Ross v. Carson Constr. - 106 Nev. 885, 803 P.2d 657 (1990)

Rule:

Nev. Rev. Stat. § 455.010 provides: Erection of fence or other safeguard around excavation, hole or shaft required. Any person or persons, company or corporation, who shall dig, sink or excavate, or cause the same to be done, or being the owner or owners, or in the possession under any lease or contract, of any shaft, excavation or hole, whether used for mining or otherwise, or whether dug, sunk or excavated for the purpose of mining, to obtain water, or for any other purpose, within this state, shall, during the time they may be employed in digging, sinking or excavating, or after they may have ceased work upon or abandoned the same, erect, or cause to be erected, good and substantial fences or other safeguards, and keep the same in good repair, around such works or shafts, sufficient to guard securely against danger to persons and animals from falling into such shafts or excavations.

Facts:

The trespasser entered a construction site on private land to inquire about employment. While driving on the private land, the trespasser drove his vehicle into a six foot wide, three foot deep, trench, and suffered serious injuries including a broken neck. The trespasser sued for negligence against the construction companies that were working on the site. The trial court found against the trespasser, holding that the companies had no duty of care to the trespasser, because the excavation was temporary. The trespasser appealed the ruling, arguing that Nev. Rev. Stat. § 455.010 imposed a duty on the construction companies to protect him. 

Issue:

Did the trial court err in ruling that the construction companies have no duty of care to the trespasser?

Answer:

Yes.

Conclusion:

The court held that § 455.010 required all excavations to have a fence or other safeguard, whether the excavation was permanent or temporary in nature. The court also determined that because the lower court erred in finding against the trespasser, it was not required to reach the issue of the trespasser's status under the common law landowner liability classifications. The court remanded to the lower court for further proceedings.