MEMBERS PRESENT: B. Beehler, A. Boucher, J. Greenwood, J. Hagerty, J. Haskell, R. McLean, S. Plambeck, T. Purdon, J. Simonson, J. Webb
MEMBERS ABSENT: J. Anderson, L. Boschee
GENERAL BUSINESS Chair Judge Hagerty called the meeting to order. Computer and clerical assistance was provided by Zachary Pelham, law clerk for the South Central Judicial District.
Minutes Minutes of the October 2004 meeting were reviewed. Motion to approve: S. Plambeck Second: Tim Purdon Approved Financial Report: The 2003-05 PJIC budget is $26,474. Through December 31, the Commission spent $19,224. This is 73% of the budget through 75% of the biennium.
Interim Activities 1. Drafts of instructions and minutes of the October meeting were posted. The membership list was updated. 2. Plain English List-Serve: The Commission responded to a request from David McCord, Director of the American Judicature Society’s National Jury Center, about interest in participating in a list-serve available to members of committees of states working on improving jury instructions. Professor McCord indicated that other responses had been slow, and the
Society is waiting to decide if the concept is worth pursuing. 3. Reasonable Doubt: There was an error in the Reasonable Doubt instruction. SBAND was contacted, and it has been corrected. 4. State of the Judiciary: Information regarding PJIC was forwarded for the State of the Judiciary report. 5. Publication of Instructions: Disks containing the 2004 approved instructions, indices, and tables were sent to SBAND June 17th. SBAND forwarded the material for entry on the web site September 22nd. Following this date, data entry was efficient and accurate. PJIC is ultimately
responsible for the rules and procedures for distribution of the instructions, so there is concern about the delay in publishing hard copies, disks, and on-line instructions. The Commission
suggested that Justice Neumann be invited to the June PJIC meeting for a discussion. 6. Accessing On-line Instructions: Due to the way the jury instruction database stores PJI numbers, the .00 is dropped. Thus, to search directly for an instruction ending in .00, only the
base number can be entered, e.g., to retrieve 5.00, type 5. It was suggested that this information be included for users if the search function cannot be changed.
1. K - 8.20, Reckless Endangerment (Under Circumstances Manifesting Extreme Indifference to the Value of Human Life; K - 8.22, Reckless Endangerment: Judge Webb reviewed State v.
Jaster, 2004 ND 223. On appeal, the Court upheld stating the culpability requirement as reckless because willful as defined in NDCC 12.1-02-02(1)(e) includes reckless. The trial court had
refused Defendant’s request to include the term “particular” prefacing “person’s safety” as stated in NDCC 12.1-17-03. The Supreme Court found this to be in error. Although the conduct may be directed toward a group, the State must prove that at least one person was endangered for a conviction. K - 8.20 is the felony offense; K - 8.22 is the misdemeanor. A cite to Jaster was added, and style changes were suggested. Motion to approve K - 8.20 and K - 8.22: T. Purdon Second: B. Beehler Approved
2. New, Encouraging or Contributing to the Delinquency or Deprivation of a Minor: There was
a major restructuring of sex crimes by the legislature in 2003 but this is a new instruction requested by attorney Fritz Fremgen. It was presented by Z. Pelham for J. Hagerty. The culpability requirement was discussed. A note was added to the definitions stating that it is not
clear whether the definition of “willfully” from NDCC Title 12.1 is applicable to NDCC Title 14. A definition of deprivation will be added before publication. Motion to approve: T. Purdon Second: B. Beehler Approved
3. New, Luring Minor by Computer: Z. Pelham presented a proposed new instruction which was also requested by attorney Fritz Fremgen. The instruction is authorized by NDCC 12.1-20-05.1 which was based upon a NY statute. The ND case, State v. Backlund, was reviewed.
Brackets around specific instances were added. A bracketed element referring to the age of the Defendant and apparent age of the minor was added to describe the felony offense. The culpability was discussed. It appears to be “knowingly” but is not clear, so it is not specified in the instruction. Motion to approve: J. Greenwood Second: J. Haskell Approved
4. C - 72.16, Actual Malice: Since August 1, 1995, actual malice is required for awarding exemplary damages. To award exemplary damages, there must be clear and convincing evidence
of oppression, fraud, or actual malice. Subsequently, the presumed malice instruction was deleted. T. Purdon reviewed the current Actual Malice as a complement to the examination of instructions relating to exemplary damages. No changes were proposed. By consensus, Ingalls v. Paul Revere Life Ins. Group will be added to the cites and two older cases, Dahlen and Redahl,
5. C - 72.00, Exemplary or Punitive Damages: R. McLean had initially reviewed this instruction at the request of attorney Pat Ward following State Farm Mutual Ins. Co. The content was
considered accurate but editing was suggested. There was discussion about the word “reasonable” indicating that the jury may award a “reasonable” sum. Does the sum have to be
reasonable or only bear a reasonable relationship to the harm? NDCC 32-03-37 states that damages must be reasonable but NDCC 32-03-35 excludes exemplary damages in the chapter except when explicitly mentioned. The instruction was tabled in October for consideration of the word “reasonable” in the first two paragraphs. By consensus, “reasonable” will remain.
6. Measure of Damages (Contracts in General); New, Measure of Damages (Benefit of the Bargain): R. McLean and S. Plambeck considered the two proposed drafts. The Measure of Damages (Contracts in General) was approved in 2004 but not published and was tabled until a
Measure of Damages (Deceit) could be developed. The prior instruction had provided the same damages for breach of contract and fraudulent inducement. Although there is a distinction between fraud (see NDCC 9-03 – 09) and deceit (see NDCC 9-10-02), the terms have been
mixed in the case law. There was consensus that deceit is a tort and that the rule for damages is the benefit of the bargain and compensation for all detriment caused. The word “deceit” was
removed from the Measure of Damages (Deceit - Benefit of the Bargain), and the sentence stating that only damages proximately caused by a specific misrepresentation are recoverable was deleted. With this addition there are three instructions–contract, tort, and benefit of the bargain. Motion to publish C - 74.00 and approve New, Measure of Damages (Benefit of the Bargain): T. Purdon Second: R. McLean Approved
7. K - 5.42, Defendant Not Testifying: J. Simonson proposed changing Failure of Accused to
Testify. “Failure” was removed from the title. The jury is informed that the Defendant has a right to remain silent. Three newer cases were cited. Motion to approve K - 5.42: J. Simonson Second: T. Purdon Stating that the Defendant is a competent witness was removed as unnecessary. That the
prosecutor cannot mention the Defendant’s silence was retained because the jury might question this absence of comment. Motion to approve K - 5.42 as amended: J. Haskell Second: A. Boucher Approved
8. Miscellaneous Torts: A. Boucher itemized the work on this section to date: C - 6.00
(published), 6.10 (deleted), 6.20 (deleted), 6.30 (deleted), 6.40 (published), 7.00 (published), 7.10 (published), 7.20 (deleted), 7.30 (deleted), 8.10 (tabled), 11.00 (tabled), 11.10 (tabled),
11.20 (deleted), 12.05 (published), and 14.50 (tabled).
a. C - 8.10, Puffing: The title was changed to Puffing or Sales Talk. Criminal cases that had been cited were removed. A 1926 case was left in the cites to assist with interpretation.
“Fraud” was added, and both “fraud” and “deceit” were bracketed. Motion to approve C - 8.10: B. Beehler Second: J. Haskell Approved
b. C - 14.20, Informed Consent: The previous instruction and Flatt v. Kantuk, ¶¶ 6 - 10, 26 - 27, were reviewed. Motion to table C - 14.20 and adjourn: R. McLean Second: J. Haskell Approved
Friday, March 4, 2005 MEMBERS PRESENT: B. Beehler, A. Boucher, J. Greenwood, J. Hagerty, S. Plambeck, J. Simonson, J. Webb
MEMBERS ABSENT: J. Anderson, L. Boschee, J. Haskell, R. McLean, T. Purdon
b. (continued) C - 14.20, Informed Consent: A. Boucher indicated that he developed the proposal with neutrality in mind–that it is a summary of the law. The patient must demonstrate that the information affected the decision to proceed. If it did not affect the patient’s decision,
this instruction is not applicable. One issue discussed was whether duty and causation should be specified. It was decided that a separate causation instruction would be appropriate, and A. Boucher will develop this for a future meeting. Whether the instruction could refer to a
“reasonable person” instead of a “reasonable patient” was discussed. The concern was that patients differ greatly, however, “reasonable patient” is used in the caselaw. The language referring to a risk as “so remote as to be negligible” was retained. Motion to approve C - 14.20: A. Boucher Second: J. Simonson Approved
c. C - 14.25, Patient’s Duty: The content of C - 14.25 is repeated in C - 14.50, Malpractice (Duty of Patient). Motion to delete C - 14.25: J. Simonson Second: S. Plambeck Approved
d. C - 14.50, Malpractice (Duty of Patient): The last sentence was removed as it is not
accurate under comparative fault. The concept that the patient may be at fault for not listening and cooperating was added. The original note referred to contributory negligence and was rewritten to reflect comparative fault. Motion to approve C - 14.50: A. Boucher Second: B. Beehler Approved
e. C - 11.00, False Imprisonment: The false imprisonment instruction needed revision following Wishnatsky and Haggard to be in conformance with the law. The old instruction just considered arrest. S. Plambeck noted that justification for false arrest can be complex and the instruction needs to be tailored to the specific situation. The proposed instruction is a general definition. Motion to approve C - 11.00: B. Beehler Second: J. Greenwood Approved
f. C - 11.10, Good Faith (False Imprisonment): A. Boucher recommended deleting this
instruction. The cite does not support the instruction. The instruction narrowly addresses the situation of a police officer making an arrest, and the law is more complex. Motion to delete C - 11.10: A. Boucher Second: J. Webb S. Plambeck questioned whether something regarding justification is needed. The reason for
deletion, i.e., that a specific instruction depending upon the situation may be needed will be added. Motion to delete with explanation: A. Boucher Second: J. Webb Approved
g. C - 11.30 (New), Instigation of a False Arrest: A. Boucher proposed a new instruction for the tort instigation of false arrest. The draft does not consider when a citizen makes a mistake
and thus provides false information. J. Hagerty will research this situation further.
h. C - 16.00, 16.05, and 16.10: This group of instructions concerns municipal streets and
sidewalks. They will be reviewed in the fall as the Legislature is currently addressing pertinent issues and a new case is expected to be decided.
i. C - 17.10, Duty of Possessor to Lawful Entrant–Injury Caused by Condition of Premises: No changes were proposed to the 2003 revision of this instruction. There is a more
recent cite, Gonzales v. Tounjian, 2003 ND 121, but it does not add new information.
j. C - 18.00, Loss of Consortium: A. Boucher suggested that this instruction be
renumbered and located in the damages section with a note at C - 18.00 indicating the new placement. Motion to renumber C - 18.00: A. Boucher Second: J. Webb Approved
k. C - 23.00, Wrongful Death: Is this instruction necessary? It is a definition of wrongful death. Unless there is an action, it won’t go to the jury, so a definition does not add anything. That it is a wrongful death action will be included in the statement of the case. Motion to delete C - 23.00: S. Plambeck Second: J. Simonson Not approved (3 approve; 4 oppose) NDCC 32-21-01 was reviewed. The term “heirs at law” was bracketed and substituted for the specific categories of persons entitled to bring this action. The statute will be the only cite. Motion to approve C - 23.00: A. Boucher Second: B. Beehler Approved
l. C - 40.40, Gift of Personal Property: B. Beehler reviewed the 1986 Gift instruction
and suggested changing the title because the instruction concerns personal property and not real estate. A sentence regarding property transferred between spouses was inaccurate and removed.
“Inter vivos” was eliminated leaving only the phrase “while the donor is alive.” The final paragraph regarding the presumed acceptance of a gift was added from Durward v. Nelson. Three case cites were added. Motion to approve C - 40.40: J. Webb Second: J. Simonson Approved
Administration Consensus was that the June meeting will be a half day working meeting. The staff attorney will
check on the time and place.
The meeting adjourned at 11:30.
Respectfully submitted, Lynn A. Kerbeshian