PATTERN JURY INSTRUCTION COMMISSION
October 7, 2005
Bismarck, ND
MEMBERS PRESENT:
J. Anderson
B. Beehler
L. Boschee
A. Boucher
J.
Hagerty
R. McLean
S. Plambeck
J. Simonson
J. Webb
MEMBERS ABSENT:
J. Greenwood
J. Haskell
T. Purdon
GENERAL BUSINESS
Chair B. Beehler called the meeting to order. Computer and clerical assistance was provided by Lynnae Lina, law clerk for the South Central Judicial District.
Election of Vice-Chair: Judges are eligible to serve as vice-chair for 2005-06.
Motion to nominate J. Simonson: R. McLean
Second: S. Plambeck
Approved
Minutes: Minutes of the June 2005 meeting were reviewed.
Motion to approve: L. Boschee
Second: J. Anderson
Approved
Financial Report:
The 2003-05 PJIC budget was $26,474, and the Commission
spent $25,709.68. The 2005-07 budget is $27,314. Through August, a total of $1,957 has been spent. Eight
percent of the biennium has passed during which PJIC spent 7% of its budgeted amount.
Interim Activities
1. Correspondence was sent to Bill Neumann and former law clerk, Zachary Pelham. State Court Administration was thanked for meeting preparation.
2. Minutes were posted.
3. An overview of results representing responses from 29 states to the Texas State Bar Survey were reported.
4. The timeline for having instructions posted on the SBAND website was reviewed.
5. Due to computer changes, members bringing drafts and proposals to the meetings will need to use a CD, USB memory stick, or SD memory card.
6. R. McLean distributed a handout on California's 2003 simplification of jury instructions.
NEW BUSINESS
1. Civil Closing Instructions. B. Beehler presented C - 85.01 through C - 85.70.
C - 85.01, Statement by Counsel and Judge: Six case cites were added.
Motion to approve C - 85.01: J. Hagerty
Second: J. Webb
Approved
C - 85.10, Duty to Accept Law From Court: A 1936 cite was deleted and three more recent cites substituted. The reference to the federal pattern jury instructions was removed.
Motion to delete the Federal Jury Practice & Instructions cite: L. Boschee
Second: J. Anderson
Approved
Motion to approve C - 85.10: J. Hagerty
Second: J. Simonson
Approved
C - 85.15, Fair Treatment Under the Law: No revisions were recommended.
Motion to approve as reviewed with no changes: J. Hagerty
Second: J. Webb
Approved
C - 85.20, Deliberations and Conduct of the Jury: A cite to the North Dakota Constitution was added. Whether the Court may appoint a jury leader was discussed.
Motion to approve C - 85.20: A. Boucher
Second: J. Webb
Approved
C - 85.30, Sealed Verdict: Whether this instruction is needed was discussed, and NDCC 28-14-18 and 28-14-22 were reviewed. This instruction may be superfluous but is correct and could be used. The reference to the Minnesota jury instructions was deleted.
Motion to approve C - 85.30: J. Simonson
Second: J. Hagerty
Approved
C - 85.50, Forms of Verdict and Submission of Cases (General Verdict): A situation in which two forms of the verdict might be used was discussed. It would be rare. Would the instruction be helpful for new lawyers faced with the situation? It was decided that such a case would require specific circumstances, and the verdict form will look like the special verdict which is available as a model.
C - 85.52, Forms of Verdict and Submission of Case (General Verdict With Interrogatories): Whether this instruction is needed was discussed. It contains much of the same information as C - 85.50.
Motion to delete C - 85.52: R. McLean
Second: A. Boucher
ND Civil Procedure Rule 49(b) was reviewed. The first paragraph was simplified. The references to interrogatories were bracketed. "General Verdict" will not be capitalized. The federal jury instruction cite was deleted. The motion to delete C - 85.52 was withdrawn.
Motion to deleted C - 85.50: A. Boucher
Second: J. Simonson
Approved
Motion to approve C - 85.52: A. Boucher
Second: J. Webb
Approved
C - 85.54, Forms of Verdict and Submission of Case (Special Verdict): The words "After hearing closing arguments" were added and bracketed. The federal pattern jury reference was deleted.
Motion to approve C - 85.54: L. Boschee
Second: J. Simonson
Approved
C - 85.56, Forms of Verdict and Submission of Case (Consolidated Actions) and C - 85.58, Forms of Verdict and Submission of Case (Counterclaim): These instructions are covered in C - 85.54. They do not provide actual forms, just indicate that there will be ones
Motion to delete C - 85.56: S. Plambeck
Second: J. Hagerty
Approved
Motion to delete C - 85.58: S. Plambeck
Second: J. Simonson
Approved
C - 85.60, Forms of Verdict and Submission of Case (Special Verdict - Comparative Negligence): An instruction for using the special verdict form following the general verdict may be confusing. NDCC 32-03.2-02 was reviewed. This instruction is similar to C - 85.54.
Motion to delete C - 85.60: J. Hagerty
Second: S. Plambeck
Approved
Motion to approve C - 85.54 with the additional cite to NDCC 32-03.2-02: S. Plambeck
Second: J. Anderson
Approved
C - 85.62, Forms of Verdict and Submission of Case (Special Verdict - Comparative Fault): B. Beehler suggested deleting this outdated instruction.
Motion to deleted C - 85.62: A. Boucher
Second: J. Simonson
Approved
C - 85.70, Deadlocked Jury: A cite to State v. Champagne was added. ND Rule of Court 6.9 was reviewed. A search for cases citing this rule yielded State V. Shafer-Imhoff, 632 NW2d 825 (ND 200l). Both were added to the references. J. Hagerty offered to rewrite C - 85.70 for the civil and criminal instructions.
Motion to table C - 85.70: J. Anderson
Second: L. Boschee
Approved
2. Eminent Domain. The eminent domain instructions were reviewed by B. Beehler.
C - 75.01, Eminent Domain: Cases were added and the constitutional cite corrected.
Motion to approve C - 75.01: J. Hagerty
Second: J. Anderson
S. Plambeck suggested removing the statement that the compensation must be "made to or paid into Court" as it might be confusing for the jury.
Motion to approve C - 75.01 as amended: S. Plambeck
Second: J. Anderson
Approved
C - 75.04, Burden of Proof (Eminent Domain): A cite to Dutchuk v. Bd. of County Comm'rs, Billings County was added. Whether the phrase "by the greater weight of the evidence" was needed was discussed. It remained because this is a burden of proof instruction.
Motion to approve: J. Anderson
Second: R. McLean
Approved
C - 75.05, Just Compensation for Property Taken: The word "actual" was stricken. Consequential damages on property not taken was discussed. City of Devils Lake v. Davis, NDCC 32-15-22, and NDCC 32-15-23 were reviewed. The language in this instruction needs to be clearer. It was suggested that the title be Measure of Damages.
C - 75.06, Special Needs and Values Disregarded: The Devils Lake case was added to the cites. "Fair" was inserted before "market value." Whether the value peculiar to the owner can be considered was discussed.
C - 75.10, Severance Damages: Should this instruction be incorporated into C - 75.05 or stand alone? B. Beehler volunteered to review the eminent domain instructions excluding the two approved, C - 75.01 and C - 75.04.
3. Malicious Prosecution. A. Boucher reviewed the malicious prosecution instructions.
C - 13.00, Malicious Prosecution (Elements): The elements of this tort were enumerated. A note was added clarifying that malice cannot necessarily be inferred from a lack of probable cause since it is an element of the tort. The Commission reviewed NDCC 31-11-03(2), the presumption that an unlawful act was done with unlawful intent. Cites before 1971 were dropped and more recent ones added. Whether the correct term is "instigation" or "institution" of a proceeding was discussed. The malice instruction was read. Malice is discussed in the Kummer v. City of Fargo case.
Motion to approve C - 13.00: J. Simonson
Second: J. Hagerty
Approved
C - 13.10 (New), Institution of a Proceeding Defined (Malicious Prosecution): A. Boucher proposed a new instruction which is a definition of institution of a proceeding because this is a major issue in some cases. Larson v. Baer was cited.
Motion to approve C - 13.10: J. Hagerty
Second: L. Boschee
Approved
C - 13.20, Definition of Probable Cause (Malicious Prosecution): The title was changed from Probable Cause Defense because the instruction is a definition. Richmond v. Haney and Weisenberger v. Mueller replaced the previous cites. A note indicates that the advice of counsel instruction may be applicable.
Motion to approve C - 13.20: J. Hagerty
Second: J. Anderson
Approved
C - 13.40, Alternative Findings (Malicious Prosecution) (Illustration): A. Boucher suggested deleting as all the alternative findings instructions are not used and being deleted.
Motion to delete C - 13.40: J. Anderson
Second: L. Boschee
Approved
4. New, Informed Consent (Causation): A revised medical malpractice informed consent was approved in March 2005. It was suggested that a causation instruction would also have to be given, and A. Boucher researched the issue and prepared a memo on the issue. He reported that the Court's opinions refer both to the "reasonable patient" and "the patient." None of the cases specifically reject Buzzell v. Libi which held that a causal connection exists only when adequate disclosure would have caused the patient ( not stating the reasonable patient), to withhold consent. The Court has clearly adopted the reasonable patient standard regarding the extent of disclosure in Flatt v. Kantak. Long v. Jaszazak could be interpreted as adopting the reasonable patient standard for causation but includes an inconsistent quotation from Koapke v. Herfendal. It seems that a reasonable person standard is adopted yet causation is most often determined by what actually occurred. The standard does not seem to be conclusively decided. The malice instruction was reviewed and a separate malice instruction pertaining to informed consent does not appear necessary. The Commission viewed the Buzzell, Long, and Koapke cases. A. Boucher noted that the ND Supreme Court has adopted the reasonable person standard in deciding what information is provided but the Court has not determined whether causation is objective or subjective. Minnesota uses the objective standard. Because the issue is not decided, an instruction is not recommended. The informed consent instruction, C - 14.20, was examined. Language from Long was added to the note along with cites to Buzzell and Koapke.
Motion to approve additions to the C - 14.20 note: J. Anderson
Second: J. Simonson
Approved
5. K - 22.36 (New), Ingesting a Controlled Substance: J. Simonson proposed a new instruction based upon NDCC 19-03.1-22.3, a statute that became effective August 1, 2005. The definitions of "controlled substances" and "practitioner" were reviewed. Whether the third element, that is, the exception for controlled substances obtained pursuant to a valid prescription, should be included was discussed. Is it an element of the crime or is it a defense? K - 22.35, Possession of a Controlled Substance, does not include an element excusing a possessor with a prescription. J. Simonson proposed reviewing both instructions for the March meeting.
Motion to table K - 22.36 and review K - 22.35: J. Simonson
Second: S. Plambeck
Approved
6. Municipal Streets and Sidewalks. A. Boucher reviewed this set of instructions.
C - 16.00, Municipal Streets and Sidewalks: The law in this area has changed since the abolition of governmental immunity. However, streets are different, especially regarding snow and ice. The duty would be the same to the county or whomever. A. Boucher suggested reworking this instruction to include political subdivisions.
Motion to table C - 16.00: J. Anderson
Second: L. Boschee
Approved
C - 16.05, Notice to Municipality: Streets and sidewalks require an elevated standard of care. Constructive versus express notice was discussed. Perhaps this instruction should be deleted. A. Boucher will review it.
Motion to table C - 16.05: J. Anderson
Second: J. Webb
Approved
C - 16.10, Liability of Municipality for Damages Caused by Snow or Ice on Sidewalk or Crosswalk: Most of the recent cases on this topic are state cases. NDCC 40-42-05 was reviewed. The law is different when the State is the defendant. The term "marshall" was deleted as being outdated. "Limited Liability" and "Nonliability" were changed to "Liability" in the title.
Motion to approve C - 16.10: J. Anderson
Second: J. Hagerty
Approved
ADMINISTRATIVE DETAILS
1. The March meeting is scheduled for Thursday, March 2nd beginning at 1 p.m., and Friday, March 3rd beginning at 9 a.m.
2. Assignments
C - 16.05, Notice to Municipality (A. Boucher)
K - 22.36, Ingesting a Controlled Substance (J. Simonson)
Malice of Corporate Officers, C - 72.17 (L. Boschee, S. Plambeck)
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
e-mail: lynnak@gra.midco.net