Statute of Repose: Mark Durre, as personal representative of the Estate of Diana Durre v. Wilkinson Development, Inc., et al. 285 Neb. 880, ____ N.W.2d _____ (2013).
Issue: Whether Nebraska’s statue of repose for breach of warranty on improvements to real property or deficiency in the design of improvement to real property (Neb. Rev. Stat. §25-223) applied to personal injury and wrongful death action involving alleged inherently dangerous condition or latent defect.
For a complete summary of the factual background of the case and the court’s holding, click here
Exclusive Remedy: Estate of Joseph James Teague, Deceased, by and through his Personal Representative v. Crossroads Cooperative Association, a Nebraska Corporation, 286 Neb. 1, ___ N.W.2d ___ (2013).
Issue: Whether an employer’s willful violation of OSHA safety regulations resulting in the death of one of its employees constitutes an “accident” covered by the exclusive jurisdiction of the Workers’ Compensation Court.
Facts: Plaintiff’s decedent was employed by a grain cooperative. In violation of the Occupational Safety and Health Administration (OSHA) regulations, decedent was asked by his supervisor to enter a grain bin without a lifeline to shovel grain to the center of the bin’s conical base. The depth of the grain in the bin was high enough to present an engulfment hazard and Plaintiff’s supervisor left the auger running in the bin. Ultimately, Decedent was asphyxiated when he was engulfed in grain.
Plaintiff filed wrongful death, assault, and battery causes of action, as well as a declaratory action seeking a judgment that either the Workers’ Compensation Act did not apply or, alternatively, that it was unconstitutional on its face and as applied.
The District Court of Cheyenne County sustained the employer’s motion to dismiss for failure to state a claim on the basis that the employer’s willful negligence, even if proven, was insufficient to bring it outside the exclusivity of Nebraska’s Workers’ Compensation Act (“the Act”). Plaintiff appealed asking that the Nebraska Supreme Court recognize an intentional tort exception to the Act.
Holding: Intentional and tortious conduct by an employer falls within the exclusive jurisdiction of the Act. Further, the Nebraska Supreme Court concluded that the Act was not unconstitutional because “employers/employees” and “employed intentional tort victims/unemployed intentional tort victims” were not similarly situated; thus, it was proper for the Nebraska Legislature to treat such categories differently under the Act.
For a complete copy of the Court’s opinion, click here