JURY INSTRUCTION DRAFTS - October 2000
The following are preliminary drafts discussed at the October Pattern Jury Instruction Commission meeting. They have not been approved for publication. Other instructions that are being revised include Assumption of Risk/Momentary Forgetfulness, Constructive Fraud/Deceit, Constructive Possession, DUI/APC, and Intentional Interference with a Business Advantage. If you have questions, comments, or suggestions about these or any North Dakota pattern jury instructions, please contact Lynn Kerbeshian at NDPJI@yahoo.com.
"Negligence" is the lack of ordinary care and diligence required by the circumstances. Ordinary care or diligence means such care as a person of ordinary prudence usually exercises about one's own affairs of ordinary importance.
Negligence involves a lack of such concern for the probable consequences of an act or failure to act as a person of ordinary prudence would have had in conducting one's own affairs. It is the lack of such care as persons of common sense and ordinary prudence usually exercise under the same or similar circumstances. Negligence is a relative term. Whether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case.
The duty to use care is based upon knowledge of danger. The care that a person must exercise in a particular situation is in proportion to the degree of danger of injury to oneself or to others in the act to be performed. The care necessary to constitute the ordinary care required by a person upon any particular occasion is measured by reference to the circumstances o
f danger known to one at the time or which the person should reasonably have foreseen. The greater the danger, the greater is the care required.
A person is presumed to have performed one's duty and to have exercised ordinary care, unless the contrary is shown by the greater weight of the evidence. The mere fact that a mishap occurred, considered alone, is not in itself evidence of negligence on the part of any of the people involved. You have no right to assume that the mishap was caused by negligence or other wrongful conduct of anyone.
NDCC 1-01-14 - 17
Chicago, M., St. P. & P.R. Co. v. Johnston Fuel Liners, 122 NW2d 140 (ND 1973)
Saetz v. Braun, 116 NW2d 628 (ND 1962)
See also NDJI C - 2.10, Gross Negligence Defined
If suddenly faced with a dangerous situation the person did not create, the person is not held to the same accuracy of judgment as one would be if there were time for deliberation. The person is not at fault if the person acted as an ordinary prudent person would act in a similar emergency.
Kreidt v. Burlington N. R.R., 615 NW2d 153 (ND 2000) (The sudden emergency doctrine is not so much
a doctrine as an illustration of how negligence law is applied in a specific situation. Refusal to give a
sudden emergency instruction was not by itself enough to constitute error).
Harfield v. Tate, 1999 ND 166, 598 NW2d 840
Ebach v. Ralston, 510 NW2d 604, 610 (ND 1994)
If two (2) vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left must yield the right-of-way to the vehicle on the right, except in certain situations not pertinent to this case.
Vehicles enter an intersection at approximately the same time if there is imminent danger of collision, unless one or both alters its course or speed.
The phrase "at approximately the same time" does not mean "at precisely the same instant."
If the vehicle approaching the intersection on the right from a different highway is so near to the intersection as to constitute an apparent or immediate hazard, the driver of the vehicle on the left must wait until the other vehicle has passed. The driver of the vehicle on the left may enter the intersection only if a person of ordinary prudence would have had reasonable grounds to believe that the other vehicle was so distant from the intersection and proceeding at such a speed that one could safely proceed in advance of the other vehicle.
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See also Ross v. Scott, 386 NW2d 18 (ND 1986)
NOTE: "Through highways" (NDCC 39-07-03) and "freeways" (NDCC 39-10-22.1) are within the exception referred to in the first paragraph of this exception. NDCC 39-10-22.1, 39-10-24. If the case involves a through highway, use NDJI C - 3.32, Highway Protected by "STOP" Sign. See also NDJI C - 3.30, Highway Protected by "Yield" Sign.
A person who intentionally or knowingly causes the death of another human being is guilty of murder.
The State's burden of proof is satisfied if the evidence shows beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant , caused the death of , a human being; and
2) The Defendant intentionally or knowingly caused the death of .
3) The nonexistence of any defense on which you are instructed at the close of the evidence.
[Insert relevant definitions. NDCC 12.1-02-02.]
State v. Olander, 1998 ND 50, 575 NW2d 658
State v. McIntyre, 488 NW2d 612 (ND 1992)
State v. Ronne, 458 NW2d 294 (1990)
State v. Skjonsby, 319 NW 2d 764, 772-73 (ND 1982)
See also NDCC Ch. 12.1-05 (defenses and accompanying jury instructions)
NOTE: (Being reviewed.)
Possession may be actual or constructive and may be proven by direct or circumstantial evidence.
A person who willfully has direct physical control over an object is in actual possession of it.
A person who willfully has the ability and power to exercise dominion and control over an object is in constructive possession of it.
[Two or more persons may simultaneously possess the same object.]
State v. McKinney, 518 NW2d 696, 700 (ND 1994)
In Interest of K.S., 500 NW2d 603, 606 (ND 1993)
State v. Connery, 441 NW2d 651, 655 (ND 1989)