Washington v. Qwest Communications Corp., S-04-677.

• Decision Date: 14 October 2005
• Docket Number: No. S-04-677.,S-04-677.
• Citation: 704 N.W.2d 542,270 Neb. 520
• Parties: William A. WASHINGTON, appellant, v. QWEST COMMUNICATIONS CORPORATION et al., appellees.
• Court: Nebraska Supreme Court

704 N.W.2d 542

270 Neb. 520

William A. WASHINGTON, appellant, v. QWEST COMMUNICATIONS CORPORATION et al., appellees.

No. S-04-677.

Supreme Court of Nebraska.

October 14, 2005.

Dale A. Romatzke and Vikki S. Stamm, of Ganz, Romatzke & Stamm, P.C., L.L.O., Kearney, for appellant.

Mark J. Peterson and Nora M. Kane, of Koley Jessen, P.C., L.L.O., Omaha, for appellee Qwest Communications Corporation.

Cathleen H. Allen, of Leininger, Smith, Johnson, Baack, Placzek, Steele & Allen, Grand Island, for appellee Addison Construction Co.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

William A. Washington, while an employee of ConAgra, Inc., was injured when he tripped over a wire lying on the ground between a telephone terminal box and a utility pole located on a utility easement. Qwest Communications Corporation (Qwest) had installed the wire several days earlier in order to provide telephone service to a construction trailer owned by Addison Construction Co. (Addison). The district court granted Addison's motion for directed verdict, and a jury entered a verdict in favor of Qwest. Washington appeals. (ConAgra was joined as a party for the purpose of workers' compensation subrogation. See Neb.Rev.Stat. § 48-118 (Reissue 2004).)

SCOPE OF REVIEW

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. Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004).

FACTS

Washington was employed as a maintenance worker at ConAgra's packing plant in Grand Island, Nebraska. On October 13, 1998, his duties included collecting trash along a strip of land between ConAgra's north boundary fence and Swift Road, a public street that ran east and west. As Washington chased a plastic bag that was floating in the wind, he tripped on a wire which was lying on the ground between a telephone terminal box and a utility pole on the south side of Swift Road. The wire was allegedly hidden by tall grass. Washington was injured as a result of the fall, and he sought medical treatment. He was terminated from his employment in July 1999.

Prior to Washington's injury, Addison had begun a construction project on the north side of Swift Road (across the street from ConAgra) and had requested that Qwest provide telephone service for a trailer that was to be placed on the site. A telephone terminal box was located on the utility easement on the south side of Swift Road. A Qwest employee placed a wire which ran from the terminal box to a utility pole about 10 feet away. The wire was laid on the ground between the terminal box and the utility pole and then was strung up the utility pole to hang in the air across Swift Road to the north side of the road. There, the wire was attached to another utility pole, strung down that pole, and laid on the ground.

Washington sued Qwest and Addison. He alleged that Qwest was in actual or constructive possession, control, and use of the premises, where it owned and maintained a telephone terminal box pursuant to a utility easement. He also alleged that Qwest was negligent in leaving a wire lying on top of the ground when Qwest knew or should have known that foot traffic would cross between the utility pole and the terminal box and that the wire would not be seen due to tall grass in the area. Washington alleged that Addison was negligent (1) in failing to properly instruct Qwest as to the installation of the telephone wire, (2) in failing to discover the improper installation of the telephone wire by Qwest, and (3) in failing to bury the telephone wire.

Addison and Qwest alleged that Washington was contributorily negligent and had assumed the risk. Qwest also alleged that Washington was barred from recovery because of the "accepted work doctrine."

At trial, the evidence established that in October 1998, Addison was in the process of building an electrical substation and had requested telephone service from Qwest for a temporary construction trailer to be located on the north side of Swift Road. Qwest's manager of installation maintenance testified that he went to the construction site and explained to one of Addison's employees the various options for installing a telephone wire on a temporary basis. The Addison employee indicated that the company wanted the wire above ground and wanted slack left in the wire because it was not sure of the exact location of the construction trailer on the property. At that time, Qwest had no written policies or procedures regarding "drops on the ground."

The Qwest employee who installed the wire testified that he had been taught to assess situations and make decisions with regard to safety concerns that were observed at installation sites. He admitted that laying a wire on top of the ground can be dangerous and that no warnings were placed between the terminal box and the utility pole.

At the end of Washington's case, Addison and Qwest each moved for a directed verdict. Addison's motion was granted, and the matter proceeded against Qwest. The jury returned a verdict in favor of Qwest, and Washington timely appealed.

ASSIGNMENTS OF ERROR

Washington assigns the following errors: The district court erred (1) in failing to sustain his objections to certain jury instructions, (2) in granting Addison's motion for directed verdict, and (3) in failing to give Washington's proposed jury instructions. He also assigns as error that the jury erred in finding for Qwest.

ANALYSIS

ACCEPTED WORK DOCTRINE

Washington argues that the accepted work doctrine does not apply to the facts of this case and that the trial court erred in instructing the jury as to the doctrine. In Parker v. Lancaster Cty. Sch. Dist. No. 001, 254 Neb. 754, 757, 579 N.W.2d 526, 528 (1998), we stated:

The general rule is that a construction contractor is not liable for injuries or damage to a third person with whom he is not in contractual relation resulting from the negligent performance of his duty under his contract with the contractee where the injury or damage is sustained after the work is completed and accepted by the owner. Delicious Foods Co. v. Millard Warehouse, 244 Neb. 449, 507 N.W.2d 631 (1993); Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99 (1984); Stover v. Ed Miller & Sons, Inc., 194 Neb. 422, 231 N.W.2d 700 (1975). This principle has been referred to as the "accepted work doctrine." See Pickens v. Tulsa Metropolitan Ministry, 951 P.2d 1079 (Okla. 1997).

Exceptions to the accepted work doctrine have been recognized in situations where the parties dealt with inherently dangerous elements or the defect was latent and could not have been discovered by the owner or employer. Parker, supra.

The phrase "inherently dangerous" has been described in terms of a special or peculiar risk and has been defined as "`one that "differ[s] from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community...."'" Id. at 757, 579 N.W.2d at 528, quoting Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997).

In the case at bar, Washington objected to a jury instruction concerning the use of the accepted work doctrine as a defense. The instruction stated: "In defense to plaintiff's claim defendant Qwest alleges that it did complete the work requested by defendant Addison and Addison accepted that work and that the wire on which plaintiff tripped and fell was not a latent condition." The trial court explained that the burden of proof in connection with that defense was on Qwest to prove by a greater weight of the evidence that it had completed the work ordered by Addison, that Addison accepted the completed work, and that the completed work did not result in a condition that was latent. Washington asserts that the instruction was in error.

The accepted work doctrine had its roots in Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842), in which a negligent contractor was shielded from liability for a third party's injuries because the contractor and third party were not in privity of contract. See Suneson v. Holloway Const. Co., 337 Ark. 571, 992 S.W.2d 79 (1999). The Suneson court cited three reasons supporting the doctrine: (1) the Winterbottom decision, (2) the owner alone was in control of the entity where the injury occurred, and (3) the presumption that the owner had carefully inspected the work and knew of its defect before accepting the work. Suneson, supra, citing Howard v. Redden, 93 Conn. 604, 107 A. 509 (1919).

Whether the jury should have been instructed on the accepted work doctrine depends upon whether Qwest was in control of the premises where Washington was injured at the time of the accident. This court has addressed the question of control of premises in Wilson v. North Central Gas Co., 163 Neb. 664, 80 N.W.2d 685 (1957), and Muckey v. Dittoe, 235 Neb. 250, 454 N.W.2d 682 (1990).

In Wilson, we stated: "It was indispensable to any recovery in this case that appellant show by evidence that appellee was at the time of the accident in control of the premises upon which appellant was injured." (Emphasis supplied.) 163 Neb. at 667, 80 N.W.2d at 687. There, the plaintiff sustained a leg fracture when she fell over a mound of dirt that remained after the gas company installed an underground pipe and covered it with dirt. The trial court dismissed the case, and we affirmed because there was no proof that the gas company was in the occupancy or control of the premises or that it had any relationship, duty, or right at the time of the accident.

In Muckey, we held that a person who was not the owner of or in control of the premises could not be held liable for injuries to a third party that occur on the premises. A delivery person was injured when he delivered a refrigerator to a home...