PATTERN JURY INSTRUCTION COMMISSION
March 1-2, 2007
MEMBERS PRESENT:
L. Boschee
J. Greenwood
J. Hagerty
J. Lee
P.
Myerchin
T. Purdon
J.
Simonson
MEMBERS ABSENT:
J. Anderson
B. Beehler
A. Boucher
A. Page
J.
Webb
GENERAL BUSINESS
Chair Judge Simonson called the meeting to order. Sara Behrens, law clerk for the South Central Judicial District, assisted.
Membership: P. Myerchin and Judge Lee were introduced.
Search Committee Report: The search committee consisted of L. Boschee, A. Boucher, and J. Hagerty. Several candidates were interviewed, and attorney Jennifer Hauge was hired. She will begin immediately with a 50% contract and assume full-time duty July 1, 2007.
Minutes: Minutes of the October 2006 meeting were reviewed.
Motion to approve: J. Hagerty
Second: L. Boschee
Approved
Financial Report: The 2005-07 PJIC budget is $27,314, and the Commission has spent $18,858 or 69% of the total budget. Seventy-nine percent of the biennium has past.
Motion to approve the financial report: T. Purdon
Second: L. Boschee
Approved
Interim Activities
1. Minutes and draft instructions from the October 2006 meeting were posted.
2. Complimentary booklets, Communicating with Juries: How to Draft More Understandable Jury Instructions, were distributed to members not attending the October meeting.
3. SBAND was contacted regarding the availability and cost of jury instructions on CD's rather than on disks.
4. J. Haskell was thanked for his service on the Commission.
5. The National Center for State Courts (Headquarters, 300 Newport Avenue, Williamsburg, VA 23185-4147; 800-616-6164) and the Ohio Judicial Conference will cohost a two-day national Pattern Jury Instruction Conference in Ohio, Spring 2008. Invitations to attend will be extended to all members of state and federal PJI committees, judicial and bar policy makers, and interested academics. The staff attorney responded to a survey regarding needs and interests and indicated strong interest in techniques for drafting instructions that are understandable to jurors, explaining criminal and civil terms and concepts that are particularly challenging for jurors, and methods for evaluating "plain English" instructions. Less interest concerning the historical development of jury instructions, publication and distribution issues, and communication with courts of last resort was reported.
Because two members requested to attend the meeting by telephone, the Commission again discussed the feasibility and desirability of that practice and confirmed that face to face interaction facilitates the presentation and discussion of the proposed instructions.
INSTRUCTIONS
1. Special Situations, K - 2.00: J. Simonson had previously reviewed the 1985-86 Special Situation instructions and reported that content did not need to be changed. S. Behrens updated the cites as follows:
K - 2.01, Criminal Attemptadded State v. Stensaker;
K - 2.02, Criminal Facilitationadded State v. Keller and State v. Langan;
K - 2.04, Criminal Solicitationreviewed with no changes;
K - 2.06, Criminal Conspiracyadded State v. Keller, State v. Serr, and State v. McKinney;
K - 2.08, Individual Accountability for Conduct on Behalf of Organizationreviewed with no changes;
K - 2.10, Organization - Agentreviewed with no changes;
K - 2.12, Corporationsadded State v. Smokey's Steakhouse;and
K - 2.20, Accompliceadded State v. Baumgartner, In re Interest of J.C.S., State v. Deery, State v. Kelly, and deleted Zander v. S.J.K.
Motion to approve: T. Purdon
Second: J. Hagerty
Approved
2. Justification, K - 3.60: J. Simonson reviewed this instruction after receiving correspondence from Judge S. McCullough questioning the inclusion of language from the more general provisions of NDCC 12.1-05-07. The Commission read NDCC 12.1-05-05 and 12.1-05-07. A general limit on the use of force is that it be no more than necessary and appropriate under the circumstances. However, in the specific situation of being responsible for supervising minors, the force does not have to be considered necessary. This requirement was deleted from K - 3.60. The reference to teachers was deleted because K - 3.61 covers corporal punishment in public schools. Cites to Thompson v. Olson and Dinius v. Dinius were considered but not added as the general preference is not having civil cases cited for the criminal instructions.
Motion to approve: T. Purdon
Second: P. Myerchin
Approved
3. Gross Sexual Imposition: J. Greenwood revised the gross sexual imposition instructions to incorporate changes enacted by House Bill 1313 during the 2005 legislative session and codified at NDCC 12.1-20-01(1) and 12.1-20-01(2). The modifications relate to the age of a person engaging in sexual contact with a minor and to sentencing.
K - 7.10, Gross Sexual Imposition (Force or Threat) (Sexual Act): "Sexual Act" was added to the title. Paragraph 3 was redundant and was deleted with the corresponding note.
K - 7.16, Gross Sexual Imposition (Force or Threat) (Sexual Contact): This is a new instruction defining the class A sexual contact felony and the AA felony in the case of serious bodily injury or death.
K - 7.11, Gross Sexual Imposition (Impaired Power to Resist) (Sexual Act): The reference to a victim's being less than 15-years-old was removed. A new paragraph to be used in the case of death was inserted. The accompanying note was revised.
K - 7.12, Gross Sexual Imposition (Victim Unaware) (Sexual Act): Changes conformed to those made in K - 7.11.
K - 7.13, Gross Sexual Imposition (Victim Less Than Fifteen-Years-Old) (Sexual Act): Elements specifying the class AA felony and the class C felony were added.
K - 7.17, Gross Sexual Imposition (Victim Less Than Fifteen-Years-Old) (Sexual Contact): This is a new instruction. Whether the instance of inflicting serious bodily injury should be included was discussed, and it was retained. Elements of the class A felony, class C felony, and class AA felony were included.
K - 7.14, Gross Sexual Imposition (Mental Disease or Defect) (Sexual Act): "Sexual Act" was added to the title. The class AA felony was defined. All of the instructions referring to sexual acts will be placed before the sexual contact instructions.
Motion to approve: G. Hagerty
Second: T. Purdon
Approved
4. Criminal Closing Instructions, K - 5.00: P. Myerchin reviewed the 1985-86 closing instructions.
K - 5.01, Duty of Jury (To Follow "Essential Elements): State v. Olander was added to the cites.
K - 5.08, View of Premises: The civil cite, NDCC 28-14-15, was removed and replaced with NDCC 29-21-26 which permits a jury to view premises in criminal trials. The Schmitt v. N. Improvement Co. cite was corrected, and State v. Schlickenmayer and State v. Rohrich were added. The note was reviewed and eliminated. This instruction is to be used after premises are viewed.
K - 5.12, Opinion of Expert: The Eighth Circuit PJI was reviewed. References to the North Dakota Rules of Evidence remain applicable. A cite to State v. Hernandez was added.
K - 5.18, Presumption: P. Myerchin proposed tabling this instruction to allow further examination.
K - 5.20, Matters of Common Knowledge and Science: Although this instruction seems simplistic and may be repetitive, it contains no errors. No suggestions for changes were made.
K - 5.35, Motive: References to the North Dakota Rule of Evidence 404(b), State v. Ash, and State v. Haugen were added. The 1922 and 1930 cites were deleted.
K - 5. 45, Penalty or Punishment: Cites to State v. Mounts and State v. Steen were added.
K - 5.48, Depositions: Rule 15 of the North Dakota Rules of Criminal Procedure was cited. "Audio Visual" was added to the title to be consistent with the civil instruction.
Motion to approve excluding K - 5.18: T. Purdon
Second: L. Boschee
Approved
5. Strict Product Liability: L. Boschee presented the Strict Product Liability instructions in October, and two instructions had been tabled for further consideration. J. Lee absented himself from discussion of the strict product liability items due to ongoing litigation that involves L. Boschee.
C - 21.25, Negligent Failure to Warn of a Danger Learned Post-Sale: T. Purdon reviewed the Restatement and Crowston v. Goodyear Tire & Rubber Co. The elements are accurately stated, however, the third paragraph referring to proximate cause was deleted. A separate proximate cause instruction would typically be given.
Motion to approve: J. Hagerty
Second: P. Myerchin
Approved
C - 21.00, Strict Product Liability: L. Boschee requested further consideration of this instruction. The bracketed paragraph defines the rebuttable heeding presumption, and he proposed that this constitute a new instruction to be numbered C - 21.07. Cites to Crowston, Jacobs, and Butz are applicable.
Motion to amend C - 21.00 and approve C - 21.07: J. Hagerty
Second: P. Myerchin
Approved
C - 21.03, Product Liability Negligence: The proximate cause paragraph was deleted.
Motion to amend C - 21.03: T. Purdon
Second: J. Hagerty
Approved
C - 21.41, Government and Industry Standards: Whether "by the greater weight of the evidence" should be added was discussed. The argument for adding it is that the phrase would made the instruction self-contained. However, to be consistent, it would have to be added to multiple instructions. The phrase was not added, and it was deleted from the Rebuttable Heeding Presumption instruction. S. Behrens had reviewed the instruction and reported that it accurately tracks NDCC 28-01.3-09.
Motion to approve C - 21.41 and amend C - 21.07: T. Purdon
Second: P. Myerchin
Approved
C - 21.42, Extended Use and C - 21.43, Reasonably Safe Product: The drafts for these instructions were approved at the October meeting but after further reflection, L. Boschee suggested recalling both for further consideration. C - 21.42 applies to the situation in which a defect occurs following normal use of a product for an extended time. C - 21.43 was described as an instruction that balances the duties and responsibilities of a manufacturer. The concern regarding C - 21.42, the extended use instruction, is that it does not account for a defect that would only manifest itself later, or under certain circumstances that do not routinely occur. The concern with C - 21.43 is whether the language is appropriate for a strict product liability case. L. Boschee will analyze these instructions for the June meeting and consider whether notes should be added.
6. Intervening Cause, New: L. Boschee reviewed the current proximate cause instruction and cases. The question to be considered was whether there should be an intervening cause instruction or whether fault of all the parties can be apportioned using proximate cause. Several cases discussed intervening cause: Miller v. Diamond Resources, Inc. recognizes intervening cause. Dehn v. Otter Tail Power Co. uses proximate cause but includes some intervening cause elements. Kreidt v. Burlington Northern also utilized the proximate cause concept and did not find that the court committed reversible error in refusing to give an intervening cause instruction because each person's fault may be regarded as a proximate cause. Describing a proximate cause as one that occurs in a natural and continuous sequence may cover intervening cause by exclusion. Foreseeability is not included in the proximate cause instruction, and this may need to be reviewed.
7. Civil Rights Violation, New: J. Simonson reviewed Strand v. Cass County, a 42 U.S.C. § 1983 claim. In this case, Strand argued that the jury instruction erroneously required the jury to find that a violation of his civil rights had to be the result of a policy or custom of the county. However, for a local government body to be liable, any constitutional claim must result from a policy or custom of the local government. Although most § 1983 claims are made in federal court rather than state court, the instructions accurately state the law and were approved by the North Dakota Supreme Court. A note was added indicating that a definition of "policy" and "custom" may be required if requested.
Motion to approve: J. Hagerty
Second: J. Greenwood
Approved (Abstention: T. Purdon)
8. Snow and Ice, New: A snow and ice instruction for municipalities was approved previously, and A. Boucher and T. Purdon prepared instructions to complete the snow and ice section with instructions for duties of others. The proposed C - 16.09, Duty of State for Damages Caused by [Snow and Ice] [Frost or Loose Snow] on Highways or Sidewalks Not Abutting a State Owned Building or Parking Lot, states the natural accumulation rule. The State is not at fault for damages caused by ice or snow upon a street or sidewalk not abutting state property unless it is caused by the negligent act or omission of a state employee. Proposed C - 16.07 refers to the State, political subdivisions, and private persons. The first paragraph states the natural accumulation rule. Additionally, the instruction describes the necessity for determining where the accident occurredsidewalks, abutting property, or on or near premises. Should the title just say private person? For clarity, all three categories remained. Should the instruction just describe the duty to have reasonable care? Is the location a question for the jury? The question for the jury is whether the property owner acted reasonably so is there too much content for the jury in C - 16.07? A previous draft, C - 16.11, Liability for Ice and Snow, was reviewed. T. Purdon suggested that all the necessary caselaw is contained in this draft. There are only two duties as a landowner: whether the accumulation was unnatural and whether the snow or ice was close to the entrance and reasonably foreseeable. Perhaps just one instruction for the duty including what constitutes the breach of duty would be most useful.
Motion to table C - 16.07, C - 16.09: T. Purdon
Second: J. Lee
Approved
9. Waterways: J. Greenwood completed a review of the 1985-86 waterway instructions.
C - 10.00, Drainage of Surface Waters: The language in the third paragraph did not reflect
the
holding of Jones v. Boeing Co. which adopted the reasonable use rule. New
language indicated that
reasonableness would be determined by factors such as the harm caused, the foreseeability of the
harm, the motive for the draining, the capacity of the established watercourse, and all other
relevant
factors. Whether the amount of harm is pertinent was discussed, and the concept remained.
Older
cites were deleted. Rather than add specific definitions to the instruction, a note directs users to
see
NDCC Chapter 61-01 and the North Dakota Administrative Code.
Second: P. Myerchin
Approved
C - 10.50, Alternative Findings (Drainage Case) (Illustration): The alternative findings instructions have been systematically deleted as being unnecessary with the special verdict forms being used.
Motion to delete: J. Hagerty
Second: L. Boschee
Approved
C - 10.40, Act of God (Drainage of Surface Water): This instruction is a defense to damage claimed from drainage of surface water. It asserts that acts of God were the sole proximate cause of the injury. "Precipitation" was substituted for "rainfall" to include snow melt. Huber v. Oliver County was added as the primary cite.
Motion to approve: L. Boschee
Second: J. Lee
Approved
10. Exemplary Damages (Harm to Others), C - 72.07: L. Boschee reviewed the recently decided US Supreme Court case, Philip Morris U.S.A. v. Williams. In a five to four decision the Court held that it violated the Constitution's Due Process Clause for a state to use a punitive damages award to punish a defendant for injury caused to nonparties. A plaintiff may show harm to others in order to demonstrate reprehensibility but may not use a punitive damages verdict to punish a defendant directly on account of harm alleged to nonparties. The Commission discussed whether this instruction would be applicable in North Dakota where permission to amend pleadings to claim exemplary damages is granted by the judge and is based upon the court's finding of sufficient evidence of reprehensibility. However, the consensus was that the harm to others will be raised both initially to the judge and later to the jury.
Motion to approve: J. Hagerty
Second: J. Lee
Approved
ASSIGNMENTS
1. During a short meeting in June during the annual SBAND convention:
Extended Use, C - 21.42 and Reasonably Safe Product, C - 21.43 (notes) (L. Boschee)
2. October 4 5, 2007
Motion to adjourn: J. Greenwood
Second: L. Boschee
Adjourned
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-7384
e-mail: lynnak@gra.midco.net