PATTERN JURY INSTRUCTION COMMISSION
March 2-3, 2006
March 2, 2006
MEMBERS PRESENT: B. Beehler, L. Boschee, A. Boucher, J. Greenwood, J. Hagerty, R. McLean, S. Plambeck, J. Simonson, T. Purdon
MEMBERS ABSENT: J. Anderson, J. Haskell, J. Webb
GENERAL BUSINESS
J. Simonson opened the meeting and conducted business until the arrival of Chair B. Beehler. Clerical and computer assistance was provided by Lynnae Lina, law clerk for the South Central Judicial District.
Minutes: Minutes of the October 2005 meeting were reviewed.
Motion to approve: J. Hagerty
Second: A. Boucher
Approved
Financial Report: The 2005-07 PJIC budget is $27,314. Through January 30, 2006, the Commission has spent $7,127 and is on track with expenditures.
Motion to approve: T. Purdon
Second: L. Boschee
Approved
Interim Activities
1. State Court Administration was thanked for meeting preparation.
2. Minutes and drafts from October were posted on the Supreme Court website.
3. Requests were received for information on instructions relating to intoxication and possession as well as information regarding the use of polygraph results.
4. An article, "Dealing With Jurors' Expertise, The National Law Journal, 12-23-2005, by Leonard Post was distributed.
NEW BUSINESS
1. Deadlocked Jury (J. Hagerty): The title of this instruction, C - 85.70, was changed from Deadlocked Jury to Duty of the Jury [Allen Charge]. This instruction was traditionally an Allen charge. State v. Champagne upheld an Allen charge for the jury and noted that it is a way of reminding jurors of their obligations which may be especially necessary during prolonged deliberations. It is legitimate to remind jurors that they should consider the views of others and give thought to reconsideration of their own position. The proposed instruction could be read before the jury retires and again if there is difficulty. A new instruction, Assisting Jurors at Impasse, C - 85.75, was proposed. This instruction is based on ND Rule of Court 6.9. State v. Shafer-Imhoff was removed from the first instruction as the case pertains solely to the situation requiring assistance. Both instructions are applicable in the criminal case also and will be replicated in the criminal contents. Although C - 85.20 contains much of the same information as C - 85.70, it is considered desirable to provide options for the judge to select the instruction that matches the particular situation. However, either C - 82.20 or C - 82.70 should be given at a minimum before the jury deliberates, and a note indicating this was added. Both the Duty of the Jury [Allen Charge] and Assisting Juror at Impasse could be given at the end of the trial if problems are anticipated. Or, the later could be used when the situation arises. The Minnesota and California references were deleted. Motion to approve: J. Hagerty
Second: J. Simonson
Approved (Dissent - T. Purdon)
2. Waterways (J. Greenwood): C - 10.00, Drainage of Surface Waters, was reviewed, and indicates that the issue is a question of fact in each case. Yet, a cite for the instruction, Jones v. Boeing Co., ¶ 14, adopts the reasonable rule, and this is not mentioned in the instruction. The language in Jones and the instruction may not be congruent. Perhaps reasonableness should be included whereas the instruction takes more of a strict liability approach. J. Greenwood will consider this further.
C - 10.10, Watercourse: A cite to the definition of Watercourse, NDCC 61-01-06, was added.
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
C - 10.20, Drainway: No changes were proposed.
C - 10.40, Acts of God (Drainage of Surface Water): Cites to LRA, AmJur, and Shearman and Redfield were deleted. The Soules reference was corrected. "So-called" was eliminated as a modifier for acts of God. One reference to acts of God was eliminated as being repetitive. References to liability were changed to fault. The definitions of "extraordinary" and "unprecedented" were discussed. Both concepts vary according to location and history. Huber v. Oliver County was reviewed. The jury instruction on acts of God was challenged in Huber. The Court held that the act of God must be the sole proximate cause of the damage for the defendant to escape liability. The statutes that refer to acts of God were reviewed. J. Greenwood will reexamine the instruction.
C - 10.50, Alternative Findings (Drainage Case) (Illustration): The alternative findings instructions have been systematically deleted with the change in verdict forms. However, itemizing the elements is helpful. J. Greenwood will incorporate the elements into a revised C - 10.00. It was suggested that the administrative code also be reviewed.
3. Municipal Streets and Sidewalks (A. Boucher): The 1986 streets and sidewalks jury instructions were written when governmental immunity was the law. Now, governmental entities are held to the same standard of care as private persons in most matters, including ice and snow conditions. However, instructions applicable only to governmental entities are useful because much of the litigation involving roadways, streets, and sidewalks involves governmental entities. Separate case law has evolved for ice and snow conditions. The ice and snow condition is further complicated by NDCC 40-42-05 which requires 48 hours notice before a municipality can be found at fault.
C - 16.00, Municipal Roadways, Streets, and Sidewalks: The title was changed to Roadways, Streets, and Sidewalks Duty of State or Political Subdivisions. The instruction has been redrafted to reflect that the law involving roadways, streets, and sidewalks is the same for all governmental entities including the State. "Fault" was substituted for "liability." An ALR reference was removed. A reference to Fast v. State of ND was added. A recreational use exception was discussed but not included. A cite to Clark v. Stroudt for fault of the occupant of abutting property was mentioned in a note.
Motion to approve: T. Purdon
Second: J. Simonson
Boudreau, at 517, was reviewed as discussing the requirement of ordinary care by motor vehicle drivers.
Approved
C - 16.05, Notice to State or Political Subdivision (Roadways, Streets, and Sidewalks): "Municipality" was removed from the title of the instruction. "Claimant" was changed to "Plaintiff". The language of the instruction reflects that the notice rule applies to all political subdivisions and the State. Separate sections were provided for definitions of express notice and constructive notice. A note refers the user to C - 16.10 and C - 16.11 for cases of snow and ice.
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
C - 16.10, Liability of Municipality for Damages Caused by [Snow and Ice] [Frost or Loose Snow] on Sidewalk [Crosswalk]: C - 16.10 relates to municipalities and is specific to NDCC 40-42-05. Makeeff is the most recent municipal case involving ice an snow. It does not cite the statute but the case is noted for a different standard of care, that is, a general reasonableness rule for stairways as compared to an accumulation rule for sidewalks and crosswalks. Haugen is a 1971 case citing the statute and indicating that actual knowledge of the defective, unsafe, or dangerous condition is known at least 48 hours prior to the damage or injury.
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
C - 16.11, Liability for Snow and Ice: This is a proposal for a new instruction defining fault with ice and snow for all political subdivisions and the State (except for municipalities). Makeeff was reviewed. The landowner has a general rule of reasonableness. There is a duty to maintain property in a reasonably safe condition in view of all the circumstances. Would the general premises liability instruction cover this situation with, however, a different rule for abutting property? T. Purdon and A. Boucher will review this instruction.
4. Negligent Infliction of Emotional Distress (L. Boschee and S. Plambeck): C - 20.65, Negligent Infliction for the Safety of Another was approved and published in 2005. C - 20.66, Negligent Infliction of Emotional Distress for Plaintiff's Own Safety was approved in June 2005 and scheduled for publication in 2006. S. Plambeck expressed concern about the lack of any statute or ND Supreme Court decision that explicitly recognizes negligent infliction of emotional distress and extending the negligent infliction of emotional distress for bodily harm caused by fear of injury to another to bodily harm caused by fear of injury to oneself has not been litigated. Reliance on Restatement2d is inappropriate because it is not law in North Dakota. The commission should not anticipate changes in the law to recognize new claims.
L. Boschee reviewed the development of the instructions. Since 1986, there has been an instruction for negligent infliction of emotional distress for the safety of another based upon Whetham v. Bismarck Hospital. In that case, which denied recovery, the Court indicated in dicta that it was not adopting the impact rule and that the plaintiff could have recovered if the negligent act had threatened the plaintiff herself with harm or placed her in the zone of danger. The Whetham case gives as much support for an instruction on negligent infliction of emotional distress for one's own safety as it does for an instruction on negligent infliction emotional distress for the safety of another. The claim for negligent infliction of emotional distress for the safety of another is an extension of the claim of negligent infliction of emotional distress for one's own safety. Three instances from the Restatement were discussed: 1) precautions and repairs on a leaky, noisy pressure gauge are not taken and a worker suffers fright causing physical injury; 2) after being negligently driven, a team of horses stands next to a woman who subsequently miscarries; and 3) a negligently parked truck rolls and hits a child with the nearby parent suffering shock causing physical injury. An older case, Wilson, 153 NW at 430, 439 (exertion from fighting fire) also provides support. Bodily harm is required for recovery in these instances. The Commission will publish the instructions. R. McLean volunteered to prepare a draft based upon the Muchow, pure emotional distress, situation.
5. Homicide (T. Purdon): The nonexistence of self-defense is an element of the crime, and the State has the burden of proving that the defendant did not act in self-defense after a prima facie showing of self-defense. In other criminal instructions, this element has not been enumerated. However, because of the significance of this crime, it will be added to K - 6.01, 6.02, 6.03, 6.15, 6.20, and 6.30. A cite to NDCC 12.1-27.2-03 was added to K - 6.03. No other changes were required.
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
March 3, 2006
MEMBERS PRESENT: B. Beehler, L. Boschee, A. Boucher, J. Hagerty, S. Plambeck, J. Simonson, T. Purdon
MEMBERS ABSENT: J. Anderson, J. Greenwood, J. Haskell, R. McLean, J. Webb
1. False Imprisonment Unlawfulness of Arrest (S. Plambeck): A new instruction, C - 11.30, Instigation of False Imprisonment, was approved in June 2005. An additional instruction defining when a private person may conduct an arrest is proposed. S. Plambeck distributed a jury instruction which has been used at trial summarizing the appropriate situations. A. Boucher will draft a proposal for the pattern instruction.
2. Ingesting a Controlled Substance (J. Simonson): A statute defining a class A misdemeanor charge for ingesting a controlled substance became effective August 1, 2005. This is a crime distinct from possession and a crime itself. For example, if one failed to pass a urine test while on probation, the new crime of ingesting a controlled substance could be charged. A proposed instruction was presented at the October meeting, and there was discussion as to whether the defense of having the substance obtained from a practitioner or obtained pursuant to a valid prescription should be included as an element of the crime. The difficulty of proving the negative, that is, that the person did not have a prescription was discussed. For all practical purposes, if a defendant had a prescription or obtained the substance in a legitimate way, this would be discovered prior to charging the crime. An additional instruction, Legal Consumption of a Controlled Substance, was proposed. This instruction states the defense applicable for possession or ingesting pursuant to a prescription or valid order of a practitioner.
Motion to approve: T. Purdon
Second: A. Boucher
Approved
3. Exemplary Damages (Principal/Agent) and Malice of Corporate Officers (L. Boschee): In 2002, the Malice of Corporate Officers, C - 2.35, was moved to the exemplary damages section from the torts section and renumbered. Both instructions, C - 72.06 and C - 72.17, were reviewed in 2003 and deleted. The substance of Malice of Corporate Officers was contained in Exemplary Damages (Principal/Agent), and the Exemplary Damages (Principal/Agent) is included in the exemplary damages statute and there is a general exemplary damages instruction. A new proposed instruction provides options for specific situations which may be used depending upon the facts of the case. A note was added indicating that "principal" and "agent" may be replaced with "employer" and "employee" or the names of the parties. For additional factors to be considered in awarding exemplary damages, "may" was replaced with "must." The same paragraph is repeated in C - 72.00, Exemplary or Punitive Damages, and the change from "may" to "must" should be consistent. The note from C- 72.00 regarding the bracketed final section will be repeated in the new instruction.
Motion to approve changes to C - 72.00: T. Purdon
Second: A. Boucher
Approved
Motion to approve Exemplary Damages (Principal/Agent): J. Hagerty
Second: J. Simonson
The phrase "acting in the scope of employment" was added to the managerial capacity alternative.
Approved
4. Bailment (S. Plambeck): The bailment instructions, C - 52.00, C - 52.05, and C - 52.08 were previously discussed. They were considered relevant but need rewording for plain language and the cites updated. J. Hagerty will review these.
ADMINISTRATIVE DETAILS
1. June Meeting: The June meeting will be held during the 2006 SBAND annual meeting, June 13th through June 16th, at the Ramada Plaza Suites in Fargo. If possible, PJIC will be scheduled for Friday, June 16th at noon.
2. Assignments for October 5 6, 2006
False Imprisonment Unlawfulness of Arrest, New (A. Boucher)
Waterways, C - 10.00, 10.40, and 10.50 (J. Greenwood)
Liability for Snow and Ice, C - 16.11 (A. Boucher and T. Purdon)
Eminent Domain, C - 75.00 (B. Beehler)
Criminal Closing Instructions, K - 5.00 (J. Haskell)
Bailment, C - 52.00, 52.05. and 52.08 (J. Hagerty)
Presumption of Innocence and Burden of Proof, K - 1.05 (T. Purdon)
Strict Products Liability review, C - 21.00 21.40 (L. Boschee)
Legal Entities, C - 55.12, 55.14, and 55.50; Partnership (duties of corporate
officers and directors) (R. McLean)
1986 Presumptions, C - 80.60, 80.62, 80.64, and 80.66 (A. Boucher)
Other Personal Crimes, 1985-86 K - 8.00 (tba)
1986 Criminal Introductory Instructions - Special Situations, K - 2.00 (J. Simonson)
Negligent Infliction of Emotional Distress (Muchow type), New (R.
McLean)
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-7384
e-mail: lynnak@gra.midco.net