Gaytan v. Wal-Mart, a case from the Nebraska Supreme Court, involved a worker (“employee”) who was killed in an accident that occurred on a construction site. The facts are somewhat confusing, but essentially a general contractor was hired by storeowner to build a new store location. The general contractor subcontracted the construction of the roof to a roofing company that hired employee to work on the construction project.
Among his other responsibilities, employee was responsible for installing steel decking sheets on the roof of the building. The sheets were first put in the approximate place to be installed, then aligned and permanently installed though the use of a Controlled Decking Zone (CDZ). A controlled decking zone is the process by which corrugated steel decking sheets are secured on a construction project. The CDZ is set up to help aid in worker safety.
Our Charlotte workers’ compensation attorneys understand how dangerous steel working involving decking sheets can be and why the Occupational Safety and Health Administration (OSHA) considers working on a CDZ to be one of the “deadly dozen” jobs in the United States.
Every worker walking on sheeting material outside the CDZ is required to wear a fall prevention device at all times. On the day of the accident, employee and a coworker were on the deck sheeting outside of the CDZ, and the material gave way, causing employee to fall to his death. After the accident, employee’s personal protection equipment was located, and it appeared to be unused.
An investigation revealed that the sheets were originally held in place by two temporary screws, but someone had removed those screws prior to the accident. The decking sheets were not secured in any way when employee walked on them.
In a case such as this one, one must first determine whether an injured worker is an employee entitled to workers’ compensation benefits (or death benefits for the family) or a contractor who is not entitled to benefits but can file a negligence claim in civil court.
In this case, the administrator of employee’s estate filed a lawsuit against the storeowner and general contractor alleging negligence. Both defendants filed motions for summary judgment, asking that respective claims be dismissed on grounds they were not an employer of the employee who was killed. The storeowner argued that it hired the general contractor do the project and had no relationship with anyone that was subcontracted to work on the job.
The general contractor argued that the roofing company was a subcontractor, and they had no supervisory authority over any particular worker, which makes them not an employer for the purpose of assigning liability.
The trial judge granted both motions, and, on appeal, the court affirmed the ruling with respect to the dismissal of the claims against the storeowner but reversed and remanded the claim against the general contractor for further proceedings consistent with their opinion.
The court’s reasoning for this decision was that there was a dispute of a material fact as to the level of control of the general contractor. If there is a genuine dispute over a material fact, then a motion for summary judgment should not be granted.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Gaytan v. Wal-Mart, September 22, 2014, Nebraska Supreme Court
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