McKinstry v. Cass County

• Decision Date: 10 June 1988
• Docket Number: No. 86-250,86-250
• Citation: 228 Neb. 733,424 N.W.2d 322
• Parties: Christina L. McKINSTRY, Special Administrator of the Estate of Eugene McKinstry, Deceased, Appellant, v. COUNTY OF CASS et al., Appellees.
• Court: Nebraska Supreme Court

Page 322

424 N.W.2d 322

228 Neb. 733

Christina L. McKINSTRY, Special Administrator of the Estate of Eugene McKinstry, Deceased, Appellant, v. COUNTY OF CASS et al., Appellees.

No. 86-250.

Supreme Court of Nebraska.

June 10, 1988.

Syllabus by the Court

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous.

2. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial of a law action, the Supreme Court does not reweigh evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

3. Appeal and Error. Regarding a question of law, the Supreme Court has an obligation to reach its conclusion independent from the conclusion reached by a trial court.

4. Negligence: Proof. To prevail in an action based on negligence, a plaintiff must prove four essential elements: the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

5. Negligence. The general rule which governs where a party is responsible for a dangerous place, agency, instrumentality, or operation likely to cause injury or damage to persons or property rightfully in its proximity is that such party is charged with the duty of taking due and suitable precautions to avoid injury or damage to such persons or property.

6. Contractors and Subcontractors: Liability: Negligence. A general contractor remains liable for the negligence of the subcontractor if the contractor retains control of the work--or if, by rule of law or statute, the duty to guard against the risk is made nondelegable.

7. Master and Servant: Independent Contractor: Liability: Negligence. 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.

8. Contractors and Subcontractors: Negligence. A general contractor, in control of the premises where the work performance under a contract with the owner is being carried out, owes a duty to persons rightfully on the premises to keep the premises in a reasonably safe condition while the contract is in the course of performance.

9. Contractors and Subcontractors: Words and Phrases. A contractor is one who enters into a contract with the owner of certain property to perform some type of work on that property. A subcontractor is one who independently contracts with the contractor to do part of the work which the contractor has previously agreed to perform.

Frank L. Burbridge, Michael G. Connery, and Frank A. Taylor of Kutak Rock & Campbell, Omaha, for appellant.

John R. Douglas of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Cass County.

Michael A. Fortune of Erickson & Sederstrom, P.C., Omaha, for appellee WeWeldit & Repair, Inc.

J. Arthur Curtiss of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Husker Steel Corp.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and BLUE, District Judge.

SHANAHAN, Justice.

Eugene McKinstry died as the result of an accident during construction of a bridge for a Cass County road. Christina L. McKinstry, special administrator (personal representative) of the estate of Eugene McKinstry, appeals from the judgment of the district court for Cass County, denying recovery on the McKinstry claim in a wrongful death action against Husker Steel Corporation (Husker Steel), WeWeldit & Repair, Inc. (WeWeldit), and County of Cass (county). Cornhusker Casualty Company was joined as a defendant on account of its status and subrogation interest as the insurance company which provided workers' compensation coverage for WeWeldit, Eugene McKinstry's employer. See Neb.Rev.Stat. § 48-118 (Reissue 1984).

Plaintiff's action against the county was brought pursuant to the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983 & Cum.Supp.1984). The action against the other defendants was based on common-law negligence. All actions were tried to the court.

STANDARD OF REVIEW

In a bench trial of a law action, a trial court's factual findings have the effect of a verdict and will not be set aside unless clearly erroneous. Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487 (1986). In reviewing a judgment awarded in a bench trial of a law action, the Supreme Court does not reweigh evidence but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence. Zeller v. County of Howard, 227 Neb. 667, 419 N.W.2d 654 (1988); Alliance Nat. Bank v. State Surety Co., supra. Regarding a question of law, the Supreme Court has an obligation to reach its conclusion independent from the conclusion reached by a trial court. Boisen v. Petersen Flying Serv., 222 Neb. 239, 383 N.W.2d 29, 60 A.L.R. 4th 953 (1986).

CONSTRUCTION AGREEMENTS

The county entered a written agreement with Husker Steel to construct a bridge for a road over Dee Creek. Husker Steel prepared blueprints for the bridge project, which included "all steel, concrete, erection [and] 1 shop coat of paint on [the] superstructure." In view of its past experience and in reference to its agreement with Husker Steel, the county requested that WeWeldit perform the actual construction in erecting the bridge. Husker Steel then contracted with WeWeldit to build the bridge according to Husker Steel's blueprints and agreed to pay WeWeldit for that work. The Husker Steel-county contract made no provision for trenching, excavating, and earthwork as a part of the bridge project. Keeping with its custom and apart from its agreement with Husker Steel, the county undertook all "responsibility for excavation" concerning the bridge project. In earthwork and excavating for projects such as the construction contracted with Husker Steel, the county used its own equipment and paid its employees who did such work.

CONSTRUCTION SITE AND ACCIDENT

To construct the bridge, WeWeldit erected a concrete "headwall" parallel with and on each side of the creek. Each headwall supplied the main support for the bridge

and roadbed overhead. To support each headwall and prevent water from coursing between the headwall and the creek bank, a vertical "wingwall" was attached at each end of the headwall and ran obliquely into the creek's bank for a distance of 20 feet. Construction of a wingwall required a trench immediately adjacent to the wall for work at the base of and along that wall, such as securing the wingwall's attachment to the headwall. For [228 Neb. 736] that excavation, Karl Neumeister, a county employee, appeared with the county's backhoe at the construction site to dig the wingwall trench. Inasmuch as Husker Steel had no active participatory role in erecting the bridge, no one from Husker Steel was present for the excavation by Neumeister. Although WeWeldit's foreman indicated the centerline, depth, and length of the proposed wingwall trench, the foreman did not direct or supervise Neumeister regarding the width of the trench or the slope from the bottom of the trench to the surface of the creek bank. Along the wingwall, Neumeister excavated a trench which was 13 feet deep, 19 feet long, and 5 feet wide at the top of the trench. Before WeWeldit's employees, including Eugene McKinstry, entered the trench to work on the wingwall, WeWeldit's foreman inspected and approved the trench excavated by Neumeister. While WeWeldit's employees were working in the trench along the wingwall, Neumeister noticed that McKinstry was digging in the creek bank, which formed a trench wall, trying to keep water from seeping into the trench. Approximately 3 hours after Neumeister had left the construction site, the trench collapsed, burying McKinstry, who died from asphyxiation.

PLEADINGS

In the wrongful death action, Christina McKinstry alleged that Husker Steel was the general or prime contractor for all aspects of construction in the bridge project; WeWeldit was Husker Steel's subcontractor to build the bridge; and the county, as owner of the construction site, supplied trenching, excavating, and earthwork for construction of the bridge. Christina McKinstry also alleged that each of the defendants had separately and negligently omitted certain measures which would have prevented the accident, such as each defendant's failure to "properly stabilize, shore, maintain and brace the Trench; ... properly compact the walls of the Trench; [and] properly grade or slope the sides of the Trench."

In their answer, WeWeldit and Cornhusker Casualty generally denied liability, but admitted that Eugene McKinstry was an employee of WeWeldit and asserted their subrogation interest in any recovery on account of Eugene McKinstry's death.

The county answered and alleged that Eugene McKinstry was contributorily negligent in a degree which barred recovery and that Eugene McKinstry had "assumed the risk." Additionally, the county alleged that Eugene McKinstry's death was the result of the negligence of persons over whom the county had no control.

In its answer, Husker Steel raised the affirmative defenses of contributory negligence and assumption of the risk.

TRIAL

As a part of McKinstry's case, a soil engineer testified that the earth at the wingwall excavation was unable "to sustain the configuration of the trench that was excavated because of the relaxation and the deformation that's associated ... [a]nd once that happens, the strength is reduced ... [a]nd in this particular case, the wall of the trench was too steep to be maintained in that shape and collapse occurred." In the engineer's opinion, collapse of the trench...