PATTERN JURY INSTRUCTION COMMISSION
JUNE 1999 MEETING
The Pattern Jury Instruction Commission met June 11, 1999, at the Radisson Hotel in Bismarck during the SBAND annual meeting. B. Blazer was acting chair.
MEMBERS PRESENT: B. Blazer, J. Hagerty, S. Lian, T. Slorby
MEMBERS ABSENT: K. Brust, J. McClintock, J. McLees, S. Plambeck, J. Rustad, J. Simonson, D. Vogel, J. Vukelic
1. The following members have terms expiring in 1999: Judges Vukelic, McLees, and Simonson; Attorneys Blazer and Slorby (for Stenehjem). Attorneys may serve two consecutive terms; judges may serve three consecutive terms. S. Tabor has been asked to check on eligibility for reappointment.
2. Approval of March Minutes
Motion to approve: T. Slorby
Second: S. Lian
3. Financial Report
PJIC spent $17,163 through April 30, 1999, with a balance of $5,837.
4. Interim Activities
a. Minutes and handouts were sent to those not attending the March meeting.
b. The minutes and agenda were posted on the Supreme Court website.
c. Professor Ahlen will report on testing jury instructions with UND mock juries for the October meeting.
d. SBAND indicates that publication of the reformatted jury instructions will be in September. The consensus was that larger as opposed to smaller type is preferable. Numbering the criminal section was discussed. T. Slorby noted that it is helpful if types of instructions are grouped by the same number. J. Hagerty commented that the clerks of court use "C" to indicate a civil case and "K" to indicate criminal cases. It is possible to have instruction numbers conform to this. Whether older case sites, e.g., early 1900's or before should be eliminated was discussed. S. Lian said that is often helpful to have the older cites so that the history of the law can be traced. It was decided that the cites would remain.
e. D. Vogel had indicated that Minnesota was presenting a CLE on their jury instructions. The staff attorney wrote for information about current revisions.
5. Review of Instructions
a. Civil: Actual Fraud; Assault; Battery; Constructive Fraud; Instruction References; Note Taking by Jurors; Responsibility for Joint Conduct (Deleted); Sympathy, Prejudice, Emotion; Severe Emotional Distress; and Unintentional Misrepresentation - Contract.
Motion to approve: S. Lian
Second: T. Slorby
b. Criminal: Causation; Chemical Test; Chemical Test - Less Than .10; Driving Under Suspension or Revocation; Fleeing or Attempting to Elude a Police Officer; Gross Sexual Imposition; Sexual Assault (Impaired Power to Resist), (Offensive Contact), (Mental Disease or Defect), (Persons in Custody or Institutionalized), (Minor Victim 15 Years of Age or Older); Sympathy, Prejudice, Emotion; Terrorizing (False Information); and Terrorizing.
Motion to Approve: S. Lian
Second: T. Slorby
c. Contracts: Following a request for information on why PJI 826 (Actual Fraud), 827 (Unintentional Misrepresentation - Contract), and 828 (Constructive Fraud) had been deleted, a review of previous minutes indicated that these numbers had been inadvertently deleted when the contract section was revised in 1995. The three instructions track the Century Code. The Commission decided to republish the three instructions and B. Blazer will review them for the October meeting.
Motion to publish 826, 827, and 828: S. Lian
Second: T. Slorby
d. The staff attorney suggested adding Hougum v. Valley Memorial Homes, 1998 ND 24; 812 to the Invasion of Privacy references. The case analyzes an invasion of privacy tort using the Restatement model.
Motion to add Hougum: T. Slorby
Second: J. Hagerty
e. Fault: Since this sections is being revised, the old instructions will have a note indicating that the user should check the NDCC until the revisions are completed. S. Lian briefly discussed PJI 1225, Elements of Damages (Personal Injury). A draft was distributed.
f. B. Blazer distributed sample instructions for insurance-bad faith. She will continue with this presentation in October.
6. Future Meetings
a. Preparation for Meetings: B. Blazer noted that the commission has become less efficient over the last year or two. The importance of having drafts prepared before the meeting was emphasized. Drafts should be on disk so that time isn't spent retyping or copying for the presentations. At least two weeks prior to the meeting references or other preparatory materials should be sent to the staff attorney for dissemination.
b. Assignments for October
1. Fault (S. Plambeck, D. Vogel, K. Brust, S. Lian)(Definition of Fault, Accident- Causing "Fault" and Injury-Causing "Fault," Foreseeability, No Inference of Fault from an Incident or Injury, Burden of Proof)
2. Verdict Forms (including 1295, Diminution of Damages Because of Contributory Negligence, Alternative Findings)
3. Elements of Damages (Personal Injury) (S. Lian, D. Vogel)
4. Damages Defined (S. Lian)
5. Insurance - Bad Faith (B. Blazer)
6. Acting in Concert (S. Lian, K. Brust) (This is to be reviewed because Responsibility for Joint Conduct was deleted.)
7. DUI Verdict Form (J. McLees, J. Simonson) (Include language that the verdict must be unanimous.)
8. Sexual Harassment (J. Vukelic will review a local case.)
9. Reasonable Doubt (T. Slorby)
Lynn A. Kerbeshian
2812 B 17th Avenue So.
Grand Forks, ND 58201