Teton County Prosecuting Attorney Erin Weisman will not file criminal charges against Wilson developer Jamie Mackay for the workplace deaths of Victoriano Garcia-Perez and Juan Baez-Sanchez.
She explained her decision in a July 22 letter to investigators.
“At this time, I have completed my review of all of the evidence in the above-mentioned case, as set forth in the investigative reports from the sheriff’s office and the Department of Workforce Services, and I do not find sufficient evidence to support the filing of criminal charges against Jamie Mackay,” Weisman wrote in the letter to the Teton County Sheriff’s Office and Wyoming Department of Workforce Services.
Weisman added that she would be open to reevaluating the case if more evidence becomes available.
“If you disagree with my conclusion, or should any additional evidence become available at a later date, please contact me at your earliest convenience so we may discuss,” Weisman wrote to Teton County Sheriff’s Detective Dave Hodges and Wyoming Department of Workforce Services Quality Assurance Manager Chad Seidel.
Baez Sanchez, 42, and Garcia Perez, 56, died in September 2018 while working in a 12-foot-deep trench at a construction site at 120 S. Indian Springs Drive, a property owned by Mackay.
In a civil complaint the families of Garcia Perez and Baez Sanchez are suing Mackay and his company Fireside Resorts Inc. for wrongful death. They say Mackay was negligent and did not provide proper safeguards to prevent a trench collapse.
Mackay says ‘not liable’
In his answer dated July 9, Mackay denied he is liable and asked the court to dismiss the complaint with prejudice.
“At no time did Mackay’s actions constitute outrageous, willful and wanton conduct such as to warrant punitive damages,” Mackay’s attorney George Santini wrote in the response.
Mackay admitted to texting Baez Sanchez and occasionally paying his crew in cash, but denied ever giving any orders.
In text messages included in the wrongful death complaint, Mackay reportedly told Baez Sanchez on Aug. 26, “Keep working regardless of what anyone says.”
Mackay said in his response that the text messages do not relate to the excavation work in which the plaintiffs were killed.
On Sept. 28 a delivery driver noticed an unoccupied idling excavator and then saw the partially buried body of Baez Sanchez, the complaint states.
It took first responders eight hours to recover the men’s bodies.
The men suffocated after the trench fell in on them, the coroner concluded.
According to court documents, beneficiaries of Baez Sanchez and Garcia Perez are seeking $1 million each in damages.
The complaint was filed jointly by attorneys Patrick Crank, Mark Aronowitz and Elisabeth Trefonas on behalf of Isabel Baez and Rick Thomas, wrongful death representatives for the men.
“Defendant Mackay and defendant Fireside Resort Inc. failed to pay workers’ compensation premiums to the Wyoming Workers’ Compensation fund on behalf of their employees Mr. Baez Sanchez and Mr. Garcia Perez,” the complaint reads. “Employers have a legal obligation to provide a workplace free of conditions or activities that the employer or the industry recognizes, or should recognize, as hazardous and that cause, or are likely to cause, death or serious physical harm to employees, when there is a feasible method to abate the hazard.”
In his response, Mackay admits he didn’t pay premiums into a worker’s compensation fund on behalf of Baez Sanchez or Garcia Perez because he didn’t have to.
“He affirmatively alleges he had no duty to do so as he was not their employer as defined by statute,” Santini stated in documents.
Mackay maintains that he hired the men as independent contractors.
But the lawsuit says the work site was in violation of local and state regulations.
“There was no trench box and no safe means of egress from the 12-foot-deep and 41-foot-long trench,” it states. “Had any appropriately trained person inspected the job site, the fatal cave-in could have been avoided.”
State cites Mackay
In March the Wyoming Occupational Safety and Health Administration proposed penalizing Mackay up to $10,532 for “serious” violations.
The citations noted several unsafe conditions at the job site, which OSHA inspected Oct. 4.
Mackay was cited for a lack of adequate cave-in protection, something law enforcement noticed in its initial investigation of the site.
“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 states.
A hearing in the civil case has been scheduled for Aug. 15 in Teton County District Court.