Orduna v. Total Const. Services, Inc.
| Decision Date | 05 May 2006 |
| Docket Number | No. S-05-101.,S-05-101. |
| Citation | 271 Neb. 557,713 N.W.2d 471 |
| Parties | John H. ORDUNA, Jr., appellee, v. TOTAL CONSTRUCTION SERVICES, INC., appellant. |
| Court | Nebraska Supreme Court |
Danene J. Tushar and Jeremy B. Morris, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellant.
Robert M. Slovek, Gillian G. O'Hara, and Richard P. Jeffries, of Kutak Rock, L.L.P., Omaha, for appellee.
After a fire damaged his home, John H. Orduna, Jr., was forced to move out while Total Construction Services, Inc. (Total), completed repairs to the house. Orduna visited the house after construction had commenced and, unaware that the basement stairs had been removed during construction, fell through the open stairwell, fracturing his ankle. Orduna filed a negligence action against Total and, following a jury trial, was awarded a $183,000 verdict. The district court entered judgment in accordance with the verdict and subsequently overruled Total's motion for new trial. Total appeals.
On June 13, 2001, Orduna's home in Omaha, Nebraska, was damaged by fire. Orduna had been in his basement, transferring a combination of oil and gas from one container to another, when some of the substance spilled on the floor and was ignited by a hot water heater. The fire caused significant damage to Orduna's house, forcing him to move out while repairs were made.
Orduna hired Total to repair the damage to his home. Total employees conducted a walk-through of the house with Orduna on June 20, 2001, and on August 29, Total submitted a proposal for the work to be performed on Orduna's house. Construction began on September 4.
On the evening of September 11, 2001, Orduna visited his house, intending to remove some of his belongings from the basement. Although the evidence was in dispute, Orduna testified that a Total employee contacted him earlier that day and requested that he come to the house to remove his belongings from the basement. Orduna used his house key to unlock the front door and proceeded to the darkened basement stairwell. Unaware that the stairs had been removed during construction, Orduna fell through the open stairwell to the basement floor, fracturing his left ankle.
Orduna filed a complaint against Total, alleging, in part, that Total was negligent in failing to keep the premises safe and in failing to warn or notify Orduna of an unsafe and hazardous condition on the premises. The complaint was later amended to include an allegation that Total violated specific Occupational Safety and Health Administration (OSHA) regulations.
Prior to trial, Total filed a motion in limine, asking the district court to, in part, prohibit any reference to or evidence of OSHA regulations during trial, including evidence that such regulations were not complied with by Total or that the regulations set the applicable standard of care for Total. In addition, Total asked the court to exclude the testimony of Orduna's designated expert witness, Michael Downey, a construction safety consultant, on the ground that Downey's opinions in the case failed to meet the requirements of Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1995). After a hearing on the motion, the court overruled Total's request to prohibit any reference to OSHA, stating:
While OSHA was written to protect employees, an unsafe practice for an employee applies equally well to a person who legitimately finds himself in the same space as an employee. OSHA standards are certainly relevant to the safety of a work place, even if the injured party is not an employee. . . . A violation, however, is only evidence of negligence, and not negligence per se.
With respect to Downey's expert testimony, the court ordered that Downey be prohibited from interpreting OSHA regulations and from testifying that Total had violated OSHA regulations and that an alleged OSHA violation was negligence on the part of Total or that such an alleged violation was a proximate cause of Orduna's fall. The court stated that Downey could testify "as to what he observed and conclusions therefrom."
A jury trial was held in December 2004, after which the jury returned a verdict in favor of Orduna in the amount of $183,000. Subsequently, Total's motion for new trial was overruled by the district court. Total appeals the judgment of the district court.
Total assigns, summarized, restated, and renumbered, that the district court erred in (1) instructing the jury regarding OSHA regulations because such regulations only apply to employment relationships and, alternatively, the instructions contained incorrect statements of law; (2) admitting Downey's expert testimony because it was irrelevant, failed to meet the requirements of rule 702, and was unfairly prejudicial under Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1995); and (3) overruling Total's motion for new trial because the verdict was excessive and not supported by the evidence.
Whether a jury instruction given by a trial court is correct is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Washington v. Qwest Communications Corp., 270 Neb. 520, 704 N.W.2d 542 (2005).
Generally, a trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432 (2005). A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of discretion. Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. City of Lincoln, supra.
In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence. Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005). The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder's decision will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).
Instructions Given to Jury Were Proper and Conveyed Correct Statements of Law.
During the jury instruction conference, Total objected to instructions Nos. 10 and 11, among others. Instruction No. 10 stated:
While [OSHA] regulations were written to protect employees, an unsafe practice for an employee applies equally well to a person who legitimately finds himself in the same space as an employee. OSHA standards are relevant to the safety of a work place, even if the injured party is not an employee.
OSHA regulations provide in part as follows:
a. A hole means a gap or void 2 inches (5.1 cm) or more in its least dimension, in a floor, roof, or other walking/working surface.
b. Each employee on walking/working surfaces shall be protected from falling through holes more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.
Instruction No. 11 stated:
It is claimed that an OSHA safety regulation was violated. If you find that is was, that does not necessarily prove negligence. The violation of a safety regulation is evidence that you may consider, along with all of the other facts and circumstances in the case, in deciding whether or not there was any negligence.
The court overruled the objections.
On appeal, Total assigns that the district court erred in instructing the jury regarding OSHA regulations. Total argues that the instructions were irrelevant and highly prejudicial, because OSHA regulations only govern the duties between employers and employees and Orduna was not an employee of Total. Further, Total argues that even if the court concludes that OSHA regulations were relevant to the standard of care owed by Total to Orduna, instructions Nos. 10 and 11 presented incorrect statements of law that confused the jury as to the applicability of OSHA regulations in the case.
In contrast, Orduna asserts that the jury was properly instructed as to applicable OSHA regulations because such regulations are relevant in assessing an employer's safety obligations to third parties. Orduna also argues that the instructions were correct statements of law, consistent with established case law utilizing OSHA regulations in negligence actions filed against employers by nonemployees.
This court has previously determined that because the application of Nebraska's health and safety regulations is limited to the relationship of employer and employee, the regulations do not establish a nondelegable duty to nonemployees. See Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004). However, we have yet to address whether such regulations or the federal OSHA regulations are relevant as evidence regarding the standard of care in negligence actions between employers and third parties. A substantial majority of other jurisdictions that have addressed the issue have concluded that OSHA regulations are relevant and admissible in negligence actions involving an employer and a nonemployee.
In Thoma v. Kettler Bros., Inc., 632 A.2d 725, 730 (D.C.1993), the court explained that
OSHA regulations are "com...
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