When a trench collapses, everyone asks how deep it was. The better question is who was allowed to say no. Federal law requires every excavation to have someone with the knowledge to see a cave-in coming and the power to stop the work before it comes. The regulation gives that person a two-word title, and in a trench case those two words are often the whole case.
Competent person. OSHA defines the role in one sentence with two halves: someone “capable of identifying existing and predictable hazards” in the surroundings or the working conditions, “and who has authorization to take prompt corrective measures to eliminate them” (29 CFR 1926.650). Knowledge and authority. A foreman who can read soil but cannot stop the job is not one. Neither is a supervisor who can stop the job but cannot read the soil. The name on a safety plan is a claim; the definition is the test.
What the competent person enforces. The Trench explains why a wall of soil kills and why the law draws its line at five feet, where a protective system becomes mandatory: slope the walls, shore them, or shield the crew (29 CFR 1926.652). The competent person is how that line is held on the ground, day after day. The rule requires daily inspections of the excavation, the ground around it and the protective system “prior to the start of work and as needed throughout the shift,” and again “after every rainstorm or other hazard increasing occurrence”; when an inspection shows signs of a possible cave-in, “exposed employees shall be removed from the hazardous area” until it is made safe (29 CFR 1926.651(k)).
Around that duty sit rules a jury can check with a tape measure: a ladder, stairway or ramp within 25 feet of every worker in a trench four feet deep or more, and the dug-out soil, materials and equipment kept at least two feet back from the edge or held back by retaining devices (1926.651(c) and (j)); a protective system designed by a registered professional engineer once a trench reaches 20 feet (OSHA trench safety card); and the buried utilities located before the first bucket goes in (1926.651(b)), which in Texas means notifying the one-call center (811) at least 48 hours ahead, not counting weekends and holidays (Utilities Code Section 251.151). A bucket that finds a gas line is a different catastrophe, the one Odorant is about. And a worker ordered into an unprotected trench has a narrow federal right to refuse; OSHA spells out the conditions, and a worker punished for refusing has 30 days to complain to OSHA (OSHA).
The numbers. The agency does not treat trench deaths as bad luck. In the first half of 2022, 22 workers died in trenching and excavation work, more than the 15 in all of 2021. OSHA announced more than a thousand trench inspections nationwide, and the head of the agency put the point in a sentence he did not soften: “Every one of these tragedies could have been prevented had employers complied with OSHA standards” (OSHA, July 14, 2022).
Why the case turns on it. In a lawsuit over a collapse, the competent person is where the paperwork and the chain of command meet. Who was designated, what training they had, who paid them, and who could overrule them decides who answers. Texas holds a general contractor that keeps control over part of a subcontractor’s work to a duty to exercise that control with reasonable care; the Texas Supreme Court adopted the rule for one who “retains the control of any part of the work” in a case that began, fittingly, with a superintendent ordering piles of dirt moved on a job site (Redinger v. Living, Inc.). So a general contractor whose superintendent ran the dig can be a defendant in its own right, unless the coverage it bought made it the worker’s employer for workers’ compensation purposes, which is the question Statutory Employer answers. When the defendant owns the property, Chapter 95 sets the bar at control and actual knowledge. And when the worker’s own employer carried workers’ compensation, the door The Trench describes for a death caused by gross negligence stays open; when the employer opted out, the worker can sue it directly (non-subscriber injuries).
What to preserve. Who was named the competent person and what training that person had, any daily inspection notes the company kept, the excavation plan, the utility locate ticket, photographs and measurements of the trench, and whether a trench box was on the site or on a truck across town. What the company wrote down, and what it did not, becomes part of the case, which is why Inspection calls an inspection a decision, not a document, and why Spoliation matters from the first day.
A trench is only as safe as the person who is allowed to stop the work. When no one was, the collapse was not an accident. It was the gap the rule was written to close.
The rules: 29 CFR 1926.650 (definitions), 1926.651 (specific excavation requirements), 1926.652 (protective systems); OSHA, Trench Safety card; OSHA national news release, July 14, 2022; OSHA, Workers’ Right to Refuse Dangerous Work. The law: Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985); Tex. Util. Code § 251.151. General information, not legal advice.
