Gerken v. Hawkins Const. Co.

• Decision Date: 09 April 1993
• Docket Number: S-90-1105,Nos. S-90-1062,s. S-90-1062
• Citation: 498 N.W.2d 97,243 Neb. 157
• Parties: Timothy GERKEN, Appellant, v. HAWKINS CONSTRUCTION COMPANY, Appellee. Irene GERKEN and Timothy Gerken, Appellants, v. HAWKINS CONSTRUCTION COMPANY, Appellee.
• Court: Nebraska Supreme Court

Page 97

498 N.W.2d 97

243 Neb. 157

Timothy GERKEN, Appellant, v. HAWKINS CONSTRUCTION COMPANY, Appellee.

Irene GERKEN and Timothy Gerken, Appellants, v. HAWKINS CONSTRUCTION COMPANY, Appellee.

Nos. S-90-1062, S-90-1105.

Supreme Court of Nebraska.

April 9, 1993.

Syllabus by the Court

1. Demurrer: Pleadings. When ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.

2. Pleadings. A petition is sufficient if, under the facts alleged, the law entitles a plaintiff to recover. That is to say, facts are sufficient to constitute a cause of action when they are a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.

3. Motor Vehicles: Theft: Damages. No liability attaches to the owner of a car when taken by a thief, or other unauthorized person, who, while driving the same, has an accident therewith resulting in injury and damage to third persons.

Vard R. Johnson, of Broom, Johnson, Fahey & Clarkson, Omaha, for appellants.

Ronald F. Krause and David A. Blagg, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

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

BOSLAUGH, Justice.

These cases arise out of an incident that occurred in Omaha, Nebraska, on June 30, 1986. On that date, the defendant, Hawkins Construction Company, was engaged in constructing the Arthur C. Storz Expressway. The defendant was using a large bulldozer which it left at the defendant's worksite near 2614 Saratoga Street at the end of the workday. The petitions allege that on the evening of June 30, a person or persons unknown to the plaintiffs climbed aboard the bulldozer, started it, put it into forward operation, and then abandoned it. As a result, the bulldozer collided with a house at 2614 Saratoga Street, occupied by the plaintiff Timothy Gerken, damaging the house and its contents.

The plaintiffs in case No. S-90-1105 are Irene Gerken and Timothy Gerken. Irene Gerken is alleged to be the owner of the house at 2614 Saratoga Street, which has been sold to Timothy Gerken, her son, pursuant to an oral agreement. The plaintiffs allege the damages to the house amounted to $30,000.

The plaintiff in case No. S-90-1062 is Timothy Gerken, who alleges that personal property of his having a value of $750 was destroyed and that he was in the house at the time the bulldozer collided with it. As a result, he was placed in immediate terror, fright, and fear for his safety and has suffered mental and emotional harm and physical injury, including a $5,000 loss of income.

The defendant filed general demurrers to the petitions in each case. The trial court sustained the demurrers and dismissed the petitions. The plaintiffs have appealed from those judgments.

"[W]hen ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.... A petition will be sufficient if, under the facts alleged, the law entitles a plaintiff to recover.... That is to say, facts are sufficient to constitute a cause of action when they are a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff."

Northland Ins. Co. v. State, 242 Neb. 10, 12-13, 492 N.W.2d 866, 868 (1992).

The petitions alleged that the defendant was negligent in the storage, protection, and care of the bulldozer. Specifically, the petitions alleged that the defendant left the bulldozer at the worksite unattended and unsecured. In addition, the defendant left an operating key in or near the bulldozer ignition. The petitions further alleged that the work area where the bulldozer was left was a residential area occupied by many low-income families with children. Further, the worksite had been subject to vandalism prior to June 30, 1986. The plaintiffs allege that the defendant's negligence was the proximate cause of their injury and property damage.

The petitions also alleged the contract between the city of Omaha and the defendant provided:

"In the performance of this contract, the contractor shall comply with all applicable Federal, State and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and make any other needed actions, on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably and necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract."

The plaintiffs further alleged that the defendant was negligent in the following particulars:

(a) Defendant failed to use reasonable care in protecting the safety of the public while engaged in the construction project for the City of Omaha by failing to fence the construction site to prevent access to construction equipment by unauthorized personnel, by failing to place a watchman or other person on site, after hours, to prevent access to construction equipment by unauthorized personnel, and by failing to render dangerous machinery inoperable except to authorized personnel.

(b) By leaving an ignition key in or about the bulldozer, Defendant created an attractive nuisance, inviting children known to be in the area to put into operation a highly dangerous piece of equipment.

The trial court based its decision on Hersh v. Miller, 169 Neb. 517, 99 N.W.2d 878 (1959). Although Hersh v. Miller involved an automobile rather than a bulldozer, the trial court stated there was no valid reason or reasonable basis to deviate from the rule stated in the Hersh v. Miller case, that the intervening acts of a thief were the proximate cause of the harm inflicted upon the plaintiffs.

In Hersh v. Miller, the plaintiff alleged that the defendant left an automobile unlocked and unguarded in violation of an ordinance that required automobiles to be locked. The petition further alleged that a 12-year-old started the automobile, drove it away, and subsequently collided with the plaintiff's truck. After discussing the concepts of negligence, proximate cause, and efficient intervening cause, this court noted:

We have never dealt squarely with a case, such as here, where a thief, or any other unauthorized person, takes a car parked in violation of an ordinance such as here presented. However, many courts have as is evidenced by the annotation contained in 51 A.L.R.2d at page 633, under the subject "Liability for damage or injury by stranger starting motor vehicle left parked on street." The great majority thereof have come to the conclusion that no liability attaches. As stated in Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560: " * * * the conduct of the thief was an intervening cause which the defendants were not bound to anticipate and guard against." ... As stated in Permenter v. Milner Chevrolet Co., [229 Miss. 385, 91 So.2d 243], supra, by quoting from Midkiff v. Watkins (La.App.), 52 So.2d 573: "Under the facts as related in this case, we are convinced that there was an intervening cause which broke the sequence of the defendant's alleged negligence, if any. To hold the defendants liable in this case would go far towards making them insurers as to the consequences of every accident in which their car might become involved while operated by thieves or their successors in possession."

169 Neb. at 522, 99 N.W.2d at 882. The Hersh v. Miller court concluded:

We think the reasons stated by the majority of the courts that have passed thereon that no liability attaches to the owner of a car parked in violation of such ordinance when taken by a thief, or other unauthorized person, who, while driving the same, has an accident therewith resulting in injury and damage to third persons, such as the appellant, are sound and should be followed. The same would be true in the absence of such an ordinance.

Id. at 523, 99 N.W.2d at 882. The Hersh v. Miller holding was affirmed in a later case, Flannery v. Sample Hart Motor Co., 194 Neb. 244, 231 N.W.2d 339 (1975).

There are cases in other jurisdictions in which it has been held that cases involving heavy equipment such as a bulldozer should be distinguished from the cases involving automobiles. See, for example, Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269 (1955), cited by the plaintiffs. However, we believe the applicable rule is that stated in the Hersh v. Miller and Flannery v. Sample Hart Motor Co. cases.

We conclude that the actions of the unknown person or persons who started the bulldozer before it collided with the Gerkens' house was an independent intervening cause, which was the proximate cause of the accident. The plaintiffs did not allege facts in their petitions that show that the acts of the unknown person or persons in the operation of the bulldozer were foreseeable by the defendant. Although the amended petitions alleged that the area where the construction site was located was a residential area occupied by many low-income families with children and also alleged that the construction site had previously been subject to vandalism, the petitions did not allege that the bulldozer was actually operated by children or that any heavy equipment in the construction area had previously been vandalized or tampered with on prior occasions. Consequently, the petitioners...