JURY INSTRUCTION DRAFTS - June 2005
If you have questions or comments, please contact please contact Lynn Kerbeshian at firstname.lastname@example.org or call/fax 701-775-7384.
K - 2.30, Included Offense (new cite)
C - 11.30, Instigation of False Imprisonment (new instruction)
C - 20.66, Negligent Infliction of Emotional Distress for the Plaintiff's Own Safety (new instruction)
C - 20.00, Intentional Infliction of Emotional Distress (reviewed with no changes)
C - 20.10, Severe Defined (reviewed with no changes)
C - 20.15, Extreme and Outrageous Defined (reviewed with no changes)
C - 20.20, Effect of Relationship of Parties (reviewed with no changes)
C - 20.30, Susceptibility of Plaintiff (reviewed with no changes)
C - 20.40, Intentional and Reckless Defined (reviewed with no changes)
C - 20.50, Permissible Conduct (reviewed with no changes)
If you find the Defendant not guilty of the crime of _______________, then you must consider whether the Defendant is guilty of the crime of _______________, a crime that is necessarily included in the offense charged.
State v. Keller, 2005 ND 86, 695 NW2d 703
NOTE: Use this instruction if the Defendant is charged with a crime that includes a lesser crime described in other sections of the Code and applicable case law. "Included Offense" means an offense:
1) that is established by proof of the same or less than all the facts required to establish commission of the offense charged;
2) that consists of criminal facilitation of or an attempt of solicitation to commit the offense charged; or
3) that differs from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission.
Before giving this instruction, the Judge must determine that the lesser crime is an included offense under 12.1-01-04 (15). Supplemental instructions as to the essential elements of the lesser crime must be given if applicable. State v. Sheldon, 301 NW2d 604, 609 (ND 1980), cert. denied, 450 US 1002 (1981).
A private citizen is at fault for instigation of a false detention, arrest, or imprisonment if [he] [she]:
1. knowingly supplies false information to a law enforcement officer material to the detention, arrest, or imprisonment occurring;
2. the person was detained, arrested, or imprisoned; and
3. the detention, arrest, or imprisonment was unlawful.
A person is not at fault for false detention, arrest, or imprisonment if [he] [she] merely summoned the police for assistance or to report an offense or provided true information, and leaves the decision to detain, arrest, or imprison to the law enforcement officer's judgment and discretion.
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Wishnatsky v. Berquist, 550 NW2d 394 (ND 1996)
To prove negligent infliction of emotional distress resulting from fear for the Plaintiff's own safety, the Plaintiff must prove the following elements by the greater weight of the evidence:
1. The Defendant negligently created an unreasonable risk of physical injury to the Plaintiff; and
2. The Defendant's negligence caused the Plaintiff to suffer emotional distress that resulted in bodily harm.
"Bodily harm" means physical impairment, physical pain, or long continued or recurring illness. Although matters like long continued headaches, nausea, or emotional disturbance, may qualify as bodily harm, non-recurring matters, harmless in themselves, like dizziness or vomiting, do not.
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Hougum v. Valley Memorial Homes, 1998 ND 23, 574 NW2d 812
Muchow v. Lindblad, 435 NW2d 918 (ND 1989)
Whetham v. Bismarck Hospital, 197 NW2d 768 (ND 1972)
Restatement (2d) of the Law of Torts §§ 15, 313, 436, 436A (1965)
NOTE: For negligent infliction of emotional distress for severe fright or shock not involving unreasonable risk of physical injury, see Restatement (2d) of the Law of Torts § 436(1).