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Division of Occupational Safety and Health of Industrial Commission of v. Chuck Westenburg Concrete Contractors Inc.12/24/1998
in the OSHA excavation standard, which would allow them to recognize potential hazards. Finally, he stated that a competent person would have realized that the sloughing that was occurring along the west wall indicated that the entire west wall and its bank protec- tion system needed to be reevaluated.
Jesus Alfredo Robles (Robles) worked as a laborer for Westenburg Contractors in March 1993 at the TMC parking garage. His father, Robles, Sr., was his foreman. He testified that he had never worked in an excavation before and that the only safety training he had received consisted of instructions to wear goggles, to use work shoes, to work in pairs, and not to climb on the soil retention fence.
Before the accident in question, he had noted dirt sloughing off the bottom of the west wall into the footings near the elevator shaft. He stated that Westenburg Contractors' crew cleaned out the footings, but the following day more dirt had sloughed off into them again. Robles testified that at that point, his father told Westenburg Contractors' employees not to go near the west wall until he could speak to Roman about the falling dirt. Robles testified that on March 12, 1993, Roman instructed Robles, Sr. to prepare for a concrete pour. Robles, Sr. then sent two employees to do the preparatory work along the west wall, but he told them to avoid the elevator shaft. Robles testified that although the two employees were approximately thirty to forty feet from the area on the west wall where the sloughing had been occurring, when the wall fell it did so from north to south, in a domino effect, beginning where the prior sloughing had been and traveling to the area where the two employees were working. Robles stated that he helped dig out the buried worker, Rodolfo De La Cruz, who was killed in the accident.
Robles, Sr. testified that in March 1993, he was Westenburg Contractors' working foreman at the TMC parking garage. He stated that he was responsible for approximately twenty employees on that site. He testified that he had worked for Westenburg Contractors for eleven years and had never had any training in soil classification, general workplace safety, or excavation safety.
Robles, Sr. testified that on March 10, 1993, the west wall had been sloughing into the elevator shaft footing on the north side of the elevator shaft. He stated that he reported to Roman that sand was running into the footing, and he could not keep it cleaned out. He testified that Roman told him to get his crew out of that area. Roman then tried to stop the sand by setting plywood forms and pouring concrete slurry over the area. Robles, Sr. stated that the forms broke, but the concrete and forms in the footing made it difficult to see where the sand had been running.
Robles, Sr. testified that on the morning of March 12, 1993, Roman attended a contract meeting with Tom Roof, Chuck Westenburg, and several others. Immediately after that meeting, Roman told him that a concrete pour had to be performed that day and to place bulkheads on either side of the elevator shaft footing. Robles, Sr. stated that he went to the west wall with De La Cruz and George Vega (Vega) and did a visual inspection of the wall to see if any soil was running out from under the soil protection fence. He testified that the wall looked solid, so he left De La Cruz and Vega to place the bulkheads. Shortly there- after, approximately thirty-five feet of the three-hundred foot west wall collapsed killing De La Cruz.
Robles, Sr. testified that he was not familiar with the "competent person" requirement. He stated that it was not his job as a subcontractor to inspect the jobsite daily. Further, he had no
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