PATTERN JURY INSTRUCTION COMMISSION
October 5, 2006
Bismarck, ND
MEMBERS PRESENT: J. Anderson, L. Boschee, J. Hagerty, T. Purdon, J. Simonson, J. Webb
MEMBERS ABSENT: B. Beehler, A. Boucher, J. Greenwood, P. Myerchin, A. Page
GENERAL BUSINESS
Chair Judge Simonson called the meeting to order. Sara Behrens, law clerk for the South Central Judicial District, assisted.
Membership: S. Plambeck and R. McLean completed their service on the Commission, and attorneys Adele Page and Paul Myerchin were appointed as new members. J. Haskell submitted his resignation, and the appointment of a judge to finish his term is anticipated.
Election of Vice-Chair: The vice-chair this year would be an attorney. Service is until June 30, 2007 when the vice-chair assumes the position of chair.
Motion to nominate L. Boschee: G. Hagerty
Second: T. Purdon
Motion to close the nominations and cast a unanimous vote for L. Boschee: J. Anderson
Second: J. Webb
Approved
Minutes: Minutes of the June 2006 meeting were reviewed.
Motion to approve: J. Hagerty
Second: T. Purdon
Approved
Financial Report: The 2005-07 PJIC budget is $27,314. Through August 30, 2006 or 58% of the biennium, the Commission spent $14,383 or 53% of the budgeted amount.
Motion to approve the financial report: L. Boschee
Second: J. Webb
Approved
Interim Activities
1. Minutes of the June meeting were posted.
2. SBAND was thanked for providing lunch during the June meeting.
3. The job description for the staff attorney was submitted to the search committee and to State Court Administration. The committee will begin advertising in January so that the new hire may attend the March meeting.
4. The 2006 instructions, tables, and accompanying indices were sent to SBAND for publication. The completed information was received on June 28th. Publication online was early September and on CD's late September. Although the staff assistance from SBAND is excellent, the Commission would like more timely publication. Next June, the Chair will contact Bill Neumann in June to discuss possible solutions to the problem. A response to SBAND's proposal to publish the instructions more frequently than once per year was sent.
5. Complimentary booklets, Communicating with Juries: How to Draft More Understandable Jury Instructions, were received from the National Center for State Courts Center for Jury Studies and distributed.
The Commission briefly discussed attendance and presentations by telephone. Because this is a working group involved with revising information projected visually and the facilities for conference calling are minimal, such participation won't be encouraged except perhaps when an item to be discussed is brief and noncontroversial.
INSTRUCTIONS
1. Presumption of Innocence and Burden of Proof, K - 1.05: T. Purdon suggested changing "until" to "unless" in the sentence, "The Defendant is presumed to be innocent until the contrary, the Defendant's guilt, is proved beyond a reasonable doubt."
Motion to approve: L. Boschee
Second: J. Anderson
Approved
2. 1986 Criminal Introductory Instructions - Special Situations, K - 2.01, 2.02, 2.04, 2.06, 2.08, 2.10, 2.12, 2.20, and 2.25: J. Simonson reported there is no need to revise these instructions. The underlying statues have not been amended since 1986 (the year of the instruction) and perhaps not since 1973 (the year the criminal code was enacted). He reviewed the code sections in the pocket parts and found no compelling notes or changes. Case cites could be updated with older cites deleted, and S. Behrens will do this for the March meeting.
3. Bailment: J. Hagerty reviewed the bailment instructions. S. Plambeck had previously indicated that the instructions continue to have validity and usefulness, but they needed to be rewritten.
a. Bailment for Mutual Benefit, C - 52.00
Motion to approve: T. Purdon
Second: G. Hagerty
The title of this instruction was changed to Bailment for Mutual Benefit or for Hire. "Members of the Jury" was deleted. This instruction applies to one type of bailment. In a memo from L. Lina, former clerk, she noted that the Supreme Court has used the terms "bailment for mutual benefit" and "bailment for hire" interchangeably. However, even if interchangeable, it was considered prudent to continue to use both terms. A CJS reference was deleted.
Approved
b. Implied Warranty of Bailor, C - 52.05
Motion to approve: T. Purdon
Second: G. Hagerty
The introduction, "Members of the Jury," was deleted. L. Boschee asked if C - 52.05 would ever be used with the new UCC section on leasing available. However, this instruction may apply when one is not a merchant. The only North Dakota cite continues to be the 1958 Motion Pictures for Television, Inc. v. ND Broadcasting Co. case. The CJS reference was deleted.
Approved
c. Warranty of Bailor Limited, C - 52.08
Motion to approve: T. Purdon
Second: L. Boschee
This instruction was rewritten with simpler language. An introductory phrase and the CJS cite were deleted.
Approved
4. North Dakota Products Liability: L. Boschee reviewed the products liability instructions at the suggestion of attorney D. Vogel. His goals were to have them more comprehensible and current.
a. Strict Product Liability, C - 21.00
Motion to approve: J. Hagerty
Second: J. Anderson
The last paragraph was outdated and deleted. In 1995, NDCC 28-01.3-09 created a rebuttable presumption that a product is not defective if it conforms to government standards, or if no government standards are available, to applicable industry standards. The entire instruction was very wordy. That the Defendant has the burden of rebutting the presumption that an adequate warning would have been read and followed if provided and the standard for rebutting that presumption, the greater weight of the evidence, was added in a bracketed paragraph (formerly C - 21.10). There is an instruction on burden of proof, C - 2.05, but it seemed clearer for the jury to have the standard stated in this particular instance. References to fault were made consistent. Cases were reordered.
Approved
b. Defective and Unreasonably Dangerous Defined, C - 21.01
Motion to approve: J. Hagerty
Second: J. Anderson
This is a new instruction which replaces the paragraph defining a product as unreasonably dangerous in the 1995 C - 21.00. It tracks NDCC 28-01.3-01. Quotes around the terms being defined were added.
Approved
c. Product Bearing an Adequate Warning Not Defective, C - 21.02
Motion to approve: J. Anderson
Second: L. Boschee
This new instruction states the assumption that a warning would be read and heeded if an adequate one is given. The cite is Butz v. Werner. The corollary is the presumption that a product is defective or dangerous if an adequate warning is not given. The first sentence was discussed and retained as a good introduction.
Approved
d. Product Liability Negligence, C - 21.03
Motion to approve: J. Hagerty
Second: J. Webb
This new negligence instruction parallels the proposed strict product liability draft. That the Plaintiff must prove the elements by the greater weight of the evidence was added.
Approved
e. Warning, C - 21.05
Motion to approve: J. Hagerty
Second: J. Anderson
This instruction combines C - 21.05, Manufacturer's Duty to Warn (Strict Liability) and C - 21.20, Failure to Warn, Negligence and Strict Liability Distinguished. They were combined because they treat the same general subject matter, and both were basically reworded. C - 21.20 will be deleted with a reference to see C - 21.05. The instruction specifies that an adequate warning is one which would encourage caution commensurate to the potential danger. "Reasonable" was added to "warning." A phrase, "without the Plaintiff's advocated warning" was deleted.
Approved (J. Webb dissenting)
f. Knowledge and Obviousness of Danger, C - 21.06
Motion to approve: J. Webb
Second: J. Anderson
This is a new instruction. It may be used when Plaintiff is the user of the product or a bystander injured by another's use. Speiker v. Westgo, Inc. is cited.
Approved
g. Negligent Failure to Warn of a Danger Learned Post-Sale, C - 21.25
Motion to approve: J. Hagerty
Second: J. Anderson
Crowston v. Goodyear Tire & Rubber Co. remains the primary cite for this revised instruction. It describes the situation when a manufacturer learned of a danger after the product is sold and consequently had a duty to warn. The elements of negligence, not strict liability, apply. Four general factors from the Restatement followed by eight items enumerated in Crowston, 521 N.W.2d at 409 were to be considered by the jury. Whether the Restatement should be included in the North Dakota instructions and whether two groups of factors causes unnecessary repetition was discussed. It was suggested that the additional information may provide helpful context for interpreting the factors.
Motion to table to review Crowston: T. Purdon
Second: J. Anderson
Approved
h. Alteration or Modification, C - 21.30
Motion to approve: J. Anderson
Second: J. Webb
"[A]t fault" replaced "liable." That an unforeseeable alteration or modification substantially contributed to cause the injuries resulting in no fault for the manufacturer or seller was discussed. The substantially contributing cause tracks the statute and the phrasing remained.
Approved
Misuse, C - 21.40
Motion to approve: J. Anderson
Second: J. Hagerty
This instruction reflects common law doctrine. Whether "greater weight of the evidence" should be inserted as the burden for finding Plaintiff misused the product was discussed but rejected as an unnecessary repetition. A cite to Day was added because the case is referenced in the note.
Approved
j. Government and Industry Standards, C - 21.41
Motion to approve: J. Hagerty
Second: J. Anderson
Information stated in this instruction was a bracketed paragraph in the 1995 C - 21.00, Strict Products Liability. NDCC 28-01.3-09 permits applicable industry standards to be considered when no government standards exist. S. Behrens was asked to revise the instruction to ensure conformity with the statute.
Motion to table: J. Hagerty
Second: J. Webb
Approved
k. Extended Use, C - 21.42
Motion to Approve: J. Webb
Second: J. Anderson
The new instruction applies to the situation in which a defect occurs following normal use of a product for an extended time. "[F]ault" was substituted for "liable." Spieker is cited.
Approved
l. Reasonably Safe Product, C - 21.43
Motion to Approve: J. Hagerty
Second: J. Anderson
This is described as a balancing instruction, that is, it balances instructions given concerning the duties and responsibilities of a manufacturer. Spieker, 479 N.W.2d at 845, was reviewed. "[O]nly" was removed from the statement that manufacturers are only required to sell a product that is reasonably safe.
Approved
5. Other Personal Crimes, K - 8.00: Clerk S. Behrens and J. Anderson reviewed the 1985-86 personal crimes. No substantive changes were needed.
Motion to approve: J. Hagerty
Second: T. Purdon
a. Aggravated Assault (Willful Conduct), K - 8.01; Aggravated Assault (Use of Dangerous Weapon), K - 8.02; and Aggravated Assault (Bodily Injury While Attempting Serious Bodily Injury), K - 8.03: Notes referring to Olander were added. Case cites were added to K - 8.01 and K - 8.02.
b. Simple Assault (Negligent Conduct), K - 8.12: NDCC 12.1-17-01 was reviewed. This instruction refers only to NDCC 12.1-17-01(b). K - 8.11 covers section (a), willfully causing substantial bodily injury.
c. Contact by Bodily Fluids or Excrement, K - 8.25: J. Anderson proposed this new instruction which cites NDCC 12.1-17-11 and State v. Weaver.
d. Criminal Coercion, K - 8.40: NDCC was reviewed and "knowingly" was removed.
e. Affirmative Defense, K - 8.45: No changes were recommended.
f. Harassment (Threat to Inflict Injury), K - 8.50: A bracketed paragraph noted that a communication by telephone occurs at either the place where the call is made or received.
g. Kidnapping, K - 8.70: Both "knowingly" and "willfully" were deleted but acting "with intent" remained. A note concerning pre-trial kidnapping was added.
h. Kidnapping (Pre-Trial Release), K - 8.72: This instruction was deleted and the information added as a note to K - 8.70.
i. Felonious Restraint, K - 8.74: "Knowingly" was discussed and the statute, NDCC 12.1-18-02 reviewed. A definition of "terrorizing circumstances" and a cite to Plentychief were added.
j. Unlawful Imprisonment, K - 8.80: A definition for "equivalent relation" was provided. Schlotman is a new cite.
Approved
ASSIGNMENTS
The March meeting will be March 1 - 2, 2007.
1. 1985-86 Special Situations, K - 2.00 (cite update) (S. Behrens)
2. Strict Product Liability: Negligent Failure to Warn of a Danger Learned Post-Sale, C - 21.25 (review Restatement and Crowston) (T. Purdon & L. Boschee); Government and Industry Standards, C - 21.41 (to track statute) (S. Behrens); Intervening Cause, New (L. Boschee)
3. False Arrest and Unlawful Detention by Private Person (A. Boucher)
4. 1986 Presumptions, C - 80.60, 80.62, 80.64, and 80.66 (A. Boucher)
5. Eminent Domain review, C - 75.00 excluding C - 75.01 and C - 75.04 (B. Beehler)
6. Waterways, C - 10.00, 10.40, and 10.50 (J. Greenwood)
7. Gross Sexual Imposition (J. Greenwood)
8. Liability for Snow and Ice, all political subdivisions and the State except for municipalities, New (A. Boucher and T. Purdon)
9. Civil Rights Violation, Strand v. Cass County (discussion) (J. Simonson)
10. Legal Entities, C - 55.12, 55.14, and 55.50 (review); Partnership (duties of corporate officers and directors)(discussion) (A. Page)
11. Criminal Closing Instructions, K - 5.00 (review) (P. Myerchin)
Motion to adjourn: J. Simonson
Second: J. Webb
Adjourned
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-7384
lynnak@gra.midco.net