Aschoff v. State, A-16-249

Background

William Aschoff, a CCI employee, drowned in 2011 when his bulldozer sank into a lake on an NDOR highway project where Werner was the general contractor and CCI a subcontractor performing fill work.
Werner contracted with the State (NDOR) as general contractor; Werner subcontracted the lake-fill work to CCI. The subcontract placed safety and OSHA compliance obligations on CCI and made CCI responsible for methods of performance.
CCI used a method developed from prior experience: scrapers dumped sand near the water and dozers pushed the sand into the lake. CCI did not perform a hazard analysis before the accident; one was created only after the incident.
Werner had limited on-site involvement (occasional visits, no continuous supervision at the lake); NDOR inspectors did not test fill density while underwater and did not supervise CCI’s day-to-day methods.
Plaintiffs alleged wrongful death and negligence against Werner and the State, arguing (1) the defendants retained control over the work or premises and (2) breached nondelegable duties to provide a safe workplace. Werner and the State moved for summary judgment; the district court granted both motions and denied plaintiffs’ partial summary judgment; the appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Did the district court improperly rely on briefs/evidence not admitted at hearing?	Court relied on appellees’ briefs and non-admitted OSHA reports as evidence.	Court only considered evidence that had been admitted; briefs were persuasive argument, not evidence.	No error; court is presumed to have relied on admitted evidence and appellants waived objections by not insisting on rulings.
2) Does Werner retain control of CCI’s work so as to be liable under the control-of-work exception?	Werner retained project control via contract and joint-site control admissions; thus it had duty and breached it.	Subcontract and practice show CCI controlled methods and safety; Werner did not supervise or dictate fill methods.	No genuine issue: Werner did not supervise, lacked knowledge of the danger, and had no comparable opportunity to prevent the accident; summary judgment for Werner affirmed.
3) Does the State retain control of CCI’s work so as to be liable under the control-of-work exception?	State’s contract with Werner and on-site authority created retained control and duty to stop unsafe work.	State did not direct or supervise CCI’s methods; inspectors did not monitor the lake work; State would only act for imminent dangers.	No genuine issue: State did not supervise or have knowledge/opportunity as required; summary judgment for State affirmed.
4) Were Werner or the State liable as possessor of premises (nondelegable duty to provide safe place to work)?	As project possessor, Werner/State had nondelegable duty to provide safe premises and breached it by allowing filling of a deep lake without oversight.	The accident resulted from CCI’s methods or operator actions (construction process), not an inherently unsafe physical condition of the premises.	Held for defendants: injury resulted from construction methods/decisions, not an unsafe physical condition of the premises; nondelegable-premises duty did not cause the death.

Key Cases Cited

Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (Neb. 2014) (framework for retained-control and possessor-of-premises exceptions in contractor/subcontractor settings)
Eastlick v. Lueder Const. Co., 274 Neb. 467, 741 N.W.2d 628 (Neb. 2007) (general contractor not liable where subcontractor controlled scaffolding and methods)
Strode v. City of Ashland, 295 Neb. 44, 886 N.W.2d 293 (Neb. 2016) (summary judgment standard and review)
Controlled Environments v. Key Industrial, 266 Neb. 927, 670 N.W.2d 771 (Neb. 2003) (evidence must be offered and received to be considered on summary judgment)
Pittman v. Rivera, 293 Neb. 569, 879 N.W.2d 12 (Neb. 2016) (elements of negligence and duty analysis)