‘Reckless disregard’
Sam Fitzpatrick moved rock for a living. He performed the precarious work of blasting and drilling for Peter Kiewit Sons Co. On Feb. 22, 2009, he died. There are some who blame the company for his death.
Brian Fitzpatrick was sitting in his living room watching TV when his son Arlen called. It was late afternoon.
“You’re in early,” Brian said. There was silence, and then Arlen’s voice, dead-tired and quiet.
“Sam is gone, Dad.” A long pause. “Sam is gone.”
Brian is an old West Coast logger. He knew about job hazards. He was a truck driver on the massive Sea-to-sky Highway job, working along with his sons, a couple of big strong boys who scaled sheer granite walls, hanging from ropes to pry out and knock down boulders in order to make the job site safe.
In early 2008, Brian had resigned from his lucrative Sea-to-sky job with Peter Kiewit Sons Co., unhappy with an aggressive American supervisor and a rockfall accident that nearly killed him.
The supervisor, Jerry Karjala — known as General Jerry to leery subordinates — was now the boss of Sam and Arlen on the Toba-montrose Hydroelectric Project, about 100 kilometres north of Powell River.
Memories of the Kiewit boss flashed through Brian Fitzpatrick’s mind. He sat there with the phone to his ear, watching rain streaks on the window. He felt numb. All that matters now, Brian told himself, is that Sam is dead.
“When are you coming home?” Brian said. “Arlen, I want you to come home.”
Early in the morning on Feb. 22, 2009, a light rain was hitting the slopes of Toba Inlet, a deep glacier-fed fjord that cuts into B.C.’S Coast Mountains. It hadn’t rained for three weeks.
The winter soil was starting to thaw, making the precarious work of blasting, drilling and moving rock more hazardous than ever for Kiewit crews.
At 5:30 a.m., earthworks superintendent Jerry Karjala and his crew had a planning meeting. The day before, a large boulder had been dislodged by an excavator, operated by a young driver named Jesse Taylor, and careened downhill. It smashed into a mobile drill rig, just missing the crew working below.
Work was halted and crews were sent back to camp for an emergency safety meeting. For a while, Karjala’s men had been working above and below each other on steep terrain, but new safety rules were written by Karjala and his foremen, banning the practice.
A safety inspection report signed by Karjala said the worst hazard for the next shift would be “rocks rolling downhill to workers below,” and the corrective action was “no work below until top section finished.”
But for unknown reasons, it was decided that Taylor and another excavator driver would continue to work above the drill and blast crew that day.
Later that morning, Arlen Fitzpatrick, 22, and Sam Fitzpatrick, 24, arrived on the job site. A supervisor asked the brothers to hand-drill a shed-sized boulder on the rocky ledge below the excavators.
Arlen went first, and at about noon Sam took over. Arlen walked 10 metres downhill to eat his lunch in the cab of a hoe drill, while chatting with the drill operator, Ewen Clark.
About 1p.m. it started raining harder, and up above, Taylor saw some rubble sloughing off a rocky bank.
Suddenly he saw a pickup-sized boulder start to slowly roll toward a trough above Sam’s drilling site. The boulder hit a flat spot and seemed to stop, according to Taylor, but when he looked again it was moving. Taylor got on the radio and started screaming for Sam and Arlen to get out of the way.
Arlen and Ewen Clark heard Taylor’s expletive-filled warning and both looked uphill at Sam, who was calmly plugging away with his back to a five-metre cliff, his jackhammer squealing and rock dust flying.
The men screamed and waved at Sam, but he couldn’t hear a thing. At the last moment Sam looked at his brother. He must have caught the panic on Arlen’s face, and he turned back just as the boulder dropped off the cliff. It smashed through Sam like a meteor and shattered on the ground, sending shrapnel flying.
Arlen screamed “No!” and ran toward the ledge where Sam lay, but Clark scrambled up first.
“Is he all right? Is he all right?” Arlen shouted.
Bones poked out of Sam’s legs, blood was running from his mouth and ears and the ground was covered in blood spray. The back of his skull was open. Clark checked for a pulse. Sam was gone. Clark and the crew’s foreman, Warren Eheler, held Arlen back. They didn’t want him to see.
Taylor appeared at the top of the cliff and looked down.
“What did you do to my brother?” Arlen shouted.
“It wasn’t me,” Taylor said, pointing uphill to the right. “I was way over here.”
According to veteran WorkSafe BC safety officer Barbara Deschenes, supervisor of fatal and serious injury investigations, no coroner’s report was needed. It was determined Sam Fitzpatrick died immediately of massive head injuries. After a lengthy probe into Sam’s death, Deschenes found that Kiewit was “reckless and grossly negligent,” with respect to rockfall hazards that were “glaringly and objectively obvious.”
In March 2011, the Workers Compensation Board (WCB) fined Kiewit $250,000 for a number of safety violations in connection with the fatality, and a potentially lethal boulder accident the previous day.
Documents, including a WCB inspection report, indicate Deschenes’ investigation was thwarted to some extent because “the employer’s senior management personnel failed to co-operate . . . through not disclosing that a superintendent involved with the fatal incident was present at camp when investigating authorities attended to investigate on Feb. 23, 2009 . . . and the employer did not control or prevent the departure from the work site, right after the fatal incident, of most witnesses.”
Int e r view records show Deschenes had to sort through vague and inconsistent statements and accounting for decisions on the part of Kiewit employees.
She reported that Kiewit’s own investigation suggested that Taylor had dislodged the boulder that smashed downhill on Feb. 21 (the day before Sam’s death) — causing a minor injury and about $65,000 damage to a machine drill — although Taylor claimed not to have seen the boulder fall.
The boss, Jerry Karjala, also claimed ignorance about the origins of the Feb. 21 boulder, telling Deschenes: “No I surely don’t, and I don’t think, well I don’t know,” where it came from.
Nevertheless, according to a subordinate who attended the emergency stand-down meeting, Karjala was adamant and decisive in ordering that crews would not be positioned below Taylor the next day.
Days after Sam died, Arlen Fitzpatrick told investigator Deschenes that Sam had expressed serious fears at the safety meeting and asked for an emergency evacuation plan to be written up for scalers exposed to rockfall danger. There was no such plan before Feb. 21, WCB documents say.
“The cause of the fatal incident should have been glaringly obvious.”
— WCB officer Bruce Scott
Two days after Sam’s death, in a taperecorded police interview obtained by The Sunday Province, Arlen tells a Squamish RCMP officer: “I think it is important to know me and Sam both didn’t want to go there and do that. We had a meeting the day before about rocks coming down and narrowly missing these other guys.”
Arlen tells the officer that after the emergency safety meeting, he went to his construction manager, Tim Rule, asking for more scaling workers to be hired, and then, “spoke up and said, ‘Could we do [the boulder] with the hoe drill? It would be easier and safer.’”
According to Arlen, Rule said: “Arlen, I’d love to help you, but you really got to talk to Jerry Karjala.”
Rule denied that the conversation took place, according to Deschenes’ investigation.
When the brothers arrived on site Feb. 22, they did not talk to Karjala, according to her report.
Drill and blast engineer Paul MacDonald persisted in ordering the brothers to jackhammer a large boulder, and they at first resisted, according to Arlen. But, Arlen told police, Macdonald “said the hoe drill has better things to do,” and the brothers relented because “he’s the boss.”
Arlen told an RCMP officer that he saw Karjala — who was “running the show out there” — come to talk with Sam and Arlen’s foreman Warren Eheler around noon, near where Sam was drilling.
A review of five witness statements obtained by The Sunday Province shows that an RCMP investigator attempts to learn from Taylor what caused the fatal boulder to roll and whether it was normal procedure for crews to work above and below each other. But there is no indication police investigators probed whether Kiewit managers knowingly placed Sam and Arlen into an area prone to rockfall hazard.
In his statement, Arlen suggests crews were working under time pressure and the scalers were not given adequate time to safely clear rocks and boulders.
“The area where the rock came out of is an area we had blasted it, but we never scaled it,” Arlen tells an officer. His voice trails off sadly as he says, “because, never enough time, you know. They don’t give us, you know . . . never enough time.”
Scaling means stabilizing steep rock terrain by removing rocks and debris and also attaching mesh and bolts. Scaling can be completed by machines, or on steeper pitches, by specialized scalers such as Sam and Arlen, who climb down from the tops of bluffs and cliffs suspended into tight corners, prying rubble and boulders loose by crowbar.
In his police interview, Sam and Arlen’s foreman Warren Eheler contradicts Arlen’s testimony and volunteers a number of statements indicating Kiewit managers bear no responsibility for Sam’s death.
“Everything looked safe I mean, I even talked to Arlen a few hours before and I said, ‘Are you guys comfortable where we are? Can I do anything to make you safer?’ and he said, ‘No, everything is all good,’” Eheler says, in his police interview. “It was perfectly scaled. It was like the best place we’d been in months, in reality . . . nobody can blame these fellows or anything else . . . it’s a work accident.”
Later, Eheler admitted to a WorkSafe investigator that there were loose rocks above Sam and Arlen, and “we were going to scale that.”
“Without question . . . it was not properly scaled,” project manager Chris Dandurand admitted to Deschenes in a July 2009 interview.
In paper records and audio tapes of both the Worksafe and RCMP investigations, there seems to be no good answer for the most puzzling question: Why would the earthworks crew override the emergency safety plan made on Feb. 21?
WCB Investigator Deschenes suggests the earthworks supervisors felt they could manage the risk: “It appears [they] thought it would not be hazardous to have the excavators work up slope of the drilling crew because the excavators would be working on terrain less steep than the terrain [involved in the previous day’s rockfall].”
However, according to Deschenes’ WCB submission, Kiewit argued that “excavator operators unwisely ‘placed themselves’ above the drilling and scaling crew.”
It was not determined whether excavators had moved the boulder that killed Sam, but “the investigation established the excavator [Jesse Taylor] did not strike the rock immediately prior to the rock’s motion,” Deschenes wrote.
Two days after Sam’s death, at the Squamish RCMP detachment, Taylor would say: “The spot we were in is a critical spot. A hairy situation.”
Taylor claimed that his understanding of the work plan was that large machine drills would be used to clear the boulder, not Sam and Arlen.
“It was a funnel coming down the mountain, so everything that runs down that mountain was going to go down that channel basically, and I knew they were down there working,” Taylor told a police interviewer. “I wasn’t sure why the plan changed [but] it wasn’t my say or my call, so we continued on.”
Kiewit appealed WCB’S $250,000 penalty, arguing WCB had not linked the boulder that killed Sam to the crew working above, or inadequate scaling of hazardous rocks.
In the latest ruling, two months ago, review officer Bruce Scott upheld the finding that Kiewit bore responsibility.
Scott said he was not persuaded that Kiewit was wilfully negligent, but “there was reckless disregard.”
“On a balance of probabilities . . . the employer’s failures and violations were a material cause of the young worker’s death regardless of what actually caused the rock to move,” Scott wrote. “It amounted to gross negligence . . . the cause of the fatal incident should have been glaringly obvious.”
Scott, in his reasoning, said the standard for “reckless disregard” is greater than simply failing to take steps to ensure worker safety. Citing a previous case, Scott says the failure must be “wanton . . . heedless . . . extreme . . . gross . . . highly irresponsible.”
Kiewit spokesman Thomas Janssen told The Sunday Province the company is preparing another appeal to the Workers’ Compensation appeal tribunal.
Janssen said Kiewit can’t comment on Scott’s ruling, or allegations about Kiewit, its managers, and Jerry Karjala. Janssen said that generally speaking, if employees have complaints with managers they can call an anonymous line to report incidents. A number of attempts by The Sunday Province to contact Karjala at his home in Montana were unsuccessful.
Did Sam and Arlen Fitzpatrick feel intimidated by Jerry Karjala and feel pressured to complete a dangerous assignment? If so, they are not alone, according to documents obtained by
The Sunday Province.
A Jan. 31, 2008 grievance letter to Kiewit from the Christian Labour Association of Canada — the union for Kiewit workers on the Sea-to-sky Highway job — refers to numerous complaints against Karjala, specifically for allegedly breaching WCB procedures by firing workers who refused to perform unsafe tasks.
“Most of the membership’s issues are directed at supervisor Jerry Karjala,” the grievance letter says. “The union alleges that . . . his behaviour and language are abusive... there are multiple incidents where mr. karjalahas verbally abused workers both in person and publicly over the Kiewit radio.”
The grievance letter “alleges that Kiewit violates [Workers’ Compensation procedures] by having the supervisor demand workers perform unsafe acts with threats of discharge if the employee fails to comply.
“The membership is upset and intimidated by the actions of Mr. Karjala,” the grievance letter says. “The Union is asking that Mr. Karjala be re-assigned to another project and the terminated workers be returned to their previous jobs with full back pay.”
The fired workers were re-hired, and Karjala was sent to Toba Inlet after the grievance was filed.
Dean riggs, who worked the sea-to-sky job and on the Port Mann Bridge before being laid off last year, said he wasn’t surprised at Sam’s death on the Toba Inlet job. In his opinion, the surprise is that more Kiewit workers haven’t been injured, Riggs said.
According to statistics from WorkSafe BC, Kiewit operations have had 83 serious injuries from 2000 to 2011, and six fatal injuries.
“It’s all about production. The faster they get it done, the more money they make,” Riggs said. “Jerry, it was his way or the highway.”
‘I would prefer it if they both were killed, for Arlen’s sake’
— Sam and Arlen’s father, Brian Fitzpatrick
Riggs said that when Karjala arrived on the sea-to-skyjob, he shocked workers wanted workers and machines moving non-stop, Riggs said.
Riggs, who was on the work site safety committee, noted one Karjala firing on the Sea-to-sky job that he sees as meaningful.
An excavator operator was “on a slope that he didn’t feel was safe, and Jerry was yelling and screaming. He told the fellow if he didn’t do it he would be replaced.”
Riggs says the worker was replaced that day with Jesse Taylor, the excavator who was working above Sam Fitzpatrick on Feb. 22, 2009.
“Jesse and Jerry got along famously [because] Jesse didn’t want to say no,” Riggs said. “He sent Jesse into a lot of extreme situations. Jesse was taking his life in his hands many times.”
Mike Pearson, a blasting superintendent on the Sea-to-sky job, said a productive and safe work environment went downhill fast when Karjala was “parachuted” in to “kick ass” and speed up production in late 2007.
“For everyone, from the loop mechanic to the project manager, it was, “If you don’t do what I say, I will fire you,’” Pearson said.
Pearson points to an incident in February 2008 that he believes was the beginning of the end for him on the Sea-to-sky job.
High above the Squamish Highway, Pearson’s hand-picked crew of steep slope experts arrived at work to find the previous crew had left a “suspended avalanche” of loose rocks on the job site. Pearson says his crew decided to play it safe and take the day off, to allow for a path to be cleared through the rock field. When Karjala learned about the decision, he came on the radio and told Pearson to fire the whole crew.
Pearson refused, he says, and Karjala fired his crew.
Pearson says he knows many of the men who worked the Toba job.
“I got phone calls from guys that used to work for me when they came out of Toba back to camp,” Pearson says. The workers, says Pearson, believed the company was asking them to do things that would eventually kill them.
Brian Fitzpatrick sits at his kitchen table in North Vancouver drinking black coffee. He says he started working in a logging camp near Lake Superior in Ontario when he was 21, but when he moved to B.C. — with steep slopes, nasty weather, big machines, massive logs — it was a whole different game.
“The loggers were a wonderfully intelligent and comical bunch, and they had a way of sneering at death,” he says. “If you were a dummy, they’d run you off. You need to have smart people around you, or you will get killed.”
He looks up from his coffee mug and frowns. “Well, I guess that brings us to Kiewit.
“They bring up these hillbillies from the States, and they are just loudmouth bullies. It was just a minefield of death waiting to happen. It is all about making profits.”
When Kiewit appealed WCB’S $250,000 fine, Brian was even more scathing in his December 2011 submission to the WCB review panel.
He wrote that the tragedy “put a horrible end to Arlen’s irreplaceable best friend, brother, and joy of life, and robbed me of ever seeing Sam’s warm smile again.” It’s almost impossible to talk to arlen about that day—frantically shouting warnings and catching Sam’s eye at the last second, before seeing him “splattered like a bug” — Brian says.
“You can imagine what he must say to himself at night. ‘Why didn’t I see this? Why didn’t I say that? Why? Why?’” Brian says. “I would prefer it, if they both were killed, for Arlen’s sake. He’s toddling off into the sunset with no hopes and dreams. And if they both would have died, i could have consoled myself with the thought, ‘Oh well, those little rascals are still together.’”
Brian says his one drive now is to make the case that Jerry Karjala and Kiewit should be criminally prosecuted in Canada under Bill C-45.
Bill C-45, a new and rarely used law, provides means to criminally convict corporations that fail to protect the health and safety of their employees.
According to Vancouver lawyer Glen Orris — who has worked on a high-profile Bill C-45 case — to prove criminal negligence under Bill C-45 one must show an employer not only failed in the duty to ensure worker safety, but did so with “wanton . . . reckless disregard.”
Worksafe BC did not recommend criminal charges to the Crown or refer Sam’s case to police for potential criminal negligence, spokesperson Donna Freeman said.
But Brian Fitzpatrick believes if a lawyer were to undertake the prosecution or the family were able to find a sympathetic government official to move the case forward, Sam’s death could be a blueprint for Bill C-45 prosecutions.
“I’m trying to bring some justice to my boy and other workers,” he says.