The NLRB has announced that “In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.” http://www.nlrb.gov/news/nlrb-chairman-mark-gaston-pearce-recent-decisions-regarding-employee-rights-posting
May 18, 2012
Do I put that NLRB poster up on the 30th or Not? _x_NOT.
Today the DC Circuit court of appeals enjoined the enforcement of the NLRB’s rule requiring the posting of this poster: : http://www.theemployerhandbook.com/assets_c/2012/03/rights%20poster-37093.html. The short opinion is here. http://www.chamberlitigation.com/sites/default/files/cases/files/2011/NAM%20v.%20NLRB%20(DC%20Circuit%20Injunction%20Order).pdf. The 8th Circuit and Nebraska district courts have not yet ruled on this issue. However, the DC’s circuit’s opinion certainly directs the NLRB not to enforce the posting requirements. Therefore, while super cautious employer might decide to post the poster anyway our best advice is that the NLRB would be violating a court order to require or penalize any employer to post the poster at this time until the appeal in the DC Circuit is resolved.
Why are learning communities different than NRDs?
In Garey v. Nebraska Dept of Nat. Resources, 277 Neb. 149 (2009) this firm successfully argued that the property taxes authorized by LB 701 violated Nebraska’s constitutional prohibition on property taxes for a state purpose. This constitutional amendment was adopted when Nebraska adopted income taxes for the first time; the logic being if the state was going to collect income taxes it should not also be allowed to collect property taxes for state purposes.
LB 701 allowed three Natural Resources Districts (NRDs) to levy property taxes in order to allow the NRDs to comply with the Republican River Compact, a three-state water use agreement between Colorado, Kansas and Nebraska about use of the stream flows in the Republican River. In Garey the Nebraska Supreme Court found that complying with the compact was a state purpose and therefore the NRDs could not levy the property tax.
The Nebraska Supreme Court was asked to revisit what constitutes a state purpose in Sarpy County Farm Bureau v. Learning Community of Douglas and Sarpy Counties, ___N.W.2d___ (2012) The Farm Bureau had successfully argued to the district court that the learning community was established for a state purpose. This time the Nebraska Supreme Court disagreed. The court noted that “Where state and local purposes are commingled in a statutory enactment, the crucial determination is whether the controlling and predominant purposes are state purposes or local purposes.” The court found that in determining this question one factor it would look at was whether the operational control of the entity supported by the taxes stayed with the state or with the local entity. The court found that the operational control of the learning community was local. Therefore the court concluded “the controlling and predominant purpose of the learning community legislation was to address complex educational issues presented within metropolitan school districts.” Therefore the levy was held constitutional.
The take away message from these cases is that the court will continue to do a careful case by case analysis of the predominant purpose of property tax legislation when deciding these issues and there is no hard and fast rules subject to easy analysis as to what will automatically be considered a predominant state purpose.
The “Nondelegable Duty” Exception — Construction Accidents
The “nondelegable duty” exception relates to the “direct liability” exception, but broadens the scope beyond contractual obligations. A contractor can be subject to liability when an injury is the result of a nondelegable duty:
A nondelegable duty means that an employer or an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed. Dellinger v. Omaha Pub. Power Dist., 9 Neb. App. 307 (2000), citing Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 (1993).
The nondelegable duty exception to the general rule is based upon the theory that certain responsibilities of a principal are so important that the principal should not be permitted to bargain away the risks of performance. While a safety role undertaken in a contract and the safety role of an individual in control of a construction site are nondelegable duties, nondelegable duties also include:
- A duty imposed by statute or rule of law
- A duty to take precautions against inherently dangerous
conditions involved in work entrusted to a contractor
The duty to take precautions against inherently dangerous conditions involved in work delegated to an independent contractor is a recurring theme in Nebraska case law. It is part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas that create a high degree of risk to a significant number of workmen. Simon v. Omaha P. P. Dist., 189 Neb. 183 (1972). If a general contractor hires an independent contractor to perform work that the general contractor should recognize as likely to create a peculiar risk of harm to others unless special precautions are taken, the general contractor may be liable for physical harm caused to employees of the subcontractor if the general contractor fails to exercise reasonable care to take such precautions, even though the general contractor has provided, in the contract or otherwise, that the subcontractor be responsible for such precautions.
A “peculiar risk” is distinguished from the common risks to which persons in general are typically subjected. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. Nebraska courts have held that the following types of work demonstrate peculiar risks:
Steel construction work (Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 (1993)), painting the inside of an underground tank creating highly combustible paint fumes (Anderson v. Nashua Corp., 246 Neb. 420 (1994)), and steamfitter work near the opening on a floor deck that exposed vertical reinforcing rods (Simon v. Omaha P. P. Dist., 189
Neb. 183 (1972)). When work involves peculiar risks, the duty to take precautions is nondelegable, and a general contractor may be liable for the negligence of a subcontractor when injury results from the general contractor’s failure to ensure that necessary precautions are taken.
Thanks to Bradford S. Purcell, Purcell & Wardrope Chtd. for the initial outline of these concept in a presentation based on Illinois law.
The “Direct Liability” Exception – Construction Accidents
A contractor who does not retain control can still be subject to liability in construction accident litigation if the contractor agrees to perform a safety role in connection with the work of the injured party and fails to properly exercise that safety function.
The focal point of the “direct” liability exception is the overall safety supervisory responsibilities of the defendant. In Nebraska, the “direct liability” exception applies to contractors who assume a contractual duty for the safety of workers at a construction site:
When a generalcontractor assumes a contractual duty for the safety of workers at a construction site, the contractor’s duty cannot be delegated to a subcontractor. Parrish v. Omaha Public Power Dist., 242Neb. 783 (1993).
Two factors are typically considered in analyzing liability under the “direct liability” exception: (1) Did the contract require the defendant to exercise a safety role on the job or, alternatively, did the defendant perform an overall safety role on the job? and (2) Did the defendant have pre-injury notice – actual or constructive – of the unsafe work practice or hazardous condition on the job site that caused injury?
1. Establishing the Safety Role
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. § 414 Restatement (Second) of Torts (1965). Further, if a contractor assumes a contractual duty for the safety of others, the contractor is liable for physical harm to others for whose safety he owes a duty to exercise reasonable care, which is caused by his failure to exercise his duty with reasonable care.
2. Establishing Notice
Courts recognize that contractors with overall supervisory responsibilities at construction sites cannot be everywhere at all times. For this reason, the plaintiff must establish that the contractor knew or should have known that the particular unsafe work practice or hazardous condition existed on the job site as a prerequisite for finding liability under this exception. The following should be taken into consideration:
Actual Notice
- Did a defendant representative actually see the hazardous condition or unsafe work practice on the job prior to the accident?
- Did a defendant representative receive a complaint about the hazardous condition or unsafe work practice on the job prior to the accident?
- Did a defendant representative actively participate in creating the hazardous condition or recommend the unsafe work practice?
- Was the defendant present at a safety meeting before the accident in which the topic of the hazardous condition or unsafe workpractice was discussed?
Constructive Notice
- How long did the hazardous condition exist on the job site before the accident?
- Over what period of time were workers engaging in the unsafe work practice on the job before the accident?
- Did the hazardous condition or unsafe work practice exist in a confined space that was not readily or easily accessible by anyone other than plaintiff’s employer?
- Was the appearance of the hazardous condition or the performance of the unsafe work practice visible to the naked eye at a reasonable distance?
- Did prior accidents occur on the job involving the same hazardous condition or unsafe work practice?
The “Retained Control” Exception — Construction Accident Cases
Nebraskarecognizes the “retained control” exception, which exposes participants who retain control in the construction process to liability for accidents that occur on a construction site:
One who employs an independent contractor may be liable if the employer retains control over the contractor’s work. Parrish v. Omaha Public Power Dist., 242Neb. 783 (1993).
This exception is based on § 414 of the Restatement (Second) of Torts, which is often cited inNebraska cases:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Under this theory, if the defendant retains control over the work, the defendant will be responsible for all harmful consequences of its negligent exercise of that control. The rationale for imposing vicarious
liability in such circumstances is to encourage the controlling contractor to
impose safe work practices on those whom he controls, thereby resulting in
accident avoidance.
The essential question raised by the “retained control” exception is: What
degree of control must a construction company exercise to be subject to liability under this theory?
The scope of duty is not determined by a definition of the individual’s title or role, but instead by the control undertaken or exercised. In
general, the Court looks for a duty to oversee conditions in the work of each
contractor so far as they affect the safety of the employees of others, and a
duty to care for such parts of the structures as are not within the control of
any other contractor.
For example, a general contractor is not liable to the employees of a subcontractor for a failure to examine appliances supplied to the subcontractor by his own employer or for a dangerous
method of operation adopted by the subcontractor’s own employer, the danger of which is not caused by some condition of the premises for which the general contractor is responsible.
A review of case law provides some direction as to the necessary degree of control a defendant must exercise to be subject to liability under this exception:
- A defendant who retains control over all phases of
the work and is or has a supervisor at the construction site will be
subject to liability.
In Simon v. Omaha P. P. Dist., 189 Neb. 183 (1972), a subcontractor’s
employee sustained injuries from falling through an opening in the floor of a
construction site supervised by the general contractor. The court held that the owner of the premises, OPPD, was liable for injuries to the injured worker because, in its contract with the general contractor, OPPD reserved the right to control all phases of the work. Further, OPPD had a
supervisor on site who was the acknowledged “over-all head of everything
there.” OPPD retained control over the contractor’s work, and therefore had a duty to use reasonable care in taking measures to prevent injury to employees who were working on the premises.
- A general contractor’s liability does not extend to
injuries that occur when an employee is performing work outside of the scope of the contractor’s responsibilities.
In McKinstry v. Cass County, 228 Neb. 733 (1988), the court held that the
general contractor was not liable for the death of a subcontractor’s employee,
where the work performed by the subcontractor was outside of the contractual obligations imposed on the contractor. In
this case, the employee died as a result of falling off a bridge. The general contractor’s contract for the construction project did not require that the contractor provide any trenching, excavating or earthwork for the bridge, and the contractor never actively or directly participated in erecting the bridge.
The negligence of the subcontractor happened when the subcontractor was
acting outside of his subcontractor capacity, and the general contractor,
therefore, was not liable for the subcontractor’s death.
- A general contractor’s liability pertains only to
providing a reasonably safe place to work, and does not extend to
apparatus, tools, or machinery furnished by a subcontractor for use by his
own employees.
In Eastlick v. Lueder Constr. Co., 274 Neb. 467 (2007), a bricklayer was employed by a subcontractor at a church construction site. The bricklayer was working on scaffolding when it collapsed, and he sustained serious injuries. The bricklayer sued the general contractor of
the site, and several others, for damages. The subcontractor owned the scaffolding, and the scaffolding had been erected by the subcontractor’s employees. The court found that the general contractor was entitled to summary judgment because the injury the bricklayer sustained was not the result of merely working on the scaffolding, but was the result of a failure to follow proper procedures. The general contractor did not owe any nondelegable duty to the bricklayer beyond providing
a safe place to work, and the contractor had not breached that duty. The bricklayer’s injuries were not the result of unsafe premises, but rather, the result of work completed in a negligent manner.
Construction Accident Litigation
Recently I spoke before the Nebraska Council of Safety Professionals. Over the next few days I will out line some of the topics I discussed.
Construction accident litigation begins with a general rule:
Generally, the employer of an independent contractor is not liable for physical harm caused to another by the acts or omissions of the contractor or his servants. Sullivan v. Geo. A. Hormel and Co. 208Neb. 262 (1981).
This general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor’s work is performed owes no duty of care concerning the safety of the manner or method of performance implemented. See W. Prosser
& W. Keaton, The Law of Torts 509 (5th ed. 1984). The rule
appears to absolve all parties involved in construction projects from potential
liability with the exception of a contractor who creates the particular hazard that causes injury or affirmatively directs the employer of the injured person regarding the unsafe work practice that causes the injury.
The general rule, however, is not without exceptions that expose construction entities to liability, even in the absence of affirmative conduct. The most notable of these exceptions are 1) the “retained control” exception, 2) the “direct liability” exception, and 3) the “nondelegable duty” exception.
Welcome Baby Girl
The Knudsen Law firm is pleased to add Baby Girl Khalili to our family. Congrats Mike and Sarah.
Republican River Occupation Tax Held Constitutional
In Gary v. Nebraska Dept of Natural Resources, this firm successfully argued that the real property tax mandated by LB-701 was unconstitutional because complying with the three state Compact between Nebraska, Kansas and Colorado about the Republican River was a state purpose. Unfortunately the Supreme Court did not agree that the occupation tax authorized by that legislation should be similarly held unconstitutional in its opinion in Kiplinger v. Nebraska Dep’t of Natural Resources issued on Friday, September 16, 2011. The Omaha World Herald’s report on this decision contained this telling quote,” “If we couldn’t use this, I think the only other option was general fund dollars, and no one would like that,” said State Sen. Tom Carlson of Holdrege, a key legislator on water issues.”
Frankly the 88 landowners that brought the Kiplinger lawsuit would probably like it very much if general funds were used to comply with the compact. The point of the lawsuit was to get the state as a whole to pay attention to the water issues in the Republican River basin. The dollars generated by agriculture in the basin our vital to our state’s economy. If the state does not comply with the compact, general fund dollars will be used to pay Kansas damages. The landowners in the area are crying out for state wide sensible policies, instead of the current system that allows the 3 NRDs with competing interests to set the water allocations in the districts each year. If the state took a larger role in funding and regulating water use in the basin, the state as a whole could only benefit.
8th Circuit rules that a child born two-years after her father’s death is not entitled to Social Security Benefits
On Monday August 29, 2011 the United States Court of Appeals for the 8th Circuit decided Beeler v. Astrue, No 10-1092. In that case, Bruce Beeler was diagnosed with leukemia a few months before his planned wedding to Patti Beeler. Learning that his upcoming chemotherapy treatments could cause sterility, he banked semen at a fertility clinic. Bruce later learned that chemotherapy would not effectively treat his cancer, and Bruce and Patti moved up their wedding date. One month after their wedding Bruce learned that he was not likely to survive cancer even with a bone marrow transplant. Bruce still desired to have Patti have his children, and he signed a form bequeathing his semen to Patti and expressing his desire that she be artificially inseminated with his sperm. The form provided that Bruce agreed to accept and acknowledge paternity and child support responsibility for any resulting child.
Bruce died 4 months later. Patti did not conceive a child with Bruce’s semen until a little over a year after Bruce’s death. Their child was born just a few days short of the two-year anniversary of Bruce’s death.
Patti applied for social security benefits for their child. The district court granted the benefits, but the 8th Circuit reversed. The Court stated:
The Commissioner of the Social Security Administration (“SSA”) interprets the Act to provide that a natural child of the decedent is not entitled to benefits unless she has inheritance rights under state law or can satisfy certain additional statutory requirements. We conclude that the Commissioner’s interpretation is, at a minimum, reasonable and entitled to deference, and that the relevant state law does not entitle the applicant in this case to benefits. We therefore reverse the district court’s contrary judgment.