Horvath v. M.S.P. Resources, Inc.

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT; GRANT
• Citation: Horvath v. M.S.P. Resources, Inc., 517 N.W.2d 89, 246 Neb. 67 (Neb. 1994)
• Decision Date: 03 June 1994
• Docket Number: No. S-92-344,S-92-344
• Parties: Anton J. HORVATH, Appellant, v. M.S.P. RESOURCES, INC., and ConAgra, Inc., Doing Business as Northern States Beef, Appellees.

Page 89

517 N.W.2d 89

246 Neb. 67

Anton J. HORVATH, Appellant, v. M.S.P. RESOURCES, INC., and ConAgra, Inc., Doing Business as Northern States Beef, Appellees.

No. S-92-344.

Supreme Court of Nebraska.

June 3, 1994.

Syllabus by the Court

1. Pleadings. Neb.Rev.Stat. § 25-811 (Reissue 1989) requires that a defendant's answer "shall contain ... a statement of any new matter constituting a defense."

2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, stipulations, and affidavits in the record disclose that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the appellate court reviews 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.

Michael J. Haller, Jr. and Patricia McCormack of O'Connor & Associates, Omaha, for appellant.

John F. Thomas and Ronald G. Fleming of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee ConAgra.

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

GRANT, Justice, Retired.

Appellant, Anton J. Horvath, sued M.S.P. Resources, Inc. (MSP), and ConAgra, Inc., doing business as Northern States Beef (ConAgra), for injuries appellant received while working as an employee of MSP in a building owned by ConAgra. MSP was made a party solely under the provisions of Neb.Rev.Stat. § 48-118 (Reissue 1988) and has not filed an appellate brief.

Appellant's amended petition alleged that the building owned by ConAgra was "used as a meat packing and processing plant." Appellant further alleged that there was a "rail" in ConAgra's building "used to transfer large carcasses of beef within the building," that ConAgra "negligently allowed the 'rail' to become unsafe," that "the 'rail' had become unsafe due to the construction of said 'rail,' " and that this condition was known by ConAgra or should have been known. Appellant then alleged that on January 23, 1990, he was an employee of MSP and was injured when the rail collapsed and carcasses of beef and the rail fell on appellant. Appellant alleged that ConAgra was negligent as follows:

a. In failing to maintain the "rail" in a reasonably safe condition for the use of the employees of M.S.P. Resources, Inc.;

b. In permitting the bolts that hold the "rail" to become and remain loosened and detached for a long period of time, thereby creating a dangerous and hazardous condition for Plaintiff and other persons lawfully within the building;

c. In failing to inspect the "rail" to determine whether it was safe for use, and, on inspection, in failing to warn Plaintiff and others lawfully using the "rail" of the dangerous condition thereon;

d. In failing to repair the "rail" when for a long period of time Defendant knew or, with the exercise of due care should have known of the dangerous condition of the "rail".

e. In otherwise failing to observe that care and caution required of a reasonably prudent person under the circumstances.

ConAgra's answer admitted that appellant was an employee of MSP, that ConAgra owned the building where the accident occurred, and that the building was used as a meatpacking and processing plant, but denied appellant's other allegations, except those that constituted admissions against interest.

ConAgra also alleged that the proximate cause of appellant's injuries was appellant's own contributory negligence, that appellant "knew and assumed the risk of working in the packing house and using this rail," and that the petition failed to state a cause of action. No other defenses were pled in the answer.

On January 13, 1992, ConAgra filed a motion for summary judgment "for the reason that the pleadings and other matters filed herein show that there is no genuine issue on [appellant's] claims and [ConAgra] is entitled to judgment as a matter of law."

This motion concluded, "In support of this motion for summary judgment, [ConAgra] submits its brief and the affidavit of Henry Wallace."

Hearing was held on the motion on February 6, 1992. At that hearing, ConAgra submitted the affidavit of Henry Wallace, referred to in ConAgra's motion, and also submitted a copy of an agreement between ConAgra and MSP dated June 26, 1989, and two additional affidavits, each dated February 5, 1992. It appears that the three exhibits submitted at the summary judgment hearing were not timely served on appellant as required by Neb.Rev.Stat. § 25-1332 (Reissue 1989). There is no indication in the record as to the time of serving of the ConAgra-MSP agreement on appellant. The other two affidavits were executed on the day before the hearing. Appellant, however, did not object to any of the documents submitted, and the court, on appellant's request to "leave the record open for about ten days," gave appellant 10 days to submit counteraffidavits. No such affidavits were filed. While we do not approve of such a procedural approach, we determine that, under the circumstances, ConAgra's motion for summary judgment was before the trial court.

We also note, at this point, that the trial court's order sustaining ConAgra's motion for summary judgment states that the case is controlled by the law set out in Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991), and that "the plaintiff is barred by the exclusivity of the [Workers'] Compensation Act." Plock also discusses the fact that, in that case, the defendant had not pled the exclusivity defense in its answer. There is no mention in ConAgra's answer in this case as to any such affirmative defense, nor is that concept mentioned in ConAgra's motion for summary judgment or in the submitting of the motion to the trial court. Apparently, ConAgra's position was disclosed in its brief to the trial court. Appellant, however, has not objected or raised any question as to the requirements of Neb.Rev.Stat. § 25-811 (Reissue 1989) that a defendant's answer "shall contain ... a statement of any new matter constituting a defense." Since the case is to be reversed for the reasons hereinafter set out, it might be well that the case be properly pled and properly submitted.

The trial court found that there was no material fact to be decided and that ConAgra was entitled to judgment as a matter of law and, therefore, sustained the motion for summary judgment. Appellant timely appealed to the Nebraska Court of Appeals, and we, under the authority of Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1992), removed the case to this court in order to regulate the caseloads of the Nebraska appellate courts. We reverse the judgment and remand the cause for further proceedings.

We first note that the bill of exceptions contains a fifth exhibit, appropriately marked exhibit 5. It is dated April 1, 1992, which was the day appellant's motion for new trial was denied. A "Reporter's Note," following the index of the bill, states, "Exhibit 5 was marked, offered and ruled on on April 1, 1992, without a record; please find the same received into evidence located on page 10." Exhibit 5 is a document reflecting a single-judge award in the Nebraska Workers' Compensation Court in a case between appellant and MSP. It is dated February 12, 1992, 6 days after the hearing in this case. There is no record concerning this exhibit as to what party offered it or if the other party objected. The record does not show if it is a final award or, indeed, if it is an award. It was untimely filed. The exhibit will not be considered on this appeal.

Our scope of review is clear. We have held that summary judgment is proper when the pleadings, depositions, stipulations, and affidavits in the record disclose that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bauers v. City of Lincoln, 245 Neb. 632, 514 N.W.2d 625 (1994); Rowe v. Allely, 244 Neb. 484, 507 N.W.2d 293 (1993). In appellate review of a summary judgment, the appellate court reviews 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. Bauers v. City of Lincoln, supra; Rowe v. Allely, supra.

The affidavits before the trial court do not address, in any way, the question of appellant's alleged contributory negligence, or appellant's alleged assumption of risks. As stated above, neither ConAgra's answer or other pleadings, nor the record as to the submitting of the motion to the trial court, suggests any affirmative defense. Appellant, however, states in his brief on appeal:

ConAgra moved for summary judgment on the basis that the Plaintiff's employer, [MSP], entered into a contract with ConAgra assuming responsibility for maintenance and repair of the premises. ConAgra contends that any liability they may incur is derived solely from the actions of its independent contractor/agent, [MSP] and that because [MSP] is relieved of common law liability under the Workers Compensation Act, so too, is ConAgra.

Brief for appellant at 1.

Similarly, ConAgra, in its brief, states:

[ConAgra] moved for Summary Judgment on the basis that [MSP] entered into a contract with [ConAgra] whereby MSP was to act as the independent contractor/agent of [ConAgra]. (T12). MSP assumed responsibility for maintenance and repair of the premises. (E1,1:5,6). The issue before the Court was whether Plaintiff was barred from pursuing a negligence action against [ConAgra] based on the exclusivity of the Workers Compensation Act due to its relationship with its independent contractor/agent MSP (Plaintiff's employer).

Brief for appellee at 1.

The transcript before us, at page 12 or elsewhere, does not contain any reference to a contract. Nonetheless, it appears that both parties were...