Gaytan v. Wal-Mart

Decision Date19 September 2014
Docket NumberNo. S–13–039,S–13–039
Citation853 N.W.2d 181
PartiesGuadalupe Gaytan, Special Administrator of the Estate of Jose Sanchez Dominguez, deceased, appellant, v. Wal–Mart et al., appellees.
CourtNebraska Supreme Court

Ronald J. Palagi and Joseph B. Muller, of Law Offices of Ronald J. Palagi, P.C., L.L.O., for appellant.

Jerald L. Rauterkus and Adam R. White, of Erickson & Sederstrom, P.C., for appellees.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Cassel, JJ.

Syllabus by the Court

1. Summary Judgment: Appeal and Error.An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error.In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Summary Judgment: Affidavits.The purpose of Neb.Rev.Stat. § 25–1335 (Reissue 2008) is to provide a safeguard against an improvident or premature grant of summary judgment.

4. Summary Judgment: Motions for Continuance: Affidavits.As a prerequisite for a continuance, or additional time or other relief under Neb.Rev.Stat. § 25–1335 (Reissue 2008), a party is required to submit an affidavit stating a reasonable excuse or good cause for the party's inability to oppose a summary judgment motion.

5. Summary Judgment: Motions for Continuance: Affidavits.A Neb.Rev.Stat. § 25–1335 (Reissue 2008) affidavit that a party submits in support of a continuance need not contain evidence

going to the merits of the case, but must explain why the party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment.

6. Summary Judgment: Motions for Continuance: Pretrial Procedure.In ruling on a request for a continuance or additional time in which to respond to a motion for summary judgment, a court may consider the complexity of the lawsuit, the complications encountered in litigation, and the availability of evidence justifying opposition to the motion. The court may also consider whether the party has been dilatory in completing discovery and preparing for trial.

7. Motions for Continuance: Appeal and Error.A trial court's grant or denial of a continuance will be reviewed for an abuse of discretion.

8. Negligence: Proof.In order to recover in a negligence action, a plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.

9. Negligence.The duty in a negligence case is to conform to the legal standard of reasonable conduct in the light of the apparent risk.

10. Negligence.The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

11. Negligence: Liability: Contractors and Subcontractors.Generally, one who employs an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or its servants.

12. Negligence: Liability: Contractors and Subcontractors.An employer of an independent contractor can be liable for physical harm caused to another if (1) the employer retains control over the contractor's work, (2) the employer is in possession and control of premises, (3) a statute or rule imposes a specific duty on the employer, or (4) the contractor's work involves special risks or dangers.

13. Negligence: Liability: Contractors and Subcontractors: Words and Phrases.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 the delegated duties negligently performed.

14. Negligence: Contractors and Subcontractors.If an owner of premises retains control over an independent contractor's work, the owner has a duty to use reasonable care in taking measures to prevent injury to those who are working on the premises.

15. Negligence: Contractors and Subcontractors.When a general contractor retains control over an independent contractor's work, the general contractor has a duty to use reasonable care in taking measures to prevent injuries to workers.

16. Contractors and Subcontractors: Employer and Employee: Liability.To impose liability on a property owner or general contractor for injury to an independent contractor's employee based upon the owner's retained control over the work, the owner or general contractor must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger which ultimately caused the injury, and (3) the opportunity to prevent the injury. While this necessarily means that the control exerted by the owner or general contractor must be substantial, it also necessarily means that the control must directly relate to the work that caused the injury.

17. Contractors and Subcontractors.Control over the work sufficient to impose liability on a general contractor or owner must manifest in an ability to dictate the way the work is performed, and not merely include powers such as a general right to start and stop work, inspect progress, or make suggestions which need not be followed.

18. Contracts: Contractors and Subcontractors.In examining whether an owner or a general contractor exercises control over the work, both the language of any applicable contract and the actual practice of the parties should be examined.

19. Negligence: Words and Phrases.Constructive knowledge is generally defined as knowledge that one using reasonable care or diligence should have.

20. Negligence: Property.One in possession and control of premises has a duty to exercise reasonable care to keep the premises in a safe condition while the contract is in the course of performance. This duty relates to the physical condition of the premises, not the manner in which the work is done.

21. Negligence: Employer and Employee.The duty to provide specified safeguards or precautions for the safety of others that is imposed by a statute or administrative regulation is nondelegable, in that the one upon whom the duty is imposed cannot escape liability by delegating responsibility for the safeguards to another. But the duty arises only if the statute or regulation specifically imposes the obligation on only the employer and at least implicitly prohibits delegation. It is the nature of the regulation itself that determines whether the duties it creates are nondelegable.

22. Negligence: Liability: Contractors and Subcontractors: Case Disapproved.The vicarious liability principle as articulated in Restatement (Second) of Torts § 416 (1965) does not apply to personal injury claims by employees of subcontractors against general contractors or owners. To the extent that Parrish v. Omaha Pub. Power Dist.,242 Neb. 783, 496 N.W.2d 902 (1993), and subsequent cases hold to the contrary, they are disapproved.


Stephan, J.

Jose Sanchez Dominguez was killed in an accident at a construction site. At the time of the accident, he was working

for a subcontractor on the roof of a building being constructed for Wal–Mart Stores, Inc. (Wal–Mart). The general contractor on the project was Graham Construction, Inc. (Graham). Guadalupe Gaytan, the special administrator of Dominguez' estate, brought this negligence action against Wal–Mart, Graham, D & BR Building Systems, Inc. (D & BR), and another party not pertinent to this appeal. The district court sustained a motion for summary judgment filed by Wal–Mart and Graham. In this appeal from that order, we affirm the judgment of the district court with respect to Wal–Mart, but reverse, and remand for further proceedings as to Graham.


In 2007, Wal–Mart retained Graham to be the general contractor in charge of constructing a new Wal–Mart store in Omaha, Nebraska. In 2008, Graham subcontracted with D & BR to install the steelwork necessary for the building. Dominguez was working for D & BR at the Wal–Mart jobsite.

Part of D & BR's job was to install steel decking sheets on the roof. The sheets were first laid out roughly in place and then permanently aligned and installed. For the permanent installation, D & BR accessed a small number of the sheets through the use of a controlled decking zone (CDZ). Only trained and qualified steelworkers worked inside the CDZ. Any person who was on the roof but outside the CDZ was required to wear personal protection equipment (PPE), such as a harness with an attached rope or cable, at all times.

On January 27, 2008, at approximately 11:45 a.m., Dominguez and another D & BR worker were on the roof. Neither was wearing PPE. Dominguez and his coworker walked across a decking sheet outside of the CDZ, and it gave away, causing them to fall approximately 25 feet. Dominguez was killed as a result of the fall. A subsequent investigation showed the decking sheet had originally been secured with two temporary screws, but that someone had removed the screws or cut them off, so the sheet was actually unsecured. Dominguez' unused PPE was discovered near the fall area.

Gaytan, as special administrator of Dominguez' estate, brought this negligence action against Wal–Mart and Graham.

Walmart and Graham moved for summary judgment. After conducting an evidentiary hearing, the district court sustained their motion. After two appeals from this order were dismissed by the Nebraska Court of Appeals for lack of jurisdiction, the district court entered an order disposing of all pending motions and claims. Gaytan filed a timely appeal from this order, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.1


Gaytan assigns that the district court erred...

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