PATTERN JURY INSTRUCTION COMMISSION
MARCH 1999 MEETING MINUTES
The Pattern Jury Instruction Commission met March 4, 1998, at the Heritage Center, State Capitol, in Bismarck, from 9 am to 2 pm.
MEMBERS PRESENT: K. Brust, J. Hagerty, S. Lian, J. McClintock, J. McLees, S. Plambeck, J. Rustad, J. Simonson, D. Vogel, J. Vukelic
MEMBERS ABSENT: B. Blazer, T. Slorby
New Member. The appointment of Tom Slorby to complete the remainder of Mark Stenehjem's term was announced.
Minutes. The minutes were read.
Motion to approve: J. Hagerty
Second: J. McLees
Financial Report. PJIC spent $14,512 of the $23,000 budgeted for the 1997 biennium through January 31, 1999, leaving a balance of $8,488.
1. Minutes and handouts were sent to members not attending the October meeting. Reference materials were sent to T. Slorby. The Gavel received a list of instructions being drafted, and these were posted on the Supreme Court website.
2. Mock juries at the UND School of Law tested the proximate cause instruction. Professor Ahlen reported that one jury completely misunderstood the instruction. J. Hagerty noted that the words "proximate cause" are confusing for juries and that she uses "cause" without "proximate." The Commission will attempt to get more feedback on the jury's problem. The April trials will concern sexual harassment/discrimination, murder, and assault with a deadly weapon. The staff attorney will select several instructions for the juries to review.
3. Copies of the amended NDRCivPro Rule 51, Instructions to Jury, were distributed. The staff attorney reviewed the 1997 NDCC Title Summaries for possible changes that the Commission needed to address in the instructions. The Commission is up to date with laws of the 1997 Legislative Session. State v. Wilson, a recent case discussing jury instructions regarding credibility of a witness who is a paid informant, was noted.
4. The proposed Style and Format Sheet was reviewed. In the criminal instructions, essential elements of the crime will be listed before definitions. These headings will be in bold with no underline.
5. Dan Vogel presented an example of instructions which were written in "plain English" which had been written by Pat Weir. Compared to the pattern instructions, the length was shorter.
6. Correspondence from Tom Dickson regarding the reasonable doubt instruction was reviewed. The Commission decided to take no action on revising that instruction at this time.
7. Gary Euren sent proposed instructions for Fleeing or Attempting to Elude a Police Officer, Driving Under a Suspended or Revoked License, and Taking or Tampering with Vehicle Without Consent of Owner. These were reviewed by J. Hagerty.
8. Fred Strege contacted SBAND with questions about the current status of the Elements of Damages - Personal Injury (PJI 1225) instruction. S. Lian reviewed the content of this instruction.
9. Drafts of instructions approved in October were reviewed.
10. Kim Brust had been asked why there were two instructions, NDJI 1221 (Aggravated Injury) and NDJI 1222 (Injury Aggravated by Defendant's Wrongdoing), which seem redundant. S. Lian noted that the situations in which they would be applicable may be different. D. Vogel commented that NDJI 1222 refers to the "Humpty Dumpty" situation in which the person injured was not in good health or good physical condition at the time of the wrongful injury. The consensus was that both should remain as pattern instructions.
1. Responsibility for Joint Conduct (PJI 145): J. McClintock had reviewed Quam, Trautman, Butz, and the NDCC. S. Plambeck noted that the instruction does not match current fault law and that the ND Supreme Court in Reed had utilized Prosser's concept of acting in concert. S. Plambeck suggested deleting the instruction. D. Vogel agreed because it is not used due to several liability. NDCC 32-3.2-02 states that when two or more parties contribute to the injury, the liability of each party is several only and not joint. Each party is liable only for the damages attributed to the party's percentage of fault. Joint liability applies only in the limited situations of aiding and encouraging the tort; acting in concert; and adopting or ratifying the act. Joint liability is covered in NDCC ch. 32-38. Chapter 32-38 would be applicable for a case with joint liability but these are only the limited situations specified.
Motion to delete: D. Vogel
Second: J. McLees
Discussion: Although deleted in light of several liability, there may be an appropriate place to include responsibility for joint conduct in the acting in concert instruction. S. Lian and K. Brust will review Acting in Concert.
2. Modifying the DUI verdict form: The assignment was unclear. J. McLees and J. Simonson will review the DUI verdict form and include language that the method used must be unanimous.
3. Fleeing or Attempting to Elude a Police Officer: J. Hagerty presented the proposed instruction.
Motion to approve: J. Hagerty
Second: J. Rustad
4. Driving Under Suspension or Revocation: J. Hagerty presented the draft for this instruction. Whether a good faith exception exists was asked. There could be a good faith exception for necessity or an extreme situation. Whether the phrase "on that day" is needed was discussed. Consensus was that the person would not be charged if the license was not suspended at the time of driving.
Motion to approve: J. McLees
Second: M. Rustad
Discussion: Is the phrase "in any jurisdiction" needed? Should "or on a public or private area" be bracketed? The consensus was that these additions were unnecessary.
5. Elements of Damages (Personal Injury) (NDJI 1225): S. Lian reported that the 1990 instruction tracks the statute. The item burial costs was removed because this instruction relates to personal injury and not wrongful death. The footnote needs changing. S. Lian suggested redrafting the instruction with economic damages in one section and non-economic damages in another section. The word "non-pecuniary" was discussed. S. Lian suggests defining the term using "non-monetary." J. Vukelic asked whether "non-pecuniary" is used in the caselaw. S. Plambeck noted that it is used more in the old wrongful death cases. It is not a word generally used in personal injury. S. Lian suggested reorganizing the center paragraphs and using captions for clarity. The Commission reviewed NDCC 32-03.2-04. It was suggested that the order in the instruction track the statute. There were two proposed paragraphs on compensation for economic damages. Whether these could be combined was discussed. The Commission discussed the likelihood of future damages, that is, whether reasonable certainty or only a probability is required. J. Vukelic suggested reviewing the literature to check the burden of proof for future damages. The second and third paragraphs on economic damages will be combined. Past and future damages will be split. This instruction will be a priority and addressed in June. S. Lian and D. Vogel will prepare the draft. The instruction was tabled.
6. Insurance - Bad Faith: B. Blazer will be asked to present a draft at the June meeting.
7. Sexual Harassment: The Commission had a brief discussion on whether in instruction for sexual harassment was needed. J. Vukelic will have his clerk get a copy of a Cass County case and any ND Supreme Court cases dealing with this topic.
8. Fault: K. Brust had prepared a Special Verdict Form which will be held until after the section is reviewed. S. Plambeck noted that the fault concept needs to be emphasized using the correct language. Sample instructions which had been used in American Linen were reviewed. The instruction, Comparative Fault, which had been discussed and approved at the October meeting was revisited. The question of whether the jury should be instructed that the judge will reduce the awarded damages in proportion to the amount of fault allocated by the jury was discussed. Sometimes the judge does not instruct but the attorneys discuss this in their arguments. There is no authority for including this information in an instruction. It is a policy issue with no basis in Law. J. Vukelic prefers for the jury to know the effect of the allocation of fault. S. Lian wanted to leave it out becasue there is no settled law. The consensus was to not include the additional information.
a. Definition of Fault: The term "fault" has a particular legal meaning. The various meanings were enclosed in brackets. A substitute word for "mitigate" was discussed, e.g., minimize, lessen, reduce. A note was added that the list of meanings is not inclusive.
Motion to approve: S. Lian
Second: J. McLees
b. Accident-Causing "Fault" and Injury-Causing "Fault": The Commission discussed whether to leave in the words "whether or not they are or ever were parties to this lawsuit" because this is discussed in Comparative Fault. In general, to put a name on a jury form, there must be prima facie evidence of some fault by that party. "Whether or not" will alway be just "whether" in the instructions. That the fault instructions should be presented as a package for greater consistency was discussed.
Motion for preliminary approval: J. McClintock
Second: D. Vogel
c. Foreseeability: When this instruction would be used was discussed. For example, it is an element of proximate cause. The instruction was shortened. J. Vukelic questioned whether it was being made too simple. Is some explanation of causal fault compared to proximate cause needed? Is it necessary to include that foreseeability is determined by ordinary and usual experience. More recent case law will be checked. This instruction will be revisited.
d. No Inference of Fault from an Incident or Injury: "Incident" is used instead of "accident" because it is a broader term. K. Brust noted that he does not like a negative instruction. The information has already been presented in other instructions. It will be included for reconsideration and new authority researched.
Motion to revisit Foreseeability and No Inference of Fault: D. Vogel
e. Burden of Proof (NDJI 40): This is not actually part of the fault package but relates to the concepts being presented. There was discussion about whether to tie the burden of proof to the Plaintiff or Defendant or to just say "claim" and "affirmative defense" with the reference to Plaintiff and Defendant removed.
Motion to approve: J. Hagerty
Second: K. Brust
Approved (No - J. Simonson and S. Plambeck)
June Meeting. The June meeting will be held in Bismark in conjunction with the annual SBAND meeting, June 8th through the 11th. We will be notified of the time and location assigned to PJIC.
Assignments. Although the June meeting is traditionally rather short, J. Vukelic noted that if members can attend, it would be very beneficial to complete the instructions marked with an asterisk below so that they can be published this year. Other assignments will continue until the October meeting.
*Elements of Damages (Personal Injury) (S. Lian and D. Vogel)
*Insurance - Bad Faith (B. Blazer) (preliminary draft only)
*Fault: Comparative Fault
Definition of Fault
Accident-Causing Fault and Injury-Causing Fault
No Inference of Fault from an Incident or Injury
*Burden of Proof
*Special Verdict Form
Acting in Concert (S. Lian and K. Brust)
DUI Verdict Form (J. McLees and J. Simonson)
Sexual Harassment (Cass County and ND Supreme Court cases) (J. Vukelic)
Lynn A. Kerbeshian
2812 B 17th Avenue So.
Grand Forks, ND 58201