Downey v. Western Comm. College Area

trial, but that the jury was “to make nothing of that and make
no assumptions or take that in any way as to determining his
guilt or innocence in this case.”
Based on the facts, we conclude that the district court did not
err when it found that Fox knowingly and voluntarily waived
his constitutional and statutory right to be present at trial.
CONCLUSION
The district court did not err when it determined that Fox
was competent to stand trial. The district court did not err when
it concluded that Fox knowingly and voluntarily waived his
right to be present at trial. Accordingly, we affirm.
A ffirmed.
Wright, J., not participating.
mAck doWney And deborAh doWney, husbAnd And Wife , And
ferguson signs , inc., Appellees And cross -AppellAnts , v.
Western community college A reA, Which operAtes
Western nebrAskA community college ,
AppellAnt And cross -Appellee .
808 N.W.2d 839
Filed January 6, 2012. 	No. S-10-867.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
turb the factual findings of the trial court unless they are clearly wrong.
2. Judgments: Appeal and Error. When determining the sufficiency of the evi-
dence to sustain the trial court’s judgment, a court must consider the evidence in
the light most favorable to the successful party; every controverted fact must be
resolved in favor of such party, and the successful party is entitled to the benefit
of every inference that can be deduced from the evidence.
3. Statutes. Statutory interpretation presents a question of law.
4. Appeal and Error. An appellate court resolves questions of law independently of
the trial court.
5. Negligence: Liability: Contractors and Subcontractors. A nondelegable duty
rule applies when the issue is whether an owner, who has maintained possession
of the property, can be held liable for defects that arise on the premises through
the negligence of an independent contractor.
6. Negligence: Liability: Proximate Cause. A possessor of land is liable for injury
caused to a lawful visitor by a condition on the land if (1) the possessor defendant
970 	282 NeBrASkA rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

either created the condition, knew of the condition, or by the exercise of reason-
able care would have discovered the condition; (2) the defendant should have
realized the condition involved an unreasonable risk of harm to the lawful visitor;
(3) the defendant should have expected that a lawful visitor such as the plaintiff
either (a) would not discover or realize the danger or (b) would fail to protect
himself or herself against the danger; (4) the defendant failed to use reasonable
care to protect the lawful visitor against the danger; and (5) the condition was a
proximate cause of damage to the plaintiff.
7. Negligence. 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 cor-
rection 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.
8. Negligence: Invitor-Invitee: Licensee: Contractors and Subcontractors. After
Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), whether a pos-
sessor 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.
9. Negligence: Invitor-Invitee. even if a possessor of land has reason to believe
that a lawful visitor will discover a defect, it can still have a duty to take rea-
sonable measures to protect lawful visitors under circumstances showing that
it should expect that visitors will not realize the danger or will fail to protect
themselves.
10. Negligence. Whether a defendant breaches a duty is a question of fact for the
fact finder.
11. Workers’ Compensation: Contribution. Claims for contribution against employ-
ers covered by the workers’ compensation statutes are barred.
12. Workers’ Compensation: Contribution: Parties: Liability. An employer cov-
ered by workers’ compensation does not have a common liability with a third
party, which is necessary for contribution.
13. Workers’ Compensation: Statutes: Liability. Because an employer covered by
workers’ compensation has no liability in tort, a release with such an employer
is not a release with a “person liable” under Neb. rev. Stat. § 25-21,185.11
(reissue 2008).
14. Liability: Contribution. Indemnity and contribution are distinct concepts.
15. Negligence: Employer and Employee: Liability. A defendant can point to the
negligence of the employer and claim that the employer was the sole cause of the
accident. But the defendant may not reduce his or her own liability by apportion-
ing some of the fault to the employer.
16. Liability: Damages. Indemnification is available when one party is compelled to
pay money which in justice another ought to pay or has agreed to pay.
17. ____: ____. Generally, the party seeking indemnification must have been free of
any wrongdoing, and its liability is vicariously imposed.
dOWNey v. WeSTerN COmm. COLLeGe AreA 	971
Cite as 282 Neb. 970

18. Liability: Contribution: Damages. If a party seeking indemnification is inde-
pendently liable to the plaintiff, that party is limited to a claim for contribution.
19. Contribution: Words and Phrases. Contribution is defined as a sharing of
the cost of an injury as opposed to a complete shifting of the cost from one to
another, which is indemnification.
Appeal from the district Court for Scotts Bluff County:
rAndAll l. lippstreu, Judge. Affirmed in part, and in part
reversed and remanded for further proceedings.
richard A. douglas and Jerald L. Ostdiek, of douglas,
kelly, Ostdiek & Ossian, P.C., for appellant.
Steven W. Olsen and John F. Simmons, of Simmons Olsen
Law Firm, P.C., for appellee Ferguson Signs, Inc.
kyle J. Long, of The robert Pahlke Law Group, for appel-
lees mack downey and deborah downey.
heAvicAn, c.J., connolly, gerrArd, stephAn, mccormAck ,
and miller-lermAn, JJ.
connolly, J.
Like many cases arising from construction site injuries, this
appeal raises several interrelated issues. These include prem-
ises liability, the nondelegable duty doctrine, indemnification,
and the thorny issue of whether our comparative negligence
statutes allow a court to apportion liability to an employer who
is immune from suits in tort because of our workers’ compen-
sation statutes.
mack 	downey 	and 	his 	wife 	sued Western 	Community
College Area, which operates Western Nebraska Community
College (the College), after downey suffered severe injuries
from a fall that occurred while he was replacing a scoreboard
at the College. His employer, Ferguson Signs, Inc., was named
as a plaintiff in the suit to preserve a subrogation interest for
workers’ compensation benefits. After a bench trial, the court
found that the College was liable for a portion of downey’s
injuries. It also apportioned liability to downey and Ferguson
Signs. The College appeals, and the downeys and Ferguson
Signs cross-appeal.
972 	282 NeBrASkA rePOrTS

I. BACkGrOUNd
In 2003, the College requested bids to replace a scoreboard
in its gym. The bid included a requirement that the winning
bidder help the College remove the old scoreboard. The College
left the means and method of removing the existing scoreboard
to the contractor and subcontractors. The College awarded the
project to NeVCO Scoreboard Company. Ferguson Signs was
a subcontractor for the project.
The scoreboard was about 12 feet square at the top, 91⁄2 feet
square at the bottom, and 6 feet tall. The scoreboard had a
wooden platform installed about 3 feet above the metal floor of
the scoreboard. From the top of the scoreboard to the wooden
floor was about 3 to 4 feet. This platform sat at an angle
within the scoreboard. Looking at it from the top, it looked
like a diamond set in a square. This left triangular-shaped gaps
at the corners of the scoreboard where the metal floor was
exposed. The bottom of the scoreboard was about 30 feet off
the gym floor.
Although some employees of the College had previously
entered the scoreboard without the use of safety equipment,
they knew that the sheet metal floor was not a weight-bearing
surface. Still, no one at the College told downey or any of the
other contractors that the scoreboard’s floor was not weight
bearing.
downey and Ferguson Signs’ original plan to remove the
old scoreboard was to simply lower the scoreboard to the floor.
But the plan changed because there was no lift system in place
that would allow them to lower the scoreboard. Ferguson Signs
discussed the need for a new plan with a maintenance worker
for the College. They agreed that Ferguson Signs would have
to weld a new plate to the gym ceiling to allow an attached
chain to lower the scoreboard. Although there was a discus-
sion about hiring another subcontractor, the owner of Ferguson
Signs decided that downey could do the necessary welding.
The welding point was to be on the ceiling directly above the
middle of the scoreboard, which would mean that downey
would have to enter the scoreboard to do the welding. despite
at least one employee of the College knowing that one of the
subcontractors would have to enter the scoreboard to remove
dOWNey v. WeSTerN COmm. COLLeGe AreA 	973
Cite as 282 Neb. 970

it, the College and its employees failed to warn downey or
Ferguson Signs of the potential danger.
Before downey’s fall, the owner of Ferguson Signs and
downey had climbed the scaffolding and looked into the score-
board to try to find a way to lower it. Neither of them, however,
ever entered the scoreboard. downey testified that he could
not see how the metal floor was attached to the scoreboard.
According to downey, the metal could have been weight bear-
ing depending on how it was attached.
A custodian working for the College saw downey’s fall. He
stated that downey climbed the scaffolding next to the score-
board. Then he put one leg over, swung the other leg over, and
then immediately fell through the bottom of the scoreboard to
the floor 30 feet below. He landed headfirst and suffered seri-
ous injuries.
downey 	received 	workers’ 	compensation 	benefits 	from
Ferguson Signs. Then, downey and his wife sued the College.
Ferguson Signs was named as a plaintiff because it had paid
workers’ compensation benefits to downey and wished to pre-
serve its subrogation interest. downey alleged that the College
was negligent as follows:
• failing to warn him of the false floor;
• failing to provide safe access;
• failing to provide fall protection;
• failing to provide anchor points for downey to tie onto; and
• failing to provide reasonably safe premises.
downey also asserted a premises liability claim against the
College.
In its answer, the College alleged that it was not in control of
the construction site when the accident occurred. The College
also argued that the condition of the scoreboard was open and
obvious. Finally, the College argued that the plaintiffs had been
contributorily negligent to the extent that it should bar recovery
for downey.
1. triAl on liAbility
The court determined that the College had breached a non-
delegable duty arising from its control of the worksite. This
duty required the College to provide downey a safe place to
work. To determine whether this duty was breached, the court
974 	282 NeBrASkA rePOrTS

applied the test for premises liability we laid out in Herrera
v. Fleming Cos.1 and subsequent cases. The court ultimately
found the College liable.
According to the court, Ferguson Signs and downey were
also negligent. downey was negligent in entering the score-
board without first determining whether the metal floor would
support his weight and in failing to use safety equipment and
proper fall protection equipment.
The court concluded that Ferguson Signs was negligent in
several ways:
• failing 	to 	comply 	with 	Occupational 	Safety 	and 	Health
Administration (OSHA) regulations;
• failing to determine whether surfaces on which its employees
would be working could support their weight; and
• failing to provide proper fall protection equipment.
In sum, the court ruled that Ferguson Signs had a duty to
protect downey from injury and that it failed to discharge
that duty.
The court found that the negligence of the College, downey,
and Ferguson Signs all combined to produce a single injury.
The court determined that downey was 33-percent negligent,
Ferguson Signs was 33.5-percent negligent, and the College
was 33.5-percent negligent.
2. triAl on dAmAges
The court found that downey’s economic damages totaled
$1,058,950.50, while his noneconomic damages were $500,000.
It found that downey’s wife had sustained noneconomic dam-
ages of $200,000.
As part of its apportionment of damages, the court then
confronted an issue involving the interplay of Nebraska’s com-
parative negligence rule and its workers’ compensation stat-
ute. The court stated in its order that the issue is whether a
“workers’ compensation employer’s negligence can be consid-
ered for purposes of comparative negligence and apportion-
ment of damages against the third party tortfeasor.” The court
concluded that it could be. It ruled that an employer who has
1 Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	975
Cite as 282 Neb. 970

paid workers’ compensation benefits is a “‘released person’”
under Neb. rev. Stat. § 25-21,185.11(1) (reissue 2008) and
that Ferguson Signs’ share of the liability had to be subtracted
from downey’s recovery from the College.
The court rejected the College’s claim for indemnification
and contribution. The court determined that any claim for con-
tribution would be barred by the exclusivity provision of the
workers’ compensation laws. And the court also rejected any
claims for indemnification. It found that there was no express
contractual term providing for such indemnification and that
there was no special relationship that would give rise to an
implied indemnification.
II. ASSIGNmeNTS OF errOr
The College assigns, restated and consolidated, that the dis-
trict court erred in
(1) concluding that the College was liable under a premises
liability theory;
(2) not finding that downey’s and Ferguson Signs’ negli-
gence and failure to comply with OSHA regulations were the
proximate cause of the accident;
(3) not combining downey’s and Ferguson Signs’ negligence
for comparative negligence purposes;
(4) not reducing downey’s economic damages by Ferguson
Signs’ share of the allocated negligence; and
(5) not concluding that Ferguson Signs owed an indepen-
dent duty to the College that created a special relationship that
would allow for indemnification.
On cross-appeal, the downeys and Ferguson Signs assign
that the district court erred in
(1) concluding that Ferguson Signs was a “released person”
under § 25-21,185.11; and
(2) apportioning negligence to Ferguson Signs and reducing
the downeys’ recovery as a result.
III. STANdArd OF reVIeW
[1,2] In actions brought under the Political Subdivisions
Tort Claims Act,2 an appellate court will not disturb the factual
2 Neb. rev. Stat. § 13-901 et seq. (reissue 1997 & Cum. Supp. 2002).
976 	282 NeBrASkA rePOrTS

findings of the trial court unless they are clearly wrong.3 When
determining the sufficiency of the evidence to sustain the trial
court’s judgment, a court must consider the evidence in the
light most favorable to the successful party; every controverted
fact must be resolved in favor of such party, and the successful
party is entitled to the benefit of every inference that can be
deduced from the evidence.4
[3,4] Statutory interpretation presents a question of law.5 An
appellate court resolves questions of law independently of the
trial court.6
IV. ANALySIS
1. is the college liAble under
A premises liAbility theory?
The trial court concluded that the College had a nondelega-
ble duty to provide downey with a safe place to work. It deter-
mined that this nondelegable duty arose from the College’s
“‘possession and control of premises.’”7 To determine whether
the College had breached this nondelegable duty, the court
applied our test for premises liability to the College. But the
nondelegable duty rule does not apply here.
[5] A nondelegable duty rule applies when the issue is
whether an owner, who has maintained possession of the prop-
erty, can be held liable for defects that arise on the premises
through the negligence of an independent contractor.8 This is a
type of vicarious liability. In contrast, the alleged defects here
existed before the College invited a contractor to the property
for repairs. So the College’s duty to provide downey with a
safe place to work was the duty that a possessor of property
3 See Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).
4 See id.
5 Shepherd v. Chambers, 281 Neb. 57, 794 N.W.2d 678 (2011).
6 See id.
7 See Eastlick v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628
(2007).
8 See, e.g., Parrish v. Omaha Pub. Power Dist., 242 Neb. 783, 496 N.W.2d
902 (1993); Simon v. Omaha P. P. Dist., 189 Neb. 183, 202 N.W.2d 157
(1972). See, also, restatement (Second) of Torts § 422 (1965).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	977
Cite as 282 Neb. 970

owes to a lawful visitor. And thus, as we explain later, whether
the College maintained possession of the premises during
repairs is irrelevant to whether it breached its direct duty to
downey. In short, the nondelegable duty rule did not apply
here. But the court correctly applied premises liability elements
to decide the issue.
The district court ultimately concluded that the College was
liable to downey on a theory of premises liability. The College
asserts that this was error. It argues (1) that it was not in con-
trol of the worksite, (2) that the floor of the scoreboard did not
constitute a latent defect, (3) that the condition was open and
obvious, and (4) that it did not breach its duty.
[6] A possessor of land is liable for injury caused to a lawful
visitor by a condition on the land if (1) the possessor defend-
ant either created the condition, knew of the condition, or by
the exercise of reasonable care would have discovered the
condition; (2) the defendant should have realized the condition
involved an unreasonable risk of harm to the lawful visitor; (3)
the defendant should have expected that a lawful visitor such as
the plaintiff either (a) would not discover or realize the danger
or (b) would fail to protect himself or herself against the dan-
ger; (4) the defendant failed to use reasonable care to protect
the lawful visitor against the danger; and (5) the condition was
a proximate cause of damage to the plaintiff.9
[7] 	Several 	factors 	relate 	to 	whether 	a 	possessor 	has
breached a duty to use reasonable care.10 These include (1) the
foreseeability or possibility of harm; (2) the purpose for which
the entrant entered the premises; (3) the time, manner, and cir-
cumstances 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
9 Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008);
Range v. Abbott Sports Complex, 269 Neb. 281, 691 N.W.2d 525 (2005);
Aguallo v. City of Scottsbluff, 267 Neb. 801, 678 N.W.2d 82 (2004);
Herrera, supra note 1.
10 Aguallo, supra note 9; Herrera, supra note 1.
978 	282 NeBrASkA rePOrTS

community in terms of inconvenience or cost in providing
adequate protection.11
[8] The district court reasoned that the test for liability was
modified for independent contractors by Anderson v. Nashua
Corp.12 The court concluded that a landowner’s duty to inde-
pendent contractors was limited to latent defects of which the
independent contractor or his employees had no knowledge.
But we decided Anderson in 1994. And in 1996, in Heins
v. Webster County,13 we abolished the distinction between
invitees and licensees. After Heins, 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.
As noted, one of the factors is the purpose for which the visi-
tor entered the premises. Obviously, because we abolished the
distinction between licensees and invitees, the relevant inquiry
is not whether the visitor entered for his or her own purpose or
for the possessor’s purpose.14 And 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.15
But a possessor of property is not liable for injury to an
independent contractor’s employee caused by a dangerous con-
dition that arose out of the contractor’s work, as distinguished
from a condition of the property or a structure on the property.16
In Anderson, we recognized this rule. But relying on Plock v.
Crossroads Joint Venture,17 we also stated that a possessor’s
11 Aguallo, supra note 9, quoting Heins v. Webster County, 250 Neb. 750,
552 N.W.2d 51 (1996).
12 Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
13 See Heins, supra note 11.
14 See, generally, id.
15 marc m. Schneier, Construction Accident Law 63 (1999).
16 See, e.g., Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327
(2004); Anderson, supra note 12. See, also, Schneier, supra note 15.
17 Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991),
overruled on other grounds, Hynes v. Hogan, 251 Neb. 404, 558 N.W.2d
35 (1997).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	979
Cite as 282 Neb. 970

duty to independent contractors was limited to latent defects
that the independent contractor or his employees do not have
knowledge of. This rule is no longer valid. To the extent that
Plock and Anderson hold that a modified duty applies to inde-
pendent contractors, we disapprove.
(a) Control of the Premises
The College contends that the court incorrectly concluded
that it was in control of the premises. As stated, whether the
College maintained control of the premises is irrelevant to its
liability on the facts of this case. It is true that premises liabil-
ity often depends on an owner’s possession of the property
when the injury occurred.18 But here, the College’s alleged
negligence is its breach of a duty to protect downey from a
preexisting danger. So the question is whether it had exercised
reasonable care to protect downey when it turned the premises
over to Ferguson Signs.19 Because the court’s determination
of possession during repairs was unnecessary here, we do not
consider whether it correctly ruled on the issue.
(b) Should the College Have expected That downey
Would Not discover the defect?
The College next argues that the court erred in finding that
the non-weight-bearing nature of the scoreboard’s floor was a
defect that downey would not discover. It referred to this as a
“latent defect.” Similarly, the College argues that the court erred
in failing to find that the defect was not open and obvious.
This court has adopted the restatement (Second) of Torts
§ 343A,20 which states: “A possessor of land is not liable to
his invitees for physical harm caused to them by any activity
or condition on the land whose danger is known or obvious to
them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.”
18 See, e.g., Range, supra note 9.
19 See, Tillman v. Great Lakes Steel Corp., 17 F. Supp. 2d 672 (e.d. mich.
1998); Schneier, supra note 15.
20 restatement, supra note 8, § 343A at 218. See John v. OO (Infinity) S
Development Co., 234 Neb. 190, 450 N.W.2d 199 (1990).
980 	282 NeBrASkA rePOrTS

[9] Although the court did not explicitly address the open
and obvious defense,21 this rule controls both of the College’s
arguments. That is, even if a possessor of land has reason
to believe that a lawful visitor will discover a defect, it can
still have a duty to take reasonable measures to protect law-
ful visitors under circumstances showing that it should expect
that visitors will not realize the danger or will fail to protect
themselves.22 We expressed this rule as a factor a court must
consider under Heins.
The court found that lawful visitors such as downey might
not recognize the danger, because the scoreboard’s floor was
not weight bearing. This was a factual finding of the court.23
But, the College argues that downey saw the floor of the
scoreboard from the scaffolding as he was preparing to enter.
Further, it points out downey’s testimony that he could see that
the wooden floor did not cover the entirety of the scoreboard—
namely, that there were gaps at the corners. It also highlights
that downey admitted he could not know whether the floor was
weight bearing. Finally, it cites testimony from Ferguson Signs
that most attachments similar to the floor of the scoreboard in
this case are not weight bearing. But downey claims that the
College is either misrepresenting Ferguson Signs’ testimony
regarding this final statement or removing it from context.
downey concedes that both he and Ferguson Signs inspected
the scoreboard before they began work. downey argues, how-
ever, that they were not able to see how the metal floor was
fastened to the rest of the scoreboard because they were not
able to get close enough. downey claims that, in his experi-
ence, how the metal floors were attached to the scoreboard
could determine whether it was weight bearing.
At best, the evidence is in conflict. But we do not resolve
such conflicts. The court found that downey would not realize
the danger or would fail to protect himself from it. The court
was not clearly erroneous in finding that downey would not
21 See John, supra note 20.
22 See restatement, supra note 8, § 343A.
23 See Aguallo, supra note 9.
dOWNey v. WeSTerN COmm. COLLeGe AreA 	981
Cite as 282 Neb. 970

realize the danger or that he would fail to protect himself from
the danger.
(c) Open and Obvious Condition
As mentioned, the rule we discussed in the previous section
controls both of the College’s arguments. Indeed, the court’s
finding that the defect was not open and obvious is implicit in
the court’s finding that downey either would not discover or
realize the danger or would fail to protect himself or herself
against the danger. The court could not have found that downey
would have failed to recognize the danger, while at the same
time holding that such a danger is open and obvious. Because
we concluded that the court’s factual finding that downey
would not recognize the danger was not clearly erroneous, we
also conclude that the court’s implicit finding that the condition
was not open and obvious is also not clearly erroneous.
(d) did the College Breach Its duty
of reasonable Care?
Finally, the College argues that it did not breach its duty. It
argues that it acted with reasonable care by granting downey
and Ferguson Signs control of the site, allowing downey to
observe the interior of the scoreboard, and restricting access to
the scoreboard to only Ferguson Signs and its employees.
As previously stated, the following factors are relevant in
determining whether the College breached its duty. 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 inspec-
tion, repair, or warning; (6) the opportunity and ease of repair
or correction of giving the warning; and (7) the burden on the
land occupier and/or community in terms of inconvenience or
cost in providing adequate protection.24
[10] Although the court did not expressly weigh these fac-
tors, it is uncontested that the College gave no warning to
24 Aguallo, supra note 9, quoting Heins, supra note 11.
982 	282 NeBrASkA rePOrTS

either downey or Ferguson Signs. It is this failure to warn that
was the basis of the College’s liability. Ultimately, whether
a defendant breaches a duty is a question of fact for the fact
finder.25 And we review it for clear error. We find no clear error
in the court’s finding.
2. the court erred in A pportioning
negligence to ferguson signs
We next consider the downeys’ and Ferguson Signs’ cross-
appeals. We do so at this point because our resolution of this
issue ultimately affects our resolution of some of the College’s
other assignments of error. In their cross-appeals, both the
downeys and Ferguson Signs argue that the court erred in
apportioning negligence to Ferguson Signs. They argue that
reducing the College’s liability by assigning negligence to
Ferguson Signs would circumvent the rule that a third-party
tort-feasor is not entitled to contribution from the employer.
The question presented is whether Ferguson Signs is a
“released person” within the meaning of § 25-21,185.11. If it
is, then the court correctly reduced downey’s recovery from
the College by Ferguson Signs’ share of the obligation.
Section 25-21,185.11 provides in part:
(1) A release, covenant not to sue, or similar agree-
ment entered into by a claimant and a person liable shall
discharge that person from all liability to the claimant
but shall not discharge any other persons liable upon the
same claim unless it so provides. The claim of the claim-
ant against other persons shall be reduced by the amount
of the released person’s share of the obligation as deter-
mined by the trier of fact.
We conclude that Ferguson Signs is not a “released person”
under the statute.
[11,12] Section 25-21,185.11 refers to a release entered into
by the claimant with a “person liable.” But Ferguson Signs is
not such a person because it was never liable in tort for the
25 See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	983
Cite as 282 Neb. 970

injury. In Vangreen v. Interstate Machinery & Supply Co.26 and
Harsh International v. Monfort Indus.,27 we held that claims
for contribution against employers covered by the workers’
compensation statutes were barred. We based this result, in
part, upon the theory that an employer covered by workers’
compensation does not have a common liability with the third
party, which is necessary for contribution.28
In Vangreen and Harsh International, we noted that our rule
denying contribution was in line with the majority rule. “The
great majority of jurisdictions have held that the employer
whose concurring negligence contributed to the employee’s
injury cannot be sued or joined by the third party as a joint
tortfeasor, whether under contribution statutes or at common
law.”29 And arguments that a state’s adoption of comparative
negligence altered this rule “have been consistently unsuc-
cessful.”30 “There is nothing in the embracing of comparative
negligence that implies any intention to alter the fundamental
principle of exclusiveness of compensation liability.”31 Third-
party defendants, such as the College, “are usually unable
to raise the concurrent negligence of plaintiff-employers as
a defense.”32 Because employers are immune from lawsuits
by their employees, most courts are unwilling to reduce the
liability of third-party tort-feasors by amounts not recoverable
by the employees themselves.33 Our research reveals the same.
26 Vangreen v. Interstate Machinery & Supply Co., 197 Neb. 29, 246 N.W.2d
652 (1976).
27 Harsh International v. Monfort Indus., 266 Neb. 82, 662 N.W.2d 574
(2003).
28 See Estate of Powell v. Montange, 277 Neb. 846, 765 N.W.2d 496 (2009).
29 7 Arthur Larson & Lex k. Larson, Larson’s Workers’ Compensation Law
§ 121.02 at 121-11 to 121-12 (2009).
30 Id. at 121-12.
31 Id.
32 2 mark A. rothstein et al., employment Law § 7.38 at 428 (4th ed.
2009).
33 Id.
984 	282 NeBrASkA rePOrTS

While there is authority to the contrary,34 most courts do not
allow a third-party tort-feasor to seek contribution from or
argue the comparative negligence of the employer.35
[13] We agree with the majority rule, which is consistent
with our decisions in Vangreen and Harsh International. To
allow a court to apportion tort liability to an employer who,
because of workers’ compensation, is immune from tort liabil-
ity is inconsistent with the rationale of these decisions. Thus,
because an employer covered by workers’ compensation has
no liability in tort,36 a release with such an employer is not a
release with a “person liable” under § 25-21,185.11.
Admittedly, federal district courts in Nebraska have decided
this question differently. In Windom v. FM Industries, Inc.,37 the
court refused to dismiss a cross-claim by a third party against
a plaintiff that sought to reduce the plaintiff’s recovery by
the plaintiff’s employer’s share of the negligence. In its deci-
sion, the court in Windom distinguished between actions for
34 See, Barnett v. Eagle Helicopters, Inc., 123 Idaho 361, 848 P.2d 419
(1993); Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.e.2d
1023, 166 Ill. dec. 1 (1991); Lambertson v. Cincinnati Corp., 312 minn.
114, 257 N.W.2d 679 (1977); Lovette v. Lloyd, 236 N.C. 663, 73 S.e.2d
886 (1953).
35 See, Muller v. Gateway Building Systems, Inc., 743 F. Supp. 2d 1096
(d.S.d. 2010); Arctic Structures, Inc. v. Wedmore, 605 P.2d 426 (Alaska
1979); Durniak v. August Winter and Sons, Inc., 222 Conn. 775, 610
A.2d 1277 (1992); Hanagami v. China Airlines, Ltd., 67 Haw. 357, 688
P.2d 1139 (1984); Thompson v. Stearns Chemical Corp., 345 N.W.2d 131
(Iowa 1984); C & K Lord v. Carter, 74 md. App. 68, 536 A.2d 699 (1988);
Van Hook v Harris Corp, 136 mich. App. 310, 356 N.W.2d 18 (1984);
Sweet v. Herman Bros., Inc., 688 S.W.2d 31 (mo. App. 1985); Cordier
v. Stetson-Ross, Inc., 184 mont. 502, 604 P.2d 86 (1979); Bilodeau v.
Oliver Stores, Inc., 116 N.H. 83, 352 A.2d 741 (1976); Schweizer v. Elox
Div. of Colt Industries, 70 N.J. 280, 359 A.2d 857 (1976); Layman v.
Braunshweigische Maschinenbauanstalt, 343 N.W.2d 334 (N.d. 1983);
Cacchillo v. H. Leach Machinery Co., 111 r.I. 593, 305 A.2d 541 (1973);
Hagemann v. NJS Engineering, Inc., 632 N.W.2d 840 (S.d. 2001); Troup
v. Fischer Steel Corp., 236 S.W.3d 143 (Tenn. 2007); Varela v. American
Petrofina Co. of Texas, 658 S.W.2d 561 (Tex. 1983).
36 See 7 Larson & Larson, supra note 29.
37 Windom v. FM Industries, Inc., No. 8:00CV580, 2002 WL 378525 (d.
Neb. mar. 12, 2002) (unpublished opinion).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	985
Cite as 282 Neb. 970

indemnity or contribution and a claim that sought “‘only allo-
cation or, in the alternative, a reduction of Plaintiff’s recovery
to the extent [the employer] is apportioned fault at trial.’”38 The
court also relied on a comment to the Nebraska jury instruc-
tions that predicted that an employer’s negligence would be
taken into account in an action because it is likely a “released
person” within the meaning of § 25-21,185.11.39 Finally, the
court also took into consideration our decisions allowing a
claim-based express contractual indemnification to be asserted
against the employer40 and a Nebraska Court of Appeals’ deci-
sion that a third party can argue the employer was the sole
cause of the employee’s injury.41
[14] We disagree with the federal district court’s analy-
sis. We do not view the attempt to apportion liability to an
employer immune from tort liability as meaningfully different
from seeking contribution from an immune employer. In both
cases, the third party seeks to limit its exposure based on the
fault of the employer. But our decisions in Vangreen and Harsh
International relied in part on the rationale that an employer
has no such fault. To allow negligence to be imputed to an
immune employer is inconsistent with our earlier decisions.
Further, the district court’s reliance on our decision in Union
Pacific RR. Co. v. Kaiser Ag. Chem. Co.42 was misplaced as
that case involved an express contract for indemnity. While
we have recognized a few situations in which indemnity will
be allowed against an immune employer (including when an
express contractual provision calls for indemnity),43 we stress
that indemnity and contribution are distinct concepts.44 Our
38 Id. at *2.
39 Id.
40 See Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425
N.W.2d 872 (1988).
41 See Steele v. Encore Mfg. Co., 7 Neb. App. 1, 579 N.W.2d 563 (1998).
42 Union Pacific RR. Co., supra note 40.
43 See Harsh International, supra note 27.
44 See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103
(2009).
986 	282 NeBrASkA rePOrTS

decision allowing indemnity based upon an express contrac-
tual provision is distinguishable from claims for contribution
or to diminish a plaintiff’s recovery because of an employer’s
comparative negligence. As we explain shortly, those entitled
to indemnity are generally free from personal fault while those
entitled to contribution are not.
Finally, the federal district court also cited Steele v. Encore
Mfg. Co.45 in its analysis. We view that case as distinguishable
from the present case. In Steele, the plaintiff sued the defendant
for injuries he suffered while working on an air compressor
for the defendant. The plaintiff’s employer was joined as a
defendant solely for subrogation purposes. The district court
instructed the jury that it could not consider the conduct of the
plaintiff’s employer. After noting that the defendant was not
seeking contribution or indemnification from the employer, the
Court of Appeals held that the court should have allowed the
jury to consider whether the employer’s conduct was the sole
proximate cause of the plaintiff’s injuries. If the employer’s
conduct was the sole proximate cause, then the defendant could
not have caused the injury, which would negate the plaintiff’s
prima facie negligence case against that defendant. In other
words, the defendant was not arguing that the employer is
jointly liable with it, the defendant was arguing that it is not
liable at all.
[15] So, in the light of Steele and our decision today, a
defendant can point to the negligence of the employer and
claim that the employer was the sole cause of the accident. But
the defendant may not reduce his or her own liability by appor-
tioning some of the fault to the employer. We note that this
approach is consistent with that of other jurisdictions.46
45 Steele, supra note 41.
46 Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338
(1972); Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 946 A.2d
839 (2008); Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821 (del.
1995); Chumbley v. Dreis and Krump Mfg. Co., 521 N.W.2d 192 (Iowa
App. 1993); Troup, supra note 35; Dresser Industries, Inc. v. Lee, 880
S.W.2d 750 (Tex. 1993).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	987
Cite as 282 Neb. 970

Finally, the legislative history of the bills that eventually
established comparative negligence in Nebraska unambiguously
supports our conclusion. The legislative history indicates that
the Legislature sought to leave in place existing law. This his-
tory reflects the Legislature’s understanding that “unless an
employer is the sole . . . cause of the accident, . . . the employ-
er’s negligence, if any, is ignored.”47 And this is the result we
reach today.
As 	mentioned, 	our 	rationale 	in 	Vangreen 	and 	Harsh
International is controlling—an employer does not have shared
liability with a third party. So, Ferguson Signs was not a
released party within the meaning of § 25-21,185.11 and the
court erred in apportioning fault to it. Thus, we remand the
cause to the court to apportion Ferguson Signs’ share of the
negligence between the College and downey.
3. proximAte cAuse
The College’s next assignments of error relate to proximate
cause. The College argues that the failure of downey and
Ferguson Signs to comply with OSHA regulations was the
proximate cause of downey’s injuries. This assignment of error
is confusing in that the court did apportion a share of liabil-
ity to both downey and Ferguson Signs, which necessarily
includes a finding that their negligence was a proximate cause
of the injury.
We do not read the College’s brief as arguing that its neg-
ligence was not a proximate cause of the accident. Nor do we
view the College as raising an argument that the others’ neg-
ligence was a supervening cause that would have absolved the
College of liability. At best, we view this assignment of error
as arguing that downey and Ferguson Signs’ share of the neg-
ligence either equaled or surpassed that of the College’s, which
would have prevented downey from recovering.48
We have already decided that the court cannot apportion
liability to Ferguson Signs. Based on that decision, remand is
47 Summary Analysis, L.B. 88, Judiciary Committee, 92d Leg., 1st Sess. 3
(Jan. 23, 1991).
48 See Neb. rev. Stat. § 25-21,185.09 (reissue 2008).
988 	282 NeBrASkA rePOrTS

necessary to apportion that share of the negligence to the other
remaining parties. We leave to the court to decide whether
downey’s apportioned fault is sufficient to bar recovery.
4. implied indemnificAtion
The College next argues that Ferguson Signs owes the
College indemnification for any damages it is obligated to pay
downey because Ferguson Signs owes an independent duty to
the College. The College does not claim that any contractual
provision for indemnification exists. The College argues that
because the indemnification is based upon an independent
duty and does not arise from the injury per se, such indem-
nification would not be barred by the exclusivity provision
of workers’ compensation law. But because the College was
liable in its own right, a claim for indemnity is inappropriate
in this case.
[16-19] Under Nebraska law, indemnification is available
when one party is compelled to pay money which in justice
another ought to pay or has agreed to pay.49 Generally, the
party seeking indemnification must have been free of any
wrongdoing, and its liability is vicariously imposed.50 If a party
seeking indemnification is independently liable to the plaintiff,
that party is limited to a claim for contribution.51 Contribution
is defined as a sharing of the cost of an injury as opposed to
a complete shifting of the cost from one to another, which is
indemnification.52 In sum, “[o]ne who is him[self] or herself
at fault is not due indemnity, because liability for indemnity
exists only when the party seeking indemnity . . . is free of
fault and has discharged a debt that should be paid wholly by
the indemnitor.”53
As we explained earlier, the College was directly liable, not
vicariously liable. It was independently liable based on its own
49 Kuhn, supra note 44.
50 Warner v. Reagan Buick, 240 Neb. 668, 483 N.W.2d 764 (1992).
51 Id.
52 Kuhn, supra note 44; Estate of Powell, supra note 28; Cerny v. Todco
Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
53 41 Am. Jur. 2d Indemnity § 21 at 439 (2005).
dOWNey v. WeSTerN COmm. COLLeGe AreA 	989
Cite as 282 Neb. 970

acts and omissions, not those of Ferguson Signs or NeVCO
Scoreboard Company. The College was not free from any
wrongdoing. It thus cannot claim indemnity.
V. CONCLUSION
Because of our decision, other issues that the parties assigned
are no longer relevant. We conclude that the court did not err
in finding the College liable. Further, it correctly denied the
College’s claim for indemnity. The court, however, did err in
apportioning negligence to Ferguson Signs. On remand, the
court should reapportion Ferguson Signs’ share of the neg-
ligence to the remaining parties—downey and the College.
Accordingly, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
Wright, J., not participating.
stAte of nebrAskA, Appellee , v.
chAd normAn, AppellAnt.
808 N.W.2d 48
Filed January 6, 2012. 	No. S-10-888.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the court below.
4. Pretrial Procedure: Appeal and Error. The trial court has broad discretion in
granting discovery requests and errs only when it abuses its discretion.
5. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is generally not appropriate for consideration
on appeal.
6. Criminal Law: Convicted Sex Offender: Notice. Before determining that a
defendant convicted of a crime not sexual in nature is subject to sex offender
990 	282 NeBrASkA rePOrTS