Cruz v. Lopez
Nebraska Supreme Court
919 N.W.2d 479, 301 Neb. 531 (2018)

- Written by Katrina Sumner, JD
Facts
General contractor Werner Construction, Inc. (Werner) (defendant) was working on a construction project and contracted the services of an independent contractor, Lopez Trucking, Inc., owned by Carlos Lopez (defendant), to haul away debris from the construction site. Lopez Trucking, in turn, assigned its employees to haul away the debris from Werner’s construction site. Werner let Lopez know the number of trucks needed each day, but Werner did not control when Lopez Trucking or its employees worked or what routes the employees took, nor did Werner possess Lopez’s trucks. Lopez hired and paid his own employees, such as Lyle Carman (defendant), who was assigned to work hauling away debris from the construction site. Carman received his daily tasks from Lopez directly and did not receive instructions from Werner’s employees. One day, after Carman had completed his last haul and was returning the empty dump truck, he got into an automobile accident and injured a minor child, Hazel Cruz (plaintiff). Carman was under the influence of drugs at the time of the accident. Hazel’s father, Edgar Cruz (plaintiff), brought a negligence action against Carman on Hazel’s behalf and joined Lopez pursuant to vicarious liability. Cruz also joined Werner, alleging that Werner had exclusive control over the truck Carman drove and that Carman was a statutory employee of Werner’s. Cruz moved successfully for summary judgment against Lopez and Carman. However, Werner moved successfully for summary judgment against Cruz. Cruz appealed, arguing that the district court erred in finding no material factual issue whether Carman was a common-law or a statutory employee of Werner instead of an independent contractor and in finding that Werner had not committed a breach of a nondelegable duty. Instead of asserting recognized nondelegable duties, Cruz alleged Werner’s nondelegable contractual duty to test Carman for drugs. An appellate court found that Carman was not a common-law or statutory employee and considered whether an exception to the general rule of nonliability applied.
Rule of Law
Issue
Holding and Reasoning (Freudenberg, J.)
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