Abstract: On August 9, 2010, Employee #1 was walking along a path that was 26 inches to 36 inches wide. The path was between the left track of an excavator and a cutaway portion of a hillside that was 36 inches to 39 inches high. While Employee #1 was in this area, the excavator operator used a Daewoo excavator (Model Number SL 340 LC-V) to take a shovel load of soil from the area being excavated. As the operator swung the shovel and superstructure to his right, the swinging superstructure struck Employee #1. He was knocked against the side of the hill, eventually struck the top of his head, and fell on the excavator track that was in contact with the ground. The excavator's tracks had been stationary for approximately 45 minutes at the time of the accident. Employee #1 was killed. No barricade was erected around the excavator to prevent employees from entering the swing radius area, where they could be struck by the swinging superstructure. The employer did not have a rule requiring that such a barricade be erected.