PATTERN JURY INSTRUCTION COMMISSION
OCTOBER 1999 MEETING
The Pattern Jury Instruction Commission met October 7, 1999, at the Heritage Center, State Capitol, in Bismarck, from 9 am to 4:30 pm.
MEMBERS PRESENT: B. Blazer, K. Brust, S. Lian, J. McClintock, S. Plambeck, J. Rustad, J. Simonson, T. Slorby, D. Vogel, J. Vukelic
MEMBERS ABSENT: J. Hagerty, J. McLees
GENERAL BUSINESS
Chair Judge Vukelic called the meeting to order. Law Clerk Matt Sagsveen, who assisted during the meeting, was introduced. Judge Simonson, Judge Vukelic, Tom Slorby, and Brenda Blazer have been reappointed to the Commission.
Election of Chair. Brenda Blazer was proposed as Chair for 1999-00.
Motion to approve: D. Vogel
Second: J. Rustad
Approved
Election of Vice-Chair. Judge McClintock was nominated as Vice-Chair.
Motion to approve: J. Rustadl
Second: D. Vogel
Approved
Minutes. Minutes of the June 1999 meeting were reviewed.
Motion to approve: J. Vukelic
Second: J. McClintock
Approved
Financial Report. The 1999/2001 budget allocation is $23,000. As of 8/31/99, $21,800 remains.
Interim Activities.
1. Handouts from the June meeting were distributed. An article in the Notepad described the publication of the reformatted jury instructions. Minutes were sent by e-mail and posted on the Supreme Court website.
2. Mock juries at the Law School will again use several of the most common jury instructions and request feedback from the jurors. The trials are scheduled for November 9, 15, and 22, 1999. Members are invited to observe jury deliberations. The staff attorney will request videotapes for review. The staff attorney was contacted by a psychology graduate student who is interested in doing her thesis on jury instructions. Assistance was offerred and the list that has been proposed for testing by themock juries was sent.
3. The reformatted jury instructions are scheduled for publication this fall. SBAND did not complete typing the index or the table of cases or statutes but plans to distribute these with the year 2000 updates.
INSTRUCTIONS
Sexual Harassment. Judge Vukelic had reviewed Opp v. Source One Management, Inc., 1999 ND 52, 591 NW2d 101 and Jones v. Meyer, 1999 ND 141, a Cass County case. The elements of a proposed instruciton on sex discrimination by creating or maintaining a hostile or offensive work environment was proposed. The elements match those enumerated in Opp. The word "class" was changed to "group," as this seems easier for a jury to use. There was discussion on the use of "gender" rather than "sex." "Gender" seems to make the statement easier to understand but "sex" is used in case reviewed. In the element stating that "the sexual harassment was based on the Plaintiff's gender, that but for Plaintiff's gender, Plaintiff would not have been the object of harassment," the Commission discussed the "but for" clause. This language was not used in Opp but was used in xxxx. Judge Vukelic is going to do some further research on the implied exclusivity.
There is very little North Dakota law on this subject, and D. Vogel suggested waiting and researching more Minnesota law. The Commission, however, decided that this instruciton would be a beginning to a discrimination section which could be added to as the law develops. "Plaintiff" was used instead of "she" and instead of "employer/employee" becasue the situation may encompass different sexes and job classifications. This instruction does not cover the quid pro quo type of case, only hostile environment. Whether the burden of proof should be included was discussed. Suggesting that continuity would be preferable, the Commission looked at some previous instrucitons: Sometimes the burden is included and sometimes not. S. Lian suggested specifying the burden of proof required only when it is greater than the preponderance standard. A vote on whether to include the burden of proof was four to four. S. Plambeck suggested adding "essential" before the word "elements." He suggests that the civil be presented more like the criminal and noted that it helps organize one's presentation.
Motion for preliminary approval: D. Vogel
Second: K. Brust
Approved
Fault. The Fault instructions had presented in March and were reviewed for final approval.
1. Definition of Fault. S. Lian commented that the instruction does not add anything new. It is a general introductory statement.
Motion to approve: D. Vogel
Second: J. McClintock
Approved
2. Accident-Causing Fault and Injury-Causing Fault. This instruciton would only be used when there was evidence of both types of fault. The potential awkward use of hyphenated words was discussed.
Motion to approve: D. Vogel
Second: J. McClintock
Approved
3. Burden of Proof. This instruction will replace Civil NDJI 40. Matt Sagsveen researched recent cites, and D. Vogel will select the most appropriate ones for inclusion.
Motion to approve Assault: D. Vogel
Second: S. Lian
Approved
4. No Inference of Fault from Accident or Injury. This instruction is part of the standard negligence instruction. The purpose of the new section is to convert to the fault system. Thus, it should be eliminated from Civil NDJI 105, Ordinary Negligence, so that it is in one instruction. K. Brust noted that the problem with an instruction worded in the negative is that it does not tell the jurors what they need to find only what they should not consider.
Motion to approve: D. Vogel
Second: S. Plambeck
Approved with one dissent (K. Brust)
5. Forseeability. The instruction defines consequences that are probable as forseeable. S. Lian suggested that this is the opposite of the law: Events may be forseeable whether thay are anticipated or not. They are not defined in terms of probability. The statute was reviewed. The instruction had been drafted and used by S. Plambeck in a case which was appealed. The jury instruction had been raised as an issue on appeal and was upheld although not specifically approved. Discussion concerned the interpretation of "probable." J. Rustad indicted that the use of "probable" implies over 50 percent. Foreseeability is an essential element in negligence, although it was not defined in a number of cases quickly searched, eg., Stewart v. Ryan. K. Brust noted that the definition needs to apply to a number of situations. Whether something is foreseeable will depend on the particular situation.
Motion to table for further discussion: S. Lian
Second: T. Slorby
Approved
6. Special Verdict. K. Brust present two special verdict forms that he has used. The current Verdict Form, Civil NDJI 1856 was reviewed. It was decided to make slight revisions to the existing form. One question asks for past economic damages, future economic damages, past non-economic damages, and future non-economic damages. The issue was whether to add more specific questions. This is done in some cases, for example, to offset no-fault benefits. It was decided that specific additional questions could be added as needed--that the pattern instruction should fit the general case. A paragraph stating that the Court may include an instruciton concerning the effect of the allocation of fautl in a particula case and whether depending on that allocation, the jury should answer the damages questions was deleted. If fault has been allocated, the question is whether the Plaintiff is 50% or more at fault. The jury is not to be instructed on the effect of percentages.
Motion to approve Battery: J. Vukelic
Second: K. Brust
Approved
Driving Under the Influence/Actual Physical Control. J. Simonson reviewed State v. Huber, 555 NW2d 791 (ND 1996) in which the ND Supreme Court reversed a DUI conviction becasue the jury ws not instructed on the distinction betwen APC and DUI and given the corrct verdict forms and instrucitons on deliberating when a lesser included offense is a possibility. Instructions which permit a defendant who commits a lesser offense to be convicted of a greater offense and receive the consequent of the greater offense is not harmless error. The elements are the same but there would be an additional instruciton on APC as an included offense of DUI. However, J. Simonson noted that the distinction may be moot because the law was amended in 1999 and the penalty for APC no longer differs.
Judge Vukelic had received a letter from Rick Volk requesting review and modification of Criminal NDJI 2940 due to caselaw suggesting that one may be convicted of DUI on public or private land whether or not there is right of public access. The Commission looked at NDCC 39-10-02 and 39-08-01. Section 39 refers to "elsewhere" but the DUI statute doesn't. There appears to be divergence between the legislation and caselaw as the statute requires a right of access. T. Slorby will study further and report in March. CHECK STATUTE.
Carrying Loaded Firearm in Vehicle. J. Simonson drafted this instruction which was suggested from the old TBD list. The instruction tracks the statute. The only discussion was the definition of "loaded." Whether to add a definition was discussed. The Commission decided to just put the cite, 62-01-01(16), in the "Definitions" section.
Motion to approve: J. Vukelic
Second: T. Slorby
Approved
Elements of Damages. The discussion concerned whether damages awarded for the future are those that "reasonably will be required in the future" or "are "reasonably certain to be required in the future." Similary, whether losses will those the injured party "will likely sustain in the future" or "is reasonably certain to sustain in the future." S. Plambeck proposed using "certain" in this instruciton; S. Lian noted that "certain" is used in Civil NDJI 1202 in the Damages Defined instruction. It is explained in 1202 that damages must be "certain" and "certain" is defined differently from common usage. S. Plambeck noted that not all judges use 1202 so the term is needed in the elements instruction, 1225. The federal instructions (Devitt and Blackmar) and California use the words "reasonably certain" to sustain (or be required) in the futture. S. Lian proposed that if "certain" is used in 1225, reasonble certainty needs to be defined in that instruction. A paragraph on separate findings on damages was removed.
Motion to approve: J. Vukelic
Second: T. Slorby
Approved with one dissent (S. Lian)
Damages Defined. This instruction explains that a literal interpretation of "certain" is not what is meant when awarding future damages. S. Lian proposed including the burden of proof required. Whether a different burden of proof is required for present versus future damages was discussed. No ND Supreme Court case requires a different burden according to S. Lian. S. Plambeck commented that there is a difference between past bills and what may or may not occur in the future.
Motion to approve: B. Blazer
Second: T. Slorby
Approved with two dissents (D. Vogel, S. Plambeck)
Administrative Details
The next meeting will be October 1 and 2, 1998.
This instruction will be presented for final approval in June.
13. Permissible Conduct (PJI 656). Whether this instruction should be defined by the negative example was discussed. The desire to use positives rather than negatives for clarity was mentioned.
Motion to approve: J. Simonson
Second: J. McClintock
Approved (J. McLees dissenting)
14. Driving Under the Influence (PJI 2940). Why option "b" is needed was discussed: Prosecutors like it if they do not have a breathalyser to qualify under option "a." The present tense was used.
Motion to approve: M Stenehjem
Second: J. McClintock
Approved
Whether to use "person" or "defendant was discussed with "person" selected.
Motion to approve: J. McLees
Second: J. Simonson
Approved
15. Essential Elements of Offense (PJI 2944). The note stating to use subparts [c] and [d] when pertinent was eliminated. The introductory phrase, "any of the following," was changed to "any one of the following."
Motion to approve: M. Stenehjem
Second: D. Vogel
Approved
16. Actual Physical Control (PJI 2945). "Person" will be used in the general instruction. "Motor" is to be deleted from "motor vehicle."
Motion to approve: J Simonson
Second: M. Stenehjem
Approved
17. Essential Elements of Offense (PJI 2946). The note was eliminated, and the introductory phrase will be "any one of the following."
Motion to approve: J. McLees
Second: J. Simonson
Approved
18. Assault. Judge Schmalenberger had written the Commission suggesting that an Assault instruction was needed. The Commission reviewed the restatement and BAJI. They discussed why it was not titled "Battery." It is not in the statute. ND only has a criminal assault instruction. . The criminal instruction combines assault and battery. Further discussion was postponed.
19. Murder (PJI 2201). The words, "the burden of proof resting upon the State" will be changed to "the State's burden of proof is" in all instructions.
Motion to approve: J. Simonson
Second: J. McLees
Approved
20. Criminal Mischief (PJI 2604): The only change was corrected numbering.
Motion to approve: J. Simonson
Second: J. McLees
Approved
21. Criminal Trespass (PJI 2520, 2521, and 2522). This instruction reflects a change in the law in which the legislature added that it is criminal trespass if one stays on property after being told to leave. The problem of using the word "person" three times in the first sentence of 2522 was discussed.
Motion to approve: K. Brust
Second: D. Vogel
Approved
22. Disarming Law Enforcement Officer (new).
Motion to approve: D. Vogel
Second: J. McLees
Approved
23. Endangering a Vulnerable Adult (new).
Motion to approve: J. Simonson
Second: J. McLees
Approved
24. Gross Sexual Imposition (PJI 2302). The Commission decided that numbers from one to ten would be written out and from eleven on, the numerals would be used. This instruction was tabled.
25. Continuous Sexual Abuse of a Child (new). Stylistic changes were made.
Motion to approve: J. Hagerty
Second: M. Stenehjem
Approved
26. Corruption of Minors (PJI 2307). Minor style changes were made.
Motion to approve: J. Simonson
Second: J. Hagerty
Approved
27. Sexual Assault (PJI 2323, 2325). These instructions were tabled for further review.
28. Comparative Fault. D. Vogel, S. Plambeck, and K. Brust presented a review of their work. Ten points of discussion were noted: the scope of fault, the propriety of jury instructions and arguments on the effect of percentages, enhanced injury cases, failure to mitigate, liability for subsequent care, liability for pre-existing condition, the seat belt defense, statutory basis for continuing to give an instruction on negligent failure to warn or design and a second instruction on a strict liability failure to warn or design in a products liability action, and application of the comparative fault act to intentional acts. The need to get people thinking in terms of fault rather than negligence was presented, and that it has been difficult to get away from old methods. . Part of the mission of the Commission is to educate. J. Hagerty suggested that this subcommittee write an article for the Gavel. Fault and Special Verdict will be discussed at the October meeting. Comments on fault can be sent to the staff attorney for distribution.
29. Supplier's Duty to Warn (PJI 414). D. Vogel reported that this instruction is tabled pending the new Restatement.
ADMINISTRATIVE DETAILS
June Meeting. The June meeting will be in conjunction with the state bar association's annual meeting in Grand Forks.
Assignments.
J. Hagerty will prepare a sample style sheet for the criminal instructions for the June meeting.
In October, the following will be presented:
Responsibility for Joint Conduct--J. McClintock
Note-taking--J. Vukelic
Terrorizing--J. Vukelic
Instruction References--J. Vukelic
Assault-Battery--J. McClintock
Gross Sexual Imposition--J. Simonson
Solicitation--J. Simonson
Sexual Assault--J. McLees
Fault/Special Verdict--S. Plambeck, D. Vogel, K. Brust
Insurance-Bad Faith--M. Stenehjem
Respectfully submitted,
__________________________
Lynn A. Kerbeshian
Staff Attorney
2812 B 17th Avenue So.
Grand Forks, ND 58201
(701) 772-0159
e-mail: jkerbesh@mail.med.und.nodak.edu