Buresh v. Reinke

28 Neb.App. 47

939 N.W.2d 392

Thomas L. BURESH, appellant,

v.Craig REINKE, appellee.

No. A-19-239.

Court of Appeals of Nebraska.

Filed February 11, 2020.

James R. Welsh, of Welsh & Welsh, P.C., L.L.O., Omaha, and Lyle J. Koenig, of Koenig Law Firm, for appellant.

Douglas L. Phillips and Clifton J. Kephart, of Klass Law Firm, L.L.P., for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Thomas L. Buresh was injured while he was doing electrical work as a subcontractor in the basement of a home construction project; part of the home’s structure collapsed, and a piece of lumber struck Buresh. He sued the homeowner, as well as the general contractor for the project, Craig Reinke. The homeowner and Reinke each filed third-party complaints against Tyler Harms, the subcontractor who they alleged failed to properly brace or secure the portion of the home that Buresh claimed had collapsed on him. The Douglas County District Court granted motions for summary judgment filed by the homeowner and Harms, and the action was dismissed as to those parties. Thereafter, Reinke moved for and was granted summary judgment in his favor; Buresh’s complaint was dismissed.

Buresh appeals only from the order granting summary judgment in favor of Reinke. Because we conclude there was sufficient evidence to overcome Reinke’s summary judgment motion, we reverse the order and remand the cause for further proceedings on Buresh’s premises liability claim against Reinke.

BACKGROUND

In October 2016, Buresh filed a complaint against the homeowner and Reinke, claiming that in October 2012, the homeowner was building a home in Davenport, Nebraska, and that Reinke was hired as the primary contractor. Buresh was hired to do electrical work. On October 18, 2012, at about 10:30 a.m., the home was in a "dangerous condition," because it was only partially constructed, had been "framed, but not sheeted," and was "not braced or secured to prevent collapse." It was a "windy day." Buresh was working in the basement. He heard a "pop" and then saw the "structure" coming down on him (other parts of the record suggest the structure that hit Buresh may have been a "two-by-four, approximately five feet long," that "could have been a piece of a truss or a piece of a wall"). It landed across his right shoulder, causing him to fall into a pile of sand and injure his left hand.

Buresh alleged that the homeowner and Reinke were in control of the work and had to use reasonable care to maintain the premises in a safe condition for those on it. Buresh asserted that they were or should have been aware of the "dangerous condition" of the home at the time of the incident. Buresh claimed that the homeowner and Reinke breached their duty to exercise reasonable care to "maintain the building in a safe condition." Buresh alleged that he suffered several injuries that were the direct and proximate result of the claimed breaches. As a direct result of his injuries, Buresh claimed he had suffered and would continue to suffer a variety of damages.

The homeowner and Reinke each filed third-party complaints against Harms, generally alleging that if Buresh proved negligence, it would have been Harms’ negligence that proximately caused the alleged collapse and Buresh’s alleged injuries.

In May 2017, the homeowner filed a motion for summary judgment, which the district court granted in November. The court concluded that by virtue of Reinke’s oral agreement to act as the general contractor, responsibilities to control the premises and people working there were Reinke’s alone. Buresh’s complaint as to the homeowner was dismissed. Buresh does not assign error as to this order.

In March 2018, Harms filed a motion for summary judgment as to Reinke’s third-party complaint against him. The district court entered an order in May, concluding there was no evidence that the trusses were negligently braced or installed, that the installation was in violation of the standard of care, or that any negligence of Harms was the proximate cause of the failure of the trusses. Harms’ motion for summary judgment was granted, and Reinke’s third-party complaint against Harms was dismissed. Buresh does not assign error as to this order.

In October 2018, Reinke filed a motion for summary judgment. In his "Statement of Undisputed Facts," he asserted that there was no genuine issue with respect to the material fact that the "only evidence in the record with respect to the applicable standard of care" was that (1) Harms constructed the trusses in the same fashion he has always done and they were braced in accordance with industry standards (citing Harms’ deposition), (2) Reinke did not know of anything Harms or his crew did to cause the failure of the truss system (citing Reinke’s deposition), and (3) Reinke believed the trusses were properly installed and secured (citing Reinke’s deposition). Buresh disputed Reinke’s "Statement of Undisputed Facts" and set forth a statement of facts in opposition to Reinke’s motion for summary judgment.

The hearing on Reinke’s summary judgment motion took place in December 2018. At Reinke’s request, the district court said it would consider three exhibits received into evidence at prior hearings: Reinke’s deposition, Harms’ deposition, and the homeowner’s answer. Buresh reoffered his complaint and Reinke’s deposition and then offered Buresh’s affidavit; all exhibits were received into evidence.

According to Reinke’s deposition testimony, on October 18, 2012, the walls of the first floor were sheeted but there was no sheeting on the roof. The structure had been braced with "diagonal and in-line bracing to hold the trusses up straight and in place." Reinke said that roughly 50 trusses were going to be in the roof of the house and that 60 percent of those 50 trusses were in place at the time of the accident. Reinke’s and Harms’ testimony indicated that the trusses that were in place had been set up a week prior to October 18. Reinke testified that it was "[e]xtremely windy" the day of and the day before the accident. Reinke and his brother were at the site the day before the accident, and they "looked at the bracing." Reinke was "probably" sure he "added some to it." Reinke determined "it was sound and nothing was moving." Reinke assumed the building collapsed from the wind—that the bracing was "inadequate for maybe the winds that blew, but I don't — I can't say that for sure. I think it was adequate." He acknowledged he could have "put up more bracing" and that it was his responsibility. When asked if it ever occurred to Reinke that the framework could collapse and fall into the basement, Reinke responded, "I guess I am sure it’s in the back of my mind. All of those things play into a contractor’s thought process; so I'd say yes."

In his affidavit, Buresh claimed that the trusses had not been braced and that no sheeting had been put on the structure. Buresh had been around construction sites for many years, and in his experience, after trusses are erected, they are braced and sheeting is placed on them immediately. He said that on October 18, 2012, he went to the construction site at the "specific insistence" of Reinke, "having previously voiced concern to Reinke" about working in "extremely windy" conditions. Reinke "guess[ed]" that he directed Buresh that he needed to be at the worksite on October 18. But Reinke said that at no time did Buresh voice to him a concern about the high winds or the safety of being in the house.

During the hearing on Reinke’s summary judgment motion, Reinke argued that Buresh had not offered evidence of Reinke’s required standard of care. The district court indicated it did not find an opinion in the record that "the industry requires that [trusses be] immediately sheeted and had they been immediately sheeted the accident would not have happened." Buresh argued there was a material issue of fact in dispute about whether Reinke should have had installation of sheeting or more bracing because the day before the incident "[Reinke] and his brother looked at the bracing and ... [Reinke] said he thought it might be inadequate, and they did nothing." Buresh claimed that Reinke had a duty to add bracing or to do "something," notwithstanding the "standard of the industry." However, Buresh did not know that there was "any evidence to that effect" to show that had Reinke done that, then the incident would not have occurred.

The district court issued its order on January 10, 2019. The court noted that the parties did not dispute Reinke’s control over the workplace and that he had a duty to use ordinary and reasonable care to avoid injuries to subcontractors working on the premises. The court pointed to Harms’ and Reinke’s testimony that the trusses were erected and braced to industry standards and were properly installed and secured, but were "knocked down by extremely high winds." The court stated that the question in the case was whether there were genuine issues of material fact with respect to the last two elements of Buresh’s negligence claim: breach of duty and proximate cause.

The district court concluded that Buresh failed "to produce any evidence as to the applicable standard of care for carpenters or framers constructing and bracing trusses in a building." The court stated that the only evidence regarding the standard of care came from Harms, who believed the construction of the trusses was consistent with the applicable standard. The court concluded, "Other than that opinion, and [Reinke’s] opinion that the trusses were ‘adequately’ braced, there is only speculation." The court cited to Topil v. Hub Hall Co. , 230 Neb. 151, 430 N.W.2d 306 (1988), and Bargmann v. Soll Oil Co. , 253 Neb. 1018, 574 N.W.2d 478 (1998), with regard to the absence of expert testimony to establish the appropriate standard of care to prove a breach of duty. The district court concluded there was no opinion on the applicable standard of care, and...