Neisendorf v. Abbey Paving & Sealcoating, Co.

Plaintiff, an employee of a subcontractor, filed a personal injury lawsuit alleging general negligence and premises liability against defendant, a general contractor, after he was injured when a trench wall collapsed on him at a construction site. The trial court granted summary judgment in favor of the defendant and plaintiff appealed, arguing that there were genuine issues of material fact as to whether defendant owed plaintiff a duty of care and whether defendant had actual or constructive notice of a dangerous condition. The appellate court affirmed, finding a contract that granted defendant the general right to stop work was insufficient to grant the requisite contractual control to give rise to a duty owed to the plaintiff and that even outside of the contract the right to stop work was not sufficient evidence of control and, as a result, the trial court did not err in granting summary judgment on the negligence count of the complaint. The appellate court likewise found that there was no genuine issue of material fact on the issue of actual or constructive notice on the premises liability count. (HUTCHINSON and KENNEDY, concurring)