This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-266

Tiera Canada, by and through Robin Landy,

her Guardian Ad Litem,

Respondents,

vs.

Robert R. McCarthy,

Appellant.

Filed December 10, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. 9317862

William J. Maddix, Hanson & Maddix, 310 Fourth Avenue South, Suite 400, Minneapolis, MN 55415 (for Respondents)

James T. Martin, Dan T. Ryerson, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

A jury found multiple defendants, including appellant Robert McCarthy, negligent in the lead poisoning of respondent Tiera Canada. McCarthy appeals from the trial court order denying his motion for judgment notwithstanding the verdict on the grounds that (1) the evidence does not support the jury's finding, (2) the court erred by failing to instruct the jury on superseding cause, and (3) the court erred by admitting prejudicial testimony. In addition, Tiera challenges the court's reallocation of the uncollectible portion of the damage award. We affirm.

FACTS

In July 1992, Tiera Canada, a two-year-old child, was hospitalized with 56 micrograms per deciliter of lead in her blood and underwent therapy to reduce her blood lead level. Dr. Milagros Santiago testified at trial that a blood lead level of 10 micrograms per deciliter or above is abnormal, that Tiera's x-rays were "consistent with heavy metal poisoning," and that the inhalation or ingestion of lead-based paint is the primary cause of lead poisoning in children.

Tiera had been living in an apartment with her mother, Christine Canada, and visiting the apartment of her grandmother, Gertrude Canada, on almost a daily basis. On July 31, 1992, Rebecca Caulfield, a sanitarian with the Minneapolis Health Department, discovered illegal lead levels both in Tiera's mother's apartment and in her grandmother's apartment. Caulfield issued abatement orders to both property owners. McCarthy, the owner of the grandmother's apartment building, began abatement work in September 1992 and completed the work by December 1992. McCarthy testified at trial that he observed Tiera in the apartment during the abatement work. Tiera and her mother also lived in the grandmother's apartment for approximately three months following the completion of the work.

Tiera was hospitalized for a second time in January 1993 because her blood lead level had risen from 25 micrograms per deciliter in September 1992 to 48 micrograms per deciliter. In 1993, Tiera exhibited various developmental delays. In September 1993, a complaint was filed alleging that McCarthy and other building owners negligently caused Tiera's developmental problems. By special verdict, the jury found McCarthy 16% liable for injuries Tiera received after July 1992; the jury did not find McCarthy liable for any harm to Tiera that occurred before that date. The trial court denied McCarthy's motion for judgment notwithstanding the verdict, and this appeal followed.

D E C I S I O N

I. Judgment Notwithstanding the Verdict.

The decision whether to grant judgment notwithstanding the verdict is a question of law. Edgewater Motels v. Gatze, 277 N.W.2d 11, 14 (Minn. 1979).

A motion for judgment notwithstanding the verdict admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony for the adverse party. Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

A. Negligence.

To recover damages for negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, the defendant breached that duty, and the plaintiff's injuries proximately resulted therefrom. Hill v. Gaertner, 253 Minn. 457, 458-59, 92 N.W.2d 810, 812 (1958). The trial court determines the existence of a legal duty as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985). The question of negligence, however, is generally a matter for the jury. DeWitt v. Schuhbauer, 287 Minn. 279, 282, 177 N.W.2d 790, 793 (1970).

McCarthy owed Tiera a duty to use reasonable care when performing the abatement work on her grandmother's apartment.[1] See Broughton v. Maes, 378 N.W.2d 134, 136 (Minn. App. 1985) (concluding that landlord who undertakes repairs must do so in a reasonable manner), review denied (Minn. Feb. 14, 1986); see also Oakland v. Stenlund, 420 N.W.2d 248, 250 (Minn. App. 1988) (concluding that landlord owes guest of tenant the same duties owed tenant), review denied (Minn. Apr. 20, 1988). That duty included refraining from doing abatement work while Tiera was in her grandmother's apartment because (1) Caulfield notified McCarthy that "children under the age of 12 years may not be in the dwelling during abatement" and (2) McCarthy knew of Tiera's prior lead poisoning. In addition, McCarthy certified to the health department that he would cover the furniture and carpeting while working and use a high efficiency particle accumulator (HEPA) vacuum. Because the health department notified McCarthy of its intent to condemn his building if he did not correct the lead violations and McCarthy certified that he would follow specifically described abatement procedures, we conclude that his duty of reasonable care required that he conduct the abatement in the manner he certified he would.

McCarthy cites Sirek by Beaumaster v. State, 496 N.W.2d 807 (Minn. 1993), for the proposition that he was relieved of any duty to protect Tiera because she was supervised by a custodian who had knowledge of the hazardous condition. Id. at 811 (holding state had no tort duty to supervised child who was hit by a van in a state park). The Sirek court, however, relied on Strode v. Becker, 564 N.E.2d 875 (Ill. Ct. App. 1990), which, while acknowledging that a landowner may not have a duty to a supervised child to warn of or remove obviously dangerous instrumentalities, rejected the notion that parental supervision absolves landowners of all duties to children. Id. at 880. In any event, there is no evidence that Tiera was supervised by a custodian when McCarthy saw her in her grandmother's apartment, and McCarthy was responsible for any lead hazards resulting from the abatement work that were not apparent to Tiera's caretakers.

McCarthy contends he did not breach his duty to perform the repair work reasonably because there is no evidence that lead remained in the grandmother's apartment after he completed the abatement work. However, circumstantial evidence may be used to establish an essential fact if there is "evidence from which it reasonably may be inferred that the essential fact did exist." Hartwig v. Loyal Order of Moose, 253 Minn. 347, 362, 91 N.W.2d 794, 805 (1958). There was testimony that, during abatement, McCarthy (1) observed Tiera in the unit "a couple of times," (2) did not cover the furniture, (3) did not seal off rooms in which he was working, (4) did not cover the entire floor, and (5) did not use a HEPA vacuum. Further, McCarthy did not inform Caulfield of McCarthy's failure to follow the certified abatement procedures. The record supports the jury's finding that McCarthy was negligent because there was evidence that he breached his duty both by working in Tiera's presence and by failing to follow appropriate procedures to ensure that no lead dust remained on the premises after the abatement work.

McCarthy argues that Tiera did not meet her burden of proving that, as a result of his negligence, Tiera ingested lead after July 1992. We disagree. Dr. Elsa Shapiro testified that it is "pretty unlikely" that no lead ingestion occurred after July 1992, and Dr. Allan Ingenito stated that "it is likely that [Tiera] had another exposure" after she underwent therapy to reduce her blood lead level in July 1992. "[I]t is not necessary that * * * an expert speak with confidence excluding all doubt." Bernloehr v. Central Livestock Order Buying Co., 296 Minn. 222, 225, 208 N.W.2d 753, 755 (1973). Moreover, "inferences, if rational and natural, which follow from a sequence of proved events may be sufficient to establish causal connection without any supporting medical testimony." Pagett v. Northern Electric Supply Co., 283 Minn. 228, 237, 167 N.W.2d 58, 64 (1969). Here, medical testimony showing the likelihood of post-July 1992 lead poisoning and the evidence of McCarthy's abatement work support a conclusion that McCarthy was at least partially responsible for Tiera's injuries. See id.

McCarthy also contends Tiera failed to meet her burden of demonstrating that any lead ingestion after July 1992 exacerbated injuries already caused to Tiera by her pre-July 1992 lead exposure. However, Tiera was not required to apportion her damages by proving the extent of harm caused only by negligent conduct after July 1992.[2] See Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970) (adopting Restatement (Second) of Torts § 433B(2) (1965), which places the burden of apportionment on each tortious actor whose conduct contributed to the plaintiff's injury).

B. Superseding cause.

McCarthy claims the trial court erred by refusing to instruct the jury on superseding cause, arguing that the mother's and grandmother's negligent supervision of Tiera was the superseding cause of her injuries. "A party is entitled to a specific instruction on his theory of the case if there is evidence to support the instruction and it is in accordance with the applicable law." Cornfeldt v. Tongen, 262 N.W.2d 684, 698 (Minn. 1977). However, this court will not reverse a trial court's selection of jury instructions unless the instructions constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

For a cause to be superseding:

1. Its harmful effects must have occurred after the original negligence.

2. It must not have been brought about by the original negligence.

3. It must actively work to bring about a result which would not otherwise have followed from the original negligence.

4. It must not have been reasonably foreseeable by the original wrongdoer.

Ruberg v. Skelly Oil Co., 297 N.W.2d 746, 750 (Minn. 1980). The trial court here properly refused to instruct the jury on superseding cause because mother's and grandmother's negligent supervision preceded McCarthy's negligence. McCarthy's failure to discontinue abatement work in Tiera's presence necessarily followed her mother's and grandmother's negligence in permitting Tiera to be on the premises. Moreover, there is evidence that McCarthy was negligent both in working in Tiera's presence and in failing to follow procedures that would ensure there was no lead residue on the premises after the abatement was completed. There is no evidence of a superseding cause for any injury to Tiera resulting from McCarthy's failure to use appropriate abatement procedures.

C. Olson's testimony.

McCarthy argues that the trial court committed prejudicial error by admitting the testimony of Brian Olson, Caulfield's supervisor, regarding the cause of Tiera's lead poisoning. We disagree. The trial court has broad discretion in deciding whether to admit evidence, and a party challenging evidentiary rulings must demonstrate that any error was prejudicial. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). When asked if he had an opinion regarding where Tiera's post-July 1992 lead poisoning occurred, Olson answered only that there was more lead paint and more concentrated lead paint on McCarthy's property than in the mother's former residence. Olson did not give a direct opinion on causation, and the record contains other evidence linking McCarthy to Tiera's post-July 1992 lead poisoning.

II. Reallocation of Fault.

Although the jury found Christine Canada and Gertrude Canada to be 64% at fault for Tiera's post-July 1992 injuries, the trial court found their share of the obligation uncollectible pursuant to Minn. Stat. § 604.02 (1994). Because negligent parties are jointly and severally liable, id., the trial court reallocated the uncollectible portion of Tiera's damage award to McCarthy and two other negligent property owners who had signed Pierringer releases.[3] Tiera contends the court should have reallocated the entire uncollectible portion of the award to McCarthy as the only non-settling defendant. In Fredrickson v. Alton M. Johnson Co., 402 N.W.2d 794 (Minn. 1987), however, the supreme court reallocated the uncollectible portion of a damage award among both settling and nonsettling defendants. See id. at 798 (reallocating fault attributable to plaintiff, settling defendant, and nonsettling defendant even though plaintiff could recover only the percentage of damages attributed to nonsettling defendant). The trial court here properly reallocated the damage award to the parties at fault, including the two settling defendants Tiera released from liability.

Affirmed.

[ ]1We need not address McCarthy's argument against application of the special relationship standard of care discussed in Erickson v. Curtis Investment Co., 447 N.W.2d 165, 168 (Minn. 1989), because the trial court instructed the jury that McCarthy owed Tiera only the duty of reasonable care.

[ ]2Nevertheless, the record contains evidence that (1) prolonged lead exposure increases the likelihood that a child will be developmentally compromised and (2) following post-July 1992 lead exposure, Tiera was below the normal range on her language and motor skills. Further, Shapiro testified that Tiera's problems were substantially "the result of lead overburden."

[ ]3The jury found McCarthy 16% at fault for Tiera's post-July 1992 injuries. Following reallocation of the 64% fault attributable to the Canadas, McCarthy's obligation increased to 16/36ths of the post-July 1992 damage award.