Parrish v. Omaha Public Power Dist.
| Citation | 496 N.W.2d 902,242 Neb. 783 |
| Decision Date | 12 March 1993 |
| Docket Number | No. S-90-665,S-90-665 |
| Parties | Karen PARRISH, Special Administrator of the Estate of Eldon E. Parrish, Deceased, Appellant, v. OMAHA PUBLIC POWER DISTRICT et al., Appellees. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Negligence. The question whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.
2. Negligence: Contractors and Subcontractors: Liability. Generally, one who employs an independent contractor is not liable for the contractor's negligence.
3. Negligence: Contractors and Subcontractors: Liability. The employer of an independent contractor may be liable if the employer retains control over the contractor's work, or if, by rule of law or statute, the employer has a nondelegable duty to protect another from harm caused by the contractor.
4. Negligence: Contractors and Subcontractors. If an owner of premises retains control over a contractor's work, the owner has a duty to use reasonable care in taking measures to prevent injury to employees who are working on the premises.
5. Negligence: Contractors and Subcontractors. Although an owner generally relinquishes possession of the property during construction, and, thus, is not in control of the premises, an owner might maintain possession if the owner's involvement in overseeing the construction is substantial.
6. 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.
7. Negligence: Liability: Contractors and Subcontractors. Liability for breach of a nondelegable duty is an exception to the general rule that one who employs an independent contractor is not liable for the independent contractor's negligence.
8. Negligence: Contractors and Subcontractors. Nondelegable duties include the duty of an owner in possession and control of premises to provide a safe place for work by a contractor's employee; a duty imposed by statute or rule of law; and the duty of due care imposed on an employer of an independent contractor when the contractor's work involves special risks or dangers, including work that is dangerous in the absence of special precautions.
9. Negligence: Contractors and Subcontractors. A general contractor, in control of the premises where 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.
10. Negligence: Contractors and Subcontractors. When a general contractor assumes a contractual duty for the safety of workers at a construction site, the contractor's duty cannot be delegated to a subcontractor.
11. Negligence: Liability: Contractors and Subcontractors. To impose liability on a general contractor for injury to a subcontractor's employee, the general contractor 12. Negligence. A violation of a safety regulation is evidence of negligence.
must have (1) supervised the work that caused the injury to the [242 Neb. 784] employee; (2) had actual or constructive knowledge of the danger which ultimately caused the injury; and (3) had the opportunity to prevent the injury, but negligently failed to prevent the injury.
13. Negligence: Liability: Contractors and Subcontractors. If a general contractor hires an independent contractor to perform work which the general contractor "should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken," the general contractor may be liable for physical harm caused to employees of the subcontractor if the general contractor fails to exercise reasonable care to take such precautions, even though the general contractor has provided, in the contract or otherwise, that the subcontractor be responsible for such precautions.
The Law Offices of Ronald J. Palagi, P.C., Omaha, for appellant.
Rex A. Rezac and Lon A. Licata, of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee Omaha Public Power Dist.
Terry J. Grennan and Theodore J. Stouffer, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Hawkins Const. Co.
Karen Parrish, special administrator of the Estate of Eldon Parrish, deceased, brought a wrongful death action against the Omaha Public Power District (OPPD) and Hawkins Construction Co. The district court for Douglas County granted summary judgment for OPPD and Hawkins and dismissed Parrish's action.
"On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists." Newman v. Hinky Dinky, 229 Neb. 382, 385, 427 N.W.2d 50, 53 (1988). Accord, Dowis v. Continental Elev. Co., 241 Neb. 207, 486 N.W.2d 916 (1992); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992). "[A] summary judgment is an extreme remedy because a summary judgment may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed." Wachtel v. Beer, 229 Neb. 392, 399, 427 N.W.2d 56, 61 (1988). Accord, Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992); Wiles v. Metzger, 238 Neb. 943, 473 N.W.2d 113 (1991).
A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. [Citations omitted.] In appellate review of a summary judgment, the court views 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.
Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 162-63, 425 N.W.2d 872, 875 (1988). Accord, Dowis v. Continental Elev. Co., supra; Anderson v. Service Merchandise Co., supra; Murphy v. Spelts-Schultz Lumber Co., supra. See Neb.Rev.Stat. § 25-1330 et seq. (Reissue 1989) (summary judgments).
"Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review." Huffman v. Huffman, 232 Neb. 742, 748, 441 N.W.2d 899, 904 (1989). Accord Ehlers v. Perry, 242 Neb. 208, 208, 494 N.W.2d 325 (1993).
On June 9, 1987, Eldon Parrish was killed when he fell from a portable platform at the construction site of OPPD's Energy Plaza Building. OPPD owned the building, and Hawkins was the general contractor in the construction work. Eldon Parrish was an employee of Northwest Erection Services (Northwest), Hawkins' subcontractor for installation of structural steel in OPPD's building.
The Construction Contracts.
The construction contract between OPPD and Hawkins provided that Hawkins would act as the general contractor for all phases of the construction, would furnish all supervision, labor, and materials, and would have control over the daily operations in the construction project. Specifically, the OPPD-Hawkins contract stated:
3.01 The Contractor shall keep himself fully appraised throughout the performance of the contract of existing conditions at the site, including the status and progress of other work thereat, which may affect the performance of this contract....
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5.01 The Contractor shall maintain on the site at all times during the progress thereof, a competent resident general superintendent and any necessary assistants, all satisfactory to the District.
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6.02 If the Contractor shall subcontract any part of this contract, the Contractor shall be as fully responsible to the District for the acts and omissions of his subcontractors and of the persons directly or indirectly employed by his subcontractors as he is for the acts or omissions of persons directly employed by himself.
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13.01 The District reserves the right to conduct inspections and by any such inspectors as it sees fit and hereby requires that such inspectors shall have the right to inspect all Work as it progresses and shall have access to all data relevant to the performance of this contract....
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23.00 OCCUPATIONAL SAFETY AND HEALTH
23.01 At all times during the performance of the Work, the Contractor shall exercise precaution for the protection of persons and property. The safety provisions of applicable laws, building and construction codes shall be observed....
23.02 The Contractor agrees to comply with the provisions of the Occupational Safety and Health Act of 1970 including any and all applicable amendments and the standards and regulations issued thereunder and interpretations thereof....
23.03 The Contractor agrees to take immediate remedial action to correct any unsafe condition and when so ordered, to stop any part of the Work which the District deems unsafe until appropriate corrective measures have been taken, and further agrees to make no claim for additional costs or damages resulting from such stoppages. Should Contractor, after due notice, fail to adopt the corrective measures, the District may have them implemented and deduct the cost from payments otherwise due the Contractor. Failure on the part of the District, or their representatives to notify the Contractor of any unsafe condition or practices shall not relieve the Contractor of his responsibility.
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25.00 PROTECTION OF PROPERTY AND...
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