Attorneys for the relatives of two immigrant workers killed when a trench they were digging collapsed on them near Jackson last September filed a lawsuit today alleging the men’s employer, Jamie Mackay, and his company, Fireside Resorts, caused the two deaths.
The complaint, filed this morning in Teton County District Court, alleges Juan Baez Sanchez and his friend and coworker Victoriano Garcia Perez were “needlessly killed” after Mackay put the men to work digging a 12-foot-deep and 41-foot-long trench to hold a drain pipe for a guest house.
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“Their deaths were entirely preventable and caused by dangerous work conditions and a complete and abject failure to provide reasonably safe methods and reasonably safe protection for the kind of work they were hired to perform,” the complaint reads.
Though both Mackay and his company are named as defendants in the lawsuit, the complaint alleges the blame rests squarely on the owner’s shoulders: “Mackay’s failures and negligence caused these deaths,” it says.
Mackay is a local resident who grew up in Jackson and made a living and a name for himself in the area’s high-priced real estate development market. Mackay is president of Fireside Resort, a business entity with an address in Wilson, according to the civil suit.
The complaint comes on behalf of Baez Sanchez’s sister-in-law Isabel Baez, and Rick Sanchez, an attorney who a Teton County judge appointed as a representative for Garcia Perez’s beneficiaries. Baez Sanchez was 42 at the time of his death. Garcia Perez was 56, according to the complaint.
The collapsed trench and partially buried body of Baez Sanchez was discovered by a delivery driver on the morning of Sept. 28, 2018. It took eight hours for first responders to excavate the men’s bodies. Teton County Coroner Dr. Brent Blue concluded they died compression asphyxiation, the complaint says — essentially suffocation under the weight of a crushing outside force.
The men’s relatives are represented by lawyers from three different firms. Patrick Crank, a Cheyenne lawyer and former Wyoming Attorney General, is one. Elizabeth Trefonas from Trefonas Law, a Jackson-based law firm that works in immigration cases, is also representing the plaintiffs. The two join Mark Aronowitz of Jackson-based Lawyers and Advocates for Wyoming, a nonprofit law firm founded by famed trial lawyer Gerry Spence.
Crank declined to comment on the case. Neither Aronowitz nor Trefonas responded to messages left at their offices by press time.
Mackay is represented by George Santini, also of Cheyenne and a partner in the law firm Ross-Santini. A woman who answered the phone at Santini’s office said he had no comment.
In addition to attorneys fees and the costs of the litigation, the plaintiffs are asking for damages in a yet unstated amount. The complaint says financial damages to be laid out at trial will include past and future lost income of the two dead men, funeral costs, and “loss of future companionship, society and comfort.”
The complaint also asks the judge to levy punitive damages against Mackay and Fireside, “to punish Defendants for willful and wanton misconduct so egregious that it killed two beloved and hard working men who provided significant financial and emotional support to their families.”
A cover sheet in the case says the amount of money “in controversy” is $1 million plus for each of the two plaintiffs.
Hired under the table?
Garcia Perez was an employee at Firesides Resorts, according to the complaint, while Baez Sanchez was paid in cash for his work on the construction site.
The complaint quotes text messages allegedly between Baez Sanchez and Mackay in which the laborer sends Mackay the hours he’s worked and later asks when he’ll get a check. In other text messages, Mackay guides the men’s work, the suit alleges. In the complaint, lawyers for the plaintiffs allege those texts are evidence Mackay was directing the project.
“Mackay, via text messages to Mr. Baez Sanchez, continuously gave orders, directions and exercised control over the work being performed by Mr. Baez Sanchez and Mr. Garcia Perez,” the complaint reads.
The complaint also quotes a cryptic text, allegedly from Mackay to Baez Sanchez, one month before the trench collapsed and killed the men, telling them to “Keep working regardless of what anyone says.”
That text, which was written into the complaint without additional context, came August 26, one day after Mackay told Baez Sanchez to begin “hand digging” a trench, the suit alleges.
In an article published in January, a former contractor on the property told the Jackson Hole News&Guide he had refused the trench-digging job. “I told my boss I’m not doing it. It’s not safe,” Troy Black said, according to the newspaper story. “The hole’s going to be too deep.”.
According to Black, Wyoming OSHA, and now the complaint filed today, the trench was unsafe because of its depth and because it was dug in unstable soil and without proper safety precautions.
OSHA cited Fireside Resort alleging five “serious” safety violations after the agency investigated the incident. The alleged violations included failing to create a proper exit from the trench or bulwark the trench against collapsing, failing to provide head protection, failing to pile the removed dirt at least two feet from the trench’s edge and failing to have a “competent person” make daily inspections.
The proposed fines from OSHA totaled $10,532, but the case remains open, meaning it is subject to negotiation. Records appear to indicate that fine has not been paid.
The lawsuit makes more allegations against Mackay. It says he did not have proper permits for the trenching work and violated a Teton County grading permit with the amount of dirt he was bringing in to the site.