Acuity, A Mut. Ins. Co. v. Kraus-Anderson Constr. Co.
| Docket Number | A23-0318 |
| Decision Date | 18 September 2023 |
| Parties | Acuity, A Mutual Insurance Company, Respondent, v. Kraus-Anderson Construction Company, Appellant, v. Borton Construction, Inc., Respondent. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c)
Winona County District Court File No. 85-CV-21-678
Hugh E. Mulligan, Nicholas L. Klehr, Klehr & Mulligan, PLLC Edina, Minnesota (for respondent Acuity, A Mutual Insurance Company).
Mark R. Bradford, Elizabeth J. Roff, Bradford, Andresen, Norrie & Camarotto, Bloomington, Minnesota (for appellant).
Mark A. Smith, Wrobel & Smith, PLLP, St. Paul, Minnesota (for respondent Borton Construction, Inc.).
Considered and decided by Slieter, Presiding Judge; Larkin Judge; and Hooten, Judge.
Appellant-contractor appeals from the denial of its motion for judgment as a matter of law after a jury trial on respondent-insurer's negligence claim in a subrogation action to recover amounts paid in workers' compensation benefits. Appellant-contractor argues it did not owe a duty of care to the injured worker and asserts respondent-insurer failed to carry its burden to prove the damages awarded were reasonable and necessary. Because a reasonable jury could conclude that appellant-contractor had constructive knowledge of the dangerous condition and the damages awarded were not manifestly against the entire evidence, we affirm.
Winona State University hired appellant-contractor Kraus-Anderson Construction Company (Kraus-Anderson) as a general contractor for a three-building construction and renovation project on its campus. The university also hired respondent Borton Construction Inc. (Borton) to build a grab-and-go food court on the second floor of Wabasha Hall. Kraus-Anderson performed demolition and renovation work on Wabasha Hall in addition to maintaining the construction site for the project as a whole.
On March 15, 2019, James Liss, a construction superintendent for Borton working on the Wabasha Hall food court project, was injured while traversing an area outside of the building. Liss fell, tore his rotator cuff, and required surgery to repair it. Respondentinsurer Acuity, A Mutual Insurance Company (Acuity) provided a workers' compensation benefits insurance policy for Borton and made payments to Liss for medical expenses and lost wages pursuant to that policy.
In April 2021, Acuity asserted a subrogation claim against Kraus-Anderson to recover the workers' compensation benefits paid to Liss, alleging Kraus-Anderson was negligent in maintaining a safe premises and caused Liss's injuries.[1] Kraus-Anderson denied liability and filed a third-party complaint against Borton for contribution and indemnity. The district court held a three-day jury trial.
Liss testified that he worked on the construction site maintained by Kraus-Anderson starting in January of 2019 and throughout his time working there, he entered and exited Wabasha Hall from the same door. To enter the building from the street, Liss would step over a curb, walk over a grassy boulevard, walk onto a concrete sidewalk, and enter the door. Liss testified that on the boulevard he would walk over a wood pallet lying on top of the grass that was between two dumpsters and that he cumulatively walked over the pallet 50 to 60 times without any issue until March 15. He explained he did not know who placed the pallet on the ground to serve as a walkway but noted that Kraus-Anderson took care of the area in the winter by shoveling the concrete near the door and placing salt on the ground.
Liss testified that on the morning of March 15, he entered Wabasha Hall from the street by traversing the pallet over the grass. It did not move or feel unstable. After spending about 30 minutes inside, Liss received a call from a delivery driver who needed directions to the construction site. Liss decided to leave the building to get the driver. As Liss exited Wabasha Hall, he testified that a Kraus-Anderson employee was walking in front of him over the pallet on the ground. Liss testified that, as the employee reached the end of the pallet, it "popped upwards" when Liss attempted to step on it. He fell to the ground and landed on his shoulder. Liss and the employee discovered that someone had moved the pallet so three feet of its length extended past the curb, which caused it to cantilever. Later, Liss reported the fall to two Kraus-Anderson employees and his own boss. On cross-examination, Liss agreed that although the pallet was in the open and its condition was "obvious," he did not think it was dangerous.
An Acuity workers' compensation claim representative testified to a list of payments made by Acuity to Liss and the providers of his medical care. Under the policy held by Borton, Acuity was required to pay benefits for Liss's injury regardless of fault. Liss's medical records from Winona Health Services and Gunderson Heath System were received into evidence. A Winona Health employee testified that Acuity paid Winona Health $84,585.67 for Liss's medical care. A Gunderson Health employee testified that Gunderson Health System billed Acuity $7,492.50 for Liss's medical care.
Kraus-Anderson's project superintendent testified that Kraus-Anderson made it a point to ensure all workers on the construction site had safe access to their work area. The project superintendent testified he entered and exited Wabasha Hall at least twice each day to monitor the building and never saw a pallet or plywood on the boulevard for workers to walk on. Rather, he saw people walk across the grass to get into the building. The project superintendent testified he investigated where Liss fell after he was informed of the incident and did not see a pallet. The project superintendent agreed that pallets or plywood in that location would be dangerous because they can be moved over the curb and testified that he would have had the pallet or piece of wood removed if he was notified it was there. The project superintendent testified he reviewed Kraus-Anderson's memorandum that summarized an interview of its employee that witnessed Liss's fall. In the interview, the employee stated Liss tripped on a plywood sheet hanging over the curb while the employee stepped off of it. Kraus-Anderson's lead superintendent testified that he visited the area biweekly but never saw a pallet or plywood being used as Liss described.
Liss's boss testified he remembered the wood being used "quite a bit" by "everybody" as a walkway from the street, over the grass, and into the building. He testified Borton did not place the wood there and recalled that it did not appear to be unsafe because it was "frozen down." He noted that the wood did not raise any safety concerns for him before Liss fell and he never saw it hanging over the curb.
After Acuity rested its case-in-chief, Kraus-Anderson moved the district court for judgment as a matter of law (JMOL), arguing it had no duty of care because Liss testified the pallet was open and obvious and Acuity did not produce evidence that its payments were reasonable and necessary for Liss's injuries. The district court denied the motion, reasoning that there were factual disputes as to the issue of duty and Liss's testimony, in addition to his medical bills, was sufficient evidence for the jury to determine damages.
The jury returned a special verdict, allocating 100% of the fault to Kraus-Anderson and finding it was negligent. The jury awarded Acuity $26,876.13 in past medical expenses and $10,285.94 in lost earnings. Kraus-Anderson renewed its motion for JMOL. The district court denied the motion and accepted the jury's verdict.
Kraus-Anderson's appeal follows.
The district court may grant JMOL during trial if a party has been fully heard on an issue and "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." Minn. R. Civ. P. 50.01(a). A party may make or renew a JMOL motion following a verdict. Minn. R Civ. P. 50.02(a). Kraus-Anderson sought JMOL during the trial and after the jury's verdict and both motions were denied by the district court. We review the denial of a motion for JMOL de novo. Christie v. Est. of Christie, 911 N.W.2d 833, 838 n.5 (Minn. 2018).
On review, we view the evidence in the light most favorable to Acuity as the nonmoving party. Id. We examine "whether the verdict is manifestly against the entire evidence or whether despite the jury's findings of fact the moving party is entitled to [JMOL]." Navarre v. S. Washington Cnty. Schs., 652 N.W.2d 9, 21 (Minn. 2002). The verdict "will not be set aside if it can be sustained on any reasonable theory of the evidence." Longbehn v. Schoenrock, 727 N.W.2d 153, 159 (Minn.App. 2007); see also Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919 (Minn. 2009) ().
To succeed on a negligence claim, Acuity was required to prove four elements: "(1) the existence of a duty of care; (2) a breach of that duty; (3) an injury; and (4) the breach of the duty being the proximate cause of the injury." Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005). Kraus-Anderson challenges the first element, arguing the district court erred by denying its motion for JMOL because Acuity failed to meet its burden of proof to show Kraus-Anderson owed a duty of care to Liss.
"Generally a defendant's duty to a plaintiff is a threshold question because in the...
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