Family files wrongful death lawsuit after construction worker fatality in Berkeley

Francisco Gabriel Torres Silva and his family. Photo: Courtesy

Foreman Francisco Silva was taking measurements on a staircase at a downtown Berkeley construction site one Tuesday morning last year when a carpenter working above him accidentally dropped an industrial nail gun. The nail gun plummeted more than three flights, landing on Silva’s head, knocking off his hard hat and sending him onto a concrete floor nearly 10 feet below. Silva, 38, was in a coma for six days at Highland Hospital with a skull fracture and two broken vertebrae. He died from those injuries June 11, 2018, according to an investigation by the Division of Occupational Safety and Health, or Cal/OSHA.

Silva, who was known to friends and loved ones as “Pancho,” is survived by his wife, Sophia Alvarez, and their two young sons. Silva was working for the family construction firm, Nueva Castilla Metal Fabrication, when the fatal accident happened June 5, 2018. His wife, who lives in Burlingame, has filed a wrongful death lawsuit against two other construction companies and the developer of the luxury housing complex in downtown Berkeley, at 1950 Addison St., where the accident took place.

Donny Caswell, Silva’s best friend and the cousin of Silva’s wife Sophia, described Silva as altruistic, charismatic and sweet, a devoted and engaged father who was known for his laughter. Silva was also a stickler for the rules, Caswell said, and a man you could count on.

“If someone had issues or needed something, he was there,” Caswell said. “He would send money back home to Hondorus, not just to family but also to friends in need. He was the type of guy that always offered a hand. He never needed to be asked.”


Silva also had a strong sense of justice, Caswell said. When Silva migrated to the United States from Honduras about 15 years ago, he was part of a group of 10 that crossed the border with a paid guide called a coyote. When the coyote tried to take advantage of a female member of the group, “Pancho just couldn’t accept it,” Caswell said. When Silva confronted the man, the coyote pulled out a gun and shoved it into Silva’s mouth: “There’s nothing he could have done. But that’s the type of guy he was. If he sees injustice, he will speak up against it.”

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Caswell said Silva — who recently got his green card and became a permanent U.S. resident — was interested,  from a young age, in the building trades. Silva’s biological parents abandoned him when he was born, but his adoptive parents “gave him all the love that he needed,” Caswell said. In Honduras, Silva’s adoptive father had a small welding shop, which Silva loved and where he got his foundation in construction work.

After Silva got to the United States, Nueva Castilla hired him. At that time, the San Francisco-based company — which was founded in 1966 — was run by the father of the woman Silva would one day marry. Caswell and Silva became friends early on, and it didn’t take long for Caswell to notice the interest his friend had in the boss’s daughter.

“He wasn’t a shy guy, but he definitely felt like she was out of his league,” Caswell recalled. So Caswell arranged for the three of them to hang out — to break the ice and get the pair talking: “Once he was out and about, it was fine. It was just giving him that nudge. Things started and the rest was history.”

Silva returned the favor, helping Caswell meet the woman he would eventually marry. Silva loved dancing, particularly to a fast-paced style of Honduran music. One night, the two men went out dancing together at a salsa bar in San Francisco. Caswell said Silva encouraged him to go up to a woman who had caught his eye to ask her to dance.

“It was annoying at the time, but it paid off,” Caswell said.


Silva spent as much time as he could outdoors with his young sons, taking their bikes and scooters to the neighborhood park. He was the kind of parent who was 100% engaged with the boys, Caswell said.

At work, Silva was known for his punctuality. Caswell said he lost track of the number of times Silva would call him if Caswell hadn’t arrived by the 7 a.m. start time.

“At 7:01, he’d be calling me to ask me where I am,” Caswell said. “I would hear the phone ring and I knew it was him: ‘Yes, Pancho, yes, I’m around the corner.'”

Eventually, Silva rose through the ranks at Nueva Castilla — which is now run by Alvarez and Caswell — to become the company foreman. Caswell described his friend as the company’s “star quarterback” and said he was passionate about his work.

“That’s what enabled him to be so good,” Caswell said. “He really got behind what he was doing. He was always pushing to get it done and get it done properly.”

The day of the accident

Caswell was at the office June 5, 2018, when he got a hysterical call from one of his workers about an accident at the job site. Pancho had been hurt, he told Caswell. Once they got off the phone, Caswell called the site superintendent for a clearer explanation.


Silva was convulsing and seizing on the ground. It looked bad, the superintendent told Caswell. He and Sophia Alvarez rushed to Highland Hospital, the regional trauma center. They found Silva in a hospital bed hooked up to tubes. Initially, Caswell was trying to keep the mood light by joking. He thought they might be in for a couple of rough weeks, but then back to normal.

It didn’t take long for reality to hit. Silva had at least one surgery, Caswell recalled, and a neurologist told the family Silva was brain dead. Six days later, they took him off of life support. His cause of death was listed as complications due to blunt trauma to the head and neck, according to documents from Cal/OSHA, the state agency charged with regulating workplace safety.

According to Cal/OSHA’s findings, a carpenter from Napa-based Sheehan Construction had been working with support beams, or joists, when he hung his nail gun on a hook that happened to be above Silva’s head: “As he walked away to get the next joist, the nail gun fell off the guardrail and plunged down from the 5th floor into the hard hat/head of the deceased.”

Cal/OSHA ruled that Silva’s death happened because none of the three employers on-site “ensured there were effective safeguards in place where there is employee exposure below an elevated work area.” State law requires the use of canopies or other barriers to ensure the safety of workers below from falling objects.

Cal/OSHA also said that both Michael Roberts Construction, the general contractor in charge of the job site, and Nueva Castilla “failed to ensure the stair railings were in place before employees worked on them.” The railings could have stopped Silva’s nearly 10-foot fall to the ground below, according to the investigation. (According to a summary of the accident, guardrails had been removed from the staircase so workers could use a crane to install the sides of the stairway.)

In November 2018, Cal/OSHA issued fines — for two accident-related violations it deemed “serious,” and three other violations listed as serious — to Campbell-based Michael Roberts Construction in the amount of $77,000 and to Nueva Castilla in the amount of nearly $73,000.

Sheehan Construction was fined $26,275. In addition to the canopy issue faced by all three employers, Cal/OSHA wrote that the Sheehan worker did not disconnect the nail gun from the air hose, as required by law.

The fines are “under contest,” according to the Cal/OSHA website. A representative from Michael Roberts Construction said he could not discuss the matter. Sheehan Construction did not respond to a request for comment. Stuart Gruendl, co-founder of BayRock Residential, the developer behind the property at 1950 Addison St., said he could not comment either.

Monday, Paola Laverde, a spokeswoman for Cal/OSHA, said the appeal is on hold while Cal/OSHA’s Bureau of Investigations (BOI) reviews the case. The bureau is notified of all workplace fatalities reported to Cal/OSHA, she said, and “The appeal is on hold until BOI concludes its review, or three years, whichever comes first.” (Laverde is also an elected member of Berkeley’s Rent Stabilization Board.)

Caswell, of Nueva Castilla, said safety is always the top priority on a job site.

“The steel industry is one of the more difficult industries,” he said, with heavy items that can hurt one’s back, welding work, which can be hazardous to the eyes, the noise of steel, which is horrendous on the ears, and the issue of metal particles and their effect on the lungs.

According to the Cal/OSHA database, just one other accident involving Nueva Castilla is listed in the agency database. In 2017, a Nueva Castilla welder was treated for “head trauma, lacerations to an ear, an ear hematoma, and some minor hearing loss” after another company’s worker struck his aerial lift, causing the welder’s head to become “pinned between the aerial lift and the building’s concrete structure.” Cal/OSHA fined the company about $3,500 in that incident.

Caswell said Nueva Castilla workers had also suffered injuries such as back problems due to decades of work in the industry or more minor issues like a cut to the hand, but that overall the business has a strong safety record.

“It was just incredible shit luck,” he said, of his best friend’s death. “Two seconds or 2 inches would have made the difference.”

Worker safety

According to U.S. Department of Labor statistics, OSHA’s Oakland District Office has logged 91 worker fatalities in Alameda County dating back to January 2002. Berkeleyside reviewed approximately 10 years of those reports and found that six of those fatalities, including Silva’s, were in Berkeley.

In 2008, an exercise rider at Golden Gate Fields was on a horse that got spooked. It reared on its back legs and rolled over, “crushing the rider between the 1,100 pound horse and the dirt track,” according to the OSHA report. Investigators found no employer violation.

The next year, a worker who told management he slipped and fell off of a two-step stairway at Ohmega Salvage took a medical leave and overdosed on his medication, according to Cal/OSHA.

In 2012, Cal/OSHA fined Berkeley Forge & Tool $71,900 after the blade of a pneumatic grinder struck a welder in the head, mortally wounding him. The violation type was listed as “willful,” meaning “the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety,” according to the agency. The man who was killed was identified as 30-year-old Ariel Munoz Garcia.

In 2013, 62-year-old Oscar Marquez of Livermore was killed while he was working on the Martin Luther King Jr. Middle School track renovation project. A dump truck rolled down a hill and crushed him. Cal/OSHA ultimately fined the Robert A. Bothman Construction company $22,500.

In 2016, Johnny Tolliver Sr., 52, was working as part of a two-person team collecting trash for the city of Berkeley when their truck lost its brakes and rolled, pinning Tolliver against a utility pole. Tolliver later died at Highland Hospital. He had worked for the city for more than 25 years. Cal/OSHA initially fined the city nearly $100,000, then later reduced the fine to $37,430 as part of a settlement.

In 2017, the most recent year available, 5,147 workers died on the job across the nation, according to OSHA data. About 21% of those fatalities were in the construction industry. Falls caused 40% of construction deaths while another 8% happened when a worker was struck by an object. Nationwide, worker deaths have fallen, however, “from about 38 worker deaths a day in 1970 to 14 a day in 2017.”

OSHA tracks large initial penalties, of more than $40,000, of safety violations against employers. In addition to the contested fines against Michael Roberts Construction and Nueva Castilla, there have been six other hefty enforcement cases in Berkeley since 2015: against Lynden’s Construction ($48,800), Lancaster Burns Construction Inc. ($46,125), Enthalpy Analytical LLC ($85,020 reduced to $29,895 as part of a settlement), Roemer Painting Inc. ($49,905 reduced to $13,905 in a settlement), Westco Roofing Company Inc. ($53,020, under contest), and Electro-Coatings of California Inc. ($50,945, under contest), according to agency data.

Wrongful death lawsuit filed

In December, Alvarez and Caswell filed a wrongful death lawsuit against BayRock, Michael Roberts Construction, Sheehan Construction and Sheehan employee Jose Olivares, according to court papers. They have alleged several types of negligence, writing that defendants “allowed a dangerous condition to exist at the construction site” that caused or contributed to Silva’s death. They said defendants should have installed proper screening to provide safety from falling objects, and that Olivares was “unfit to operate the nail gun.” The complaint supplied no evidence to that claim, however.

“Getting struck in the head, by a nail gun that fell several stories, does not ordinarily occur in the absence of negligence,” wrote attorney Christopher B. Dolan of the Dolan Law Firm in court papers.

Attorney for the defendants Michael D. Michel, of Michel & Fackler, disputed the allegations, citing a number of legal arguments and writing that Silva “placed himself in an unsafe and dangerous position, and thereby assumed all resulting risks of injury.”

In April, the court granted a request to remove BayRock from the lawsuit parties and substitute 1950 Addison Apartment Joint Venture LLC as a defendant in the suit. The next hearing in the case is scheduled for July 24, according to court information online.

Neither Dolan nor Michel responded to requests for comment from Berkeleyside.

According to the website for 1950 Addison St., BayRock plans to open the property to tenants in mid-2019.