Gaytan v. Wal-Mart
289 Neb. 49
| Neb. | 2014Background
- Dominguez, an independent-contractor employee for D&BR, died on a Wal-Mart project roof in Omaha in 2008 after a decking sheet unsecured due to missing screws.
- Graham Construction was the general contractor; Wal-Mart retained Graham; D&BR installed steel decking for the building.
- CDZ and PPE rules applied; workers inside the CDZ wore PPE, while Dominguez and a coworker outside the CDZ did not.
- OSHA cited Graham for fall-protection deficiencies using cones instead of a guardrail; D&BR was cited for decking-attachment issues.
- Gaytan, as special administrator of Dominguez's estate, sued Wal-Mart and Graham for negligence; district court granted summary judgment for Wal-Mart and Graham.
- The Nebraska Supreme Court affirmed against Wal-Mart, but reversed as to Graham and remanded for further proceedings on Graham's potential liability over safety-control duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Wal-Mart retain control over D&BR’s work? | Gaytan: Wal-Mart’s contract and role show retained control. | Graham/Wal-Mart: No substantial control; contract limited to oversight. | No genuine fact; Wal-Mart did not retain control. |
| Did Wal-Mart retain control over the premises to create a safe-work duty? | Wal-Mart ownership implies duty to provide safe premises. | No possession/control of premises during construction. | No premises control by Wal-Mart; no safe-premises duty. |
| Did Graham have a nondelegable duty imposed by statute or rule? | Graham bears nondelegable-safety duties due to regulatory oversight. | No statutory nondelegable duty proven. | No statutory nondelegable duty on Graham. |
| Did the case involve a peculiar risk that latent the general-liability exception? | Steel-construction poses a peculiar risk requiring precautions. | Restatement §416 does not apply to employees of subcontractors against owners/general contractors. | Peculiar-risk exception does not support liability against Wal-Mart; Graham may have standing to warning/safety duties on PPE. |
Key Cases Cited
- Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d 902 (1993) (Nebraska Supreme Court 1993) (peculiar risk and nondelegable duties discussed)
- Eastlick v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007) (Nebraska Supreme Court 2007) (control over work vs. control of premises distinction)
- Didier v. Ash Grove Cement Co., 272 Neb. 28, 718 N.W.2d 484 (2006) (Nebraska Supreme Court 2006) (nondelegable duties and safety responsibilities; regulatory guidance)
- Whalen v. U S West Communications, 253 Neb. 334, 570 N.W.2d 531 (1997) (Nebraska Supreme Court 1997) (application of control-of-work principles)
- Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994) (Nebraska Supreme Court 1994) (employees and workers’ compensation interplay with vicarious liability)
- Downey v. Western Comm. College Area, 282 Neb. 970, 808 N.W.2d 839 (2012) (Nebraska Supreme Court 2012) (workers’ compensation exclusivity and vicarious liability framework)