Anderson v. Nashua Corp.
| Decision Date | 22 July 1994 |
| Docket Number | No. S-92-802,S-92-802 |
| Parties | Mike ANDERSON, Appellant, v. NASHUA CORPORATION, Defendant and Third-Party Plaintiff, Liberty Mutual Insurance Company, Defendant, and W.S. Bunch Co., a Corporation, et al., Third-Party Defendants, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment: Appeal and Error. In an appellate review of a summary judgment, the appellate court reviews the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, stipulations, and affidavits in the record disclose that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
3. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
4. Negligence: Strict Liability: Proximate Cause: Words and Phrases. As a term of art, "abnormally dangerous" is considered interchangeable with "ultrahazardous" to define an activity that, when conducted, proximately causes harm to another, for which a possessor of land is held strictly liable.
5. Statutes: Legislature: Intent: Appeal and Error. In settling upon the meaning of a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, it being the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.
6. Statutes: Legislature: Intent. The components of a series or collection of statutes pertaining to a certain subject matter may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible.
7. Statutes. If there is a conflict between two statutes on the same subject matter, the special provisions of a statute prevail over the general provisions in the same or other statutes.
8. Statutes: Legislature: Intent: Employer and Employee. The Legislature intended to limit the application of Neb.Rev.Stat. §§ 48-403 and 48-422 (Reissue 1988) to the employer-employee relationship.
9. Statutes: Words and Phrases. The "aforesaid places" referred to in Neb.Rev.Stat. § 48-403 (Reissue 1988) are those which are mentioned in Neb.Rev.Stat. §§ 48-401 and 48-402 (Reissue 1988): factories, mills, or workshops; mercantile or mechanical establishments; or other buildings where one or more persons are employed.
10. Negligence. For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from the undischarged duty.
11. Negligence. "Duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk.
12. Negligence: Words and Phrases. A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.
13. Negligence. The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.
14. Negligence: Contractors and Subcontractors. In the landowner-independent contractor context, a landowner's duty to maintain the premises in a reasonably safe condition is limited to latent defects that the independent contractor or his employees do not have knowledge of.
15. Negligence: Contractors and Subcontractors. There is a duty of due care imposed on an employer of an independent contractor when the independent contractor's work involves special risks or dangers, including work that is dangerous in the absence of special precautions.
16. Negligence: Liability: Contractors and Subcontractors. If a general contractor hires an independent contractor to perform work which the general contractor "should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken," the general contractor may be liable for physical harm caused to employees of the subcontractor if the general contractor fails to exercise reasonable care to take such precautions, even though the general contractor has provided, in the contract or otherwise, that the subcontractor be responsible for such precautions.
17. Negligence: Words and Phrases. A "peculiar risk" is one which involves some special hazard resulting from the nature of the work done, which calls for some special precaution.
18. Negligence: Liability: Contractors and Subcontractors. Generally, the employer of an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or his servants.
19. Negligence: Liberty: Contractors and Subcontractors. The employer of an independent contractor may be vicariously liable to a third party (1) if the employer retains control over the contractor's work or (2) if, by rule of law or statute, the employer has a nondelegable duty to protect another from harm caused by the contractor.
20. Negligence: Contractors and Subcontractors: Workers' Compensation. A landowner employer's nondelegable duty to maintain the premises in a safe condition does not extend to employees of an independent contractor or agent who are injured due to the failure of the independent contractor or agent to make those repairs and who, as a result, receive workers' compensation benefits.
James E. Harris and Timothy K. Kelso, of Harris, Feldman, Stumpf Law Offices, Omaha, for appellant.
Jay L. Welch, of Rickerson, Welch, Wulff & Childers, and J. Patrick Green, Omaha, for appellee Nashua Corp.
David D. Ernst and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellee W.S. Bunch Co.
This is an appeal by the plaintiff, Mike Anderson, of an order of the Douglas County District Court granting summary judgment on behalf of the defendant Nashua Corporation (Nashua). Nashua had hired Anderson's employer, W.S. Bunch Co. (Bunch), to paint the interior of several underground storage tanks on Nashua's property. Anderson was severely burned when the underground storage tank he was painting burst into flames while he was inside it. Anderson, having received workers' compensation benefits through Bunch, brought this action, predicated on strict liability and negligence, against Nashua. The issues presented concern the liability of an owner of property to an employee of an independent contractor. Nashua filed a third-party petition against Bunch and its president and vice president. Anderson then filed a motion for partial summary judgment, and Nashua filed a motion for summary judgment. The district court for Douglas County sustained Nashua's motion for summary judgment, held the third-party action was moot, and dismissed Anderson's action. On appeal, Anderson argues that Nashua should have been held strictly liable for conducting an ultrahazardous activity. Anderson also argues that Nashua should have been held strictly liable for violating health and safety regulations, specifically Neb.Rev.Stat. §§ 48-403 and 48-422 (Reissue 1988). With respect to his allegations of negligence, Anderson argues that the trial court should have held Nashua directly liable for its own negligence in failing to see that proper safety precautions were taken and vicariously liable for the negligence of its independent contractor, Bunch. We hold pursuant to Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991), that Nashua could not be held vicariously liable for Bunch's negligence, since Bunch is immune from suit pursuant to the exclusivity provision of the workers' compensation laws. However, genuine issues of material fact exist with regard to whether Nashua was directly negligent. We therefore reverse that part of the district court's holding and remand the cause for further proceedings consistent with this opinion.
The defendant and third-party plaintiff, Nashua, owns and operates a manufacturing plant in Omaha, Nebraska. Nashua hired Bunch, a third-party defendant, to paint the interior of three underground storage tanks located outside the plant. Two of Bunch's employees, Anderson and Eddie Donner, were assigned to do the work.
On December 21, 1986, Anderson and Donner began to paint the first of the three tanks with an epoxy paint. The paint, as it cured, put off flammable vapors. The tank was 8 or 9 feet in diameter and "15 or 20 feet long." There was a single round entrance, approximately 18 inches in diameter, located in the middle of the top of the tank. A single non-explosive-proof light bulb was hanging over this entrance. Donner mixed the paint outside the tank. Anderson used a spray gun to apply paint to the inside of the tank. The first coat was applied without incident and dried overnight. The next day, when Anderson was almost finished with the second application, he started to signal Donner to send a ladder down for him. As he did so, he looked up at the manhole and noticed that the glove on his left hand had caught fire. The flames quickly spread over the rest of Anderson's body, and soon the tank was full of flames. Donner initially covered the manhole in an effort to snuff out the flames, but later pulled Anderson from the tank.
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