Acuity, A Mutual Insurance Company, 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This opinion is nonprecedential except as provided by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
A23-0318

Acuity, A Mutual Insurance Company,
Respondent,

vs.

Kraus-Anderson Construction Company,
Appellant,

vs.

Borton Construction, Inc.,
Respondent.

Filed September 18, 2023
Affirmed
Hooten, Judge *

Winona County District Court
File No. 85-CV-21-678

Hugh E. Mulligan, Nic holas 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.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
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.
FACTS
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 wor k 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 out side of the
building. Liss fell, tore his rotator cuff, and required surgery to repair it. Respondent-
insurer Acuity, A Mutual Insurance Company (Acuity) provided a workers ’ compensation
3
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 prem ises 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

1 In a subrogation action “the insurer stands in the shoes of the insured and acquires all of
the rights the insured may have against a third party.” Medica, Inc. v. Atl . Mut. Ins. Co.,
566 N.W.2d 74, 77 (Minn. 1997).
4
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, a s 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 re gardless 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 a rea. 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 int o the building. The project
5
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 the y 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 employe e 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 inju ries. 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
6
and $10,285.94 in lost earnings. Kraus -Anderson renewed its motion for JMOL. The
district court denied the m otion and accepted the jury’s verdict.
Kraus-Anderson’s appeal follows.
DECISION
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 distri ct 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 th e 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) (“If reasonable jurors
could differ on the conclusions to be draw n from the record, [JMOL] is not appropriate.”).

7
I. The district court did not err in denying Kraus-Anderson’s motion for JMOL
because a reasonabl e jury could conclude that Kraus -Anderson had
constructive knowledge of the dangerous condition.

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 ele ment,
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 t he
absence of a legal duty, the negligence claim fails.” Domagala v. Rolland, 805 N.W.2d
14, 22 (Minn. 2011) (quotation omitted). A general contractor who retains detailed
authoritative control and supervision over a construction project may be charged w ith the
duty of care required of a possessor of the land. Thill v. Modern Erecting Co., 136 N.W.2d
677, 684 ( Minn. 1965). Possessors of land have the duty to use reasonable care for the
safety of all persons who are permitted to enter their land. Senogles v. Carlson , 902
N.W.2d 38, 42 (Minn. 2017). But the duty of care is not limitless; landowners are not
“insurers of safety.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. App.
2000).
Rather, “a property owner has a duty to use reasonable care to prevent persons from
being injured by conditions on the property that represent foreseeable risk of injury.” Id.
at 364. As such, liability is appropriate where the landowner had “actual or constructive
knowledge of the dangerous condition” or “the dangerous condition actually resulted from
8
the direct actions of a [landowner] or his or her employees.” Id. at 365; see also Messner
v. Red Owl Stores , 57 N.W.2d 659, 661 (Minn. 1953). “[T]he burden is on [Acuity] to
establish that . . . [Kraus-Anderson] had actual knowledge of the defect causing the injury
or that it had existed for a sufficient period of time to charge [Kra us-Anderson] with
constructive notice of its presence.” Wolvert v. Gustafson, 146 N.W.2d 172, 173 (Minn.
1966).
First, Kraus-Anderson contends Acuity did not establish that Kraus -Anderson had
actual knowledge of or created the dangerous condition. Indeed , no witness at trial
affirmatively testified as to where the pallet or plywood came from and who placed it there.
Instead, there was a factual dispute as to whether pallet or plywood existed at all. Liss
testified that he traversed a pallet as a walkway around 50 to 60 times starting in January
2019. Liss’s boss also testified that a pallet was used “quite a bit” by “everybody” as a
walkway to enter the building. Kraus-Anderson’s project superintendent, who testified he
examined Wabasha Hall twice per day to monitor the building, and Kraus-Anderson’s lead
superintendent, who examined the building biweekly, never saw a pallet or plywood being
used in the way Liss described. But the project superintendent acknowledged that the
Kraus-Anderson worker, who was walking in front of Liss at the time his fall, reported to
Kraus-Anderson that Liss tripped on plywood that popped up when the worker stepped on
one end that was sticking out over the edge of the curb. Viewing the evidence most
favorably to Acuity and the verdict, it is clear that the jury credited Liss’s testimony and
concluded that the pallet or plywood existed and was used as a walkway .
9
Next, Kraus-Anderson argues Acuity failed to show Kraus -Anderson had
constructive knowledge of the dangerous condi tion. Specifically, Kraus-Anderson argues
the dangerous condition at issue was not the pallet or plywood itself, but the pallet or
plywood after it had been moved to extend over the curb during the 30- minute period Liss
was inside Wabasha Hall on March 15 . Kraus-Anderson asserts that the 30- minute period
of time is insufficient to charge Kraus -Anderson with constructive notice of the
cantilevered walkway. See Rinn, 611 N.W.2d at 365 (determining 30 minutes was not
sufficient time to give landowners const ructive notice of a late-night puddle); Otis v. First
Nat’l Bank , 195 N.W.2d 432, 433 (Minn. 1972) (determining 20 minutes was an
insufficient amount of time to give a landowner constructive notice of a puddle).
However, Kraus-Anderson’s project superintendent testified that “in no way, shape,
or form [he] would have ever allowed wood, whether it be a pallet . . . [or] plywood” be
used as a walkway and he would have moved it. The project superintendent agreed tha t
the pallet or plywood “could be a hazard” because it could move and cantilever. Taking
together the project superintendent’s testimony that he entered and exited Wabasha Hall
twice daily and the evidence, credited by the jury, that the pallet or plywood was in front
of the door to the building for months, a reasonable jury could conclude that the project
superintendent should have discovered the dangerous condition. Further, a jury could
reasonably conclude from the project superintendent’s testimony that he appreciated the
pallet or plywood as a “condition[] on the property that represent[ed] [a] foreseeable risk
of injury” for which Kraus-Anderson had a duty to use reasonable care to prevent persons
from being injured. Rinn, 611 N.W.2d at 364.
10
As such, we conclude that the jury’s verdict is not manifestly against the entire
evidence and the district court did not err in denying Kraus -Anderson’s motion for JMOL
on this issue.
II. The district court did not err in denying Kraus Anderson’s motion for JMOL
on the issue of damages.

Kraus-Anderson also contends the district court erred in denying its motion for
JMOL because Acuity failed to meet its burden to prove damages . Particularly, Kraus -
Anderson asserts that Acuity failed to show that its payments to Liss for medical expenses
and lost wages were reasonable and necessary through expert testimony. Plaintiffs have
the burden of proving damages. Rowe v. Munye, 702 N.W.2d 729, 735 (Minn. 2005). The
measure of damages for medical expenses is the reasonable value of the services received.
Swanson v. Brewster, 784 N.W.2d 264, 281 (Minn. 2010). The assessment of damages is
within “the peculiar province of the jury.” Myers v. Hearth Techs. Inc. , 621 N.W.2d 787,
794 (Minn. App. 2001) (quotati on omitted), rev. denied (Minn. Mar. 13, 2001).
Minnesota’s workers’ compensation system requires employers to furnish medical
treatment “as may reasonably be required at the time of injury and any time thereafter to
cure and relieve from the effects of the injury.” Minn. Stat. § 176.135, subd. 1(a) (2022).
The Minnesota Department of Labor & Industry, at the direction of the legislature,
developed comprehensive rules and treatment parameters to determine whether a treatment
is reasonable. Johnson v. Darchuks Fabrications, Inc., 963 N.W.2d 227, 229 (Minn. 2021).
As such, an employer is required to pay for reasonable and necessary treatment. Leuthard
v. Indep. Sch. Dist. 912 – Milaca, 958 N.W.2d 640, 645 (Minn. 2021); see also Minn. R.
11
5221.0500, subp. 1D (2022) (noting that tr eatment that is not reasonable and necessary is
not compensable).
Notably, there is a difference in the nature and quantity of damages that are
recoverable through workers’ compensation claims compared to common-law tort claims.
For example, for an injury producing temporary total disability, an injured employee may
only be compensated at “66-2/3 percent of [their] weekly wage at the time of injury” under
the workers’ compensation scheme . Minn. Stat. § 176.101, subd. 1(a) (2022); see also
Minn. Stat. § 176.136, subd. 1b(b) (2022) (limiting the liability of the employer for medical
expense treatment to 85% of the provider’s charge). Further, damages that are recoverable
under the common law, such as “pain and suffering . . . embarrassment, disfigurement, and
mental anguish,” are not the kinds of damages that are recoverable under workers’
compensation. Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 59 (Minn. 1993). Put
simply, the damages recoverable at common law are more expansive than those heav ily
regulated by the workers’ compensation system. Id.
Kraus-Anderson first contends the district court erred in allowing Acuity to meet its
evidentiary burden by misapplying a presumption articulated in Tyroll that benefits paid
by Acuity were presumptively reasonable and proper . See i d. at 61.2 In its closing

2 In Tyroll, the Minnesota Supreme Court established a two -step process for determining
the subrogation interest of an employer after an injured employee enters into a Naig
settlement with a third -party tortfeasor for damages not recoverable in workers’
compensation cases. 505 N.W.2d at 61; see also Naig v. Bloomington Sanitation, 258
N.W.2d 891, 894- 95 (Minn. 1977). In the first step, the district court determines the
amount of the subrogation damages and holds a hearing to determine the amount of benefits
paid and payable, where the benefit s paid are “presumed . . . reasonable and proper
expenditures under the Workers’ Compensation Act.” Tyroll, 505 N.W.2d at 61. In the
12
argument and based on trial testimony, Acuity sought an award for $89,587.09 in past
medical expenses and $34,286.45 in lost earnings . Kraus-Anderson, in its closing
argument, maintained that Acuity did not meet its burden of proving that the amount of
damages were reasonable and necessary. The jury awarded Acuity only $26,876.13 in past
medical expenses and $10,285.94 in lost earnings for a total of $37,162.07, an amount that
was approximately 30% of the total amount of damages claimed by Acuity.
In rejecting Kraus -Anderson’s posttrial motion for JMOL, the district court noted
Minnesota law did not require Acuity to present experts at trial to show the amo unts were
reasonable and necessary and noted the payments Acuity already made to Liss were “per
se reasonable under Tyroll.” Ultimately, the district court concluded “there was legally
sufficient evidence presented for a reasonable jury to find damages in this case.” We agree
with the district court’s conclusion.
Turning first to Kraus-Anderson’s assertion that the district court misapplied Tyroll,
we agree generally that a district court cannot instruct a jury to apply the Tyroll
presumption where the entirety of the injured employee’s damages are submitted to the
jury. In Tyroll, an injured employee brought tort claims against a third -party tortfeasor.
Id. at 56. His employer and its workers’ compensation carrier, after paying the employee
workers’ compensation benefits, also sought to recover its subrogation interest against the
third-party tortfeasor. Id. Tyroll requires the district court to first calculate the amount of

second step, the tort action is tried to the jury. Id. After the verdict, “judgment is entered
against the defendant fo r the amount of the benefits paid and payable or such part thereof
as the jury’s award of damages will cover.” Id.
13
the workers’ compensation insurer’s subrogation claim in a separate proceeding apart from
the purview of the jury. Id. at 61. This procedural step is taken so that the distribution
formula, set forth in Minn. Stat. § 176.061, subd. 6 (2022), can be later applied to the jury’s
award of damages to determine the workers’ compensation insurer’s recovery.3 Id. at 60-
61; see Lambertson v. Cincinnati Welding Corp., 257 N.W.2d 679, 685 (Minn. 1977)
(explaining how to apply the distribution formula and the resulting interests of the
employee, employer, and tortfeasor).

3 The distribution formula provides that “the proceeds of all actions for damages” shall be
divided as follows:

(1) After deducting the reasonable cost of collection, including
but not limited to attorney fees and burial expense in excess of
the statutory liability, then
(2) One-third of the remainder shall in any event be paid to the
injured employee or the employee’s dependents, without being
subject to any right of subrogation.
(b) Out of the balance remaining, the employer or the special
compensation fund shall be reimbursed in an amount equal to
all benefits paid under this chapter to or on behalf of the
employee o r the employee’s dependents by the employer or
special compensation fund, less the product of the costs
deducted under paragraph (a), clause (1), divided by the total
proceeds received by the employee or dependents from the
other party multiplied by all be nefits paid by the employer or
the special compensation fund to the employee or the
employee’s dependents.
(c) Any balance remaining shall be paid to the employee or
employee’s dependents. . . .
(d) There shall be no reimbursement or credit to the empl oyer
or to the special compensation fund for interest or penalties.

Minn. Stat. § 176.061, subd. 6.
14
Under t he circumstances in Tyroll, where the workers’ compensation insurer has
paid medical and wage loss benefits that are closely controlled by statute and regulations,
the presumption exists because there is little need for the parties to contest the
reasonableness and necessity of such benefits or for the district court to make an
independent determination of the reasonableness a nd necessity of such payments in this
separate proceeding. 505 N.W.2d at 61. But, even under this procedure, the defendant
tortfeasor can overcome t he presumption of reasonableness and necessity by offering
evidence of erroneously paid benefits . See id. at n.6.
However, this case is decidedly different from Tyroll. Unlike the employee in
Tyroll, Liss did not advance any claims against Kraus -Anderson or seek damages. The
only damages at issue were those asserted by Acuity as the workers’ compensation insurer
seeking to recover for past medical expenses and past lost earnings paid to Liss .4 As such,
the district court was not required to first calculate Acuity’s subrogation interest in a
separate hearing or later apply the distribution formula to divide the jury’s award between
Liss and Acuity. See Minn. Stat. § 176.061, subd. 6.
We are not convinced that the district court erred . In a pretrial order, the district
court observed
[t]he jury will have [medical records detail ing treatments and
bills] in determining the nature, extent, duration and

4 We note that Acuity only sought to recover for benefits already paid and did not seek to
recover future medical expenses or future lost earnings, which w ould have likely required
expert testimony to support an award. See Lamont v. Indep. Sch. Dist. No. 395, 154 N.W.2d
188, 192 (Minn. 1967) (stating that future medical expenses are “a matter which the jury
cannot compute blindly without expert testimony” a nd “cannot be left to their
speculation”).
15
consequences of Mr. Liss’ injury. In cases such as this,
Defendants may question the reasonableness and necessity of
treatment[s] or expenses by providing its own expert testimony
to counter Plaintiff’s claims. To be clear, Defendant does not
dispute that Liss fell and sustained injuries from the fall.
Plaintiff paid benefits to Liss already. According to Tyroll, it
is presumed that the payments were reasonable or proper. No
Minnesota law, statutory or court findings, requires Plaintiff to
provide expert testimony to show reasonableness of the
treatment or the payments made.

In its posttrial order denying Kraus-Anderson’s motion for JMOL, the district court
noted that “[n]o party questioned or challenged the reasonableness or necessity of any of
the information the jury received concerning [Liss’s] treatment or the bills for that
treatment.” Indeed, at trial, there was no dispute that Liss fell on the construction sit e and
suffered a torn rotator cuff. Liss testified that his doctor sent him to Gunderson Health
System for imaging of his shoulder and the results showed he needed surgery to repair the
tear. He explained that he was unable to work during his injury and recovery from surgery,
so Acuity issued him payments for the time he missed. Acuity’s claim representative
testified that Acuity was required to pay benefits for Liss’s injury regardless of who was at
fault. Liss’s medical records, medical bills, and a list of payments made by Acuity were
authenticated by witnesses and received as evidence. Kraus -Anderson made no offer of
proof that Liss’s expenses were not reasonable.
While the district court referred to the presumption in its pretrial ruling, it is cle ar
from the record that the district court did not instruct the jury about the presumption or its
application. It appears that the district court reasoned that if, under the Tyroll procedure,
it would have been required to apply the presumption that such workers’ compensation
16
benefits were reasonable and necessary, then certainly the jury could determine the
reasonableness and necessity of such benefits under the usual preponderance of the
evidence standard.
But w ithout deciding whether the district court erred or misapplied the Tyroll
presumption, we further conclude any such error would be harmless. See Minn. R. Civ. P.
61 (requiring harmless error to be ignored); Kallio v. Ford Motor Co., 407 N.W.2d 92, 98
(Minn. 1987) (stating that “[a]lthough error may exist, unless the error is prejudicial, no
grounds exist for reversal”). The district court did not instruct the jury to presume that the
medical expenses and lost earnings paid by Acuity were reasonable under Tyroll. Instead,
the d istrict court instructed that Acuity had the burden to “prove the nature, extent,
duration, and consequences of [its] harm” and the jury must “decide the amount of money
that will fairly and adequately compensate Acuity,” permitting the jury to award damag es
for past medical expenses and lost earnings. We as sume that juries follow the jury
instructions they are given. Frazier v. Burlington N. Santa Fe Corp., 811 N.W.2d 618, 630
(Minn. 2012). Thus, as is reflected the jury’s award of an amount that constituted only
about 30% of the total amount Acuity sought, the jury’s verdict did not rest on a
presumption that all of the benefits Acuity paid to Liss were per se reasonable.
On this record, we agree with the district court ’s conclusion that the evidence is
sufficient to support a jury verdict awarding damages. The jury’s conclusion that some of
Liss’s expenses were reasonable and necessary to support an award of damages is
“sustained [by a] reasonable theory of the evidence” given the testimony that Acuity was
required to make benefit payments to Liss and the undisputed facts that he was injured,
17
needed surgery, and was unable to work. Longbehn, 727 N.W.2d at 159. The jury was not
required to speculate as to appropriate damages for fu ture medical expenses or future lost
wages as they were not sought by Acuity. Instead, the parties made arguments as to what
amounts of Liss’s past medical expenses and lost earnings payments were reasonable and
left the determination to the “the peculiar province of the jury.” Myers, 621 N.W.2d at
794. Using the testimony and evidence presented by Acuity at trial , including Liss’s
medical records, medical bills, and Acuity’s payment records, the jury determined only
past medical expense payments in the amount of $26,876.13 and lost earnings in the
amount of $10,285.94 were reasonable and necessary.
Given the deference we afford the jury’s verdict and this record, we conclude Acuity
carried its burden to show it was entitled to damages and t he jury’s verdict is not
“manifestly against the entire evidence.” Navarre, 652 N.W.2d at 21. Thus, the district
court did not err in denying Kraus -Anderson’s motion for JMOL on this basis.
Affirmed.