The Occupational Safety and Health Administration (OSHA) completed its 6-month long investigation into a construction worker's death on Tuesday, fining two construction companies more than $40,000.
Fernando Martinez, 51, was digging a trench with another worker at the site of a new car dealership in El Cajon in early April when the wall collapsed onto the pair. It was estimated to weigh between 5,000 to 6,000 pounds. One worker managed to escape and suffered non-life-threatening injuries. Martinez died at the scene.
On Tuesday, OSHA found Kunzik & Sara Construction, the company in the middle of a legal battle with the family of Martinez, had three violations. It claimed Kunzik & Sara Construction failed to establish, implement, and maintain a heat illness plan. It also claims the company failed to provide stability to adjacent structures.
"Prior to and during the course of the investigation, the employer did not provide support systems such as shoring or bracing for the protection of employees where stability of an adjoining wall was endangered by excavation operations," OSHA wrote. "As a result, on or about April 3, 2017, two employees of a subcontractor were seriously injured, one fatally, when the approximately eight (8) foot tall concrete block wall fell on them after the stability of the wall was compromised when a trench was dug next to and below the footing of the existing wall."
OSHA went on to cite Kunzik & Sara for failing to prevent injury and illness and fining the company a total of $41,150.
Martinez' family filed a lawsuit against Kunzik & Sara Construction Inc. in late June, claiming the corporation was negligent, and that the family has suffered emotional and financial damage. It's charging the company with negligence, "willful failure to warn," and "dangerous condition of public property."
In response to the complaint, Kunzik & Sara Construction denied all allegations, claiming the family has not been financially damaged, that the family failed to state facts sufficient to constitute any cause of action, and that the family "failed to mitigate" damages.
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The company’s response was filed nearly two months after the family filed litigation, on Aug. 18.
Southland Paving, the sub-contractor, is currently not facing any litigation with the Martinez family.
OSHA did, however, issue seven citations to Southland Paving. Of those, OSHA claims Southland failed to prevent injury and illness, did not have an Emergency Services Plan, and failed to remove employees from a hazardous area.
"Prior to and during the course of the investigation, exposed employees were not removed from the hazardous area when the competent person found evidence of hazardous condition after the area next to a concrete block wall was excavated,” OSHA wrote.
OSHA also said Southland Paving failed to correct the unsafe condition and remove all exposed personnel from the area "due to an imminent hazard." OSHA then fined Southland $45,825.
NBC 7 spoke with Mike Rubell, a Compliance Specialist for Safety Compliance Institute that Kunzik & Sara hired.
"At this time, Kunzik & Sara has appealed all of the citations listed in the OSHA report," Rubell said. "Because of the appeal, we cannot comment further at this time."
Southland Paving told NBC 7 it has no comment at this time.
It is unclear when the next court proceeding will be between the Martinez family and Kunzik & Sara Construction.
The family is asking for compensation, with no set amount.
