A construction firm involved in a fatal 2016 trench collapse in Boise has decided not to fight findings that its negligence caused its workers’ deaths.
The collapse near the corner of Hill Road and Gary Lane killed two workers and badly injured a third, all employed by Hard Rock Construction. The company’s hands-off approach to worker safety and its rush to get the work done to avoid fines both played a role in the incident, according to a report by the U.S. Occupational Safety and Health Administration.
OSHA earlier proposed fining Hard Rock $77,319 for its “willful” failure to protect its employees. The company initially appealed OSHA’s results, but dropped the matter effective March 21. The reason why is unclear; Hard Rock’s lawyer did not respond to a message this week.
The OSHA report, obtained by the Statesman, shows that local inspectors who visited the site noticed a lack of safety equipment hours before the collapse.
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In addition, federal records show the U.S. Attorney’s Office considered bringing criminal charges over the incident. The office this week declined to comment on whether it is still reviewing the case for prosecution, or has finished its review and decided not to charge anyone with a crime.
The widow and three children of one of the men killed in the collapse are now suing the city of Boise, state agencies, Hard Rock and French Homes, the company that hired Hard Rock to dig the trenches as part of a residential construction project.
An employee for the Ada County Highway District arrived at the trench work site in the early afternoon of May 3, 2016. He’d gotten a call from Rob Haddock, a co-owner of Hard Rock, the day before. Haddock said there were delays getting started on the trench work — which was supposed to be done only between 9 a.m. and 4 p.m.
The ACHD employee told Haddock they could work as late as 5 p.m. without getting penalized. The ACHD rule was to fine contractors $500 for every hour they worked past their approved timeframe, then $125 every 15 minutes after that.
“ACHD’s jurisdiction is everything above ground, and the city inspector is everything below,” the OSHA report said.
At the site, one of the workers told the ACHD employee that he’d expected to dig 6 feet down, but “now he is at 12 feet,” the report said. “I looked in the trench and saw the walls were nearly vertical, but it looked very clean, and no one was working in the hole when I was present,” the ACHD employee told OSHA.
A Boise city inspector then arrived. The ACHD worker told OSHA “he informed the city inspector on his way off the job that the trench is deep — guessing 12 foot — and mentioned that they did not have protective measures in place; adding that he can’t enforce safety with contractors because he is not an OSHA inspector, and it is not policy for ACHD to turn in contractors.”
ACHD’s general counsel told the Statesman this week that the agency “has no responsibility when it encounters obvious OSHA violations. ... Nothing prevents us from suggesting that the contractor fix the violation, but we can’t do anything to enforce it.”
The city inspector arrived at the site about 1:30 p.m. to inspect the sewer, according to OSHA’s report. He was there for about an hour.
“I’ve worked with [one of the Hard Rock employees] before, two to three weeks prior” on another sewer project, the city inspector told OSHA. The trench on that project was about seven feet deep, “and he didn’t use a shield in that one either, but I did see a six- to eight-foot step ladder on the job site.”
Before the city inspector left, Dan French of French Homes also arrived at the work site, saying “he stopped by simply out of curiosity,” the inspector told OSHA.
About three hours later, at 5:36 p.m., Boise firefighters got an emergency call and went out to the work site, where they found the collapsed trench that had buried three men.
The ‘employees are the experts’
Hard Rock co-owners Dave Callister and Rob Haddock told OSHA that they hire employees who know how to do excavation.
The “employees are the experts,” they said, telling OSHA that they provided trench shields to use as protection against a collapse, but left it up to employees to decide whether to use them.
In a fall 2016 interview with the Statesman, Callister said foreman Bert Smith Jr., who died in the collapse, removed a trench box from the site shortly beforehand. “Unfortunately, excavators get very comfortable because they do thousands of trenches that never move,” he said, lamenting the resulting “complacency.”
OSHA concluded the provided box would have been too small for the job.
“The employer is taking the stance that they don’t know how to operate [trenching equipment], they don’t know excavation work, and they don’t train the employees — they learn from their employees,” the OSHA inspector wrote in the report.
Hard Rock had hired a “safety professional” two years earlier, who drafted a written safety and health program. “[T]he company believed him to be too forceful and did not want to pay him for the extra work it takes to enforce safety,” the OSHA inspector wrote.
Lawsuit against city, state, companies
Smith’s widow and three children are now suing Hard Rock, Haddock individually, French Homes, the Idaho Division of Building Safety and Public Works Contractors Licensing Board, the city of Boise and the Boise Public Works Department.
Their lawsuit mirrors the OSHA report with regard to Hard Rock’s actions.
Smith and the children allege wrongful death and negligence. They say the government agencies are to blame for giving out licenses and permits to the company for the project, and the private parties are to blame for putting Smith in harm’s way.
The defendants have all responded in court, denying the claims and/or saying they weren’t filed correctly.
Attorneys or spokespeople for the agencies, the private companies and Smith’s family did not respond to messages from the Statesman.