuries. The Court further finds that claimant failed to establish by a preponderance of the evidence that his injuries resulted from either a violation of Labor Law 200 or Labor Law 241 (6).

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied. Accordingly, claim no. 123817 is hereby dismissed.

Let judgment be entered accordingly.

November 9, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. The Court finds that it was not possible that Westerman could have inspected the first two loads of fill before they were placed into the hole. By his own testimony, Westerman did not report to work at the OGS trailer until 10:00 a.m. and testified that it was approximately a 20 minute drive from the trailer to the job site. Accordingly, even if he immediately left the trailer after logging into his time sheet and went to the job site, he would have arrived no earlier than about 10:20 a.m. The Gernatt gravel scale tickets (Exhibit C) indicate that the first load of fill was picked up by Ochal at 8:44 a.m., that he returned to pick up the second load at 9:28 a.m., and then picked up a third load at 10:22 a.m. Ochal testified that it took him about 5-10 minutes to drive to/from Gernatt to the job site. As a result, Ochal would have returned to the job site with the second load of fill about 9:35 a.m. and then returned to Gernatt to pick up the third load at 10:22 a.m. Accordingly, at approximately10:20 a.m., the earliest that Westerman could possibly have arrived, Ochal was on his way back to the job site with the third load of fill. Claimant testified that his accident occurred during tamping of the second load of fill.

2.

"Whenever any person is required to work in or is lawfully frequenting any trench or excavation five feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part (rule). Such sheeting and shoring system shall be in contact with the sides or banks of such trench or excavation. A designated person shall carefully inspect such sheeting and shoring at least once each day and more frequently in the event of rain, the presence of additional surface or ground water from any source, excessive ground vibrations or whenever additional loads of any kind have been imposed near or adjacent to such excavation. Additional protection against slides and cave-ins shall be provided whenever necessary. Any trench or excavation in clay, sand, silt, loam or nonhomogenous soil which has sides or banks more than three feet but less than five feet in depth shall be provided with side or bank protection in compliance with this Part (rule). Such side or bank protection shall not be required where an employer maintains on file at the excavation site a dated certification in writing by a designated person who is qualified by training and experience indicating that such person has examined the sides and banks and has found them to be stable and not subject to failure or cave-in. Such certification shall be available for examination by the commissioner."