PATTERN JURY INSTRUCTION COMMISSION
Oct. 4-5, 2007
MEMBERS PRESENT:
B. Beehler
L. Boschee
A. Boucher
J. Lee
P. Myerchin
J.
Simonson
J. Webb
MEMBERS ABSENT:
J. Anderson
J. Greenwood
J. Hagerty
GENERAL BUSINESS
Chair Larry Boschee called the meeting to order. Michelle Feist, law clerk for the South Central Judicial District, assisted.
Election of Vice-Chair: The vice-chair this year would be a judge. Service is until June 30, 2008 when the vice-chair assumes the position of chair.
Motion to nominate J. Webb: J. Simonson
Second: B. Beehler
Motion to close nominations and cast unanimous vote for J. Webb: J. Simonson
Second: B. Beehler
Approved
Membership: T. Purdon completed his service on the Commission in June and he is not eligible to serve another term. B. Beehler=s term expires this year but he is eligible to serve one more term. A. Page resigned her position in September. SBAND Board of Governors will appoint three new attorney members at the November meeting.
Minutes: Minutes of the June 2007 meeting were reviewed.
Motion to approve: J. Webb
Second: J. Simonson
Approved
Financial Report: The 2007-08 PJIC budget is $28,264, and the Commission has spent $2,685. This amount is 9.5% of the budget with 12.5% of the biennium having past
Motion to approve the financial report: J. Simonson
Second: J. Webb
Approved
Interim Activities
1. Minutes from the June 2007 meeting were prepared and posted.
2. 2007 jury instruction changes and updates were sent to SBAND for publication.
3. Lynn officially retired as Staff Attorney on June 30 and Jennifer Hauge took over full-time on July 1.
4. An e-mail on a suggested change was received and added to the October agenda.
5. Adele Page=s resignation was received by the staff attorney and PJIC chair in September.
6. SBAND was contacted regarding the attorney vacancies. Attorneys to fill these positions will be appointed at the November Board of Governors meeting. SBAND was notified of B. Beehler=s wish to be reappointed to a third term.
7. SBAND was contacted regarding the progress of the 2007 jury instructions. These instructions are now available to the practicing bar per SBAND e-mail from last week.
8. NDJI C-72.07, Exemplary Damages (Harm to Others) (the APhillip Morris instruction@) received positive national recognition in the May 15, 2007, issue of Law.com.
INSTRUCTIONS
1. Presumption, K - 5.18: P. Myerchin reviewed this instruction to determine if an update was needed. The instruction was most recently discussed by the North Dakota Supreme Court in a 3-2 decision in 1989. The first half of the instruction is not crystal clear but the Commission was unsure how to make it better so left it unchanged. The last sentence of the instruction contains mandatory language that is required by statute. It was proposed to remove the older citations and possibly add citations to two North Dakota cases that analyze presumptions but do not address the instruction. The civil cases were removed as this is a criminal instruction. The citations to Minnesota cases were also removed. The note was amended to strengthen the warning to users.
Motion to approve: B. Beehler
Second: P. Myerchin
Approved
2. Preceding the Viewing of Premises, New: P. Myerchin presented proposed civil and criminal instructions to be given before a jury views something outside the courtroom. The language used was similar to the language of the AAfter a View@ instructions already in place. Discussion was had regarding the applicable statute and the purpose of the instructions. The word Apremises@ was removed with the understanding that a jury could be viewing anything.
K B 2.40, Preceding a View, new criminal instruction to be given to a jury prior to viewing something outside the courtroom.
Motion to approve: J. Webb
Second: A. Boucher
Approved
K B 5.08, After a View: Title was changed from View of Premises and language was amended to be consistent with K B 2.40.
Motion to approve: A. Boucher
Second: B. Beehler
Approved
C B 80.39, Preceding a View, new civil instruction, similar to the new criminal instruction, to be given to a jury prior to viewing something outside the courtroom.
Motion to approve: A. Boucher
Second: P. Myerchin
Approved
C B 80.40, After a View: Title was changed from View of Premises and language was amended to be consistent with C B 80.39.
Motion to approve: B. Beehler
Second: J. Simonson
Approved
3. Liability for Snow and Ice, New (excluding municipalities): A. Boucher presented proposed new instructions regarding situations including snow and ice. Discussion was had as to whether there can be one instruction to cover all situations, but it was agreed there must be multiple instructions because the duty varies depending on the location of the incident. The Commission recognized the law is not crystal clear on this issue, and A. Boucher agreed to continue to closely monitor case law in this area. Extensive discussion was had, and the proposed instructions were adopted.
C B 16.07, Ice and Snow: A note was included to provide guidance to users, and a reference to C B 16.09, Duty of State for Damages Caused by [Snow and Ice][Frost or Loose Snow] on Highways or Sidewalks Not Abutting a State Owned Building or Parking Lot, was included.
Motion to approve: J. Simonson
Second: B. Beehler
Approved
C B 16.09, Duty of State for Damages Caused by [Snow and Ice][Frost or Loose Snow] on Highways or Sidewalks Not Abutting a State Owned Building or Parking Lot: A note was included to direct users to C B 16.07, Ice and Snow, if an injury occurred on a sidewalk or other area abutting a state-owned building or parking lot.
Motion to approve: J. Lee
Second: A. Boucher
Approved
C B 16.10, Liability of Municipality for Damages Caused by [Snow and Ice][Frost or Loose Snow] on [Sidwalk][Crosswalk]
Motion to approve: J. Lee
Second: P. Myerchin
Approved
4. False Arrest and Unlawful Detention by Private Person, New: A. Boucher proposed an instruction that follows the statutory language on this issue. C B 11.30, Instigation of False Imprisonment, was adopted by the Commission in 2006, but the issue is being readdressed at the suggestion of the Bar because there is some interest in having Aarrest@ defined. While there are no cases on point, case law and statutes were looked to and it was stated that C B 11.00, False Imprisonment, includes a definition of arrest. The new instruction will be C B 11.40, False Arrest and Unlawful Detention by Private Person.
Motion to approve: J. Lee
Second: B. Beehler
Approved
5. 1986 Presumptions, C - 80.60, 80.62, and 80.64: A. Boucher reviewed the existing instructions and proposed changes to parallel current law. C B 80.60, Presumption, was amended in an effort to make the instruction more understandable and easier to use. The Commission decided to delete C B 80.62, Presumption of Ordinary Care (Death Case) because C B 80.60 includes a list of presumptions. The Commission also decided to delete C B 80.64, Presumption of Ownership from Brand, because a brand is prima facie evidence, not a presumption, and a jury instruction is generally not given regarding prima facie evidence.
C B 80.60, Presumption
Motion to approve: A. Boucher
Second: B. Beehler
Approved
C B 80.62, Presumption of Ordinary Care (Death Case)(DELETED)
Motion to approve: B. Beehler
Second: J. Simonson
Approved
C B 80.64, Presumption of Ownership from Brand (DELETED)
Motion to approve: J. Lee
Second: J. Simonson
Approved
6. Presumption of Fair Market Value (Deficiency Judgment) (Without Notice and/or Commercial Reasonableness), C - 80.66: J. Hagerty and Michelle Feist, law clerk for the South Central Judicial District, prepared a proposed change to this instruction. The proposed instruction was presented by Feist. The proposed changes reflected the changes in the law and cited a case that more closely discusses the topic. Feist also proposed a new instruction to be used when Notice and Commercial Reasonableness were both used. The Commission discussed whether to delete the instruction because trial on these matters does not usually include a jury, but decided to keep the instruction and adopt the changes, and to adopt the proposed new instruction. The new instruction will be C B 80.67, Presumption of Fair Market Value (Deficiency Judgment) (With Notice and/or Commercial Reasonableness).
Motion to approve: J. Simonson
Second: J. Lee
Approved
J. Lee dissented
7. Extended Use, C - 21.42 and Reasonably Safe Product, C - 21.43: The Products Liability instructions were approved in 2006, but L. Boschee requested additional time for further review.
C B 21.42, Extended Use: L. Boschee proposed including citations to cases where the defect was not discovered until later.
Motion to approve: B. Beehler
Second: J. Lee
Approved
C B 21.43, Reasonably Safe Product: Case law supports this instruction, although the instructions used in the cited cases were longer. The North Dakota Supreme Court approved of one of the instructions but cautioned against using the other. Discussion was had about how a sale is necessary to trigger the use of this instruction. AReasonable@ was removed because the instruction would be used in strict liability situations where reasonableness is already the standard. The term Aseller@ includes all sellers in the chain.
Motion to approve: B. Beehler
Second: J. Simonson
Motion Failed
It was agreed all members of the Commission will review the Products Liability statutes, N.D.C.C. ch. 28-01.3, prior to the March meeting, where these instructions will be discussed further. J. Hauge will provide a summary of the legislative history of this chapter to all Commission members prior to the March meeting. Separate instructions may be needed because Products Liability is a broad area of the law.
8. False Report to Law Officer, K B 15.22: P. Myerchin provided an update on the law, which changed in 1999. The instruction was last updated in 2003. The instruction applies to officers and security officials, and it was discussed whether a separate instruction is needed for each. P. Myerchin will create separate instructions to present at the March meeting.
9. Review of criminal legislation: J. Simonson and J. Hagerty had agreed to review the legislative changes to the criminal laws to determine if the instructions needed to be updated. J. Simonson reviewed N.D.C.C. ch. 12.1 and found three possible changes. He prepared one for the October meeting and will present the other two at the March meeting.
10. Proximate Cause, C B 2.15: J. Hauge reviewed to determine whether an update was needed. The instruction was approved in 1996. It was proposed that the instruction be reviewed and the cites be updated. A. Boucher agreed to review the instruction for the March meeting.
11. Prohibition of Presence of Sexual Offenders Near Schools, New: J. Simonson proposed a jury instruction based on N.D.C.C. ' 12.1-20-25, enacted by the 2007 Legislature. New laws are placing increasing pressure on sex offenders to report their addresses within a shorter time of moving. There is concern if these individuals are located near a school, which is addressed by ' 12.1-20-25. The proposed instruction follows the language of the statute and will be K B 7.96, Presence of Sexual Offender Near School.
Motion to approve: B. Beehler
Second: P. Myerchin
Approved
ASSIGNMENTS
1. Eminent Domain review, C - 75.00 excluding C - 75.01 and C - 75.04 (B. Beehler)
2. Terrorizing, K - 8.32 (J. Greenwood)
3. False Report to Law Officer, K B 15.22 and New (P. Myerchin)
4. Proximate Cause, C B 2.15 (A. Boucher)
5. Preventing Arrest or Discharge of Other Duties, K B 13.10 (P. Myerchin)
6. Legal Entities, C B 55.12, 55.14, and 55.50 (L. Boschee)
7. Partnership, C B 55.40, 55.45, and New (L. Boschee)
8. Criminal Instructions based on new legislation (J. Simonson)
9. Assisting Jurors at Impasse, K B 5.64 (J. Lee)
10. Introductions to Civil and Criminal Instructions (P. Myerchin)
11. Measure of Damages [False Imprisonment][Malicious Prosecution], C B 70.62, and Elements of Damages (Miscellaneous), C B 74.20 (A. Boucher)
12. Evidence, C B 80.05, 80.08, 80.52, and 80.56 (J. Lee)
13. Verdict Forms, C B 90.01, 90.05, 90.10, 90.15, 90.20, 90.25, 90.26, 90.30, 90.35, 90.40, 90.55, and 90.60 (to be assigned to a new member)
14. Charge to Jury, K B 1.01 (J. Webb)
15. Verdict, K B 5.65, 5.70, 5.72, 5.74, 5.76, 5.78, and 5.80 (J. Anderson)
16. Prostitution, K B 7.66 (J. Webb)
17. Aggravated Assault (Firearm B Destructive Device), K B 8.04 (J. Greenwood)
18. Defrauding Secured Creditor (False Statement), K B 11.35 (J. Lee)
The March meeting will be March 6 - 7, 2008, at the Heritage Center in Bismarck.
Motion to adjourn: B. Beehler
Second: A. Boucher
Adjourned
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529
cjhauge@dishmail.net