PATTERN JURY INSTRUCTION COMMISSION
June 8, 2004
Ramada Plaza Suites, Fargo, ND
Vice-chair J. Hagerty called the meeting to order.
Minutes: Minutes of the March meeting were reviewed.
Motion to approve: L. Boschee
Second: B. Beehler
Financial Report: The 2003-05 PJIC budget is $26,474. The Commission spent $11,197 through April 30, 2004, 42% of the biennium and 42% of the budget.
1. Jury instructions on-line: The time for processing the 2004 instructions will be monitored.
2. Correspondence: Kristi Schatz was thanked for her assistance during the March meeting.
3. Membership: Tim Purdon has served two terms (replacing Steve Lian who resigned March 2000), and J. McClintock has completed three terms. Administrative Rule 23 allows members to serve three terms but traditionally SBAND has replaced members after two terms of service. S. Plambeck was reappointed last year but it was unclear at the time if it would be a full three-year term or a one-year extension. Terms expire on June 30th.
Drafts of the instructions approved during the October 2003 and March 2004 meetings were reviewed.
Motion to approve for publication: B. Beehler
Second: J. Simonson
Reasonable Doubt: J. Webb reviewed the current Reasonable Doubt instruction following a request received from attorney Michael Hoffman. J. Webb suggested adding the cite, State v. Jahner, and changing "accused" to "Defendant" in the text. He reported that the instruction is well received by both prosecutors and defense attorneys in his experience. Actually, the judge has discretion as to whether to give a reasonable doubt instruction at all. Different states have adopted different instructions.
Motion to approve: L. Boschee
Second: B. Beehler
Discussion: J. Simonson asked whether the US cites were needed, and J. Hagerty suggested that they remain as a reference.
Deceit: S. Plambeck reviewed handouts, "Measure of Damages for Fraud or Deceit" and "Measure of Damages Fraud or Deceit." An examination of the older opinions reveals a fundamental distinction between fraud and deceit. The common law tort of fraud is codified as deceit. The measure of damages for deceit is also codified. Actual or constructive fraud is defined in contract law. The distinction between the two is the remedy. The remedy for fraud in contract is rescission; the remedy for the tort of deceit is money, the "benefit of the bargain" rule. An actual injury or loss is necessary for deceit. . In the pattern jury instructions, the word "fraud" has been used without specification as to contract or tort. ND Supreme Court opinions have tended to gloss over the distinction between fraud and deceit. C - 74.00, Measure of Damages (Contracts in General) and a deceit instruction will be reviewed at the October meeting. Members are asked to review the handouts prior to that time.
C - 11.00, False Imprisonment: This is an instruction which has been initiated several times and will be reviewed in October. J. Haskell, S. Plambeck, and A. Boucher will coordinate the review.
C - 14.50, Duty of Patient: As part of the review of older tort liability cases, A. Boucher discussed Duty of Patient. He noted that the last sentence is a contributory negligence instruction and should be omitted. That the patient may be found at fault for not listening and cooperating is a concept that needs to remain. S. Plambeck will send a note to A. Boucher proposing language for this. A. Boucher suggested adding language that it is not necessary for a patient to seek the opinion of other physicians. However, unless additional language is not specifically supported by case law it has been the consensus that it generally will not be included in instructions, and he will review these cases.
C - 16.18, Duty of Care Owed by School: A. Boucher suggested no changes.
Exemplary Damages: R. McLean reviewed the exemplary damages instructions following receipt of correspondence from attorney Pat Ward. After looking at the case law, his opinion is that the current instruction is correct, however, the exemplary damages and related instructions could be reviewed. C - 70.65, Exemplary Damages Not Allowable, needs the cite changed from NDCC 32-03-07, which has been repealed, to 32-03.2-11. Whether the word "guilty" should be used in C - 72.00 was discussed. The cite to Stoner v. Nash Finch will be added. L. Bouchee thought that some of the due process concepts from State Farm Mut. Auto Ins. Co. v. Campbell should be added to C - 72.00. R. McLean thought this might be accomplished in a note, and he and L. Bouchee will prepare this. NDCC 32-03.2-11(5)(a) provides that the relationship between the exemplary damages award and the harm resulting or likely to result must be reasonable. Is this covered in the instruction? S. Plambeck would like to clarify the language and provide more guidance for the jury. There is no instruction on exemplary damages awarded against a principal, and one is suggested. C - 72.02 appeared satisfactory. C - 72.06 and C - 72-08 have been deleted. The staff attorney will research the history on this. A bad faith instruction is suggested. C - 72.10, Oppression, may need expanding and Ingalls v. Paul Revere Life Insurance Co. added to the cites. C - 72-12 appears satisfactory. C - 72-16 will be reviewed to see if there are any changes. There is no instruction for NDCC 32-03.2-11(9), awarding exemplary damages in a motor vehicle accident, and this will be assigned. The question of how a bifurcated trial affects exemplary damages was raised. The exemplary damages, revisions, and proposed new instructions, will be considered in October.
Criminal Defenses: J. Simonson has been reviewing the 1985-86 Criminal Defense section. No changes are recommended to K-3.20, 3.22, 3.25, 3.30, 3.32, 3.34, 3.40, 3.50, 3.55, and 3.60. A new instruction, K - 3.61, Justification (Corporal Punishment in Schools) is proposed. This instruction cites NDCC 12.1-05-05(1), 12.1-05-12(1), and the 1999 15.1-19-02. Whether the statute applies to private schools was discussed. Because NDCC 15.1-19-02 refers to a "school district employee,"the title was changed to Corporal Punishment in Public Schools.
Motion to approve K - 3.61: R. McLean
Second: J. Webb
Motion to approve Criminal Defenses reviewed with no changes: B. Beehler
Second: A. Boucher
The instructions that were approved with no changes will be published in 2004.
Administrative Details: S. Plambeck received a plaque for his service on the Commission. The next meeting is October 7 and 8, 2004. Because the Commission has been meeting for one day instead of two and due to the concentration required for reviewing and drafting, the Commission decided to try meeting for two half days, beginning at 1 p.m. on the 7th and ending at noon on the 8th.
Lynn A. Kerbeshian