Employer sentenced to 10 months in jail for trench death
An emotional hours-long sentencing hearing for an employer charged in the death of one of his workers ended with the employer receiving 10 months in jail and three years of probation.
On Wednesday, Judge Nicholas Catanzarite sentenced Bryan D. Johnson, 52, for two counts of reckless endangerment and one count of third-degree assault for the death of Rosario “Chayo” Martinez-Lopez, who died in a 2018 trench collapse in Granby. The initial felony manslaughter charge was dismissed under Johnson’s plea agreement.
In total, Johnson received 300 days in jail, three years of probation and 100 hours of community service. He also must make a $2,000 donation, split between Habitat for Humanity Grand County and Grand County Search and Rescue, and he will be required to attend Workers’ Memorial Day and worker safety seminars.
“This gives me no satisfaction and no pleasure at all, but I think under the circumstances we cannot have contractors putting people at serious risk, holding out to the public that they are licensed and able to do these things safely when they’re not,” Catanzarite said.
Catanzarite issued the sentence following testimony from two representatives of the Occupational Safety and Health Administration (OSHA), Johnson’s wife, Johnson’s sister and Johnson himself.
Testimony from OSHA indicated that Johnson was especially careless with safety measures at his worksite and had egregious violations, including not providing hardhats or protection equipment, for which the worksite received 14 OSHA citations.
Jennifer Casey, the trial attorney who represented OSHA in the agency’s proceedings with Johnson, argued that Johnson disregarded safety requirements because his project was behind schedule.
Additionally, Casey said Johnson had been warned several times that his worksite, and specifically the trench, was unsafe, and that he didn’t follow his company’s own guidelines, let alone OSHA’s requirements.
“There’s no indication that (Johnson) relied on his own policies and procedures or implemented any of them in the course of digging the two trenches,” Casey said. “Our investigation affirmatively demonstrated that Mr. Johnson had every reason to know that the activities he was engaged in were hazardous.”
Martinez had been hired for carpentry and drywalling, and had no experience in trenching. He was not provided training on how to do so, Casey said. Under the OSHA settlement, Johnson paid about $40,000 in fines for the violations.
Both OSHA representatives and 14th Judicial District Chief Deputy Attorney Kathryn Dowdell said they supported the full 14 months in jail allowed under the plea agreement.
“In most cases, OSHA and the industry sees that a company continues to operate and secure lucrative contracts, even with safety and health violations on its record,” Casey said. “That is why criminal prosecution is critical … A citation may not change behavior, but incarceration can.”
Previous court proceedings found that Johnson was on site at the time of the tench collapse and had never dug a trench, let alone one as deep or as long as the one on the development site. He also wasn’t trained on how to do so.
Johnson’s attorney, Kevin McGreevy, tried unsuccessfully to argue that the OSHA’s testimony should be dismissed because he wasn’t able to cross-examine the OSHA representatives, but Catanzarite disagreed, saying the information was relevant and appropriate for the hearing.
McGreevy disagreed with OSHA’s characterization of Johnson, arguing Johnson built the trench similarly to one that had been built in the area and believed it was safe. He added that Johnson had no history of previous OSHA violations or criminal behavior before asking for the sentence to be only the probation time.
“Johnson replicated the trench pretty accurately based on the prior trench he had seen, and it was met with disastrous consequences,” McGreevy said. “This was not a repeat trench violation … There have also been factual disputes about the warnings and the degree of the warnings, in how they were communicated to Mr. Johnson, (which) did not really convey the dire nature (of the trench).”
McGreevy emphasized Johnson’s cooperation with the OSHA investigation and him taking responsibility for Martinez’s death.
Johnson’s wife and sister also spoke on his behalf, tearing up as they shared how Martinez’s death affected Johnson, one of Martinez’s close friends, and described Johnson as kind, hardworking and trustworthy.
During his comments, Johnson said how heartbroken he is over the loss of a good friend and added that he’s taken steps to ensure this will never happen again, including taking OSHA seminars on trenching and worksite safety.
“I understand now the accident was completely avoidable and it was my responsibility to see that it was avoided,” Johnson said. “There will never be a day that I don’t think about all the different ways that day should have gone.”
In addition to Johnson’s family, the court received numerous letters from friends, clients and Martinez’s family supporting Johnson and asking for a lesser court sentence. Martinez’s family opposed the prosecution of Johnson and didn’t want him to get any jail time.
According to the Martinez family, Johnson paid for funeral expenses, an insurance payout and more following Martinez’s death, as well as grieved with the family.
During sentencing, Catanzarite said there have not been any other similar cases that have been prosecuted in Colorado and that the case had a very odd history.
Johnson had worked out an earlier plea agreement that would have had him plead guilty to criminally negligent homicide and reckless endangerment with a possible sentence of four years of supervised probation and up to 90 days in jail, as well as other stipulations.
That deal was rejected in December by Grand County District Court Judge Mary Hoak for including a deferred prison sentence.
Ultimately, Catanzarite sentenced Johnson to 60 days in jail for assault and 240 days in jail for two counts of reckless endangerment, while allowing for the possibility of work release. Johnson must report to county jail before Jan. 2.
“I don’t think you wanted Mr. Martinez to die in that trench and I don’t think you had any intentions for that to happen,” he said. “I don’t have any doubts this will not happen again in the future … But someone died here and that’s a big deal. This does need to send a message.”
In a statement following sentencing, Dowdell said the sentence balanced the difficulties of the case while sending an appropriate message.
“We thank the court for giving the victim’s family some sense of closure and appreciating the nuanced nature of this ground-breaking prosecution,” Dowdell said. “Ten months in the county jail sends the message that criminal prosecution and loss of one’s liberty will be a consequence if worker safety is not a priority and that cutting corners to make a profit is unacceptable.”
A statement from McGreevy reiterated much of what was said in court.
“Bryan Johnson and his family continue to mourn the loss of his friend and co-worker Rosario Martinez,” McGreevy said. “The information provided to the judge at sentencing reflected Mr. Johnson’s positive character, from family, friends, church, and clients. Since June of 2018, Mr. Johnson has not been cited for any OSHA violations.”
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