Yes. North Dakota’s workers’ compensation law almost always bars a lawsuit against your employer, but you can still sue other companies whose negligence helped cause the collapse. Depending on the job, that can include the general contractor, the project owner, an engineering firm, a utility, or the maker of a failed trench box. That claim depends on proof of who controlled the digging, who inspected the walls, and what the contracts said. Our North Dakota construction accident attorneys investigate those facts for injured workers and families.
Why Workers’ Comp Blocks One Lawsuit and Leaves Others Open
Workforce Safety and Insurance (WSI) runs North Dakota’s workers’ compensation system. Under N.D.C.C. §65-01-08, a worker whose employer paid into the WSI fund cannot sue that employer, or a coworker, for a work injury. The exceptions are narrow: an injury the employer meant to inflict (N.D.C.C. § 65-01-01.1), and certain coverage violations under chapter 65-09, such as being uninsured or willfully misstating payroll to WSI. The same protection covers a staffing agency and the client company that used its workers when either one secured WSI coverage.
Section 65-01-09 preserves claims against everyone else. When a work injury creates “in some person other than the organization a legal liability to pay damages,” the worker can collect WSI benefits and also “proceed at law to recover damages against such other person.” The organization is WSI. A laborer employed by an excavation subcontractor can draw WSI benefits and also sue a negligent general contractor or owner.
In Kutcka v. Gateway Building Systems, 2023 ND 91, a crane run by the general contractor’s employee injured one subcontractor worker and killed another. The North Dakota Supreme Court held the general contractor was not their employer under the workers’ comp law, so it had no immunity. The subcontractor had secured their WSI coverage. Our guide to third-party claims for North Dakota construction workers walks through that process.
Companies That Can Share Responsibility for a Cave-In
A trench collapse claim can reach:
- A general contractor that ran the site and directed how the trench was dug.
- A project owner, such as an energy company or developer, that kept control over the excavation work.
- Another subcontractor whose crew created the hazard, such as piling dirt or parking equipment at the trench edge.
- An engineering firm whose design or approval of the shoring or sloping plan was negligent.
- A utility or line-locating contractor whose negligence around a buried line contributed to the collapse.
- The manufacturer of a trench box or shoring system that failed.
Each of these companies answers for its employees’ negligence on the job or its defective product. When the excavation subcontractor’s crew made the mistake, North Dakota courts ask whether the general contractor or owner controlled that work.
The Control Question North Dakota Courts Ask
A company that hires an independent contractor ordinarily is not responsible for that contractor’s mistakes. The North Dakota Supreme Court restated that rule in Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445 (N.D. 1994), and recognized the main exception, called retained control. A general contractor or owner that keeps control over how part of the work is done owes the contractor’s workers a duty to use that control with reasonable care. That control can come from the contract or from conduct at the jobsite. Under Fleck, a general right to inspect progress, stop the job, or make suggestions the contractor is free to ignore is not enough.
The court had already applied that test to a trench death in Peterson v. City of Golden Valley, 308 N.W.2d 550 (N.D. 1981). A 17-year-old worker died when an unbraced sewer trench caved in while a protective cage for trench work sat unused at the site. The contract made the excavation contractor “solely responsible for the means, methods, techniques, sequences and procedures of construction,” and the contractor testified that he chose the methods and equipment. The court held that the city and its engineering firm owed the worker no duty, even though the family pointed to the engineers’ almost daily presence on the site.
A general contractor or owner is not responsible just because the excavation crew made a mistake. A general contractor or owner is not responsible just because the excavation crew made a mistake. To hold it responsible for that mistake, the worker needs proof that the general contractor or owner kept the right to control, or actually controlled, how the trench was dug, shored, or inspected, and that its failure to use that control with reasonable care helped cause the collapse. A superintendent who ordered the crew into an unprotected trench, or a contract giving the general contractor authority over excavation methods, can show retained control.
What the Federal Trench Rules Require
Under 29 C.F.R. §1926.652(a)(1), which covers most private employers in North Dakota but not city or state crews, each worker in an excavation must be protected from cave-ins by an adequate protective system, such as sloped or benched walls, shoring, or a trench box. The only exceptions are an excavation made entirely in stable rock, or one less than 5 feet deep where a competent person finds no sign of a potential cave-in. A competent person is someone on site who can recognize trench hazards and has the authority to fix them right away.
Whenever workers may be exposed, Section 1926.651(k) requires that person to inspect the trench before work starts, as needed during the shift, and after every rainstorm or other event that increases the hazard. When the competent person finds signs of a possible cave-in, a failing protective system, or another hazard, exposed workers must be removed until precautions make the area safe. The federal requirements for trench protective systems and OSHA’s trenching and excavation safety guidance lay out the full rules.
OSHA’s multi-employer citation policy, CPL 02-00-124, lets OSHA cite more than one employer on a shared worksite for the same hazard. Under 29 U.S.C. §653(b)(4), the OSH Act does not enlarge or diminish an employer’s legal liability for worker injuries. The OSHA file can still show who was supposed to inspect, and whether anyone did.
How Fault Is Divided When Several Companies Share Blame
North Dakota uses modified comparative fault. Under N.D.C.C. §32-03.2-02, the court reduces an injured worker’s award by the worker’s percentage of fault, and the worker recovers nothing only if that share is as great as everyone else’s combined. Each defendant pays only the part of the damages that matches its percentage of fault, unless companies acted together in the wrongful conduct, helped or encouraged it, or approved it for their own benefit.
When a party asks, the jury also assigns a percentage to each person who contributed to the injury, “whether or not a party,” and that includes the immune employer. A defendant can blame the employer’s crew, and the employer’s share is ordinarily money no defendant pays.
Evidence and Deadlines After a Trench Collapse
We work to preserve these records before the trench is backfilled and the site changes:
- The prime contract, the subcontracts, and the site safety plan.
- Daily inspection logs and the name of the designated competent person.
- Photos of the trench walls and protective system, plus the trench box model and manufacturer’s data.
- The OSHA inspection file and the names of every witness.
In North Dakota, a lawsuit generally starts when the summons is served on whoever is being sued, not when papers are filed with the court. Most injury lawsuits must be started within six years under N.D.C.C. §28-01-16(5). When a collapse kills a worker, the family’s wrongful death action must be started within two years of the death under §28-01-18(4).
A claim against a city or other local government follows a separate statute, with a three-year deadline to start the lawsuit, a $500,000 per-person damages cap, and added defenses (N.D.C.C. §§32-12.1-03 and 32-12.1-10). One of those defenses says a local government is not liable for an injury caused directly or indirectly by someone it does not employ, such as a contractor’s crew.
Workers’ comp also affects who controls the case. Under §65-01-09(2), if the injured worker does not sue within 60 days after the injury, WSI can file the lawsuit in the agency’s name as trustee for the worker. When the worker or family brings the suit instead, WSI’s share is generally limited to half of the damages recovered, up to the benefits it has paid or will pay. Unless the WSI director declines in writing to participate, WSI holds a lien on the recovery, and the statute bars reducing WSI’s share by settlement, compromise, or judgment, so we plan for it from the first week.
Talk to a North Dakota Construction Accident Attorney
Pringle & Herigstad, P.C. has represented injured North Dakotans since 1909. Families who lost someone in a cave-in can turn to our wrongful death attorneys for the same help. Contact us for a free consultation. We work on contingency, so you pay no attorneys’ fees unless we recover for you.