PATTERN JURY INSTRUCTION COMMISSION
October 7 - 8, 2004
Heritage Center, Bismarck, ND
October 7, 2004:
MEMBERS PRESENT:
B. Beehler
L. Boschee
R. McLean
S. Plambeck
T.
Purdon
J.
Simonson
J. Webb
MEMBERS ABSENT:
J. Anderson
A. Boucher
J. Greenwood
J. Hagerty
J.
Haskell
GENERAL BUSINESS
Past-Chair Tim Purdon called the meeting to order. Computer and clerical assistance was provided by Ryan Bernstein, Justice Sandstrom's law clerk.
Membership: T. Purdon was reappointed to the Commission. Judge Zane Anderson was appointed to replace Judge John McClintock, Jr. who had served three terms.
Election of Vice-Chair: Brad Beehler was nominated to serve as Vice-Chair and elected by unanimous vote.
Minutes: Minutes of the June 2004 meeting were reviewed.
Motion to approve: B. Beehler
Second: S. Plambeck
Approved
Financial Report: The 2003-05 PJIC budget is $26,474. Through July 31, the Commission spent $13,089. This is 49% of the budget through 54% of the biennium. Acting Chair T. Purdon raised the subject of a pay raise for the staff attorney. She is hired as an independent contractor and currently receives $860 per month paying for her own expenses. She was directed to contact the State Court regarding a proposed increase for the next biennium.
Interim Activities
1. Plain English List-Serve: The Commission received a letter from David McCord, Director of the American Judicature Society's National Jury Center. The Center is working to improve the jury system in the United States, and one goal is updating jury instructions with an emphasis on plain English. Although several states are making an effort in this direction, there is no consultation between states. Professor McCord proposed hosting a password-protected list-serve available to members of the committees of these states. On the list-serve, committee members could post ideas and problems regarding particular instructions. His correspondence asked whether PJIC would have any interest in participating in such a list-serve. There is no cost.
In response, it was proposed the staff attorney respond indicating interest, and she be the contact person for the list-serve. Then, items of interest could be forwarded to the member of PJIC most familiar with the topic.
Motion to accept joining the multi-state "plain English" list-serve: B. Beehler
Second: J. Simonson
Approved
2. Publication of Jury Instructions: The 2004 civil and criminal instructions, updated tables of cases and statutes, table of contents, division pages, and all indices were sent to SBAND on disks June 17th. It was requested that instructions be reordered so that numerical sequence is followed on the disk copies sold to attorneys. SBAND responded on September 1 that due to personnel shortage the project was lower on the priority list but the process would begin. On September 22nd, Regina Crothers received the instructions for inputting on the website. Ms. Crothers indicates that getting the instructions on line is quick, although follow-up with errors and questions to the staff attorney continued over the next two weeks. Problems were records on the website but not on the disks, missing instructions, and civil and criminal indices being combined. Ms. Crothers' work appears very thorough and responsible, and several errors were corrected. The issue brought to the Commission, however, is the time lag between availability of instructions and publication. The Commission decided to discuss this issue in June when Judge Hagerty would be present.
3. Handouts: Minutes for June 2004, Membership List, Rules and Procedures, Correspondence from D. McCord, History of Commission Action on Exemplary Damages and Bad Faith
INSTRUCTIONS
1. C - 2.10, Gross Negligence Defined: L. Boschee reviewed the previous Gross Negligence instruction which cited the automobile guest statutes. At this time, gross negligence is typically raised in Good Samaritan instances and cases involving public officials or police officers. NDCC 1-01-17, which defines degrees of negligence, was reviewed as well as Black's Law definition. There is a definition available in the Good Samaritan Act (NDCC 32-03.1-01(4)). A state employee is immune unless grossly negligent. Wishnatsky was reviewed. Are gross negligence and reckless temperament synonymous in North Dakota? L. Boschee indicated that it appears that way according to the statute and case law. The older Gross Negligence instruction refers to "reckless temperament." R. McLean questioned whether the distinction between the particular circumstances may be lost with one instruction. For example, the Good Samaritan situation is defined by statute, but for the police in pursuit the case on point is Jones v. Ahlberg. For police, one needs to show lack of care that is practically willful. The discussion focused on whether to have three separate instructions or whether they mean the same thing. It was decided to have an instruction for the good Samaritan and one for public officials/police officers. The Minnesota JIG was examined. "Error in judgment" and "gross negligence" was searched in the ND cases.
Motion to approve C - 2.10, Gross Negligence Defined (Good Samaritan Act) and C - 2.11, Gross Negligence Defined (Acts of a Public Official/Police Officer): L. Boschee
Second: J. Simonson
Approved
2. C - 2.65, Liability for Negligence Without Physical Impact and C - 2.66, Alternative Findings (Liability for Personal Injury Without Physical Impact) (Illustration): L. Boschee explained that these instructions refer to conduct aimed at a third party. The requirement of bodily harm was established in Muchow. The Restatement 436A also indicates bodily harm is required. Whetham was reviewed. This case held that a third person could only recover damages if the negligent act also threatened physical harm to the third person or placed the person in the zone of danger. The older instruction refers to an individual, and this was changed to "immediate family member." That the negligence was a "proximate" cause of the distress was added. L. Boschee recommended deleting the Alternative Findings as a general verdict form would be applicable.
Motion to approve C - 2.65: B. Beehler
Second: S. Plambeck
Approved (R. McLean, J. Simonson dissenting)
Motion to delete C - 2.66: B. Beehler
Second: J. Webb
Approved
3. C - 74.40, Quotient Verdict: L. Boschee discussed Hamilton v. Oppen. The verdict in this case was not a quotient verdict because the jurors had not agreed in advance. Averaging to calculate the amount of an award is acceptable if jurors do not agree in advance to be bound by the average. Agreeing in advance to determine the apportionment of fault by averaging is also not allowed, and this concept was added.
Motion to approve C - 74.40: B. Beehler
Second: S. Plambeck
Approved
4. 1985-86 Defenses and Affirmative Defenses: J. Simonson reviewed the remaining older criminal defenses. No changes were necessary.
Motion to approve K - 3.60 through K - 3.80 and K - 4.01 through K - 4.50 as published: J. Webb
Second: B. Beehler
Approved
5. 1985-86 Waterways: J. Simonson examined this section to assist A. Boucher with the miscellaneous torts review. He noted that the cases usually involve injunctions and not jury trials, but there could be some instances for a jury to consider. NDCC 24-03-06 and Fandrich v. Wells County was examined. When a highway is constructed or reconstructed there could be liability for the state, county, city, township, contractor, etc.. Rather than bracketing the potential defendants, "defendant" was used. S. Plambeck suggested that this is a negligence claim and perhaps should be set up as a duty. The statute does not create a cause of action but it creates a duty. Rynestad, an injunction case, was examined to see if any statute was cited. Usually it would be construction or maintenance of the drainway, not both. C - 10.30 will refer to maintenance using the second paragraph of the proposed instruction, and a new instruction will cover construction or reconstruction using the first paragraph of the proposal.
Motion to approve C - 10.30 and C - 10.35 (new): B. Beehler
Second: J. Simonson
Approved
October 8, 2004:
MEMBERS PRESENT:
B. Beehler
L. Boschee
R. McLean
S. Plambeck
T.
Purdon
MEMBERS ABSENT:
J. Anderson
A. Boucher
J. Greenwood
J. Hagerty
J.
Haskell
J.
Simonson
J. Webb
INSTRUCTIONS
1. Exemplary Damages: At the request of attorney Pat Ward, R. McLean reviewed the exemplary damages instructions and corresponding case law.
C - 72.00, Exemplary Damages: R. McLean considered the content of this instruction to be accurate and only suggested editing. State Farm Mutual Ins. Co. was examined. This Supreme Court case discusses due process requirements concerning out-of-state conduct. There is no unanimity among the circuits regarding this decision. The North Dakota statute says nothing about out-of-state conduct. Whether there should be a new jury instruction alerting the bar to the territoriality dimensions addressed in State Farm was discussed. L. Boschee proposed a note. The "see also" cites need to be checked for references to deleted instructions. The words "guilty" and "detriment" were removed. There was discussion about the word "reasonable" indicating that the jury may award a "reasonable" sum. Does the sum have to be reasonable or only bear a reasonable relationship to the harm? R. McLean suggested that the sum can be unreasonable if it is not based on passion and prejudice. Compensatory damages must be reasonable. NDCC 32-03-37 states that damages must be reasonable but NDCC 32-03-35 excludes exemplary damages in the chapter except when explicitly mentioned. Only the word "reasonable" in the first two paragraphs will be reconsidered at the March meeting.
Motion to approve excluding the word"reasonable": B. Beehler
Second: R. McLean
Approved
C - 72.04, Exemplary Damages (Not Allowed): Changing the title to Exemplary Damages (Products Liability) was proposed.
Motion to approve: L. Boschee
Second: B. Beehler
Approved
L. Boschee and S. Plambeck will develop new instructions for C - 72.06, Exemplary Damages (Principal/Agent) and C - 72.17, Malice of Corporate Officers. These instructions were deleted in 2003.
C - 70.65, Exemplary Damages Not Allowable: The cite to this instruction was changed from NDCC 32-03-07 to NDCC 32-03.2-11. The Federal Jury Practice & Instructions cite was deleted.
Motion to approve: B. Beehler
Second: S. Plambeck
Approved
C - 72.10, Oppression: Ingalls v. Paul Revere Life Ins. Co. was added to the cites.
Motion to approve: B. Beehler
Second: R. McLean
Approved
C - 72.05, Exemplary Damages (Motor Vehicle Accident): This is a new instruction prepared by B. Beehler. NDCC 32-03.2-11(9) was reviewed. The statute states that exemplary damages may be considered when the driver has been convicted under 39-08-01 in the preceding five years. However, T. Purdon noted that many DUI offenses are charged under city ordinances. An equivalent statute or ordinance may be admissible into evidence. Two standards are noted in the code for the alcohol concentration .08 in NDCC 39-08-01 and .10 in 32-03.2-11(9). Was this intentional by the Legislature? Whether references to the appropriate statutes should be mentioned in the body of the instruction or in a note was discussed. Is this a "stand alone" instruction or is NDCC 32-03.2-11(5) (enumerating the standard for awarding exemplary damages) applicable? S. Plambeck suggested including this information or referring the user to C - 72.00 in a note. A note was added.
Motion to approve: R. McLean
Second: S. Plambeck
Approved
2. C - 74.00, Measure of Damages (Contracts in General): A draft prepared at a previous meeting was reviewed. It had not been published and was tabled until a Measure of Damages (Deceit) could be developed. The former instruction had provided the same damages for breach of contract and fraudulent inducement. Wachter v. Gratech Co. was reviewed. NDCC 32-03-36 was added to the cites.
Motion to approve: B. Beehler
Second: L. Boschee
Approved (T. Purdon abstaining)
3. New, Measure of Damages (Deceit): S. Plambeck led a discussion on the distinction between fraud and deceit. Handouts were provided. It was acknowledged that the terms have been mixed in the case law, but there was consensus that deceit is a tort, that the rule for damages is the benefit of the bargain and compensation for all detriment caused. The time for measuring damages is when the contract was made. The value as represented, not the contract price, is compared to the actual value. If one sues in tort for damages, deceit is used. There was disagreement as to whether the plaintiff may receive money damages. NDCC 9-10-03 was reviewed. S. Plambeck and R. McLean will jointly prepare a draft for the March meeting.
Administration
The next meeting will be March 3 and 4, 2005. Consensus was that members like beginning Thursday afternoon and concluding Friday morning.
Motion to adjourn: R. McLean
Second: L. Boschee
Approved
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney