Brown v. American Tel. & Tel. Co.

• Decision Date: 21 March 1997
• Docket Number: No. S-95-100,S-95-100
• Citation: 252 Neb. 95,560 N.W.2d 482
• Parties: Jenny BROWN, Appellant, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al., Appellees.
• Court: Nebraska Supreme Court

Page 482

560 N.W.2d 482

252 Neb. 95

Jenny BROWN, Appellant, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al., Appellees.

No. S-95-100.

Supreme Court of Nebraska.

March 21, 1997.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views 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. Workers' Compensation. The Nebraska Workers' Compensation Act is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment, and as such, payment of workers' compensation benefits relieves the employer of tort liability in connection with an accident.

3. Torts: Liability: Releases. Generally, in a situation where two persons are not actively joint tort-feasors, but one person commits a tort and is primarily liable while the liability of the other person is secondary, the releasor's acceptance of satisfaction from one discharges the other as well.

4. Workers' Compensation: Independent Contractor: Liability. When an independent contractor is primarily liable and any liability of an owner is derived solely from the actions of its independent contractor, the protection of the workers' compensation laws that forms the sole remedy against the independent contractor also releases the owner from liability.

5. Workers' Compensation: Negligence: Independent Contractor: Liability. If there is evidence that an owner was directly or independently negligent through acts or omissions of persons unconnected to an independent contractor, the payment of workers' compensation arising from the independent contractor's employment does not release the owner from liability.

6. Summary Judgment: Proof. The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists and that such party is entitled to judgment as a matter of law.

7. Summary Judgment: Evidence. A movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to a judgment if the evidence were uncontroverted at trial. At that point, the burden of producing evidence shifts to the party opposing the motion.

John P. Fahey, of Dowd, Dowd & Fahey, Omaha, for appellant.

Timothy W. Marron, of Timmermier, Gross & Burns, Omaha, for appellee American Telephone & Telegraph.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and BUCKLEY, D.J.

WRIGHT, Justice.

Jenny Brown brought this negligence action seeking damages for injuries suffered in a slip-and-fall accident. American Telephone & Telegraph Company, Inc. (AT & T), was the owner of the premises where Brown worked as an employee of ARA Services, Inc. (ARA). The district court sustained AT & T's motion for summary judgment, and Brown appeals.

SCOPE OF REVIEW

In reviewing a summary judgment, an appellate court views 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. Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996); Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996).

FACTS

On September 2, 1988, Brown was employed by ARA as a baker in the cafeteria located on the premises of AT & T. Brown allegedly slipped and fell on some standing water at or near her work station, which accident resulted in permanent injuries.

ARA had contracted with AT & T to provide cafeteria services for AT & T's employees at its Omaha location. The relevant provisions of the contract provided:

EQUIPMENT PROVIDED BY [AT & T]--The cafeteria equipment listed in Attachment E, EQUIPMENT LIST AND FLOOR PLAN DRAWING (the "Equipment"), shall be furnished to [ARA] by [AT & T] at no charge. [ARA] agrees to indemnify [AT & T] for any claim made by [ARA's] employees, or by any other persons, for personal injury or property damage arising out of [ARA's] use of the equipment, which [ARA] agrees to accept at all times during the term of this agreement as is, where is, and [AT & T] has no responsibility for its condition or state of repair except as set forth in the clause REPLACEMENT OF EQUIPMENT. [ARA] agrees not to remove it from [AT & T's] premises, to properly maintain it, and to return it to [AT & T] upon expiration or termination of this agreement or at such earlier time as [AT & T] may request, in the same condition as when received by [ARA], fair wear and tear excepted. Such use by [ARA] of the equipment shall be controlled by the clause entitled INSURANCE AND INDEMNITY ....

GENERAL--[AT & T] shall provide [ARA] with a cafeteria containing a kitchen, a serving area, and a dining area equipped with the appliances, fixtures, chinaware, glassware, flatware, trays, dining tables, and chairs listed on the attached inventory, together with the heat, hot and cold water, and utility services that may reasonably be required for the efficient performance of [ARA's] obligations under this agreement, and adequate, sanitary toilet facilities and dressing rooms for [ARA's] employees. Except as otherwise provided in this agreement, [AT & T] shall also furnish building and equipment maintenance, pest control, and janitorial services for the cafeteria, including the washing of walls, ceilings, filters, hoods and ducts of any ventilation systems in the kitchen, and, in the dining areas, table pedestals and chairs, and sweeping, mopping, stripping and refinishing floor area (exclusive of the area behind the serving counter). [AT & T] shall have full access, at all times, to the cafeteria premises and equipment with or without notice.

....

[ARA] shall wash all cafeteria chinaware, glassware, flatware, trays, and utensils and wash or otherwise clean all kitchen equipment and all floors (except those which [AT & T] has agreed to wash or otherwise clean); remove garbage to the place [AT & T] shall designate; have all necessary laundering done; and wash all table tops in the dining area, and, during serving hours, keep all chair upholstery wiped clean.

In her amended petition, Brown alleged that AT & T was negligent in failing to repair or otherwise divert leaks from fixtures and equipment when AT & T knew or should have known of the leakage, which failure allowed water to accumulate on the floor at or near Brown's work station. She further alleged that AT & T failed to remove the accumulated water when it knew or should have known of the accumulated water on the floor.

AT & T's answer alleged that Brown had failed to state a cause of action and that Brown's exclusive remedy was against her employer for workers' compensation benefits. AT & T claimed it was entitled to the same defenses at law as Brown's employer.

AT & T moved for summary judgment, which the district court granted, and Brown appeals.

ASSIGNMENTS OF ERROR

Brown makes three assignments of error: (1) The district court erred in failing to hold that AT & T, as an owner in control of a premises where work performance under a contract with the owner is to be executed, is to exercise reasonable care to keep the premises in a safe condition; (2) the court erred in failing to hold that AT & T, as a possessor of land thus retaining control, is subject to liability for personal injuries to business visitors caused by a natural or artificial condition if AT & T knows, or by the exercise of reasonable care could discover the condition which, if known to AT & T, it should realize as involving an unreasonable risk of harm to the invitee; and (3) the court erred in failing to hold that where the principal, AT & T, is primarily liable, through acts or omissions of persons unconnected to the agent, ARA, the principal's liability is not derivative from the agency employment relationship, and the doctrine of respondeat superior does not apply.

ANALYSIS

ARA was an independent contractor hired to operate AT & T's cafeteria and vending machines, and Brown was an employee of ARA. As a result of her injuries, Brown received workers' compensation benefits from ARA. Therefore, ARA was released from any further liability for Brown's injuries. The Nebraska Workers' Compensation Act is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment, and as such, payment of workers' compensation benefits relieves the employer of tort liability in connection with the accident. See Tompkins v. Raines, 247 Neb. 764, 530 N.W.2d 244 (1995).

An issue remains as to whether the payment of workers' compensation benefits by ARA also discharged any liability on the part of AT & T. Whether AT & T has been relieved of liability through the release of ARA depends on the nature of AT & T's liability in this case.

Generally, in a situation where two persons are not actively joint tort-feasors, but one person commits the tort and is primarily liable while the liability of the other person is secondary, the releasor's acceptance of satisfaction from one discharges the other as well. See Ericksen v. Pearson, 211 Neb. 466, 319 N.W.2d 76 (1982). This is true because secondary liability does not indicate a degree of...