Thomas v. Kiewit Bldg. Group ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/01/2018 08:09 AM CDT
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THOMAS v. KIEWIT BLDG. GROUP
Cite as 25 Neb. Ct. App. 818
Robert Thomas, appellant, v.
K iewit 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 conten-
tions 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 visi-
tor 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
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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 spe-
cific 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 evi-
dence unless there has been a clear abuse of discretion.
9. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admis-
sible if they supplement the witness’ spoken description of the trans-
pired 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 fur-
ther 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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THOMAS v. KIEWIT BLDG. GROUP
Cite as 25 Neb. Ct. App. 818
Inbody, Pirtle, and R iedmann, 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’ work-
ers’ 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 fur-
ther 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’ compen-
sation 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 alleges that Kiewit was negligent in failing to remove
the sand after the floor was dry, creating a slippery and danger-
ous 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 hap-
pened, 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 mate-
rials stacked up in various places and due to the length of the
sheets they were carrying, Thomas and Schafer had to “zig-
zag 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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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 addi-
tionally 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 pho-
tographs 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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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 fore-
man. Schafer testified that when sand remained on dry con-
crete, 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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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 danger-
ous 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 subcon-
tractor 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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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 con-
trol 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 per-
mit him to frame the issues as he chose; (7) refusing to admit
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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 assign-
ments of error all relate to the court’s findings in regard to the
directed verdict. Accordingly, we address the first six assign-
ments 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 con-
struction site, had a duty to provide a safe place to work and
to keep the premises reasonably safe for workers on the con-
struction site, and a further duty to protect and/or warn work-
ers 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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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 maintain-
ing 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 oth-
erwise. When considering Kiewit’s motion for a directed ver-
dict, 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 subcontrac-
tor’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, notwith-
standing how it had been pled by Thomas. Rather, it analyzed
the case under the general rule of imposing vicarious liabil-
ity 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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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 par-
ticular facts of this case as a matter of law, thereby granting
Kiewit’s motion and dismissing all cross-claims and subroga-
tion interests.
[2,3] Thomas contends that the trial court essentially
amended his pleadings when it rejected his premises liabil-
ity 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 liabil-
ity, 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 sub-
ject 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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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 pro-
tect 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 contrac-
tor’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 there-
fore 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 respon-
sible 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 sub-
contractors any deficiencies that were found so they could
be corrected.
Wheatly also testified that Kiewit, as the general contrac-
tor, 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 walk-
ing 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 labor-
ers 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 posses-
sion 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 indepen-
dent 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 cre-
ated 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 walk-
ing on sand on dry concrete and that he and Thomas specifi-
cally 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 nec-
essary 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 demon-
strative 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 discre-
tion. 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 descrip-
tion 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 charac-
ter 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 assist­
ance 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 “mecha-
nism 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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Cite as 25 Neb. Ct. App. 818
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 depo-
sition 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 test-
ing 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 demon-
strative 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’ argu-
ment 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.
R eversed and remanded for
further proceedings.