PATTERN JURY INSTRUCTION COMMISSION
MARCH 2001 MEETING
The Pattern Jury Instruction Commission met Thursday, March 1, 2001 at the Heritage Center, State Capitol, Bismarck.
MEMBERS PRESENT: J. Bekken, B. Blazer, K. Brust, J. Greenwood, J. McClintock, J. McLees, J. Simonson, T. Slorby
MEMBERS ABSENT: S. Plambeck, T. Purdon, J. Rustad, D. Vogel
Chair J. McClintock called the meeting to order. Northwest Judicial District Law Clerk, Cathy Bacon, provided computer and research assistance.
Membership: Judge Vukelic submitted his resignation, and Judge John Greenwood has been appointed to that position.
Minutes. Minutes of the October 2000 meeting were reviewed.
Motion to approve: B. Blazer
Second: T. Slorby
Financial Report. The 1999/2001 budget allocation is $23,000. As of February, the remaining balance is $6,953.
General information was provided to Judge Greenwood. Minutes of the October meeting and drafts of instructions were posted on the Supreme Court website. A plaque thanking Judge Vukelic for his service on the Commission was purchased and sent. Drafts of civil and criminal indices were developed by the staff attorney, and SBAND provided proposed tables of statutes and cases cited in the jury instructions. Correspondence: T.S. Elliot, a Las Vegas prosecutor, requested information on the reasonable doubt with self-defense included as an essential element draft; Judge Christofferson provided suggestions for the possession draft; attorneys M. Williams and K. Kaler requested discussion on loss of consortium claims. These were referred to members working on the respective instructions.
D. Vogel had suggested using interactive tv through the federal courts in Bismarck and Fargo for meetings. The advantages that were mentioned were increasing attendance. Possible disadvantages would be losing some interaction between members, having handouts prepared by all in advance, and cost. B. Blazer mentioned using a system through Basin Electric for a deposition which worked well. The staff attorney will check on feasibility and cost.
Oral Admission Viewed With Caution (C - 80.06) (J. McClintock): J. Vukelic asked the Commission to review several instructions for possible elimination because he believes that too many instructions are given to the jury. Or, if not eliminated, he suggested reviewing the citations. The cites for this instruction are Devitt & Blackmar and Wigmore. State v. Skjonsby, 319 NW2d 764, 781-82 was reviewed. This is the primary North Dakota cite for this instruction but it is a criminal case and the instruction is a civil one. It was noted that the instruction does not say a lot but it is typically given. There is nothing to indicate that it is bad law. Whether the instruction refers only to a party or to a witness also was discussed. If it is a witness, it would be impeachment versus an admission for a party. J. McClintock will look at the cites and review whether it refers strictly to one or the other.
Proof of Fact by Testimony of Single Witness (C - 80.34) (J. McClintock): State v. Janda, 397 NW2d 59 (ND 1986) was reviewed. This instruction is used frequently. There is currently a criminal instruction regarding the number of witnesses, K - 5.06. The consensus was to keep the instruction and to put it in the criminal instructions also with the addition of Janda. A see also cite will be added to criminal corroboration. K. Brust will check the Devitt & Blackmar cite which says "Failure to Call Available Witness."
Motion to approve: J. McLees
Second: T. Slorby
Failure to Produce [Evidence] [Witness](C - 80.30) (J. McClintock): Geiger v. Hjelle, 396 NW2d 302 (ND 1986) was reviewed. In this revocation of driving privileges case, Defendant did not testify or present evidence. K. Brust questioned whether there is a 5th edition of Devitt & Blackmar. Members were more comfortable citing Rozan rather than Geiger. Verry v. Murphy and Scherbenske were reviewed. The difference between asserting a privilege versus not offering evidence was discussed. Does this need a note to indicate that it does not affect privilege? The Rozan cite addresses failure to testify. There is not a lot of caselaw supporting this instruction but this may indicate that there is no disagreement, i.e., it has not been challenged.
Motion to retain 80.30 deleting the Rozan cite: K. Brust
Second: J. Simonson
Approved (One dissent--B. Blazer)
Ordinary Negligence (C - 2.05) (K. Brust): Olson v. Briggs, 491 NW2d 725, 729 (ND 1992) was reviewed. K. Brust suggested eliminating Attleson, George, and Johnson as these cases pertain to violation of statutes. A separate instruction on violation of a statutory duty may be preferable. Larson v. Kubisiak would be a proposed reference for the new instruction, specifically headnote number 8. A separate instruction is sometimes easier to find. Whether the word "ordinary" should be removed before the word "negligence" was discussed. It was apparently used to differentiate it from gross negligence. A review of the code indicated that there are three degrees of negligence--slight, ordinary, or gross. The word "mishap" was discussed. Because there is an instruction indicating that there is no inference of fault from an accident occurring already, C - 68.06, the last two sentences in the negligence instruction were deleted.
Motion to approve deleting the fifth paragraph (statutory violation) and the last two
sentences of paragraph four: J. Simonson
Second: B. Blazer
Motion to approve Violation of Statutory Duty: J. McLees
Second: T. Slorby
Willful Misconduct Defined (C - 3.14) (K. Brust): K. Brust looked at updated cites as the only case currently cited for this instruction is Rokusek, a 1951 case. Even if it is an older case, the language of the instruction is found verbatim in Rokusek. Stokka v. Cas County Electric Coop., Inc., was reviewed. Stokka deals with a more specific situation of failure to guard or warn.
Motion to continue Rokusek as the primary cite with Stokka as a see also: K. Brust
Second: B. Blazer
Momentary Forgetfulness of Danger (C - 64.00) (K. Brust): Momentary Forgetfulness has been an elective paragraph in Assumption of Risk. Assumption of risk was discussed. This instruction was being reviewed to consider it in light of tort reform. There is no new assumption of risk under comparative fault. T. Slorby objected to using the works "assumes the risk of damages" within the instruction as this may imply there is no recovery. Assumption of risk used to be a bar to recovery. The concern is whether these words make it sound as though it is still a bar to recovery. K. Brust prepared a new draft for Momentary Forgetfulness.
Motion to approve Momentary Forgetfulness draft as a separate instruction: K. Brust
Second: T. Slorby
B. Blazer suggested a note to Momentary Forgetfulness that it be used in conjunction with Assumption of Risk.
Motion to approve adding a note: B. Blazer
Second: T. Slorby
Judge Simonson suggested that because the Assumption of Risk instruction would have a review date of 2001, there be a note indicating that it represents pre-1987 adoption of comparative fault. There would be a corresponding note to Assumption of Risk that Momentary Forgetfulness has been moved.
Driving Under the Influence (K - 21.10) and Actual Physical Control (K - 21.25) (T. Slorby): In response to a request from attorney Rick Volk, these instructions were reviewed. The statute NDCC 39-08-01 states that DUI/APC applies to highways, streets, and public or private areas to which the public has right of access. Wiederholt, interpreted NDCC 39-08-01 in conjunction with 39-10-01 in applying DUI/APC to private areas. The instruction was discussed with no action taken.
Fault (B. Blazer): The Fault instructions do not fit in the Defenses section of the instructions as comparative fault is not a defense. The instructions in Defenses will be moved to the tort section with the exception of Waiver and Secured Motor Vehicles.
Motion to delete the Defenses chapter; move 67.10 (Waiver) to contracts; move 67.20
(Exemption from Liability - Operation of Secured Motor Vehicles) to Automobile; move
the remainder of the Defenses to torts, rename the chapters "Tort," "Contract", and
"Automobile": B. Blazer
Second: K. Brust
Motion to move Willful Misconduct Defined to the Tort chapter: B. Blazer
Second: K. Brust
Interference with Contract (B. Blazer): Judge Medd provided jury instructions from a case he heard in which several new instructions had been developed including tortious interference with contract, tortious interference with a business relationship, duplication of damages, nominal damages, breaching an employment agreement, and termination of a lease for discussion. The instructions were discussed and case law reviewed. A new instruction based upon tortious interference with contractual relationship was proposed.
Motion to approve: J. Simonson
Second: J. McLees
Loss of Consortium (K. Brust): Is the consortium claim a derivative claim under North Dakota law which would mean that the spouse cannot recover unless the injured spouse also recovers. There is some indication that it may be a stand-alone claim, e.g., Meyer v. ND Workers Compensation Bureau, 512 NW2d 60 (ND 1994). According to some, the pattern jury instruction implies that it is a derivative claim. Does the language condition the recovery of one on the other? K. Brust reported that it is unclear in North Dakota law but the instruction may not indicate otherwise. Swenson v. Raumin, 520 NW2d 858 (ND 1994) indicates in a footnote that the North Dakota Supreme Court has not formally passed upon the nature of the claim. The situation might be tested, for example, when an injured spouse's claim is barred due to the fault of the injured spouse. K. Brust will consider the instruction further, possible adding an explanatory note regarding the unclear status of the independent versus derivative nature of the consortium claim.
Assignments: The assignments will continue at the October meeting. Additional suggestions will be proposed at the June meeting.
1. Oral Admission Viewed With Caution (J. McClintock): Review the cites to determine if the instruction applies strictly to either a party or witness.
2. Nonexistence of defenses requiring proof beyond a reasonable doubt by the prosecution (T. Purdon)--list of offenses to include the nonexistence of a defense as an essential element and an explanatory note
3. Constructive Possession (T. Purdon)--separate instruction or note to Possession
4. Foreseeability --discussion
5. Actual fraud, constructive fraud, and deceit (T. Purdon, S. Plambeck)--review; note explaining the differences
6. Assault (J. Simonson)
June Meeting: Judge Bekken will review the judges' schedule to assist finding a time other than Friday afternoon when the Commission can meet during the SBAND convention.
Lynn A. Kerbeshian
2575 So. 35th St.
Grand Forks, ND 58201