Ashby v. First Data Resources, Inc.

• Decision Date: 26 February 1993
• Docket Number: No. S-90-165,S-90-165
• Citation: 497 N.W.2d 330,242 Neb. 529
• Parties: Glenn W. ASHBY, Jr., Appellee, v. FIRST DATA RESOURCES, INC., a Corporation, Appellant, and Porter-Trustin-Carlson Co., a Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 330

497 N.W.2d 330

242 Neb. 529

Glenn W. ASHBY, Jr., Appellee, v. FIRST DATA RESOURCES, INC., a Corporation, Appellant and Porter-Trustin-Carlson Co., a Corporation, et al., Appellees.

No. S-90-165.

Supreme Court of Nebraska.

Feb. 26, 1993.

Syllabus by the Court

1. Principal and Agent: Master and Servant: Negligence: Liability. Under the derivative liability that arises under the doctrine of respondeat superior, the negligent acts of an agent or servant done in obedience to the express orders or directions of the master are imputed to the principal or master, who is held liable.

2. Principal and Agent: Independent Contractor: Workers' Compensation: Negligence: Liability: Releases. When an agent or independent contractor is primarily liable, either directly, vicariously, or through the carelessness or negligence of a plaintiff employee, the protection of the workers' compensation laws that form the sole remedy against that agent or independent contractor also releases the principal or general contractor from liability.

3. Principal and Agent: Independent Contractor: Workers' Compensation: Negligence: Liability: Releases. In order for the principal to be released along with the agent through the payment of workers' compensation benefits, the liability of the principal must be derived solely from the liability of its agent. But when the principal is primarily liable, through acts or omissions of persons unconnected to the agent, the principal's liability is not derivative from the agency-employment relationship, and the doctrine of respondeat superior does not apply. Similarly, when the negligent acts or omissions which injure an employee of an independent contractor's are attributable to persons directly and separately employed by the general contractor, the payment of workers' compensation arising from the independent contractor's employment does not release the general contractor from liability.

4. Summary Judgments: Torts: Negligence. Summary judgment may be altogether inapplicable in tort cases of a kind where reasonable minds may differ as to whether an inference of negligence can be drawn from a given set of facts.

5. Trial: Expert Witnesses: Physicians and Surgeons. Testimony of qualified medical doctors cannot be excluded simply because they are not specialists in a particular school of medical practice. Instead, experts or skilled witnesses will be considered qualified if, and only if, they possess special skill or knowledge respecting the subject matter involved so superior to that of persons in general as to make the expert's formation of a judgment a fact of probative value.

6. Verdicts: Appeal and Error. As a general rule, in determining sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence.

7. Verdicts: Appeal and Error. A civil verdict will not be set aside where evidence is in conflict or where reasonable minds may reach different conclusions or inferences, as it is within the jury's province to decide issues of fact.

8. Verdicts: Appeal and Error. A jury verdict may not be set aside unless clearly wrong, and it is sufficient if there is any evidence presented to the jury from which it could find for the successful party. Nor will a jury verdict be set aside on appeal as excessive unless it is clearly against the weight and reasonableness of the evidence and is so disproportionate to the injury proved as to indicate that it was a result of passion, prejudice, mistake, or some means not apparent in the record, or that the jury disregarded evidence or rules of law.

9. Appeal and Error. Absent plain error, an appellate court will not address issues that are not both assigned as error and discussed in the brief of the party alleging prejudicial error.

James D. Sherrets and, on brief, Mark A. Weber, of Sherrets Smith & Gardner, Omaha, for appellant.

Michael L. Smart and Steven Lefler, of Kavan, Smart & Kampfe, Omaha, for appellee Ashby.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

This action arises from a claim of negligence asserted against appellant, First Data Resources, Inc. (FDR), for temporary and permanent injuries sustained by appellee Glenn Ashby, Jr. After a jury trial, FDR was found liable to Ashby in the amount of $375,000. The trial court overruled FDR's subsequent motion for judgment notwithstanding the verdict and alternative motion for new trial. Asserting that various errors were committed at the lower court level, FDR appeals the jury verdict and award of damages. We affirm, finding that the issues involved in this appeal are without merit or involve questions of fact properly left to the province of the jury.

Assuming, as we must, a version most favorable to the prevailing party, the facts are that appellee Glenn Ashby, Jr., is a carpenter who incurred a back-related injury in 1973. Because of this injury, he had back surgery in 1975 and a surgery to increase circulation to his legs in 1976. A doctor advised Ashby not to return to work, but after prolonged rehabilitation, Ashby began working part time in 1980 and was back to full-time status by 1981.

In September 1983, FDR contracted with Porter- Co. (Porter), Ashby's employer, to have an electric garage door installed on the premises of FDR's place of business in Omaha, Nebraska. The door was to be installed between two rooms which were connected by a gravity-driven conveyor roller system and a passageway. In preparing to install the door, Ashby placed a "Do Not Use" sign on the conveyor opening to warn FDR's employees not to use the conveyor system. The room where the sign was placed is the only entry point where boxes could be placed on the conveyor system.

Ashby stood on the conveyor assembly and upon a pipe railing approximately 5 feet above the floor of the passageway as he began installing the door. While Ashby was standing in this position, an employee of FDR's sent a box down the conveyor. The box struck Ashby in the left leg and foot and caused him to fall partially through the conveyor assembly, injuring his leg. Ashby then fell backward over the conveyor, striking the floor below. As a result of the fall, Ashby experienced ongoing back, buttock, and leg pain that eventually prevented him from working.

Ashby filed this action in 1987, alleging that by and through its employees, FDR was negligent by removing or failing to obey the "Do Not Use" sign or by sending the box down the conveyor system despite his presence. FDR denied the allegations and raised the affirmative defenses of contributory negligence and assumption of risk. The affirmative defense was based, in part, on FDR's claim that Ashby could have safely used a ladder instead of standing on the conveyor system. After both sides introduced evidence, the court submitted the issues of negligence and damages to the jury. Finding that FDR caused Ashby to fall and that the fall proximately resulted in Ashby's injuries and damages, the jury returned a verdict in favor of Ashby and against FDR.

In its brief, FDR requests that the judgment and verdict be reversed, dismissed, or remanded for a new trial because the following summarized errors occurred at trial: (1) The trial court erroneously refused to hear FDR's motion for summary judgment; (2) Ashby's medical expert was improperly allowed to testify; (3) the evidence was insufficient on the issues of negligence, injury, aggravation of a preexisting injury, future earnings loss, diminished earning capacity, and damages; (4) statements of an FDR employee were improperly admitted; (5) the award was excessive and influenced by passion and prejudice; (6) the court improperly refused to allow a construction supervisor to testify for FDR; and (7) the court improperly refused to grant FDR's motion for a view of the premises.

At oral argument on appeal, FDR renewed its demurrer, motion for directed verdict, and motion for summary judgment, asserting that Ashby's suit was barred because of this court's decision in Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991). FDR claims that, under Plock, an employee who obtains a settlement in full satisfaction of a workers' compensation claim against an independent contractor is barred from asserting a claim against the general contractor. FDR contends that the decision in Plock establishes that a workers' compensation claim is the sole remedy available for an employee of an independent contractor's who is injured in the course and scope of employment. We find that this argument misconstrues the issues and holding in Plock.

Under the derivative liability that arises under the doctrine of respondeat superior, the negligent acts of an agent or servant done in obedience to the express orders or directions of the master are imputed to the principal or master, who is held liable. Id. But when a statute bars such a claim against an agent, the statute equally protects the principal, on whose behalf the agent has acted. Id. As applied in Plock, the workers' compensation benefits system which barred any further action by the plaintiff employee against a management service equally protected the principal, the defendant owners of a mall, from the derivative liability arising from the acts or omissions of another employee of the management services.

One of the most important factors in the analysis of Plock is the negligence of the agent or the independent contractor. When the agent or independent contractor is primarily liable, either directly, vicariously, or through the carelessness or negligence of the plaintiff employee, the protection of the workers' compensation laws that form the sole remedy against the agent or independent contractor also releases the...