S-13-0039, Guadalupe Gaytan, Special Administrator of the Estate of Jose Sanchez Dominguez, Deceased v. Wal-Mart, Wal-Mart Stores, Inc., Wal-Mart Real Estate Business, ABC Corporation, Graham Construction, Inc., and D&BR Building Systems, Inc.
Douglas County, Judge Leigh Ann Retelsdorf
Attorenys: Ronald J. Palagi and Joseph B. Muller (The Law Offices of Ronald J. Palagi, PC, LLO) for appellant; Jerald L. Rauterkus and Adam White (Erickson Sederstron, PC) for appellees.
Civil: Wrongful death
Proceedings Below: The district court sustained the Motion for Summary Judgment and concluded that there was no duty owed by either Wal-Mart or Graham Construction. In subsequent orders, all other claims involved in the case were dismissed. Subsequently, the district court denied Guadalupe Gaytan’s Motion to Alter or Amend Judgment because the additional evidence that Gaytan sought to introduce was not “newly discovered” and did not create any material issue of fact.
Issues on Appeal: Appellant assigns as error (1) the district court’s finding as a matter of law that Wal-Mart and Graham did not retain control over the work being done by the subcontractor and the premises, (2) the district court’s finding as a matter of law that Wal-Mart and Graham did not have a non-delegable duty imposed by statute or rule, (3) the district court’s finding as a matter of law that the work being done did not present peculiar risk of harm, (4) the district court’s use of inaccurate facts, and (5) the district court’s abuse of discretion in ruling on the summary judgment prior to the conclusion of discovery and in refusing to reconsider its decision after additional evidence had been obtained.