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

• Decision Date: 16 September 1988
• Docket Number: 87-263,Nos. 87-047,s. 87-047
• Citation: 229 Neb. 815,428 N.W.2d 914
• Court: Nebraska Supreme Court
• Parties: Constance 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.

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.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and WARREN, District Judge.

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, 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 stub was part of "an old abandoned sewer line that came from a house that was sitting on a lot that had been torn down. We found that house line that was not plugged off, and dirt was going into that from that spot there." Before the investigatory excavation, existence of the stub was unknown to F & H Construction and its subcontractors. The stub in question was buried 2 feet beneath the waterline installed by Taylor Plumbing. A plat or "job site quarter section," prepared by the city and obtained by F & H Construction before its work at the six-plex site, showed the location of all known utility stubs, but did not show the stub where the earth caved in. Robert Taylor stated that there was no reason to suspect the stub was buried beneath the waterline installed by Taylor Plumbing, because the stub was not shown on the city's plat or quarter section. Seepage did not indicate a problem, because the ground was dry at the 6-foot level when Taylor Plumbing installed the waterline.

The stub apparently serviced an old building, a structure torn down anywhere from 5 to 50 years before F & H's construction work concerning the six-plex. No one knows who tore down the old building, and the only indication that a structure once sat on the project site was some debris uncovered near the surface during grading of the site. In postaccident investigation, an excavatory crew traced the stub by starting at the street and digging back toward the six-plex, but the sewer pipe that had run from the stub to the old building had been removed and no additional pipe was discovered. The investigatory excavation did not disclose any waterlines or sewerlines which connected the old building to the uncapped stub. The exact distance from the discovered broken stub to the six-plex site is not definite and may range from 20 to 30 feet.

In her summary judgment affidavit, Wilson states that "[w]hile the bulldozer was digging up the foundation of the old, previously demolished house on the site, I observed that it unearthed old brick and mortar and pieces of tile pipe which were hauled off the job site."

In her second amended petition, Wilson alleged that F & H Construction and Taylor Plumbing caused her injuries by failing to properly tamp the ground after they completed the construction project, by failing to properly cap the broken sewerline, and by operating heavy machinery in the area in which the broken stub was found.

F & H Construction and Taylor Plumbing moved for summary judgment, claiming that no genuine issue of fact existed regarding their alleged liability for Wilson's injuries. The district court sustained both motions and dismissed F & H Construction and Taylor Plumbing from the case.

Wilson...