This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Jerome Jackson and Jamal Jackson,

minors by and through their parents and next friends,

Herbert and Mentoria Jackson, and

Herbert and Mentoria Jackson, individually,



Jack Olwell, et al.,


St. Paul Public Housing Agency,


Filed November 18, 1997


Davies, Judge

Ramsey County District Court

File No. C1945701

Fred R. Jacobberger, Lisa R. Micallef, Jacobberger, Micallef & Associates,

386 North Wabasha, Suite 1150, St. Paul, MN 55102-1308 (for appellants)

James T. Martin, Dan T. Ryerson, Gislason, Martin, & Varpness, P.A., 7600 Parklawn Ave. S., Suite 444, Minneapolis, MN 55435 (for respondent)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Forsberg, Judge.*


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



Appellants Jerome and Jamal Jackson appeal the trial court's grant of a directed verdict to respondent St. Paul Public Housing Agency (PHA) necessitated by the trial court's decision to impose the burden of proof on the plaintiffs. Because the trial court imposed the burden of proof on the wrong party, we reverse.


Jerome and Jamal Jackson are minor children. From 1991 to 1995, they lived with their parents at three successive residences and allegedly suffered lead poisoning at each. The last residence was owned by respondent PHA.

Prior to the time the Jacksons resided on PHA property, both Jackson children received treatment for lead poisoning. The treatment gradually reduced the level of lead in their blood. They continued to have their blood lead levels checked regularly and, during the time they resided on PHA property, their blood tests indicated an increase in lead levels. The PHA property was later found to contain lead-based paint.

The Jacksons and their parents filed suit against all three landlords. After reaching a settlement with the other defendants, the Jacksons prepared to go to trial against PHA. Following jury selection, but before opening statements, the parties argued to the court the issue of jury instructions relating to the burden of proof.

The trial court ruled that the proper instruction was JIG 163, which assesses to plaintiffs the burden of proving causation, rather than Restatement (Second) of Torts § 433B(2) (1965), which places on defendants the burden of proof on how an indivisible injury should be assessed against two or more tortfeasors.

After the trial court, by deciding to apply JIG 163, ruled in favor of PHA on the burden of proof issue, the Jacksons indicated that they would not be able to produce evidence to apportion their injuries among the three defendants (the two who had settled and PHA). In other words, the Jacksons conceded that they would not be able to prove a distinct injury caused by PHA, as opposed to showing merely the total ongoing injury from lead poisoning. In light of the Jacksons' inability to meet their burden of proof under JIG 163, both parties agreed that the Jacksons would make an offer of proof. After this offer of proof, the trial court granted a directed verdict in favor of PHA. The Jacksons now appeal.


A trial court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). An appellate court will not reverse a district court's decision unless the instruction constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).

The Jacksons argue that Restatement § 433B(2) applies to this case because two or more tortfeasors have contributed to an indistinguishable harm, whereas PHA argues that the trial court correctly applied JIG 163 because there were distinct injuries during distinct time periods, creating an issue of aggravation of a pre-existing injury rather than one of indistinguishable harm.

Section 433B(2) states:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

Minnesota has explicitly adopted section 433B(2) in its case law. Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970). While Mathews involved an auto collision, its rule has clearly been extended beyond that narrow situation. Mathews is neither limited to auto accidents nor to tortious acts occurring very close in time to each other. Northern Petrochemical Co. v. Thorsen & Thorshov, Inc., 297 Minn. 118, 128-29, 211 N.W.2d 159, 167-68 (1973).

We find a recent Minnesota Supreme Court case, with facts very similar to those of the instant case, to be dispositive on the issue. Canada v. McCarthy, 567 N.W.2d 496 (Minn. 1997). In Canada, the plaintiff child suffered from lead poisoning caused by ingestion of lead-based paint at more than one residence. As in this case, the child in Canada was known to be suffering from lead poisoning before her family moved to another residence where she allegedly suffered subsequent lead poisoning. Id. at 499-503. Canada applied section 433B(2) where lead poisoning had occurred at unknown times, and for unknown durations, at successive residences.

The trial court here, without the guidance of the supreme court's opinion in Canada, concluded that the Mathews rule did not apply to lead poisoning suffered at successive residences. In light of Canada, the trial court's grant of a directed verdict to PHA, necessitated by its pretrial ruling that it would apply JIG 163 rather than section 433B, was erroneous as a matter of law.

We reverse and remand for trial, with the burden placed on PHA to prove the appropriate share of causation that is to be assessed against the other landlords.