Zoila Salguero, Appellant,

This opinion is nonprecedential except as provided by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
A24-0479

Zoila Salguero,
Appellant,

vs.

Elvis Perez Hernandez, et al.,
Respondents.

Filed November 12, 2024
Affirmed
Schmidt, Judge

Washington County District Court
File No. 82-CV-23-4085

Samuel H. Dilley, Robichaud, Schroepfer & Correia, P.A., Minneapolis, Minnesota (for
appellant)

Matthew M. Johnson, Robert E. Kuderer, Caleb T. Nigrin, Erickson, Zierke, Kuderer &
Madsen, P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Schmidt, Presiding Judge; Ross, Judge; and Ede, Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant trustee challenges the summary -judgment dismissal of her wrongful-
death claim against respondent employer and respondent coemployee. Appellant argues
the district court erred by (1) determining that she did not properly plead a claim under the
Minnesota No-Fault Automobile Insurance Act (No-Fault Act), Minn. Stat. §§ 65B.41-.71
(2022); (2) granting summary judgment to respondent coemployee because she could not
2
establish the personal-duty requirement essential for recovery in tort against a coemployee
under the Minnesota Workers’ Compensation Act, Minn. Stat. §§ 176.001-.862 (2022);
and (3) granting summary judgment to respondent employer because she could not
establish a means of imputing vicarious liability to respondent employer. We affirm.
FACTS
Respondent JC Fence is a business that installs commercial and residential fencing.
JC Fence employed respondent Elvis Perez Hernandez since the company’s inception.
Hernandez’s duties included transporting fencing materials to worksites by truck and
attached trailer. JC Fence also employed decedent Mario Enrique Solorzano Salguero. 1
On March 15, 2021, five JC Fence employees—including Hernandez, Mario, and
JC Fence’s owner—were installing a fence at a construction worksite. The owner asked
Hernandez to move a truck and attached trailer that the company used to transport fencing
materials by repositioning it to allow the employees to work on the fence more easily.
While Hernandez moved the truck, a rear trailer tire ran over a metal stake,
dislodging the trailer’s light cables. The owner saw the cables dislodge and told Hernandez
to stop. Hernandez stopped, turned the engine off, exited the truck, and joined the owner
and Mario at the rear of the trailer. The owner instructed Mario to go underneath the trailer
to check if the cables had become loose. Mario did so and confirmed that the cables were
loose. The owner said to continue working on the fence and that the cables could be fixed
later. The owner then turned his back to the trailer.

1 Given the same last name of the trustee who sued on behalf of the decedent’s next-of-kin,
we refer to the decedent as Mario throughout the opinion.
3
Hernandez and Mario stood about five feet from the trailer on the passenger side.
Hernandez told Mario that Hernandez planned to move the truck a little to the left. When
Hernandez reentered the truck, Mario was still standing in the same place. Hernandez
started the truck, checked the rearview and both sideview mirrors, then slowly started to
move the truck forward with the windows down and the radio off. Hernandez then heard
the owner yell “stop” because the trailer had run over Mario. Unbeknownst to Hernandez
and the owner, Mario had crawled back under the trailer after Hernandez had reentered the
truck. Hernandez stopped the truck and the owner pulled Mario from under the trailer.
Mario was transported to the hospital where he died from his injuries that same day.
Zoila Salguero (Salguero), as trustee for Mario’s next of kin, sued JC Fence and
Hernandez for wrongful death. The complaint did not include specific counts, beyond
alleging: “Pursuant to Minnesota Statutes section 573.02 subdivision 1, Plaintiff maintains
this action, as Trustee for the Next of Kin of Decedent, for the grossly negligent acts and/or
omissions on the part of the Defendants that directly caused the resulting injuries and death
to Decedent.” The complaint did not cite the No-Fault Act as a basis for liability.
JC Fence and Hernandez moved for summary judgment, arguing that Salguero
could not overcome coemployee immunity in the Workers’ Compensation Act for
Hernandez and thus there could be no vicarious liability for JC Fence . Salguero opposed
the motion, contending that fact issues existed as to Hernandez’s gross negligence, her
wrongful-death claim should proceed under the Workers’ Compensation Act, and her claim
should also proceed under the No-Fault Act.
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The district court granted respondents’ summary-judgment motion, determining
that Salguero (1) failed to properly plead the No-Fault Act theory in her complaint;
(2) could not establish the personal-duty requirement required to recover under the
Workers’ Compensation Act against coemployee Hernandez; and (3 ) could not establish
vicarious liability for JC Fence. The court dismissed the action and entered judgment.
Salguero appeals.
DECISION
Salguero challenges the summary-judgment ruling in respondents’ favor. “We
review a district court’s summary judgment decision de novo.” Riverview Muir Doran,
LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). “In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude summary judgment.” Id.
Salguero raises three arguments in asking this court to reverse the summary-
judgment dismissal of her wrongful-death claim. She argues that the district court erred in
determining: (1) she did not plead the No -Fault Act in her complaint to give notice to
respondents of that theory of liability; (2) the coemployee immunity provision of the
Workers’ Compensation Act barred her claim because Hernandez owed no personal duty
to Mario; and (3) she could not establish a means of imputing vicarious liability on
JC Fence. We address each argument in turn.
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I. The district court correctly determined that Salguero failed to plead the No-
Fault Act in her complaint.

Salguero argues that the district court erred in determining she failed to sufficiently
plead the No-Fault Act to give respondents notice of that theory of liability. In a notice-
pleading state like Minnesota, “[p]laintiffs may plead their case by way of a broad general
statement which may express conclusions rather than, as was required under code pleading,
by a statement of facts sufficient to constitute a cause of action.” Halva v. Minn. State
Colls. & Univs., 953 N.W.2d 496, 500 (Minn. 2021) (quotation omitted); see also Minn.
R. Civ. P. 8.01 (“A pleading which sets forth a claim for relief . . . shall contain a short and
plain statement of the claim showing that the pleader is entitled to relief and a demand for
judgment for the relief sought[ .]”). While “a bsolute specificity in pleading is not
necessary,” the information in the complaint must sufficiently put the opposing party on
notice of the claims against it. Halva, 953 N.W.2d at 500 (quotation omitted).
Salguero asserts that one basis for her wrongful-death action against Hernandez is
under a No-Fault Act theory. Salguero argues that she did not need to mention or cite the
No-Fault Act in her complaint because the general references to the motor-vehicle accident
sufficiently put respondents on notice of her No-Fault Act theory. We disagree.
Although it is true that Salguero did not need to specifically cite the No-Fault Act,
the complaint gave respondents no notice of her novel no-fault theory. Broad references
to a motor-vehicle-versus-pedestrian collision are not enough. Such allegations give rise
to a general negligence claim or—given the allegations against Hernandez of gross
negligence—a workers’ compensation claim against the coemployee.
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The complaint also did not plead the additional element that a tort threshold was
met, as required to assert a valid claim under the No-Fault Act. See Nemanic v. Gopher
Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983) (“The tort threshold is an
additional element of the negligence action [in a No-Fault Act claim] which must be
pleaded[.]”); see also Minn. Stat. § 65B.51, subd. 3. While death is a tort threshold and
Salguero’s complaint does allege that Mario died because of a motor-vehicle incident, these
broad allegations do not sufficiently plead a No-Fault Act claim.
Moreover, Salguero cited no cases to the district court—or to this court on appeal —
that would authorize a no-fault theory within the context of these employment-specific
facts. Salguero’s attorney agreed during oral argument that appellant could not find any
analogous case holding that appellant’s No-Fault Act theory was authorized by statute or
that the complaint’s general allegations were sufficient. By asserting a new theory that had
not been previously addressed by any court, the general allegations were not sufficient to
put respondents on notice of this novel theory. Given the lack of any notice in the
complaint,2 we agree with the district court that Salguero did not properly plead a No-Fault
Act theory or claim.

2 Salguero’s attorney admitted at oral argument that the first time he raised this no -fault
theory was in response to respondents’ motion for summary judgment.
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II. The district court did not err in determining that Hernandez owed Mario no
personal duty because he was acting in the scope of his employment at the time
of the incident.

Salguero argues the district court erred in granting summary judgment to Hernandez
on her Workers’ Compensation Act claim. Under the Workers’ Compensation Act, an
employer is required to compensate an injured employee for injuries incurred within the
scope of employment regardless of the employer’s fault. Minn. Stat. § 176.021, subd. 1.
Minnesota’s workers’ compensation system is “based on a compromise between
employees and employers and involves ‘a mutual renunciation of common law rights and
defenses by employers and employees alike.’ ” Stringer v. Minn. Vikings Football Club,
LLC, 705 N.W.2d 746, 754 (Minn. 2005) (quoting Minn. Stat. § 176.001).
The Workers’ Compensation Act generally precludes an injured employee from
bringing an action for damages against a coemployee. Minn. Stat. § 176.061, subd. 5(e).
But a plaintiff may bring an action against a coemployee if the coemployee caused the
injury through gross negligence or intentionally inflicted the injury. Id.
Appellant’s argument that Hernandez does not qualify for the statutory coemployee
immunity is premised on a gross-negligence theory. This theory requires Salguero to show:
1. the coemployee had a personal duty toward the employee,
the breach of which resulted in the employee’s injury, and that
the activity causing the injury was not part of the coemployee’s
general administrative responsibilities; and
2. the injury arose from gross negligence on the part of the
coemployee.

Stringer, 705 N.W.2d at 754 (quotation omitted). The district court ruled against Salguero
because she could not establish the personal-duty requirement.
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We review de novo whether a personal duty exists. Id. at 755. “To have a personal
duty to the injured employee, the coemployee must have (1) taken direct action toward or
have directed another to have taken direct action toward the injured employee, and
(2) acted outside the course and scope of employment.” Id. at 757 (citation omitted). To
determine whether a coemployee acted outside of his or her “course and scope of
employment,” the Minnesota Supreme Court has held:
“Scope of employment” is defined as “the field of action in
which a servant is authorized to act in the master-servant
relationship.” Black’s Law Dictionary 1374 (8th ed. 2004).
“Course of employment” refers to “[e]vents that occur or
circumstances that exist as a part of one’s employment; esp.,
the time during which an employee furthers an employer’s
goals through employer-mandated directives.” Id. at 378.
Under the workers’ compensation system, we have said that
course of employment refers to the time, place, and
circumstances of the incident causing the injury.

Id. at 758. Based on the supreme court’s definition, the district court determined that
Salguero cannot establish the personal-duty requirement because Hernandez acted in the
course and scope of his employment when driving the truck and attached trailer.
Salguero argues that Hernandez’s actions were outside the scope of his employment
for three reasons: (1) JC Fence is in the business of installing fences, not fixing or operating
trucks; (2) the scope of Hernandez’s employment did not include running over a coworker
with a truck; and (3) Hernandez’s actions violated JC Fence’s and Occupational Safety and
Health Administration (OSHA) rules. Salguero’s arguments are unpersuasive.
First, while Salguero accurately notes that JC Fence’s business is to install fencing,
Hernandez acted within the course and scope of his employment by driving a truck owned
9
by JC Fence. Hernandez regularly drove the truck to and from worksites to transport
fencing materials and was authorized to do so by the business owner. And even if driving
the truck was not explicitly within Hernandez’s defined duties, this activity was “related to
the employee’s duties” because the work was “in furtherance of the employer’s business.”
Stringer, 705 N.W.2d at 761 (quotation omitted). On the day of the incident, JC Fence’s
owner undisputedly directed Hernandez to reposition the truck and trailer before the
incident occurred. That JC Fence is in the fencing business does not negate that operating
the truck and trailer was within the course and scope of Hernandez’s employment.
Second, Salguero’s argument that running over a coworker with a truck was outside
the scope of Hernandez’s employment is misguided. The consideration is not whether the
injury was within the course and scope of employment, but whether the “incident causing
the injury” was within the course and scope of employment. Id. at 758. Fatally running
over a coworker with a truck would never be within an employee’s work duties. But the
incident causing the injury—driving the truck and trailer —was within the course and scope
of Hernandez’s employment.
Third, Salguero’s argument that Hernandez violated a rule of JC Fence by failing to
check the area before moving the truck finds no support in the record. Instead, the
undisputed facts demonstrate that Hernandez checked the rearview and both sideview
mirrors before moving the truck. Additionally, unlike an employee performing a
prohibited act—which falls outside the scope of employment— performing an authorized
act in a prohibited manner falls within the scope of employment. Lange v. Minneapolis-
Saint Paul Metro. Airports Comm’n, 99 N.W.2d 915, 918 (Minn. 1959); Stringer,
10
705 N.W.2d at 761. Here, Hernandez’s employer authorized him to operate the truck.
Even if Hernandez moved the truck in a prohibited manner, that does not support that
Hernandez acted outside the course and scope of his employment.
Salguero also cites to an OSHA violation issued to JC Fence for failing to use a
locking device to disconnect the power while Mario was inspecting the truck. But the
company, not Hernandez, was cited for an OSHA violation. And, again, even if Hernandez
acted in a prohibited manner by failing to use a locking device, he was performing an
authorized act in the scope of his employment when moving the truck. Id.
The district court correctly determined that Hernandez acted within the course and
scope of his employment when the incident occurred. Hernandez did not, therefore, have
a personal duty to Mario and is immune from liability under the workers’ compensation
statute. Because we affirm the district court’s summary- judgment order on the grounds
that no personal duty exists, we do not reach the question of gross negligence. 3
Affirmed.

3 We also reject Salguero’s vicarious liability theory against the employer. Salguero’s
exclusive remedy against the employer is within the Workers’ Compensation Act. Minn.
Stat. § 176.031 (“The liability of an employer prescribed by this chapter is exclusive and
in the place of any other liability to such employee, personal representative, surviving
spouse, parent, any child, dependent, next of kin, or other person entitled to recover
damages on account of such injury or death.”).