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Gaytan v. Wal-Mart

Supreme Court of Nebraska

September 19, 2014


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Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge.

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. MILLER-LERMAN, J., participating on briefs. MILLER-LERMAN, J., not participating.


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[289 Neb. 51] Stephan, J.

Jose Sanchez Dominguez was killed in an accident at a construction site. At the time of the accident, he was working [289 Neb. 52] for a subcontractor on the roof of a building being constructed for Wal-Mart Stores, Inc. (Wal-Mart). The general contractor 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 & B.R. 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.


In 2007, Wal-Mart retained Graham to be the general contractor in charge of constructing a new Wal-Mart store in Omaha, Nebraska. In 2008, Graham subcontracted with D& B.R. to install the steelwork necessary for the building. Dominguez was working for D& B.R. 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& B.R. 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& B.R. 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'

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unused PPE was discovered near the fall area.

Gaytan, as special administrator of Dominguez' estate, brought this negligence action against Wal-Mart and Graham. [289 Neb. 53] 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]


Gaytan assigns that the district court erred in (1) concluding as a matter of law that neither Wal-Mart nor Graham retained control over the work being done by D& BR, (2) concluding 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) ruling on the motion for summary judgment before discovery was completed.


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 [289 Neb. 54] party the benefit of all reasonable inferences deducible from the evidence.[3]


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 pursuant

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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& B.R. because it was a Texas company no longer in business. 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 accident 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 completion of fact discovery in the instant case was July 1, 2011. [289 Neb. 55] 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 judgment 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 judgment was inappropriate when discovery had not been completed. 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.

In this appeal, Gaytan contends the district court abused its discretion in entering summary judgment when discovery 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 opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for [summary] judgment or may order a continuance to permit affidavits to be obtained or ...

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