Downey v. Western Cmty. Coll. Area

• Decision Date: 06 January 2012
• Docket Number: No. S–10–867.,S–10–867.
• Parties: Mack DOWNEY and Deborah Downey, husband and wife, and Ferguson Signs, Inc., appellees and cross-appellants, v. WESTERN COMMUNITY COLLEGE AREA, which operates Western Nebraska Community College, appellant and cross-appellee.
• Court: Nebraska Supreme Court

276 Ed. Law Rep. 989

282 Neb. 970

808 N.W.2d 839

Mack DOWNEY and Deborah Downey, husband and wife, and Ferguson Signs, Inc., appellees and cross-appellants,

v.WESTERN COMMUNITY COLLEGE AREA, which operates Western Nebraska Community College, appellant and cross-appellee.

No. S–10–867.

Supreme Court of Nebraska.

Jan. 6, 2012.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought under the Political Subdivisions Tort Claims Act, an appellate court will not disturb the factual findings of the trial court unless they are clearly wrong.

2. Judgments: Appeal and Error. When determining the sufficiency of the evidence to sustain the trial court's judgment, a court must consider the evidence in the light most favorable to the successful party; every controverted fact must be resolved in favor of such party, and the successful party is entitled to the benefit of every inference that can be deduced from the evidence.

3. Statutes. Statutory interpretation presents a question of law.

4. Appeal and Error. An appellate court resolves questions of law independently of the trial court.

5. Negligence: Liability: Contractors and Subcontractors. A nondelegable duty rule applies when the issue is whether an owner, who has maintained possession of the property, can be held liable for defects that arise on the premises through the negligence of an independent contractor.

6. Negligence: Liability: Proximate Cause. A possessor of land is liable for injury caused to a lawful visitor by a condition on the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the defendant should have expected that a lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to the plaintiff.

7. Negligence. Several factors relate to whether a possessor has breached a duty to use reasonable care. These include (1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; and (7) the burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.

8. Negligence: Invitor–Invitee: Licensee: Contractors and Subcontractors. After Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), whether a possessor of land has breached a duty to use reasonable care to protect lawful visitors is determined under the same test for both licensees and invitees, which includes independent contractors.

9. Negligence: Invitor–Invitee. Even if a possessor of land has reason to believe that a lawful visitor will discover a defect, it can still have a duty to take reasonable measures to protect lawful visitors under circumstances showing that it should expect that visitors will not realize the danger or will fail to protect themselves.

10. Negligence. Whether a defendant breaches a duty is a question of fact for the fact finder.

11. Workers' Compensation: Contribution. Claims for contribution against employers covered by the workers' compensation statutes are barred.

12. Workers' Compensation: Contribution: Parties: Liability. An employer covered by workers' compensation does not have a common liability with a third party, which is necessary for contribution.

13. Workers' Compensation: Statutes: Liability. Because an employer covered by workers' compensation has no liability in tort, a release with such an employer is not a release with a “person liable” under Neb.Rev.Stat. § 25–21,185.11 (Reissue 2008).

14. Liability: Contribution. Indemnity and contribution are distinct concepts.

15. Negligence: Employer and Employee: Liability. A defendant can point to the negligence of the employer and claim that the employer was the sole cause of the accident. But the defendant may not reduce his or her own liability by apportioning some of the fault to the employer.

16. Liability: Damages. Indemnification is available when one party is compelled to pay money which in justice another ought to pay or has agreed to pay.

17. Liability: Damages. Generally, the party seeking indemnification must have been free of any wrongdoing, and its liability is vicariously imposed.

18. Liability: Contribution: Damages. If a party seeking indemnification is independently liable to the plaintiff, that party is limited to a claim for contribution.

19. Contribution: Words and Phrases. Contribution is defined as a sharing of the cost of an injury as opposed to a complete shifting of the cost from one to another, which is indemnification. Richard A. Douglas and Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek & Ossian, P.C., Scottsbluff, for appellant.

Steven W. Olsen and John F. Simmons, of Simmons Olsen Law Firm, P.C., Scottsbluff, for appellee Ferguson Signs, Inc.

Kyle J. Long, Scottsbluff, of The Robert Pahlke Law Group, for appellees Mack Downey and Deborah Downey.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

CONNOLLY, J.

Like many cases arising from construction site injuries, this appeal raises several interrelated issues. These include premises liability, the nondelegable duty doctrine, indemnification, and the thorny issue of whether our comparative negligence statutes allow a court to apportion liability to an employer who is immune from suits in tort because of our workers' compensation statutes.

Mack Downey and his wife sued Western Community College Area, which operates Western Nebraska Community College (the College), after Downey suffered severe injuries from a fall that occurred while he was replacing a scoreboard at the College. His employer, Ferguson Signs, Inc., was named as a plaintiff in the suit to preserve a subrogation interest for workers' compensation benefits. After a bench trial, the court found that the College was liable for a portion of Downey's injuries. It also apportioned liability to Downey and Ferguson Signs. The College appeals, and the Downeys and Ferguson Signs cross-appeal.

I. BACKGROUND

In 2003, the College requested bids to replace a scoreboard in its gym. The bid included a requirement that the winning bidder help the College remove the old scoreboard. The College left the means and method of removing the existing scoreboard to the contractor and subcontractors. The College awarded the project to NEVCO Scoreboard Company. Ferguson Signs was a subcontractor for the project.

The scoreboard was about 12 feet square at the top, 9 1/2 feet square at the bottom, and 6 feet tall. The scoreboard had a wooden platform installed about 3 feet above the metal floor of the scoreboard. From the top of the scoreboard to the wooden floor was about 3 to 4 feet. This platform sat at an angle within the scoreboard. Looking at it from the top, it looked like a diamond set in a square. This left triangular-shaped gaps at the corners of the scoreboard where the metal floor was exposed. The bottom of the scoreboard was about 30 feet off the gym floor.

Although some employees of the College had previously entered the scoreboard without the use of safety equipment, they knew that the sheet metal floor was not a weight-bearing surface. Still, no one at the College told Downey or any of the other contractors that the scoreboard's floor was not weight bearing.

Downey and Ferguson Signs' original plan to remove the old scoreboard was to simply lower the scoreboard to the floor. But the plan changed because there was no lift system in place that would allow them to lower the scoreboard. Ferguson Signs discussed the need for a new plan with a maintenance worker for the College. They agreed that Ferguson Signs would have to weld a new plate to the gym ceiling to allow an attached chain to lower the scoreboard. Although there was a discussion about hiring another subcontractor, the owner of Ferguson Signs decided that Downey could do the necessary welding. The welding point was to be on the ceiling directly above the middle of the scoreboard, which would mean that Downey would have to enter the scoreboard to do the welding. Despite at least one employee of the College knowing that one of the subcontractors would have to enter the scoreboard to remove it, the College and its employees failed to warn Downey or Ferguson Signs of the potential danger.

Before Downey's fall, the owner of Ferguson Signs and Downey had climbed the scaffolding and looked into the scoreboard to try to find a way to lower it. Neither of them, however, ever entered the scoreboard. Downey testified that he could not see how the metal floor was attached to the scoreboard. According to Downey, the metal could have been weight bearing depending on how it was attached.

A custodian working for the College saw Downey's fall. He stated that Downey climbed the scaffolding next to the scoreboard. Then he put one leg over, swung the other leg over, and then immediately fell through the bottom of the scoreboard to the floor 30 feet below. He landed headfirst and suffered serious injuries.

Downey received workers' compensation benefits from Ferguson Signs. Then, Downey and his wife sued the College. Ferguson Signs was named as a plaintiff because it had paid workers' compensation benefits to Downey and wished to preserve its subrogation interest. Downey alleged that the College was...