PATTERN JURY INSTRUCTION COMMISSION
OCTOBER 2000 MEETING
The Pattern Jury Instruction Commission met Thursday, October 5, 2000, at the Heritage Center, State Capitol, Bismarck.
MEMBERS PRESENT: B. Blazer, J. Bekken, K. Brust, J. McClintock, J. McLees, S. Plambeck, T. Purdon, Vukelic, D. Vogel
MEMBERS ABSENT: J. Simonson, T. Slorby, J. Rustad
Chair J. McClintock called the meeting to order. New members, Judge Bekken and Tim Purdon, were introduced. Law Clerk Brandi Sasse assisted at the meeting.
Election of Vice-Chair.
Nomination of S. Plambeck: J. Bekken
Second: T. Purdon
Minutes. Minutes of the June 2000 meeting were reviewed.
Motion to approve: J. McLees
Second: J. Vukelic
Members requested that S. Tabor be contacted about arranging a different time for the PJIC meeting which occurs in conjunction with the SBAND annual meeting.
Financial Report. The 1999/2001 budget allocation is $23,000. Through August 31, 2000, the Commission spent $10,161.
Motion to approve: J. Vukelic
Second: T. Purdon
General information was provided to new members. Instructions were provided to SBAND for publication. Minutes of the June meeting were posted on the Supreme Court website. Several videos of the mock jury trials held at the School of Law were reviewed. This was a project that was initiated with Professor Ahlen and Dr. Doug Peters, Psychology Department. After reviewing the tapes, it appeared that questionnaires regarding specific instructions would be more helpful than viewing the general deliberations.
Questions and comments about the instructions can be e-mailed to NDPJI@yahoo.com.
The Minnesota State Bar presented a CLE seminar on their new civil JIGs. A tape of the seminar is available for the commission to review at a cost of $300. The Commission decided not to pursue this. The new instructions will be brought to the March meeting for examination.
The Commission had requested that the staff attorney write the Board of Governors requesting legislative assistance with the Comparative Fault instruction. The issue is whether it is permissible to instruct the jury on the effect of the assignment of fault, that is, whether recovery is barred is the plaintiff's fault is 51 percent or more. After further discussion, it was decided that members as individuals could contact their legislator or the Trial Lawyers Association for possible action on this topic.
Right-of-Way at Intersection. Following a request for modification to C - 3.18 from Jim Nostdahl, J. McClintock reviewed NDCC 32-10-22 and several cases including Epperson v. Utley, Logan v. Schjeldahl, Marsden v. O'Callaghan, and Hacker v. Perez. Forfeiture of right-of-way due to excessive speed by the favored vehicle no longer exists although this was true historically. The bracketed language and explanation in the note were deleted.
Motion to approve: S. Plambeck
Second: D. Vogel
Ordinary Negligence. K. Brust reviewed C - 2.05. S. Plambeck noted that the word "ordinary" before "negligence" is unnecessary and becomes confusing. It would be appropriate to strike "ordinary" and "contributory" before "negligence" throughout the instructions. The Commission looked at NDCC 1-01-15. Whether "prudent" is the same as "reasonable" was discussed. The bracketed paragraph of this instruction informs the jury that a statutory violation is evidence of negligence. Does this belong in the ordinary negligence instruction? J. Vukelic suggested that it belongs in a separate instruction. Ordinary negligence with "ordinary" eliminated, the bracketed paragraph removed, and cites to statutory violations removed was given preliminary approval. K. Brust will research newer cites. S. Plambeck and K. Brust will develop a separate instruction for statutory violations as evidence of negligence.
Sudden Emergency, Distracting Circumstances, and Momentary Forgetfulness. K. Brust discussed Kreidt v. Burlington No. Ry. The discussion concerned whether there should be instructions in these areas. As a whole, the attorneys can argue these conditions. They are included in the consideration of fault. Failure to instruct on these subjects is not reversible error. T. Purdon noted that these instructions were given historically to blunt the result of contributory negligence before tort reform. If the instructions are included there should be a cautionary statement that they do not create a new standard of care. They are illustrative, and illustrative instructions are generally not given. It puts a lot of emphasis on the separate instructions. A Sudden Emergency instruction was revised in 2000. The Distracting Circumstances and Momentary Forgetfulness instructions were drafted but not approved. A Momentary Forgetfulness instruction is included in Assumption of Risk.
Motion for no Distracting Circumstances instruction: D. Vogel
Second: B. Blazer
Motion to keep Sudden Emergency with Kreidt as a new reference: D. Vogel
Second: B. Blazer
Motion to move Sudden Emergency from the Automobile Liability to the Basic Tort
Liability section of the jury instructions: T. Purdon
Second: K. Brust
Motion to move Willful Misconduct Defined from the Automobile Liability to the Basic
Tort Liability section of the jury instructions: D. Vogel
Second: B. Blazer
Assumption of Risk. S. Plambeck reviewed C - 64.00. He suggested adding Harfield and Kreidt and a note to the references. D. Vogel noted that the doctrine of Assumption of Risk has not been eliminated. It is not a defense in a negligence case but is a defense to strict products liability. Whether Momentary Forgetfulness should be included was discussed. Assumption of Risk will be reviewed by D. Vogel, S. Plambeck, and K. Brust for the March meeting. D. Vogel requested that the Commission discuss Foreseeability in March.
Constructive Fraud/Deceit. S. Plambeck discussed the differences between fraud and deceit. Fraud is a contract term, deceit a tort term. If a contract is induced by fraud or deceit, there are different remedies. The definition of actual fraud and deceit differ. T. Purdon noted that constructive fraud does not require intent but there must be a fiduciary relationship. The remedies are not black and white. T. Purdon and S. Plambeck will review constructive fraud, deceit, and actual fraud, and consider a note explaining the distinctions.
Brenda Blazer suggested reviewing the defenses section and moving this elsewhere in the instructions.
Non-existence of self-defense burden of proof. In response to a request from E.J. Bosch, J. McLees discussed the burden of proof beyond a reasonable doubt on the non-existence of self-defense as an essential element of the crime. NDCC 12.1-01-03(1)(e) was reviewed. J. McLees developed a sample instruction including this element for Murder (Intentionally or Knowingly). The Commission discussed whether this should be included as an essential element because the elements are given at the beginning of the case and whether there is evidence for a defense will not be known until after testimony. It is a judge's determination whether there is prima facie evidence of the defense, and following that determination, its nonexistence must be proved beyond a reasonable doubt by the prosecution. However, if it is not on the instructions as an essential element, it doesn't get included for the jury on their form. Should there be two essential element statements--one at the beginning and one at the conclusion of the trial? The language from the statute--"The nonexistence of any defense on which you are instructed at the close of the evidence" was added as an essential element. T. Purdon will review the note and list the instructions to which this element would be applicable.
Earning Capacity. J. McLees reviewed the Black's definition and an older proposal submitted by S. Lian. The issue was whether an instruction was desired: There are a number of elements enumerated in economic/non-economic damages and if one is specifically defined, is it necessary to define all?. B. Blazer noted that the issue of earning capacity will be specific to the particular case, e.g., a young person who has no earning history.
Motion to have no instruction: J. Vukelic
Second: B. Blazer
Approved (Dissent: T. Purdon and K. Brust)
Possession. J. Bekken reviewed the possession instruction. The current instruction states that the mens rea is knowingly, however, it is willfully. Willfully is defined as intentionally, knowingly, or recklessly in NDCC 12.1-02-02(1)(e). Thus, willfully includes knowingly. "Power and ability" not "intent and ability" are the appropriate conditions precedent for constructive possession. "Dominion" was added to "control over an object." The statute, sections one and six, as well as McKinney, were to be included in the references. This is a generic instruction but does it apply to all possession cases? Is there a need for an actual versus constructive possession instruction? Or, should there be a note added to the Possession instruction about constructive possession. What about alcohol offenses, particularly minor in possession? T. Purdon will review constructive possession.
J. Vukelic asked to review some phrases in the Life Expectancy instruction. He also asked the Commission to review 80.06, Oral Admission Viewed with Caution; 80.30, Failure to Produce [Evidence][Witness]; 80.34, Proof of Fact by Proof of Single Witness and to consider whether they are necessary. He suggests that juries are given more instructions than they need.
The next meeting will be March 1 and 2, 2001 at the Heritage Center in Bismarck. The following topics have been assigned:
1. Ordinary Negligence (K. Brust)--new cites
2. Negligence - Violation of Statute (K. Brust, S. Plambeck)--new instruction
3. Assumption of Risk (S. Plambeck, K. Brust, D. Vogel)--whether Momentary Forgetfulness should be included
4. Foreseeability (D. Vogel)--discussion
5. Actual fraud, constructive fraud, and deceit (T. Purdon, S. Plambeck)--review; note explaining the differences
6. Defenses (B. Blazer)--move to another section of the instructions
7. 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
8. Constructive Possession (T. Purdon)--separate instruction or note to Possession
9. Life Expectancy, 80.06, Oral Admission Viewed with Caution; 80.30, Failure to Produce [Evidence][Witness]; 80.34, Proof of Fact by Proof of Single Witness (J. Vukelic)--modification of language and whether the evidence instructions are necessary
10. DUI/APC (T. Slorby)
11. Review of instructions submitted by Judge Medd (B. Blazer)--intentionally interfering with a business advantage, breaching an employment agreement, and interfering with the patient/physician relationship including Conversion, When a Lease of Real Property Expires, Leases - Notice by Landlord to Change Term - When Effective, Tortious Interference with Contractual Relationships, Tortious Interference with a Business and Prospective Economic Advantage, Loss of Profits as Damages, Nominal Damages - Defined, and Duplication of Damages
Motion to adjourn: B. Blazer
Second: K. Brust
Lynn A. Kerbeshian
2575 So. 35th St.
Grand Forks, ND 58201