Gaytan v. Wal-Mart

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                      VI. CONCLUSION
   It is the judgment of this court that respondent be disbarred
from the practice of law in the State of Nebraska, effective
from the date of her temporary suspension on September 25,
2013. Respondent shall comply with Neb. Ct. R. § 3-316
(rev. 2014), and upon failure to do so, she shall be subject
to punishment for contempt of this court. Respondent is
directed to pay costs and expenses in accordance with 

 and 7-115 (Reissue 2012) and Neb. Ct.
R. §§ 3-310(P) (rev. 2014) and 3-323 within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
                                      Judgment of disbarment.
   Miller-Lerman, J., not participating.



        Guadalupe Gaytan, Special Administrator of the
         Estate of Jose Sanchez Dominguez, deceased,
           appellant, v. Wal-M art et al., appellees.
                                    ___ N.W.2d ___

                      Filed September 19, 2014.     No. S-13-039.

 1.	 Summary Judgment: Appeal and Error. An appellate court will affirm a lower
      court’s grant of summary judgment if the pleadings and admissible evidence
      offered at the hearing show that there is no genuine issue as to any material facts
      or the ultimate inferences that may be drawn from those facts and that the moving
      party is entitled to judgment as a matter of law.
  2.	 ____: ____. In reviewing a summary judgment, the court views the evidence in
      the light most favorable to the party against whom the judgment was granted
      and gives that party the benefit of all reasonable inferences deducible from
      the evidence.
 3.	 Summary Judgment: Affidavits. The purpose of 

      (Reissue 2008) is to provide a safeguard against an improvident or premature
      grant of summary judgment.
 4.	 Summary Judgment: Motions for Continuance: Affidavits. As a prerequi-
      site for a continuance, or additional time or other relief under 

 (Reissue 2008), a party is required to submit an affidavit stating a
      reasonable excuse or good cause for the party’s inability to oppose a summary
      judgment motion.
 5.	 ____: ____: ____. A 

 (Reissue 2008) affidavit
      that a party submits in support of a continuance need not contain evidence
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       going to the merits of the case, but must explain why the party is presently
       unable to offer evidence essential to justify opposition to the motion for sum-
       mary judgment.
 6.	   Summary Judgment: Motions for Continuance: Pretrial Procedure. In ruling
       on a request for a continuance or additional time in which to respond to a motion
       for summary judgment, a court may consider the complexity of the lawsuit, the
       complications encountered in litigation, and the availability of evidence justifying
       opposition to the motion. The court may also consider whether the party has been
       dilatory in completing discovery and preparing for trial.
 7.	   Motions for Continuance: Appeal and Error. A trial court’s grant or denial of
       a continuance will be reviewed for an abuse of discretion.
 8.	   Negligence: Proof. In order to recover in a negligence action, a plaintiff must
       show a legal duty owed by the defendant to the plaintiff, a breach of such duty,
       causation, and damages.
 9.	   Negligence. The duty in a negligence case is to conform to the legal standard of
       reasonable conduct in the light of the apparent risk.
10.	   ____. The question whether a legal duty exists for actionable negligence is a
       question of law dependent on the facts in a particular situation.
11.	   Negligence: Liability: Contractors and Subcontractors. Generally, one who
       employs an independent contractor is not liable for physical harm caused to
       another by the acts or omissions of the contractor or its servants.
12.	   ____: ____: ____. An employer of an independent contractor can be liable for
       physical harm caused to another if (1) the employer retains control over the
       contractor’s work, (2) the employer is in possession and control of premises, (3)
       a statute or rule imposes a specific duty on the employer, or (4) the contractor’s
       work involves special risks or dangers.
13.	   Negligence: Liability: Contractors and Subcontractors: Words and Phrases.
       A nondelegable duty means that an employer of an independent contractor, by
       assigning work consequent to a duty, is not relieved from liability arising from
       the delegated duties negligently performed.
14.	   Negligence: Contractors and Subcontractors. If an owner of premises retains
       control over an independent contractor’s work, the owner has a duty to use rea-
       sonable care in taking measures to prevent injury to those who are working on
       the premises.
15.	   ____: ____. When a general contractor retains control over an independent con-
       tractor’s work, the general contractor has a duty to use reasonable care in taking
       measures to prevent injuries to workers.
16.	   Contractors and Subcontractors: Employer and Employee: Liability. To
       impose liability on a property owner or general contractor for injury to an inde-
       pendent contractor’s employee based upon the owner’s retained control over
       the work, the owner or general contractor must have (1) supervised the work
       that caused the injury, (2) actual or constructive knowledge of the danger which
       ultimately caused the injury, and (3) the opportunity to prevent the injury. While
       this necessarily means that the control exerted by the owner or general contractor
       must be substantial, it also necessarily means that the control must directly relate
       to the work that caused the injury.
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17.	 Contractors and Subcontractors. Control over the work sufficient to impose
     liability on a general contractor or owner must manifest in an ability to dictate
     the way the work is performed, and not merely include powers such as a general
     right to start and stop work, inspect progress, or make suggestions which need
     not be followed.
18.	 Contracts: Contractors and Subcontractors. In examining whether an owner
     or a general contractor exercises control over the work, both the language of any
     applicable contract and the actual practice of the parties should be examined.
19.	 Negligence: Words and Phrases. Constructive knowledge is generally defined
     as knowledge that one using reasonable care or diligence should have.
20.	 Negligence: Property. One in possession and control of premises has a duty to
     exercise reasonable care to keep the premises in a safe condition while the con-
     tract is in the course of performance. This duty relates to the physical condition
     of the premises, not the manner in which the work is done.
21.	 Negligence: Employer and Employee. The duty to provide specified safeguards
     or precautions for the safety of others that is imposed by a statute or administra-
     tive regulation is nondelegable, in that the one upon whom the duty is imposed
     cannot escape liability by delegating responsibility for the safeguards to another.
     But the duty arises only if the statute or regulation specifically imposes the
     obligation on only the employer and at least implicitly prohibits delegation. It
     is the nature of the regulation itself that determines whether the duties it creates
     are nondelegable.
22.	 Negligence: Liability: Contractors and Subcontractors: Case Disapproved.
     The vicarious liability principle as articulated in Restatement (Second) of Torts
     § 416 (1965) does not apply to personal injury claims by employees of sub-
     contractors against general contractors or owners. To the extent that Parrish v.
     Omaha Pub. Power Dist., 

, 

 (1993), and subsequent
     cases hold to the contrary, they are disapproved.

  Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
  Ronald J. Palagi and Joseph B. Muller, of Law Offices of
Ronald J. Palagi, P.C., L.L.O., for appellant.
  Jerald L. Rauterkus and Adam R. White, of Erickson &
Sederstrom, P.C., for appellees.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
  Stephan, J.
  Jose Sanchez Dominguez was killed in an accident at a
construction site. At the time of the accident, he was working
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for a subcontractor on the roof of a building being constructed
for Wal-Mart Stores, Inc. (Wal-Mart). The general contrac-
tor on the project was Graham Construction, Inc. (Graham).
Guadalupe Gaytan, the special administrator of Dominguez’
estate, brought this negligence action against Wal-Mart,
Graham, D & BR Building Systems, Inc. (D&BR), and another
party not pertinent to this appeal. The district court sustained a
motion for summary judgment filed by Wal-Mart and Graham.
In this appeal from that order, we affirm the judgment of the
district court with respect to Wal-Mart, but reverse, and remand
for further proceedings as to Graham.
                       I. BACKGROUND
   In 2007, Wal-Mart retained Graham to be the general con-
tractor in charge of constructing a new Wal-Mart store in
Omaha, Nebraska. In 2008, Graham subcontracted with D&BR
to install the steelwork necessary for the building. Dominguez
was working for D&BR at the Wal-Mart jobsite.
   Part of D&BR’s job was to install steel decking sheets on
the roof. The sheets were first laid out roughly in place and
then permanently aligned and installed. For the permanent
installation, D&BR accessed a small number of the sheets
through the use of a controlled decking zone (CDZ). Only
trained and qualified steelworkers worked inside the CDZ. Any
person who was on the roof but outside the CDZ was required
to wear personal protection equipment (PPE), such as a harness
with an attached rope or cable, at all times.
   On January 27, 2008, at approximately 11:45 a.m.,
Dominguez and another D&BR worker were on the roof.
Neither was wearing PPE. Dominguez and his coworker
walked across a decking sheet outside of the CDZ, and it gave
away, causing them to fall approximately 25 feet. Dominguez
was killed as a result of the fall. A subsequent investigation
showed the decking sheet had originally been secured with two
temporary screws, but that someone had removed the screws or
cut them off, so the sheet was actually unsecured. Dominguez’
unused PPE was discovered near the fall area.
   Gaytan, as special administrator of Dominguez’ estate,
brought this negligence action against Wal-Mart and Graham.
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Walmart and Graham moved for summary judgment. After
conducting an evidentiary hearing, the district court sustained
their motion. After two appeals from this order were dismissed
by the Nebraska Court of Appeals for lack of jurisdiction, the
district court entered an order disposing of all pending motions
and claims. Gaytan filed a timely appeal from this order, which
we moved to our docket on our own motion pursuant to our
statutory authority to regulate the caseloads of the appellate
courts of this state.1

               II. ASSIGNMENTS OF ERROR
   Gaytan assigns that the district court erred in (1) conclud-
ing as a matter of law that neither Wal-Mart nor Graham
retained control over the work being done by D&BR, (2) con-
cluding as a matter of law that neither Wal-Mart nor Graham
retained control over the premises, (3) concluding as a matter
of law that Graham did not have a nondelegable duty imposed
upon it by statute or rule, (4) concluding as a matter of law
that the work being done by Dominguez did not present a
peculiar risk of harm, (5) making inaccurate factual findings
and finding certain facts were uncontroverted, and (6) rul-
ing on the motion for summary judgment before discovery
was completed.

                 III. STANDARD OF REVIEW
   [1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judg-
ment as a matter of law.2 In reviewing a summary judgment,
the court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that

 1	
      See 

(3) (Reissue 2008).
 2	
      Zawaideh v. Nebraska Dept. of Health & Human Servs., 

, 

 (2013); U.S. Bank Nat. Assn. v. Peterson, 

, 

 (2012).
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party the benefit of all reasonable inferences deducible from
the evidence.3
                         IV. ANALYSIS
                   1. Timeliness of Ruling on
                  Summary Judgment Motion
   At the hearing on the motion for summary judgment, Gaytan
orally informed the court that entry of summary judgment
was inappropriate because discovery in the case had not been
completed. The district court noted that Gaytan’s position
was “akin to a motion to continue until the completeness of
discovery.”4 In response, Wal-Mart and Graham argued that
the case had been pending for some time; that Gaytan had
had a similar previous case against Graham pending for over
1 year and then dismissed it; and that in the 60 days since the
motion for summary judgment was filed, Gaytan had made no
request for depositions or discovery and no formal request for
a continuance.
   As part of her evidence at the summary judgment hearing,
Gaytan submitted an affidavit from her attorney, offered pursu-
ant to § 25-1335. The affidavit identified a number of attached
documents and stated in part that the attorney had to date taken
no depositions and was having trouble locating employees of
D&BR because it was a Texas company no longer in busi-
ness. The attorney also averred that he had “not yet reviewed”
“numerous” documents referenced by the discovery responses
of Wal-Mart and Gaytan.
   The district court rejected Gaytan’s argument that summary
judgment was premature because she had not had an adequate
opportunity for discovery. The court noted that Gaytan had
originally filed suit against Graham based on the same acci-
dent on December 8, 2008, and had then voluntarily dismissed
that suit approximately 1 year later, after some discovery had
occurred. The court further noted that the deadline for comple-
tion of fact discovery in the instant case was July 1, 2011.

 3	
      RSUI Indemnity Co. v. Bacon, 

, 

 (2011).
 4	
      See 

 (Reissue 2008).
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Although the hearing on the motion for summary judgment
was held on April 26, the court did not issue its order on the
motion until July 15. According to the district court, it waited
for the fact discovery deadline to pass in order to give Gaytan
an opportunity to alert the court to any later-discovered facts
which would have impacted the summary judgment. The court
also noted that although expert witness discovery had not been
completed, any information learned from that process would
not have been relevant to its disposition of the summary judg-
ment motion.
   After the district court entered summary judgment in favor
of Wal-Mart and Graham, Gaytan filed a motion to alter or
amend. This motion asserted, inter alia, that summary judg-
ment was inappropriate when discovery had not been com-
pleted. Wal-Mart and Graham objected to the motion and
argued that Gaytan could have filed a motion seeking to
continue the summary judgment hearing but did not do so.
After a hearing, the district court overruled the motion to alter
or amend.
   [3-7] In this appeal, Gaytan contends the district court
abused its discretion in entering summary judgment when dis-
covery had not been completed. This situation is governed by
statute in Nebraska. According to § 25-1335:
         Should it appear from the affidavits of a party oppos-
      ing the [summary judgment] motion that he cannot for
      reasons stated present by affidavit facts essential to jus-
      tify his opposition, the court may refuse the application
      for [summary] judgment or may order a continuance to
      permit affidavits to be obtained or depositions to be taken
      or discovery to be had or may make such other order as
      is just.
The purpose of this statute is to provide a safeguard against
an improvident or premature grant of summary judgment.5
As a prerequisite for a continuance, or additional time or
other relief, a party is required to submit an affidavit stating
a reasonable excuse or good cause for the party’s inability to

 5	
      Dresser v. Union Pacific. RR. Co., 

, 

 (2011).
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oppose a summary judgment motion.6 The affidavit need not
contain evidence going to the merits of the case, but must
explain why the party is presently unable to offer evidence
essential to justify opposition to the motion for summary
judgment.7 In ruling on a request for a continuance or addi-
tional time in which to respond to a motion for summary
judgment, a court may consider the complexity of the lawsuit,
the complications encountered in litigation, and the avail-
ability of evidence justifying opposition to the motion.8 The
court may also consider whether the party has been dilatory in
completing discovery and preparing for trial.9 A trial court’s
grant or denial of a continuance will be reviewed for an abuse
of discretion.10
   Although Gaytan did not file a formal motion to continue,
the affidavit filed by her attorney adequately raised issues
encompassed by § 25-1335. The issue of whether the sum-
mary judgment proceedings should be continued was before
the district court, and that court held it was proper to proceed.
Considering the history of the case, the deadline for fact dis-
covery, the factual nature of the issues before the court, and
the arguments for continuance advanced by Gaytan’s attorney
in his affidavit, we conclude the district court did not abuse its
discretion in entering the summary judgment order.
               2. Merits of Summary Judgment
   [8-10] In order to recover in a negligence action, a plain-
tiff must show a legal duty owed by the defendant to the
plaintiff, a breach of such duty, causation, and damages.11
The duty in a negligence case is to conform to the legal
standard of reasonable conduct in the light of the apparent

 6	
      See, DeCamp v. Lewis, 

, 

 (1989); Holt Cty.
      Sch. Dist. No. 0025 v. Dixon, 

, 

 (1999).
 7	
      Wachtel v. Beer, 

, 

 (1988).
 8	
      

.
 9	
      See 

10	
      

.
11	
      A.W. v. Lancaster Cty. Sch. Dist. 0001, 

, 

      (2010).
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risk.12 The question whether a legal duty exists for actionable
negligence is a question of law dependent on the facts in a
particular situation.13
   [11] Here, Wal-Mart was the owner of the construction
project and Graham was its general contractor. D&BR, as a
subcontractor hired by Graham, was an independent contractor
as to Wal-Mart and Graham.14 Generally, one who employs an
independent contractor is not liable for physical harm caused
to another by the acts or omissions of the contractor or its
servants.15 This is the general rule, because an employer of an
independent contractor generally has no control over the man-
ner in which the work is to be done by the contractor, so the
contractor, rather than the employer, is the proper party to be
charged with the responsibility of preventing the risk and bear-
ing and distributing it.16
   [12,13] Our case law has recognized four exceptions to the
general rule.17 Specifically, an employer of an independent
contractor can be liable for physical harm caused to another
if (1) the employer retains control over the contractor’s work,
(2) the employer is in possession and control of premises, (3)
a statute or rule imposes a specific duty on the employer, or
(4) the contractor’s work involves special risks or dangers.18
We often refer to the latter three exceptions as involving
“nondelegable” duties.19 A nondelegable duty means that an

12	
      

13	
      

14	
      See, generally, Parrish v. Omaha Pub. Power Dist., 

, 

 (1993).
15	
      Didier v. Ash Grove Cement Co., 

, 

 (2006);
      

.
16	
      See Restatement (Second) of Torts § 409, comment b. (1965).
17	
      See, Eastlick v. Lueder Constr. Co., 

, 

      (2007); 

; Whalen v. U S West Communications, 

, 

 (1997); 

. See, also,
      Dellinger v. Omaha Pub. Power Dist., 

, 

      (2000).
18	
      

19	
      

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employer of an independent contractor, by assigning work
consequent to a duty, is not relieved from liability arising
from the delegated duties negligently performed.20 Gaytan
argues that all four exceptions are applicable in this case.
                      (a) Control Over Work
   [14] Gaytan assigns and argues that both Wal-Mart and
Graham retained control over the work and thus can be liable
to Dominguez. We have held that if an owner of premises
retains control over an independent contractor’s work, the
owner has a duty to use reasonable care in taking measures to
prevent injury to those who are working on the premises.21 We
have also held that to fall within this exception to the general
rule of nonliability, the owner’s involvement in overseeing the
construction process must be substantial.22
   [15] We have recognized that when a general contractor
retains control over an independent contractor’s work, the
general contractor has a duty to use reasonable care in taking
measures to prevent injuries to workers.23 We have expressly
stated, however, that in order to impose liability on a general
contractor for injury to a subcontractor’s employee, the general
contractor must have (1) supervised the work that caused the
injury to the employee, (2) actual or constructive knowledge
of the danger which ultimately caused the injury, and (3) the
opportunity to prevent the injury.24
   [16,17] The control of the work exception is based on
the premise that the entity that controls the work should be
responsible for ensuring it is done safely. Although we have
not specifically addressed the issue in prior cases, we see no
reason why the exception as applied to owners and general
contractors should differ, and we note that the Restatements

20	
      

; 

.
21	
      

.
22	
      See 

 See, also, 

.
23	
      See, 

; 

; 

.
24	
      

.
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of Torts25 do not treat owners differently than general contrac-
tors. Thus, we now clarify our case law and hold that it is not
enough that an owner’s involvement in the work be “substan-
tial” in order to subject it to liability for injury to the employee
of an independent contractor. Rather, the same rule applies to
owners as applies to general contractors: to impose liability on
an owner for injury to an independent contractor’s employee
based upon the owner’s retained control over the work, the
owner must have (1) supervised the work that caused the
injury, (2) actual or constructive knowledge of the danger
which ultimately caused the injury, and (3) the opportunity to
prevent the injury. While this necessarily means that the con-
trol exerted by the owner must be substantial, it also necessar-
ily means that the control must directly relate to the work that
caused the injury. Further, control over the work by the general
contractor or the owner must manifest in an ability to dictate
the way the work is performed, and not merely include powers
such as a general right to start and stop work, inspect progress,
or make suggestions which need not be followed.26

                          (i) Wal-Mart
   The district court found the evidence established as a mat-
ter of law that Wal-Mart did not retain substantial control over
D&BR’s work. We agree, and further conclude as a matter of
law that Wal-Mart did not supervise or control the work which
caused Dominguez’ injury and thus cannot be held liable on a
theory that it retained control over the work.
   [18] In examining whether an owner or a general contrac-
tor exercises control over the work, both the language of
any applicable contract and the actual practice of the parties
should be examined.27 Here, there is no contract between
Wal-Mart and D&BR. There is a contract between Wal-Mart

25	
      See, generally, Restatement (Second), supra note 16, § 414; Restatement
      (Third) of Torts: Liability for Physical and Emotional Harm § 56 (2012).
26	
      

. See Restatement (Second), supra note 16, § 414,
      comment c.
27	
      See, 

; 

.
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and Graham, however. And that contract specifically states
that Wal-Mart has no right to exercise control over Graham,
Graham’s employees, or Graham’s agents. There is no evidence
that any Wal-Mart representative actually exercised any control
over the construction site. All of this evidence demonstrates
that Wal-Mart did not supervise any work at the jobsite, let
alone the work performed by D&BR that caused the injury
to Dominguez.
   Gaytan generally acknowledges that there is no evidence
of actual control over D&BR’s work by Wal-Mart. But she
contends that provisions in the Wal-Mart/Graham contract cre-
ate a genuine issue of material fact as to whether Wal-Mart
exercised the requisite control over D&BR’s work to expose it
to liability. She relies particularly on the contract’s reference to
an “Owner Construction Manager” who was to be Wal-Mart’s
authorized representative on the jobsite. She also contends
that the contract between Wal-Mart and Graham provides that
all work shall comply with it; that all work shall comply with
applicable statutes, regulations, codes, and standards; and that
Wal-Mart retained the right to enforce the terms and conditions
of the contract.
   Even assuming Wal-Mart had an authorized representative
on the jobsite, on this record, there is no reasonable inference
that such representative controlled the roofing work performed
by D&BR. And the contractual provisions relied upon by
Gaytan demonstrate no more than a general power to stop and
start work. None of them, especially when read in light of the
more explicit provisions of the contract, create a genuine issue
of material fact as to whether Wal-Mart exercised control over
the work which resulted in the injury to Dominguez. The dis-
trict court correctly held that Wal-Mart as a matter of law did
not retain control over the work being performed by D&BR
and therefore cannot be liable to Dominguez under the control
of the work exception.

                         (ii) Graham
   Gaytan also asserts that Graham can be liable because it
retained control of the work being performed by D&BR. The
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district court concluded that Graham did not retain control
of the work because it only generally supervised the work
being done by D&BR and neither directed nor controlled the
manner in which that work was done. The court particularly
relied on the fact that Graham employees were not allowed on
the roof and had no experience or training in the methods of
steel erection.
   In examining whether there is a genuine issue of material
fact on this theory of liability, we examine both the language
of the applicable contract and the actual control exerted by
Graham.28 In doing so, we are mindful that the “work that
caused the injury to the employee”29 in the context of this
case includes two factual elements: (1) the use of safety
equipment by workers on the roof and (2) the manner in
which the decking was secured to the roof. We examine each
of these in turn.

                  a. Use of Safety Equipment
                     i. Supervision of Safety
                         Equipment Usage
   According to the subcontract between Graham and D&BR,
Graham had the general right to supervise D&BR’s work and
require D&BR to resolve safety issues. In addition, D&BR
was required to comply with all applicable federal, state, and
local safety regulations, including Graham’s own safety pro-
grams and rules.
   The record shows that after the accident, the Occupational
Safety and Health Administration (OSHA) penalized Graham
because the CDZ had been improperly designated with cones
meant to be used as a warning line instead of using a guardrail.
In doing so, OSHA noted that even though Graham had no
employees of its own exposed to the roofing hazard, it was “the
controlling employer for the site, and ha[d] explicit control
over the overall safety and health of the site.” The record also

28	
      See 

29	
      See 

, 

, 

.
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shows that Graham had supervisory personnel on the jobsite
and that after the accident, Graham both held a meeting with
D&BR about roof safety and warned a D&BR foreman that
a D&BR worker was seen not using PPE while on the roof.
The record further shows that prior to the accident, Graham
monitored whether D&BR employees were wearing PPE while
on the roof and developed a fall protection plan for D&BR.
In addition, Graham orientated Dominguez, and the orienta-
tion checklist notes he was instructed by Graham about safe
work practices.
    There is thus evidence in the record that the contract autho-
rized Graham to monitor and control the use of safety equip-
ment by D&BR workers on the roof and that it actually did so.
It is undisputed that Dominguez was not wearing his PPE when
he fell. A finder of fact could reasonably infer from the evi-
dence that Graham’s control over the use of safety equipment
on the roof directly related to the work which caused the injury
to Dominguez. A genuine issue of material fact thus exists on
this subissue.

                  ii. Knowledge of PPE Usage
   [19] As noted, even if Graham controlled the work which
caused Dominguez’ injury, it can be liable only if it had
actual or constructive knowledge of the danger which ulti-
mately caused the injury and the opportunity to prevent the
injury.30 In Parrish, we found the general contractor had the
requisite knowledge because it was aware that no safety net or
adequate substitute was in place below the area where a steel-
worker’s fall occurred. Here, there is no evidence that Graham
had actual knowledge prior to the accident that Dominguez
or any other D&BR worker was working without his PPE.
Thus, the question is whether there is any evidence to support
an inference that Graham had constructive knowledge that
D&BR workers were not using PPE. Constructive knowledge

30	
      See 

.
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is generally defined as “[k]nowledge that one using reasonable
care or diligence should have . . . .”31
   The record reflects that Graham monitored D&BR employ-
ees on January 9, 10, 19, and 22, 2008, to determine whether
they were properly wearing their PPE. This evidence supports
an inference that despite the fact that they did not have access
to the roof, Graham employees were able to observe whether
or not D&BR workers on the roof were using PPE as required.
According to Graham’s evidence, on each of these occasions,
all D&BR employees were complying with the PPE require-
ments. But there is also evidence that after Dominguez fell,
three unused sets of PPE were found on the roof, which sug-
gests the failure to use PPE was so widespread that Graham
should have known of it. On this record, there is a genuine
issue of material fact as to whether Graham had constructive
knowledge that D&BR employees were not using PPE prior to
the accident.
               iii. Opportunity to Prevent Injury
   As noted, Graham had the contractual authority to require
D&BR to comply with safety requirements, which reasonably
includes the proper use of PPE. Thus, Graham had the ability
to require D&BR employees to wear PPE while on the roof
and the opportunity to prevent the injury to Dominguez to the
extent it was caused by his failure to use his PPE.
                          iv. Conclusion
   Construing the evidence in a light most favorable to Gaytan,
as our standard of review requires, there are genuine issues of
material fact with respect to Gaytan’s claim against Graham on
the theory that it retained control over the safety practices on
the jobsite, and specifically the use of PPE by D&BR workers
on the roof of the building. The district court erred in con-
cluding that Graham cannot, as a matter of law, be liable to
Dominguez under the control of the work exception.

31	
      Black’s Law Dictionary 1004 (10th ed. 2014).
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                     b. Improper Installation
                           of Decking
   The district court found, as a matter of law, that Graham
did not exert sufficient control over the manner in which
the decking was installed to be liable to Dominguez. Again,
we look at the relevant contract and the actual conduct in
assessing whether there is a genuine issue of material fact in
this regard.32
   Nothing in the subcontract gives Graham the authority to
dictate the manner in which D&BR installed the roof decking,
and the record shows that Graham employees did not do so. To
the contrary, the evidence in the record is that Graham employ-
ees were not allowed to be on the roof at all.
   Gaytan argues that even if Graham could not go on the roof
directly to inspect how the sheeting was installed, it could have
inspected it via other means. But she offers no argument or
evidence as to why Graham should have inspected it, in that it
had no contractual or other obligation to control the manner in
which D&BR performed its actual work. And the relevant test
is whether the general contractor actually exerted control over
the methodology of the subcontractor’s work.33
   In Eastlick v. Lueder Constr. Co.,34 a mason employed by a
subcontractor was injured when he fell 20 feet to the ground
after the scaffolding he was on collapsed. We found the evi-
dence showed that the general contractor had overall control
of and generally supervised the jobsite. However, there was
no evidence that the general contractor owned, maintained,
erected, or dismantled the scaffolding. We reasoned that overall
control of the jobsite was not enough, and emphasized that the
general contractor did not direct the work done by the subcon-
tractor or have control over the manner in which the subcon-
tractor’s work was done.
   Here, the actual control issue is very similar to Eastlick.
Graham did not dictate or control the actual methods by which

32	
      See, 

; 

.
33	
      

; 

.
34	
      

.
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D&BR installed the roof decking. We conclude the district
court correctly determined, as a matter of law, that Graham did
not oversee or supervise the manner in which the roof deck-
ing was installed and that thus, it cannot as a matter of law
be liable for injuries caused to Dominguez by the improper
installation of the roof decking on the theory that it controlled
the work.

                    (b) Control of Premises/
                       Safe Place to Work
   [20] Our jurisprudence has recognized that one in possession
and control of premises has a duty to provide a safe place to
work for a contractor’s employee.35 In earlier cases, we some-
times comingled this exception with the control of the work
exception.36 In our more recent cases, we have clarified that
this exception is separate and distinct from the control of the
work exception.37 Specifically, the safe place to work exception
relates to the physical condition of the premises, not the man-
ner in which the work is done.38

                           (i) Wal-Mart
   The district court, citing Parrish, reasoned that because
Wal-Mart did not retain control of the work, Wal-Mart did not
as a matter of law maintain possession and control of the prem-
ises so as to have a duty to provide a safe place to work for
Dominguez. Gaytan does not directly challenge this rationale,
but it is incorrect. In Parrish, we found that the owner retained
sufficient control of the work so as to be liable for injuries to
a subcontractor’s employee. We then stated that because the
owner retained control of the work, it also had the nondelega-
ble duty to provide a safe place to work. It was this rationale to
which the district court in this case referred.

35	
      Id.; 

; 

.
36	
      

; 

. See, also, 

.
37	
      

; 

.
38	
      

.
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   But the syllogism does not work the opposite way. That
is, the fact that the owner does not retain sufficient control
of the work so as to become liable for injuries to employees
of an independent contractor does not mean that the owner
is relieved of its nondelegable duty to provide a safe place to
work for employees of independent contractors. We explained
in Didier v. Ash Grove Cement Co.39 that the duty imposed on
an owner derived from the owner’s control of the work is dis-
tinguishable from the nondelegable duty derived from the own-
er’s ownership and control of the workplace premises. Thus,
the mere fact that the owner did not retain sufficient control of
the work so as to have a legal duty of care does not mean that
the owner has no duty to provide a safe place to work arising
from its ownership and control of the premises.40
   Nevertheless, we agree with the conclusion reached by the
district court. An owner has a duty to keep the premises safe
and to provide a safe place to work only when the owner main-
tains possession and control of the premises.41 Nothing in the
record before us supports an inference that Wal-Mart remained
in possession or control of the premises during the construc-
tion. Thus, as a matter of law, it had no duty to maintain the
premises in a safe condition for Dominguez.

                           (ii) Graham
   The district court did not analyze whether Graham breached a
nondelegable duty to provide a safe place to work. Gaytan con-
tends that this was error. She argues that some entity must be in
possession and control of the premises and that if Wal-Mart was
not, then surely Graham was. As such, she asserts that Graham
had a duty to provide a safe place to work.
   We agree that Graham had such a duty. The record fully
supports that Graham, as a matter of law, was the entity in
possession and control of the premises. But it is also clear
on this record that Dominguez’ injury as a matter of law was

39	
      

.
40	
      

41	
      See, generally, Restatement (Second), supra note 16, § 422, comment c.
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	                          GAYTAN v. WAL-MART	67
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not proximately caused by any breach of this duty. The duty
owed by one in possession and control to an employee of a
subcontractor is “to exercise reasonable care to keep the prem-
ises in a safe condition while the contract is in the course of
performance.”42 The possessor can be liable only when the
employee is injured because the workplace premises were
not safe.43
   Here, Dominguez was not injured because there was some-
thing unsafe about the premises he was working on. Instead,
he was injured due to specific actions or inactions involved in
the construction process. Thus, any breach of Graham’s duty to
provide a safe place to work did not cause the accident and his
injuries. There is no genuine issue of material fact with respect
to this allegation of negligence.

                       (c) Duty Imposed by
                          Statute or Rule
   The district court determined that the “record contains no
evidence, nor does [Gaytan] assert the existence of, any stat-
utes or rules of law that imposed a duty upon [Wal-Mart or
Graham]. Therefore, the Court does not find a duty based upon
this theory.” Gaytan argues that this finding is incorrect as
to Graham.
   Our case law in this area is not well developed. In both
Didier and Eastlick, we recognized this exception to the gen-
eral rule of nonliability, but concluded it did not apply because
there was no evidence that any statute, rule, or regulation was
violated. Here, the record shows that a regulation was vio-
lated. Specifically, Graham was cited by OSHA for violating

(a)(1) (2007), which requires that each
employee working in steel erection on a surface higher than
15 feet be protected from fall hazards. The OSHA citation
states that employees “were not regularly protected from falls”
by Graham. The attached inspection documents show that

42	
      Simon v. Omaha P. P. Dist., 

, 

      (1972). See, also, 

.
43	
      

.
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Graham was cited by OSHA because the CDZ was marked
with cones instead of a guardrail. The record further shows
that D&BR, but not Graham, was cited by OSHA for how the
metal decking was secured.
   [21] The duty to provide specified safeguards or precau-
tions for the safety of others that is imposed by a statute or
administrative regulation is nondelegable, in that the one
upon whom the duty is imposed cannot escape liability by
delegating responsibility for the safeguards to another.44 But
the duty arises only if the statute or regulation specifically
imposes the obligation on only the employer and at least
implicitly prohibits delegation.45 It is the nature of the regu-
lation itself that determines whether the duties it creates are
nondelegable.46
   It is clear from the language of § 1926.760 and the record
that no regulation imposed a nondelegable duty on Graham
as to how the metal decking on the roof was to be secured.
At most, § 1926.760 relates to Graham’s duty to provide for
worker safety on the roof through the use of safety equipment,
a duty we have already recognized may arise via Graham’s
control of the safety aspects of the roof work. We acknowl-
edge that 

 (2007) does impose certain spe-
cific duties on a general contractor when it controls the
project.47 But these duties do not include those articulated in
§ 1926.760.48 While violation of § 1926.760 may be evidence
of Graham’s negligence, nothing in its language or any other
part of § 1926 provides that responsibility for worker safety
and use of safety equipment always rests with the general con-
tractor and cannot be delegated. We conclude that as a matter
of law, no statute or regulation imposed a nondelegable duty
on Graham.

44	
      Restatement (Second), supra note 16, § 424, comment a.
45	
      Restatement (Third), supra note 25, § 63, comment d.
46	
      See Padilla v. Pomona College, 

, 

 (2008).
47	
      See 

(c) (2007).
48	
      

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	                            GAYTAN v. WAL-MART	69
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                  (d) Special or Peculiar Risks
   Gaytan argues that the district court erred in determining
that neither Wal-Mart nor Graham had a nondelegable duty
arising from the “peculiar risk” associated with steel construc-
tion. She relies on Parrish,49 in which we stated:
      As expressed in Restatement (Second) of Torts § 416
      (1965), if a general contractor hires an independent con-
      tractor to perform work which the general contractor
      “should recognize as likely to create during its prog-
      ress a peculiar risk of physical harm to others unless
      special precautions are taken,” the general contractor
      may be liable for physical harm caused to employees
      of the subcontractor if the general contractor fails to
      exercise reasonable care to take such precautions, even
      though the general contractor has provided, in the con-
      tract or otherwise, that the subcontractor be responsible
      for such precautions.
We further noted a “peculiar risk” was distinguishable from
“‘the common risks to which persons in general are com-
monly subjected by ordinary forms of negligence which are
usual in the community’” and must involve “‘some special
hazard resulting from the nature of the work done, which calls
for special precautions.’”50 We concluded that because “steel
construction work involves risks which an average person does
not ordinarily encounter on a day-to-day basis,” it involved a
“‘peculiar risk’” within the meaning of § 416.51
   But contrary to our statement in Parrish, § 416 makes no
mention of liability “for physical harm caused to employ-
ees of the subcontractor.” Instead, it speaks generally of a
“peculiar risk of physical harm to others.”52 The illustrations
included in the comments to § 416 refer to injuries sustained
by persons who had no involvement in the construction

49	
      

, 

, 

.
50	
      

, 

, quoting Restatement (Second), supra note
      16, § 416, comment d.
51	
      

, 

, 

.
52	
      Restatement (Second) of Torts, supra note 16, § 416 (emphasis supplied).
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project, such as a pedestrian who falls into an unguarded
excavation, the owner of adjoining property damaged by the
collapse of an inadequately shored party wall, and a motor-
ist who collides with an unilluminated gravel pile left in the
street by a cement contractor.53 Although a tentative draft of
§ 41654 included a “Special Note” stating that the rule would
not apply to employees of independent contractors covered
by workers compensation, the final version was silent on
this issue.55
   As noted by the authors of the Restatement (Second) of
Torts, the liability principles stated in §§ 416 to 429 are
rules of vicarious liability which arise “in situations in which,
for reasons of policy, the employer is not permitted to shift
the responsibility for the proper conduct of the work to the
contractor.”56 A majority of state courts have held that these
vicarious liability rules do not apply to claims by injured
employees of a subcontractor against a property owner or
general contractor.57 A minority of jurisdictions apply vicari-
ous liability principles relating to peculiar risk to claims of a
subcontractor’s employee.58

53	
      Id., comments c. and e.
54	
      Restatement (Second) of Torts § 416 (Tentative Draft No. 7, 1962, ch. 15,
      p. 17-18).
55	
      See, Privette v. Superior Court (Contreras), 

, 

,
      

 (1993); Wagner v. Continental Cas. Co., 

, 

 (1988).
56	
      Restatement (Second), supra note 16, Introductory Note for § 416 at 394.
57	
      See, e.g., Fleck v. ANG Coal Gasification Co., 

 (N.D.
      1994); 

; Zueck v. Oppenheimer Gateway Properties,
      

 (Mo. 1991); 

; Jones v. Chevron
      U.S.A., Inc., 

 (Wyo. 1986); Vertentes v. Barletta Co., 

, 

 (1984); Sierra Pac. Power Co. v. Rinehart,
      

, 

 (1983); Conover v. Northern States Power Co.,
      

 (Minn. 1981); Tauscher v. Puget Sound Power & Light
      Co., 

, 

 (1981); State v. Morris, 

      (Alaska 1976).
58	
      See, Lindler v. District of Columbia, 

 (D.C. Cir. 1974); Lorah
      v. Luppold Roofing Co., Inc., 

, 

 (1993);
      Makaneole v. Gampon, 

, 

 (1989); Elliott v.
      Public Serv. Co. of N.H., 

, 

 (1986).
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   The courts adopting the majority view cite various rea-
sons for not applying the principle embodied in § 416 of
the Restatement (Second) to claims by injured employees of
subcontractors, but most of the rationale stems from the fact
that a subcontractor’s employees are generally covered by
workers’ compensation laws. Some courts note that the policy
concern underlying § 416, which is to provide a remedy to
persons injured as a result of a peculiar risk at a construction
site, is already met in the case of a subcontractor’s employee
covered by workers’ compensation.59 These courts note that
the employer of the subcontractor has indirectly funded this
remedy because workers’ compensation premiums are neces-
sarily included in the contract price.60 Some courts reason
that under agency principles, the subcontractor’s release from
tort liability to an injured employee by operation of work-
ers’ compensation laws operates to release the party which
employed the subcontractor.61 And as the California Supreme
Court noted in overruling its prior cases holding § 416 appli-
cable to claims of subcontractor’s employees, “to impose
vicarious liability for tort damages on a person who hires an
independent contractor for specialized work would penalize
those individuals who hire experts to perform dangerous work
rather than assigning such activity to their own inexperi-
enced employees.”62
   Our own case law in this area is somewhat ambiguous.
We have never specifically disapproved of the language in
Parrish which applied the vicarious liability principle of
§ 416 to the claim of a subcontractor’s employee against the
general contractor. In Whalen v. U S West Communications,63

59	
      

; 

; 

;
      

; 

.
60	
      

61	
      

; 

; 

;
      

.
62	
      

, 

, 

, 

.
63	
      

.
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and Ray v. Argos Corp.,64 we cited the language in Parrish
but concluded that the injury to a subcontractor’s employee
did not result from a peculiar risk. The Nebraska Court of
Appeals took the same approach in Dellinger v. Omaha Pub.
Power Dist.65 But in Anderson v. Nashua Corp.,66 we held that
a property owner could not be vicariously liable for injuries
sustained by its independent contractor’s employee resulting
from inherently dangerous work because under principles of
agency, the independent contractor’s immunity from tort lia-
bility by operation of Nebraska’s workers’ compensation law
necessarily precluded any liability on the part of the owner.67
In Downey v. Western Comm. College Area,68 we disapproved
other aspects of the holding in Anderson but re-affirmed the
principle that “a possessor of property is not liable for injury
to an independent contractor’s employee caused by a danger-
ous condition that arose out of the contractor’s work, as dis-
tinguished from a condition of the property or a structure on
the property.”
   The Restatement (Third) of Torts provides some clarity in
this area. Section 57 provides: “Except as stated in §§ 58-65,
an actor who hires an independent contractor is not subject
to vicarious liability for physical harm caused by the tortious
conduct of the contractor.”69 Section 59, which replaced
Restatement (Second) of Torts § 416, provides:
         An actor who hires an independent contractor for an
      activity that the actor knows or should know poses a
      peculiar risk is subject to vicarious liability for physical

64	
      Ray v. Argos Corp., 

, 

 (2000).
65	
      

.
66	
      Anderson v. Nashua Corp., 

, 

 (1994),
      disapproved on other grounds, Downey v. Western Comm. College Area,
      

, 

 (2012).
67	
      See, also, Plock v. Crossroads Joint Venture, 

, 

 (1991), overruled on other grounds, Hynes v. Hogan, 

,
      

 (1997).
68	
      Downey, supra note 66, 282 Neb. at 979, 808 N.W.2d at 848.
69	
      Restatement (Third), supra note 25, § 57 at 400.
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      harm when the independent contractor is negligent as to
      the peculiar risk and the negligence is a factual cause of
      any such harm within the scope of liability.70
But unlike the Second Restatement, the Third Restatement
specifically states: “The hirer of an independent contractor
is not subject to liability to an employee of the independent
contractor under any of the vicarious-liability avenues in this
Chapter.”71 As the authors explain, the “central reasons for this
conclusion stem from the design of workers’ compensation.”72
The authors explain:
      Under the exclusive-remedy provisions of workers’ com-
      pensation, employers are immune from negligence claims
      by injured employees. This exclusivity provision bars a
      negligence claim by an employee against the employer
      even when the employer is an independent contractor
      hired by another. Because the hirer of the independent
      contractor is not the employer of the injured employee,
      an exclusivity provision does not, by itself, expressly
      bar a claim against the hirer by the injured employee of
      the independent contractor. Yet the exclusivity of work-
      ers’ compensation undermines the usual predicate for
      vicarious liability—the underlying negligence of the per-
      son whose negligence is attributed to the vicariously
      liable defendant. A claim against the hirer would seek to
      attribute liability, under a vicarious-liability theory, even
      though the initial or primary liability claim is barred.73
This rationale is consistent with our holdings in Anderson and
Downey, but inconsistent with our application of the “peculiar
risk” principle derived from § 416 of the Restatement (Second)
to the claim of the subcontractor’s employee in Parrish.
   [22] We need not decide in this case whether to adopt the
principles of the Restatement (Third) of Torts with respect
to the vicarious liability principle relating to peculiar risk.

70	
      Id., § 59 at 417.
71	
      Id., § 57, comment d. at 403.
72	
      Id.
73	
      Id. at 403-04.
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Instead, we join the majority of jurisdictions which hold
that the principle as articulated in § 416 of the Restatement
(Second) of Torts does not apply to personal injury claims by
employees of subcontractors against general contractors or
owners. To the extent that Parrish and subsequent cases hold
to the contrary, they are disapproved. Although our reasoning
differs from that of the district court, we agree with its conclu-
sion that as a matter of law, the peculiar risk exception affords
no legal basis for Gaytan’s claims against either Wal-Mart
or Graham.
              (e) Facts Identified by District Court
   For completeness, we note that Gaytan also assigns that the
district court erred “because its decision was based on inac-
curate facts, and facts that were controverted.” We have con-
sidered this assignment of error in our analysis of the various
theories of liability advanced by Gaytan. With the exception of
the genuine issues of material fact which we have identified
above with respect to Gaytan’s claim against Graham on the
theory of retained control over safety practices, we find this
assignment of error to be without merit.
                        V. CONCLUSION
   For the reasons discussed, there are no genuine issues of
material fact as to any of Gaytan’s claims against Wal-Mart,
and the district court did not err in sustaining its motion for
summary judgment. There are also no genuine issues of mate-
rial fact with respect to Gaytan’s claims against Graham, with
the exception of the direct negligence claim arising from
Graham’s alleged retention of control over the use of safety
equipment on the roof. Because there are genuine issues of
material fact on that claim, the district court erred in sustain-
ing Graham’s motion for summary judgment. Accordingly, we
affirm the judgment of the district court as to Wal-Mart, but
reverse the judgment with respect to Graham and remand the
cause to the district court for further proceedings consistent
with this opinion.
	Affirmed in part, and in part reversed and
	                  remanded for further proceedings.
   Miller-Lerman, J., participating on briefs.