Ann Massert, Respondent,

This opinion is nonprecedential except as provided by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
A22-0815

Ann Massert,
Respondent,

vs.

Radisson Blue MOA, LLC, et al.,
Appellants.

Filed April 3, 2023
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CV-20-6878

Alicia N. Sieben, Cody C. Scharpf, Matthew J. Barber, Schwebel Goetz & Sieben, P.A.,
Minneapolis, Minnesota (for respondent)

Jeffrey M. Markowitz, Harrison E. Berg, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for appellants)

Considered and decided by Worke, Presiding Judge; Smith, Tracy M., Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this appeal following a jury trial of respondent-plaintiff Ann Massart’s
1 slip-and-
fall negligence claim, appellant-defendants Radisson Blu MOA, LLC and Radisson Blu

1 For this opinion, we utilize the spelling of the parties’ names from their briefs, although
it differs from the case caption.
2
MOA Management, LLC (together, the Radisson defendants) and their independent
contractor NSG Hospitality Corporation (NSG), challenge the district court’s decision to
enter judgment jointly and severally against them for 60% of the jury’s verdict. After the
jury found Massart 40% at fault for her injuries, the Radisson defendants 20% at fault, and
NSG 40% at fault, the district court determined that (1) the Radisson defendants are
vicariously liable for NSG’s negligence based on a land possessor’s nondelegable duty to
provide safe premises and (2) the Radisson defendants and NSG are jointly and severally
liable under the common-scheme-or-plan exception to several liability. Because we discern
no error in either of the district court’s determinations, we affirm.
FACTS
Massart slipped and fell in the hotel lobby at the Radisson Blu Mall of America
hotel, suffering injuries. The Radisson defendants are the owners and operators of the hotel.
The lobby floor had recently been mopped by an employee of NSG, an independent
contractor hired by the Radisson defendants to clean the hotel at night. Massart sued the
Radisson defendants and NSG, alleging negligence, and the case proceeded to a jury trial.
The Radisson defendants and NSG shared counsel during the jury trial. Before the
case went to the jury , their counsel requested that the special-verdict form separately ask
about negligence for the Radisson defendants and for NSG, which the district court granted.
Defense counsel agreed that certain issues, including the Radisson defendants’ liability for
NSG’s negligence, would be decided by the district court following the verdict.
3
The district court instructed the jury about a land possessor’s duty to protect entrants
and an entrant’s duty of reasonable care. The district court also instructed the jury that the
Radisson defendants’ duty of reasonable care
includes an ongoing duty to inspect and maintain the premises
to ensure entrants on their premises are not exposed to
unreasonable risks of harm. If dangerous conditions are
discoverable through reasonable efforts, they must provide
Ann Massart with adequate warnings. Failing to provide Ann
Massart with adequate warnings is negligence.

The district court did not instruct the jury about any duty that NSG owed Massart.
The district court provided the jury with the special-verdict form , asking it to
address whether the Radisson defendants were negligent for failing to warn Massart of a
wet floor, whether NSG was negligent for failing to warn Massart of a wet floor, and
whether Massart was negligent at the time of her fall. The jury returned its special verdict,
finding the Radisson defendants 20% at fault, NSG 40% at fault, and Massart 40% at fault.
The jury found damages of $496,500.
Following the verdict, each side submitted a proposed order for judgment. Massart’s
proposed order stated that judgment should be entered solely against the Radisson
defendants for $297,900, representing the total damages reduced by Massart’s 40% fault.
In her accompanying briefing, Massart alternatively asked that judgment be entered against
the Radisson defendants and NSG for $297,900, jointly and severally. Appellants’
proposed order, on the other hand, stated that the judgment should be entered against NSG
alone for $198,600, representing NSG’s 40% share of the fault. In their briefing, appellants
argued that Massart could not recover from the Radisson defendants because the Radisson
4
defendants’ 20% fault was less than Massart’s 40% fault and aggregation of the Radisson
defendants’ fault with NSG’s fault was inappropriate.
In its order for judgment, the district court concluded that (1) the Radisson
defendants were responsible for NSG’s negligence based on the Radisson defendants’
nondelegable duty as the land possessor to Massart and (2) the circumstances satisfied the
common-scheme-or-plan exception to the general rule of several liability. The district court
ordered that judgment be entered against both the Radisson defendants and NSG, jointly
and severally, for $297,900, and judgment in that amount was entered. 2
The Radisson defendants and NSG appeal.
DECISION
Appellants challenge the $297,900 judgment against the Radisson defendants and
NSG, jointly and severally; they assert that the judgment should be against NSG alone in
the amount of $198,600, which represents 40% of the verdict. Appellants contend that the
district court erred by determining that the Radisson defendants are liable to Massart and
that joint and several liability, as opposed to several liability, was appropriate. With respect
to both asserted errors, appellants advance both procedural and substantive arguments. We
first address appellants’ procedural arguments before turning to their substantive
arguments.

2 The $297,900 judgment was entered against only the Radisson defendants in favor of
Massart, but, in their briefing, appellants construe the omission of NSG from the judgment
as a clerical error.
5
I. The district court did not procedurally err by determining vicarious liability
and joint and several liability.

Appellants assert that the district court committed procedural error by making
factual findings both when determining that the Radisson defendants owed Massart a
nondelegable duty, and thus were vicariously liable for NSG’s negligence, and when
determining that the circumstances in this case satisfied the common-scheme-or-plan
exception to several liability. Appellants also argue that Massart waived her right to a
determination of vicarious liability or joint and several liability because she failed to
present those issues to the jury. In essence, appellants contend that only the jury, and not
the district court, could decide those issues. We disagree.
The submission of a special-verdict form to the jury is governed by Minnesota Rule
of Civil Procedure 49.01. That rule states that the district court “may require a jury to return
only a special verdict in the form of a special written finding upon each issue of fact.”
Minn. R. Civ. P. 49.01(a). If an issue of fact is omitted from the special-verdict form, “each
party waives the right to a trial by jury of the issue so omitted unless before the jury retires
the party demands its submission to the jury.” Id. Therefore, so long as issues are raised by
the pleadings or evidence, “[i]ssues of fact that are not submitted to the jury on the special
verdict form are left to the district court to decide.” Milner v. Farmers Ins. Exch., 748
N.W.2d 608, 618 (Minn. 2008) (citing Minn. R. Civ. P. 49.01(a)).
Rule 49.01 squarely answers the question of whether the district court erred by
making findings about the Radisson defendants’ vicarious liability and the Radisson
defendants and NSG’s joint and several liability. These issues were presented via evidence
6
and testimony but were omitted from the special-verdict form, and neither party demanded
their submission to the jury. In fact, during trial, appellants’ shared counsel informed the
district court that the Radisson defendants’ liability for NSG’s conduct was a “question of
. . . law” and not “an issue that the jury decides” and likewise that whether NSG was an
independent contractor was not an issue for the jury. Similarly, in their briefing in support
of their proposed order for judgment, appellants made arguments about the evidence related
to the imposition of liability—they did not argue that the district court could not make such
determinations in the first place. Thus, the parties waived their rights to a jury trial on the
issues of vicarious liability and joint and several liability, and the district court was
authorized to make findings on these issues. See Hill v. Okay Const. Co., 252 N.W.2d 107,
120 (Minn. 1977) (citing Minn. R. Civ. P. 49.01) (“[T]he trial court has the authority to
make such additional findings supplementing a special verdict as are necessary to render a
judgment.”).
II. The district court did not substantively err by ordering judgment against
appellants jointly and severally for $297,900.

We turn to appellants’ substantive arguments that the district court erred by
imposing judgment against the Radisson defendants and NSG, jointly and severally, for
$297,900, or 60% of the verdict. They contend that the district court erred by determining
that (1) the Radisson defendants are liable to Massart and (2) the common-scheme-or-plan
exception to several liability applies. Appellants assert that the judgment should be against
NSG only, for $198,600, which corresponds to NSG’s 40% fault.
7
A. The Radisson Defendants’ Liability to Massart
Appellants argue that the Radisson defendants are not liable to Massart because the
jury found the Radisson defendants 20% at fault and Massart 40% at fault and thus Massart
cannot recover from the Radisson defendants under Minnesota’s comparative-fault statute.
Under the comparative-fault statute, a person’s “[c]ontributory fault does not bar recovery
in an action . . . if the contributory fault was not greater than the fault of the person against
whom recovery is sought.” Minn. Stat. § 604.01, subd. 1 (2022). The district court
determined that the Radisson defendants are vicariously liable for NSG’s 40% fault. As a
result, the Radisson defendants’ total fault is 60%—that 40% fault added to the 20% fault
apportioned to the Radisson defendants by the jury. The Radisson defendants argue that
the district court’s determination of vicarious liability is error.
The general rule is that an employer is not liable for its independent contractor’s
acts and omissions. Conover v. N. States Power Co., 313 N.W.2d 397, 403 (Minn. 1981)
(citing Restatement (Second) of Torts § 409) . But that general rule has “a multitude of
exceptions,” collected in sections 416 to 429 of the Restatement (Second) of Torts, which
impose certain nondelegable duties on the employer of an independent contractor. Id. at
403-04. T he exceptions “rest on the policy grounds that an employer should not be
permitted to escape a direct duty of care for the personal safety of another by delegating
that responsibility to the independent contractor for the proper conduct of certain types of
work.” Id. at 404. Thus, the employer of an independent contractor is vicariously liable for
the independent contractor’s negligent performance of a nondelegable duty. Semrad v.
Edina Realty, Inc., 493 N.W.2d 528, 535 (Minn. 1992). Whether the Radisson defendants
8
owed Massart such a duty is a question of law that we review de novo. See Domagala v.
Rolland, 805 N.W.2d 14, 22 (Minn. 2011).
The Minnesota Supreme Court has long recognized that possessors of land may owe
entrants a nondelegable duty to maintain the premises in safe condition. In Corrigan v.
Elsinger, the supreme court held that, “so long as [they] kept their place of business open
to customers,” the owner and the proprietor of a department store owed a duty “to such
customers to keep the [place of business] in a reasonably safe condition, and free from
danger to personal injury.” 83 N.W. 492, 493 (Minn. 1900). Thus, even though the
customer was injured by the negligent work of an independent contractor, the owner and
the proprietor “could not thus avoid the duty they owed to plaintiff as one of their
customers.” Id. at 494. That proposition reflects section 425 of the Restatement (Second),
which appellants acknowledge provides a basis for a nondelegable duty and thus vicarious
liability:
One who employs an independent contractor to
maintain in safe condition land which he holds open to the
entry of the public as his place of business . . . is subject to the
same liability for physical harm caused by the contractor’s
negligent failure to maintain the land or chattel in reasonably
safe condition, as though he had retained its maintenance in his
own hands.

Restatement (Second) of Torts § 425.
We conclude that NSG was performing the Radisson defendants’ nondelegable duty
to the public to maintain the hotel lobby in safe condition. Appellants do not challenge the
district court’s findings that Massart’s fall “occurred in the public lobby of the hotel, where
the hotel expected people to enter,” that NSG was an independent contractor hired to clean
9
the floors, or that “the process of cleaning the floors creates a temporary risk.” We are not
persuaded by appellants’ assertion that cleaning the lobby floors and adequately warning
about that temporary risk is distinct from “keep[ing]” or “maintain[ing]” the lobby in safe
condition. See Corrigan, 83 N.W. at 493-94; Restatement (Second) of Torts § 425.
To the contrary, finding a nondelegable duty here tracks persuasive caselaw from
other jurisdictions analyzing a land possessor’s nondelegable duty to maintain safe
premises in the context of slip-and -fall cases. See, e.g., Kragel v. Wal-Mart Stores, Inc.,
537 N.W.2d 699, 701- 02, 704 (Iowa 1995) ( holding that customer was entitled to a jury
instruction about store’s nondelegable duty to maintain safe premises when store hired an
independent contractor to clear snow in its parking lot); Valenti v. Net Props. Mgmt., Inc.,
710 A.2d 399, 400-01 (N.H. 1998) (holding that plaintiff was entitled to a jury instruction
about mall’s nondelegable duty to maintain safe premises when store hired an independent
contractor to maintain mall’s entryways and floors). Thus, the district court did not err in
determining that the Radisson defendants are liable to Massart for NSG’s negligence based
on the Radisson defendants’ nondelegable duty to maintain the lobby in safe condition.
We are likewise unpersuaded by appellants’ contention that the Radisson
defendants’ nondelegable duty to Massart does not include the duty to warn her about the
wet floor.3 To the contrary, the supreme court has explained that a possessor of land has a

3 Appellants appear to create this distinction based on a misinterpretation of the reasoning
in Conover. In that case, the supreme court held that a possessor of land who hires an
independent contractor does not owe a nondelegable duty of care to the independent
contractor’s employees for the contractor’s negligence. Conover, 313 N.W.2d at 407.
Although appellants are correct that the supreme court distinguished between a land
possessor’s personal duty and a nondelegable duty in its analysis in Conover, that
10
duty “to use reasonable care for the safety of entrants on their land, including the duty to
inspect their premises for dangerous conditions and to repair them or warn entrants about
them.” Olmanson v. LeSeuer County, 693 N.W.2d 876, 881 (Minn. 2005). Thus, part of
the Radisson defendants’ duty to Massart included providing Massart with adequate
warning.
Finally, appellants argue that, regardless of the Radisson defendants’ vicarious
liability for NSG’s fault, the Radisson defendants are not liable to Massart because the jury
apportioned only 20% fault to them. They contend that the fault apportioned to one
defendant can be “aggregated” with the fault apportioned to another defendant only if the
defendants are in an economic joint venture. They rely on Cambern v. Sioux Tools, Inc., in
which the supreme court stated, “Absent proof of an economic joint venture, current
Minnesota law is clear that defendants’ fault is not to be aggregated in applying our
Comparative Fault Statute.” 323 N.W.2d 795, 798 (Minn. 1982). But the concept of
aggregation is not relevant to the Radisson defendants’ 60% fault. Because the Radisson
defendants are vicariously liable for NSG’s negligence, NSG’s fault is (and always was)
the Radisson defendants’ fault. See Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 7 3-74
(Minn. 2012) (clarifying that, because a tortfeasor’s liability is created when the tort is

distinction was based on the circumstances of the case—namely, the independent
contractor’s own nondelegable duty to its employee to provide a safe workplace and the
fact that the land possessor “should not be held vicariously liable to someone who is injured
while under the direction and control, as an employee, of the very party who creates the
danger.” Id. at 405. Thus, Conover did not alter a land possessor’s nondelegable duty to
the public—it merely recognized that employees of an independent contractor, “who have
to be on the jobsite and whose work exposes them to the very hazard contributing to their
injury,” are not part of that public. See id. at 404.
11
committed, liability does not depend on the jury’s apportionment of fault); cf. Larsen v.
Minneapolis Gas Co., 163 N.W.2d 755, 76 5 (Minn. 1968) (“[T]he one guilty of the
negligent conduct and the one to whom the negligence is imputed are to be treated as one
party for purposes of determining the fair share of the verdict each defendant must pay.”).
As a result, the fact that the jury apportioned only 20% fault to the Radisson defendants is
immaterial to the comparative-fault analysis.
In sum, NSG was performing the Radisson defendants’ nondelegable duty to
Massart to maintain a safe lobby when it was cleaning the floors and the Radisson
defendants are vicariously liable for NSG’s negligent performance of that duty. Thus, the
district court did not err by finding that the Radisson defendants’ fault is 60%. Accordingly,
Massart’s fault is not greater than the Radisson defendants’ fault, and the district court did
not err by imposing judgment against the Radisson defendants for $297,900 —the total
damages diminished by Massart’s 40% fault. See Minn. Stat. § 604.01, subd. 1 (“[A]ny
damages allowed must be diminished in proportion to the amount of fault attributable to
the person recovering.”).
B. Joint and Several Liability for All Defendants

Appellants also challenge the imposition of joint and several liability against NSG
and the Radisson defendants. In Minnesota, joint and several liability is limited by
Minnesota Statutes section 604.02 (2022). That statute provides that, “[w]hen two or more
persons are severally liable, contributions to awards shall be in proportion to the percentage
of fault attributable to each,” subject to four exceptions when people are “jointly and
severally liable for the whole award.” Minn. Stat. § 604.02, subd. 1. The relevant exception
12
here is for “two or more persons who act in a common scheme or plan that results in injury.”
Id., subd. 1(2). The application of this statute to the undisputed facts presents a question of
law that we review de novo. See Tester v. Am. Standard Inc., 590 N.W.2d 679, 680 (Minn.
App. 1999).
We agree with Massart that the Radisson defendants and NSG “act[ed] in a common
scheme or plan that result[ed] in injury,” as required by the statute. Minn. Stat. § 604.02,
subd. 1(2). It is undisputed that NSG entered into a contract to clean the Radisson
defendants’ hotel. That contract specified that, for the main lobby, the hard floors would
be mopped daily. Appellants do not dispute that the NSG employee was mopping the lobby
floor pursuant to that contract when Massart slipped and fell. And, as the jury found, NSG’s
and the Radisson defendants’ failure to warn about the wet floor caused Massart’s injury.
As a result, joint and several liability is proper.
We are unpersuaded by appellants’ arguments that the district court erred in finding
that the common-scheme-or-plan exception applied. First, we reject appellants’ contention
that the district court’s discussion of the Radisson defendants and NSG’s common duty to
Massart requires us to reverse the district court’s imposition of joint and several liability.
To the contrary, the supreme court’s caselaw concerning joint liability has indicated that
defendants’ “common duty and joint opportunity to protect customers translates into equal
and overall liability.” See Krengel v. Midwest Automatic Photo, Inc., 203 N.W.2d 841, 847
(Minn. 1973). As we concluded above, NSG was performing the Radisson defendants’
nondelegable duty to Massart, and thus, as a matter of law, they shared a duty. And
appellants do not dispute the district court’s finding that Massart’s fall “occurred in the
13
main lobby, directly in front of the Hotel’s night desk clerk.” As a result, we are not
persuaded that the district court erred by relying on the Radisson defendants’ and NSG’s
shared duty to Massart and finding a shared opportunity to warn her about the wet floor
when imposing joint and several liability.
Second, we reject appellants’ contention that the common-scheme-or-plan
exception only applies to tortious acts, not tortious omissions, and thus does not apply to
the Radisson defendants’ and NSG’s failure to warn Massart. The statute authorizes joint
and several liability for “two or more persons who act in a common scheme or plan that
results in injury.” Minn. Stat. § 604.02, subd. 1(2). We disagree that persons acting in a
common scheme may escape joint and several liability when their negligence is rooted in
omissions, rather than acts, and do not find any basis for that reading in the statute’s plain
language.
4 Thus, the district court did not err in finding a common scheme or plan when
the Radisson defendants and NSG failed to warn Massart about the wet floor, in violation
of the Radisson defendants’ duty to keep the lobby safe.

4 Appellants rely on the Wisconsin Supreme Court’s caselaw interpreting the Wisconsin
common-scheme-or-plan exception to support their argument. Because the Wisconsin
statute has different language and structure, that caselaw is of limited utility when
analyzing the plain language of the Minnesota common-scheme -or-plan exception.
Compare Minn. Stat. § 604.02, subd. 1(2), with Wis. Stat. § 895.045(2) (2022). More
importantly, the Wisconsin Supreme Court’s interpretation rested on its conclusion that the
Wisconsin statute codified Wisconsin’s “concerted action theory of liability.” Richards v.
Badger Mut. Ins. Co. , 749 N.W.2d 581, 594-95 (Wis. 2008). We decline to read
Wisconsin’s requirements for the “concerted action theory” into Minnesota’s statutory
common-scheme-or-plan exception. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.
App. 1987) (“[T]he task of extending existing law falls to the supreme court or the
legislature, but it does not fall to this court.”), rev. denied (Minn. Dec. 18, 1987).
14
In sum, the Radisson defendants are vicariously liable for NSG’s fault, and joint and
several liability for the whole award—60% of the verdict—is proper under the common-
scheme-or-plan exception. Thus, the district court did not err by imposing joint and several
liability in favor of Massart and against NSG and the Radisson defendants for $297,900.
Affirmed.