Gerken v. Hawkins Construction Co.

498 N.W.2d 97, 243 Neb. 157, 1993 Neb. LEXIS 127
CourtNebraska Supreme Court
DecidedApril 9, 1993
DocketS-90-1062, S-90-1105
StatusPublished
Cited by9 cases

This text of 498 N.W.2d 97 (Gerken v. Hawkins Construction Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerken v. Hawkins Construction Co., 498 N.W.2d 97, 243 Neb. 157, 1993 Neb. LEXIS 127 (Neb. 1993).

Opinions

[158]*158Boslaugh, J.

These cases arise out of an incident that occurred in Omaha, Nebraska, on June 30, 1986. On that date, the defendant, Hawkins Construction Company, was engaged in constructing the Arthur C. Storz Expressway. The defendant was using a large bulldozer which it left at the defendant’s worksite near 2614 Saratoga Street at the end of the workday. The petitions allege that on the evening of June 30, a person or persons unknown to the plaintiffs climbed aboard the bulldozer, started it, put it into forward operation, and then abandoned it. As a result, the bulldozer collided with a house at 2614 Saratoga Street, occupied by the plaintiff Timothy Gerken, damaging the house and its contents.

The plaintiffs in case No. S-90-1105 are Irene Gerken and Timothy Gerken. Irene Gerken is alleged to be the owner of the house at 2614 Saratoga Street, which has been sold to Timothy Gerken, her son, pursuant to an oral agreement. The plaintiffs allege the damages to the house amounted to $30,000.

The plaintiff in case No. S-90-1062 is Timothy Gerken, who alleges that personal property of his having a value of $750 was destroyed and that he was in the house at the time the bulldozer collided with it. As a result, he was placed in immediate terror, fright, and fear for his safety and has suffered mental and emotional harm and physical injury, including a $5,000 loss of income.

The defendant filed general demurrers to the petitions in each case. The trial court sustained the demurrers and dismissed the petitions. The plaintiffs have appealed from those judgments.

“[W]hen ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. ... A petition will be sufficient if, under the facts alleged, the law entitles a plaintiff to recover. . . . That is to say, facts are sufficient to constitute a cause of action when they are [159]*159a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.”

Northland Ins. Co. v. State, 242 Neb. 10, 12-13, 492 N.W.2d 866, 868 (1992).

The petitions alleged that the defendant was negligent in the storage, protection, and care of the bulldozer. Specifically, the petitions alleged that the defendant left the bulldozer at the worksite unattended and unsecured. In addition, the defendant left an operating key in or near the bulldozer ignition. The petitions further alleged that the work area where the bulldozer was left was a residential area occupied by many low-income families with children. Further, the worksite had been subject to vandalism prior to June 30, 1986. The plaintiffs allege that the defendant’s negligence was the proximate cause of their injury and property damage.

The petitions also alleged the contract between the city of Omaha and the defendant provided:

“In the performance of this contract, the contractor shall comply with all applicable Federal, State and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and make any other needed actions, on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably and necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.”

The plaintiffs further alleged that the defendant was negligent in the following particulars:

(a) Defendant failed to use reasonable care in protecting the safety of the public while engaged in the construction project for the City of Omaha by failing to fence the construction site to prevent access to construction equipment by unauthorized personnel, by failing to place a watchman or other person on site, after hours, to prevent access to construction equipment by unauthorized personnel, and by failing to render dangerous machinery [160]*160inoperable except to authorized personnel.
(b) By leaving an ignition key in or about the bulldozer, Defendant created an attractive nuisance, inviting children known to be in the area to put into operation a highly dangerous piece of equipment.

The trial court based its decision on Hersh v. Miller, 169 Neb. 517, 99 N.W.2d 878 (1959). Although Hersh v. Miller involved an automobile rather than a bulldozer, the trial court stated there was no valid reason or reasonable basis to deviate from the rule stated in the Hersh v. Miller case, that the intervening acts of a thief were the proximate cause of the harm inflicted upon the plaintiffs.

In Hersh v. Miller, the plaintiff alleged that the defendant left an automobile unlocked and unguarded in violation of an ordinance that required automobiles to be locked. The petition further alleged that a 12-year-old started the automobile, drove it away, and subsequently collided with the plaintiff’s truck. After discussing the concepts of negligence, proximate cause, and efficient intervening cause, this court noted:

We have never dealt squarely with a case, such as here, where a thief, or any other unauthorized person, takes a car parked in violation of an ordinance such as here presented. However, many courts have as is evidenced by the annotation contained in 51 A. L. R. 2d at page 633, under the subject “Liability for damage or injury by stranger starting motor vehicle left parked on street.” The great majority thereof have come to the conclusion that no liability attaches. As stated in Galbraith v. Levin, 323 Mass. 255, 81 N. E. 2d 560: “* * * the conduct of the thief was an intervening cause which the defendants were not bound to anticipate and guard against.” ... As stated in Permenter v. Milner Chevrolet Co., supra, by quoting from Midkiff v. Watkins (La. App.), 52 So. 2d 573: “Under the facts as related in this case, we are convinced that there was an intervening cause which broke the sequence of the defendant’s alleged negligence, if any. To hold the defendants liable in this case would go far towards making them insurers as to the consequences of every accident in which their car might become involved [161]*161while operated by thieves or their successors in possession.”

169 Neb. at 522, 99 N.W.2d at 882. The Hersh v. Miller court concluded:

We think the reasons stated by the majority of the courts that have passed thereon that no liability attaches to the owner of a car parked in violation of such ordinance when taken by a thief, or other unauthorized person, who, while driving the same, has an accident therewith resulting in injury and damage to third persons, such as the appellant, are sound and should be followed. The same would be true in the absence of such an ordinance.

Id.

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Gerken v. Hawkins Construction Co.
498 N.W.2d 97 (Nebraska Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
498 N.W.2d 97, 243 Neb. 157, 1993 Neb. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerken-v-hawkins-construction-co-neb-1993.