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BURESH v. REINKE

Cite as 28 Neb. App. 47

Thomas L. Buresh, appellant, v. 

Craig Reinke, appellee.

___ N.W.2d ___

Filed February 11, 2020. No. A-19-239.

1. Summary Judgment. Summary judgment is to be granted when there 

is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law.

2. ____. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that 

there is no genuine issue as to any material fact or as to the ultimate 

inferences that may be drawn from those facts and that the moving party 

is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

4. Summary Judgment: Proof. A party moving for summary judgment 

has the burden to show that no genuine issue of material fact exists 

and must produce sufficient evidence to demonstrate that it is entitled 

to judgment as a matter of law. If the movant meets this burden, then 

the nonmovant must show the existence of a material issue of fact that 

prevents judgment as a matter of law.

5. Summary Judgment: Evidence. When the parties’ evidence would 

support reasonable, contrary inferences on the issue for which a movant 

seeks summary judgment, it is an inappropriate remedy.

6. Trial: Evidence. Where reasonable minds could draw different conclusions from the facts presented, such presents a triable issue of material fact.

7. Negligence: Liability: Proximate Cause. In premises liability cases, 

an owner or occupier is subject to liability for injury to a lawful visitor resulting from a condition on the owner or occupier’s premises if 

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www.nebraska.gov/apps-courts-epub/

02/11/2020 08:07 AM CST
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the lawful visitor proves (1) that the owner or occupier either created 

the condition, knew of the condition, or by exercise of reasonable care 

would have discovered the condition; (2) that the owner or occupier 

should have realized the condition involved an unreasonable risk of 

harm to the lawful visitor; (3) that the owner or occupier should have 

expected that the visitor either would not discover or realize the danger 

or would fail to protect himself or herself against the danger; (4) that 

the owner or occupier failed to use reasonable care to protect the visitor 

against the danger; and (5) that the condition was a proximate cause of 

damage to the visitor.

8. Negligence: Contractors and Subcontractors. A general contractor in 

possession and control of the premises has a duty to keep the premises 

in such condition that they afford a reasonably safe place to work for 

persons working on or otherwise rightfully on the premises.

9. Negligence. Duty is a question of whether a defendant is under any obligation for the benefit of a particular plaintiff; in negligence cases, the 

duty is always the same—to conform to the legal standard of reasonable 

conduct in the light of the apparent risk.

10. ____. The question of whether a duty exists at all is a question of law.

11. Negligence: Expert Witnesses. When the conduct in question involves 

specialized knowledge, skill, or training, expert testimony may be helpful or even necessary to a determination of what the standard of care 

requires under particular circumstances.

12. Negligence. Once a court determines that a duty is owed by one party to 

another, it becomes necessary to define the scope and extent of the duty. 

In other words, the standard of care must be ascertained. The standard of 

care is typically general and objective and is often stated as the reasonably prudent person standard, or some variation thereof, such as what a 

reasonable person of ordinary prudence would have done in the same or 

similar circumstances.

13. ____. Several factors relate to whether a possessor has breached a duty 

to use reasonable care. These include (1) the foreseeability or possibility 

of harm; (2) the purpose for which the entrant entered the premises; (3) 

the time, manner, and circumstances under which the entrant entered the 

premises; (4) the use to which the premises are put or are expected to 

be put; (5) the reasonableness of the inspection, repair, or warning; (6) 

the opportunity and ease of repair or correction or giving of the warning; 

and (7) the burden on the land occupier and/or community in terms of 

inconvenience or cost in providing adequate protection.

14. Negligence: Invitor-Invitee: Licensee: Contractors and 

Subcontractors. After Heins v. Webster County, 250 Neb. 750, 552 

N.W.2d 51 (1996), whether a possessor of land has breached a duty 
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Cite as 28 Neb. App. 47

to use reasonable care to protect lawful visitors is determined under 

the same test for both licensees and invitees, which includes independent contractors.

15. Negligence: Invitor-Invitee: Contractors and Subcontractors. An 

independent contractor is a business invitee, to whom a possessor owes 

a duty to protect against dangers it either knows of or could have discovered with reasonable care.

16. Negligence: Liability: Contractors and Subcontractors. A possessor 

of property is not liable for injury to an independent contractor’s 

employee caused by a dangerous condition that arose out of the contractor’s work, as distinguished from a condition of the property or a 

structure on the property.

17. Negligence: Contractors and Subcontractors. A general contractor in 

control of the premises where work performance under a contract with 

the owner is being carried out owes a duty to persons rightfully on the 

premises to keep the premises in a reasonably safe condition while the 

contract is in the course of performance.

18. Negligence: Liability: Contractors and Subcontractors. A general 

contractor in possession and control of the premises is only liable when 

the subcontractor’s employee is injured because the workplace premises 

were not safe. It is not liable when an employee is injured due to specific actions or inactions involved in the construction process.

Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Reversed and remanded for further 

proceedings.

James R. Welsh, of Welsh & Welsh, P.C., L.L.O., and Lyle J. 

Koenig, of Koenig Law Firm, for appellant.

Douglas L. Phillips and Clifton J. Kephart, of Klass Law 

Firm, L.L.P., for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Thomas L. Buresh was injured while he was doing electrical work as a subcontractor in the basement of a home construction project; part of the home’s structure collapsed, and 

a piece of lumber struck Buresh. He sued the homeowner, as 
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Cite as 28 Neb. App. 47

well as the general contractor for the project, Craig Reinke. 

The homeowner and Reinke each filed third-party complaints 

against Tyler Harms, the subcontractor who they alleged failed 

to properly brace or secure the portion of the home that 

Buresh claimed had collapsed on him. The Douglas County 

District Court granted motions for summary judgment filed 

by the homeowner and Harms, and the action was dismissed 

as to those parties. Thereafter, Reinke moved for and was 

granted summary judgment in his favor; Buresh’s complaint 

was dismissed.

Buresh appeals only from the order granting summary 

judgment in favor of Reinke. Because we conclude there 

was sufficient evidence to overcome Reinke’s summary judgment motion, we reverse the order and remand the cause 

for further proceedings on Buresh’s premises liability claim 

against Reinke.

BACKGROUND

In October 2016, Buresh filed a complaint against the homeowner and Reinke, claiming that in October 2012, the homeowner was building a home in Davenport, Nebraska, and that 

Reinke was hired as the primary contractor. Buresh was hired 

to do electrical work. On October 18, 2012, at about 10:30 

a.m., the home was in a “dangerous condition,” because it was 

only partially constructed, had been “framed, but not sheeted,” 

and was “not braced or secured to prevent collapse.” It was a 

“windy day.” Buresh was working in the basement. He heard a 

“pop” and then saw the “structure” coming down on him (other 

parts of the record suggest the structure that hit Buresh may 

have been a “two-by-four, approximately five feet long,” that 

“could have been a piece of a truss or a piece of a wall”). It 

landed across his right shoulder, causing him to fall into a pile 

of sand and injure his left hand.

Buresh alleged that the homeowner and Reinke were in 

control of the work and had to use reasonable care to maintain the premises in a safe condition for those on it. Buresh 
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asserted that they were or should have been aware of the 

“dangerous condition” of the home at the time of the incident. 

Buresh claimed that the homeowner and Reinke breached 

their duty to exercise reasonable care to “maintain the building in a safe condition.” Buresh alleged that he suffered several injuries that were the direct and proximate result of the 

claimed breaches. As a direct result of his injuries, Buresh 

claimed he had suffered and would continue to suffer a variety 

of damages.

The homeowner and Reinke each filed third-party complaints 

against Harms, generally alleging that if Buresh proved negligence, it would have been Harms’ negligence that proximately 

caused the alleged collapse and Buresh’s alleged injuries.

In May 2017, the homeowner filed a motion for summary 

judgment, which the district court granted in November. The 

court concluded that by virtue of Reinke’s oral agreement to act 

as the general contractor, responsibilities to control the premises and people working there were Reinke’s alone. Buresh’s 

complaint as to the homeowner was dismissed. Buresh does 

not assign error as to this order.

In March 2018, Harms filed a motion for summary judgment as to Reinke’s third-party complaint against him. The 

district court entered an order in May, concluding there was no 

evidence that the trusses were negligently braced or installed, 

that the installation was in violation of the standard of care, 

or that any negligence of Harms was the proximate cause of 

the failure of the trusses. Harms’ motion for summary judgment was granted, and Reinke’s third-party complaint against 

Harms was dismissed. Buresh does not assign error as to 

this order.

In October 2018, Reinke filed a motion for summary judgment. In his “Statement of Undisputed Facts,” he asserted that 

there was no genuine issue with respect to the material fact 

that the “only evidence in the record with respect to the applicable standard of care” was that (1) Harms constructed the 

trusses in the same fashion he has always done and they were 
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braced in accordance with industry standards (citing Harms’ 

deposition), (2) Reinke did not know of anything Harms or 

his crew did to cause the failure of the truss system (citing 

Reinke’s deposition), and (3) Reinke believed the trusses were 

properly installed and secured (citing Reinke’s deposition). 

Buresh disputed Reinke’s “Statement of Undisputed Facts” and 

set forth a statement of facts in opposition to Reinke’s motion 

for summary judgment.

The hearing on Reinke’s summary judgment motion took 

place in December 2018. At Reinke’s request, the district court 

said it would consider three exhibits received into evidence at 

prior hearings: Reinke’s deposition, Harms’ deposition, and 

the homeowner’s answer. Buresh reoffered his complaint and 

Reinke’s deposition and then offered Buresh’s affidavit; all 

exhibits were received into evidence.

According to Reinke’s deposition testimony, on October 18, 

2012, the walls of the first floor were sheeted but there was 

no sheeting on the roof. The structure had been braced with 

“diagonal and in-line bracing to hold the trusses up straight 

and in place.” Reinke said that roughly 50 trusses were going 

to be in the roof of the house and that 60 percent of those 50 

trusses were in place at the time of the accident. Reinke’s and 

Harms’ testimony indicated that the trusses that were in place 

had been set up a week prior to October 18. Reinke testified 

that it was “[e]xtremely windy” the day of and the day before 

the accident. Reinke and his brother were at the site the day 

before the accident, and they “looked at the bracing.” Reinke 

was “probably” sure he “added some to it.” Reinke determined 

“it was sound and nothing was moving.” Reinke assumed 

the building collapsed from the wind—that the bracing was 

“inadequate for maybe the winds that blew, but I don’t — I 

can’t say that for sure. I think it was adequate.” He acknowledged he could have “put up more bracing” and that it was 

his responsibility. When asked if it ever occurred to Reinke 

that the framework could collapse and fall into the basement, 

Reinke responded, “I guess I am sure it’s in the back of my 
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mind. All of those things play into a contractor’s thought proc

ess; so I’d say yes.”

In his affidavit, Buresh claimed that the trusses had not 

been braced and that no sheeting had been put on the structure. 

Buresh had been around construction sites for many years, and 

in his experience, after trusses are erected, they are braced 

and sheeting is placed on them immediately. He said that on 

October 18, 2012, he went to the construction site at the “specific insistence” of Reinke, “having previously voiced concern 

to Reinke” about working in “extremely windy” conditions. 

Reinke “guess[ed]” that he directed Buresh that he needed to 

be at the worksite on October 18. But Reinke said that at no 

time did Buresh voice to him a concern about the high winds 

or the safety of being in the house.

During the hearing on Reinke’s summary judgment motion, 

Reinke argued that Buresh had not offered evidence of Reinke’s 

required standard of care. The district court indicated it did not 

find an opinion in the record that “the industry requires that 

[trusses be] immediately sheeted and had they been immediately sheeted the accident would not have happened.” Buresh 

argued there was a material issue of fact in dispute about 

whether Reinke should have had installation of sheeting or 

more bracing because the day before the incident “[Reinke] 

and his brother looked at the bracing and . . . [Reinke] said 

he thought it might be inadequate, and they did nothing.” 

Buresh claimed that Reinke had a duty to add bracing or to do 

“something,” notwithstanding the “standard of the industry.” 

However, Buresh did not know that there was “any evidence to 

that effect” to show that had Reinke done that, then the incident would not have occurred.

The district court issued its order on January 10, 2019. The 

court noted that the parties did not dispute Reinke’s control 

over the workplace and that he had a duty to use ordinary and 

reasonable care to avoid injuries to subcontractors working 

on the premises. The court pointed to Harms’ and Reinke’s 

testimony that the trusses were erected and braced to industry 
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standards and were properly installed and secured, but were 

“knocked down by extremely high winds.” The court stated 

that the question in the case was whether there were genuine 

issues of material fact with respect to the last two elements 

of Buresh’s negligence claim: breach of duty and proximate cause.

The district court concluded that Buresh failed “to produce any evidence as to the applicable standard of care for 

carpenters or framers constructing and bracing trusses in a 

building.” The court stated that the only evidence regarding the standard of care came from Harms, who believed the 

construction of the trusses was consistent with the applicable 

standard. The court concluded, “Other than that opinion, and 

[Reinke’s] opinion that the trusses were ‘adequately’ braced, 

there is only speculation.” The court cited to Topil v. Hub Hall 

Co., 230 Neb. 151, 430 N.W.2d 306 (1988), and Bargmann 

v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998), with 

regard to the absence of expert testimony to establish the 

appropriate standard of care to prove a breach of duty. The 

district court concluded there was no opinion on the applicable standard of care, and it determined Buresh offered no 

evidence that “the manner in which the trusses were braced, 

or the absence of sheeting, was a cause of the collapse of 

the trusses. [Buresh] merely speculates that the collapse was 

due to high winds.” Therefore, the court determined there 

was no genuine issue of material fact as to whether Reinke 

was negligent in bracing or constructing the trusses, as there 

was no evidence to support that allegation. Nor was there any 

evidence that the manner in which the trusses were braced 

or constructed was a cause of the collapse. The district court 

granted Reinke’s motion for summary judgment and dismissed 

Buresh’s complaint.

On January 17, 2019, Buresh filed a motion to alter or amend 

the order sustaining summary judgment in favor of Reinke. The 

district court overruled Buresh’s motion on February 7, and 

Buresh timely appealed.
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ASSIGNMENTS OF ERROR

Buresh claims the district court erred by (1) requiring 

Buresh to present expert testimony to establish the standard of 

care for a premises liability action against a general contractor in possession and control of the premises, (2) holding that 

Buresh’s evidence was not sufficient to create a genuine issue 

of material fact as to Reinke’s negligence, and (3) requiring 

Buresh to submit evidence on proximate cause.

STANDARD OF REVIEW

[1-3] Summary judgment is to be granted when there is 

no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Wintroub v. Nationstar 

Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). Summary 

judgment is proper only when the pleadings, depositions, 

admissions, stipulations, and affidavits in the record disclose 

that there is no genuine issue as to any material fact or as to 

the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter 

of law. Id. In reviewing a summary judgment, an appellate 

court views the evidence in a light most favorable to the party 

against whom the judgment is granted and gives such party 

the benefit of all reasonable inferences deducible from the 

evidence. Id.

ANALYSIS

[4-6] A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and 

must produce sufficient evidence to demonstrate that it is 

entitled to judgment as a matter of law. Wynne v. Menard, 

Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). If the movant 

meets this burden, then the nonmovant must show the existence of a material issue of fact that prevents judgment as a 

matter of law. Id. When the parties’ evidence would support 

reasonable, contrary inferences on the issue for which a movant seeks summary judgment, it is an inappropriate remedy. 
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Id. Where reasonable minds could draw different conclusions 

from the facts presented, such presents a triable issue of material fact. Id.

We begin with Buresh’s assigned error relating to the necessity of an expert witness to overcome summary judgment 

for his premises liability claim against Reinke as a general 

contractor. He argues that no expert testimony was necessary 

because the standard of care for a general contractor “was to 

use ordinary care to furnish a safe work place for its workers.” 

Brief for appellant at 9. Buresh’s argument has merit when 

applying premises liability principles to the evidence presented 

at the summary judgment hearing.

[7] In premises liability cases, an owner or occupier is subject to liability for injury to a lawful visitor resulting from a 

condition on the owner or occupier’s premises if the lawful 

visitor proves (1) that the owner or occupier either created the 

condition, knew of the condition, or by exercise of reasonable 

care would have discovered the condition; (2) that the owner 

or occupier should have realized the condition involved an 

unreasonable risk of harm to the lawful visitor; (3) that the 

owner or occupier should have expected that the visitor either 

would not discover or realize the danger or would fail to protect himself or herself against the danger; (4) that the owner 

or occupier failed to use reasonable care to protect the visitor 

against the danger; and (5) that the condition was a proximate 

cause of damage to the visitor. Thomas v. Kiewit Bldg. Group, 

25 Neb. App. 818, 914 N.W.2d 456 (2018).

[8-10] The Nebraska Supreme Court has recognized that a 

general contractor in possession and control of the premises 

has a duty to keep the premises in such condition that they 

afford a reasonably safe place to work for persons working on 

or otherwise rightfully on the premises. Id. Duty is a question 

of whether a defendant is under any obligation for the benefit 

of a particular plaintiff; in negligence cases, the duty is always 

the same—to conform to the legal standard of reasonable 

conduct in the light of the apparent risk. Bargmann v. Soll 
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Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998). The question of whether a duty exists at all is a question of law. Cerny 

v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 

697 (2001).

[11] Buresh and Reinke do not dispute that Reinke owed 

a duty to Buresh. Rather, they disagree about the standard 

of care that Reinke owed under the particular circumstances 

of this case. In other words, they dispute whether there was 

sufficient evidence to establish that Reinke breached his duty 

to provide Buresh a safe place to work. Reinke moved for 

summary judgment on the ground that Buresh could not 

prove that Reinke breached the standard of care applicable 

to Reinke, which Reinke claimed was the standard of care 

applicable to framing carpenters because Reinke and Harms 

“framed the building in question.” Brief for appellee at 8. 

Reinke cites to Cingle v. State, 277 Neb. 957, 766 N.W.2d 

381 (2009), for the proposition that when allegedly negligent 

conduct involves specialized knowledge, skill, or training, 

expert testimony may be helpful or even necessary to a determination of what the standard of care requires under particular 

circumstances.

[12] It is true that once a court determines that a duty is 

owed by one party to another, it becomes necessary to define 

the scope and extent of the duty. See Cerny v. Cedar Bluffs 

Jr./Sr. Pub. Sch., supra. In other words, the standard of care

must be ascertained. See id. That standard is typically general 

and objective and is often stated as the reasonably prudent 

person standard, or some variation thereof; i.e., what a reasonable person of ordinary prudence would have done in the same 

or similar circumstances. Cerny v. Cedar Bluffs Jr./Sr. Pub. 

Sch., supra.

[13] When considering the reasonably prudent person standard of care in a premises liability case, several factors relate 

to whether a possessor has breached a duty to use reasonable care. These include (1) the foreseeability or possibility 

of harm; (2) the purpose for which the entrant entered the 
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premises; (3) the time, manner, and circumstances under 

which the entrant entered the premises; (4) the use to which 

the premises are put or are expected to be put; (5) the reasonableness of the inspection, repair, or warning; (6) the opportunity and ease of repair or correction or giving of the warning; 

and (7) the burden on the land occupier and/or community in 

terms of inconvenience or cost in providing adequate protection. Downey v. Western Comm. College Area, 282 Neb. 970, 

808 N.W.2d 839 (2012).

[14-17] The Nebraska Supreme Court abolished the distinction between invitees and licensees in premises liability 

cases in Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 

51 (1996), holding that whether a possessor of land has 

breached a duty to use reasonable care to protect lawful visitors is determined under the same test for both licensees and 

invitees, “which includes independent contractors.” Downey 

v. Western Comm. College Area, 282 Neb. at 979, 808 N.W.2d 

at 848. An independent contractor is a business invitee, to 

whom a possessor owes a duty to protect against dangers it 

either knows of or could have discovered with reasonable 

care. Id. But a possessor of property is not liable for injury to 

an independent contractor’s employee caused by a dangerous 

condition that arose out of the contractor’s work, as distinguished from a condition of the property or a structure on the 

property. Id. A general contractor in control of the premises 

where work performance under a contract with the owner is 

being carried out owes a duty to persons rightfully on the 

premises to keep the premises in a reasonably safe condition 

while the contract is in the course of performance. Dellinger 

v. Omaha Pub. Power Dist., 9 Neb. App. 307, 611 N.W.2d 

132 (2000).

[18] The Nebraska Supreme Court has held that a general 

contractor in possession and control of the premises is only 

liable when the subcontractor’s employee is injured because 

the workplace premises were not safe. Thomas v. Kiewit Bldg. 

Group, 25 Neb. App. 818, 914 N.W.2d 456 (2018). It is not 
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liable when an employee is injured due to specific actions or 

inactions involved in the construction process. Id.

In the present matter, the district court appears to have 

considered the case under a theory of vicarious liability 

rather than premises liability; in other words, the district 

court appears to have focused on whether Reinke could be 

held liable for defects that arose on the premises through the 

negligence of Harms or Reinke in constructing and installing 

the trusses. As a result, the district court found that a higher 

standard of care was applicable to Reinke. The district court 

found that Buresh failed to produce any evidence as to the 

applicable standard of care for “carpenters or framers constructing and bracing trusses in a building” and that the “only 

evidence regarding the standard of care [was] from Harms 

who believe[d] the construction of the trusses was consistent 

with the applicable standard.” The district court concluded 

that other than Harms’ and Reinke’s testimony (as stated in 

their depositions) that the trusses were adequately braced, 

there was “only speculation.” Referring to Topil v. Hub Hall 

Co., 230 Neb. 151, 430 N.W.2d 306 (1988), and Bargmann 

v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998), the 

district court suggested expert testimony was necessary to 

prove the standard of care in this case. It found that Reinke’s 

“speculative answers” in his deposition and Buresh’s “observation on the timing of sheeting” (stated in his affidavit) 

offered “no opinion” on the applicable standard of care. The 

district court did not consider the reasonably prudent person 

standard of care associated with a premises liability claim, as 

discussed earlier.

On appeal, Reinke agrees with the district court’s determination that expert testimony was needed to establish “the 

applicable standard of care for carpenters or framers constructing and bracing trusses in a building.” Brief for appellee at 9. 

However, Buresh disagrees that the standard of care applicable 

to Reinke was that of a framing carpenter. Buresh argues that 

the applicable standard of care was that of a general contractor 
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in control of the premises, or a duty to “use ordinary care to 

furnish a safe work place for its workers.” Brief for appellant at 9. We agree with Buresh. A premises liability claim 

is not grounded upon proof of negligent construction; rather, 

the consideration is whether the premises were safe. Here, the 

question is whether Reinke exercised ordinary and reasonable 

care to avoid injuries to subcontractors working on the premises given Reinke’s own acknowledgment that only 60 percent 

of the roof trusses “were up,” that he and his brother “looked 

at the bracing” the day before the accident because it was 

“extremely windy,” and that he was “probably” sure he “added 

some to it.”

Even assuming the roof trusses were properly constructed, 

installed, and secured, there is a fact question as to whether 

Reinke reasonably provided a safe workplace given the conditions known to him. Reinke acknowledged that it was on his 

mind that the roof trusses might collapse. He and his brother 

looked at the bracing the day before the accident, because 

it was extremely windy. Reinke also said he “probably” 

could have put up more bracing to prevent what happened. 

Reinke believed the accident happened because of high wind. 

However, Harms denied that he could recall any other time 

when trusses collapsed because of high wind. Nevertheless, 

given Reinke’s acknowledgments, there is a fact question as 

to whether Reinke exercised ordinary and reasonable care 

to maintain a safe workplace by requiring subcontractors to 

report to the site under the extreme wind conditions (given 

his own inspection, actions, and concerns the day preceding 

the accident).

Viewing the evidence in a light most favorable to Buresh 

and giving Buresh the benefit of all reasonable inferences 

deducible from the evidence, we conclude the evidence was 

sufficient to create a question for the jury as to Reinke’s 

liability. A jury could find that (1) Reinke knew of the “condition”—Reinke and his brother were at the site the day 

before the accident and “looked at the bracing,” Reinke was 
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“probably” sure he “added some to it,” and the bracing was 

“inadequate for maybe the winds that blew, but I don’t — I 

can’t say that for sure,” thus acknowledging the possibility of 

a present inadequate condition; (2) Reinke should have realized the condition involved an unreasonable risk of harm to 

a lawful visitor on the premises—Reinke acknowledged he 

could have “put up more bracing,” which was his responsibility, and it was in the back of his mind that the framework 

could collapse and fall into the basement; (3) Reinke should 

have expected that Buresh would either not discover or realize 

the danger or would fail to protect himself against the danger—Buresh claimed he previously voiced concern to Reinke 

about working in “extremely windy” conditions but Reinke 

denied having that discussion; (4) Reinke failed to use reasonable care to protect Buresh against the danger—Reinke either 

failed to further brace the trusses adequately or alternatively 

should not have required Buresh to work on an “extremely 

windy” day given Reinke’s concerns about the trusses the 

day before; and (5) the condition was the proximate cause of 

damage to Buresh—the roof trusses collapsed causing injury 

to Buresh. See Thomas v. Kiewit Bldg. Group, 25 Neb. App. 

818, 914 N.W.2d 456 (2018) (setting forth elements for premises liability).

Further, in considering the reasonableness of Reinke’s 

actions, there is sufficient evidence for a jury to consider the 

foreseeability or possibility of the harm, the reasonableness of 

Reinke’s inspection or warning, the opportunity for Reinke to 

repair or correct the condition or give a warning, and the burden on Reinke in terms of inconvenience or cost in providing 

adequate protection. See Downey v. Western Comm. College 

Area, 282 Neb. 970, 808 N.W.2d 839 (2012) (setting forth 

factors relating to whether possessor of premises has breached 

duty to use reasonable care).

As previously noted, the district court did not consider 

the facts under a premises liability theory; rather, the court 

appeared to focus on whether Reinke was liable or vicariously 
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liable for allegedly defective construction or installation of the 

trusses. However, under a premises liability claim, a general 

contractor is only liable when the subcontractor’s employee 

is injured because the workplace premises were not safe; it is 

not liable when an employee is injured due to specific actions 

or inactions involved in the construction process unless certain 

exceptions are met. See Thomas v. Kiewit Bldg. Group, supra. 

Therefore, the focus in the present matter should be on whether 

Reinke should have been aware the workplace premises were 

not safe, rather than on whether the trusses were improperly 

constructed or installed.

In considering whether Reinke, as the general contractor, 

should have known the workplace premises were potentially 

unsafe, we need not consider whether expert testimony was 

required at the summary judgment stage of the proceedings in 

light of Reinke’s own testimony regarding his concerns and 

actions the day preceding the accident, as previously set forth. 

For the sake of completeness, we note that some claims of negligence under a premises liability theory against a general contractor have not depended upon expert testimony because the 

analyses did not ultimately concern whether the worksite was 

unsafe. See, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 

181 (2014) (any breach of general contractor’s duty to provide 

safe place to work did not cause subcontractor’s employee’s 

death from fall off collapsed roof decking where injury was 

due to specific actions or inactions involved in construction 

process—employee was not wearing personal protection equipment required to be worn where fall took place); Eastlick v. 

Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007)

(employee was injured when he removed brace on scaffolding 

in incorrect manner, and scaffolding was not owned, erected, or 

maintained by general contractor).

Expert testimony in cases involving slip-and-fall injuries 

has not been required to prove general contractors in possession and control of premises failed to provide reasonably safe 

workplaces. See, Thomas v. Kiewit Bldg. Group, 25 Neb. App. 
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818, 914 N.W.2d 456 (2018) (plaintiff presented sufficient 

evidence to create question of fact as to general contractor’s 

premises liability for plaintiff’s slip-and-fall injury; record 

contained conflicting testimony from plaintiff and his coworker 

versus defendant’s safety supervisor about whether sand on 

dry concrete was hazardous); Sullivan v. Geo. A. Hormel and 

Co., 208 Neb. 262, 303 N.W.2d 476 (1981) (plaintiff slipped 

on bolt which was half covered in ice on stairs and fell; no 

expert testimony needed to show general contractor failed to 

keep reasonably safe workplace for workers where icy condition of steps had existed for prolonged time and where debris 

was frequently or always present on steps, making footing even 

more hazardous).

In a case involving a subcontractor’s employee’s fall 

through an opening in a floor deck and impalement on three 

1-foot, vertical reinforcing steel rods set in concrete on the 

floor directly below a duct opening, the offer of expert witness testimony was at least recognized as relevant evidence. 

See Simon v. Omaha P. P. Dist., 189 Neb. 183, 202 N.W.2d 

157 (1972) (expert qualified by 30 years in construction 

safety work who opined about reasonable conduct regarding 

floor hole or opening—even though general contractor was 

not bound by any code-directed standard of conduct—gave 

relevant evidence as to reasonableness of general contractor’s conduct).

In the present case, expert evidence may ultimately be necessary to succeed in persuading a jury regarding whether or not 

Reinke exercised ordinary and reasonable care in maintaining 

safe workplace premises given the state of the partially completed roof trusses and the windy conditions present on the 

day of the accident. However, at this point in the proceeding, 

Reinke’s own testimony describing his concerns and actions 

the day preceding the accident is sufficient to create material 

issues of fact precluding summary judgment in his favor on 

Buresh’s premises liability claim.
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CONCLUSION

We reverse the district court’s order granting summary 

judgment in favor of Reinke and remand the cause for further proceedings on Buresh’s premises liability claim against 

Reinke.

Reversed and remanded for 

further proceedings.