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Thomas v. Kiewit Building Group Inc.

Court of Appeals of Nebraska

April 24, 2018

Robert Thomas, appellant,
v.
Kiewit Building Group Inc., et al., appellees.

         1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is proper only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law. In reviewing that determination, an appellate court gives the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence.

         2. Pleadings. The purpose of pleadings is to frame the issues upon which a cause is to be tried, and the issues in a given case will be limited to those which are pleaded.

         3. ___ .A pleading serves to eliminate from consideration those contentions which have no legal significance and to guide the parties and the court in the conduct of cases.

         4. Negligence: Liability: Proximate Cause. In premises liability cases, an owner or occupier is subject to liability for injury to a lawful visitor resulting from a condition on the owner or occupier's premises if the lawful visitor proves (1) that the owner or occupier either created the condition, knew of the condition, or by exercise of reasonable care would have discovered the condition; (2) that the owner or occupier should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) that the owner or occupier should have expected that the visitor either would not discover or realize the danger or would fail to protect himself or herself against the danger; (4) that the owner or occupier failed to use reasonable care to protect the visitor against the danger; and (5) that the condition was a proximate cause of damage to the visitor.

         5. Negligence: Contractors and Subcontractors. A general contractor in possession and control of the premises has a duty to keep the premises [25 Neb.App. 819] in such condition that they afford a reasonably safe place to work for persons working on or otherwise rightfully on the premises.

         6. Negligence: Liability: Contractors and Subcontractors. A general contractor in possession and control of the premises is only liable when the subcontractor's employee is injured because the workplace premises were not safe. It is not liable when an employee is injured due to specific actions or inactions involved in the construction process.

         7. ___: ___: ___. A possessor of property is not liable for injury to an independent contractor's employee caused by a dangerous condition that arose out of the contractor's work, as distinguished from a condition of the property or a structure on the property.

         8. Trial: Evidence: Appeal and Error. The admission of demonstrative evidence is within the discretion of the trial court, and a judgment will not be reversed on account of the admission or rejection of such evidence unless there has been a clear abuse of discretion.

         9. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admissible if they supplement the witness' spoken description of the transpired event, clarify some issue in the case, and are more probative than prejudicial.

         10. ___: ___: ___: ___. Demonstrative exhibits are inadmissible when they do not illustrate or make clearer some issue in the case; that is, where they are irrelevant or where the exhibit's character is such that its probative value is substantially outweighed by the danger of unfair prejudice.

         11. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for which they are offered at trial-to aid or assist the jury in understanding the evidence or issues in a case.

         12. Trial: Evidence: Testimony. Demonstrative exhibits are relevant only because of the assistance they give to the trier of fact in understanding other real, testimonial, and documentary evidence.

         13. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

          Appeal from the District Court for Douglas County: Thomas A. Otepka, Judge. Reversed and remanded for further proceedings.

          James E. Harris and Britany S. Shotkoski, of Harris & Associates, PC, L.L.O., for appellant.

          Dan H. Ketcham, of Engles, Ketcham, Olson & Keith, PC, for appellee Kiewit Building Group Inc.

         [25 Neb.App. 820] Inbody, Pirtle, and Riedmann, Judges.

          ...


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