JURY INSTRUCTION DRAFTS - October 2004
If you have questions or comments, please contact please contact Lynn Kerbeshian at firstname.lastname@example.org or call/fax 701-775-7384.
C - 2.10 Gross Negligence Defined (Good Samaritan Act)
C - 2.11 Gross Negligence Defined (Acts of a Public Official/Police Officer)
C - 10.30 Drainage Along Highways (Maintenance)
C - 10.35 Drainage Along Highways (Construction or Reconstruction)
C - 20.65 Negligent Infliction of Emotional Distress for the Safety of Another
C - 70.65 Exemplary Damages Not Allowable
C - 72.04 Exemplary Damages (Products Liability)
C - 72.05 Exemplary Damages (Impaired Driver)
C - 72.10 Oppression
C - 74.00 Measure of Damages (Contracts in General)
C - 74.40 Quotient Verdict
The following instructions were reviewed with no changes recommended:
K - 3.60 Justification (Care of Minors)
K - 3.62 Justification (Care of Incompetent)
K - 3.64 Justification (Maintaining Order)
K - 3.66 Justification (Force by Physician)
K - 3.68 Justification (Prevention of Injury or Death)
K - 3.70 Justification (Definitions)
K - 3.80 Excuse (Necessary Conduct)
K - 4.01 Mistake of Law
K - 4.05 Duress
K - 4.10 Affirmative Defense (Entrapment)
K - 4.15 Criminal Attempt Aborted
K - 4.20 Renunciation (Solicitation and Conspiracy)
K - 4.30 Affirmative Defense - Burden of Proof
K - 4.40 Defense Negated (Solicitation)
K - 4.45 Defense Negated (Negligence of Decedent)
K - 4.50 Causation
(Good Samaritan Act)
Gross negligence means acts or omissions falling short of intentional misconduct which nevertheless show a failure to exercise even slight care or any conscious interest in the predictable consequences of the acts or omissions.
McDowell v. Gillie, 2001 ND 91, 626 NW2d 666
(Acts of a Public Official/Police Officer)
Gross negligence is a lack of even slight care which is practically willful in nature and displays a reckless temperament.
Wishnatsky v. Berguist, 550 NW2d 394 (ND 1996)
Jones v. Ahlberg, 489 NW2d 576 (ND 1992)
If reasonably necessary in the maintenance of highways, the defendant has the right to drain natural ponds alongside its highways although these waters go upon the land of a lower landowner, provided they are released into a watercourse and do not materially burden it.
Rynestad v. Clemetson, 133 N.W.2d 559 (N.D. 1965)
(Construction or Reconstruction)
When a highway is constructed or reconstructed:
1) the natural flow and drainage of surface waters must be permitted to follow the natural drainage pattern according to the natural terrain of the land;
2) drainage must be provided for any water that might accumulate in ditches along roadways in order to prevent overflowing onto adjoining lands; and
3) the best method of finding the natural outlet for the surface waters must be determined by the township board in accordance with good engineering practices.
The defendants are not liable for any damages caused to any property if the work has been constructed in accordance with the stream crossing standards prepared by the department of transportation and state engineer.
Fandrich v. Wells County Bd. of County Comm'rs, 2000 ND 181, 618 NW2d 166
for the Safety of Another
To prove negligent infliction of emotional distress resulting from fear for the safety of an immediate family member, the plaintiff must prove the following elements by the greater weight of the evidence:
1) The defendant negligently harmed, or endangered the safety of, the family member in the plaintiff's presence;
2) The defendant's negligence also created an unreasonable risk of physical injury to the plaintiff; and
3) The defendant's negligence was a proximate cause of emotional distress that resulted in bodily harm to the plaintiff.
"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.
Muchow v. Lindblad, 435 NW2d 918 (ND 1989)
Whetham v. Bismarck Hospital, 197 NW2d 678 (ND 1972)
Restatement (2d) Torts, What Constitutes Bodily Harm, § 15; Emotional Distress Unintended, § 313; Physical Harm Resulting From Emotional Disturbance, § 436; Negligence Resulting in Emotional Disturbance Alone, § 436A
You may not include in any award of damages to the plaintiff any exemplary damages that you might add to punish the defendant or to make an example of the defendant for the public good or to prevent other wrongdoing. Those damages would be punitive rather than compensatory. The law does not authorize exemplary damages in this action.
Exemplary damages may not be awarded against a manufacturer or seller if the product's manufacture, design, formulation, inspection, testing, packaging, labeling, and warning complied with:
1) federal statutes existing at the time the product was produced;
2) administrative regulations existing at the time the product was produced that were adopted by an agency of the federal government with responsibility for regulating the safety of the product or for establishing safety standards for the product pursuant to a federal statute; or
3) premarket approval or certification by an agency of the federal government.
The limitation in the preceding paragraph does not apply if the plaintiff proves by clear and convincing evidence that the product manufacturer or product seller:
1) knowingly and in violation of applicable agency regulations withheld or misrepresented information which was material and relevant to the harm in question and was required to be submitted to the agency; or
2) made an illegal payment to an official of the federal agency for the purpose of securing approval of the product.
NDCC 32-03.2-11(6) - (7)
You may, at your discretion, award exemplary or punitive damages if you find by clear and convincing evidence that the accident was caused by the defendant who, within the five years immediately preceding the accident, has been convicted for operating a motor vehicle under the influence of intoxicating liquor or any other drugs or substances and convicted of operating or being in physical control of a motor vehicle at the time of the accident:
1) with an alcohol concentration of at least ten one-hundredths of one percent by weight;
2) under the influence of a controlled substance unless a drug that predominantly caused impairment was used only as directed or cautioned by a practitioner who legally prescribed or dispensed the drug to the driver;
3) under the influence of alcohol and refused to take a test required under the implied consent laws; or
4) under the influence of [insert volatile chemical(s) listed in NDCC 19-03.1- 22.1].
* * * * *
See also NDCC 39-08-01; NDCC Ch. 39-20; NDJI K - 21.10, Driving Under the Influence; NDJI 21.12, Under the Influence of Intoxicating Liquor; NDJI C - 72.02, Exemplary Damages - Compensatory Damages Required; and NDJI C - 70.65, Exemplary Damages Not Allowable.
See NDJI C - 72.00 for instructions on determining the amount of exemplary or punitive damages.
Oppression means subjecting a person to cruel and unjust hardship in conscious disregard of that person's rights.
Ingalls v. Paul Revere Life Ins. Co., 1997 ND 43, 561 NW2d 273, 284-85
Harwood State Bank v. Charon, 466 NW 2d 601 (ND 1991)
Napoleon Livestock Auction, Inc. v. Rohrich, 406 NW2d 346, 359 (ND 1987)
(Contracts in General)
The measure of damages for breach of contract is the amount which will compensate for all the damage proximately caused by the breach or which, in the ordinary course of things, would be likely to result from the breach.
Damages must be limited to those damages the parties entering into the contact actually anticipated or which were so probable and natural the damages would reasonably have been anticipated. No damages can be recovered for a breach of contract if the damages are not clearly ascertainable in both their nature and origin.
Damages must be reasonable and may not be more than the amount that would have been gained by the full performance of the contract.
NDCC 32-03-09, 32-03-36
Wachter v. Gratech Co., Ltd., 2000 ND 62, 608 NW2d 279
Leingang v. City of Mandan Weed Bd., 468 NW2d 397, 398 (ND 1991)
Swain v. Harvest States Coop., 469 NW2d 571, 573 (ND 1991)
Vallejo v. Jamestown College, 244 NW2d 753, 759 (ND 1976)
If you [apportion fault or] award damages, you must use a process of discussion, deliberation, reasoning, and collective judgment in which each juror has an opportunity for individual participation. You must not use a method in which the jurors agree in advance to be bound by the average of what each individual juror considers to be the appropriate [apportionment of fault or] award of damages, or use other methods in which you agree in advance to be bound by a certain calculation.
Hamilton v. Oppen, 2002 ND 185, 653 NW2d 678
Seibel v. Symons Corp., 221 NW2d 50 (ND 1974)
Great N. Ry. Co. v. Lenton, 154 NW 275 (ND 1915)