PATTERN JURY INSTRUCTION COMMISSION
JUNE 2001 MEETING
The Pattern Jury Instruction Commission met Tuesday, June 12, 2001 at the Holiday Inn, Fargo, during the annual SBAND meeting..
MEMBERS PRESENT: J. Bekken, J. Greenwood, J. McClintock, J. McLees, S. Plambeck, T. Purdon, D. Vogel
MEMBERS ABSENT: B. Blazer, K. Brust, J. Simonson,, J. Rustad, T. Slorby
GENERAL BUSINESS
Chair J. McClintock called the meeting to order.
Membership: D. Vogel's second term on the Commission has expired, and he received a plaque thanking him for his service. His replacement will be appointed by SBAND. Judge McClintock and T. Purdon were reappointed.
Financial Report. The 1999/2001 budget allocation was $23,000. As of May, the remaining balance is $4,224. The budget for the 2001/2003 biennium is $30,000.
Approval of Instructions for Publication
1. Oral Admission Viewed With Caution: There was a discussion at the March meeting concerning whether this instruction applied to both parties and witnesses, and J. McClintock had reviewed the Devitt and Blackmar site in the interim. The members questioned when this instruction is given. Is it useful? Is it only about admissions or is it a very general cautionary instruction? Ultimately, is it helpful to the jury? S. Plambeck suggested using the words "testifying to" instead of "relating" and substituting "speaker" for "declarant."
Motion to eliminate the instruction: J. Bekken
No second
Motion to publish the instruction with the proposed word changes: J. McLees
Second: S. Plambeck
Approved
The pattern jury instructions have cites to Devitt and Blackmar, 4th edition. A 5th edition was published in 2000.
Motion to update the cites to the 5th edition of FEDERAL JURY PRACTICE AND INSTRUCTIONS: T. Purdon
Second: S. Plambeck
Approved
2. Ordinary Negligence: S. Plambeck noted that the word "ordinary" is not necessary. It had been retained because the code distinguishes between slight, ordinary, and gross negligence. Although it has been shortened, the wording seemed confusing. If not approved, however, the former instruction would remain for the next year.
Motion to approve: T. Purdon
Second: J. Greenwood
Discussion concerned whether to remove the word "ordinary."
Approved including the word "ordinary"; Opposed: J. McLees, J. Greenwood, J. Bekken
J. McLees will review the instruction for the October meeting for possible republication in 2002.
3. Violation of Statutory Duty S. Plambeck commented that the instruction applies not only to statutes but also to rules, ordinances, and codes. There did not seem to be enough information included. When the comment is that there is evidence of negligence, it is really saying that it is not negligence per se. It is just evidence. The former instruction referred to a standard of care being required, not to negligence.
Motion to defer for further discussion in October: S. Plambeck
Second: D. Vogel
Approved
4. Willful Misconduct Defined
Motion to approve for publication: T. Purdon
Second: J. Bekken
Approved
5. Assumption of Risk: This instruction was discussed in March. No changes were made except to add a note to the effect that it was written pre-1987 and that Momentary Forgetfulness of Danger was now a separate instruction. Discussion concerned tying the Assumption of Risk instruction into the concept of fault. Assumption of risk is not a defense; everything is compared in the fault concept. Use of the term "claimant" doesn't make sense. There are three assumption of risk instructions in the pattern book. The other two are Assumption of Risk by Passenger and the Strict Products Liability Assumption of Risk. A one page generic assumption of risk instruction would be preferable to having three.
Motion to table: D. Vogel
Second: J. McLees
Approved
6. Sudden Emergency: The Commission discussed whether there needed to be instructions on all three situations--sudden emergency, distracting circumstances, and momentary forgetfulness of danger--if any are defined. This had been previously discussed at the October meeting. S. Plambeck moved to table the instruction. It was noted that there would be no new sudden emergency instruction for a year if not approved. The motion was withdrawn.
Motion to approve for publication: T. Purdon
Second: D. Vogel
Approved
7. Momentary Forgetfulness of Danger: A cite to Kreidt should be added. This instruction will be discussed further.
Motion to table: T. Purdon
Second: S. Plambeck
Approved
8. Right-of-Way at Intersection
Motion to approve for publication: J. Bekken
Second: T. Purdon
Approved
9. Tortious Interference With Contract: There is a claim for this in North Dakota. S. Plambeck suggested reviewing the elements.
Motion to table: J. Bekken
Second: D. Vogel
Approved
10. Failure to Produce [Evidence] [Witness] and Proof of Fact by Testimony of Single Witness
Motion to approve with Devitt and Blackmar cites updated: S. Plambeck
Second: J. Bekken
Approved
ADDITIONAL BUSINESS
Members received copies of the Civil and Criminal Indices, Table of Cases, Table of Statutes, Cross-References, Table of Contents, and Summary Pages.
In March the Commission had voted to eliminate the Defenses section, moving the instructions to other relevant sections. Three sections were to be renamed Tort, Automobile, and Contract. Previously there were two tort sections, the Basic Tort Liability and Miscellaneous Torts. When asking how to combine these or to rename the Basic Tort section, D. Vogel proposed naming the sections Tort Liability and Motor Vehicle Liability. S. Plambeck suggested that the miscellaneous tort section and the motor vehicle section be subsections of the Tort Liability.
Motion to approve: D. Vogel
Second: S. Plambeck
Approved
J. Simonson had noted that Sollin v. Wangler provided information on whether the Court may instruct or comment on the effect of the verdict. A note was added referring to Sollin. A separate instruction on ultimate outcome will be developed.
Several instructions refer to contributory negligence (Duty of Passenger, Wrongdoing of Driver Not Imputed to Passenger, Duty of Driver to Keep Lookout (Railroad Crossing), Duty of Care Owed by School). Wording on these will be reviewed next year.
J. Greenwood noted that K - 13.08, Preventing Arrest or Discharge of Other Duties (Misdemeanor Arrest) states that the required intent is knowingly and questioned whether it should be willfully. He will review the instruction for the October meeting.
T. Purdon has been considering the nonexistence of defenses requiring proof beyond a reasonable doubt by the prosecution. There were too many crimes requiring the additional element of self-defense, but it seemed reasonable to list as an element on the Murder instructions. J. Bekken suggested a general criminal instruction including the general elements in a criminal case. T. Purdon and J. Bekken will review this for the October meeting.
The staff attorney will delete the cites to the Illinois jury instructions and make typographical corrections in the published instructions. The Burden of Proof section will be updated.
Assignments
1. Actual Fraud, Constructive Fraud, Deceit, and Negligent Misrepresentation: T. Purdon, S. Plambeck
2. Nonexistence of defenses requiring proof by the prosecution: T. Purdon and J. Bekken
3. Constructive Possession: T. Purdon and J. Bekken
4. Assault: J. Simonson
5. Malice: To be assigned
6. Ultimate Outcome: J. Simonson
7. Ordinary Negligence: J. McLees
8. Tortious Interference With Contract: S. Plambeck and J. Simonson
9. Momentary Forgetfulness: K. Brust
10. References to contributory negligence: To be assigned
11. Preventing Arrest or Discharge of Other Duties: J. Greenwood
12. Assumption of Risk (3): S. Plambeck
13. Special offenders (Clark v. State): J. Greenwood
Meetings
The next meeting is October 4th and 5th in Bismarck at the Heritage Center. (In addition to the June meeting during the SBAND convention, meetings are routinely scheduled for the first Thursday and Friday in March and in October.)
Motion to adjourn: D. Vogel
Second: T. Purdon
Approved
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-6220 e-mail: NDPJI@yahoo.com