Sandra D’Antonio, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0913

Sandra D’Antonio, et al.,
Respondents,

vs.

Jennifer Lynn Martinez, et al.,
Appellants.

Filed April 19, 2021
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CV-17-14727

Patrick T. Tierney, Daniel L. McGarry, Co llins, Buckley, Sauntry & Haugh, P.L.L.P.,
St. Paul, Minnesota (for respondents)

Nicholas L. Klehr, Hugh E. Mulligan, Labore, Giuliani, Shackleford, Klehr & Jensen-Lea,
Ltd., Hopkins, Minnesota (for appellants)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
WORKE, Judge
In this appeal from judgment following a jury trial, appellants argue that the district
court abused its discretion by excluding third-party building owner from the special-verdict

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form and by denying appellants’ request for a collateral offset for workers’ compensation
benefits paid to respondents. We affirm.
FACTS
Respondents Sandra D’Ant onio (D’Antonio) and her husband brought a negligence
action against appellants Jennifer Lynn Ma rtinez (Martinez) and her husband after
Martinez struck D’Antonio with her car while D’Antonio was walking across the driveway
in front of the office building where they worked.
At trial, D’Antonio testified that she arrived at work on November 12, 2015, a little
before 6:00 a.m., and the parking-lot lights were not on. They were usually on at this time.
She testified, “I don’t know when daylight savings time was. If it was that weekend, then
that would have been the first day the lights wouldn’t have been on.” She did not know
where the closest light would ha ve been to the accident, but the lights usually illuminate
the parking lot “pretty well.” When asked whether she tried to “talk to somebody” about
the lights not being on, she responded, “Yes.”
D’Antonio walked toward the building while looking at the ground to see where she
was going because of the darkness. She saw a car enter the parking lot, but believed that
she could reach the sidewalk in time. Her eyes returned to the ground, and she did not look
up again until the car was about three feet from hitting her. D’Antonio suffered a fractured
leg that required three surgeries to repair and months of physical therapy.
Martinez testified that “it was pitch black outside” when she drove to work. There
was no light illuminating the concrete barrier that she turned past when she hit D’Antonio.

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Martinez did not know whether the parking-lo t lights were on that day, but the lighting
conditions impacted her visibility. There was some light “given off by the building itself.”
After testimony, the district court rem oved the building owner from the special-
verdict form. The district court reasoned,
There could be a whole variet y of reasons why those lights
weren’t on. There is no evidence that that is at all potentially
the negligence of the building ow ner. Specifically, these are
all hypotheticals; right? But potentially, the building owners
could not have had notice that the lights were not on when they
were supposed to; the building owners could have had notice
and they were working on the lights as we had this incident
occur. There are too many issues at play that don’t give clear
evidence as to whether the bu ilding owner and/or property
were negligent. Further, we’re not even certain who the
building owner and property manage rs are, and therefore, the
questions on the verdict form will be taken off.

The district court further stated that “everybody agrees it was really dark and that the lights
weren’t on. That, in itself, is not evidence of negligence.”
The jury found both parties negligent and apportioned 51% of the fault to Martinez
and 49% to D’Antonio. The jury found damages of $225,000 for past pain and suffering,
$134,076.13 for past health-care expenses, $23,419.91 for past wage loss, and $75,000 for
future pain and suffering.
Martinez moved for a collateral offset pur suant to Minn. Stat. § 548.251 (2020),
requesting the district court to deduct from the damages award $157,496.04 that D’Antonio
received from Travelers in workers’ compen sation benefits. This would result in a
$153,000 award after deducting D’Antonio’s 49% contributory negligence.

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The district court denied Martinez’s motion. The district court determined that two
issues were before it: (1) whet her the workers’ compensation benefits Travelers paid to
D’Antonio are subject to subrogation rights , and (2) whether Travelers asserted its
subrogation rights. In deciding the first issu e, the district court stated that the work-
relatedness of D’Antonio’s injury was not litigated at trial, and “[a] collateral source offset
motion is not the proper place to argue this issue for the first time.” The district court did
not make a finding on whether the injury was wo rk related because “[t]here is nothing in
case law or statute to allow the [district] court to make a sua sponte post-verdict ruling on
whether the injury was ‘work related.’”
The district court also concluded that Tr avelers asserted its subrogation rights by
mailing Martinez a formal notice of its subrogation claim six months before trial. Because
the district court found that Travelers asserted its subrogation rights, it determined that it
did not need to assess the merits of Martinez’s argument and denied her motion.
The district court entered judgment in favor of D’Antonio in the amount of
$233,322.98. This appeal followed.
DECISION
Third-party building owner
Martinez first argues that the district court abused its discretion by removing the
comparative negligence of the building owner from the specia l-verdict form. She argues
that there was evidence of th e building owner’s negligence an d that caselaw requires the
district court to allow the jury to consider the negligence of all parties to the transaction.

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“District courts have broad discretion to decide whether to use special verdicts and
what form special verdicts are to take.” Poppler v. Wright Henn epin Coop. Elec. Ass’n ,
845 N.W.2d 168, 171 (Minn. 20 14). “[T]he formulation of the verdict by the [district]
court is a proper exercise of that discre tion if the questions propounded fairly and
adequately cover all of the issues of fact raised by the pleadings and proof.” Hill v. Okay
Constr. Co., 252 N.W.2d 107, 118 (Minn. 1977).
Martinez relies on this quote from Lines v. Ryan:
[I]t is established without do ubt that, when apportioning
negligence, a jury must have the opportunity to consider the
negligence of all parties to the transaction, whether or not they
be parties to the lawsuit and wh ether or not they can be liable
to the plaintiff or to the other tort-feasors either by operation of
law or because of a prior release.

272 N.W.2d 896, 902-03 (Minn. 1978) (quotation omitted). But Martinez omitted the first
part of this notion: “If there is evidence of conduct which, if believed by the jury, would
constitute negligence (o r fault) on the part of the pers on inquired about, the fault or
negligence of that party should be submitted to the jury.” Id. at 902 (quotation omitted).
In other words, potential to rtfeasors should be included in considering comparative
negligence if a party establishes a prima facie case for their negligence.
“The essential elements of a negligence claim are: (1) the existence of a duty of
care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was
the proximate cause of the injury.” Lubbers v. Anderson , 539 N.W.2d 398, 401 (Minn.
1995). The district court abused its discre tion by leaving the building owner off of the
special-verdict form if there was sufficient ev idence for a jury to find these elements

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satisfied. See Lines, 272 N.W.2d at 902. Landowners ha ve a duty of reasonable care for
the safety of entrants on their premises. Olmanson v. LeSueur Cty., 693 N.W.2d 876, 880
(Minn. 2005). This “duty of reasonable car e includes an ongoing duty to inspect and
maintain property to ensure entrants on the landowner’s land are not exposed to
unreasonable risks of harm.” Id. at 881. But this duty does not make landowners insurers
of safety. Rinn v. Minnesota State Agr. Soc’y , 611 N.W.2d 361, 365 (Minn. App. 2000).
“Unless the dangerous condition actually resu lted from the direct actions of a landowner
or his or her employees, a negligence theory of recovery is appropriate only where the
landowner had actual or constructive knowledge of the dangerous condition.” Id.
Martinez argues that the district court abus ed this discretion because “the issue of
darkness and who was res ponsible for said darkness on the morning of the accident were
raised by the proof at trial via undisputed testimony of all parties.” But the evidence is not
sufficient to establish a prima facie case for negligence against the building owner.
Martinez has not shown any evidence that the building owner breached his or her duty of
care. There was no evidence of why the light s were not on other than D’Antonio’s belief
that daylight savings changed the time the li ghts were activated. There was no evidence
about whether the building owner knew about the lights not being on or whether they were
taking steps to fix the lights. It is also not clear who was in charge of maintaining the
parking lot. The testimony of the parties is not enough to establish whether the building
owner breached his or her standard of reasonable care.

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Collateral offset
Martinez next argues that the district court abused its discretion by denying her
motion to reduce her damages by a collateral offset.
A district court should reduce the damages awarded to a plaintiff if the plaintiff has
already received payments for that injury und er the Workers’ Compensation Act. Minn.
Stat. § 548.251, subds. 1(1), 3(a). But a defe ndant is not entitled to collateral offset if a
subrogation right for the amount paid has been asserted. Id., subd. 2(1).
Martinez argues that Travelers did not assert its intervention interest, and that it is
precluded from doing so because the injury is not work related and cannot be subrogated
under Kubiszewski v. St. John, 518 N.W.2d 4, 7 (Minn. 1994). The district court concluded
that it was not proper to determine whether D’ Antonio’s injury was “work related” in a
collateral offset motion because Martinez was raising the issue for th e first time in its
posttrial motion. “We review a district court’s application of the law de novo.” Harlow v.
State, Dep’t of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016). “[A]n issue first raised
in a post-trial motion is not raised in a timely fashion.” Grigsby v. Grigsby, 648 N.W.2d
716, 726 (Minn. App. 2002), review denied (Minn. Oct. 15, 2002). The district court
correctly refrained from determining whether D’Antonio’s injuries were work related when
Martinez first raised the issue in its posttrial motion.
The district court next determined that Travelers did assert its subrogation right by
mailing Martinez a formal notice of its subroga tion claim six months before trial. We
review a district court’s factual findings for clear error. Rasmussen v. Two Harbors Fish
Co., 832 N.W.2d 790, 797 (Minn. 2013). Martin ez concedes that Travelers asserted a

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subrogation right by demanding reimbursement under the Workers’ Compensation Act.
Because Martinez raised the issu e of whether D’Antonio’s injuries were work related for
the first time in a posttrial motion, and because Travelers asserted its subrogation right,
Martinez is not entitled to a collateral offset.
Affirmed.