Where a contractor’s employee was injured by falling from a ladder it borrowed from the owner of the location where he was repairing an HVAC system, the court held the owner was not legally responsible for the individual’s injuries because the availability of the ladder was at most a favor to the person doing the work.  This was nothing more than a mere gratuity, for which the owner owed no duty to the individual.

In the case of Semler v. Sears, Roebuck and Company, 268 Neb. 857, 689 N.W. 2d, 2004, Lawrence Semler, an employee of The Waldinger Corporation was dispatched by his employer to the Sears store to repair the heating unit.  Upon his arrival at the store, Semler noticed a ladder leaning against the heating unit, and he climbed it in order to take a look at the heating problem.  He came back down, went to his truck to get an electric meter, then returned to the heating unit and climbed the ladder a second time.  While he was on the ladder, the bottom slipped out across the floor, causing him to fall to the ground.

Semler testified at trial that he believed the ladder’s lack of rubber shoes caused the ladder to slip out on the concrete floor.  He also testified that he “most likely” adjusted the ladder before climbing it, but that he did not notice until after the accident whether the “shoes” on the ladder had rubber on them.  He further testified that his employer, Waldinger, provided all the tools needed for the job, including an extension ladder which was on the roof of the truck he drove to the job.  He said he chose not to use that ladder, however, because there was already a ladder on the premises.   The trial court weighed conflicting testimony and concluded that Sears employees did not retrieve or move the ladder for Semler to use, but that Semler, himself, made an independent decision to use the ladder without any involvement by Sears.

The appellate court stated that the issue for consideration was not whether Sears had retained control over Semler’s work.  Nor did the court believe there was a legal issue of whether or not Sears had a non-delegable duty to provide a safe workplace for Semler.  In fact,  Semler did not argue that  Sears had retained control over an independent contractor who had caused him harm.  And he did not argue that Sears had vicarious liability for actions of an independent contractor.   Nor did he argue that his injuries were due to Sears’ failure to protect him form a condition or activity existing upon its land.  Instead, Semler sued Sears for direct negligence in supplying a defective ladder for his use on its premises.

The trial court found no legal basis for the claim and granted a summary judgment in favor of Sears against Semler.  On appeal, the appellate court affirmed the summary judgment, finding that, “At most, the presence of the ladder leaning against the unit could be viewed as a ‘favor to the person [Semler] doing the work.”  As such, “its availability would be nothing more than a mere ‘gratuity.”  Consequently, under the Restatement of Torts, Sec. 392, as cited by the court, Sears owed no duty to Semler.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 7, No. 5 (Sep 2005).

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