author: STRINGER, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Marvin Russell LARSEN, Respondent.
    No. C5-01-980.
    Supreme Court of Minnesota.
    Aug. 29, 2002.

      Mike Hatch, Attorney General, St. Paul, MN, G. Paul Beaumaster, Nathaniel J. Reitz, Faribault, MN, Appellant.
    Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Shakopee, MN, Respondent.
    Kevin G. Ross, Greene Espel, P.L.L.P., Minneapolis, MN, Attorney for Amicus Minnesota Conservation Officers’ Association.
   OPINION

STRINGER, Justice.

In the course of his duties, a Minnesota conservation officer entered the fish house of Marvin Russell Larsen (respondent) to conduct a routine license check. Upon entry, the officer discovered that respondent had three fishing lines in the water and that he was in possession of marijuana. Respondent was charged with a controlled substance offense and angling with one more line than allowed under his license. Respondent moved to suppress all evidence as obtained in an unauthorized search of his fish house. The district court granted respondent’s motion and dismissed all charges, and the court of appeals affirmed. We affirm.

On the evening of January 31, 2001, Officer Scott Fritz, a licensed peace officer employed by the Minnesota Department of Natural Resources as a conservation officer, was patrolling fish house activities on Circle Lake in Rice County, Minnesota. Circle Lake has a public access that provides an entrance point for anglers and snowmobilers and Officer Fritz estimated that on this particular day there were approximately 60 to 80 fish houses on the lake. In the performance of his duties under Minn.Stat. § 97A.215 (2000), Officer Fritz proceeded from fish house to fish house knocking on occupied shelters, identifying himself, and checking licenses. At approximately 6:30 p.m., Officer Fritz arrived at respondent’s fish house which was illuminated and had a vehicle parked next to it. Officer Fritz knocked on the door, identified himself as a state game warden and simultaneously opened the door. As he entered, he had no reason to suspect a violation of fishing laws and concedes that respondent did not expressly consent to his entry. Officer Fritz believed however, that he had authority to enter and inspect occupied fish shelters in this manner under Minnesota law.

Upon entering the fish house, Officer Fritz noticed a strong smell of marijuana and saw what appeared to be a marijuana cigarette. He conducted a pat-down search of respondent and found a bag of marijuana. He also noticed that respondent had three lines in the water when only two are permitted. Respondent was charged with possession of a controlled substance pursuant to MinmStat. § 152.027, subd. 4 (2000), and unlawful angling lines pursuant to Minn.Stat. § 97C.315 (2000).

Respondent moved to suppress all evidence obtained as a result of Officer Fritz’s entry and search of his fish house and to have the charges against him dismissed, asserting that Minn.Stat. § 97A. 215 authorizing a conservation officer to “enter and inspect” his fish house was unconstitutional. Respondent further argued that a fish house is a temporary place of occupancy for anglers, and as such, it is frequently equipped with various accommodations for short-term living including heating, cooking, and other conveniences such as television and sleeping accommodations, much like a private home, and as with a private home, an enforcement officer is without lawful authority to conduct a search of a private fish house without a warrant or other circumstance authorizing an entry. The district court granted respondent’s motion ruling that although a fish house was not necessarily comparable to a home, an occupant has a reasonable expectation of privacy and Officer Fritz’s entry into respondent’s fish house without consent, a warrant, probable cause, or ar-ticulable suspicion was unlawful. In doing so, the district court rejected the state’s argument that the exception to the warrant requirement for administrative inspections of “closely regulated” businesses applied, see New York v. Burger, 482 U.S. 691, 693, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), noting that recreational fishing is a purely private activity and occupants should not be subject to the more relaxed standards of right to privacy accorded commercial entities.

The state appealed asserting that Officer Fritz’s entry into respondent’s fish house without a warrant was authorized under Minn.Stat. § 97A.215, subd. 3:

An enforcement officer may, at reasonable times:
(1) enter and inspect the premises of an activity requiring a license under the game and fish laws;
‡ ⅜ ⅜ ⅜?

The state argued that the statute and regulatory inspections conducted pursuant to it are constitutional and that despite whatever comforts may be added, occupants of a fish house have no greater an expectation of privacy than occupants of a commercial business. The court of appeals disagreed and affirmed the district court’s ruling. State v. Larsen, 637 N.W.2d 315, 316, 325 (Minn.App.2001). The court rejected the state’s argument that to effectively enforce conservation laws conservation officers must have broader powers than other law enforcement officers and that the Minnesota Legislature authorized those broader powers in Minn.Stat. § 97A.215. Id. at 323-25. The court did not declare the statute unconstitutional, but concluded that the authority of a conservation officer to search a person or place, like that of all other law enforcement officers, is subject to and limited by the Minnesota Constitution and the Fourth Amendment of the United States Constitution. Id. at 323-24. The court ruled that the statutory provisions authorizing entry and inspection at “reasonable times” must be interpreted to authorize entry only when constitutionally permissible. Id. at 324. We granted review of the court of appeals decision.

I.

In reviewing pretrial orders suppressing evidence where the facts are not in dispute, we independently review the record and determine, as a matter of law, whether the district court erred in suppressing the evidence. See State v. Harris, 590 N.W.2d 90, 98 (Minn.1999); State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). Whether a statute is constitutional and whether it has been properly construed are questions of law subject to our de novo review. State v. Behl, 564 N.W.2d 560, 566 (Minn.1997); State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Statutes are presumed constitutional, and the court will exercise its power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. Boutin v. LaFleur, 591 N.W.2d 711, 714 (Minn.), cert. denied, 528 U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326 (1999).

The right to be free from unauthorized entry into one’s abode is ancient and venerable. As William Pitt, Earl of Chatham, so vividly put it in 1766:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter — but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!

Speech on the Excise Bill, House of Lords (1766), in The MacMillan Book of Proverbs, Maxims,.and Famous Phrases 1191— 92 (Burton Stevenson ed., 1948). Similarly, the dissenting opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), memorably captures the importance of this fundamental right:

[T]he right to be left alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Id. at 478, 48 S.Ct. 564 (Brandéis, J., dissenting). Concerns for this essential element of our personal freedom are reflected in the Fourth Amendment and art. I, § 10 of the Minnesota Constitution protecting the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const, amend. IV; see Minn. Const, art. I, § 10.

Entry constitutes a search whenever there is an intrusion upon an area where a person has a reasonable expectation of privacy. State v. Hardy, 577 N.W.2d 212, 215 (Minn.1998). Warrant-less searches where an individual has a reasonable expectation of privacy “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see also Matter of Welfare of D.A.G., 484 N.W.2d 787, 789 (Minn.1992) (extending the per se concept to the Minnesota Constitution); O’Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979) (discussing the greater protections available under the Minnesota Constitution). But an expectation of privacy does not have the constitutional right to • be free from impermissible search as its roots. As the Supreme Court noted in Minnesota v. Carter, an expectation of privacy “has ‘a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

The Supreme Court has recognized that an expectation of privacy is reasonable in one’s home and curtilage, Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 .L.Ed.2d 639 (1980), in one’s automobile, Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and in a closed telephone booth, Katz, 389 U.S. at 352, 88 S.Ct. 507. We have similarly acknowledged a constitutionally protected expectation of privacy in one’s home and curtilage, State v. Perkins, 582 N.W.2d 876, 878 (Minn.1998), Garza v. State, 632 N.W.2d 633, 639 (Minn.2001), in one’s automobile, State v. Goodrich, 256 N.W.2d 506, 510 (Minn.1977), and in a public restroom, State v. Bryant, 287 Minn. 205, 211-12,177 N.W.2d 800, 804 (1970).

The Supreme Court and the courts of Minnesota have applied balancing tests to determine the constitutionality of law enforcement searches and seizures under the federal and state constitutions where the nature and significance of the intrusion on the individual’s privacy interests are balanced against the gravity of the public concerns it serves and the degree to which the conduct at issue advances the public interest. For example, in Prouse, the Supreme Court held that the state’s interest in ensuring roadway safety did not outweigh the intrusion on the privacy and security of persons detained in random automotive stops for the purpose of checking driver’s license and registration, 440 U.S. at 659, 99 S.Ct. 1391. Similarly in Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court considered the validity of a conviction under a state statute requiring a person to provide his name and address to an officer who lawfully stops the person and requests the information. The Court concluded that because the officers lacked any reasonable suspicion to believe that the defendant was involved in criminal activity when he was stopped, the balance between the public interest in crime prevention and the defendant’s right to personal privacy tilted in favor of freedom from police interference. IcL On the other hand, in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the Supreme Court determined that the state’s interest in preventing drunken driving and the extent to which Michigan’s highway sobriety checkpoint program reasonably advanced that interest outweighed the intrusion on motorists required to stop at random sobriety checkpoints.

We applied a balancing test in Ascher v... Comm’r of Public Safety, 519 N.W.2d 183, 186-87 (Minn.1994), and on facts similar to those in the Supreme Court decision in Sitz, we came to the opposite conclusion. We held that the state failed to articulate a persuasive reason for dispensing with the usual individualized suspicion requirement when it used temporary roadblocks to stop vehicles for the purpose of apprehending alcohol-impaired drivers, and therefore the stop violated Minn. Const, art. I, § 10. Ascher, 519 N.W.2d at 186-87. We ruled that the constitutional balance weighed in favor of protecting the traveling public from even minimal intrusion. Id. at 187.

The state argues that longstanding laws regulating angling in Minnesota have alerted anglers for decades that conservation officers are authorized to enter their fish houses without permission or probable cause, citing Minn.Stat. § 97.50, subd. 1(4) (1945) (now found at Minn.Stat. § 97A.215, subd. 3), and further, anglers are aware that they are prohibited from locking out regulatory inspectors, citing Minn.Stat. § 97C.355, subd. 3 (2000). Therefore, the state argues, anglers in a fish house can have no reasonable expectation of privacy.

We consider the nature of the premises here — á fish house, erected and equipped to protect its' occupants from the elements and often providing eating, sleeping, and other facilities — as providing privacy for activities “ ‘recognized and permitted by society.’ ” Carter, 525 U.S. at 88,119 S.Ct. 469 (citation omitted). While clearly not a substitute for one’s private dwelling, during the period of occupancy important activities of a personal ■ nature take place. We therefore conclude appellant had a reasonable expectation of privacy in his fish house. The question then is whether the public interest in preserving and protecting its natural fish resource by permitting conservation officers to enter fish houses without probable cause is sufficient to justify the violation of appellant’s reasonable expectation of privacy in violation of his constitutional rights. We conclude that it is not.

Our ruling in Ascher is particularly informative here. In Ascher, we ruled that the key issue was not whether the stops were discriminatory, but that the state had failed to articulate a sufficiently persuasive reason for departing from the general requirement that stops of motorists be based on individualized suspicion. 519 N.W.2d at 186. We held that the state was not able to show that complying with the rule requiring individualized suspicion was impractical, for example, or that departing from it would significantly increase the effectiveness of law enforcement. Id. at 186-87. Nor was the state able to show that the purpose for deviating from the rule requiring individualized suspicion outweighed the interests of ordinary citizens in not having their privacy invaded by police, absent individualized suspicion. Id. at 187. We held that the roadblocks violated Minn. Const, art. I, § 10. Id.

Comparing the privacy interest of appellant in his fish house with that of the occupants of motor vehicles stopped at the roadblocks in Ascher, we have no difficulty concluding that appellant’s privacy interest is at least as great as that of the motor vehicle occupants in Ascher. Personal activities of occupants of a fish house would certainly have privacy values “ ‘recognized and permitted by society,’ ” Carter, 525 U.S. at 88, 119 S.Ct. 469 (citation omitted), at least equal to those of occupants of a motor vehicle traveling public highways. Similarly, the public interest at stake here — protection of the fishing resource'— is surely no greater than that at stake in Ascher — protection of human lives through deterrence of drunk driving. Our ruling in Ascher then, that even the state’s interest in apprehending drunk drivers does not outweigh the right of privacy in an automobile, is compelling in reaching our conclusion that respondent had a reasonable expectation of privacy that was violated when Officer Fritz entered his fish house on January 31 without permission, probable cause or other justification.

II.

The state argues however, that based on the duration and pervasiveness of Minnesota’s regulatory scheme of conservation evidenced by our constitution and state laws, entry into fish houses falls within an exception to the constitutional protections from search because it is an administrative inspection in a “closely regulated” industry. See, e.g., United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (involving business engaged in sale of firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (involving business engaged in sale of liquor). In so arguing, the state relies heavily on the United States Supreme Court decisions in New York v. Burger, 482 U.S. 691, 107 5.Ct. 2636, 96 L.Ed.2d 601 (1987), and Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

In Burger, the Supreme Court considered the constitutionality of a New York statute authorizing warrantless inspections of automobile junkyards. 482 U.S. at 695-99, 107 S.Ct. 2636. The court noted that although Fourth Amendment protection from unreasonable searches and seizures is applicable to commercial premises as well as private homes, the expectation of privacy in commercial property is less than in an individual’s home and is “particularly attenuated in commercial property employed in ‘closely regulated’ industries.” Id. at 699-700, 107 S.Ct. 2636. The Court ruled that a warrantless inspection of commercial premises is reasonable if three criteria are met:

(1) There [is] a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made;
(2) The warrantless inspections [are] necessary to further the regulatory scheme; and
(3) The statute’s inspection program, in terms of certainty and regularity of its application, [provides] a constitutionally adequate substitute for a warrant.

id at 702-03, 107 S.Ct. 2636 (internal alterations, citations and quotations omitted).

The state claims that all three criteria are met justifying Officer Fritz’s warrant-less search on the basis that fishing is a regulated industry. The state first argues that it clearly has a substantial interest in regulating the taking of its fish to ensure the resource is not exploited or depleted, and that the regulatory scheme at issue here informs this substantial interest because the state’s interest in resource conservation outweighs the privacy interests of the angler. The state claims that this enforcement scheme is necessarily different from that used to enforce traffic regulations because automobile travel is “basic, pervasive, and often necessary,” citing Prouse, 440 U.S. at 662, 99 S.Ct. 1391, while ice fishing is merely recreational.

Second, the state argues that warrant-less inspections are necessary to further Minnesota’s regulatory scheme because the possibility of being randomly checked by a conservation officer is essential for deterring violations and protecting Minnesota wildlife. As to the third requirement in Burger, the state asserts that its inspection program provides a constitutionally adequate substitute for a warrant because Minnesota statutes provide anglers with clear notice that random unannounced inspections will be conducted.

Respondent claims that these criteria are not met, but that even if they are, the exception to the warrant requirement articulated in Burger is limited to commercial activities and has no application to recreational ice fishing. The state responds that it is reasonable under Carter to extend the Burger analysis to Minnesota fish houses because in Carter, the Supreme Court held that a short-term guest in another’s home engaging in a commercial activity did not have a legitimate expectation of privacy to challenge a search of the home. 525 U.S. at 91, 119 S.Ct. 469. The Court emphasized the “purely commercial nature” of the transaction for which the guests were present, and despite the status of the premises as a dwelling, the Court held that property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. Id. at 90-91, 119 S.Ct. 469.

Relying on Carter, the state asserts that the applicability of Burger to fish houses cannot be dismissed merely by concluding that a fish house is not a place of business. The activity in which the occupants are engaged is also important and affects an individual’s expectation of privacy. The state argues that the taking of fish is more like a closely regulated business than a domiciliary activity because it constitutes a property transaction between the state, as owner of the fish, and the angler who has actively chosen to participate and acquiesce in the regulatory scheme by obtaining a permit to fish in a fish house. The conservation officer, then, is uniquely empowered to enforce these regulations not as an agent of the state’s sovereign police power, but as a “warden” of the state’s fish and game.

Respondent argues the state’s reliance on Carter is misplaced, characterizing Carter as a case about standing, and rejects the state’s argument that ice fishing is sufficiently similar to a “closely regulated” industry to justify a warrantless search. A more fitting analogy, respondent asserts, would be an unauthorized entry into a home, or perhaps a motor home, as many fish houses are equipped with similar amenities, and even if a fish house could be characterized as commercial property, the occupant still maintains at least some expectation of privacy, citing Katz, 389 U.S. at 359, 88 S.Ct. 507; See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967). See also Burger, 482 U.S. at 700, 107 S.Ct. 2636. Respondent goes on to argue that the statute on which the state relies to justify Officer Fritz’s unauthorized entry is unconstitutional because it allows law enforcement to enter a private ice fishing house without restriction, according less constitutional protection to Minnesota citizens than they would enjoy under federal law, citing State v. Sorenson, 441 N.W.2d 455, 459 (Minn.1989) (“A statute cannot confer rights on law enforcement officers that the U.S. Constitution denies.”).

We do not perceive recreational ice fishing in a private fish house comparable to running an automobile junkyard business, operating a licensed gun dealership, or engaging in the sale of alcoholic beverages for purposes of the closely regulated industry exception. See Burger, 482 U.S. at 691, 107 S.Ct. 2636; Biswell, 406 U.S. at 311, 92 S.Ct. 1593; Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). Each of these industries is a narrow field of commercial activity where, absent regulations and readily ascertainable compliance, serious personal safety concerns or felony level criminal conduct could reasonably be expected. That is not the case here as no personal safety concern is at stake, and under our statutory scheme a violation of fishing regulations is a misdemeanor only. Indeed, in the context of the regulatory scheme, it is no more pervasive or comprehensive than the state’s traffic rules and regulations, see Minn.Stat. § 169.01 et seq., an area of law enforcement this court has consistently held may not be initiated without at least a reasonable articulable suspicion of unlawful conduct.

As the Supreme Court noted in Almeida-Sanehez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), in rejecting the government’s reliance on Colonnade and Biswell as justification for an automobile search:

A central difference between [Colonnade and Biswell ] and this [case] is that businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business.

(emphasis added.) We conclude that angling from a fish house is not a closely regulated industry fitting within the exception to the need for constitutional authorization for a search as set forth in Burger.

While the state clearly has a strong interest in regulating and protecting its wildlife, by no means does that interest exceed the state’s interest in saving human lives by deterring drunk driving on our roads found insufficient to outweigh the privacy interests of the occupant of a motor vehicle in Ascher. 519 N.W.2d at 187. The occupant of a fish house is entitled to the protections against unreasonable search and seizure afforded by our federal and state constitutions, and while we do not hold that Minn.Stat. § 97A.215, subd. 3 is unconstitutional, we do hold that these constitutional protections must be read into the “at reasonable times” language of subdivision 3. See Minn.Stat. § 645.17(3) (2000) (providing the presumption that the legislature does not intend to violate the constitution of the United States or Minnesota Constitution). As conservation officers are subject to the same constitutional constraints as other law enforcement officers in the performance of their duties, the warrantless search of a fish house by a conservation officer is per se unreasonable in the absence of express consent or other circumstance justifying entry and therefore is unconstitutional under the Fourth Amendment of the United States Constitution and article I, § 10 of the Minnesota Constitution.

Affirmed.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . Minnesota Statutes § 97A.215, subd. 3 (2000) provides:
      An enforcement officer may, at reasonable times:
      (1) enter and inspect the premises of an activity requiring a license under the game and fish laws; and
      (2) stop and inspect a motor vehicle requiring a license under the game and fish laws.

      . The court of appeals emphasized the similarity between the facts of this case and those of State v. Krenz, 634 N.W.2d 231 (Minn.App.2001), where the court likewise dismissed the state’s arguments that the warrantless entry of a fish house was constitutional. Larsen, 637 N.W.2d at 317-22.

      . The statute does not define the "at reasonable times" limitation it places on an enforcement officer’s authority to inspect under subdivision 3. In comparison, the language of subdivisions 1 and 2, pertaining to the storage of wild animals and the inspection of certain records respectively, does not reference reasonableness but does limit an enforcement officer's right to inspect to circumstances where the officer "has probable cause to believe” there has been a violation. Minn.Stat. § 97A.215, subds. 1-2 (2000).

      . The legislature apparently does not disagree because in Minn.Stat. § .97A.205 (2000), outlining the powers of enforcement officers including conservation officers, it has provided: “Nothing in this section grants an enforcement officer any greater powers than other licensed peace officers.'' See also Sorenson, 441 N.W.2d at 459 (indicating that searches by “[c]onservation officers, like other law enforcement officers, are subject to the requirements of the fourth amendment and other constitutional provisions” as "the same possibilities exist for abuse”).

      . It is true that unlike traffic violations, fishing violations committed in fish houses may be difficult to detect and evidence may be destroyed before a warrant can be obtained, but ease in enforcing the law has never been a sufficient justification for government intrusion. As we stated in Hardy, where we ruled that a police officer's request that a defendant open his mouth was a search for Fourth Amendment purposes: "[T]he possibility that [the defendant] might ingest whatever substance was in his mouth did not eliminate the need for police to have probable cause to believe that the substance was evidence of a crime before they could search for it.” 577 N.W.2d at 217.

      . See Minn. Const, art. XIII, § 12 (imposing on the state a duty to manage "[h]unting and fishing and the taking of game and fish * * ⅜ by law and regulation for the public good” as they are "a valued part of our heritage”); see generally Minn.Stat. 97A, 97C (2000).

      . The state further emphasizes these points by citing language from Justice Blackmun’s concurrence in Prouse where he distinguished the state’s interest in police spot-checks for motor vehicles from those at stake in the context of hunting and fishing:
      I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court's balancing process, and the value factors under consideration, would be quite different.
      440 U.S. at 664, 99 S.Ct. 1391 (Blackmun & Powell, JJ., concurring). But the views of the Supreme Court on federal constitutional protection from search and the views of this court based on the Minnesota Constitution do not always coincide. Compare Sitz, 496 U.S. at 455, 110 S.Ct. 2481, with Ascher, 519 N.W.2d at 187.

      . Amicus Minnesota Conservation Officers’ Association (MCOA) joins in these arguments, adding that if a fish house is treated as a home for Fourth Amendment purposes it would render enforcement of the numerous resource preservation regulations impossible, or at least ineffective, as evidence could immediately be disposed of when the conservation officer requests permission to enter and a fish house could be moved before a warrant could be secured, if a warrant could be secured at all.

      . Respondent emphasizes this point by distinguishing the activity at issue here from "commercial fishing," defined under state law as "taking fish * ⅜ * for sale.” Minn.Stat. § 97A.015, subd. 9 (2000).

      . The state asserts an angler is no different than a gun dealer who, by choosing to accept a federal license and engage in the business of dealing in guns, essentially consents to the various inspections authorized by law, citing United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

      . Violations of the fish and game laws are generally categorized as misdemeanors. Minn.Stat. § 97A.301, subd. 6 (2000).

      . See, e.g., State v. Britton, 604 N.W.2d 84, 89 (Minn.2000) (holding fact that vehicle had broken window was insufficient to support trial court conclusion that officer had a reasonable and articulable suspicion of criminal activity justifying investigative stop); State v. Pike, 551 N.W.2d 919, 922 (Minn.1996) (finding officer's stop of vehicle thought to be driven by owner with revoked license was not unconstitutional because officer had a reasonable suspicion of criminal activity); State v. Johnson, 444 N.W.2d 824, 827 (Minn.1989) (finding stop of vehicle warranted where officer reasonably suspected driver of wrongdoing based on his evasive conduct); Berge v. Comm'r of Public Safety, 374 N.W.2d 730, 732-33 (Minn.1985) (stating vehicle stops are constitutional where police have reasonable belief that traffic violation has occurred); Marben v. State, Dep’t of Public Safety, 294 N.W.2d 697, 699 (Minn.1980) (concluding that hazardous driving reported by another driver was sufficient to provide officer with a specific and articulable suspicion of a violation sufficient to warrant vehicle stop); State v. Engholm, 290 N.W.2d 780, 784 (Minn.1980) (concluding officer had specific and articulable reasons to suspect driver was under the influence of some intoxicant; thus investigative stop of vehicle was proper); State v. Johnson, 257 N.W.2d 308, 309 (Minn.1977) (concluding evidence seized in vehicle stop must be suppressed where officer was unable to sufficiently articulate suspicion prompting stop); State v. McKinley, 305 Minn. 297, 303-04, 232 N.W.2d 906, 910-11 (Minn. 1975) (holding that police may not stop a driver for a routine license check absent reasonable suspicion of any motor-vehicle violation or other crime).


source: Caselaw Access Project

author: GILBERT, Justice. ANDERSON, RUSSELL A. STRINGER, Justice

license: Public Domain

text:
    Dean E. MORLOCK, et al., Petitioners, Appellants, v. ST. PAUL GUARDIAN INSURANCE COMPANY, Respondent.
    No. C2-01-340.
    Supreme Court of Minnesota.
    Aug. 29, 2002.

      Krass & Monroe, P.A., Phillip R. Krass, C. John Jossart, Minneapolis, MN, for Appellant.
    Bassford, Lockhart, Truesdell & Briggs, Michael A. Klutho, Charles E. Lundberg, Minneapolis, MN, for Respondent.
    Meagher & Geer, P.L.L.P., William M. Hart, Minneapolis, MN, for Amicus Curiae — Minnesota Defense Lawyers Association.
   O P PN I O N

GILBERT, Justice.

This case involves whether or not the district court erred in giving an aggravation of a preexisting condition instruction based on CIVJIG 91.40 and, if so, whether a new trial is warranted. Appellants Dean E. Morlock and Judy A. Morlock brought suit against respondent St. Paul Guardian Insurance Company after Dean Morlock was injured in an automobile accident, seeking to recover underinsured motorist benefits for Dean Morlock’s injuries and for Judy Morlock’s loss of consortium. At the end of trial, and over respondent’s objections, the district court instructed the jury on aggravation of a preexisting condition based on CIVJIG 91.40. The jury returned a special verdict awarding $508,060.50 in damages to Dean Morlock and $125,000 for loss of consortium to Judy Morlock. Respondent moved for judgment notwithstanding the verdict, a new trial, or, in the alternative, remittitur of the damages award. This motion was denied and respondent appealed, arguing that the district court erred in giving a prejudicial jury instruction based on CIVJIG 91.40 and in declining to grant remittitur. The court of appeals reversed and remanded for a new trial. We reverse.

On September 15,1996, an underinsured motorist rear-ended a car driven by appellant Dean Morlock (Morlock). Appellants sued respondent seeking to recover under-insured motorist benefits for severe and permanent back and neck injuries alleged to be the result of this accident. Morlock conceded that he had some intermittent back strains through the years after injuring his back in 1957; however, he argued that he had fully recovered and had been free of any symptoms prior to the accident.

According to Morlock’s own testimony, the accident caused, , among others, the following consequences: (1) he is only able to sleep for 2 or 2 1/2 hours every night, (2) he is unable to pick up his grandson, (3) he is unable to walk up and down from his home to the lakeshore, (4) he is unable to do maintenance or chores around his house, (5) he is unable to go into his son’s swimming pool, (6) he is unable to work as effectively at his job as a real estate agent, and (7) he can no longer serve as a condemnation commissioner or real estate teacher because of the sitting and standing required for these activities. He testified that all of these consequences were the result of his injuries from the accident rather than any of his preexisting conditions. Judy Morlock did not testify.

Appellants presented several other witnesses at trial. Darlene Schuman, Mor-lock’s sister-in-law, testified that before the accident Morlock was an active man who “was able to do anything that needed to be done at [appellants’] house,” which included cleaning the garage, loading suitcases when traveling, and doing yard work. She also testified that Morlock was able to bowl, golf, and dance before the accident. She then testified that as a result of the accident Morlock cannot do the things that he used to be able to do and instead has to walk with two canes.

Frank Schuman, Morlock’s brother-in-law, testified that during a hunting trip with Morlock around 1990, he witnessed Morlock dragging an 8-point mule deer, that dressed out at 205 pounds, back to camp by himself. He further testified that Morlock was always in good athletic condition before the accident and that Morlock had absolutely no problem with walking and turning when he hunted with him. Schuman testified that, prior to the accident, he had witnessed Morlock use a “monstrous chainsaw” that was “more than what [Schuman cared] to lift and carry, let alone use, but [Morlock] was very capable of using that to cut large trees.”

Several other witnesses also testified about how Morlock’s physical capabilities changed as a result of the accident. Mor-lock’s son, who worked with Morlock, testified that before the accident his dad was “always real active.” He stated that before the accident he had hunted deer with his dad every year in Roseau and that, as a result of the accident, Morlock had to get a special permit allowing him to hunt from his car on some land just west of Prior Lake. Morlock’s son testified that Morlock can no longer bowl and has to use a golf cart to get from his house to the lakeshore. Morlock’s daughter also testified, stating that Morlock has to use a golf cart to go down to the lakeshore and that he is unable to lift his grandson. She stated, “the things that he used to be able to do on his own, he needs assistance with now.”

Two of Morlock’s coworkers also testified. One coworker testified that as a result of the accident Morlock has difficulty getting in and out of cars and that it appears to be painful for him to do so. She testified that since the accident she has never seen Morlock walking without the assistance of two canes. Another coworker stated that he had witnessed “a middle aged man grow old in a hurry.” He further testified that Morlock is slow at getting in and out of cars and sales meetings appear to be extremely uncomfortable for him.

Testimony from videotaped depositions of two medical experts was introduced in support of appellants’ claims. Dr. Bruce Norback, a neurologist who began treating Morlock in January 1997, testified that Morlock had been given a 10 percent workers’ compensation disability rating in 1957. This rating was for back injuries incurred when Morlock fell off a loading dock and landed 4 to 5 feet below across a 2x6 brace, injuring his right lumbar area. Norback testified that this 10 percent disability was permanent and that it had not gone away and that Morlock continues to be treated for the low back injury he suffered in 1957. He went on to testify that the injuries from the 1957 fall, specifically pain in his right lumbar area and radiation into the right thigh and calf, involved the same sort of pain he was complaining about after the 1996 accident. Norback acknowledged that Morlock had been hospitalized several times for problems associated with the 1957 injury prior to the 1996 accident and that these preac-cident complaints about low back pain and pain going down into Morlock’s right leg were identical to Morlock’s complaints made after the accident. However, when Norback was asked directly if the 1957 injury had anything to do with the postac-cident symptoms and pain Morlock had described to Norback, he replied,

Well, I don’t think it does. * ⅜ * [A]ll the way through his [sic] 1970’s, 1980’s [there] is intermittent back pain that he goes to see physicians for. But really after 1991 there is this hiatus of nothing, no bad flare-ups of back pain, no hospitalizations, nothing else. * ⅜ ⅝ I think the culprit here is still the accident of September 1996 to a reasonable degree of medical certainty.

Norback testified that all of the neck, spine, and back injuries complained about by Morlock at trial were, attributable to the September 1996 accident. Specifically, an MRI scan for both Morlock’s back and neck revealed a far lateral herniated disk at L2-3 on the right side, possible L2 radiculopathy (disk pinching the nerve), a herniated disk at L3-4 on the right side and a central protruding or herniated disk obliterating the epidural space at C2-3. While Norback recognized that a neurosurgeon was able to perform surgery on the herniated disks in Morlock’s back, he went on to conclude that the injuries to Morlock’s neck were not surgically treatable.

Dr. John Rhoades, Morlock’s family physician, also testified on appellants’ behalf. He indicated that he had no knowledge of Morlock’s 1957 accident or any treatment Morlock received as a result of that accident. Rhoades testified that Mor-lock began attending physical therapy shortly after the 1996 accident but that his condition did not improve. According to Rhoades, as a result of the 1996 accident Morlock was unable to work, had a limited range of motion for his neck, had neck pain, shoulder pain, lower back pain, daily headaches, and was having trouble sleeping. Rhoades further testified that Mor-lock had some degeneration of his spine over the years and chronic arthritis and as well as various problems with his elbows, shoulder, and knee prior to the 1996 accident. When asked directly whether any of Morlock’s current problems were related to any preexisting medical conditions Rhoades responded that they were not, except that if Morlock was having any knee pain, it would be related to his preexisting knee problems.

Respondent presented only one medical witness, Dr. Daniel Ahlberg. He testified that based on his review of Morlock’s medical records and his examination of Morlock, he believed that none of Mor-lock’s complaints for future claims after the surgery and recovery period were the result of the car accident. Instead, Ahl-berg testified all of these complaints were the result of his degenerative diseases that predated the accident and Morlock’s “functional overlay” of associating his pain with the accident. Ahlberg testified,

[Morlock’s] principal problem is chronic pain syndrome, which basically is the fact that he has a background, degenerative problem with spine disease, primarily in the lower back, also to some degree in his neck, and although that’s present, there’s substantial exaggeration of his symptomatology. There’s no evidence for any neurological deficit. * ⅜ * [H]is principal problem is chronic pain substantially exaggerated by dysfunctionality * * *

He concluded that Morlock’s disk hernia-tions were appropriately treated with surgery and that Morlock had fully recovered from these injuries.

Respondent conceded during both its opening statement and its closing argument that Morlock suffered two herniated disks in his low back as a result of the 1996 accident and that surgery was needed to treat these injuries. Respondent pointed out during its closing argument that the reasonable medical expenses for such treatment was $28,000, which the parties had stipulated to before trial. Respondent then pointed out various medical records produced at trial and argued that these showed that Morlock had a history of lower back problems and various ailments associated with his joints, including a degenerative disease in his knee, and arthritis. Respondent’s counsel argued to the jury that all of Morlock’s ongoing problems or disabilities were a result of these preexisting conditions, including the 1957 accident, stating: “I submit to you that if Mr. Mor-lock is having ongoing problems and ongoing disabilities, it is as a result of his preexisting problems, his degenerative joints, his ten percent disability, his steadily progressing degeneration of the arthritis in his back.” While respondent conceded that Morlock may be entitled to some damages for pain, suffering, disability, and disfigurement between the 1996 accident and his surgery and recovery period, suggesting $25,000, it argued that Morlock should recover nothing for future disability, embarrassment, disfigurement, and emotional distress because all of these claims related to his preexisting conditions and were not in any way a result of the 1996 accident. As for wage loss damages, respondent argued that the jury should only award damages for one year’s worth of Morlock’s income, which was between $28,000 and $50,000 depending on which witness the jury agreed with. Finally, respondent pointed out that Judy Morlock did not testify and told the jury not to speculate or guess as to her loss of consortium damages, but told the jury that it was up to them to decide her claim based on the testimony of others.

Appellants argued during closing argument that respondent was taking the focus off of the injuries complained of in the case and that he was not seeking damages for any problems he had other than the back and neck injuries that resulted from the 1996 accident. Appellants’ counsel went on to point out the language of CIVJIG 91.40 and stated that if Morlock had a preexisting back problem, that problem was related to aging of his spine, which was not related to the damages being sought for the accident other than that Morlock’s aging spine may have made him more susceptible to injury.

The jury returned a special verdict awarding $508,060.50 in damages to Dean Morlock and $125,000 for loss of consortium to Judy Morlock. Respondent brought a posttrial motion, arguing that the last sentence of CIVJIG 91.40 was an erroneous jury instruction entitling respondent to either judgment notwithstanding the verdict or a new trial and, in the alternative, remittitur was appropriate. This motion was denied in its entirety. Respondent appealed and the court of appeals reversed and remanded for a new trial, concluding that the jury instruction based on CIVJIG 91.40 was a misstatement of Minnesota law and that a new trial was .warranted. The court went on to conclude that, because Judy Morlock’s loss of consortium claim was inextricably linked to Dean Morlock’s claim, a new trial was also warranted for her claim. This appeal followed.

I.

District courts are allowed considerable latitude in selecting language used in the jury charge and determining the propriety of a specific instruction. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). An appellate court should view the instructions as far as possible from the standpoint of the total impact or impression upon the jury. Lieberman v. Karsh, 264 Minn. 234, 242, 119 N.W.2d 180, 186 (1962). If the instruction destroys the substantial correctness of the charge as a whole, causes a miscarriage of justice, or results in substantial prejudice, the error requires a new trial. Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). Therefore, a new trial is required if the jury instruction was erroneous and such error was prejudicial to respondent. Lewis v. Equitable Life Assur. Soc. of the U.S., 389 N.W.2d 876, 885 (Minn.1986). A new trial is also required if the instruction was erroneous and its effect cannot be determined. Lieberman v. Korsh, 264 Minn. 234, 242, 119 N.W.2d 180, 186 (1962).

Here, the district court first instructed the jury: “a party asking for damages must prove the nature, extent, duration, and consequences of his or her injury.” See 4A Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides — Civil, JIG 90.15 (4th ed.1999). Next, the court told the jury that it “must not decide damages based on speculation or guess” and went on to instruct the jury as follows:

A person who has a defect or disability at the time of an accident is entitled to damages for any aggravation of that pre-existing condition. Damages are limited, however, to results which are over and above those which normally followed from the pre-existing condition, had there been no accident. If you cannot separate damages from those caused by the accident, the defendant is liable for all the damages.

This instruction was a slight variation on CIVJIG 91.40, which states:

There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident. (Defendant) is liable only for any damages that you find to be directly caused by the accident. If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all of the damages.

4A Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides — Civil, JIG 91.40 (4th ed.1999). The court of appeals, acceding to the discussion in Blatz v. Allina Health Sys., 622 N.W.2d 376 (Minn.App.), rev. denied (Minn. May 16, 2001), held that the instruction given in this case misstated Minnesota law. Morlock v. St. Paul Guardian Ins. Co., 632 N.W.2d 268, 272 (Minn.App.2001).

According to the parties, the only issue on appeal relates to the last sentence of CIVJIG 91.40 as given. As the court of appeals in Blatz noted, CIVJIG 91.40 was intended to take the place of CIVJIG 163, which was part of the third edition of the Jury Instruction Guides — Civil and was the instruction respondent requested the district court to give in this case. 622 N.W.2d at 390. CIVJIG 163 read:

A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the particular results would not have followed if the injured person had not been subject to such pre-existing condition. Damages are limited, however, to those results which are over and above those which normally followed from the pre-existing condition, had there been no accident.

4 Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides — Civil, JIG 163 (3d ed.1986). CIVJIG 163 was based on Nelson v. Twin City Motor Bus Co., where we held,

[WJhere a pre-existing disease is aggravated by the negligence of another person, the victim’s recovery in damages is limited to the additional injury caused by this aggravation over and above the consequences which the pre-existing disease, running its normal course, would itself have caused if there had been no aggravation by negligent injury.

239 Minn. 276, 280, 58 N.W.2d 561, 563 (1953); see also Schore v. Mueller, 290 Minn. 186, 190, 186 N.W.2d 699, 701-02 (1971) (following Nelson). Both the first two sentences of CIVJIG 91.40 and the first two sentences of the instruction given in this case are consistent with Nelson. Before we can decide whether the third sentence of CIVJIG 91.40 as utilized in this case is an erroneous statement of Minnesota law, we must first consider whether it was appropriate for the district court to give any portion of the CIVJIG 91.40 instruction, including the first two sentences, given thev facts of this case and the theories presented by the parties.

We start by recognizing that neither appellants nor respondent argued that there were any aggravation damages; appellants argued that all of the damages they were seeking were solely the result of the 1996 accident and respondent argued that all of the damages being sought for any problems after appellant’s surgery and recovery period were solely the result of his preexisting conditions or disabilities. In other words, neither party argued that appellants were entitled to any damages for any aggravation of any preexisting condition. Therefore, there was no basis for the district court to give an aggravation instruction. While respondent requested CIVJIG 163 and appellants responded by requesting CIVJIG 91.40, neither party presented evidence to the jury indicating that any portion of the damages being sought by appellants were attributable to a preexisting condition or disability being aggravated by the 1996 accident. Instead, appellants’ expert witnesses testified that all of the neck and back problems complained about by appellant at trial were attributable to the 1996 accident. Respondent’s expert witness testified that all of appellant’s complaints after the surgery and recovery period were entirely unrelated to the 1996 accident. Appellants’ counsel specifically asked the jury to allocate all alleged damages to the 1996 accident. Respondent specifically asked the jury to allocate all alleged damages after the time of appellant’s back surgery and recovery period to appellant’s preexisting disabilities or conditions and none to the accident. Under these facts, an aggravation instruction was not warranted and we hold that it was error for the district court to give such an instruction.

The dissent fails to acknowledge the way in which this case was presented to the jury. While it may be possible that CIVJIG 91.40 could be inappropriate in a situation where a plaintiff is seeking both “new” damages and damages for aggravation of an admitted to preexisting condition, we need not decide this issue in this case. Neither party presented a theory of recovery or defense based on a single indivisible injury. Contrary to the dissent’s position, the jury in this case was not asked to do its best at distinguishing between any preexisting condition and the “aggravation brought about by the defendant’s negligent conduct.” A new trial, as the dissent recommends, based on a moot or nondispositive issue would be a waste of the parties’ time and judicial resources and a final judicial pronouncement about CIVJIG 91.40 should wait for another day when a jury instruction based on it amounts to a justiciable controversy with an appropriate factual development.

II.

Having held that it was erroneous for the district court to give its instruction because neither party’s theory of the case called for it, we must now determine whether the instruction had any impact on the jury’s decision. See Lewis, 389 N.W.2d at 885; Lieberman, 264 Minn, at 242, 119 N.W.2d at 186. The jury was appropriately instructed that, in order for appellants to recover damages, they needed to prove the nature, extent, duration, and consequences of the injury resulting from the accident. Once proved, the jury was free to allocate any of appellants’ alleged damages to Morlock’s preexisting conditions or to the 1996 accident, as urged by both parties. It appears that the jury accepted the testimony of appellants’ experts and arguments of appellants’ counsel rather than the testimony of respondent’s expert and arguments of respondent’s counsel.

The court of appeals reversed the jury verdict in part because the erroneous instruction may have influenced the jury and because it concluded that it could not determine with certainty whether the instruction did influence the jury. The court of appeals then concluded that because of the erroneous instruction, “it was possible, if not probable” that the jury concluded that respondent was liable for all of Mor-lock’s damages “notwithstanding that not all of those damages were due to the 1996 accident.” Therefore, the court of appeals ordered a new trial.

However, the theories presented by appellants and respondent throughout trial were separate and distinct. The evidence did not overlap. The only evidence presented by respondent was testimony of Dr. Ahlberg, the adverse medical expert retained by respondent. Respondent did not dispute that appellant suffered two herniated disks in his lower back that resulted from the accident and that he needed surgery because of the accident and told the jury to award damages for that. However, after the recovery period from the surgery, both the testimony of Dr. Ahlberg and the arguments of respondent’s counsel in closing statements indicated that there was no evidence that there was any need for future medical care. More importantly, respondent’s counsel argued that if there were problems, “it is a result of [Morlock’s] preexisting problems because surgery was a total success and there should be zero damages for any future loss.” Respondents reiterated: “what he is currently experiencing is not a result of the accident.”

Contrary to what the dissent states, the only argument made by the appellants’ counsel relating to the cause of the accident related to Morlock’s age, which was 60 years at the time of the accident. Appellants’ counsel simply argued that because of his age, the appellant was more susceptible to serious injuries. Therefore, as in Blatz, the effects of the instruction are not only limited by the facts of this case, but by the arguments of counsel. Id. 622 N.W.2d at 386. The instruction was not prejudicial to respondent to justify granting a new trial.

The jury was presented with an all or nothing scenario as to damage claims after the surgery and recovery period was over and the jury chose to believe appellants’ evidence. It was an abuse of discretion under these facts to give an aggravation of a preexisting condition instruction because there was no evidence of aggravation of a preexisting condition presented by either of the parties. It was therefore error for the court of appeals to speculate that it was either possible or probable that the jury would have concluded that “[respondent] was liable for all of Morlock’s damages, notwithstanding that not all of those damages were due to the 1996 accident.” There is simply insufficient evidence in the record to support the court of appeal’s reasoning on this issue. Because any error in the district court’s jury instruction does not warrant a new trial for Dean Morlock’s claim, it also does not warrant a new trial for Judy Morloek’s claim.

Reversed and judgment reinstated.

BLATZ, C.J., took no part in the consideration or decision of this case.

MEYER, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

ANDERSON, RUSSELL A.

(dissenting).

I respectfully dissent. The current pattern jury instruction on pre-existing conditions misstates Minnesota law and amounts to an improper extension of the single indivisible injury rule. Because the jury instruction embraced by plaintiffs’ counsel before the jury and given in this single plaintiffisingle tortfeasor case permitted the jury to allocate liability for harm that may not have been caused by the tortious conduct, I would affirm the remand for a new trial.

In Minnesota, a person who has a preexisting condition is entitled to recover damages for an aggravation of that condition, “recovery being limited, however, to the additional injury over and above the consequences which normally would have followed from the preexisting condition absent defendant’s negligence.” Schore v. Mueller; 290 Minn. 186, 189, 186 N.W.2d 699, 701 (1971) (citing Nelson v. Twin City Motor Bus Co., 239 Minn. 276, 280, 58 N.W.2d 561, 563 (1953)). “Put another way, damages for aggravation of a preexisting condition are simply a means to assure that the defendant pays only for the harm he causes, not the harm plaintiff already had.” Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992) (citing Schore, 290 Minn, at 189, 186 N.W.2d at 701, and Bloomquist v. Minneapolis Furniture Co., 112 Minn. 143, 148, 127 N.W. 481, 482 (1910)).

The burden has long been upon the plaintiff to allocate harm caused by the defendant “over and above” the original condition. Watson v. Rheinderknecht, 82 Minn. 235, 238, 84 N.W. 798, 799 (1901) (burden was upon the plaintiff “to show in what respect, and to what extent, his present condition could be attributed to the assault and battery, and what could be more properly established as the result of his army experience.”). For well over 30 years our pattern jury instruction on items of damage for any aggravation of a preexisting condition has reflected the limitation on the measure of damages to the additional injury caused by the aggravation. 4 Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides — Civil, JIG 163 (3d ed.1986). Our rules have been consistent with the Restatement of Torts rules for allocating between harm resulting from a pre-exist-ing condition for which the defendant is in no way responsible and the further harm which his tortious conduct caused. Restatement (Second) of Torts § 433A (l)(b) cmt. e (1965); see also Restatement (Third) of Torts: Apportionment of Liability § 26 cmt. f (2000) (“As long as any person caused only a part of damages, * * * the damages are divisible, irrespective of the timing.”).

The current pattern jury instruction on pre-existing conditions represents a significant departure from these rules in that it permits an allocation of liability to the defendant for a plaintiffs pre-existing condition if the jury is unable to determine what part of the plaintiffs injuries predated the accident. 4A Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides Civil, JIG 91.40 (4th ed.1999). The commentary to CIVJIG 91.40 suggests its derivation from Canada by Bandy v. McCarthy, 567 N.W.2d 496 (Minn.1997). Canada, however, . involved a unique application of the single indivisible injury rule in which joint and several liability is imposed upon multiple tortfeasors. Canada, 567 N.W.2d at 507-08 (citing Mathews v. Mills, 288 Minn. 16, 20-21, 178 N.W.2d 841, 844 (1970)).

The single indivisible injury rule can be traced back to Flaherty v. Northern Pac. Ry. Co., 39 Minn. 328, 40 N.W. 160 (1888), and holds that tortfeasors whose separate negligent acts operate together to cause damage to another are each liable for the whole amount of the resulting damage. Id. at 329, 40 N.W. at 160-61. A “necessary corollary” to the rule of holding each defendant liable for the entire harm “is that when the harm can be apportioned on some rational basis, then liability should be proportionate only.” Gerald W. Boston, Apportionment of Harm in Tort Law: A Proposed Restatement, 21 U. Dayton L.Rev. 267, 284 (1996). According to Professor Boston, “by the 1930s, apportionment principles were applied when the plaintiff and the defendant caused similar harm [to plaintiffs property], when the harm was aggravated by acts of nature, and when the defendant aggravated the plaintiffs preexisting harm.” Id. at 285.

Apportionment principles were eventually incorporated in the Restatement (Second) of Torts §§ 433A, 433B (1965). Section 433A provides for the apportionment of harm to causes:

(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement (Second) of Torts § 433A (1965).

Pursuant to section 433A, apportionment principles apply to contributing causes of the harms and divisible harms. Included in the divisible harms are pre-existing conditions. Restatement (Second) of Torts § 433A (l)(b) cmt. e (1965). “In the illustrations of the Restatement (Second), the touchstone of apportionment is reliance on the contribution that causes the ultimate harm and not to some actual division of harm itself.” Boston, supra, at 301. The single indivisible injury rule holding multiple tortfeasors jointly and severally liable was incorporated in subsection (2). Restatement (Second) of Torts § 433A (2) cmts. h & i (1965). Comment “h” allows joint and several liability in cases of insolvency or death of one of the tortfeasors and comment “i” applies joint and several principles in cases of an “innocent” cause and two or more culpable causes. Id.

Section 433B of the Restatement (Second) addresses the burden of proof and failure to produce evidence justifying apportionment. Restatement (Second) of Torts § 433B cmt. g (1965). Section 433B (1) states that the plaintiff must prove that the defendant’s tortious conduct caused the harm that is subject to potential apportionment. Section 433B (2) says that it is an exception to the rule stated in subsection (1) and provides for burden-shifting in two situations involving multiple tortfea-sors. When the tortious conduct of two or more defendants has combined to bring about the harm, the defendant seeking to limit liability has the burden as to apportionment; and when the plaintiff sues two or more tortfeasors and proves that at least one of them has caused harm but there is uncertainty as to which one has caused it, the burden is on the defendant to prove that he had not caused the harm. Restatement (Second) of Torts § 433B (2) (1965). Comment “c,” in reiterating that subsection (2) is an exception to the general rule that the plaintiff has the burden of establishing that the defendant’s tortious conduct caused the harm, suggests that burden-shifting only applies to multiple tortfeasor situations.

The Restatement (Third) of Torts, generally considered a repudiation of joint and several liability, provides for apportionment among two or more persons who caused divisible damages. Restatement (Third) of Torts: Apportionment of Liability § 26 cmt. h (2000). That part of the proposed draft of Restatement (Third) addressing the burden of proof takes no position as to who should bear the burden in apportioning harm between tortious conduct and a pre-existing condition, noting that courts are split on the burden-shifting issue but also recommending that no matter how the burden is allocated, “[s]o long as there is some modicum of evidence that would permit the factfinder to make a causal apportionment, that course is preferable to making whichever party bears the burden of proof to bear the entirety of the loss.” Restatement (Third) of Torts: Liability for Physical Harm § 28 cmt. d (Tentative Draft No. 2, 2002).

In contending that a defendant should be liable for the entire amount of damage unless it meets its burden of proof as to apportionment, Morlock relies on the New-bury line of cases from other jurisdictions, citing policies having their origin in the single indivisible injury rule. It seems to me, however, that the pre-existing condition situation warrants different treatment than that involving multiple tortfeasors. Generally, the burden of proof is placed on the party with the greatest access to the relevant evidence. With multiple tortfea-sors, “they presumably can furnish evidence as to their degree of contribution to the plaintiffs injury. But, if the plaintiff is suffering from a preexisting injury, he or she is in the best, position to furnish information on the degree to which that injury was aggravated by the defendant’s act.” LaMoureaux v. Totem Ocean Trailer Express, Inc., 632 P.2d 539, 545 (Alaska 1981).

When a pre-existing condition is a “competitor for causal significance,” juries are instructed “to do the best they can to make the distinction” between the preexisting condition and the “ ‘aggravation’ brought about by the defendant’s negligent conduct.” David W. Robertson, The Common Seme of Cause in Fact, 75 Texas L.Rev. 1765, 1795 (1997) (citing LaMoureaux, 632 P.2d at 544; Epps v. City of Baton Rouge, 604 So.2d 1336, 1345 (La.Ct.App.1992)). “The plaintiff is ‘relieve[d] of proving with great exactitude the amount of aggravation,’ but ultimately should recover only for the aggravation and not for the effects of the preexisting condition.” Robertson, supra, at 1795 (quoting LaMoureaux, 632 P.2d at 544).

The issue of prior accidents, injuries, and conditions is not, as the Morlocks suggest, an affirmative defense for which the defendant bears the burden of proof; it is simply a defense to allegations of liability. Generally, an affirmative defense is new matter outside the complaint which constitutes a defense; or new matter which, assuming the complaint to be true, is a defense to it. 2 Douglas D. McFarland & William J. Kep'pel, Minnesota Civil Practice § 1151 (3d ed.1999). Morlock asserted that the accident caused his injuries. St. Paul Guardian disputed the extent of its liability for Morlock’s injuries. St. Paul Guardian’s general denial of liability did not constitute an affirmative defense. Under well-established law, it thus remained Morlock’s burden to prove that the accident caused his claimed damages. The pre-existing condition instruction given to the jury, however, alleviated Morlock of this burden. As the court of appeals concluded, the instruction given in this case misstated Minnesota law and improperly extended principles underlying joint and several liability. Morlock v. St. Paul Guardian Ins. Co., 632 N.W.2d 268, 271 (Minn.App.2001) (citing Blatz v. Allina Health Sys., 622 N.W.2d 376, 390 (Minn.App.), rev. denied (Minn. May 16, 2001)).

The Morlocks assert that even if the instruction was erroneous, St. Paul Guardian is nevertheless not entitled to a new trial given the manner of litigation. St. Paul Guardian conceded liability for the herniated discs that required surgery but disputed the remaining amount of damages caused by the accident. At trial, relevant evidence included Morlock’s medical records documenting Morlock’s history of low back trouble dating back to 1957 as well as the opinion of St. Paul Guardian’s expert that Morlock’s post-automobile accident back complaints were due to pre-existing conditions and the opinions of Morlock’s physicians to the effect that Morlock’s preexisting conditions had little to do with his post-accident problems.

This was not, as the majority posits, an “all-or-nothing scenario as to damage claims.” In arguments related to the propriety of certain jury instructions, counsel for the Morlocks acknowledged that evidence adduced at trial could permit the inference that Morlock’s preexisting condition contributed to the harm for which damages were sought; and in his closing remarks to the jury, counsel told the jury that CIVJIG 91.40 was a “very, very important instruction,” read the instruction to the jury and then told the jury that if it could not separate damages caused by the preexisting condition from those caused by the accident, St. Paul Guardian was “responsible for all the damages. That’s the law.” As the trial court noted during post-trial motions, had the burden in apportioning harm not been shifted to St. Paul Guardian, “there may very well be a different result.” Inasmuch as there was evidence permitting the factfinder to make a causal apportionment, it was “entirely possible if not probable that the jury used the district court’s erroneous instruction to conclude that Guardian was liable for all of Morlock’s damages, notwithstanding that not all of those damages were due to the 1996 accident.” Morlock, 632 N.W.2d at 272.

I would affirm.

STRINGER, Justice

(dissenting).

I join in the dissent of Justice Russell A. Anderson.

      . When asked what "functional overlay” meant Ahlberg responded,
      Well, if a patient has a problem, there may or may not be a variety of impairments as a result of that problem. But if, based on emotional and/or willful exaggeration of that difficulty they — the patient complains of incapacitation or complains of the lack of ability to do things beyond that would be expected, there’s what's called functional overlay. There is an overlying problem which is not physiological or anatomical, but which is basically an emotional or willful exaggeration, and there’s a whole spectrum that can occur all the way from a conversion hysteria where a patient is totally, consciously unaware that they are reacting that way, to malingering, which is conscious, conniving, conceiving, willful, exaggeration to gain some other benefit, whatever that might be.

      . Appellants’ counsel told the jury. "This case is not about Dean Morlock’s toe. It's not about his foot. It’s not about either one of his knees. It’s not about his shoulder, his hernia or his elbow.”

      . According to the 2002 pocket part, CIVJIG 91.40 is meant to be "limited to cases where a plaintiff, with a pre-existing disability or medical condition, subsequently suffers injury that aggravated the preexisting disability or condition.” 4A Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides — Civil, JIG 91.40 (4th ed. Supp.2002). Neither party argued that Morlock suffered an injury that aggravated a preexisting disability or condition, making CIVJIG 91.40 inappropriate.

      . From 1963 through 1999, CIVJIG 163 covered damages in cases of pre-existing conditions:
      A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such preexisting condition, even though the particular results would not have followed if the injured person had not been subject to such pre-existing condition. Damages are limited, however, to those results which are over and above those which normally followed from the preexisting condition, had there been no accident.
      4 Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides— Civil, JIG 163 (3d ed.1986).

      . The current pattern jury instruction, CIVJIG 91.40, provides:
      There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident.
      (Defendant) is liable only for any damages that you find to be directly caused by the accident.
      If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all of the damages.
      4A Minnesota District Judges Association, Minnesota Practice, Jury Instruction Guides— Civil, JIG 91.40 (4th ed.1999).

      . Canada arose from successive lead-paint poisoning suffered by the minor plaintiff at separate rental properties. The trial court determined that plaintiff's injuries were divisible, a ruling not challenged on appeal, and went on to instruct the jury to apportion among multiple tortfeasors damages between pre-July 1992 lead poisoning and damages occurring after that time. Canada by Landy v. McCarthy, 567 N.W.2d 496, 508 n. 7 (Minn.1997).

      . See Mark M. Hager, What’s (Not!) in a Restatement? ALI Issue-Dodging on Liability Apportionment, 33 Conn. L.Rev. 77, 94 (2000); Frank J. Vandall, A Critique of the Restatement (Third), Apportionment as it Affects Joint and Several Liability, 49 Emory Law J. 565, 614-15 (2000).

      . See, e.g., Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, 813 (1963) ("plaintiff was entitled to an instruction advising the jury that if they could not apportion the disability between the preexisting arthritis and the trauma then the defendant was liable for the entire damage resulting from the disability"); Lovely v. Allstate Ins. Co., 658 A.2d 1091, 1092 (Me.1995) (applying Newbury single injury rule); Tingey v. Christensen, 987 P.2d 588, 592 (Utah 1999) (recognizing Newbury rule). It should be remembered that the Newbury rule predated the comparative negligence scheme which was aimed at dealing with the unfairness of the all-or-nothing rule of contributory negligence. Professor Boston believes that the "same all-or-nothing unfairness that compelled the abandonment of the bar of contributory negligence should equally compel the abandonment of a rule of indivisible harm or indivisible causation." Gerald W. Boston, Apportionment of Harm in Tort Law: A Proposed Restatement, 21 U. Dayton L.Rev. 267, 372 (1996).