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Suit raises questions about contractor safety

A lawsuit after a death during a Walmart renovation in Walpole raises questions about the safety practices of its contractors

Romulo de Oliveira Santos’s first night on a demolition job at a Walmart in Walpole was also his last.

Santos and a crew of Brazilian immigrant workers were sent to tear down store walls, unaware of live electrical wires in the room. As the men worked into the night, the lights suddenly went dark. Sparks flew. By the time police arrived, Santos’s electrocuted body lay on the floor, badly burned, blistered, and without a pulse.

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“He was making a life,’’ said Marco Leal of Cambridge, a friend who encouraged Santos to move to Massachusetts to live the American dream. “I never thought I’d have to send his body back to his family.’’

Santos’s death is now the subject of a lawsuit in Middlesex Superior Court that seeks to hold Walmart Stores Inc. accountable for actions of contractors and subcontractors that build and renovate the retail giant’s stores. The plaintiffs, who seek $5 million in damages from Walmart and two subcontractors, allege the conditions that led to Santos’s electrocution are part of a pattern of unsafe practices at Walmart construction sites, including the hiring of unlicensed contractors and so-called straw men to obtain local permits.

In the Santos case, state inspection records show that one of Walmart’s subcontractors hired a licensed Massachusetts electrician solely to obtain permits, then used unlicensed electricians on the site. Additionally, the project’s general contractor, a company that worked almost exclusively for Walmart, was cited for using unlicensed contractors during a Walmart renovation in Louisiana, according to Louisiana inspection records.

An electrical subcontractor involved in building an Indiana Walmart was also sanctioned for safety violations after a massive electrical explosion at the store killed a worker and severely injured two others.

Brian A. Joyce, the lawyer for the Santos family and a state senator from Milton, said he believes Walmart used unlicensed, untrained, and unsupervised workers at its sites because it wanted to cut costs.

“It shocks the conscience,’’ Joyce said. And “in this instance, resulted in the death of a good and hard-working man.’’

The case has come to light as Walmart attempts to expand in Greater Boston and across the Northeast. Walmart spokesman Greg Rossiter said the company is not responsible for safety violations by subcontractors, and its general contractors are required to report whether they violated federal safety laws.

“We require the contractors we hire to comply with all applicable laws and regulations,’’ Rossiter said. “That is their responsibility.’’

Santos, who was single, immigrated to Massachusetts shortly after his 40th birthday, leaving his mother, family, and hometown outside Rio de Janeiro.

He had high hopes for life in the United States, celebrating the Fourth of July with a giant American flag draped across his shoulders, but most of the work he found was odd jobs as a day laborer or cleaner. On the day he died, a small Medford firm hired him as part of a demolition crew assigned to tear out ceilings and walls for renovations at the Walpole Walmart.

The crew arrived around 9:30 p.m., shortly before the store closed. Worker Antonio Rodrigues was taking out a wall with an electric saw when he cut through a live wire used to power the overhead lighting, according to a State Police report. Rodrigues was not electrocuted because the saw handle was insulated, but the room went dark.

Several workers left the room to get help, but Santos remained behind. It remains unclear whether he was trying to fix the wire or simply standing on a metal lift when he was electrocuted. Alexandre Abreau, one of the workers, told State Police that when he returned to the room he saw sparks flying, then heard a moan and the sound of Santos’s body crashing to the floor.

Another worker, Edi Carlos DaSilva, rushed into the room and dragged Santos’s body from the wires.

DaSilva “said that Santos was not conscious,’’ state trooper John Banik wrote, “and thought that he saw Santos take his last breath.’’

An investigation by the Occupational Safety and Health Administration found that the electrical contractor in charge of the Walmart job committed several safety violations, including exposing workers to serious electrical hazards.

But Joyce’s key assertion - that Walmart bears responsibility - is based on the retailer’s close relationship with its contractors.

Texas-based Kekoka Construction, the general contractor, was formed more than a decade ago solely to work on Walmart remodeling jobs, according to sworn depositions by Kekoka’s president provided by Joyce. Kekoka completed more than 50 projects for Walmart and was on the company’s list of preapproved contractors.

“All contractors reported to Walmart’s remodeling department,’’ Joyce said.

Kekoka hired a Massachusetts-licensed construction supervisor, Michael Kummer of North Attleborough, who said in a sworn deposition that he was paid $11,000 by Kekoka to obtain a building permit from the town of Walpole. Kummer said in his deposition that he was never paid to do actual work at the Walpole site, though he occasionally visited.

Kekoka’s electrical subcontractor, T&M Electric of Arkansas, hired an electrician solely to pull permits in Walpole, according to state inspection hearing records. State investigators found that Warren MacDonald, a Connecticut electrician licensed in Massachusetts, was never seen at the worksite, even though MacDonald was legally responsible for overseeing all electrical work. MacDonald’s license was revoked by state regulators who concluded he had engaged in “dishonesty, fraud, or deceit.’’

T&M Electric and Kekoka officials did not return calls seeking comment. Neither did Kummer or MacDonald.

OSHA also fined Italo Masonry, the company that hired Santos, for exposing workers to electrical hazards. The firm did not respond to requests for interviews.

Walmart was not fined or sanctioned.

“Kekoka was responsible for insuring the safe working conditions on-site and the proper licensing of any subcontractors and workers on the site,’’ said Rossiter, the Walmart spokesman. “An investigation by OSHA cited two subcontractors for several violations but none against Walmart.’’

That highlights a “gaping hole’’ in a regulatory system that sanctions contractors, but shields their corporate clients from responsibility for safety on their worksites, said Marcy Goldstein-Gelb, executive director of the Massachusetts Coalition for Occupational Safety and Health, a Boston advocacy group.

“There’s no accountability - or they’re only really held accountable if there’s a lawsuit,’’ she said.

In 2006, Walmart was sued after an electrical explosion killed one man and injured two others at a store under construction in Bloomington, Ind.

The workers were running a live electrical service line into the new Walmart when a metal object came into contact with a power circuit, according to records from the Indiana Department of Labor. The resulting blast sent electrical current surging through the air, setting the electrical crew on fire.

“There’s no good way to die on the job,’’ said Jeff Carter, deputy commissioner of the Indiana Department of Labor, which oversaw the safety investigation, “but this is probably one of the worst.’’

Three workers suffered second- and third-degree burns over more than 80 percent of their bodies. One, 35-year-old Scott Shelton, died from his injuries a month after the fire, said William Emerick, the lawyer who sued Walmart and other parties involved in the construction of the store on behalf of Shelton’s family.

The Indiana labor department fined the workers’ employer, Electromation Inc., for six safety violations, including violating national standards that require live circuits to be shut down in most circumstances during electrical work.

Emerick said the parties reached a confidential settlement last year. He would not disclose terms, but said safety problems were so numerous that “there was enough blame to go around.’’

Carter, the Indiana labor official, said Walmart played no direct part in the conditions that led to the tragedy. “But,’’ he added, “many times the way they contract for services, that can play a role. If you always go with the lowest bidder, well sooner or later, there’s a reason why they’re the lowest bidder.’’

Walmart declined to comment on the case. Electromation is out of business.

Two years after the Indiana accident, Kekoka Construction, the general contractor on the Walpole renovation, was fined for using unlicensed contractors while remodeling a Walmart in Zachary, La. Rossiter, Walmart’s spokesman, said the company was unaware of those sanctions, and contractors are obligated to report such problems to Walmart.

Louisiana inspection records show that Kenneth Sampson, Kekoka’s president, admitted using unlicensed contractors and apologized “for this unlawful activity,’’ in a letter to state officials. Sampson added that such an incident “will not happen again.’’

Six months later, Santos died in Massachusetts.

It was Marco Leal who identified Santos’s body and collected his possessions, including his cellphone. Leal let his 10-year-old son, Kristian, listen to Santos’s voicemail message over and over until the battery went dead.

Leal said he has found modest success in the United States, and now owns a breakfast shop in Cambridge. But he misses the friend who accompanied him and his son on fishing trips and celebrated Thanksgiving and Christmas and reveled in July 4 fireworks.

“He was like a brother,’’ Leal said, his eyes brimming with tears. “He tried to come over here and make his home.’’

Megan Woolhouse can be reached at mwoolhouse@globe.com.
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