PATTERN JURY INSTRUCTION COMMISSION
MARCH 7 AND 8, 2002
Heritage Center, Bismarck, ND
The Pattern Jury Instruction Commission met March 7th and 8th at the Heritage Center, Bismarck.
MEMBERS PRESENT: B. Beehler, B. Blazer, K. Brust, J. Greenwood, J. McClintock, J. McLees, S. Plambeck, T. Purdon, J. Simonson
MEMBERS ABSENT: J. Bekken, J. Rustad, T. Slorby
GENERAL BUSINESS
Chair S. Plambeck called the meeting to order.
Membership: A current list of members, number of terms served by each member, and a copy of the North Dakota Supreme Court Administrative Rule 23 was provided. Judges may serve three three-year terms. Attorneys serve two three-year terms.
Minutes: Minutes of the October meeting were reviewed and amended to reflect that B. Blazer and K. Brust attended.
Motion to approve: J. McClintock
Second: B. Blazer
Approved
Financial Report: The 2001-03 budget is $24,697. Expenditures as last reported were $5,535 leaving a balance of $19,162.
Rules and Procedures: An amendment to the Rules and Procedures was approved at the October PJIC meeting: The Chair and Vice-Chair will serve for one year with the Vice-Chair elected at the October meeting. The Vice-Chair will assume the Chair's duties the following October. The staff attorney proposed several other changes reflecting that minutes and drafts of instructions are now posted on the Supreme Court website rather than being mailed to various organizations and that the staff attorney prepares the minutes and agenda. Drafts of instructions are available from the staff attorney upon request.
Motion to approve: T. Purdon
Second: B. Blazer
Approved
Interim Activities
a. Correspondence: Fritz Fremgen, State's Attorney, sent a proposed instruction for Non-Sufficient Fund Check. This was assigned to J. Greenwood. Mr. Fremgen also wrote concerning Lack of Criminal Responsibility which contained an incorrect statement of law as noted in State v. Johnson, 2001 ND 184, ¶ 7. J. Simonson had also suggested correcting this instruction and continued his review. Mark Stenehjem wrote about the problems getting jurors to understand "loss of consortium." Specifically, he noted that this instruction is a good example of how old terms that the average person on the street has never used and most likely doesn't understand have been carried forward. His letter was forwarded to K. Brust who has been reviewing the loss of consortium instruction.
Some suggestions are carried over to the next year due to the meeting and publication schedule. It was suggested that members send their proposals to the staff attorney on a disk ahead of time if they are not able to attend the meeting.
b. Publication of the 2001 instructions: The 2001 instructions were published. A complete set of instructions through 2001 was available to members in disk or CD rom format.
INSTRUCTIONS
1. Assault (K - 8.11): Judge Simonson noted that there had been simple assault and aggravated assault statutes previously. The new assault instruction is similar to simple assault. It includes willfully causing bodily injury, negligently causing injury with firearms, etc, and the recent amendment dealing with a victim under the age of twelve years. It is a class A misdemeanor unless the victim is under twelve in which case it is a class C felony. Only the age of the victim affects the level of the offense. Assault requires "substantial" bodily injury.
Motion to approve: B. Blazer
Second: T. Purdon
Approved
2. Comparative Fault (C - 68.02) and Special Verdict Form (C - 90.56): In March 2000, the Commission reviewed Comparative Fault. Whether the jury should be told that any damages allowed must be diminished in proportion to the amount of fault attributed to the person recovering and that if the Plaintiff's fault was as great as the combined fault of all other persons who contributed to the injury, there would be no recovery was discussed. When the legislature initiated comparative fault, the statute authorizing providing this information was repealed so informing the jury was a gray area. Minnesota addresses the issue in the rules of civil procedure rather than in jury instructions, and a copy of Rule 49.01 was reviewed. Now, Sollin v. Wangler, 2001 ND 96 has addressed the issue of whether juries should be told the ultimate outcome of the assigned percentages of fault. Judge Simonson added a second paragraph, modified the note and added a cite to Sollin.
J. Simonson inserted language from the Minnesota Rule 49.01 and Sollin, and added Sollin as a cite. K. Brust questioned whether the ultimate outcome instruction should be a separate instruction. Do we need a separate instruction or should it be included in the comparative fault instruction? An instruction which was drafted by Keith Miller for the Enderle v. Trautman case was reviewed. This instruction had been stipulated to by all counsel and Judge Webb. A reason proposed for having two instructions was that there are certain situations when it is not to be given. It could be bracketed. A vote to include the ultimate outcome instruction with the comparative fault was six to two. The words "allocation" versus "find" were compared. Actually, the jury is asked to allocate if there is any fault. J. Simonson proposed giving a numerical example. Some were concerned that the jury might take that as a signal that there should be damages or guidance as to the amount. It was suggested that the lawyers' might give an example. A vote on excluding the example was seven to two. The instruction about the effect of the percentages was included in the body of the special verdict form. Because this comment is for the judge, it was deleted and an expanded note was added.
Motion to approve C - 68.02: J. Simonson
Second: B. Beehler
Approved
Motion to approve C - 90.56: T. Purdon
Second: J. Simonson
Approved
A question was raised about how many lines should the special verdict form have? The statute states that the jury must make separate findings which specify compensation for past economic damages, future economic damages, and noneconomic damages. NDCC 32-03.2-05 Should the jury stop after finding that the fault was 5050? It was suggested that the jury should continue in case a future review of the case was mandated.
3. Lack of Criminal Responsibility (K - 3.06): J. Simonson noted that lack of criminal responsibility is not an affirmative defense. It is a regular defense. The prosecutor has the burden of proof. It is an element of the crime. J. Simonson added a sentence regarding the Defendant acting willfully. The references were discussed. Several were outdated, from other jurisdictions, or not generally available, e.g., McNaghten, Durham, Minnesota Criminal Code. Only the North Dakota cases were to be left.
Motion to remove the words "research aids" and cites not from ND: K. Brust
Second: J. Simonson
Approved
Motion to approve K-3.06: J. McClintock
Second: J. McLees
Approved
Motion to remove the note stating that this instruction should only be given if there is evidence establishing a prima facie case on the issue: J. Simonson
Second: J. McLees
Approved
4. Loss of Consortium (C - 18.00): K. Brust reviewed the previous discussion concerning loss of consortium. Mike Williams had asked for clarification on whether the loss of consortium claim is independent or derivative. After reviewing Swenson v. Raumin and Meyer v. ND Workers Compensation Bureau, K. Brust concluded that the instruction correctly states the law. The instruction is addressing causation, that is, there has to be an injury to the spouse before there can be a claim for loss of consortium. It is a derivative claim. There must be an injury to the spouse. There have been no recent North Dakota cases commenting on the loss of consortium. Following that meeting, Mark Stenehjem had written suggesting that simpler language be used. He asked, for example, how many people use the word "society" when describing their relationship with their spouse. Or, what are the "marital rights" and "services" which are expected? The meaning of "cf." in the cite was discussed. (Cf. indicates that the cited authority supports a proposition different from the main proposition but sufficiently analogous to lend support. It literally means "compare.") Members suggested that the Restatement has probably been updated since this instruction was prepared. Also, Black's Law Dictionary may suggest alternate terms. Is "society" different from services and companionship? These words are used in the case law.
Motion to approve for 2002 publication with K. Brust to investigate alternate language: J. Simonson
Second: T. Purdon
Approved
5. Life Expectancy (Wrongful Death) (C - 70.47) and Life Expectancy (Personal Injury) (C - 70.50): The current instructions refer to the American Experience Table of Mortality which is not readily available. K. Brust suggested three other sources which might be used for accepted life expectancy tables. Whoever requests the table asks the judge to take judicial notice of the specific table. Use of "the" mortality table versus "a" mortality table was discussed. The new tables are listed in a note. "Mishap" was changed to "incident." The two instructions will have the same changes. The reference to the Decedent's age at the time of the injury was deleted from the personal injury instruction.
Motion to approve C - 70.47: J. McClintock
Second: B. Blazer
Approved
Motion to approve C - 70.50: K. Brust
Second: B. Beehler
Approved
6. Momentary Forgetfulness of Danger (C - 2.76): Kreit v. Burlington Northern and Harfield v. Tate were added for comparison. This instruction may require further work but approval was suggested so that it would be available for publication in 2002. Formerly, momentary forgetfulness was included with ordinary negligence.
Motion to approve: T. Purdon
Second: B. Blazer
Approved
7. Assumption of Risk (C - 2.75), Assumption of Risk (Passenger) (C - 3.82), and Assumption of Risk (Strict Products Liability) (C - 21.35): Assumption of Risk is now an element of fault. Since passage of the comparative fault statute, there has not been a definition of what constitutes assumption of risk. Language of the instruction was reviewed. The number of elements was discussed. The assumption of risk includes a dangerous situation, voluntary exposure, freedom of choice to avoid the situation, and injury. Olson v. Chesterton, Spieker v. Westgo, Inc., and Rodenberg v. Fargo-Moorhead Young Men's Christian Association were suggested as references. Only one assumption of risk instruction was considered necessary.
Motion to approve C - 2.75 and delete C - 3.82 and C - 21.35 with a cross-reference: K. Brust
Second: J. McLees
Approved
8. Special Offenders (New): J. Greenwood noted that pursuant to an amendment to NDCC 12.1-32-09, upon any plea of guilty or a verdict or finding of guilty, the prosecutor may make a motion for dangerous, special offender status. The jury determines if the Defendant is a special offender based upon four conditions. The Commission noted that many terms in this law are not defined, for example, "mentally abnormal person," "persistent aggressive behavior," and "professional criminal." J. Greenwood will check the legislative history to see if these can be defined for the jury.
Motion to approve: B. Beehler
Second: J. Simonson
Approved
9. Preventing Arrest or Discharge of Other Duties (Defense) (K - 13.10) and Obstruction of Governmental Function (Defense) (K - 13.01): J. Greenwood added State v. Barth, 2001 ND 201 to the cites. (See item 15 for motion to approve.)
10. Unlawful Possession of Drug Paraphernalia (K - 22.00): J. McLees noted that the drug paraphernalia chapter was moved from Title 12.1 to Title 19. There was no change in the statute. In Title 12.1, if no culpability is specified, it is willfully. The culpability requirement of "willfully" was deleted from the instruction because no culpability requirement was specified in Title 19. The presumption does not carry over according to State v. Eldred.
Motion to approve: B. Blazer
Second: J. McClintock
Approved
The staff attorney will change the cites to K - 22.05, K - 22.10, and K - 22.15. K - 22.10 should have no culpability requirement and K - 22.15 should leave "willfully" out. Footnotes explaining the deletion will be added.
Motion to approve: B. Blazer
Second: J. Simonson
Approved
11. Issuing a [Check] [Draft] [Electronic Funds Transfer] [Order] Without Sufficient Funds or Credit (New): J. Greenwood drafted a new instruction. Paragraph 3 is the class B misdemeanor, paragraph 4 is the class A misdemeanor, and paragraph 5 is a felony. He did not include "hold check" as that is included in paragraph 6. It is a class C felony if the person has been found guilty of three or more violations of this section within five years of willfully issuing an insufficient funds check. The Commission interpreted this to mean that the current violation was willful, not necessarily the three prior violations. On the fourth violation, it is a jury question whether the action was willful.
Motion to approve: J. McClintock
Second: Brad Beehler
Approved
12. Additional Element of Offense - Nonexistence of Defense (K - 3.01): This instruction was approved with a new title and cite to Olander. J. Bekken had suggested a note about when the element is used and different ways it is presented. The instruction will be published in 2002 but a note may be added later.
Motion to approve: T. Purdon
Second: B. Blazer
Approved
13. Evidence of Compliance or Non-Compliance with Statute (New): Violation of Statute was formerly a section in the Ordinary Negligence instruction. It is now a separate instruction with a new title. Violation of a statute is only evidence of negligence, not negligence per se. Conversely, compliance with a statute is only evidence of reasonable care. An instruction used by Judge Kleven was reviewed. The question of violation of OSHA requirements was discussed. OSHA is not intended to affect tort liability. The different types of requirements which may be violated were listed. Private standards may be incorporated in some public requirements. Praus v. Mack was reviewed. The new instruction will follow Ordinary Negligence.
Motion to approve: T. Purdon
Second: B. Beehler
Approved
14. Possession (K - 22.42): The instruction as approved in October will be published with a note about minors in possession to be added at a later time.
15. Preventing Arrest or Discharge of Other Duties (Felony Arrest)(K - 13.05), Preventing Arrest or Discharge of Other Duties (Misdemeanor Arrest)(K - 13.08): The existing instructions have "knowingly" as the required culpability, however, the statute has no reference to culpability which would make "willfully" the required culpability. State v. Tipler was added to the references.
Motion to approve K - 13.01, K - 13.05, K - 13.08, and K - 13.10: J. Simonson
Second: T. Purdon
Approved
16. Malice (C - 72.14) and Actual Malice (C - 72.16): There is a malice instruction in the general torts (C - 2.30) and two malice instructions in the Damages section. To award exemplary damages, there must be clear and convincing evidence of oppression, fraud, or actual malice. Presumed malice is not sufficient. Thus, B. Blazer suggested deleting the Malice instruction which defines presumed malice. In Actual Malice, there was a question raised about defining the term using the same word, e.g., "actual malice" is an "actual state ...." The Actual Malice instruction will be republished with the same definition. Options for republishing were to indicate the current year at the top left hand of the page, putting 2002 (Rev'd) at the top left corner, adding a statement to the note that the instruction was reviewed in 2002 with no changes, or putting a footer line stating the same. The staff attorney will find out what is done in other jurisdictions and provide suggestions at the June meeting.
Motion to delete C - 72.14 citing the statute and adding a comment that exemplary damages require actual malice: T. Purdon
Second: J. McClintock
Approved
Motion to approve C - 72.16 with no changes and an indication that it has been reviewed: J. McClintock
Second: B. Blazer
Approved
Malice (C - 2.30): This is the malice instruction that is in the torts section. It was given in two cases and was not reversible error, but it is derived from a disputable presumption: That an unlawful act was done with an unlawful intent. NDCC 31-11-03(2) Why have a disputable presumption as an instruction? A cite to McLean v. Kirby Vacuum was added. The word "annoy" was discussed as possibly being rather mild to explain malice.
Motion to approve: J. Greenwood
Second: T. Purdon
Approved
17. Exemplary Damages (C - 72.00): Additional factors which may be considered in finding a reasonable relationship between the exemplary damage award and the harm likely to result and the harm that actually resulted were clarified in a bracketed paragraph. The note was revised due to the time that has passed since passage of the comparative fault act. For claims arising after July 1993 but before August 1995, "presumed" malice was sufficient. After August 1995, actual malice is required.
Motion to approve: J. Simonson
Second: T. Purdon
Second
Exemplary Damages (Duty of Insurer) (C - 72.708): Is this the bad faith instruction? Should this be in the general torts section? It does not seem to belong in the exemplary damages section. A review of prior minutes indicated that B. Blazer had reviewed three older cases--Smith, Corwin
Chrysler, Siefert--and two newer ones--Anderson and Hart. Two instructions were proposed. Corwin discusses the duty to act in good faith but does not define it. Smith discusses third party bad faith and the situation in which the party is awarded more than the claim. Siefert discusses bad faith liability. One proposal was being used but there was no current North Dakota support. The second proposal was a fair statement of North Dakota law but didn't add much. It was noted that North Dakota has a fairly definitive insurance code. The proposal was tabled in October 1999 until additional case law or legislation might develop. T. Purdon will take the initial half of the instruction and prepare a bad faith instruction for the torts section.
Motion to delete C - 72.08 with a reference to see C - 72.00: J. Simonson
Second: B. Beehler
Approved
18. Burden of Proof - Clear and Convincing (C -1.41): B Blazer added cites to State v. Schneider and Matter of Estate of Stanton.
Motion to approve: T. Purdon
Second: J. McClintock
Approved
19. Malice of Corporate Officers (C - 2.35): This instruction is in the torts section but relates to exemplary damages. The only case cited refers to exemplary damages. The comparative fault statute discusses exemplary damages against a principal because of an act by an agent in NDCC 32-03.2-11(8). Whether the instruction should be deleted was discussed. It was suggested that the instruction be moved to the exemplary damages section with a note that it is under review.
Motion to approve: T. Purdon
Second: J. Simonson
Approved
20. References to Contributory Negligence: A number of instructions had references to contributory negligence.
Duty of Passenger (C - 3.80): B. Blazer changed contributory negligence to comparative fault. The words "or warning" were added for consistency.
Motion to approve: B. Beehler
Second: J. McClintock
Approved
Wrongdoing of Driver Not Imputed to Passenger (C - 3.84): The word "guest" was changed to "passenger." Contributory negligence was changed to comparative fault. The Commission discussed when this instruction would be given. Will a jury decide if the fault is imputed to the passsenger? What about when suing a spouse?
Motion to approve: J. Simonson
Second: T. Purdon
Approved
Duty of Driver to Keep Lookout (Railroad Crossing) (C - 3.60): There is a federal preemption regarding suing the railroad. Questions about the hazardous nature of the crossing and the speed of the train are pre-empted. But, there are still some circumstances in which this instruction may be used. The reference to CFR, Transportation, is to be deleted. The reference to contributory negligence is changed to comparative fault.
Motion to approve: T. Purdon
Second: B. Beehler
Approved
Duty of Care Owed by School Authorities (C - 16-18): The reference to contributory negligence was changed to comparative fault.
Motion to approve: T. Purdon
Second: B. Beehler
Approved
Assignments
Loss of Consortium (K. Brust)
Additional Element of Offense - Nonexistence of Defense (possible note - J. Bekken)
Constructive Possession (possible note about minors in possession - J. Bekken)
Tortious Interference with Contract/Business Relationship (J. Simonson, S. Plambeck)
Carrying a Concealed Weapon (J. Rustad)
Accidents Involving Death or Personal Injuries - Elements of the Offense (J. Rustad)
Bad Faith (tort) (T. Purdon)
Special Offenders (review legislative history for definitions) (J. Greenwood)
Malice of Corporate Officers (B. Blazer)
Review of 1986 Instructions
CIVIL CRIMINAL
Introductory Instructions (J. Rustad) Introductory Instructions (J. Rustad)
Tort Liability (B. Blazer) Special Situations (J. Rustad)
Motor Vehicle Liability (B. Beehler) Defenses (J. Bekken)
Miscellaneous Torts (B. Blazer) Affirmative Defenses (J. Bekken)
Wills and Gifts (J. McLees) Closing Instructions (J. Simonson)
Contracts (S. Plambeck) Homocide (T. Purdon)
Legal Entities (S. Plambeck) Sex Crimes (T. Purdon)
Damages (S. Plambeck) Other Personal Crimes (T. Slorby)
Eminent Domain (J. McClintock) Robbery and Trespass (T. Slorby)
Evidence (J. McClintock) Damage to Property (T. Slorby)
Closing Instructions (K. Brust) Theft (J. Greenwood)
Verdict Forms (K. Brust) Public Crimes (J. Greenwood and J. McLees)
ADMINISTRATIVE DETAILS
The June meeting will be in conjunction with the SBAND June meeting in Bismarck.
Motion to adjourn: B. Blazer
Second: J. McClintock
Approved
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney