This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Frank Claybourne, et al.,





Douglas Lamm, et al.,



Filed June 6, 2000


Amundson, Judge
Dissenting, Huspeni, Judge


Ramsey County District Court
File No. C59710138


Michael R. Docherty and Shannon E. W. Berg, Milavetz, Gallop & Milavetz, P.A., 6500 France Avenue South, Edina, MN 55435; and


Ronald Meshbesher, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellants)


J. Mark Catron and Carrie L. Hund, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112 (for respondents)


            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N



On appeal from a district court’s denial of appellants’ motions for judgment notwithstanding the verdict or a new trial, appellant challenges the jury’s 25% contributory negligence apportionment to him, arguing that no evidence presented at trial indicated that he contributed to his injuries.  One of the respondents seeks review of the district court’s aggregation of the respondent’s negligence, arguing that her liability should be dismissed because the jury’s apportionment of 20% liability to her is less than the 25% apportioned to appellant.  We reverse.


Appellants Frank and Ingrid Claybourne and respondents Douglas and Masami Lamm are next door neighbors.  Shortly after moving into their home in October 1996, Douglas Lamm began to renovate the interior.  In the spring of 1997, Frank Claybourne was given a tour of the Lamm home and was told some general information regarding the Lamm’s plan to renovate.

A stairwell connecting the ground floor to the basement is just inside the Lamm’s front door.  Originally a balustrade wrapped around the otherwise open and unprotected stairwell.  At the time Frank Claybourne received the home tour, this balustrade was intact and Douglas Lamm made no mention that it was ever to be removed.  A few days prior to July 1, 1997, the Lamms removed the balustrade as part of the renovation, initially placing various temporary barriers along the stairwell to prevent anyone from falling in.  Shortly before July 1, 1997, Douglas Lamm removed all barriers so that work could be done near the stairwell.

On the evening of July 1, 1997, Douglas Lamm was out of town when a fierce thunderstorm struck the area.  During the storm, lightning struck the power line outside the Lamm home, causing it to catch fire and resulting in a partial power outage at the home.  Masami Lamm, home alone, never having experienced a large thunderstorm before, called the Claybourne residence, sounding quite frightened.  The Claybournes tried to calm her on the telephone, and both assured her that Frank Claybourne would come to help her.

Frank Claybourne then went to the Lamm residence, opened the Lamm’s unlocked front door, pushed it partly open and called out to Masami Lamm.  After she responded, he told her to wait and that he was coming to her.  He then pushed the door open, pointed a flashlight into the air in the direction of her voice, and proceeded to walk in that direction.  The unlit foyer was extremely dark. Masami Lamm never warned Frank Claybourne that the stairwell immediately inside the front door was open and unprotected.  Advancing three or four steps from the door to the penetral, Frank Claybourne stepped into the unprotected opening in the floor and, of course, fell to the basement floor.  He broke his back, leg, shoulder blades, and also suffered contusions and abrasions about his back and head.

The Claybournes commenced a civil suit, alleging negligent home maintenance on the part of Douglas Lamm and negligent failure to warn on the part of Masami Lamm.  The matter was tried before a jury, which entered a general verdict awarding damages of $150,000 for Frank Claybourne’s past pain and emotional distress, $75,000 for his future pain and emotional distress, $25,000 for Ingrid Claybourne’s pre-trial loss of her husband’s services and companionship and $10,000 more for such loss in the future.

Additionally, the jury answered special verdict questions concerning comparative negligence.  In answering the special verdict questions, the jury found that Douglas Lamm was 55% at fault, Frank Claybourne was 25% at fault, and Masami Lamm was 20% at fault.  The Claybournes moved for JNOV or, alternatively, a new trial on the grounds that a jury finding of 25% fault for Frank Claybourne was not supported by the evidence.  The district court denied these motions.

In their post-trial proposed findings the Lamms argued that Masami Lamm’s 20% liability should be dismissed because the jury found her less at fault than Frank Claybourne.  The district court disagreed, holding Douglas Lamm jointly and severally liable for the entire injury, less the percentage of fault attributable to Frank Claybourne.  Furthermore, the court aggregated both Lamms’ liability for the purposes of the comparative negligence statute.  This appeal followed.


On review, this court will not set aside answers to special verdict questions unless they are “perverse and palpably contrary to the evidence” or unless the evidence is so clear that there is “no room for differences among reasonable people.”  Hanks v. Hubbard Broad., Inc., 493 N.W.2d. 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  “The evidence must be viewed in a light most favorable to the jury verdict.  If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.”  Id.  But where, after a complete review of the evidence, a jury’s finding of negligence or no negligence remains without any support whatsoever, this court may reverse a district court’s refusal to grant JNOV.  See, e.g., Leach v. Estate of Dahl, 419 N.W.2d 93, 97-99 (Minn. App. 1988) (finding a jury verdict of no negligence on the part of one defendant to be unreasonable).       

The Lamms contend that the jury had sufficient evidence from which to conclude Frank Claybourne was negligent.  Because Frank Claybourne had been given a tour of the home and was generally aware of the Lamm’s plan to renovate, the Lamms argue that Frank Claybourne negligently chose to proceed into the darkened Lamm home with his flashlight pointed forward instead of on the ground in front of him.

What of Frank Claybourne’s decision to come to the aid of Masami Lamm?  Should we hold that, in responding to an emergency not his own creation, a neighbor must carefully assess the risks and possible dangers involved in the plaintive call?  Frank Claybourne had no knowledge of the many dangers present within the Lamm home.  He knew only that the Lamms were planning renovations.  When he toured the home a year earlier, he was given no knowledge of the future condition of the staircase.

Judge Cardozo, in his seminal opinion in Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E., 437 (1921), reminds us that “The cry of distress is the summons to relief.”  Id. at 180, 133 N.E. at 437.  We are ill advised to ignore these human reactions of the mind coursing conduct to its natural conclusion.  They are normal and commonsensical.  Rescue, as in this case, cannot imperil the rescuer as a reward for his spontaneous and instinctive reaction.  Will we now impose the necessity upon citizens to deny this instinctive call with celerity and instead deliberate at length the possible dangers to themselves?  Do we not thereby thwart the rescue and lose its effect in delay?

Even assuming that Frank Claybourne could reasonably have foreseen the condition of the staircase, this court concludes that the rescue doctrine buttresses the reasonableness of Claybourne’s decision to come to the aid of Masami Lamm.  See, e.g., Arnold v. Northern States Power, 209 Minn. 551, 558-60, 297 N.W. 182, 186-87 (1941) (allowing application of the rescue doctrine when, in coming to the aid of a motorist injured in a car accident, a bystander ignorant of electricity, was electrocuted when he attempted to pass under live wires dislodged by the accident).

As to the Lamm’s assertion that a jury could find negligence in Frank Claybourne’s decision to aim his flashlight ahead of him instead of down at the floor, the same analysis applies; his decision can only be characterized as negligent if he is expected to assume the possibility that a secret, gaping, unprotected trap exists just inside his neighbor’s front door.  We think it unreasonable, as a matter of law, for an individual with no actual notice of the existence of a hole in a floor to be held negligent for failing to assume such a dangerous condition might exist.

Because we conclude Frank Claybourne was not negligent as a matter of law, we need not address the Lamm’s challenge to the district court’s aggregation of their liability.  Both Douglas and Masami Lamm are jointly and severally liable for the full amount of damages.


HUSPENI, Judge (dissenting)

I respectfully dissent and would affirm the trial court in its refusal to disturb the verdict of the jury.  It is the role of the jury, and not the court, to determine what weight to attribute to the evidence.  We have previously held that verdicts are not to be disturbed if the jury’s finding can be reconciled on any theory.  Hanks v. Hubbard Broad. Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

The jury had two theories under which it could have found appellant negligent.  The jury could have found negligence in the decision of appellant to leave his home and go to the Lamm home, which he knew had been struck by lightning and was dark.  The fact that appellant took a flashlight with him indicates that he was aware that he may be encountering unknown and invisible hazards.  The jury could have found that appellant had taken certain risks in purposefully entering the darkened home.

The rescue doctrine should not apply here.  Appellant knew that Masami Lamm was frightened, but she did not tell him that she was in danger, and there is no evidence that he believed that she was in danger.  Appellant believed that he might be of help.  But we have previously limited our application of the rescue doctrine to situations in which a person is in great peril.  Applying this doctrine here would, I believe, result in its unwarranted extension.

The jury might also have concluded that appellant was negligent in how he entered the Lamm home.  Given the unknown conditions there, the jury could have concluded that appellant should have surveyed the area prior to stepping into the home.  The jury could have concluded that appropriate use of the flashlight by appellant would have revealed the dangerous condition that led to his serious injury.

Because I conclude that the jury had before it sufficient evidence to find negligence on the part of appellant, it is necessary to address the additional issue of whether the trial court erred in aggregating the negligence of Douglas and Masami Lamm.  I believe the trial court erred in so doing, and would reverse with instructions to enter judgment for appellant in an amount representing 55% (Douglas Lamms’ negligence) less 25% (appellant’s negligence) of damages.  

I submit that the question of joint and several liability is totally separate from the question of whether aggregation is appropriate.  Indeed, had the negligence of each of the Lamms exceeded the negligence of appellant (for instance, if negligence had been apportioned by the jury 20% to appellant, 25% to Matsami Lamm, and 55% to Douglas Lamm), appellant could have chosen to collect the entire amount of his judgment (100% less appellant’s own 20% negligence) from either of the Lamms, leaving the issue of contribution to be decided between the two of them.

Finding that joint and several liability may apply in a case does not and cannot lead automatically to application of the concept of aggregation.  Minnesota caselaw has consistently held that aggregation is appropriate only when defendants are engaged in a joint enterprise.  Tester v. American Standard, Inc., 590 N.W.2d 679, 681 (Minn. App. 1999) (citing Krengel v. Midwest Automatic Photo, Inc., 295 Minn. 200, 209, 203 N.W.2d 841, 847 (1973)), review denied (Minn. June 16, 1999).  A joint enterprise requires:  (1) contribution — combining either money, property, time, or skill in a common undertaking; (2) joint proprietorship and control — the parties having a proprietary interest and a right of control over the subject matter; (3) sharing of profits * * *; and (4) a contract—either express or implied.  Krengel, 295 Minn. at 209, 203 N.W. 2d at 847. 

Aggregation is reserved for cases involving joint enterprise; it is inapplicable in this case involving a husband and wife working together to renovate their homestead.  All four factors must be met in order for a joint enterprise to exist.  Two are wholly absent in this case: there are no profits, nor is there a contract.  See Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 798 (Minn. 1982) (“Absent proof of an economic joint venture, current Minnesota law is clear that defendant’s fault is not to be aggregated in applying our Comparative Fault Statute”).

I would affirm the jury verdict and reverse the application of aggregation in this case.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.