JURY INSTRUCTION DRAFTS - October 2008
If you have questions or comments, please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2010 NDJI-CIVIL C - NEW
Even though no evidence has been introduced about it, the Court will take notice of the
fact that ____________________. The Court finds this fact can be accurately and
readily determined by resort to sources whose accuracy cannot be reasonably
questioned. You may therefore treat this fact as proved even though no evidence was
brought out on the point.
* * * * *
NDREv 201
2010 NDJI-CIVIL C - 5.10
Obviously Intoxicated Person Defined
A person is "obviously intoxicated" if that person's intoxication is or should be
reasonably evident to a person of ordinary experience.
It does not matter whether the intoxication results from the consumption of alcohol or
from some other substance.
* * * * *
NDCC 5-01-06.1
Stewart v. Ryan, 520 NW2d 39, 49 (ND 1994)
Meshefski v. Shirnan Corp., 385 NW2d 474, 478 (ND 1986)
2010 NDJI-CIVIL C - 5.20
Sale of Alcoholic Beverages to a Person Under 21 Years of Age
Good Faith Defense
The establishment of the following facts by a person making a sale of alcoholic
beverages to a person under 21 years of age constitutes a defense:
1) The purchaser falsely represented and supported with other documentary
proof that the purchaser was at least 21 years of age; and
2) The appearance of the purchaser was such that an ordinary and prudent
person would believe the purchaser to be at least 21 years of age; and
3) The sale was made in good faith and in reliance on the representation and
appearance of the purchaser in the belief that the purchaser was at least 21 years of
age.
* * * * *
NDCC 5-01-08.2
State v. Smokey's Steakhouse, Inc., 478 NW2d 361, 363 (ND 1991) (holding that NDCC 5-01-8.2 requires
each fact be satisfied in order to qualify for this presumption).
NOTE: A vendor that does not keep a book of the kind required by NDCC 5-01-08.1 is not entitled to this
instruction. Ross v. Scott, 386 NW2d 18, 23 (ND 1986).
NOTE: See NDCC § 5-01-01 for appropriate definitions.
2010 NDJI-CIVIL C - 50.12
Employer Responsible for Fault of Employee
An employer is responsible for the fault of an employee when the employee's act or
omission was done within the scope of employment. [It is undisputed that
________was an employee of ___________ (and that _____________'s conduct was
within the scope of employment).] [An employee is one whom the employer has hired to
do work and over whom the employer has the right to control not only the result of the
work, but also the method and manner of doing it.]
[Conduct is within the scope of employment when it 1) was of the kind the employee
was hired to do; 2) it occurred substantially within the work-related limits of time and
space, and 3.) it was motivated at least in part, by a purpose to serve the employer. (If
an employee intentionally uses force against another, you may find that the use of force
is within the scope of employment if these requirements are met, and the employer
could have reasonably foreseen the use of force.)]
* * * * *
NDCC 3-03-09
Nelson v. Gillette, 571 NW2d 332 (ND 1997)
Zimprich v. Broeckel, 519 NW2d 588 (ND 1994)
Mutual Life Ins. Co. of New York v. State, 298 NW 773 (ND 1941)
Note: This instruction uses the terms "employer" and "employee" because as noted in Mutual Life Ins. Co.
of New York v. State, 298 NW 773, 776 (ND 1941), a principal is generally not responsible for the conduct
of an agent who is not a servant. For example, an independent contractor may in some instances be an
agent, and an employer is generally not responsible for the conduct of an independent contractor. Id. See
Arsand v. City of Franklin, 264 NW2d 579, 587 (Wis. 1978) (reversible error to use instructions that
imposed vicarious liability for conduct of an agent when the instructions did not distinguish between agents
and servant-agents). This instruction uses the popular terms "employer" and "employee" as synonyms for
the legal terms "master" and "servant." See Kneeland v. Kneeland, 117 NW2d 207, 211 (Minn. 1962)
(terms "employer" and "employee" are an outgrowth of and synonymous with terms "master" and
"servant".) Black's Law Dictionary at 1399 (8th ed. 1990) (term "servant" is in most cases synonymous with
"employee").
2010 NDJI-CIVIL C - 50.14
Contracts - Acceptance
DELETED
2010 NDJI-CIVIL C - 55.25
Independent Contractor - Distinction
Although both an employee and an independent contractor work for an employer, there
is an important distinction between them. If the employer has the right to control, not
merely the result, but the manner in which the work is done, as well as the method
used, the person being controlled is an employee.
On the other hand, an independent contractor is one who is allowed to perform without
being subject to the employer's supervision, orders, or control in respect to the details of
the work. An independent contractor has absolute control of the work, as well as when
and how it will be done and who may do it.
[An employer is not responsible for the fault of an independent contractor.]
* * * * *
Kristianson v. Flying J Oil & Gas, Inc., 553 NW2d 186 (ND 1996)
Fettig v. Whitman, 285 NW2d 517, 520 (ND 1979), rev'd on other grounds, 373 NW2d 859, 867 (ND 1985)
Note: This instruction uses the term "employee" rather than "agent" because as noted in Mutual Life Ins.
Co. of New York v. State, 298 NW 773, 776 (ND 1941), an independent contractor may in some instances
be an agent. This instruction uses the popular term "employee" as a synonym for the legal term "servant."
See Kneeland v. Kneeland, 117 NW2d 207, 211 (Minn. 1962) (terms "employer" and "employee" are an
outgrowth of and synonymous with terms "master" and "servant"). Black's Law Dictionary at 1399 (8th ed.
1990) (term "servant" is in most cases synonymous with "employee"). Also, consistent with the
Restatement, the instruction uses the term "employer" to describe the party hiring the independent
contractor. See Restatement (Second) Law of Torts § 409 (1965) ("employer of an independent
contractor is not liable for physical harm caused to another by the act or omission of an independent
contractor or his servants").
There are occasions when an employer may be liable for the acts of an independent contractor or for the
employer's own conduct. See Fettig, 285 NW2d at 520; Kristianson, 553 NW2d at 188; Fleck v. ANG
Gasification Co., 522 NW2d 445, 447 (ND 1994); Madler v. McKenzie County, 467 NW2d 709, 711 (ND
1991); Zimprich v. Broekel, 519 NW2d 588, 592 (ND 1994).
2010 NDJI-CIVIL C - 55.40
Partnership
The association of two or more persons to act as co-owners of a business for profit
forms a partnership, whether or not the persons intend to form a partnership.
[In determining whether a partnership is formed, the following rules apply:]
[1) Joint tenancy, tenancy in common, tenancy by the entireties, joint property,
common property, or part ownership does not by itself establish a partnership, even if
the co-owners share profits made by the use of the property.]
[2) The sharing of gross returns does not by itself establish a partnership, even if
the persons sharing them have a joint or common right or interest in property from
which the returns are derived.]
[3) A person who receives a share of the profits of a business is presumed to be
a partner in the business, unless the profits were received in payment of
a) a debt by installments or otherwise;
b) services as an independent contractor, wages, or other compensation
to an employee;
c) rent;
d) an annuity or other retirement or other retirement benefit to a
beneficiary, representative, or designee of a deceased or retired partner;
e) interest or other charge on a loan, even if the amount of payment
varies with the profits of the business, including a direct or indirect present or future
ownership of the collateral, or rights to income, proceeds, or increase in value derived
from the collateral; or
f) the sale of the goodwill of a business or other property by installments
or otherwise.]
* * * * *
NDCC 45-13-01(19), 45-14-02(1), 45-14-02(3)
2010 NDJI-CIVIL C - 55.45
Liability of a Partner
All partners are responsible for all obligations of the partnership. [A person admitted
into an existing partnership is not, however, responsible for any partnership obligation
incurred before admission.] [All partners are responsible for the wrongful acts or
omissions of a partner acting within the scope of partnership business.]
* * * * *
NDCC 45-15-06
Olson v. Fraase, 421 NW2d 820 (ND 1988)
2010 NDJI-CIVIL C - 55.46
Acts of Partners
A partner's act binds all partners when it appears to the person dealing with the partner
that the act was performed in the ordinary course of [the partnership business] [the kind
of business carried on by the partnership]. This is not true if the partner lacked authority
to act and the person with whom the partner was dealing knew or had received
notification that the partner lacked authority.
[A partner's act that does not appear to have been performed in the ordinary course of
the partnership business, or the kind of business carried on by the partnership, binds
the partnership only if the other partners authorized the act.]
* * * * *
NDCC 45-15-01
2010 NDJI-CIVIL C - 55.50
Purported Partner
The Plaintiff claims that __________ is liable on the transaction as a purported partner
[(of ________ partnership) or (with _______________)]. To find that ____________ is
liable, the Plaintiff must prove the following elements by the greater weight of the
evidence:
1) That ___________ [{purported to be, or consented to being represented as, a
partner (of ________ partnership) or (with _______________)} {was represented
publicly as a partner (of ________ partnership) or (with _______________) even if
__________ was unaware of the representation}]; and
2) That Plaintiff relied upon that representation in entering into the transaction
with [(_______ partnership) or (the purported partnership consisting of ________)].
* * * * *
NDCC § 45-15-08(1)
2010 NDJI-CIVIL C - 55.55
Representation as Partner
The Plaintiff claims that __________ is liable on the transaction because __________
represented or consented to the representation of _____ as a partner [(of ________
partnership) or (with _______________)]. To find that ___________ is liable on the
transaction for consenting to this representation, the Plaintiff must prove the following
elements by the greater weight of the evidence:
1) That ___________ [represented or consented to a representation that
____________ was a partner (of ________ partnership) or (with _______________)];
and
2) That Plaintiff relied upon that representation in entering into the transaction
with [(_______ partnership) or (the purported partnership consisting of ________)].
* * * * *
NDCC 45-15-08
2010 NDJI-CIVIL C - 80.08
Testimony of Property Owner
A property owner may testify as to the value of that property without any qualification
other than the fact of ownership.
You should consider an owner's testimony as to value the same as you would the
testimony of any other witness, and give that testimony the weight and credibility you
think it deserves. If you conclude that an owner's testimony as to value is not supported
by the evidence, you may disregard the owner's valuation of the property.
* * * * *
NDREv 701
Jim's Hot Shot Serv. Inc. v. Continental W. Ins., 353 NW2d 279 (ND 1984)
Harwood State Bank v. Charon, 466 NW2d 601 (ND 1991)
Kipp v. Lipp, 495 NW2d 56 (ND 1993)
NOTE: Compare NDJI C - 80.05, Testimony of Expert, and 10 Nichols, Eminent Domain, State Pattern
Jury Instructions (rev. 3d ed.), App. 300.
2010 NDJI-CIVIL C - 80.52
Matters of Common Knowledge and Science
DELETED
2010 NDJI-CIVIL C - 80.56
Insurance Admonition
Evidence that a party was or was not insured may not be considered by you when
determining whether any party was at fault. [You may consider the evidence of
insurance however to assist you in determining [existence of an agency relationship]
[ownership or control of property] [bias or prejudice of a witness].]
* * * * *
NDREv 411
MN JIG 7
BAJI 139.1
Filloon v. Stenseth, 498 NW2d 353 (ND 1993)
Neibauer v. Well, 319 NW2d 143 (ND 1982)
NOTE: An instruction or admonition may not be sufficient to correct prejudicial error if invited by Plaintiff's
counsel in the course of interrogation. Bischoff v. Koening, 100 NW2d 159 (ND 1959).
2010 NDJI-CRIMINAL K - NEW
Judicial Notice
Even though no evidence has been introduced about it, the Court will take notice of the
fact that ________________________. The Court finds this fact can be accurately and
readily determined by resort to sources whose accuracy cannot be reasonably
questioned. You may therefore treat this fact as proved even though no evidence was
brought out on the point.
As with any fact, however, the final decision whether to accept this fact is for you to
make. You are not required to agree with the Court.
* * * * *
NDREv 201
NDRCrimPro 26, 26.1
2010 NDJI-CRIMINAL K - NEW
Violation of a Disorderly Conduct Restraining Order
If a person knows of a Disorderly Conduct Restraining Order and violates the Order, it is
a crime.
ESSENTIAL ELEMENTS OF OFFENSE
The State satisfies its burden of proof only if the evidence shows beyond a reasonable
doubt the following essential elements of the offense charged:
1) A Disorderly Conduct Restraining Order was issued; and
2) The Defendant knew the Order was issued; and
3) The Defendant violated the Order.
* * * * *
NDCC 12.1-31.2-01
NOTE: Affirmative defense may apply: State v. Holte, 2001 ND 133, 631 NW2d 595; State v. Michlitsch,
438 NW2d 175 (ND 1989).
2010 NDJI-CRIMINAL K - 2.25
Testimony of Accomplice Must Be Corroborated
A Defendant cannot be found guilty based on the testimony of an accomplice unless
that testimony is corroborated by other evidence tending to connect the Defendant with
the commission of the offense. Corroboration is not sufficient if it merely shows the
offense was committed or the circumstances of committing the offense.
You must be satisfied that there is some evidence, either direct or circumstantial, aside
from the testimony of the accomplice, from which you may infer not only that the crime
charged was committed, but that the Defendant was implicated in it. The corroborating
evidence need not extend to every material point of the accomplice's testimony nor be
sufficient in itself to support a conviction.
The sufficiency of the corroborating evidence is for you to determine. If the testimony of
an accomplice is corroborated, you have a right to consider all of that testimony the
same as any other testimony in the case.
* * * * *
NDCC 12.1-03-01; 29-21-14
In re J.K., 2009 ND 46, 763 NW2d 507
State v. Esparza, 1998 ND 13, 575 NW2d 203
State v. Marshall, 531 NW2d 284 (ND 1995)
2010 NDJI-CRIMINAL K - 5.20
Matters of Common Knowledge and Science
DELETED
2010 NDJI-CRIMINAL K - 7.10
Gross Sexual Imposition
(Force or Threat) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another
person to engage in a sexual act] is guilty of Gross Sexual Imposition if that person
compels another person to submit by force or by threat of imminent death, serious
bodily injury, or kidnapping, to be inflicted on any human being.
ESSENTIAL ELEMENTS OF OFFENSE
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,
_____________ willfully [engaged] [caused ___________ to
engage] in a sexual act with _______________;
2) The Defendant did so by willfully compelling to submit by
force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted
on , a human being[.] [; and]
[3) As a result of injuries sustained during the course of the offense,
____________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-03(1)(a)
WP="BR2">
2010 NDJI-CRIMINAL K - 7.12
Gross Sexual Imposition
(Victim Unaware) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another
person to engage in a sexual act] is guilty of Gross Sexual Imposition, if that person
[knows] [has reasonable cause to believe] that the other person is unaware that a
sexual act is being committed.
ESSENTIAL ELEMENTS OF OFFENSE
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,
_______________, willfully [engaged] [caused _______________ to engage] in a
sexual act with _______________; and
2) The Defendant did so [knowing] [having reasonable cause to believe] that
_______________ was unaware that a sexual act was being committed[.] [; and]
[3) In the course of the offense, the Defendant inflicted serious bodily injury on
______________.]
[4) As a result of injuries sustained during the course of the offense,
________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01, 12.1-20-03(1)(c)
State v. Vantreece, 2007 ND 126, 736 NW2d 428
NOTE: Use the bracketed language of paragraph 3 or paragraph 4 if a class AA felony is charged.
2010 NDJI-CRIMINAL K - 7.15
Sexual Imposition
A person who willfully [engages in a sexual act or sexual contact with another person]
[causes another person to engage in a sexual act or sexual contact] [by compelling the
other person to submit by any [threat] [coercion] that would render a person of
reasonable firmness incapable of resisting] [whether consensual or not, as part of an
induction, initiation ceremony, pledge, hazing, or qualification to become a member or
associate of any criminal street gang], is guilty of Sexual Imposition.
ESSENTIAL ELEMENTS OF OFFENSE
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,
_______________, willfully [engaged] [caused _______________ to engage] in a
sexual act or sexual contact with _______________; and
2) In doing so, the Defendant willfully compelled ______________ to submit to a
sexual act by a threat that would render a person of reasonable firmness incapable of
resisting [whether consensual or not, as part of an induction, initiation ceremony,
pledge, hazing, or qualification to become a member or associate of any criminal street
gang].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-04(1-2)
State v. Piper, 261 NW2d 651, 656 (ND 1977)
2010 NDJI-CRIMINAL K - 7.90
Registration Requirement
(Sexual Offenders and Offenders Against Children)
A sexual offender who fails to register, or who changes his or her name, school, or
residence or employment address, and fails to give written notification is guilty of a
criminal offense.
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable
doubt, the following essential elements:
1) The Defendant, _____________, has pled guilty or nolo contendere to or been
found guilty, including juvenile delinquent adjudications of equivalent offenses, of
[felonious sexual offender] [attempted felonious sexual offender] [misdemeanor sexual
offender] [attempted misdemeanor sexual offender] [felony crime against a child] or
[adjudicated delinquent of any crime against another individual and was found to
demonstrate mental abnormality or sexual predatory conduct];
2) The Defendant was required to register; and
3) The Defendant [willfully] [failed to register with the [Chief of Police] [County
Sheriff] within three (3) days of coming into a County in which the Offender resides or is
temporarily domiciled] [changed his or her name, school, or residence or employment
address] and failed to give written notification of the new information to the law
enforcement agency within three (3) days].
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-32-15, 12.1-02-02.]
* * * * *
NDCC 12.1-32-15
NOTE: Under subsection (3), an individual required to register who violates the statute is guilty of a class
A misdemeanor. A court may not relieve an individual, other than a juvenile, who "willfully" violates the
statute from serving a term of at least ninety (90) days in jail and completing probation of one (1) year. An
individual who violates the statute who previously has pled guilty or been found guilty of violating the
statute is guilty of a class C felony. Therefore, the trier of fact in a case where an individual charged with a
class A misdemeanor must make a finding of "willful" conduct in order for the court to impose the
mandatory minimum sentence.
2010 NDJI-CRIMINAL K - 8.01
Aggravated Assault
(Willful Conduct)
A person who willfully causes serious bodily injury to another human being is guilty of
Aggravated Assault.
ESSENTIAL ELEMENTS OF OFFENSE
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[.] [; and]
[3) [_____________ was under the age of twelve years] [____________ suffered
permanent loss or impairment of the function of a bodily member or organ].]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
A "serious bodily injury" is defined as "bodily injury that creates a substantial risk of
death or which causes serious permanent disfigurement, unconsciousness, extreme
pain, permanent loss or impairment of the function of any bodily member or organ, a
bone fracture, or impediment of air flow or blood flow to the brain or lungs." NDCC
12.1-01-04(29).
* * * * *
NDCC 12.1-17-02
State v. Anderson, 480 NW2d 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 NW2d 658. See K - 3.01,
Additional Element of Offense - Nonexistence of Defense. Included in the offense of willfully causing
serious bodily injury is the act of strangulation, or the "impairment of airflow or blood flow to the brain or
lungs." State v. Saulter, 2009 ND 78, 764 NW2d 430.
2010 NDJI-CRIMINAL K - 8.10
Simple Assault
[A person who willfully causes bodily injury to another human being is guilty of Simple
Assault.]
[A person who negligently causes bodily injury to another human being by means fo a
firearm, destructive device, or other weapon, the use of which against a human being is
likely to cause death or serious bodily injury is guilty of Simple Assault.]
[A person who willfully causes bodily injury to a [peace officer] [correctional institution
employee] [a municipal or volunteer fire department member] [an emergency medical
services personnel unit member] [an emergency department worker] [a state hospital
employee] acting in an official capacity, and knew that ____________ was a [peace
officer] [correctional institution employee] [a municipal or volunteer fire department
member] [an emergency medical services personnel unit member] [an emergency
department worker] [a state hospital employee] is guilty of Simple Assault.]
ESSENTIAL ELEMENTS OF OFFENSE
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 bodily injury to ______________; and
2) [The Defendant willfully caused the injury] [The Defendant negligently caused
the injury 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].
[3) The Defendant knew __________ was a [peace officer] [correctional
institution employee] [a municipal or volunteer fire department member] [an emergency
medical services personnel unit member] [an emergency department worker] [a state
hospital employee] acting in an official capacity.]
[4) _______________ was a person engaged in a judicial proceeding.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
* * * * *
NDCC 12.1-17-01
NOTE: Paragraphs 3 and 4 are class C felonies; otherwise simple assault is a class B misdemeanor.
2010 NDJI-CRIMINAL K - 8.74
Felonious Restraint
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.
ESSENTIAL ELEMENTS OF OFFENSE
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].
DEFINITIONS
[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 NW2d 373 (ND 1990)
NOTE: No precise words are necessary to convey a threat. State v. Alvarado, 2008 ND 203, 757 NW2d
570