Wilson v. F & H Const. Co., s. 87-047

Citation229 Neb. 815,428 N.W.2d 914
Decision Date16 September 1988
Docket Number87-263,Nos. 87-047,s. 87-047
CourtSupreme Court of Nebraska
PartiesConstance WILSON, Appellant v. F & H CONSTRUCTION COMPANY et al., Appellees.

Page 914

428 N.W.2d 914
229 Neb. 815
Constance WILSON, Appellant
v.
F & H CONSTRUCTION COMPANY et al., Appellees.
Nos. 87-047, 87-263.
Supreme Court of Nebraska.
Sept. 16, 1988.

Page 915

Syllabus by the Court

1. Summary Judgment. 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.

2. Summary Judgment: Appeal and Error. 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.

3. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted.

4. Summary Judgment: Proof. After the movant for a summary judgment has shown facts entitling the movant to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.

5. Negligence. For actionable negligence, there must be a defendant's legal duty to protect the plaintiff from injury, a failure to discharge that duty, and plaintiff's damage proximately caused by such undischarged duty.

6. Negligence: Words and Phrases. "Duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.

7. Negligence: Liability. One cannot be held responsible on the theory of negligence for an injury caused by an act or omission unless the negligent tort-feasor had knowledge or was reasonably charged with knowledge that the act or omission involved danger to another.

8. Negligence: Liability: Notice. One under a duty to use care for which knowledge is necessary cannot avoid liability as the result of voluntary ignorance; constructive notice is as effective as actual notice.

Richard J. Schicker, Omaha, for appellant.

Thomas J. Walsh, Jr., of Walsh, Fullenkamp & Doyle, Omaha, for appellee F & H Const. Co.

William E. Naviaux, Omaha, for appellee Taylor Plumbing, Inc.

[229 Neb. 816] HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and WARREN, District Judge.

Page 916

SHANAHAN, Justice.

In consolidated cases, Constance Wilson appeals from summary judgments granted to F & H Construction Company and Taylor Plumbing, Inc., in negligence actions brought by Wilson to recover for bodily injury sustained when she fell into a hole. Wilson also included the city of Omaha as a defendant, but the action against the city is not involved in Wilson's appeal.

On February 9, 1982, F & H Construction, as general contractor, entered a contract with the housing authority of the city of Omaha for the construction of 42 units of scattered-site housing, which included construction of a six-plex. Wilson's home is located immediately north of the six-plex site.

F & H subcontracted demolition of a brick house and earthwork for construction of the six-plex. During demolition of the brick house on the six-plex site, the subcontractor struck an underground waterline. Taylor Plumbing, another subcontractor of F & H Construction, capped that broken waterline. Taylor also capped the sewerline that had serviced the demolished brick house, but was not involved with any demolition or removal of structures from the site.

As part of its subcontract with F & H Construction, Taylor Plumbing connected the sewer and water services for the six-plex by tying into the city's mains. Taylor Plumbing installed the six-plex waterline about 6 feet below ground, and then backfilled the area above the newly installed line by using a "hydraulic tamping tractor" and two other pieces of heavy equipment.

The Omaha housing authority approved and accepted the housing project in January 1983.

On February 13, 1983, Wilson stepped onto the strip of land between the sidewalk and 24th Street in front of her home adjacent to the six-plex site, and was injured when the ground caved in and she fell into a waist-deep hole. According to Wilson's husband, the ground in the area where Constance fell had never settled or sunk before the accident.

The City of Omaha was called and the depression was filled, [229 Neb. 817] but the hole had to be filled two or three additional times because the ground kept sinking. Finally, on April 5, 1983, the accident site was excavated to ascertain the cause of the settling ground and accident in which Constance Wilson was injured. Representatives of F & H Construction, Taylor Plumbing, and the City of Omaha were present at the time of this investigatory excavation. Robert Taylor, president of Taylor Plumbing, described what he saw as the investigatory excavation reached the 6-foot level where Taylor Plumbing had installed the waterline from the six-plex to the city's main at 24th Street: "[W]e went down lower and found a sewer stub that was open and the water was finding its way into this new excavation here down the hole into the sewer stub ... a stub not plugged up...."

The broken and uncapped sewer stub allowed water and earth to pass from above into the main sewerline, thereby causing subterranean erosion and resulting in the overlying ground's sinking to fill the gap left by the earth which had moved through the open stub into the sewer. As a city employee related, the...

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  • Anderson v. Service Merchandise Co., Inc.
    • United States
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    • 12 Junio 1992
    ...Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988)). Accord, DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989); Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988); Wibbels v. Unick, 229 Neb. 184, 426 N.W.2d 244 the record disclose that there is no genuine issue concerning any m......
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    • 1 Octubre 1993
    ...v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990); DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989); Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988). Summary judgment may be obtained in a declaratory judgment proceeding. See Anderson v. Carlson, 171 Neb. 741, 10......
  • Mason State Bank v. Sekutera
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    ...evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988). In arguing against this court's potential entry of summary judgment in Sekutera's favor, Mason State Bank asserts t......
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    ...a failure to discharge that duty, and plaintiff's damage proximately caused by such undischarged duty." Accord Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988). " 'Foreseeability is a factor in establishing a defendant's duty, or, as expressed by Justice Cardozo in MacPherso......
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