Mandery v. Chronicle Broadcasting Co.

423 N.W.2d 115, 228 Neb. 391, 1988 Neb. LEXIS 156
CourtNebraska Supreme Court
DecidedMay 6, 1988
Docket85-978
StatusPublished
Cited by24 cases

This text of 423 N.W.2d 115 (Mandery v. Chronicle Broadcasting 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
Mandery v. Chronicle Broadcasting Co., 423 N.W.2d 115, 228 Neb. 391, 1988 Neb. LEXIS 156 (Neb. 1988).

Opinions

Shanahan, J.

In consolidated cases, Richard Mandery and his wife, Ardith, appeal from judgments on verdicts for Chronicle Broadcasting Company, doing business as WOWT Television Station, Channel 6 (WOWT). Manderys filed separate lawsuits against WOWT, claiming that WOWT’s negligence proximately caused bodily injury to Richard Mandery when he fell through the floor of a house owned by WOWT. A general verdict was returned for WOWT in each Mandery case. We reverse and remand for a new trial.

On February 11, 1980, Richard Mandery fell into the basement of WOWT’s multiple-story house but, as the result of severe head injuries, was unable to recall anything about events [393]*393leading up to the accident and his fall.

As part of an expansion project, WOWT purchased the house in August of 1979 and hired Stitt Construction Company as the general contractor for the project, which included demolition of the house. Stitt contracted with Anderson Excavating and Wrecking Company to demolish the house. Anderson employed Mandery as a heavy equipment operator.

According to Wayne Goetz, chief engineer for WOWT, the house, at the time of WOWT’s purchase, was in fairly good condition. The house was neither dilapidated nor condemned. A diagram of the house’s first floor follows.

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[394]*394The shaded area in the diagram represents a hole in the floor of the house’s living room and bedroom. The living room’s east-west width is approximately 13 feet, with 2- by 10-inch wooden joists, 16 inches apart and running east-west, to support the living room-bedroom floor.

Goetz and Larry Land, another WOWT employee, were responsible for maintenance and security of the house. Land daily inspected the house and eventually discovered that transients were entering the house and starting fires. To secure the house, as Land described, WOWT had to “tear off the back porch. Virtually nailed everything shut that we possibly could, locks on the door, that type of thing.”

Goetz kept the house key in his office at WOWT, where WOWT employees had unrestricted access to the key. WOWT permitted its employees to look through the house and remove any salvageable items. WOWT employees were not required to notify Goetz or Land before entry into the house or report anything removed from the house. At least 15 WOWT employees entered the house between autumn of 1979 and February 1980.

On the first Saturday of February in 1980, and with WOWT’s permission, Francis Gross and Larry Roitstein, WOWT employees, entered the house to remove its wooden floor. The floor consisted of particle board, which was a composition of sawdust and wood chips glued together under pressure, and plywood. The particle board had a 3A-inch thickness; the plywood, x/i inch. The particle board lay on the plywood, which was nailed to and supported by the joists resting on beams on the basement walls. Roitstein described his and Gross’ activity after they entered the house:

First we thought we would remove the flooring from the top. And after realizing that it was glued and nailed and spending quite a bit of time and effort trying to remove the plywood and the particle board, we realized that wasn’t going to work.
So we went downstairs into the basement; and with a reciprocating saw, we cut through the 2xl0’s on both ends. And by either using a pry bar or a hammer or brute strength, we pulled the boards down from above.

[395]*395Initially, Gross and Roitstein had intended to remove the plywood flooring as well as the joists, but particle board, nailed and glued to the plywood, made salvage of the plywood unfeasible. Gross and Roitstein then went to the basement, cut joists approximately 1 foot from each of the basement walls, and removed the joist-support for a “major area” beneath the living room and bedroom. Each of the severed and removed joists had an approximate length of 10 feet. As they severed the joists, Gross and Roitstein pried and forcibly separated the joists from the overhead plywood to which the joists were nailed. During that process, Gross and Roitstein sometimes tore apart the flooring, which they pulled into the basement. Since they did not pull all the flooring into the basement, Gross and Roitstein left some flooring with broken and jagged edges of the plywood and particle board extending over the basement. After removal of the joists, the only underlying support for the flooring was the stubs of the severed joists, approximately ! foot long, attached to the beams on the basement walls. Roitstein acknowledged that, if a person stepped on the floor after the joists had been removed, at some point the floor “would give way.” The hole in the flooring extended from the living room into the bedroom, as indicated on the diagram.

As they prepared to leave after cutting the joists, Gross and Roitstein nailed a 4- by 8-foot sheet of plywood across the doorway between the living room and vestibule. Gross could not remember whether they boarded up the bedroom’s west entry from the kitchen area.

During one of his inspection rounds, Land saw the large hole in the living room floor, and later observed that the vestibule-living room doorway had been boarded up. However, there were no posted warnings concerning the floor, weakened by removal of the supporting joists. No one testified that the absence of joists was visible from any point on the house’s first floor. Postaccident photographs depict the stubs of the severed joists, covered by the overhanging floor and visible only from the basement.

Mandery, an Anderson employee for 17 years, was an operator of heavy equipment used to demolish houses and other buildings. He had never been to the WOWT house before [396]*396the accident. On the day of the accident, Mandery and another Anderson employee, Ronald Wilson, had completed a job in Bellevue and then left for the WOWT house to be demolished. Mandery was supposed to enter the house and inspect every “nook and cranny” to assure readiness for demolition. The chief concern was the possible presence of children or transients in the house.

En route from Bellevue to WOWT’s house, Wilson made an intermediate stop at a landfill, and estimated that he was 5 minutes behind Mandery in travel to the house. On arrival at the house late in the morning, Wilson met James McQuinn, another Anderson employee, who was assigned to demolish the house. Parked in the street in front of the house was Anderson’s “lowboy,” a tractor with a trailer bearing a bulldozer. Mandery had driven the lowboy from Bellevue to the WOWT house. Wilson and McQuinn walked around the house but did not see Mandery. McQuinn went to the front of the house, peered through a slit in the plywood cover on the living room’s south window, and saw the hole in the living room floor. McQuinn recounted his entry with Wilson into the house via the plywood front door, passage into the kitchen area, and observation from the bedroom into the basement:

We went over to the front door. The plywood was loose, and we just pulled it open and went in. And Ron Wilson went upstairs, and I went around through what I call the kitchen and looked down through the floor and hollered, “Ron, here he is down here.” And he [Mandery] was laying [sic] on the basement floor.

There was no plywood cover or other barrier regarding the doorway between the vestibule and living room.

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Mandery v. Chronicle Broadcasting Co.
423 N.W.2d 115 (Nebraska Supreme Court, 1988)

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Bluebook (online)
423 N.W.2d 115, 228 Neb. 391, 1988 Neb. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mandery-v-chronicle-broadcasting-co-neb-1988.