Plock v. Crossroads Joint Venture

• Decision Date: 04 October 1991
• Docket Number: No. 89-113,89-113
• Citation: 239 Neb. 211,475 N.W.2d 105
• Parties: Mark A. PLOCK et al., Appellees and Cross-Appellants, v. CROSSROADS JOINT VENTURE, An Indiana General Partnership, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 105

475 N.W.2d 105

239 Neb. 211

Mark A. PLOCK et al., Appellees and Cross-Appellants, v. CROSSROADS JOINT VENTURE, An Indiana General Partnership, Appellant and Cross-Appellee.

No. 89-113.

Supreme Court of Nebraska.

Oct. 4, 1991.

Syllabus by the Court

1. Trial: Independent Contractor: Agents. The determination of whether one is an independent contractor or an agent is properly one of fact to be determined after applying the appropriate standards.

2. Appeal and Error. In an appeal of an action at law, the Supreme Court does not reweigh the evidence; rather, the court considers the evidence in the light most favorable to the successful party, with conflicts resolved in favor of the successful party, who is entitled to the benefit of every inference which can reasonably be deduced from the evidence.

3. Appeal and Error. The conclusion of the trial court in an action at law will not be set aside unless clearly wrong.

4. Principal and Agent: Master and Servant: Negligence: Liability. The law imputes to the principal or master responsibility for the negligent acts of his or her agent or servant done in obedience to the express orders or directions of the master, or within the scope of the employee's authority or employment in the master's business, and if those acts cause injury to third persons, the law holds the principal or master liable therefor.

5. Employer and Employee: Master and Servant: Negligence: Liability. For injuries caused by the negligent act of an employee not directed or ratified by the employer, the employee is liable because he or she committed the act which caused the injury, while the employer is liable, not as if the act had been done by the employer, but because of the doctrine of respondeat superior, the rule of law which holds the master responsible for the negligent act of his or her servant committed while the servant was acting within the master's business.

6. Master and Servant: Negligence: Liability. Unless the servant is liable, there can be no liability on the part of the master.

7. Principal and Agent: Negligence: Liability. The principal's liability, if any, is not that of a joint tort-feasor, but is derived solely from the liability of the agent, if any.

8. Workers' Compensation. The Nebraska Workers' Compensation Act is the employee's exclusive remedy against an employer for an injury arising out of and in the course of employment.

9. Torts: Liability: Releases. In a situation where several persons are not actively joint tort-feasors but one person commits the tort and is primarily liable while the liability of the other person is derivative or secondary, as where it arises under the doctrine of respondeat superior, the releasor's acceptance of satisfaction from one discharges the other as well, as in the case of master and servant or principal and agent, and this is true despite an attempted reservation of rights against the person secondarily liable, since if the rule were otherwise, such person would be liable without having recourse against the person primarily liable, the latter having been released.

10. Master and Servant: Negligence: Judgments: Liability. Where the master is to respond to damages solely on account of his or her servant's negligence, a judgment dismissing the servant but holding the master liable is inconsistent.

11. Principal and Agent: Claims. A statute that bars a claim against an agent equally protects those on whose behalf he acted as agent.

12. Principal and Agent: Workers' Compensation: Immunity: Releases. The immunity of an agent as employer because of the release effected by the workers' compensation statutes releases the principal.

13. Actions: Workers' Compensation: Proof: Pleadings: Waiver. As a general rule, in a common-law action to recover damages for a work-related injury, the burden of proving the affirmative defense of the exclusivity of the Workers' Compensation Act is on the employer. Usually, the failure to plead the defense may result in the defense's being waived if not raised in time.

14. Actions: Workers' Compensation: Proof. There are several exceptions to the general rule that necessitates the affirmative proof of the defense of the exclusivity of the Workers' Compensation Act. The first exception is when the employer-employee relationship is shown in the plaintiff's petition. Another occurs when the plaintiff admits that the injuries arose in the course of employment. The final exception is the actual acceptance of compensation benefits.

15. Actions: Jurisdiction. The lack of jurisdiction of the subject matter may be raised at any time, and may be raised by the court sua sponte if necessary.

16. Actions: Pleadings: Limitations of Actions: Workers' Compensation: Demurrer. When it is apparent from its face that an action is barred by the statute of limitations or the exclusivity of the Workers' Compensation Act, the petition fails to state a cause of action and is subject to demurrer.

17. Pleadings: Demurrer. An answer which alleges that a petition fails to state a cause of action is in effect a demurrer.

18. Invitor-Invitee: Negligence: Liability. A possessor of land may be subject to liability for physical harm caused to invitees on its land if the possessor knows that a condition involves an unreasonable risk of harm, the possessor should expect that the invitees will not discover the danger or protect themselves against it, and the possessor fails to exercise reasonable care to protect against such danger.

19. Invitor-Invitee: Negligence. If the negligence of a possessor of land has made the invitee's exercise of a right or privilege impossible unless he or she exposes himself or herself to a risk of bodily harm, the invitee may not be guilty of contributory negligence.

20. Invitor-Invitee: Negligence. Where an invitee on land has no alternative route to that which he or she chooses, despite an apparent defect, it cannot be said that he or she is guilty of contributory negligence as a matter of law.

21. Actions: Employer and Employee: Independent Contractor: Principal and Agent: Negligence. Generally speaking, an employee of an independent contractor or agent who had knowledge of a defect in the premises would have no recourse against the owner-principal in possession of the premises.

22. Directed Verdict. Where the facts presented to sustain an issue are such that but one conclusion can be drawn when related to the applicable law, it is the duty of the court to decide the question as a matter of law and not submit it to a jury.

23. Directed Verdict. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion.

24. Negligence. A person must exercise ordinary care for his or her own safety, and this duty is commensurate with the danger to which he or she is exposed.

25. Negligence. A person who is capable of understanding and discretion and who fails to exercise ordinary care and prudence to avoid defects and dangers which are either open and obvious or are known to him or her is negligent or contributorily negligent.

John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant and cross-appellee.

William R. Johnson, Patricia A. Zieg, and James L. Schneider, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellees and cross-appellants.

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

HASTINGS, Chief Justice.

The defendant, Crossroads Joint Venture (CJV), an Indiana general partnership and owner of Crossroads Shopping Center (Crossroads) in Omaha, has appealed a jury verdict of $1,600,000 in favor of plaintiff Mark A. Plock (Plock) and one of $400,000 in favor of plaintiff Karen Plock, Plock's wife. Aetna Life & Casualty Company, the workers' compensation carrier for MS Management Associates, Inc. (MSM), Plock's employer, is also named as a plaintiff. The injuries which Plock is alleged to have suffered are claimed to have been caused by Plock's stepping into an uncovered drain located on the floor of a tunnel under part of the Crossroads.

Crossroads was purchased by Crossroads Shopping Center Company Limited Partnership from The Brandeis Investment Company on August 31, 1983. CJV in turn acquired the premises on April 27, 1984. The shopping center had been constructed prior to 1972.

CJV does not have any direct employees. On April 27, 1984, CJV entered into a management agreement with MSM, an Indiana corporation, pursuant to which MSM assumed the responsibility for the management, control, and maintenance of the shopping center. CJV and MSM are interlocked to the extent that they are part of a real estate investment trust scheme and are owned directly or indirectly by the Simon family. However, this appears to be of no consequence in the resolution of this case.

MSM manages approximately 200 properties located throughout the United States and has in excess of 2,000 employees, including the employees working at the Crossroads, one of whom was Plock.

CJV does not handle the day-to-day operations of the Crossroads; rather, these functions are carried out by MSM. Information is reported by MSM from a financial standpoint rather than an operational standpoint. CJV has no procedure for onsite inspections, identifying safety problems, or supervising MSM's work at the Crossroads.

Under the terms of the management agreement, exhibit 71, MSM was responsible for leasing the space; paying taxes, interest, and water and sewer rents; complying with building and licensing requirements; defending as to eminent domain proceedings; paying for gas, electricity, steam, telephones, elevators, and window cleaning; and maintaining and repairing the premises through independent contractors or its own employees and was to, "at Owner's [CJV's] expense, hire, discharge and supervise all labor and employees...