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 - 13.00 Malicious Prosecution (Elements)
C - 13.10 Institution of a Proceeding Defined (Malicious Prosecution)
C - 13.20 Definition of Probable Cause (Malicious Prosecution)
C - 13.40 Alternative Findings (Malicious Prosecution) (Illustration) (deleted)
C - 14.20 Physician's Duty to Disclose (Informed Consent) (note)
C - 75.01 Eminent Domain
C - 75.04 Burden of Proof (Eminent Domain)
C - 85.01 Statements by Counsel and Judge
C - 85-10 Duty to Accept Law From Court
C - 85.15 Fair Treatment Under the Law (reviewed with no changes)
C - 85.20 Deliberations and Conduct of the Jury
C - 85.30 Sealed Verdict
C - 85.50 Forms of Verdict and Submission of Case (General Verdict) (deleted)
C - 85.52 Forms of Verdict and Submission of Case (General Verdict with Interrogatories)
C - 85.54 Forms of Verdict and Submission of Case (Special Verdict)
C - 85.56 Forms of Verdict and Submission of Case (Consolidated Actions) (deleted)
C - 85.58 Forms of Verdict and Submission of Case (Counterclaim) (deleted)
C - 85.60 Forms of Verdict and Submission of Case (Special Verdict - Comparative Negligence) (deleted)
C - 85.62 Forms of Verdict and Submission of Case (Special Verdict - Comparative Fault) (deleted)
To prevail on a claim for malicious prosecution, [Plaintiff] must prove by the greater weight of evidence:
1) Institution of a [criminal] [civil] proceeding by [or at the instance of] [Defendant] against [Plaintiff];
2) Termination of the [criminal] [civil] proceeding in favor of [Plaintiff];
3) Absence of probable cause for the [criminal] [civil] proceeding;
4) Malice; and
5) Damages proximately caused by the institution of the proceedings.
Kummer v. City of Fargo, 516 NW2d 294, 298 (ND 1994)
Richmond v. Haney, 480 NW2d 751, 755 (ND 1992)
Larson v. Baer, 418 NW2d 282, 285-86 (ND 1988)
Schleicher v. W. State Bank, 314 NW2d 293 (ND 1982)
Farmers Elevator Co. v. David, 234 NW2d 26, 33-34 (ND 1975)
NOTE: For a definition of "malice," see NDJI C - 2.30. See also, Richmond, 480 NW2d at 755 (ND 1992) (stating malice is a primary purpose other than that of bringing an offender to justice, and that in some situations may require more than a lack of probable cause).
In order to meet the element of "institution of a proceeding," [Plaintiff] must prove that [Defendant] took an active part in instigating or encouraging the proceedings, such as by advising or assisting the beginning of the proceedings, or took an active part in directing or aiding the conduct of the proceedings. It is not enough that [Defendant] merely states to the authorities what [he] [she] believes to be true and leaves the decision to prosecute entirely to the uncontrolled discretion of [another].
Larson v. Baer, 418 NW2d 282, 287 (ND 1988)
[Defendant] had probable cause to [initiate] [instigate] the [criminal] [civil] proceeding if, upon the facts known or reported, [he] [she] honestly believed there was a reasonable basis to institute the proceeding. It is sufficient if [Defendant] in [initiating] [instigating] the proceeding acted as a reasonable and prudent person would have acted under the circumstances using ordinary care, prudence, and discretion. In relying upon evidence provided by others, it must be of such character, and obtained from such sources that persons of ordinary care, prudence, and discretion would reasonably rely upon it in bringing the proceeding. In making this determination, you must rely only on the facts and circumstances as they existed at the time the proceeding was commenced.
Richmond v. Haney, 480 NW2d 751, 755-56 (ND 1992)
Weisenberger v. Mueller, 89 NW2d 559, 563 (ND 1958)
NOTE: If the evidence shows that Defendant acted upon advice of counsel, use NDJI C - 2.40, Advice of Counsel.
Physician's Duty to Disclose
A physician has a duty to disclose to a patient sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure. This is called informed consent.
In providing informed consent for a medical procedure, a physician should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure.
A physician is required to disclose material risks, not all risks. In determining whether risks are material, a physician is not required to inform a patient of risks that are so remote as to be negligible, even when the consequences may be severe. The physician is not required to inform the patient of a very minor consequence even though the probability is high. And, there is no duty to disclose risks that are common knowledge as inherent in the treatment. A risk is material if a reasonable patient would consider it in deciding on medical treatment.
A duty to disclose can arise only if the physician knew or should have known of the risk to be disclosed.
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Flatt v. Kantak, 2004 ND 173, 687 NW2d 208
Koapke v. Herfendal, 2003 ND 64, 660 NW2d 206 (dentist)
Jaskoviak v. Gruver, 2002 ND 1, 638 NW2d 1
Kershaw v. Reichert, 445 NW2d 16, 17 (ND 1989)
Buzzell v. Libi, 340 NW2d 36 (ND 1983)
Winkjer v. Herr, 277 NW2d 579 (ND 1979)
NOTE: A causation instruction will also need to be given. See Long v. Jaszazak, 2004 ND 194, ¶¶19-20, 688 NW2d 173; Kaopke, 2003 ND 64, ¶14, 660 NW2d at 211-12; Buzzell, 340 NW2d at 41, n. 3. Expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives. Expert testimony is particularly necessary when such information is outside the common knowledge of the general public. See Flatt, 2004 ND 173, ¶7, 687 NW2d at 212 and Winkjer, 277 NW2d at 588.
The [State] has the right to take property for public use. This right is known as eminent domain. However, before private property may be taken or damaged for public use, just compensation must be paid.
ND Const. Art. I § 16
Cass County Joint Water Resource Dist. v. 1.43 Acres of Land Highland Township, 643 NW2d 685 (ND 2002)
Johnson v. Wells County Water Resource Bd., 410 NW2d 525 (ND 1987)
The burden rests upon the owner of the [interest in the] property to prove, by the greater weight of the evidence, any entitlement to [compensation] [and] [damages] and the amount of those damages.
Dutchuk v. Bd. of County Comm'rs, Billings County, 429 NW2d 21 (ND 1988)
Wishek Inv. Co. v. McIntosh County, 45 NW2d 417 (ND 1950)
City of Bismarck v. Casey, 43 NW2d 372 (ND 1950)
Otter Tail Power Co. v. Von Bank, 8 NW2d 599 (ND 1942), 145 ALR 1343
An attorney is an officer of the Court. It is an attorney's duty to [interview witnesses in advance of the trial and] present evidence on behalf of a client, to make proper objections, and to argue fully a client's cause. However, the argument or other remarks of an attorney [,except admissions and stipulations noted in the course of the trial,] must not be considered by you as evidence.
If counsel or I have made any comments or statements concerning the evidence which you find are not supported by the evidence, you should disregard them and rely on your own recollection or observation.
If counsel have made any statements as to the law which are not supported by these instructions, you should disregard those statements.
State v. McClary, 679 NW2d 455 (ND 2004)
Benedict v. St. Luke's Hosp., 365 NW2d 499 (ND 1985)
Holt v. Carl Albers, Inc., 370 NW2d 520 (ND 1985)
In re Estate of Paulson, 219 NW2d 132 (ND 1974)
Fox v. Bellon, 136 NW2d 134 (ND 1965)
Hoffer v. Burd, 49 NW2d 282 (ND 1951)
NOTE: NDJI C - 85.01 is identical to NDJI K - 5.50 except that references to the criminal cases at the end of the note in K - 5.50 are omitted.
While you are the sole judges of fact in this case, it is your duty to accept the law as it is given to you by the Court in these instructions and to apply the law to the facts as you shall find them to have been proved. You have no right to disregard the law and look for any theory unsupported by credible evidence upon which to build a verdict one way or the other, nor to return a verdict based upon your own notions of what the law is or ought to be.
State v. McClary, 679 NW2d 455 (ND 2004)
Spieker v. Westgo, Inc., 479 NW2d 837 (ND 1992)
City of Fargo v. Komulainen, 466 NW2d 610 (ND 1991)
(2006 - reviewed with no changes)
You must be fair and impartial. Everyone is equal under the law. All are entitled to fair treatment. You should not be prejudiced against or biased for a person for such reasons as race, gender, religion, political views, social views, wealth, or poverty. Your decision must not be influenced by sympathy or emotion.
[I appoint _______________ to act as Jury Leader.] [When you go to the jury room, you will select a Jury Leader.]
The Jury Leader will lead your deliberations, communicate with the bailiff(s) for you and speak for you in court. The Jury Leader does not have more authority than other jurors, and the Jury Leader's opinion does not carry more weight that the opinions of other jurors.
In order to return a verdict, each Juror must agree to the verdict. Your verdict must be unanimous.
It is your duty to work with each other in an effort to reach an agreement, if you are able to do so without giving up your individual judgment. Each of you must decide the case for yourself, but you should consider the evidence impartially with the other Jurors. You should not hesitate to change your opinion if you are convinced it was wrong. But, you should not change your opinion about the weight or effect of the evidence just because of the opinion of the other Jurors, or in order to return a verdict.
If it becomes necessary for you to communicate with me during your deliberations, the Jury Leader should send a note to the bailiff(s). All questions to the Judge must be reviewed by the attorneys. This may take a period of time and some questions may not be answered.
After you have agreed on your verdict, the Jury Leader should fill in, date, and sign a formal verdict, using the appropriate form which accompanies these instructions. The Jury Leader should then notify the bailiff(s) that you have reached a verdict. You will be brought to the courtroom for reception of the verdict. You must not disclose your verdict to anyone until it is returned in open court.
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ND Const. Art. 1, § 13
NDCC 28-14-18 - 19
You will be given a plain envelope. After you have arrived at a verdict, the Jury Leader will complete and sign a formal verdict, using the appropriate form accompanying these instructions. Then, the Jury Leader, in your presence, will insert the completed and signed verdict, as well as all other verdict forms furnished, into the envelope and seal it securely. After this has been done, the Jury Leader will notify the bailiffs that you have arrived at a verdict and deliver the sealed envelope to the bailiff, at which time you may separate. The bailiff will safely keep the sealed envelope and all other documents and exhibits submitted by you.
After separating, you will then report to the courtroom on _______________,at .m., at which time the sealed envelope will be opened and the verdict received by the Court. You must not disclose this verdict to anyone, or discuss it or the case with anyone, until it has been received in open court.
NDCC 28-14-18, 28-14-22
NOTE: For sealed verdict in criminal matters, see NDCC 29-22-20 and 29-22-21.
You will receive general verdict forms. [You will return only one form of general verdict.]
[In addition to the general verdict, written Interrogatories will be submitted which you are required to answer with respect to one or more issues of fact upon which your general verdict depends. Accordingly, you must make certain that your answers to the Interrogatories, which must also be unanimous, are harmonious with your general verdict and consistent with each other. You will refrain from answering any question that has become moot by your answer to a previous question.]
You will now take this case, try it fairly and impartially between the Plaintiff and the Defendant, and return such a verdict [with answers to Interrogatories] as is warranted under all of the evidence and these instructions.
Dated at _______________ North Dakota, this ____ day of __________, ____.
BY THE COURT,
NDRCivP 49 (b)
A form of Special Verdict will be submitted in which you will be required to make a special written finding upon each issue of fact. You will note that the questions are to be answered with "Yes" or "No" or other brief answer. The answer to each question must be the unanimous answer of the Jury. The Jury Leader will write the unanimous answer of the Jury in the space provided opposite the question. You will refrain from answering any question that has become moot by your answer to a previous question.
[After hearing closing arguments,] you will [now] take this case, try it fairly and impartially between the Plaintiff and the Defendant, and return such a verdict as is warranted under all of the evidence and these instructions.
Dated at _______________, North Dakota, this ____ day of __________, ____.
BY THE COURT,