Thomas v. Kiewit Bldg. Grp. Inc., A-16-968.

• Decision Date: 24 April 2018
• Docket Number: No. A-16-968.,A-16-968.
• Citation: 914 N.W.2d 456,25 Neb.App. 818
• Parties: Robert THOMAS, appellant, v. KIEWIT BUILDING GROUP INC., et al., appellees.
• Court: Nebraska Court of Appeals

25 Neb.App. 818

914 N.W.2d 456

Robert THOMAS, appellant,

v.KIEWIT BUILDING GROUP INC., et al., appellees.

No. A-16-968.

Court of Appeals of Nebraska.

Filed April 24, 2018.

James E. Harris and Britany S. Shotkoski, of Harris & Associates, P.C., L.L.O., Omaha, for appellant.

Dan H. Ketcham, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellee Kiewit Building Group Inc.

Inbody, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Robert Thomas brought a negligence action against Kiewit Building Group Inc. (Kiewit); Architectural Wall Systems Co. (AWS); and Zurich American Insurance Co., AWS' workers' compensation insurance carrier. The action arises out of an injury Thomas sustained while working for AWS on the construction of a building for TD Ameritrade in Omaha, Nebraska. Kiewit was the general contractor for the project. At the close of Thomas' case, the district court for Douglas County sustained Kiewit’s motion for directed verdict. Based on the reasons that follow, we reverse, and remand for further proceedings.

BACKGROUND

Thomas brought this negligence action against Kiewit, AWS, and Zurich American Insurance Co. based on injuries he sustained on February 20, 2012, when he slipped and fell at the TD Ameritrade jobsite. Thomas has been paid workers' compensation benefits and therefore, as provided under Neb. Rev. Stat. § 48-118 (Reissue 2010), AWS and Zurich American Insurance Co. were named as defendants for workers' compensation subrogation purposes only.

On February 20, 2012, Thomas was working in the course and scope of his employment as an ironworker with AWS on the 12th floor, which was the top floor, of the TD Ameritrade building. The 12th floor was not yet enclosed, and the floor was exposed to the elements, including ice, snow, and frost. Additionally, snow and ice would melt on the roof above, drip down and puddle on the 12th floor, and refreeze. This occurred even on days when there was no precipitation. The concrete floor would become slick as a result of the snow and ice, making the floor dangerous. Sand was spread on the icy areas to make the floor safer. Thomas was injured when he slipped and fell on sand that remained on the floor after it was dry.

Thomas alleges that Kiewit was negligent in failing to remove the sand after the floor was dry, creating a slippery and dangerous surface.

At the time Thomas fell, he and Perry Schafer, another AWS employee, were carrying a metal sheet of siding that was 26 to 28 feet long and 3 feet wide. Before the accident happened, Thomas and Schafer had made 7 to 10 trips carrying metal sheets and had taken the same path each time. Thomas testified that he did not think there was a risk of falling, because he had walked the route safely numerous times. They also had been carrying the same sheets of siding on the job for a couple days before the accident, carrying about 20 sheets each day. Due to the size of the sheets, they had to be carried one at a time by two workers. AWS was going to install the metal sheets on the exterior of the building, so Thomas and Schafer were carrying the sheets to the outside walkway of the building.

On the day of the accident, there were several "trades" working on the 12th floor with AWS, including electricians, heating and air conditioning installers, and plumbers, all of whom had materials stacked on the floor. Because of the materials stacked up in various places and due to the length of the sheets they were carrying, Thomas and Schafer had to "zigzag through everything." Thomas testified that he and Schafer preplanned the route they would take to carry the sheets before starting the day. Schafer and Thomas chose the route they used, and nobody else instructed them on the path to take.

When Thomas fell, Schafer was the lead person carrying the metal sheet. Their route required them to step up onto a raised concrete area designed for an air-handling unit. This required them to each step up onto this pad and then step back down as they carried the metal sheet. Schafer testified that he and Thomas had done this several times that day without any problems. Thomas stated that when they would carry the metal sheets, he felt like he was somewhat pulled by Schafer, who was the lead person. However, Thomas testified that he was confident about carrying the sheets, because he had done it numerous times and did not think there was any risk.

When Thomas fell, Schafer had gone about 10 or 15 steps past the raised pad and Thomas was stepping off the raised pad. When he stepped off, "[his] feet just went out from under [him]." Schafer testified that there was sand on the concrete where Thomas fell and that it was placed there on a different day due to icy conditions. Schafer testified that there was not very much sand and that it was spread out. He testified he did not feel it was necessary to give Thomas a warning about the sand because it was visible. Schafer testified that he and Thomas continued to work without removing the sand. Schafer testified that if they thought the sand on the floor was an issue, they could have done something about it. Thomas stated that he resumed working shortly after he fell, walking the same route with the sand still present.

John Dahir was Kiewit’s safety supervisor. His job was to manage Kiewit’s safety programs and ensure they complied with Occupational Safety and Health Administration (OSHA) regulations, state law, and Kiewit’s safety rules. He additionally would make sure that subcontractors followed their own safety rules. He testified that Kiewit had responsibility overall for safety on the TD Ameritrade jobsite, but that the subcontractors per contract were responsible for their own safety as well. Dahir testified that Kiewit did walk-throughs of different areas throughout each day and took photographs to document inspections and to show the subcontractors any deficiencies that were found so they could be corrected. He testified about one occasion where he identified slick floors from ice and snow as a safety issue on the job and took photographs of this condition. On one of the photographs, he noted, "Slick conditions were addressed with the group that we [Kiewit] are sanding the main walk paths and that ... they are responsible to prep their [work areas] with sand if they are not in the main walk paths that have not been sanded." He explained that Kiewit took care of the main walking paths and that the subcontractors were "responsible to prep their own work areas to make it work ready," which included putting down sand if necessary. Dahir testified that the area where the accident occurred was in AWS' work area. He testified that it is the responsibility of the contractor who spreads the sand to clean it up after it is no longer needed. Dahir also stated that everyone on the site was responsible for unsafe conditions and had the authority to correct an unsafe act or condition. Dahir further testified that the conditions on the 12th floor "varied from day-to-day, and hour-by-hour" because of the ice and snow.

Dahir testified that in his opinion, the sand on the dry floor was not a hazard. He based his opinion on the fact that the sand was put down as a safety measure to prevent someone from slipping based on the icy conditions they were dealing with on the 12th floor. He testified that he has also walked where there was sand on dry concrete and that he did not consider the floor to be a slip hazard. Dahir testified that there was no OSHA violation with respect to Thomas' fall and that OSHA has never recognized sand used to prevent slip and falls in outside conditions to be a hazardous condition.

Keith Vidal, a consulting safety engineer, also testified that snow and ice are recognized hazards and that putting sand down is a reasonable safety measure to reduce the risk of falling on snow and ice. Vidal testified that sand in and of itself is a recognized hazard, but not a hazard recognized by OSHA.

Schafer testified that when ice was on the concrete floor, it was a dangerous condition, and that sand was put down to make the floor condition less dangerous. He testified that when he saw ice on the floor, he would report it to his foreman. Schafer testified that when sand remained on dry concrete, it made the floor slick, but that he did not recall ever reporting sand on the floor to his foreman as a dangerous condition. He stated that he knew to be careful when walking on sand on dry concrete and that he and Thomas specifically talked about being careful when carrying the sheets because of the sand on the floor.

Reagan Wheatly, Thomas' foreman, testified that all AWS employees are responsible for safety in their own jobs and that they are trained in how to protect themselves from slips and falls. Specifically, AWS employees are told to wear proper boots, preplan their walking path, and look for hazards. Wheatly testified that the AWS employees were to be aware of anything on the ground in their path and that they were expected to do something about anything they considered a danger. They were responsible "to keep [their] path clear."

Wheatly testified that the floors were never slick or dangerous due to sand. He did not consider sand on the ground to be a hazard. He stated that it was only the ice that concerned him and was a problem. He testified that the sand reduced the dangers of the ice and improved worker safety. Wheatly stated that there was sand available for AWS workers to put down if there was ice on the floor and that it was up to each subcontractor to decide whether to put sand down in their work areas. Wheatly also testified that the conditions on the floor were always changing due to the various subcontractors who worked on the floor, as well as the fact that the floor was exposed to outdoor conditions.

Wheatly testified that he never experienced any problems walking on the route that Thomas and Schafer used and that he never thought there was a hazard because of sand on the ground. He also...