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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

Robert Thomas, appellant, v. 

Kiewit Building Group Inc., 

et al., appellees.

___ N.W.2d ___

Filed April 24, 2018. No. A-16-968.

1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is 

proper only when reasonable minds cannot differ and can draw but one 

conclusion from the evidence, that is, when an issue should be decided 

as a matter of law. In reviewing that determination, an appellate court 

gives the nonmoving party the benefit of every controverted fact and all 

reasonable inferences from the evidence.

2. Pleadings. The purpose of pleadings is to frame the issues upon which 

a cause is to be tried, and the issues in a given case will be limited to 

those which are pleaded.

3. ____. A pleading serves to eliminate from consideration those contentions which have no legal significance and to guide the parties and the 

court in the conduct of cases.

4. 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 

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.

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

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

Nebraska Supreme Court Online Library

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

05/01/2018 01:08 AM CDT
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

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

persons working on or otherwise rightfully on the premises.

6. 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.

7. ____: ____: ____. 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.

8. Trial: Evidence: Appeal and Error. The admission of demonstrative 

evidence is within the discretion of the trial court, and a judgment will 

not be reversed on account of the admission or rejection of such evidence unless there has been a clear abuse of discretion.

9. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admissible if they supplement the witness’ spoken description of the transpired event, clarify some issue in the case, and are more probative 

than prejudicial.

10. ____: ____: ____: ____. Demonstrative exhibits are inadmissible when 

they do not illustrate or make clearer some issue in the case; that 

is, where they are irrelevant or where the exhibit’s character is such 

that its probative value is substantially outweighed by the danger of 

unfair prejudice.

11. Trial: Juries: Evidence. Demonstrative exhibits are defined by the 

purpose for which they are offered at trial—to aid or assist the jury in 

understanding the evidence or issues in a case.

12. Trial: Evidence: Testimony. Demonstrative exhibits are relevant only 

because of the assistance they give to the trier of fact in understanding 

other real, testimonial, and documentary evidence.

13. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

Appeal from the District Court for Douglas County: 

Thomas A. Otepka, Judge. Reversed and remanded for further proceedings.

James E. Harris and Britany S. Shotkoski, of Harris & 

Associates, P.C., L.L.O., for appellant.

Dan H. Ketcham, of Engles, Ketcham, Olson & Keith, P.C., 

for appellee Kiewit Building Group Inc.
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

Inbody, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

INTRODUCTION

Robert Thomas brought a negligence action against Kiewit 

Building Group Inc. (Kiewit); Architectural Wall Systems Co. 

(AWS); and Zurich American Insurance Co., AWS’ workers’ compensation insurance carrier. The action arises out 

of an injury Thomas sustained while working for AWS on 

the construction of a building for TD Ameritrade in Omaha, 

Nebraska. Kiewit was the general contractor for the project. 

At the close of Thomas’ case, the district court for Douglas 

County sustained Kiewit’s motion for directed verdict. Based 

on the reasons that follow, we reverse, and remand for further proceedings.

BACKGROUND

Thomas brought this negligence action against Kiewit, 

AWS, and Zurich American Insurance Co. based on injuries 

he sustained on February 20, 2012, when he slipped and fell 

at the TD Ameritrade jobsite. Thomas has been paid workers’ 

compensation benefits and therefore, as provided under Neb. 

Rev. Stat. § 48-118 (Reissue 2010), AWS and Zurich American 

Insurance Co. were named as defendants for workers’ compensation subrogation purposes only.

On February 20, 2012, Thomas was working in the course 

and scope of his employment as an ironworker with AWS on 

the 12th floor, which was the top floor, of the TD Ameritrade 

building. The 12th floor was not yet enclosed, and the floor 

was exposed to the elements, including ice, snow, and frost. 

Additionally, snow and ice would melt on the roof above, drip 

down and puddle on the 12th floor, and refreeze. This occurred 

even on days when there was no precipitation. The concrete 

floor would become slick as a result of the snow and ice, 

making the floor dangerous. Sand was spread on the icy areas 

to make the floor safer. Thomas was injured when he slipped 

and fell on sand that remained on the floor after it was dry. 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

Thomas alleges that Kiewit was negligent in failing to remove 

the sand after the floor was dry, creating a slippery and dangerous surface.

At the time Thomas fell, he and Perry Schafer, another 

AWS employee, were carrying a metal sheet of siding that was 

26 to 28 feet long and 3 feet wide. Before the accident happened, Thomas and Schafer had made 7 to 10 trips carrying 

metal sheets and had taken the same path each time. Thomas 

testified that he did not think there was a risk of falling, 

because he had walked the route safely numerous times. They 

also had been carrying the same sheets of siding on the job 

for a couple days before the accident, carrying about 20 sheets 

each day. Due to the size of the sheets, they had to be carried 

one at a time by two workers. AWS was going to install the 

metal sheets on the exterior of the building, so Thomas and 

Schafer were carrying the sheets to the outside walkway of 

the building.

On the day of the accident, there were several “trades” 

working on the 12th floor with AWS, including electricians, 

heating and air conditioning installers, and plumbers, all of 

whom had materials stacked on the floor. Because of the materials stacked up in various places and due to the length of the 

sheets they were carrying, Thomas and Schafer had to “zigzag through everything.” Thomas testified that he and Schafer 

preplanned the route they would take to carry the sheets before 

starting the day. Schafer and Thomas chose the route they used, 

and nobody else instructed them on the path to take.

When Thomas fell, Schafer was the lead person carrying 

the metal sheet. Their route required them to step up onto a 

raised concrete area designed for an air-handling unit. This 

required them to each step up onto this pad and then step back 

down as they carried the metal sheet. Schafer testified that he 

and Thomas had done this several times that day without any 

problems. Thomas stated that when they would carry the metal 

sheets, he felt like he was somewhat pulled by Schafer, who 

was the lead person. However, Thomas testified that he was 
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Cite as 25 Neb. App. 818

confident about carrying the sheets, because he had done it 

numerous times and did not think there was any risk.

When Thomas fell, Schafer had gone about 10 or 15 steps 

past the raised pad and Thomas was stepping off the raised 

pad. When he stepped off, “[his] feet just went out from under 

[him].” Schafer testified that there was sand on the concrete 

where Thomas fell and that it was placed there on a different 

day due to icy conditions. Schafer testified that there was not 

very much sand and that it was spread out. He testified he 

did not feel it was necessary to give Thomas a warning about 

the sand because it was visible. Schafer testified that he and 

Thomas continued to work without removing the sand. Schafer 

testified that if they thought the sand on the floor was an issue, 

they could have done something about it. Thomas stated that 

he resumed working shortly after he fell, walking the same 

route with the sand still present.

John Dahir was Kiewit’s safety supervisor. His job was to 

manage Kiewit’s safety programs and ensure they complied 

with Occupational Safety and Health Administration (OSHA) 

regulations, state law, and Kiewit’s safety rules. He additionally would make sure that subcontractors followed their 

own safety rules. He testified that Kiewit had responsibility 

overall for safety on the TD Ameritrade jobsite, but that the 

subcontractors per contract were responsible for their own 

safety as well. Dahir testified that Kiewit did walk-throughs 

of different areas throughout each day and took photographs 

to document inspections and to show the subcontractors any 

deficiencies that were found so they could be corrected. He 

testified about one occasion where he identified slick floors 

from ice and snow as a safety issue on the job and took photographs of this condition. On one of the photographs, he 

noted, “Slick conditions were addressed with the group that 

we [Kiewit] are sanding the main walk paths and that . . . they 

are responsible to prep their [work areas] with sand if they 

are not in the main walk paths that have not been sanded.” He 

explained that Kiewit took care of the main walking paths and 
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Cite as 25 Neb. App. 818

that the subcontractors were “responsible to prep their own 

work areas to make it work ready,” which included putting 

down sand if necessary. Dahir testified that the area where the 

accident occurred was in AWS’ work area. He testified that it 

is the responsibility of the contractor who spreads the sand to 

clean it up after it is no longer needed. Dahir also stated that 

everyone on the site was responsible for unsafe conditions 

and had the authority to correct an unsafe act or condition. 

Dahir further testified that the conditions on the 12th floor 

“varied from day-to-day, and hour-by-hour” because of the 

ice and snow.

Dahir testified that in his opinion, the sand on the dry floor 

was not a hazard. He based his opinion on the fact that the 

sand was put down as a safety measure to prevent someone 

from slipping based on the icy conditions they were dealing 

with on the 12th floor. He testified that he has also walked 

where there was sand on dry concrete and that he did not 

consider the floor to be a slip hazard. Dahir testified that there 

was no OSHA violation with respect to Thomas’ fall and that 

OSHA has never recognized sand used to prevent slip and falls 

in outside conditions to be a hazardous condition.

Keith Vidal, a consulting safety engineer, also testified 

that snow and ice are recognized hazards and that putting 

sand down is a reasonable safety measure to reduce the risk 

of falling on snow and ice. Vidal testified that sand in and 

of itself is a recognized hazard, but not a hazard recognized 

by OSHA.

Schafer testified that when ice was on the concrete floor, 

it was a dangerous condition, and that sand was put down 

to make the floor condition less dangerous. He testified that 

when he saw ice on the floor, he would report it to his foreman. Schafer testified that when sand remained on dry concrete, it made the floor slick, but that he did not recall ever 

reporting sand on the floor to his foreman as a dangerous 

condition. He stated that he knew to be careful when walking 

on sand on dry concrete and that he and Thomas specifically 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

talked about being careful when carrying the sheets because 

of the sand on the floor.

Reagan Wheatly, Thomas’ foreman, testified that all AWS 

employees are responsible for safety in their own jobs and 

that they are trained in how to protect themselves from slips 

and falls. Specifically, AWS employees are told to wear proper 

boots, preplan their walking path, and look for hazards. Wheatly 

testified that the AWS employees were to be aware of anything 

on the ground in their path and that they were expected to do 

something about anything they considered a danger. They were 

responsible “to keep [their] path clear.”

Wheatly testified that the floors were never slick or dangerous due to sand. He did not consider sand on the ground to 

be a hazard. He stated that it was only the ice that concerned 

him and was a problem. He testified that the sand reduced the 

dangers of the ice and improved worker safety. Wheatly stated 

that there was sand available for AWS workers to put down if 

there was ice on the floor and that it was up to each subcontractor to decide whether to put sand down in their work areas. 

Wheatly also testified that the conditions on the floor were 

always changing due to the various subcontractors who worked 

on the floor, as well as the fact that the floor was exposed to 

outdoor conditions.

Wheatly testified that he never experienced any problems 

walking on the route that Thomas and Schafer used and that 

he never thought there was a hazard because of sand on the 

ground. He also testified that neither Thomas nor Schafer ever 

reported that the sand was a hazard. Wheatly testified that 

he had never been trained that sand is considered debris or a 

safety hazard. After Thomas fell, Wheatly did not think it was 

necessary to remove the sand where Thomas fell to make it 

safer to walk. He also testified that Kiewit did not do anything 

to cause Thomas’ accident.

Thomas testified that Kiewit laborers made it safe for the 

workers by keeping walkways clear. Thomas had seen Kiewit 

laborers putting sand down in the main walkways 2 weeks 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

before the incident. Thomas testified that he did not fall in a 

main walkway and that he does not know who put sand down 

in the area where he fell. He did remember a meeting where 

AWS employees were told that they were responsible for 

spreading sand in their work area.

Thomas testified that he knew sand was present where he 

fell and that he could see it. Thomas never reported the sand 

on the floor as an unsafe condition, because in his opinion, the 

sand was not unsafe. He testified that he has encountered sand 

on other construction jobs. Thomas admitted that Kiewit would 

not be on notice of the sand creating a hazard if he and other 

AWS employees did not report a problem. Thomas testified 

that sand on a dry floor made it slick, but that it did not stop 

him and his coworkers from working—they just had “to pay 

some special attention” when walking. He also testified that 

he was responsible for his own safety. Thomas admitted that 

he was trained to report unsafe conditions and that he knew he 

was not required to work if he felt unsafe.

At the close of Thomas’ case, Kiewit made a motion for a 

directed verdict, which the trial court sustained. The trial court 

entered an order dismissing Thomas’ action, as well as all 

pending cross-claims and subrogation interests.

ASSIGNMENTS OF ERROR

Thomas assigns that the trial court erred in (1) granting 

Kiewit’s motion for directed verdict; (2) finding that Kiewit 

did not owe him, as an employee of independent contractor 

AWS, a duty to provide a safe place to work; (3) applying the 

general rule that one who employs an independent contractor 

is not liable for physical harm caused to another by the acts 

or omissions of the independent contractor; (4) finding that 

Kiewit as general contractor did not have possession and control of the premises; (5) failing to recognize and apply the rule 

that a general contractor in possession and control of premises 

has a duty to provide a safe place to work; (6) failing to permit him to frame the issues as he chose; (7) refusing to admit 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

exhibits 41 and 48 into evidence as demonstrative exhibits; 

and (8) failing to take judicial notice of an OSHA regulation, 

specifically 29 U.S.C. § 654(a)(1) (2012).

STANDARD OF REVIEW

[1] A directed verdict is proper only when reasonable 

minds cannot differ and can draw but one conclusion from 

the evidence, that is, when an issue should be decided as a 

matter of law. In reviewing that determination, we give the 

nonmoving party the benefit of every controverted fact and 

all reasonable inferences from the evidence. Cohan v. Medical 

Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732 (2017), 

opinion modified on denial of rehearing 297 Neb. 568, 902 

N.W.2d 98.

ANALYSIS

Thomas first assigns that the trial court erred in granting 

Kiewit’s motion for directed verdict. His next five assignments of error all relate to the court’s findings in regard to the 

directed verdict. Accordingly, we address the first six assignments of error together.

Thomas pled this case as a premises liability case. 

Specifically, in his amended complaint, he alleged that Kiewit, 

as the general contractor in possession and control of the construction site, had a duty to provide a safe place to work and 

to keep the premises reasonably safe for workers on the construction site, and a further duty to protect and/or warn workers against dangerous conditions on the construction premises. 

Thomas further alleged that Kiewit created and knew of the 

dangerous condition resulting from slippery, sandy floors and 

that Kiewit knew or should have known that the dangerous 

condition involved an unreasonable risk of harm to workers 

who either would not discover or realize the danger or would 

fail to protect themselves against such danger. The amended 

complaint alleges that Kiewit was negligent in one or more of 

the following ways: (1) failing to provide a safe place to work 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

by not following “good housekeeping measures” as required 

under the Kiewit safety plan, OSHA safety regulations, and 

industry safety customs and rules; (2) failing to timely clean 

up the sand, thereby creating a dangerous condition on the 

premises; (3) failing to use reasonable care to protect Thomas 

against dangerous conditions on the premises; (4) failing to 

warn Thomas of the existence of a dangerous condition on the 

premises; and (5) failing to use reasonable care in maintaining the subject premises in a safe condition for the protection 

of workers.

Although Thomas pled and proceeded with this case based 

on a theory of premises liability, the trial court viewed it otherwise. When considering Kiewit’s motion for a directed verdict, the court was swayed by Kiewit’s argument that premises 

liability did not apply to a claim for injuries sustained by a 

subcontractor’s employee against the general contractor of a 

construction project.

Kiewit made its motion for directed verdict at the close 

of Thomas’ case in chief. It argued that a directed verdict 

should be granted in its favor because Kiewit, as a general 

contractor, was not liable for physical harm to a subcontractor’s employee and because Thomas had failed to prove that 

any of the exceptions to the rule were applicable, specifically 

that Kiewit had control over AWS’ work or control over the 

area where Thomas was injured. Thomas argued he presented 

evidence to show that Kiewit had possession and control over 

the premises and that therefore, Kiewit had a duty to provide a 

safe place to work for an independent contractor’s employees. 

After both parties argued their respective positions, the trial 

court stated this was not a premises liability case, notwithstanding how it had been pled by Thomas. Rather, it analyzed 

the case under the general rule of imposing vicarious liability upon a general contractor for injuries arising out of the 

negligence of its subcontractor. Under that theory, the court 

determined that Kiewit did not have possession and control of 

the area in which Thomas was injured nor did it have actual 
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THOMAS v. KIEWIT BLDG. GROUP

Cite as 25 Neb. App. 818

constructive knowledge of the danger and therefore was not 

liable for Thomas’ injuries. As a result, the court found that 

Kiewit did not owe a duty of care to Thomas under the particular facts of this case as a matter of law, thereby granting 

Kiewit’s motion and dismissing all cross-claims and subrogation interests.

[2,3] Thomas contends that the trial court essentially 

amended his pleadings when it rejected his premises liability theory of the case. The purpose of pleadings is to frame 

the issues upon which a cause is to be tried, and the issues 

in a given case will be limited to those which are pleaded. 

Big Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 

(2003). A pleading serves to eliminate from consideration those 

contentions which have no legal significance and to guide the 

parties and the court in the conduct of cases. Welsch v. Graves, 

255 Neb. 62, 582 N.W.2d 312 (1998).

We conclude that the trial court erred in failing to decide 

the motion for directed verdict on the theory upon which the 

case was pled. Thomas pled the case based on premises liability, and the court should have decided the case on that theory, 

rather than adopting a different theory. See Downey v. Western 

Comm. College Area, 282 Neb. 970, 808 N.W.2d 839 (2012) 

(applying premises liability theory to injured subcontractor’s 

employee and holding that independent contractor is business 

invitee to whom possessor of land owes duty to protect against 

certain dangers). We further conclude, as discussed below, 

that Thomas’ evidence was sufficient to create a question for 

the jury as to Kiewit’s liability and that thus, the motion for 

directed verdict should have been denied.

[4] 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 
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Cite as 25 Neb. App. 818

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. Edwards v. Hy-Vee, 294 Neb. 

237, 883 N.W.2d 40 (2016).

[5] 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. See Sullivan v. Geo. 

A. Hormel and Co., 208 Neb. 262, 303 N.W.2d 476 (1981). 

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

181 (2014) (one in possession and control of premises has 

duty to provide safe place to work for independent contractor’s employees).

Thomas presented evidence from which the trier of fact 

could have determined that Kiewit, as the general contractor, 

maintained possession and control of the premises and therefore had a duty to provide a safe place to work for Thomas, 

an employee of independent contractor AWS. Dahir testified 

that Kiewit had responsibility overall for safety on the TD 

Ameritrade jobsite. He testified that Kiewit was responsible for initiating, maintaining, and supervising all safety 

precautions. Dahir testified that Kiewit did walk-throughs 

of different areas throughout the jobsite each day and took 

photographs to document inspections and to show the subcontractors any deficiencies that were found so they could 

be corrected.

Wheatly also testified that Kiewit, as the general contractor, had to provide a safe place to work free of recognized 

hazards, which includes safe walking surfaces free of those 

hazards. Thomas testified that Kiewit laborers kept walkways 

clear and picked up debris left behind. Another employee for 
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AWS testified that he believed it was Kiewit’s responsibility to 

keep the jobsite clean and to make sure it was safe “[d]ay in 

and day out.”

There was evidence that Kiewit took care of the main walking paths and that the subcontractors were responsible for their 

own work areas, which included putting sand down on ice 

when necessary. Dahir testified that it was the responsibility of 

the contractor who spread the sand to clean it up after it was no 

longer needed. The evidence was conflicting as to who put the 

sand down where Thomas fell. There was also evidence that 

Kiewit cleaned up the sand after Thomas fell.

Wheatley testified that sand was available to AWS workers 

to use in their work areas. However, he testified that he never 

put sand down and never instructed the AWS workers to do so 

either. He also testified that he would expect Kiewit to sweep 

up sand on the floor that is no longer necessary.

Schafer testified that Kiewit would have put the sand down 

in the place where Thomas fell. He did not see anyone from 

Kiewit put it in the exact place where Thomas fell, but he saw 

them spreading it in other areas. He testified that the sand 

was not put down on the day Thomas fell, but, rather, it had 

been put down on a different day due to icy conditions. He 

testified that Kiewit laborers were the only ones who spread 

sand. Schafer also testified that he had seen Kiewit laborers pumping puddles of water off the floor. He testified that 

AWS workers did not put down sand because it was outside 

their scope of work. He testified that he personally did not 

put down sand because he was a union ironworker. Schafer 

also testified that Kiewit laborers cleaned up the sand where 

Thomas fell. Thomas testified that he saw Kiewit laborers 

putting down sand in the main walkways 2 weeks before his 

accident. He did not know who put the sand down in the area 

where he fell.

[6,7] In addition to the evidence that Kiewit had possession and control of the premises, and therefore a duty to 

provide a safe place to work, Thomas presented evidence 
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from which the trier of fact could conclude that such duty 

was breached because the sand on the dry concrete made the 

workplace unsafe. 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. See Gaytan 

v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014). It is not 

liable when an employee is injured due to specific actions or 

inactions involved in the construction process. Id. Similarly, 

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. 

Downey v. Western Comm. College Area, 282 Neb. 970, 808 

N.W.2d 839 (2012).

Thomas alleged that there was something unsafe about the 

workplace premises, i.e., the sand on the dry concrete. The 

evidence shows that the concrete on the 12th floor would often 

have ice and snow on it, which made it slick. Sand was often 

put on the ice to make it less slick. Dahir testified that sand 

was put down to improve safety and prevent workers from 

slipping on icy conditions. Dahir testified that the sand on 

the dry floor was not a hazard. Schafer agreed that when sand 

was put on the ice, it made the floor less dangerous. However, 

Schafer also testified that sand on the dry concrete floor created a slick surface, making it dangerous to walk on. Schafer 

testified that he had slid on an area where there was sand on 

dry concrete. He stated that he knew to be careful when walking on sand on dry concrete and that he and Thomas specifically talked about being careful when carrying the sheets of 

siding because of the sand on the floor. Thomas also testified 

that sand on dry concrete made the floor slick and made it necessary to pay special attention when walking over it.

Giving Thomas, as the nonmoving party, the benefit of 

every controverted fact and all reasonable inferences from 

the evidence, we conclude that Thomas presented sufficient 
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evidence to create a question of fact as to Kiewit’s liability. 

Thus, the trial court erred in granting Kiewit’s motion for 

directed verdict.

[8-12] Thomas also assigns that the trial court erred in 

refusing to admit exhibits 41 and 48 into evidence as demonstrative exhibits. The admission of demonstrative evidence is 

within the discretion of the trial court, and a judgment will 

not be reversed on account of the admission or rejection of 

such evidence unless there has been a clear abuse of discretion. American Central City v. Joint Antelope Valley Auth., 281 

Neb. 742, 807 N.W.2d 170 (2011). “‘[D]emonstrative exhibits 

are admissible if they supplement the witness’ spoken description of the transpired event, clarify some issue in the case, 

and are more probative than prejudicial.’” State v. Pangborn, 

286 Neb. 363, 369-70, 836 N.W.2d 790, 797 (2013), quoting 

Benzel v. Keller Indus., 253 Neb. 20, 567 N.W.2d 552 (1997). 

Conversely, “‘[d]emonstrative exhibits are inadmissible when 

they do not illustrate or make clearer some issue in the case; 

that is, where they are irrelevant, or where the exhibit’s character is such that its probative value is substantially outweighed 

by the danger of unfair prejudice.’” Id. at 370, 836 N.W.2d 

at 797. Demonstrative exhibits are defined by the purpose 

for which they are offered at trial—to aid or assist the jury 

in understanding the evidence or issues in a case. State v. 

Pangborn, supra. They are relevant only because of the assistance they give to the trier of fact in understanding other real, 

testimonial, and documentary evidence. Id.

Exhibit 41 is a computer-generated depiction of Thomas’ 

accident, showing him stepping off the raised pad onto the 

floor and falling. It was presented to Dr. John Hain during his 

deposition testimony to assist him in explaining the “mechanism of injury” in this case. No objection was made in regard 

to exhibit 41 during Hain’s deposition.

At trial, the exhibit was offered into evidence before Hain’s 

video deposition was played for the jury. Kiewit objected to 

the admission of the exhibit based on foundation. The parties 
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discussed the fact that Hain’s deposition had not yet been 

played for the jury, and there was discussion about whether the 

court should wait to rule on the admissibility of exhibit 41 until 

after Hain’s testimony. The court decided to rule at that point, 

and it sustained Kiewit’s foundation objection. Hain’s video 

deposition was subsequently played for the jury.

We conclude that the court properly sustained Kiewit’s 

foundation objection at the time exhibit 41 was offered into 

evidence. Hain was asked about the exhibit during his deposition testimony, yet the exhibit was offered before Hain’s 

deposition was played for the jury. Thomas did not reoffer the 

exhibit into evidence after Hain’s deposition was played for the 

jury or at any time later in the trial. Accordingly, we conclude 

that the court did not abuse its discretion in failing to admit 

exhibit 41 into evidence.

[13] Exhibit 48 is a chart which showed the results of testing performed by Vidal, the consulting safety engineer, in 

which he used a tribometer to measure the slip resistance on 

various surfaces with and without sand. Although the chart 

was not identified as exhibit 48 during Vidal’s testimony, he 

used it during his testimony without objection, explaining his 

findings while the exhibit was being shown to the jury. When 

Thomas offered the exhibit at a later point in trial, Kiewit 

objected based on foundation and hearsay, as well as on the 

ground that it was more prejudicial than probative. After some 

discussion between the court and the parties regarding demonstrative evidence, the court reserved ruling on exhibit 48. The 

record does not show that the court ever subsequently ruled 

on the admissibility of exhibit 48. An appellate court will not 

consider an issue on appeal that was not presented to or passed 

upon by the trial court. Walters v. Sporer, 298 Neb. 536, 905 

N.W.2d 70 (2017). Because the trial court did not rule on the 

admissibility of exhibit 48, we do not consider Thomas’ argument on appeal.

Finally, Thomas assigns that the court erred in failing to 

take judicial notice of an OSHA regulation, specifically 29 
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U.S.C. § 654(a)(1), the general duty clause. Kiewit objected, 

arguing that it was irrelevant because there was no indication 

in the evidence of an OSHA charge or violation. The court 

sustained Kiewit’s objection, stating that the regulation was 

not relevant and would confuse the jury. Based on our review 

of the record, we agree. Thomas’ final assignment of error is 

without merit.

CONCLUSION

Based on the reasons stated above, we conclude that the 

district court erred in sustaining Kiewit’s motion for directed 

verdict. Accordingly, the order of the district court is reversed 

and the matter is remanded for further proceedings.

 Reversed and remanded for

further proceedings.