Company whose worker died in trench had earlier safety violations

Credit: DaytonDailyNews

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Sugarcreek Township Trench Collapse

Credit: DaytonDailyNews

The man who died Saturday in a trench collapse at a home construction site in Sugarcreek Twp. worked for a company that federal records show has been fined in the past for trench-related safety violations and has a case pending from January.

A technical rescue crew comprised of area firefighters recovered the body of Dalbert Burton, 43, of Union Twp., Miami County, from a deep trench at a home under construction in the Landings at Sugarcreek subdivision off Upper Bellbrook Road.

RELATED: Worker dies in trench collapse at Sugarcreek Twp. construction site

Burton was working for Payne Enterprises, a Dayton-based contractor that has been cited for safety violations in 2017, 2018 and in January of this year, according to the U.S. Department of Labor Occupational Safety and Health Administration.

Payne Enterprises paid $18,276 in fines from the citations in 2017 and 2018, a settlement amount from the initial penalties that totaled $36,552, according to the records. A third safety violation was filed Jan. 14, and that case remains open.

Payne’s owner Rick Westendorf declined to comment for this story. Messages seeking comment from the developer on the project, Cincinnati-based Inverness Group, were not returned.

RELATED: More than 150 people tried to save man who died in Warren County trench

Because of the past violations, Thurman Wenzl, a workplace safety advocate with the Cincinnati Interfaith Workers Center, wrote a letter to Greene County Prosecutor Stephen Haller requesting that criminal charges be filed against the employer and Inverness Group, the developer on the project.

“That employer, Payne Enterprises, knew very well the hazards involved and the protective measures necessary, but chose to recklessly disregard them,” Wenzl’s letter to Haller reads. “We need this sort of legal remedy to more forcefully persuade small employers to understand the risks that they may be placing their workers in.”

RELATED: $20M lawsuit filed over trench collapse death in Warren County

Saturday’s incident is the third fatal trench-collapse incident in the area since 2016.

A $20 million lawsuit has been filed against Ryan Homes and various contractors on behalf of the estate of 25-year-old Zachary Hess, who died in December 2017 in a trench collapse at a residential development in Morrow, Warren County.

The widow of 33-year-old James B. Rogers, who was killed in June 2016 when a trench collapsed at a home construction site in Washington Twp., recently was awarded a workers compensation settlement, according to Ohio Industrial Commission records. Case records show the owner of the company had no defense for violating specific trench safety codes.

Two Oakwood workers survived a trench collapse in March 2018, and the city was cited for two violations in the incident.

RELATED: ‘It’s getting deep’ man texted before death in trench

The attorney representing Rogers’ estate, Craig Matthews, said the family was relieved that the government’s investigation confirmed their beliefs that safety measures were not in place.

“A trench box should have been in place. If it had been, James would be alive today,” Matthews said. “And if people had heeded the warning from the lawsuit the family filed, the two subsequent deaths likely would have been avoided.”

The civil lawsuit filed on behalf of Rogers’ estate has been delayed by bankruptcy cases.

RELATED: Company will contest OSHA findings in fatal trench collapse

Dalbert Burton’s wife Angel and their three children were at the scene Saturday after emergency crews responded. The family said he was working at the site alone.

“This isn’t standard. There’s always supposed to be two people when you go below the ground,” said the oldest son, Cody Burton.

U.S. Department of Labor spokesman Scott Allen said OSHA has six months to investigate, issue citations and propose penalties, if workplace safety violations are found from Saturday’s incident.

No further information will be released until the investigation is complete, Allen said.

About 25 workers are killed each year across the nation from trench-related accidents, according to the Laborers’ Health & Safety Fund of North America.

“The main reason trenches collapse is that they are not properly protected,” according to LHSFNA. “Although trench and excavation work can be very dangerous, injuries and fatalities are completely preventable.”

Trench-related fatalities by the numbers

25: Average number of workers killed in trenches nationally every year.

75: Percent of trench-related deaths that occur at residential worksites

42: Percent of those killed who worked for companies with fewer than 10 employees.

48: Trench deaths in 2003, the highest number on record.

Source: Laborers’ Health and Safety Fund of North America

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