Foltz v. Northwestern Bell Telephone Co.
| Decision Date | 08 November 1985 |
| Docket Number | No. 84-306,84-306 |
| Citation | 376 N.W.2d 301,221 Neb. 201 |
| Parties | Jerome J. FOLTZ, Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, a Corporation, and Coen Construction Company, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Directed Verdict. A party against whom a motion for directed verdict is aimed is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence. A court should not decide an issue as a matter of law unless the facts adduced to sustain an issue are such that reasonable minds can draw but one conclusion therefrom.
2. Trial: Jury Instructions. A trial court has a duty to properly analyze, summarize, and submit to the jury the substance of allegations of negligence in a tort petition.
3. Master and Servant: Independent Contractor: Liability. If an employer, accepting and resuming possession of work by an independent contractor, could have known from a reasonable inspection that there was a defect in the work, such employer may be liable for a third person's injury caused by that defective work.
4. Master and Servant: Independent Contractor: Liability: Words and Phrases. One employing an independent contractor may be liable for damages resulting from injury caused by the contractor's negligence when, by rule of law or statute, the duty to guard against the risk is nondelegable. A nondelegable duty means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from delegated duties negligently performed.
5. Master and Servant: Independent Contractor: Liability. As a result of a nondelegable duty, the responsibility or ultimate liability for proper performance of a duty cannot be delegated, although actual performance of the task required by a nondelegable duty may be done by another.
6. Master and Servant: Independent Contractor: Liability. One on whom a nondelegable duty is enjoined may not, by employing an independent contractor, escape vicarious responsibility and liability for proper performance of that nondelegable duty.
7. Master and Servant: Independent Contractor: Liability: Negligence. Exoneration of an independent contractor from a charge of negligence also exonerates the independent contractor's employer from vicarious liability dependent on that contractor's negligence.
8. Pleadings: Appeal and Error. An appeal is disposed on the basis of the theory presented by the pleadings on which a case has been tried.
George H. Moyer, Jr., of Moyer, Moyer, Egley & Fullner, Madison, and Thomas M. Monaghan of Monaghan, Tiedeman & Lynch, Omaha, for appellant.
Joseph K. Meusey and Robert F. Rossiter, Jr., of Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee Northwestern Bell.
Melvin C. Hansen of Hansen, Engles & Locher, P.C., Omaha, for appellee Coen Const.
After judgment on a verdict in favor of Coen Construction Company (Coen) and Northwestern Bell Telephone Company (Bell), Jerome Foltz, as next friend of his son, Timothy, appeals from the district court for Platte County. We affirm.
For removal and salvage of the telephone lines and poles, Bell and Coen, on January 1, 1974, entered a written contract which, inter alia, included an indemnification agreement and provided:
4. ... Remove poles and associated hardware, backfill pole hole and dispose of old poles and wire.
....
18. The Company's Representative will inspect all work and materials furnished by the Contractor and may condemn or reject any or all of such work or materials if in his opinion the same are not in accordance with this contract or with the specifications and changes....
....
31. The Contractor assumes full responsibility for all injuries to, or death of, any person or persons or for damages to property, including property and services of the Company, and for all claims, losses or expenses which may in any way arise out of the performance of the work, whether caused by negligence or otherwise....
....
37. The relationship of the Contractor with the Company hereunder shall be that of an independent contractor. The Contractor shall have full control and direction over the mode and manner of doing the work and of his personnel employed on or about the work.
As a record of its poles and their location, Bell maintained form "E297A" which contained dates of pole installations, length and class of poles, whether a pole was weatherproofed, and the year a pole was replaced or removed. The project contracted by Coen involved removal of at least 2,600 poles over a span of 150 miles, as well as salvage of wire and hardware from the pole line. If any pole was being used to support a farmer's fence, Coen severed such pole at a height suitable for continued use consistent with other posts in the fence. Poles outside fence lines were cut by Coen at a height not less than 4 feet above ground level and pulled from the ground. Bell's employees rolled all wire removed from poles. Coen kept the removed poles, hardware, and noncopper wire salvaged, while Bell retained all copper wire from the pole lines.
The pole line in question was located approximately 2 feet east of a fence on the Foltz farm. The line running from the pole line to the Foltz residence became useless after installation of underground service to Foltz. Bell generally kept itself informed about Coen's work, and whenever a telephone line crossed a major road, Bell's representatives made certain that traffic was not impaired. A Bell inspector periodically drove through the work area and occasionally stopped at random to check Coen's work. Also, the foreman of Bell's wire-winding crew kept track of Coen's progress. Coen and Bell's inspector had copies of form E297A to determine the number of poles per mile, and to have at hand other pertinent information about the pole lines.
Coen completed its work in April 1974. Before payment to Coen at conclusion of the work, a Bell representative accompanied Coen on an inspection of the area. This included a truck tour on the roads adjacent to the various pole lines, with an occasional spot check of the completed work. Bell was satisfied with Coen's work and accepted the completed project.
In July 1978 Timothy, 16 years of age, was operating a northbound tractor pulling a rotary mower to cut grass and weeds in the north-south ditch between Foltz' fence and the county road. This was the ditch where Coen, some 4 years earlier, had worked in removing Bell's pole line. Foltz was required to mow the ditch twice annually. See Neb.Rev.Stat. § 39-1811(1) (Reissue 1984). During that mowing operation next to Foltz' fence line, the tractor driven by Timothy tilted slightly to the right due to the slope of the ditch bank. Brome grass in the ditch was approximately 3 feet tall. The left rear wheel of the tractor struck a stub of a telephone pole concealed by grass at a point approximately 2 feet east of Foltz' fence line. As a result of the tractor's impact with the pole, Timothy was thrown from the tractor and sustained serious bodily injury with consequential medical expenses.
Bell investigated the accident and, based on form E297A, concluded that Timothy's tractor had struck the stump of pole No. 4, originally a 16-foot class 10 eastern pine installed in 1933. In 1944 pole No. 4 was replaced with a 10-foot class 10 weatherproofed eastern pine.
Foltz, as next friend for Timothy, filed suit against Bell and Coen. In paragraph 4 of his second amended petition Foltz alleged:
During 1974 Defendant Northwestern Bell Telephone Company installed the line from the southeast corner of the Foltz farm to the Foltz residence underground and contracted and agreed with the Defendant Coen Construction Company to remove and salvage the pole and wire line.... At all times material hereto the Defendant Coen Construction Company was subject to the direction and control, acted on behalf of, and was in the employ of the Defendant Northwestern Bell Telephone Company. Defendants removed all of the poles save one, which defendants topped at a point approximately one and one-half feet above ground level. The portion of the pole remaining above ground level was weathered, gray and virtually invisible when surrounded by grasses and foliage which were wont in nature to grow in the area between Foltz's east fence and the west edge of the main traveled portion of the county road bordering the east line of the Foltz farm. [Emphasis supplied.]
Specifications of negligence on the part of Bell and Coen were alleged in paragraph 6 of Foltz' petition. (We have designated the grouping of such specifications as [A] and [B].)
Foltz alleged:
[A]
The collision between the tractor and the butt of the telephone pole was proximately caused by the negligence of the defendants in the following particulars:
(a) Defendants failed to remove the butt from an area which it knew or should have known would have to be traveled by anyone farming the adjacent land in order to destroy weeds growing thereon.
(b) Defendants cut the poles off at a height above the ground too high to permit mowing equipment to pass safely over it but not high enough to prevent it from being obscured by grass and weeds which defendant knew or in the exercise of reasonable care should have known were wont in nature to grow up around it.
(c) Defendants failed to place a suitable warning marker or flag upon said butt when it knew or in the exercise of reasonable care should have known that failure to do so would result in a collision.
(d) Defendants failed to remove all of the poles and backfill the holes as required by the terms of [the Bell-Coen contract].
Immediately following the foregoing allegations of negligence by Bell and Coen, Foltz alleged:
[B]
In addition to the...
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