Families of trench collapse victims find few answers to “Why?”

Editor’s Note: This series of articles examines the business and human costs of trench-collapse fatalities in the United States. Click here to see the full set of articles in this series.

Families find few answers to “why?”

By Marcia Gruver Doyle

“Contractors tell me trench protection is time consuming and it costs money. I don’t understand it. That extra bit of time and money should be worth it to save a life.” – Cheryl Spencer

“When I go to bed, that side of the bed is empty. When I eat meals, I have the wall for an eating companion. I don’t do what I used to do, because I have to do it alone.”

— Cheryl Spencer

Editor’s note: This story has been updated to reflect mid-June OSHA penalties and correct the depth of a collapsed trench.

“I wanted to go to the site, and no one would take me.”

But Cheryl Spencer insisted.

She was there behind the police tape when first responders recovered her husband, Jimmy Dale Spencer, at 4:35 p.m. on March 21, 2016, she says. The 61-year-old died in an 8-foot trench in Alliance, Nebraska.

The morning of his death, Jimmy Spencer met with Shaun Houchin, his employer and owner of Clau-Chin Construction, and with Larry Kessler, owner of excavating contractor Larry Kessler Construction, to go over site soil conditions, according to the OSHA investigation.

Houchin had owned the lot for several years and said he believed it was virgin soil.

He also thought there was more clay in the area than was usual for the region. Houchin said the group felt it was safe to proceed, according to the investigation.

Mike Harvey, Clau-Chin’s foreman, offered additional insight. He and Jimmy Spencer had talked about trenches before. “Spencer told him how dangerous trenches were and that you were never supposed to get into a trench where the walls went straight up,” Harvey told OSHA.

Later that day, Jimmy was bent over, face down, attempting to connect PVC pipe to a new house when one side of the trench collapsed on him, covering him with 5 feet of soil, according to Cheryl Spencer’s legal complaint against Clau-Chin and Larry Kessler Construction.

Life changed dramatically for Spencer after that March day.

“When I go to bed, that side of the bed is empty,” she says. “When I eat meals, I have the wall for an eating companion. I don’t do what I used to do, because I have to do it alone.” Jimmy Spencer’s death came two months before the couple were to celebrate their 40th anniversary.

What befuddles Spencer is the attitude of some of the contractors she still knows. Instead of her husband’s death sounding a giant alarm in the contracting community, “they tell me that things went back to the way they were,” she says.

“Contractors tell me trench protection is time consuming and it costs money, I don’t understand it. That extra bit of time and money should be worth it to save a life.”

“What the hell happened?”

Celebrating Jasmine Garcia’s high school graduation in May 2015 were Jimena, Alfredo, Jasmine and Jesus Garcia. Alfredo Garcia died in a trench collapse in November of that year.

“After they paid their fines and workman’s comp – to them, it was done.”

Jesus Garcia is talking about the death of his father, Alfredo Garcia, who died in a 6.4-foot-deep trench at the age of 47 on November 7, 2015. Garcia was an employee of Dan’s Excavating, Shelby Township, Michigan. After an initial $21,000 fine for three $7,000 citations, Michigan OSHA reduced two citations by 50 percent because of the company’s “prompt abatement efforts and the good faith it has shown” and issued no fine for the third citation. The total final fine: $7,000.

The family declined the company’s offer to pay for Alfredo’s funeral. “We didn’t know if that meant we couldn’t press charges later on,” Garcia says.

A naturalized American citizen, Alfredo was also a construction veteran. That is why his former foreman and family friend Robert “Bobby” Schmaus declares, “I just know in all the years he worked for me, he would know whether a trench was safe or not. I know he wouldn’t go into an unsafe trench.

“I want to know, what in the hell happened?”

So does Jesus Garcia, who pored over the documents he received from OSHA searching for answers. “It was a Saturday job and his first day with that crew and that supervisor,” he says. “Two people made it out when the trench collapsed, but the heavy clay got him and buried him between the waist and chest. There was nothing they could do.”

According to the Michigan Occupational Safety and Health Administration (MIOSHA) field narrative, one of six witnesses described the scene this way: “Alfredo was buried from the waist down, with the shovel handle wedging him against the north bank.” After the witness told someone to call 911, he said, “I personally jumped into the trench and rolled big chunks of clay off him. We pulled him up onto the top of the bank.” The Macomb County Medical Examiner’s office said the cause of death was multiple blunt traumatic injuries, according to the MIOSHA incident chronology.

MIOSHA’s responding Senior Safety Officer Jerry Zacharczuk noted in the incident chronology that he “asked if shoring or a trench box was used to protect the employees in the trench.” The answer: No. Zacharczuk also observed that the angle of repose on the trench was 71 degrees. “With this configuration of soil and type, it should have been 34 degrees,” he wrote.

In the aftermath of his father’s death, Garcia has had new responsibilities thrust upon him.

“I’m trying to take on the head-of-household role, and I don’t know how he did it,” says Garcia, who graduated this spring from Michigan State with a degree in electrical engineering. Compounding the family’s grief, a few months after Alfredo’s death, his daughter Jasmine suffered brain damage. “We’re in a kind of limbo,” Garcia says. “It feels like we’re in between places, not knowing what to do. Dad was the one who set the goals for us.”

Garcia says Alfredo’s construction friends tell him these tragedies happen too often. “But it shouldn’t have happened to Dad, because he was the safest guy on the work site,” he says.

Executives at Dan’s Excavating could not be reached for comment.

“They weren’t trained properly”

Zack Hess

With the on-screen name of “DirtDude,” 25-year-old Zachary David Hess regularly took Snapchat videos of the holes he dug for JK Excavating & Utilities, Mason, Ohio.

Including the one that took his life.

Three days after Christmas 2017, it took an estimated 150 first responders 11 hours to recover Hess’s body from a 16-foot hole in a Cincinnati suburb. His mother, Cindy Hess, is now on a mission to discover what led to his death.

“In my job, I figure out problems,” says the pharmaceutical executive. “I knew nothing about construction. I had to understand what was wrong in order to understand what was supposed to happen. I need to understand, because my son died.”

In January, she completed a 5-hour online excavation and trenching competent-person course. She’s visited the local OSHA office, bringing pictures of her son. “I wanted them to know who he was, that he wasn’t a number,” she says. And she told her story at an OSHA trench safety seminar in Cincinnati in April. This has led to further requests for her to speak at construction company and agency meetings.

Hess says the circumstances surrounding her son’s death were “a perfect storm.” Zach and a co-worker were alone performing a sewer tap, following up on work that began before Christmas when crews were unable to locate the utility. The problems continued from there, she says: The soil was unstable; the sewer tap was 2 feet underneath the house foundation instead of the usual 5 feet; there was water in the hole; the spoil piles were on the edge of the trench, and there was no ladder. A trench box was available, but it was too small and it wasn’t used.

Zach and his co-worker took turns digging out the trench. Zach, who Hess says had little experience with deep trenches, called up to his co-worker: “It’s got me in the right leg,” according to Hess. (The official OSHA report was still pending as of press time.)

Instead of immediately calling 911, Hess says, the co-worker tried to save Zach. He climbed out of the hole and got on an excavator, apparently in an effort to dig Zach out. The trench was steadily collapsing, and Zach became trapped up to his chest.

Finally, his co-worker called JK Excavating’s office and asked them to call 911. “He was buried up to his neck by the time the first responders got to the scene,” Hess says.

She waited through a bitterly cold night for the responders to recover her son’s body. “I couldn’t leave until he was out of the hole,” she says.

Hess has no illusions that the OSHA investigation, when it comes, will answer all her questions. “There are still so many unknowns,” she says.

As she reviews her son’s death, she focuses on the lack of training for both Zack and his co-worker. “It should be drilled into everyone’s head that the first thing you do is call 911,” she says. “I like Jerry,” she adds, referring to her son’s employer, Jerry Koller Jr., “but they weren’t trained properly.” Koller declined to comment.

“What were they blocking out?”

Cheryl Spencer paid for this digital billboard to be shown in Scottsbluff, Nebraska, the week of April 22, honoring her husband Jimmy Spencer and James Gabel, who died in a farm combine incident.

OSHA can take six months to release its investigation reports to families and even more time if the incident is complicated. Often, those reports come with redacted information. “A lot of things were blocked out,” Spencer says, especially information relating to the police report. “I wanted to know: what were they blocking out?”

She asked the Alliance, Nebraska, Police Department for its report. “We hit a brick wall.” She then went to regional authorities, wrote the state attorney general and requested materials through the Freedom of Information Act. Everyone said no, citing a Nebraska statute.

Spencer’s experience prompted a Lincoln, Nebraska-based organization to address the lack of transparency. “There was a law in Nebraska that a family could be denied a copy of law enforcement records,” says Tonya Ford, executive director of the United Support and Memorial for Workplace Fatalities.

The organization lobbied to amend the law so victims’ families could see these records. “The senators were amazed that it was even an issue,” Ford says. The amendment was signed by Nebraska Gov. Pete Ricketts on April 11. “It may be something small, but it’s important,” Ford says.

“There is nothing we could do”

Seated in the front row, Cindy Hess prepares to speak at an OSHA meeting in April. “I refuse to let my son be a statistic,” she told the audience. “There should be no fatalities for accidental cave-ins. This is never an accident. It is 100-percent preventable.”

Spencer, Garcia and Hess are in different places after the deaths of their loved ones.

Garcia says he took his father’s case to five different law firms in Michigan. All five rejected it. “The protections granted to companies in Michigan are so extensive that unless we were able to prove it was done on purpose or if there was [another] contractor on the jobsite, there is nothing we could do,” he says.

Lacking the financial means to pursue the case, Garcia adds, “Since the statute of limitations has past, we are left without any more legal recourse that I know of.”

Spencer and Hess still talk to Shaun Houchin and Jerry Koller, the presidents of the construction firms where their husband and son worked. Spencer filed a wrongful death complaint against three firms in July 2017. Hess says Koller knows she intends to file a suit as soon as OSHA completes its investigation. And, “I’ve asked the Warren County prosecutor to look into this as soon as the OSHA report is issued,” she says. In mid-June, OSHA fined JK Excavating $202,201 for the incident.

Hess also has a longer-term mission: to see Ohio pass a law modeled after Massachusetts’ 2009 “Jackie’s Law,” enacted after a 4-year-old died in an unsecured trench that collapsed in her family’s backyard. Under Jackie’s Law, among other things, contractors are required to get a permit from the local licensing authority before digging a trench. This permit details the trench location and anticipated dates of opening and closing the trench.

Spencer’s suit points out the potential liability of all contractors who are on site when a trench collapse occurs.

Because of workers’ compensation laws, a key to Spencer’s case will be the two co-defendants named in the suit in addition to Clau-Chin Construction, Jimmy’s employer. These are Larry Kessler Construction, which dug the trench, and Tony Mendes Excavating, which rented the backhoe to Larry Kessler Construction.

“The OSHA investigation said that the backhoe was a contributing factor to the cave-in,” Spencer says. “Larry was on the backhoe.”

OSHA fined excavating subcontractor Larry Kessler Construction $16,800, citing serious violations. Clau-Chin is currently paying a $24,800 OSHA penalty.

Spencer’s complaint alleges Kessler is a primary culprit in the incident. Kessler operated the backhoe on the job, and according to the complaint, “directed the actions, activities and performance of acts by Jimmy.”

The complaint also states that “Kessler never considered use of or need for any form of protective system in the trench,” and that “Kessler admitted that he knew that OSHA regulated construction means and methods and admitted that he violated the OSHA standards in this particular situation.”

“Jimmy Spencer was not my employee,” Larry Kessler said when contacted by Equipment World. “I have no employees. I was cited because they’re OSHA and they can do what they want.”

In addition, the complaint says Tony Mendes of Tony Mendes Excavating, which rented the backhoe to Kessler, “failed to supervise the use and operation of his excavating equipment” and did not assure that Kessler understood and followed trench safety procedures.

For the families, answers matter just as much as jury awards in working through these deaths. And they know their efforts won’t result in their fiercest wish: to restore their families.

“All of it sucks,” Hess says.