Does CIVJIG 91.40 Accurately Set Forth Minnesota Law

© Copyright 2000.  Printed with permission from the Minnesota Trial Lawyers Association Magazine, Summer 2000.

Terry L. Wade was the Chair of the Minnesota State Bar Association Civil Litigation Section, Civil JIG Subcommittee for Minnesota JIG-4 and was a member of the same committee for JIG-3.  

In the fall of 1999, the West Group published the fourth edition of the Minnesota Jury Instruction Guides-Civil (JIG-4).  It reached the desk of civil trial lawyers in Minnesota as the end product of a process that is mysterious to most of the civil trial lawyers using this important tool.  It is in fact the official work product of the Minnesota District Judges Association and more specifically its work group, the CIVJIG Committee.  As in trials over which they preside, the judges call the balls and strikes.  For this process, they do so as members of a committee of 20 judges with diverse geographic, practice, and judicial experience. 

Providing written work product and research for the judges are reporters Michael K. Steenson and Peter K. Knapp, both professors of law at William Mitchell College of Law.  On the occasion of the fourth edition drafting, the judges and reporters were aided by Professor Rosemary J. Park, a plain language consultant.  While her consultation was recommended by and paid for in part through the Civil Litigation  Section of the Minnesota State Bar Association, she worked exclusively with the
reporters and answered to the District Judges Association Committee.

Meeting parallel with, but independent of, the District Judges Association Committee was a bar association committee of 16 lawyers of the Minnesota State Bar Association representing diverse geographic and civil practice area perspectives.  The bar association committee was advisory to the reporters and the judges.(1)  

There was no rush to publication.  The first letter to the Civil Litigation Jury Instruction Guide Committee from reporters Steenson and Knapp was dated May 23, 1997.  Meetings of the judges and of the lawyers continued for over two years.  Perhaps without exception, each of the participants in the process viewed their role as officers of the court charged with responsibility for objectively stating black letter law in this important work product.  While each of the participants occasionally preferred a particular direction in an instruction from a personal philosophical or advocacy perspective, absent  settled law on the issue, the consensus was that an instruction  ought not find its way into JIG 4.  The entire civil bench and bar rely upon the objectivity of the JIG and deserve no less than that objectivity from the participants in the process of its composition.  These prefatory remarks are a background to a discussion of what appears to be the most controversial instruction in the current JIG, CIVJIG 91.40. 

The controversial instruction is as follows:

CIVJIG 91.40 Items of Personal Damage-- Aggravation 
Pre-existing disability or pre-existing medical condition

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. [Emphasis added.]

The controversial language has been italicized.  If the participants in the JIG-4 process were successful, the italicized language ought be black letter law in Minnesota.  That ought be objectively demonstrable without significant editorial comment.  The reader will be the judge of the success of the endeavor. 

First some general background for those far removed from law school. 

What Constitutes Legal Cause.  The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm. . . . 

Restatement, Torts (2d) § 431.

If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.

Restatement, Torts (2d) § 432 (2). 

The statement in Subsection (2) applies not only when the second force which is operating simultaneously with the force set in motion by the defendant's negligence is generated by the negligent conduct of a third person, but also when it is generated by an innocent act of a third person or when its origin is unknown. [Emphasis added.] 

Comment on § 432 (2):d.

§ 433 A. 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.
[Emphasis added.]


Comment:  a.  The rules stated in this Section apply whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm, as stated in §§ 431 and 433. . . . The rules stated apply also where one or more of the contributing causes is an innocent one, as where the negligence of a defendant combines with the innocent conduct of another person,
or with the operation of a force of nature, or with a pre-existing condition which the defendant has not caused, to bring about the harm to the plaintiff
[Emphasis added.]


. . . e. Innocent causes.  The same kind of apportionment may be made where a part of the harm can fairly be assigned to an innocent cause, as where the defendant's dam or embankment combines with an unprecedented and unforeseeable rainfall to flood the plaintiff's land, and it is clear that a part of the flood would have resulted in any event from the rainfall alone.  Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.  There may also be apportionment between harm which results from a pre-existing
condition, for which the defendant is no way responsible, and the further harm which his tortious conduct has caused.



. . . 8.  A suffers from arthritis in his arm, as a result of which he has a 50 percent disability in the use of the arm.  He is struck by an automobile negligently driven by B, and the injury aggravates the arthritis so that he loses the use of the arm entirely.  B may be held liable for 50 percent of the disability.


. . . g.  Burden of Proof.  As to the burden of proof, and the effect of failure to produce evidence justifying the apportionment, see § 433 B.


. . . i.  Certain kinds of harm, by their very nature, are normally incapable of any logical, reasonable, or practical division.  Death is that kind of harm, since it is impossible, except upon a purely arbitrary basis for the purpose of accomplishing the result, to say that one man has caused half of it and another the rest.  The same is true of a broken leg, or any single wound, or the destruction of a house by fire, or the sinking of a barge.  Such harms can be apportioned, if it all, only upon the basis for a prior reduction in value of what has been destroyed.  By far the greater number of personal injuries, and of harms to tangible property, are thus normally single and indivisible. . . . Where two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm. . . . Such entire liability is imposed where some of the causes are innocent, as where a fire set by the defendant is carried by a wind to burn the plaintiff's house; and it is imposed equally where two or more of the causes are culpable. [Emphasis added.] 


Restatement, Torts (2d) 433 A, and Comments a, e, Illustration 8, Comment g, and i.

§ 433 B. Burden of Proof.


. . . (2) 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.
[Emphasis added.]


 . . . A typical case is the pollution of a stream by a number of factories which discharge impurities into it.  It is not essential to the application of the rule stated in subsection (2) that all of the tortfeasors who will become liable for some part of the apportioned damages be joined as defendants in the action.  id.  The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned.  In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility.  As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former. [Emphasis added.] 

Restatement, Torts (2d.) § 433 B, and Comment on Subsection 2: c and d.

Where an issue exists as to whether the harm is capable of apportionment, the issue is for the jury.  This is generally true where the possible causes are attributable to negligent conduct of different individuals.

In Pang v. Minch the Ohio Supreme Court, in analyzing injuries plaintiff received from one or more of three separate automobile accidents occurring on June 1, 1984, August 21, 1984, and October 15, 1984, stated in relevant part:

Thus, where a plaintiff suffers a single injury as a result of the tortious acts of multiple defendants, the burden of proof is upon the plaintiff to demonstrate that the conduct of each defendant was a substantial factor in producing the harm. [citations omitted.] Once this burden has been met, a prima facie evidentiary foundation has been established supporting joint and several judgments against the defendants.  Thereafter, the burden of persuasion shifts to the defendants to demonstrate that the harm produced by their separate tortious acts is capable of apportionment.

Pang v. Minch, 559 N.E.2d 1313, 1324 (Ohio 1990).  Accord, O'Connor v. Raymark Industries, Inc., 518 N.E.2d. 510 (Mass. 1988);  Kleitz v. Raskin, 738 P.2d. 508 (Nev. 1987); Payton v. Abbott Labs, 780 F.2d. 147 (1st Cir. 1985).

Does Minnesota follow this rule?  Has the Minnesota Supreme Court clearly said so?  The Minnesota Supreme Court analyzed a fact pattern involving two separate but nearly simultaneous automobile accidents in Mathews v. Mills, 178 N.W.2d 841 (Minn. 1970).  The plaintiff suffered an injury but was unable to establish whether the injury was due to the first or second collision.  In analyzing this problem, the Minnesota Supreme Court cites with approval § 433 B (2) as follows: "Where the tortious conduct of two or more actors has been 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."  Mathews, 178 N.W.2d. at 845.   "The degree of culpability is immaterial."  Id at 844.  The court goes on to state the policy reason underlying this holding: 

This placement of the burden of proof is justified by considerations of fairness.  If we were to impose upon an injured party the necessity of proving which impact in a chain collision did which harm, we would actually be expressing a judicial policy that it is better that a plaintiff, injured through no fault of his own, take nothing, than that a wrongdoer pay more than his theoretical share of the damages arising out of a situation which his wrong has helped create.  In other words, the rule is a result of a choice made as to where a loss due to failure of proof shall fall-on an innocent plaintiff or on defendants who are clearly proved to have been at fault.

Id. at 845 (citation omitted). 

Some read Mathews v. Mills as applying only in situations where joint tortfeasors cause an indivisible harm.(2)  The argument is that the defense does not have the burden of proof on apportionment when one or more of the causes are "innocent" causes.  Perhaps additional reading will help clarify the issue.

In Lovely v. Allstate Ins. Co., 658 A.2d 1091, (Me. 1995), the Maine Supreme Court addressed these issues in the context of a plaintiff injured in a motor vehicle accident who had on two prior occasions suffered accidental blows to his right elbow.  In addressing the appropriate way to address these issues, the Maine Supreme Court stated in relevant part:

In the case of joint tortfeasors whose separate negligent acts have caused a single injury that is incapable of apportionment, each defendant is liable for the entire amount of the damages. [citation omitted.] This case presents the question whether the single injury rule applies when a negligent actor, by aggravating a pre-existing injury, produces an aggregate injury that is incapable of apportionment.  We conclude that it does.


Application of the single injury rule to situations involving pre-existing conditions comports with the settled authority from other jurisdictions. . . .[citations omitted.] 


These cases reflect the views of the commentators as well.  "[E]ntire liability is imposed both where some of the causes are innocent . . . and where two or more of the causes are culpable."  [Citations omitted.]  The single injury rule places any hardship resulting from the difficulty of apportionment on the proven wrongdoer and not on the innocent plaintiff.

Lovely, 658 A.2d at 1092-1093.

In analyzing a case involving substantial pre-existing injuries followed by an automobile accident in which the defendant was held to be negligent, the Utah Supreme Court said:

We hold that if the jury can find a reasonable basis for apportioning damages between a pre-existing condition and a subsequent tort, it should do so; however, if the jury finds it impossible to apportion damages, it should find that the tortfeasor is liable for the entire amount of damages.  The trial court erred in not giving the proposed instruction, and the Court of Appeals was incorrect in holding otherwise.

Tingey v. Christensen, 987 P.2d 588, 592 (Utah 1999). 

These are not isolated holdings of the Supreme Courts of Maine and Utah.  In accord are Borman v. Raymark Industries, Inc., 960 F.2d 327 (3rd Cir. 1992) "The burden of proving apportionment rests on the parties seeking it."  Id. at 332 - applying Pennsylvania law;   In Re: Acushnet River and New Bedford Harbor, 722 F.Supp 893 (D. Mass. 1989.)  "Nevertheless, if the sovereigns established at trial that non-federally permitted releases by Aerovox were a contributing factor to an injury to natural resources and produce evidence that the injury is indivisible, Aerovox will be jointly and severally liable for all the resulting injury unless it can prove that the injury is divisible."  Id. at 897-applying general federal common law;  Lang v. Wonnenberg, 455 N.W.2d 832 (N.D. 1990) [harm from both negligent draining of ponds and that caused by innocent act of God--rain.]  "In any event, § 433 B of the Restatement (2d) of Torts (1965) places the burden of proof as to the appropriate apportionment on the party seeking to limit his liability on the grounds that the harm is capable of apportionment.  Wonnenberg did not introduce evidence at trial that would have given the trial court a reasonable basis to apportion the damages among various causes. . . . We conclude that the trial court did not err in holding Wonnenberg liable for 100 percent of the damages."  Id. at 838;  Fosgate v. Corona, 330 A.2d 355 (N.J. 1974)  "Where the malpractice involves treatment of a pre-existing disease, the assessment of damages poses a problem because of the practical difficulty in separating that part of the harm caused by the malpractice from the pre-existing disease and its normal consequences.  Because of this, courts are now taking the view that in a situation where the malpractice or other tortious act aggravates a pre-existing disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damage for which he is responsible are capable of some reasonable apportionment and what those damages are."  Id. at 358;  Newbury v. Vogel, 379 P.2d 811 (Colo. 1963.)  "We find the law to be that where a pre-existing diseased condition exists, and where after trauma aggravating the condition disability and pain result, and no apportionment of the disability between that caused by the pre-existing condition and that caused by the trauma can be made, in such case, even though a portion of the present and future disability is directly attributable to the pre-existing condition, the defendant, whose act of negligence was the cause of the trauma, is responsible for the entire damage.  (Citations omitted.).  Here the plaintiff was entitled to an instruction advising the jury that if they could not apportion the disability between the pre-existing arthritis and the trauma, then the defendant was liable for the entire damage resulting from the disability."  Id. at 813.

It would seem that Minnesota has not been silent on this issue.  The Minnesota Supreme Court was confronted with Tiera Canada's claim for lead poisoning from McCarthy and others in Canada by Landy v. McCarthy, 567 N.W.2d 496 (Minn. 1997).  The facts demonstrated that Tiera suffered lead poisoning prior to July 1992 for which it turns out no one was responsible or negligent.  The facts suggested that Tiera also suffered lead poisoning after July 1992 for which several parties were found negligent and responsible, including defendant McCarthy.  The language of the court is more important than editorial comment.

McCarthy contends that Tiera bore the additional burden of demonstrating by a preponderance of the evidence what damages she suffered prior to July 1992 and what damages she sustained as the result of McCarthy's negligence after July 1992.  Because Tiera failed to meet this burden, McCarthy argues, he was entitled to JNOV.  McCarthy specifically contends 1) that Tiera had this burden because the trial court instructed the jury to separate damages for lead poisoning occurring before and after July 26, 1992; and 2) that Tiera had the burden of showing the extent of aggravation of her pre-existing injury (prior lead poisoning).  We disagree. 


The controversy over these two issues at trial was evident during discussions concerning jury instructions.  Relying on the single indivisible injury rule, Tiera contended that neither an instruction on apportionment of damages between pre-July 1992 and post-July 1992, nor an instruction on aggravation of a pre-existing injury, was appropriate because her injuries were indivisible.  Under the single indivisible injury rule, joint and several liability is imposed when two or more persons acting independently cause harm to a third person through consecutive acts of negligence closely related in points of time and when the harm is incapable of division.  (Citing Mathews v. Mills, supra.)  "Unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage.  The degree of culpability is immaterial." (Citations omitted.)


The burden of proving that the harm is capable of being separated lies with each defendant who contends it can be divided.  (Citations omitted.)  "This placement of the burden of proof is justified by considerations of fairness . . . the rule is a result of a choice made as to where a loss due to failure of proof shall fall-on an innocent plaintiff or on defendants who are clearly proved to have been at fault."  (Citation omitted.)  Whether the injury is capable of apportionment is a question of law.  (Citation omitted.)  Once the trial court finds that the harm can be apportioned, the question of actual apportionment is a question of fact for the jury.  (Citation omitted.)


Here, the trial court decided that because there was some evidence of a second injury, the defendant had met his burden of showing the injuries could be apportioned pre- and post-July 1992. [Footnote 7]. The trial court, therefore, instructed the jury to apportion the damages between those resulting from pre-July 1992 lead poisoning and damages occurring after that date.  The trial court also instructed the jury that a person who had a defect or disability at the time of an accident is entitled to damages for aggravation of such previous existing conditions, but that damages are limited to those over and above those which would normally have followed from the pre-existing condition had there been no accident.


In its decision regarding the parties' post-trial motions, the trial court ruled that Tiera's burden was to show that defendants caused some harm and that she bore no burden to prove damages occurring before July 1992 and those occurring after July 1992.  The Court of Appeals agreed, holding that McCarthy had the burden to prove any apportionment of damages. [Emphasis added.]


We agree with the lower courts.  When the trial court determined the injuries were capable of division, the burden remained with McCarthy to prove any apportionment of damages.  (Citation omitted.).  It was his burden to "absolve himself by proving his own innocence or limited liability."  (Citation omitted.  Emphasis added.).(3)

Id. at 507.

The near consensus of the participants contributing to JIG-4 was that Canada by Landy v. McCarthy stands for the proposition that the defendant has the burden of proving damages are divisible in both the joint tortfeasor situation and in the innocent pre-existing condition situation.  Interestingly, the 8th Circuit Court of Appeals interpreted Canada similarly when it applied Minnesota law in Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997).  In Jenson, the 8th Circuit was confronted with the issue of an allocation of psychological harm due to sexual harassment in the work place with psychological harm from other non-negligent causes.  Citing Canada for support, the Court of Appeals said in part:

. . . It is the defendant who must prove that any damage caused by other factors was divisible, and if so, what portion of damages the defendant caused.  (Authorities-including Canada-omitted.)  Plaintiffs were required to show that defendant's sex discrimination and sexual harassment were substantial factors in causing their emotional harm.  The Special Master's individual awards of damages to plaintiffs indicates plaintiffs made the showing.  However, what the plaintiffs did not have to prove was that other factors did not contribute to that harm.  To limit its liabilities through apportionment, a defendant must prove that a plaintiff's damages are divisible, and other outside factors contributed to the plaintiff's harm.  This the defendants were required to do; this the defendants failed to do. [The Court then goes on to hold the defendants liable for all of the plaintiffs' emotional injury because the injury was indivisible.]

Jenson v. Eveleth Taconite Co., 130 F.3d 1287 at 1294 (8th Cir. 1997).  Footnotes 9 and 10 in Jenson, citing Canada, ought not be overlooked.

Apportionment arises when two or more causes have combined to bring harm to a plaintiff. . . . A defendant availing itself of apportionment seeks to limit its liability by showing that although its conduct was a substantial factor in harming plaintiff, that conduct only caused part of plaintiff's harm.  The defendant seeks to limit its liability to that portion of plaintiff's harm that the defendant actually caused.


The single indivisible injury rule imposes joint and several liability when two or more persons acting independently cause harm to a third person through consecutive acts of negligence closely related in point of time. . . . If the harm is indivisible, each actor is liable for the entire harm.  If the harm is divisible, the actor asserting division may be able to limit its liability to damages for the harm it caused plaintiff. . . .


This rule generally applies when joint tortfeasors cause a plaintiff's damages and also when innocent forces combine with the conduct of a tortfeasor to contribute to a plaintiff's overall harm. . . . [Emphasis added.  Citations omitted].

Id. at 1293-1294.

JIG-4 is the product of nearly 40 judges and lawyers combining their legal talents to objectively and fairly state the law.  JIG 91.40 is a product of that process.  It was extensively briefed, debated, and analyzed by the lawyers, the reporters, and the judges.  Does it objectively and fairly state Minnesota law?  You be the judge.

 1. The names of the judges and lawyers participating in the process are listed on pages VII, VIII and IX of JIG-4.

2. Comments of Mary Alcorn at seminar on Medical Malpractice, sponsored by Minnesota Institute Legal Education, April 7, 2000.

3. Interestingly, the Court in FN7 raises the issue about whether the trial court was in error in holding that allocation of damages was appropriate at all or whether defendant ought be held liable for both the pre-July 1992 and post-July 1992 damages.  The court notes what would seem an insufficiency of evidence to allocate the harm between negligent and non-negligent causes.  The court notes that this issue was not appealed.  In keeping with the balance of the court's holding, one might suggest that a fair reading is that had the plaintiff appealed the issue, the Supreme Court would have held that the damages were not apportionable but were instead an indivisible injury in which event the defendant McCarthy would have been liable for both the pre- and post-July 1992 damages.  Query what should the instruction be if the trial court holds that damages are not apportionable?  Consider this.

There is evidence that Tiera Canada was exposed to lead poisoning prior to July 1992.  There is also evidence from which you may find that Tiera was exposed to lead poisoning after July 1992.  If you find that one or more of the defendants were negligent and that said negligence played a substantial part in bringing about Tiera Canada's injury from lead poisoning, I must instruct you that it is impossible to separate the degree of her injury due to lead poisoning prior to July 1992 from that which occurred subsequent to July 1992.  Because the injury is indivisible before and after July 1992, if you find that one or more of the defendants' negligence played a substantial part in bringing about the lead poisoning injury, then you should award damages for the entire lead poisoning injury, both before and after July 1992.  You should understand that where proof is lacking that damages can be allocated between negligent and non-negligent causes, . . . "it is the policy of the law of this state that it is better to run a slight risk of giving somewhat more than actual compensation than to reach a result which under the circumstances of the case, would in all reasonable probability, prejudice the plaintiff for the recovery of a large portion of the damages [s]he has sustained."  McNabb v. Green Real Estate Co., 233 N.W.2d  811 (Mich. App. 1975).  See also Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997) - applying Minnesota law.

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