JURY INSTRUCTION DRAFTS - October 2006
If you have questions or comments, please contact please contact Lynn Kerbeshian at pjic@gra.midco.net or call/fax 701-775-7384.
CIVIL
C - 21.00 Strict Product Liability
C - 21.01 Defective and Unreasonably Dangerous Defined (new)
C - 21.02 Product Bearing an Adequate Warning Not Defective (new)
C - 21.03 Product Liability Negligence (new)
C - 21.05 Warning (includes former C - 21.20)
C - 21.06 Knowledge and Obviousness of Danger (new)
C - 21.10 Warning (Strict Liability) (deleted, see C - 21.00)
C - 21.20 Failure to Warn, Negligence and Strict Liability Distinguished (deleted, see C -
21.05)
C - 21.30 Alteration or Modification
C - 21.40 Misuse
C - 21.42 Extended Use (new)
C - 21.43 Reasonably Safe Product (new)
C - 52.00 Bailment for Mutual Benefit
C - 52.05 Implied Warranty of Bailor
C - 52.08 Warranty of Bailor Limited
CRIMINAL
K - 1.05 Presumption of Innocence and Burden of Proof
K - 8.01 Aggravated Assault (Willful Conduct)
K - 8.02 Aggravated Assault (Use of Dangerous Weapon)
K - 8.03 Aggravated Assault (Bodily Injury While Attempting Serious Bodily Injury)
K - 8.12 Simple Assault (Negligent Conduct)
K - 8.25 Contact by Bodily Fluids or Excrement (new)
K - 8.40 Criminal Coercion
K - 8.45 Affirmative Defense (reviewed with no changes)
K - 8.50
Harassment (Threat to Inflict Injury)
K - 8.70 Kidnapping
K - 8.72 Kidnapping (Pre-Trial Release) (deleted, see K - 8.70)
K - 8.74 Felonious Restraint
K - 8.80 Unlawful Imprisonment
2007 (Draft)
To find a [manufacturer] [seller] at fault for strict product liability for defect in the [design of][manufacture of] [adequacy or lack of warnings about] the product, the Plaintiff must prove these elements by the greater weight of the evidence:
1) The [manufacturer] [seller] was in the business of selling the type of product;
2) The product was defective because of [its design] [its manufacture] [inadequate or lack of warnings] when the [manufacturer] [seller] sold it, regardless of how careful the [manufacturer] [seller] was;
3) The defective condition made the product unreasonably dangerous to the Plaintiff when put to a use for which it was intended or could have been reasonably anticipated;
4) The product was expected to and did reach the [Plaintiff] [user] without substantial change in the condition in which it was sold; and
5) The defect [in the design] [in the manufacture] [from inadequate or lack of warnings] was a proximate cause of the [Plaintiff's injuries] [damage to Plaintiff's property].
[In considering the element of proximate cause on the strict product liability warning claim you may presume that an adequate warning would have been read and followed, unless you find by the greater weight of the evidence that it would not have been.]
* * * * *
Elements of Strict Product Liability
Morrison v. Grand Forks Housing Auth., 436 N.W.2d 211 (ND 1989)
Downtowner, Inc. v. Acrometal Prods., Inc., 347 N.W.2d 118 (ND 1984)
Kaufman v. Meditec, Inc., 353 N.W.2d 297 (ND 1984)
Day v. General Motors Corp., 345 N.W.2d 349 (ND 1984)
Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338 (ND 1984)
Olson v. Chesterton Co., 179 N.W.2d 530 (ND 1977)
Johnson v. Am. Motors Corp., 225 N.W.2d 57 (ND 1974)
Rebuttable Heeding Presumption
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 509 (ND 1994)
Jacobs v. Anderson Building Co., 459 N.W.2d 384 (ND 1990)
Butz v. Werner, 438 N.W.2d 509 (ND 1989)
2007 (Draft)
A product is "defective" if it had a defect or defective condition when it was sold that made it unreasonably dangerous. A product is "unreasonably dangerous" if it is dangerous to an extent beyond that which would be contemplated by the ordinary and prudent buyer, consumer, or user in that community, considering the product's characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training or experience possessed by the buyer, user, or consumer.
* * * * *
NDCC 28-01.3-01(4), 28-01.3-06
2007 (Draft)
For purposes of strict product liability, a product bearing an adequate warning, which is safe for use if it is followed, is not defective or unreasonably dangerous. A manufacturer may reasonably assume that when an adequate warning is given, it will be read and followed.
* * * * *
Jacobs v. Anderson Building Co., 459 N.W.2d 384 (ND 1990)
Butz v. Werner, 438 N.W.2d 509 (ND 1989)
2007 (Draft)
To find a manufacturer at fault for negligent [design of] [manufacture of] [failure to adequately warn about] the product, the Plaintiff must prove these elements by the greater weight of the evidence:
1) The manufacturer failed to use ordinary care and diligence in [(designing) (manufacturing) the product for the purposes for which it was intended or could reasonably be anticipated][giving adequate warnings about dangers inherent in the intended or reasonably anticipated use of the product];
2) The manufacturer's failure to use ordinary care and diligence in the [design of] [manufacture of] [giving of adequate warnings about] the product resulted in a defective condition in the product when it was sold; and
3) The defective condition was a proximate cause of the Plaintiff's injuries [damage to Plaintiff's property].
* * * * *
Speiker v. Westgo, Inc., 479 N.W.2d 836 (ND 1992)
Oanes v. Westgo, Inc., 476 N.W.2d 248 (ND 1991)
2007 (Draft)
A manufacturer has a duty to give a reasonable warning of dangers inherent in the intended and reasonably anticipated uses of its product. When a warning is required to make a product not defective, an adequate warning is one that would cause a person of ordinary prudence to exercise caution appropriate to the degree of potential danger.
[Under a claim for negligent failure to adequately warn, the issue is whether the (manufacturer) (seller) exercised ordinary care and diligence in providing or not providing warnings so as to make the product not defective. In a strict product liability claim regarding the adequacy of warnings, the issue is whether the product is defective and unreasonably dangerous regardless of whether the (manufacturer) (seller) exercised ordinary care and diligence.]
* * * * *
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 509 (ND 1994)
Speiker v. Westgo, Inc., 479 N.W.2d 836 (ND 1992)
Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338 (ND 1984)
NOTE: This instruction incorporates C - 21.20, Failure to Warn, Negligence and Strict Liability Distinguished.
2007 (Draft)
In considering whether a product is defective because of inadequate or lack of warnings, you may consider whether the danger the Plaintiff claims should have been warned about was known, readily discoverable, or obvious to the [Plaintiff] [user].
* * * * *
Speiker v. Westgo, Inc., 479 N.W.2d 836 (ND 1992)
2007 (Draft)
Warning
(Strict Liability)
DELETED
See C - 21.00, Strict Product Liability.
2007 (Draft)
DELETED
2007 (Draft)
A [manufacturer] [seller] of a product is not at fault when an unforeseeable alteration or modification was a substantial contributing cause of the [Plaintiff's injuries] [damage to Plaintiff's property]. The alteration or modification must have changed the purpose, use, function, design, or intended use or manner of use of the product from that for which it was originally designed, tested, or intended. If you find that an unforeseeable alteration or modification of this nature substantially contributed to cause the [Plaintiff's injuries] [damage to Plaintiff's property], then you must find the [manufacturer] [seller] is not at fault.
* * * * *
NDCC 28-01.3-03
Oanes v. Westgo, Inc., 476 N.W.2d 248 (ND 1991)
Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439 (ND 1991)
2007 (Draft)
Misuse of a product is the use of the product in a manner that the [manufacturer] [seller] could not have reasonably anticipated, or provided against. If you find that the [Plaintiff] [user] misused the product in a manner that the [manufacturer] [seller] could not have reasonably anticipated or provided against, and that this misuse was a proximate cause of the [Plaintiff's injuries] [damage to Plaintiff's property], the misuse constitutes fault on the part of the [Plaintiff] [user].
* * * * *
Kaufman v. Meditec, Inc., 353 N.W.2d 297 (ND 1984)
Day v. Gen. Motors Corp., 345 N.W.2d 349 (ND 1984)
Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338 (ND 1984)
NOTE: Since NDCC 32-03.2-02 was revised in 1993, the pure comparative fault concept in Day and Mauch are no longer applicable.
2007 (Draft)
For a [manufacturer] [seller] to be at fault, the alleged defect in the product must have existed at the time the [manufacturer] [seller] sold it. Normal use of a product for an extended period of time without a problem raises an inference that the product was not defective at the time of sale.
* * * * *
Speiker v. Westgo, Inc., 479 N.W.2d 836 (ND 1992)
2007 (Draft)
Manufacturers and sellers are required to sell a product that is reasonably safe. They are not required to use a design, warning or instruction, or method of manufacture that would make the product safer, so long as the product as sold is reasonably safe for its intended and reasonably anticipated use.
* * * * *
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 509 (ND 1994)
Speiker v. Westgo, Inc., 479 N.W.2d 836 (ND 1992)
2007 (Draft)
A contract where one party (the bailor) agrees to give another (the bailee), [through a series of bailments,] the temporary possession and use of certain personal property in return for compensation and which the bailee agrees to return to the bailor at a future time is a bailment for mutual benefit of the bailor and bailee or a bailment for hire.
* * * **
SPW Associates, LLP v. Anderson, 718 N.W.2d 580, 584, 2006 ND 159, ¶ 16
Lee v. Johnson, 154 N.W.2d 382, 384 (ND 1967)
Gunderson v. Johnson, 132 N.W.2d 700, 703 (ND 1965)
Motion Pictures for Television, Inc. v. North Dakota Broadcasting Co., 87 N.W.2d 731 (ND 1958)
NOTE: For general law concerning the relationship of bailor and bailee (depositor and depositary), see NDCC. Ch. 60-01.
2007 (Draft)
In a bailment for mutual benefit or for hire, there is an implied warranty or obligation that the property will be reasonably fit for the purpose for which the bailor knows the bailee intends to use the property. This means the property must possess the qualities usually belonging to the things of that kind when used for the same purpose.
Because this warranty or obligation is implied by law, it exists even if it is not part of the written agreement between the parties [,and even if the written agreement contains a provision that it is the entire contract between the parties]. Only if the implied warranty is inconsistent with any express warranty contained in the written agreement, or if it is precluded by other language in the agreement, will the implied warranty not take effect.
* * * * *
Motion Pictures for Television, Inc. v. North Dakota Broadcasting Co., 87 N.W.2d 731 (ND 1958)
2007 (Draft)
Warranty of Bailor Limited
The implied warranty imposed on the bailor is limited when the contract allows the bailee to inspect the property before using it. In these circumstances, there is no right to recover for breach of obligation or warranty of reasonable fitness if the bailee fails to properly inspect the goods for fitness for their purpose or if the bailee fails to give notice of any defects found to the bailor and to provide the bailor an opportunity to replace the defective property. The bailee cannot neglect to properly exercise the right to inspect the property or continue to use the property once a defect is found and then, after the bailment is over, claim damages for breach of the warranty without having given the bailor the opportunity to make good on the warranty.
* * * * *
Motion Pictures for Television, Inc. v. North Dakota Broadcasting Co., 87 N.W.2d 731 (ND 1958)
2007 (Draft)
The Defendant pleaded not guilty. Before the Defendant can be convicted, the State must prove all the essential elements of the offense beyond a reasonable doubt.
The fact that the Defendant has been charged with a criminal offense is not evidence and must not be considered by you as evidence. The [Information] [Complaint] merely states the charge in legal form and outlines the issues to be determined by you from the evidence under these instructions.
The Defendant is presumed to be innocent unless the contrary, the Defendant's guilt, is proved beyond a reasonable doubt. If the State has not proved the Defendant's guilt beyond a reasonable doubt, you must find the Defendant not guilty.
2007 (Draft)
A person who willfully causes serious bodily injury to another human being is guilty of Aggravated Assault.
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 serious bodily injury to _______________, another human being, as follows: _______________; and
2) The Defendant willfully engaged in the conduct causing the injury.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-17-02
State v. Anderson, 480 N.W.2d 727 (ND 1992)
NOTE: If the evidence warrants an instruction on self-defense, the accused is entitled to an instruction to the jury that the State must prove beyond a reasonable doubt that the accused did not act in self-defense as an additional element of the offense. State v. Olander, 1998 ND 50, 575 N.W.2d 658. See K - 3.01, Additional Element of Offense - Nonexistence of Defense.
2007 (Draft)
A person who knowingly causes [substantial] bodily injury to another human being, by means of a dangerous weapon or other weapon, the possession of which under the circumstances indicates an intent or readiness to inflict serious bodily injury, is guilty of Aggravated Assault.
The State's burden of proof is satisfied only 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, _______________, knowingly caused [substantial] bodily injury to _______________, another human being, by means of a dangerous weapon or other weapon; and
2) The Defendant's possession of the weapon under the circumstances indicated an intent or readiness to inflict serious bodily injury.
[Insert relevant definitions. NDCC 12.1-1-04, 12.1-02-02.]
NDCC 12.1-17-02(2)
State v. Mathre, 1999 ND 224, 603 N.W.2d 173
NOTE: If the evidence warrants an instruction on self-defense, the accused is entitled to an instruction to the jury that the State must prove beyond a reasonable doubt that the accused did not act in self-defense as an additional element of the offense. State v. Olander, 1998 ND 50, 575 N.W.2d 658. See K - 3.01, Additional Element of Offense - Nonexistence of Defense.
2007 (Draft)
A person who causes [substantial] bodily injury to another human being while willfully attempting to inflict serious bodily injury on any human being is guilty of Aggravated Assault.
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 [substantial] bodily injury to _______________, another human being; and
2) The [substantial] bodily injury was caused by the Defendant while willfully attempting to inflict serious bodily injury on any human being.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-17-02(3)
NOTE: If the evidence warrants an instruction on self-defense, the accused is entitled to an instruction to the jury that the State must prove beyond a reasonable doubt that the accused did not act in self-defense as an additional element of the offense. State v. Olander, 1998 ND 50, 575 N.W.2d 658. See K - 3.01, Additional Element of Offense - Nonexistence of Defense.
2007 (Draft)
[If you find the Defendant not guilty of the crime of Aggravated Assault, then you must consider whether the Defendant is guilty of the crime of Simple Assault, an offense that is necessarily included in the offense charged.]
[A person who negligently causes bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which is likely to cause death or serious bodily injury is guilty of Simple Assault.]
[A person who negligently causes bodily injury to a [peace officer] [correctional institution employee] by means of a firearm, destructive device, or other weapon, the use of which is likely to cause death or serious bodily harm, while knowing that the victim was a [peace officer] [correctional institution employee] acting in his/her official capacity is guilty of Simple Assault.]
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 [substantial] bodily injury to _______________, another human being; and
2) The injury was caused negligently by the Defendant by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury[.] [; and]
[3) The Defendant knew the victim was a [peace officer] [correctional institution employee] acting in official capacity.]
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-17-01(b)
NOTE: An offense of "Assault" implies "substantial" bodily injury, whereas "Simple Assault" does not. Omit the first bracketed paragraph if the Defendant is not charged with Aggravated Assault. If the victim was a peace officer or a correctional institution employee, the third bracketed paragraph should be used in lieu of the second bracketed paragraph.
2007 (Draft)
A person who [knowingly] [recklessly] causes blood, emesis, excrement, mucus, saliva, semen, vaginal fluid, or urine to come in contact with:
[a law enforcement officer acting in the scope of employment] [an employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment] [any person lawfully present in a correctional facility who is not an inmate] [any person lawfully present in the penitentiary or an affiliated facility of the penitentiary who is not an inmate] [any person who is transporting an individual who is lawfully detained] is guilty of Contact by Bodily Fluids or Excrement.
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 [blood] [emesis] [excrement] [mucus] [saliva] [semen] [vaginal fluid] [urine] to come in contact with _______________.
2) _______________ was a [law enforcement officer acting in the scope of employment] [employee of a correctional facility or the department of corrections and rehabilitation acting in the scope of employment] [person lawfully present in the penitentiary or an affiliated facility of the penitentiary who is not an inmate] [person transporting an individual who was lawfully detained]; and
3) The Defendant [knowingly] [recklessly] caused the contact.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC. 12.1-17-11
State v. Weaver, 2002 ND 4, 638 N.W.2d 30
NOTE: If the contact was knowingly made it is a class C Felony; if the contact was recklessly made it is a class A Misdemeanor.
2007 (Draft)
A person who, with intent to compel another to engage in or refrain from conduct, threatens to [commit any crime] [accuse anyone of a crime] [exposes a secret or publicize an asserted fact, whether true or false, tending to subject any person, living or deceased, to hatred, contempt, or ridicule, or to impair another's credit or business repute] [take or withhold official action as a public servant] [cause a public servant to take or withhold official action] is guilty of Criminal Coercion.
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, ___________,threatened to [commit the crime of _______________] [accuse _______________ of the crime of _______________] [expose a secret or to publicize an asserted fact, whether true or false, tending to subject _______________ to hatred, contempt, or ridicule, or to impair _______________'s credit or business repute] [take or withhold certain official action as a public servant] [cause a public servant to take or withhold certain official action, namely _______________]; and
2) The Defendant did so with intent to compel _______________ to engage in or refrain from certain conduct, namely _______________.
[Insert relevant definitions. NDCC 12.1-01-04 and 12.1-02-02.]
NDCC 12.1-17-06(1)
NOTE: Use NDJI K - 8.45, Affirmative Defense (Criminal Coercion), if an affirmative defense is asserted.
1985
(2007 - reviewed with no changes)
It is an affirmative defense to a prosecution for Criminal Coercion that the Defendant believed, whether or not mistakenly, that:
1) the primary purpose of the threat was to cause behavior that promotes the best interest of the threatened person; or
2) a purpose of the threat was to cause the threatened person to [desist from misbehavior] [engage in behavior mandated by law] [make good a wrong] [or] [refrain from taking any unqualified action or responsibility].
NDCC 12.1-27-06(2)
NOTE: An affirmative defense must be proved by the Defendant by a preponderance of the evidence. NDCC 12.1-01-03(3). Use NDJI K - 4.30, Affirmative Defense - Burden of Proof, if this defense is asserted.
2007 (Draft)
A person who, with the intent to frighten or harass another, communicates in writing or by telephone a threat to inflict injury on any person, to any person's reputation, or to any property, is guilty of the crime of Harassment.
[When the communication is made by telephone, the offense may be deemed to have been committed at either the place at which the telephone call was made or at the place where the telephone call was received.]
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, _______________, communicated [in writing] [by telephone] a threat to inflict injury [on the person of _______________] [to the reputation of _______________] [to certain property]; and
2) The Defendant did so with the intent to frighten or harass .
[Insert relevant definitions. NDCC 12.1-02-02.]
NDCC 12.1-17-07 (1)(a), 12.1-17-07(3)
NOTE: Specify in the "Essential Elements of Offense" the particular offensive conduct.
2007 (Draft)
A person who abducts another or, having abducted another, continues to restrain the other person with intent to [hold the victim for ransom or reward] [use the victim as a shield or hostage] [hold the victim in a condition of involuntary servitude] [terrorize the victim or a third person] [commit a felony or attempt to commit a felony] [interfere with the performance of any governmental or political function] is guilty of Kidnapping.
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, _______________, [abducted] [having abducted, continued to restrain] _______________; and
2) The Defendant did so intending to [hold _______________ for ransom or reward] [use _______________ as a shield or hostage] [hold _______________ in a condition of involuntary servitude] [terrorize _______________ or a third person] [commit a felony or attempt to commit a felony] [interfere with the performance of any governmental or political function].
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-18-04.]
NDCC 12.1-18-01
NOTE: Kidnapping is a class A felony unless the actor voluntarily releases the victim alive and in a safe place prior to trial, in which case it is a class B felony.
2007 (Draft)
DELETED
See K - 8.70, Kidnapping note.
2007 (Draft)
A person who [knowingly abducts another person] [knowingly restrains another person under terrorizing circumstances or under circumstances exposing the person to risk of serious bodily injury] [willfully restrains another with intent to hold the person in a condition of involuntary servitude] is guilty of Felonious Restraint.
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, _______________;
2) [Knowingly abducted _______________, another human being] [Knowingly restrained _______________, another human being, under terrorizing circumstances or under circumstances exposing _______________ to risk of serious bodily injury] [Willfully restrained _______________, another human being, with the intent to hold _______________ in a condition of involuntary servitude].
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-18-04.]
"Terrorizing circumstances" are circumstances involving threats of violence or acts dangerous to human life made with an intent to induce fear.
NDCC 12.1-18-02
State v. Plentychief, 464 N.W.2d 373 (ND 1990)
2007 (Draft)
A person who knowingly subjects another person to unlawful restraint is guilty of Unlawful Imprisonment.
[It is a defense to a prosecution for Unlawful Imprisonment that the Defendant is a parent or a person in an equivalent relation to the person restrained and that the person restrained is a minor.]
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, _______________, knowingly subjected _______________, another human being, to unlawful restraint by [restricting the movement of _______________ unlawfully and without consent, so as to interfere substantially with _______________'s liberty by removing _______________ from _______________'s place of [residence] [business]] [moving _______________ substantial distance from one place to another] [by confining _______________ for a substantial period of time] [.][; and]
[2) The Defendant, at the time of the action, was not a parent or a person in an equivalent relation to _______________, or that _______________ was not a minor.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-18-04.]
"Equivalent relation" means "parent equivalent" and may be a foster parent or relative acting in loco parentis to the minor at the time of the alleged unlawful restraint.
NDCC 12.1-18-03
State v. Schlotman, 1998 ND 39, 575 N.W.2d 208
NOTE: The nonexistence of a defense is an element of the offense if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.