PATTERN JURY INSTRUCTION COMMISSION
MEMBERS PRESENT:
B. Beehler, L. Boschee, A. Boucher, J. Greenwood, J. Haskell, J. Hagerty, J. McClintock, R. McLean, S. Plambeck, T. Purdon
MEMBERS ABSENT:
J. Simonson, J. Webb
GENERAL BUSINESS
Chair Tim Purdon called the meeting to order. Computer and clerical assistance was provided by Kristi Schatz, J. Hagerty’s law clerk. New member, attorney R. McLean, was introduced. The 2003 judicial appointees are J. Simonson and J. Webb.
Election of Vice-Chair: J. Hagerty was nominated for the position of vice-chair.
Motion to approve: J. Haskell
Second: J. McClintock
Approved
Minutes: Minutes of the June meeting were reviewed.
Motion to approve: J. Haskell
Second: B. Beehler
Approved
Financial Report: The 2003-05 PJIC budget is $26,474. Through August, the Commission spent $2,134.42. Budget allowances for the five previous bienniums were compared.
Interim Activities
1. Jury instructions on-line: J. Bekken corresponded concerning difficulty working with the instructions on the SBAND website, particularly using the drafts and ease of access. Christine Hogan responded that the 2003 instructions are currently being updated on the website, and hard copies are almost finished. SBAND would like the instructions to be as user-friendly as possible and appreciates feedback. Members noted that the search mechanism is not efficient. For example, it is not possible to just input the number, or numbers, of instructions that are wanted. There is concern about the length of time needed for new instructions to be entered on-line. S. Plambeck mentioned that the Commission is actually responsible for publishing a current set of jury instructions pursuant to ND Supreme Court Administrative Rule 23. The staff attorney will forward recommendations concerning the website to Tim Purdon who will present the Commission’s suggestions to attorney Steven McCullough
2. Plain language: J. Hagerty and J. Simonson forwarded articles relating to the increasing support in numerous states for rewriting jury instructions using plain language. California published new civil instructions in September and new criminal instructions are due to be completed in 2005. Using a simpler vocabulary, avoiding double negative, using the active voice, and aiming at the reading level of a student in the tenth grade are goals. Suggestions for writing in plain English are available at www.plainlanguage.gov. Copies of these announcements were available. The staff attorney spoke with Rhonda Schwartz, librarian, at the UND law library recommending purchase of the new California instructions for reference.
3. Handouts: Members received copies of the ND Supreme Court Administrative Rule 23, PJIC Rules and Procedures, ND Rules of Court 11.6 (Medium-Neutral Case Citations), NDJI Format and Style Sheet, and a list of current members with contact information.
4. Correspondence: General information was forwarded to new member J. Webb. J. Paulson corresponded with a question regarding blood alcohol measurement. This was assigned for review with the new criminal instructions.
INSTRUCTIONS
1. C - 40.01, Omitted Spouse; C - 40.05, Intent of Testator; C - 40.30, Previous Proceedings; C - 40.35, Alternative Findings (Invalidity of Will) (Illustration); C - 40.40, Gift: J. McClintock reviewed the 1985-86 Wills and Gifts section.
Several words were changed to lower case in Omitted Spouse. “Decedent” became testator. Brackets were used for insertion of the petitioner(s) and the testator’s names. “[I]nstead of” was
substituted for “in lieu of.” The final paragraph, to be used when the omission of the spouse was not intentional according to the will, was placed in brackets.
Motion to approve: J. Haskell
Second: R. McLean
Approved
Similar changes were made for consistency in C - 40.05. “[F]or you” was preferred to “for the
jury.”
Motion to approve: J. McClintock
Second: J. Haskell
Approved
In C - 40.30, references to the court in which previous proceedings were held was deleted. Language was simplified.
Motion to approve: B. Beehler
Second: J. Haskell
Approved
Language was reviewed in C - 40.35, Alternative Findings. “If, adhering to these instructions,” was deleted. “On the other hand” became “However.” “Illustration” was removed from the title. “Undue Influence” was added to the title because the instruction only addresses this particular cause of will failure.
Motion to approve: J. Haskell
Second: R. McLean
Approved
Gift, C - 40.40, was discussed. The use of the present tense when referring to the donor was changed to past tense. The conditions for delivery, possession, and control of the gift were discussed. J. McClintock will redraft this instruction for the March meeting.
2. C - 3.03, Operation of a Motor Vehicle (Impaired Driver); C - 3.05, Under the Influence (Driver of Motor Vehicle: B. Beehler reviewed C - 3.03, one of the 1985-86 instructions being updated. The blood alcohol concentration for an impaired driver was changed to .08 to reflect statutory change. The paragraph, “is an habitual user of narcotic drugs or is under the influence
of a narcotic drug,” was removed as the element referring to being under the influence of any drug or substance which affects safe driving is inclusive.
Motion to approve: J. Haskell
Second: A. Boucher
Approved
C - 3.05 will be used in conjunction with C - 3.03. Two older cases were removed. This instruction is identical to the criminal under the influence instruction. The civil instruction is describing care or due care and is an instruction for negligence.
Motion to approve: J. Greenwood
Second: J. McClintock
Approved
3. C - 2.01, Responsibility for Conduct; C - 2.10, Gross Negligence Defined; C - 2.20, Measure of Duty to Minor to Exercise Care; C - 2.25, Voluntary Intoxication; C - 2.40, Advice of Counsel; C - 2.60; Action for Damages by Spouse Against Spouse; C - 2.65, Liability for Negligence Without Physical Impact; C - 2.66, Alternative Findings (Liability for Personal Injury Without Physical Impact) (Illustration): L. Boschee reviewed these 1985-86 tort liability
instructions. In C - 2.01, he recommended that the NDCC 9-10-07 be removed as this is the old contributory negligence statute. Whether this instruction should be deleted because it adds nothing to the claim was discussed. J. Haskell suggested that this instruction is not necessary. It is a very general statement. T. Purdon mentioned that if deleted, the statute will still be
submitted, and perhaps it is better to have an instruction in place. An example in brackets was deleted as being relevant for only that specific situation. The note corresponding to the example was deleted.
Motion to approve: B. Beehler
Second: A. Boucher
Approved (one dissent – J. Haskell)
L. Boschee proposed new cites, Schloesser v. Larson and Agra-By-Products, Inc. v. Agway, Inc., for Gross Negligence Defined, C - 2.10. The Commission discussed when gross negligence might be the appropriate standard. An example would be that law enforcement officers or other state employees cannot be sued individually unless there is gross negligence. Negligence under the Good Samaritan Act would also require gross negligence. NDCC 32-03.1-01 and Jones v. Ahlberg were reviewed as well as general definitions in NDCC 1-01-14–17. The instruction was tabled, and L. Boschee will reword it for the March meeting.
In C - 2.20, Measure of Duty to Minor to Exercise Care, the spelling of Kirschenman was corrected. The word “contra” was eliminated from the note.
Motion to approve: B. Beehler
Second: J. Greenwood
Approved
C - 2.25, Voluntary Intoxication was reviewed with no changes.
The bracketed language indicating that advice of counsel is a defense to conversion was deleted from C - 2.40, Advice of Counsel as this is incorrect per Harwood State Bank v. Charon. Old cases, 1900 and 1933, are cited but this may be because there have not been newer cases appealed. The instruction was tabled, and R. McLean will check for more recent cites.
Three additional cites were added to C - 2.60, Action for Damages by Spouse Against Spouse. The bracketed [husband or wife] was removed.
Motion to approve: J. Haskell
Second: A. Boucher
Approved
In C - 2.65, Liability for Negligence Without Physical Impact, the spelling of Whethman was corrected. L. Boschee suggested deleting cites from other jurisdictions and the ALR reference. S. Plambeck proposed deleting the companion instruction, C - 2.66, Alternative Findings. The two instructions were tabled for further review.
4. K - 1.10, Proof Beyond a Reasonable Doubt: T. Purdon distributed correspondence, drafts of five jury instructions and two articles relating to reasonable doubt asking the members review the information for discussion at a future meeting.
5. K - 13.20, Aiding Consummation of Crime (Class B Misdemeanor); 13.21, Aiding Consummation of Crime (Class A Misdemeanor); 13.22, Aiding Consummation of Crime (Class C Felony): J. Greenwood reviewed the remaining instructions from the 13.00s which had been tabled at a previous meeting. K - 13.20 was reviewed with no changes. K - 13.21 was combined with K - 13.22. Instead of two instructions, one for the Class A misdemeanor and one for the Class C felony, a note was added that the jury might have to make a determination of the level of
the offense.
Motion to approve: J. McClintock
Second: B. Beehler
After further discussion, K - 13.22 was tabled for further delineation of the elements and clarification of the note.
6. K - 14.05, Failure to Appear After Release; K - 14.20, Permitting Escape; K - 14.25, Inciting Riot or Leading Riot in Detention Facility; K - 14.26, Providing Contraband Useful for Escape; K - 14.27, Possessing Contraband Useful for Escape: The bracketed information describing the class C felony was moved to a note in 14.05, Failure to Appear. The instruction was tabled for further revision.
Judge Greenwood updated the cite for K - 14.20, Permitting Escape, and added that the public servant is “concerned in official detention.”
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
The cite to K - 14.25, Inciting or Leading Riot in Detention Facility, was changed from 12.1-08-06 to 12.1-05-08.
Motion to approve: T. Purdon
Second: J. Haskell
Approved
J. Greenwood updated the elements by adding a bracketed alternative indicating that the contraband useful for escape is a firearm, destructive device, or other dangerous weapon in K - 14.26, Providing Contraband Useful for Escape.
Motion to approve: J. Hagerty
Second: J. Haskell
Approved
“Willfully” was added to K - 14.27, Possessing Contraband Useful for Escape. A bracketed alternative regarding type of contraband was added.
Motion to approve: L. Boschee
Second: B. Beehler
Approved
7. K - 15.05, Nondisclosure of Retainer in Criminal Matter; K - 15.20, False Statements (Governmental Matter) (Class A Misdemeanor); K - 15.25, False Information and Statements (Materiality); K - 15.40, Unlawful Compensation for Assistance in Government Matters (Public Servant Soliciting or Accepting Thing of Value); K - 15.42, Unlawful Compensation for Assistance in Government Matters (Offering or Giving Thing of Value to Public Servants); K - 15.52, Trading in Special Influence, K - 15.55, Threatening Harm to Public Servant; K - 15.56, Threatening Public Servants; K - 15.60, Sports Bribery (Offering or Conferring a Bribe); K - 15.70, Sports Bribery (Soliciting or Accepting Bribe); K - 15.71, Commercial Bribery (Conferring Bribe Upon Employee, Agent, or Fiduciary); K - 15.72, Commercial Bribery (Acceptance of Bribe by [Employee, Agent] [Fiduciary]: These 1985-86 instructions were reviewed by Judge Greenwood.
K - 15.05 was reviewed with no changes recommended.
J. Greenwood proposed changing “is known” to “knows” and adding a third paragraph to the elements, i.e., that the Defendant did not retract the false statement in K - 15.20, False Statements (Governmental Matter) (Class A Misdemeanor). That retraction is a defense was added to the
cites.
Motion to approve: J. Haskel
Second: B. Beehler
Approved
J. Greenwood questioned whether K - 15.25, False Information and Statements, would need to be given to a jury. Whether a falsification is material in a given situation is a question of law.
Motion to delete: J. Hagerty
Second: J. Haskell
Approved
K - 15.40, Unlawful Compensation for Assistance in Government Matters (Public Servant Soliciting or Accepting Thing of Value) was reviewed and no changes were recommended. In K - 15.42, Unlawful Compensation for Assistance in Government Matters (Offering or Giving Thing of Value to Public Servants), “person” was substituted for “public servant.”
Motion to approve: B. Beehler
Second: J. Haskell
Approved
After discussion, and removing the reference to “party official”, K - 15.52, Trading in Special Influence, was tabled to create separate instructions for the two crimes described.
J. Greenwood added statutory language specifying that the threatened harm must be to the public servant who is holding the proceeding in which the alleged offender appears in K - 15.55, Threatening Harm to Public Servant.
Motion to approve: L. Boschee
Second: J. McClintock
Approved
In K - 15.56, Threatening Public Servants, J. Greenwood recommended removing “knowingly” as it is not in the statute. The paragraph defining what is not a defense was removed.
Motion to approve: J. Hagerty
Second: R. McLean
Approved
“Knowingly” and “whether amateur or professional” was deleted from K - 15.60, Sports Bribery
(Offering or Conferring Bribe).
Motion to approve: J. Haskell
Second: B. Beehler
Approved
“Whether amateur or professional” was deleted from K - 15.70, Sports Bribery (Soliciting or Accepting Bribe). “Knowingly” was retained.
Motion to approve: J. McClintock
Second: A. Boucher
Approved
“Knowingly” was removed from K - 15.71 as no culpability is mentioned in NDCC 12.1-12-08 for offering or conferring a bribe in this situation. The words, “to conduct” oneself were added.
Corresponding changes were made to K - 15.72, Commercial Bribery (Acceptance of Bribe by [Employee, Agent] [Fiduciary], but “knowingly” was retained. The definition of “benefit” was
deleted.
Motion to approve: J. Haskell
Second: B. Beehler
Approved
8. C - 70.06, Burden of Proving Damages; C - 70.24, Injury Aggravated by Defendant’s Wrongdoing; C - 70.30, Workmen’s Compensation Benefits; C - 70.40, Special Items of Detriment (Wrongful Death); C - 70.54, Measure of Damages (Wrongful Detention); C - 70.56, Damages for Conversion of Personalty; C - 70.58, Reasonable Value or Fair Market Value; C - 70.60, When Peculiar Value to Person Deemed Value; C - 70.62, Measure of Damages [False Imprisonment] [Malicious Prosecution]; C - 72.08, Exemplary Damages (Duty of Insurer); C - 74.00, Measure of Damages (Contracts in General); C - 74.02, Value of Property to Seller; C - 74.04, Value of Property to [Buyer] [Owner]; C - 74.06, Loss of Profits as Damages; C - 74.08, Measure of Damages (Goods Not as Represented or Warranted); C - 74.12, Value of Attorney’s Services; C - 74.20, Elements of Damages (Miscellaneous); C -74.40, Quotient Verdict: S. Plambeck reviewed the 1985-86 damages instructions.
S. Plambeck proposed rewording Burden of Proving Damages to eliminate confusion in describing the parties, to incorporate the fault concept, and to shorten the instruction. “Fault” and “liability” were bracketed. The Commission reviewed NDCC 32-03-38. Excess words were
eliminated. The word “detriment” was retained even though it has been deleted from other instructions defining damages because its use appeared appropriate in context. The sentence regarding nominal damages was bracketed.
Motion to approve: S. Plambeck
Second: J. Haskell
Approved
S. Plambeck commented that the continued use of the word “detriment” used in the Injury Aggravated by Defendant’s Wrongdoing instruction seemed appropriate. This instruction refers
to a pre-existing condition which has been aggravated. BAJI and JIG references were eliminated. “[W]rongful conduct” was changed to “fault.” The title was changed to Aggravation of Pre-existing Condition.
Motion to approve: B. Beehler
Second: J. Haskell
Approved
The current instruction, Workmen’s Compensation Benefits, incorrectly creates the erroneous impression that the Bureau must be made whole before the plaintiff can recover. The plaintiff has the option of revealing the Workers’ Compensation subrogation to the jury. The instruction
refers to Sollin v. Wangler for a discussion of the disclosure issue, The subrogation statute is cited. The more general reference to an “agency” instead of the specific name was used.
Motion to approve: J. Haskell
Second: R. McLean
Approved
S. Plambeck noted that there is a distinction which is perhaps unclear in the Special Items of Detriment (Wrongful Death) regarding the “heir-st-law” and the decedent’s estate, and when this
distinction requires a survival action. NDCC chapter 32-21 was reviewed. Whether a separate instruction for damages in wrongful death is necessary was discussed .
Motion to delete: B. Beehler
Second: L. Boschee
Approved
Measure of Damages (Wrongful Detention) was reviewed with no changes.
A misspelling was corrected in Damages for Conversion of Personalty. The cite was changed to NDCC 32-03-23 eliminating NDCC 32-03-24 and 25.
Motion to approve: J. McClintock
Second: B. Beehler
Approved
Reasonable Value or Fair Market Value was reviewed with no changes.
The word “certain” was deleted from “certain property” in When Peculiar Value to Person Deemed Value.
Motion to approve: A. Boucher
Second: S. Plambeck
Approved
The Commission questioned why particular items of detriment were listed when there could be other economic and non-economic damages. Should this instruction be replace with the general damages instruction? Exemplary damages are listed but S. Plambeck noted that these would be governed by a separate instruction. The instruction was tabled, and S. Plambeck will review the elements of damages.
S. Plambeck stated that the bracketed language, “or by reason of false representations that induced the execution of the contract,” is erroneous in the Measure of Damages (Contracts in General) instruction. This instruction is not properly used to instruction on the remedy for fraud, actual or constructive. He suggests that there is no authority providing for money damages as a remedy for fraud, and the remedy is rescission. The person may rescind the contract or affirm the contact with knowledge of the fraud and sue in tort for deceit. If rescinded, each party is restored to the party’s original position. If ratified with knowledge, there are no damages in contact. T.
Purdon’s position, however, was that one can get damages. The cases have not been consistent in delineating the language or remedies. When the authority is unclear, the Commission has not taken a position. Because this is such an important instruction, R. McLean suggested further review.
Motion to retain the 1986 instruction with further review in October 2004: A. Boucher
Second: B. Haskell
Approved
“[E]stimating damages” was changed to “determining damages” in Value of Property to Seller. An LRA reference to Stanford v. McGill was removed. R. McLean noted that some cites are very old, i.e., the Stanford case dates to 1897.
Motion to approve: B. Beehler
Second: R. McLean
Approved
In Value of Property to [Buyer] [Owner], “estimating damages” was changed to “determining damages.” This instruction tracks NDCC 32-03-32.
Motion to approve: J. Hagerty
Second: J. Haskell
Approved
S. Plambeck suggested that the title of the Loss of Profits as Damages is misleading. The instruction is applicable to more limited circumstances than the title suggests. He questioned whether the instruction accurately summarizes applicable law. The third paragraph in Measure of Damages (Goods Not as Represented or Warranted) appears either erroneous or incomplete. Both instructions were tabled.
Before listing items to be considered for determining damages, the words “among other things” were added because the list is not exclusive.
Motion to approve: B. Beehler
Second: J. Greenwood
Approved
Elements of Damages (Miscellaneous) is a resource tool, listing statutes which may provide various measures of damages. S. Plambeck will review this for accuracy.
There was concern expressed that use of the Quotient Verdict instruction may be counterproductive, that is, lead jurors to do what it tells them not to. However, there is no difficulty with quotient verdicts if the jurors do not agree in advance to be bound by the computation. The cases will be reviewed and updated.
October 3, 2003
9. C - 24.00, Interference with Contract/Interference with Contractual Relations (Elements): J. McClintock prepared a draft combining elements from Peterson v. Zerr with additional explanation from Bismarck Realty Co. v. Golden and Hennum v. City of Median for clarification.
One issue discussed was that the justifications for interference are very broad and need to be tailored to each case. The example of hiring away an at-will employee as an example was deleted. S. Plambeck noted that the element of wrongfulness needs to be conveyed. The title was changed to Intentional Interference with Contract (Elements). There was discussion about
whether all intentional torts are subject to comparative fault. The Commission discussed whether there should be four elements as specifically stated in case law with the requirement of intent and knowledge presented in an additional paragraph, listed as an element, or eliminated. Intent and knowledge requirements were added to the element requiring that the defendant
instigated the breach so that these concepts would be included in the element list and not an additional requirement. The final two paragraphs explain justification.
Motion to approve: B. Beehler
Second: L. Boschee
Approved
10. Leaving the Scene of an Accident; Computer Fraud; Computer Crime; Tampering with Fire Alarm; Theft Detection Shielding Device; Fraudulent Receipt and UPC Label Use; Human Cloning Prohibited; K - 7.54, Indecent Exposure: J. Hagerty presented several new criminal instructions. Leaving the Scene of an Accident was suggested by attorney Fritz Fremgen and is based upon NDCC 39-08-04.
Motion to approve: J. Haskell
Second: R. McLean
Approved
Whether brackets are desirable in the second element of Computer Fraud which lists the various ways the computer may be accessed was discussed. A civil action for computer fraud would be possible but due to the unlikelihood of this, it was decided that a civil instruction would be unnecessary. Computer Crime is based upon the same statute, NDCC 12.1-06.1-08.
Motion to approve: J. Haskell
Second: B. Beehler
Approved
“Willfully” was added to the elements in Tampering with fire alarm. The element Whether “so as to endanger person or property” is a separate element or should be combined with the previous element listing places where the crime may occur was discussed. J. Hagerty will look at the legislative history and research this further.
A draft of Indecent Exposure was tabled for corrections.
No drafts for Theft Detection Shielding Device, Fraudulent Receipt and UPC Label Use, or Human Cloning Prohibited were proposed. J. Hagerty will review the new drug and traffic offenses for the March meeting.
11. C - 50.26, Waiver; C - 52.00, Bailment for Mutual Benefit; C - 52.05, Implied Warranty of Bailor; C - 52.08, Warranty of Bailor Limited; C - 52.20, Duty of Carrier (Passengers); C - 52.25, Duty of Carrier (Property); C - 52.30, Loss Due to Direct Action of Wind or Hail; C - 52.40, Claim Under Non-owned Automobile Provision of Insurance Policy: S. Plambeck reviewed these 1985-86 contract instructions.
Waiver was reviewed with no changes.
No substantive change was proposed for Bailment for Mutual Benefit. The ALR and CJS references were deleted.
Motion to approve: J. Haskell
Second: J. McClintock
Approved
The ALR reference was deleted from Implied Warranty of Bailor, and it was reviewed with no changes. No substantive changes were suggested for Warranty of Bailor Limited. The instruction is very case specific. Whether the bailment instructions should be deleted was discussed. The three bailment instructions were tabled for further discussion.
In Duty of Carrier (Passengers), the first paragraph referring to the licensing of a common carrier was deleted. “[H]ire” was substituted for “reward.” The instruction was modified to refer to “a
carrier” instead of “every carrier.” The instruction clarifies that a higher degree of care than reasonable care is required as discussed in Kuntz. The carrier, however, is not required to guarantee the safety of the passengers.
Motion to approve: S. Plambeck
Second: A. Boucher
Approved
A paragraph identical to the first paragraph deleted in Duty of Carrier (Passengers) was also deleted from Duty of Carrier (Property). “A carrier” was substituted for “every carrier.” NDCC
8-03-02 was reviewed. Ordinary care is required when the carrier is hired; only slight care is required if the carrier is not being paid. Whether this instruction is necessary was discussed: Is it any different from ordinary negligence? B. Beehler considered the ordinary negligence instruction sufficient.
Motion to approve: J. Haskell
Second: J. McClintock
Approved (one dissent – B. Beehler)
Loss Due to Direct Action of Wind or Hail has limited application to policies including the specific language quoted. The only cite is an insurance law text.
Motion to delete: S. Plambeck
Second: L. Boschee
Approved
No changes were proposed to Claim Under Non-owned Automobile Provision of Insurance Policy. Although limited in application, there is ND authority. Brackets around “the plaintiff” were added. This instruction was approved as is with the minor changes.
ADMINISTRATIVE DETAILS
March Meeting
The next meeting is March 4th and 5th, 2004. The staff attorney will email assignments to members.
Respectfully submitted,