“Remember Zach:” Mother of trench collapse victim fights back with lawsuit, trench safety presentations

Marcia Doyle Headshot
Updated Apr 11, 2019
Cindy passes out “Remember Zach” hard hat stickers at the end of her talks as a way to keep his story alive when audience members return to their jobsites. It was designed by staff at the Cleveland Water Department after they heard her talk.Cindy passes out “Remember Zach” hard hat stickers at the end of her talks as a way to keep his story alive when audience members return to their jobsites. It was designed by staff at the Cleveland Water Department after they heard her talk.

Since his death in a trench collapse on December 28, 2017, Cindy Hess has done her best to make sure her son Zachary David Hess is remembered.

She’s spoken 11 times so far to construction and governmental groups, detailing the circumstances of his death. Four more talks are scheduled. She promotes trench safety to these groups with a “Remember Zach” hard hat sticker. She’s investigating setting up a foundation to channel funds into trench safety awareness.

Zachary Hess’s grave.Zachary Hess’s grave.

And she’s filed a $20 million lawsuit against the entities she feels are really at fault for her 25-year-old son’s death: NVR Incorporated (doing business as Ryan Homes), Nathaniel Development Corporation (NDC), Payne Excavating and Transport and an unknown sewer subcontractor.

“I’ve been obsessed with investigating the circumstances of Zach’s death, and these people were negligent,” says Hess, who was profiled in Equipment World’s Death by Trench” special report in June. “The bigger picture is all of the things that happened before Zach even got there that day. It was an exercise in futility. He didn’t have a chance.”

As stated in the lawsuit, filed by the Graydon Head & Ritchey law firm in the Warren County Court of Common Pleas in Ohio, Zach died as the result of, among other things, misplaced sewer laterals, mismarked utilities, the lack of jobsite supervision and communication, poorly compacted soil and dangerous lateral depths.

“Zach was 6’4” and a great athlete,” states the suit. “He was tireless and energetic. He was not going to fail the connection task that Ryan gave him.

“By directing Zach to futilely dig in an unstable area to connect a nonexistent lateral from the in-home plumbing to a main sewer lateral located at unreasonably dangerous depth and improperly beneath the home in inadequately compacted soil, Ryan proximately caused Zach’s death,” says the suit.

Some of these conditions were recorded by Zach in a video he shot right before he went into the hole that killed him. Zach, who went by the online name of “DirtDude,” regularly took Snapchat videos of the holes he dug for his employer, JK Excavating & Utilities, Mason, Ohio. OSHA fined JK Excavating $202,201 in June for the incident, a fine that was reduced to $151,650 and is now pending penalty payment, according to an OSHA establishment search.

Hess, however, makes it clear she feels the primary fault for Zach’s death does not lie with his employer. “While JK did not train Zach properly, all these other factors made that day inherently dangerous,” Hess says.

Cindy Hess talks to city workers in Fairfield, Ohio.Cindy Hess talks to city workers in Fairfield, Ohio.

“Keeping him alive”

A few months after his death, Hess started telling Zach’s story in construction and governmental safety meetings. “I kind of feel like it’s becoming a full-time job,” Hess says. “I’m going to have to learn how to say no.”

But saying no is hard because the requests keep coming. Just after she talked with Equipment World last week, Hess got yet another request, this time to be the keynote speaker at an Ohio construction safety meeting.

“For me, it’s keeping him alive,” she says.

She tells her audiences about the poor jobsite conditions, how Zach received no trench safety training, how he called out to a co-worker when the trench started collapsing, how he was buried up to his neck when first responders finally got to the site, and how she waited in the bitter cold until 11 p.m. that night before they could recover his body, not wanting to leave until he was out of the hole.

“At the close of my talk, I ask for everyone to remember Zach, whether they’re a worker or a supervisor or the owner of a company, and that they make an emotional connection to Zach and his death,” she says.

Audience members have responded. Staff at the Cleveland, Ohio Water Department designed a “Remember Zach” hard hat sticker, which Hess now uses as a leave-behind in her talks.

Hess is also considering establishing a “Remember Zach” foundation, which would direct organizations and people who’ve asked to contribute funds after her talks to a foundation that would promote trench safety. “I want it to be something meaningful,” she says, “because I don’t want just some standard thing that’s already out there and not being used.”

“He didn’t have any kids, so this is Zach’s legacy,” Hess says. “This might be the beginning of a change in the industry.”