This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


Susan K. Gilbertson,


Richard Leininger, et al.,

Filed November 3, 1998
Holtan, Judge*

Dakota County District Court
File No. C7-97-6783

Donald G. Clapp, Michele M. Danielson, Clapp & Erickson, 1450 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for respondent)

William M. Hart, Katherine A. McBride, Meagher & Geer P.L.L.P., 420 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402; and

Ann Fitzgibbons, Coon, Barg, Fitzgibbons & Holman, 6131 Blue Circle Drive, Eden Prairie, MN 55344 (for appellants)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


Appellants Richard Leininger and Jacqueline Hess appeal from the judgment of the denial of their motion for JNOV and for a new trial. Because Leininger and Hess had a legal duty to obtain medical assistance for respondent Susan Gilbertson and because there is sufficient evidence of proximate causation, we affirm.


On November 26, 1995, Susan Gilbertson celebrated Thanksgiving at the home of her co-workers, Richard Leininger and Jacqueline Hess. Both Gilbertson and Hess drank heavily during the evening and Gilbertson decided to spend the night on the sofa, rather than attempt to drive home.

Leininger found Gilbertson the next morning in his nine-year-old son's bed. The blanket on the sofa where Gilbertson had started the night had blood on it. When Gilbertson came downstairs later in the morning, Leininger and Hess noticed that she had blood on her face and had been incontinent. While Hess and Leininger went on with their daily routine, Gilbertson spent most of the day either asleep or wandering aimlessly in the house, in her soiled clothing, unable to communicate. Concluding that Gilbertson was still intoxicated, Hess and Leininger took no action, other than to ask her to clean herself up, which Gilbertson failed to do. Nine hours after first viewing Gilbertson, Hess called a nurse's help line to ask what to do about the apparently intoxicated Gilbertson. Hess was told to attempt to stimulate Gilbertson with coffee and walking. Instead, Hess called another friend, who on viewing Gilbertson, immediately called paramedics. After extensive testing in the emergency room, Gilbertson was diagnosed with an acute subdural hematoma and skull fracture, requiring surgery. Gilbertson spent a lengthy time in the hospital and rehabilitation center, and continues to have serious residual problems, including seizures, brain impairment and physical weakness, which make it impossible to return to her job. An expert medical witness testified that a subdural hematoma is an active process that will continue to progress without medical intervention. If intervention is delayed, more blood can accumulate within the skull, pressing on the brain. In the expert's opinion, the sooner the intervention, the better the outcome.

After trial, the jury answered a special verdict stating that Hess and Leininger had been negligent in failing to timely summon medical assistance and that this was the proximate cause of Gilbertson's injury. They found no negligence on Gilbertson's part. The jury awarded damages of $391,800, including medical expenses, loss of earnings, and pain and emotional distress, both incurred and continuing. The trial court adopted the findings of the jury, and denied Hess and Leininger's motion for JNOV or new trial.


The issue of whether the denial or grant of JNOV was proper is a question of law, subject to de novo review. Huyen v. Driscoll, 479 N.W.2d 76, 78 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). If competent evidence exists reasonably tending to sustain the verdict, when viewed in a light most favorable to the verdict, a decision to deny JNOV will be upheld. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 141 (Minn. App. 1992). When reviewing a jury verdict, deference must be given to the jury's function of deciding the credibility of witnesses. Id. Only if the jury's findings are clearly contrary to the law and do not support the elements of the claim, should a reviewing court overturn the jury's decision on a motion for JNOV. See Huyen, 479 N.W.2d at 78.

A motion for a new trial based on insufficient evidence is granted only where a "preponderance of the evidence," viewed in a light most favorable to the verdict, suggests "jury mistake, improper motive, bias or caprice." Imdieke v. Blenda-Life, Inc., 363 N.W.2d 121, 124 (Minn. App. 1985) (citation omitted), review denied (Minn. Apr. 26, 1985).

In a claim for negligence, a plaintiff must prove the following basic elements: (1) the responsible party has a legal duty toward the plaintiff to take some action; (2) there is a breach of this duty; (3) the breach of duty is the proximate cause of the harm to the plaintiff; and (4) injury to the plaintiff results. Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982). If no evidence of duty is offered at trial, the claim of negligence fails. Id.

Hess and Lieninger allege that they had no affirmative legal duty to assist Gilbertson. A person generally has no duty to act for the protection of another, even if he realizes or should realize that action is necessary. Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789, 792 (Minn. 1995). However, certain conditions can create a special relationship where ordinarily one would not exist.

[When] a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger[.]

Depue v. Flateau, 100 Minn. 299, 303, 111 N.W. 1, 2 (1907) (negligence to send obviously ill guest out into snowstorm). More recently, we have concluded that if a person, having no duty, takes charge of another under circumstances so that a reasonable person could foresee the possibility of injury, that person must act to prevent the injury. Tiedeman v. Morgan, 435 N.W.2d 86, 88 (Minn. App. 1989) (homeowners owed duty to provide daughter's boyfriend, whom they knew had undergone heart surgery, with aid when he became ill), review denied (Minn. Mar. 29, 1989). There is sufficient evidence here that the jury could reasonably have concluded that Gilbertson was particularly vulnerable in her injured state, and that Hess and Leininger could reasonably have foreseen the possibility of injury if medical assistance was not obtained in a timely fashion.[1]

Hess and Leininger also challenge whether the evidence was sufficient to prove that the delay in summoning medical help was the proximate cause of Gilbertson's injury. The issue of proximate cause is a jury question and the decision of the jury will stand unless manifestly contrary to the evidence viewed in a light most favorable to the verdict. Norberg v. Northwestern Hosp. Ass'n, 270 N.W.2d 271, 274 (Minn. 1978). The jury could reasonably have concluded that Gilbertson's increasing confusion and instability, coupled with the expert's testimony regarding the nature and progression of the injury, support the conclusion that delay was the proximate cause of the seriousness of the injury. This conclusion is not palpably contrary to the evidence. Id.

Hess and Leininger argue that the trial court improperly limited the scope of the closing argument with respect to Gilbertson's contributory negligence. In general, counsel is afforded wide latitude in arguing to the jury. Mertes v. Estate of King, 501 N.W.2d 660, 667 (Minn. App. 1993). However, this is not a right without limitations. Miller v. Hughes, 259 Minn. 53, 58, 105 N.W.2d 693, 697 (1960) (if counsel argues matters not justified by evidence, court must instruct jury that evidence does not warrant such inference). The limitations placed on the argument were reasonable and within the discretion of the trial court.


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

[1] We note that Minnesota's Good Samaritan Law, Minn. Stat. § 604A.01 (1996), supports an affirmative duty to render aid at the scene of an emergency. This statute, however, does not preempt or diminish the common law preexisting duty of care, but rather affirms it. Tiedeman v. Morgan, 435 N.W.2d 86, 88 (Minn. App. 1989), review denied (Minn. Mar. 29, 1989).