JURY INSTRUCTION DRAFTS - October 1999
Acting in Concert (preliminary draft)
Carrying Loaded Firearm in Vehicle
Damages Defined
Elements of Damages (Personal Injury)
Fault:
Definition of "Fault"
Accident-Causing Fault and Injury-Causing Fault
Foreseeability (tabled)
No Inference of Fault
Burden of Proof (cites to be added)
Sex Discrimination - Hostile Work Environment (preliminary draft)
Special Verdict Form
(If you have suggestions for the Pattern Jury Instruction Commission concerning instructions that need revision or developing, please contact: Lynn Kerbeshian, 2812B 17th Ave. So., Grand Forks, ND 58201; (701)772-0159; jkerbesh@medicine.nodak.edu.)
Two or more persons who, in pursuing a common plan or design to commit a wrongful act, actively take part in the act or further it by cooperation or request are"acting in concert." Mere knowledge by each person of what the other is doing is insufficient to make each liable for the acts of the other, and mere presence at the commission of the wrong, or failure to object to it, is similarly insufficient. To find that two or more persons "acted in concert," there must be an express or tacit agreement to commit the wrongful act.
NDCC 32-03.2-02
Reed vs. UND, 1999 ND 25, ¶¶ 30, 32-33 (declining to hold that "concurrent negligence" amounts to "acting in concert," as such a holding would render the general rule for "several liability" meaningless)
Hurt vs. Freeland, 1999 ND 12, ¶¶ 22-28 (affirming a summary judgment dismissing a negligence claimagainst the passengers in a car that was driven by an intoxicated driver holding that they were not "acting in concert, and thus, not jointly liable for the accident)
Target Stores vs. Automated Maintenance, 492 NW2d 899, 902 (ND 1992)
Carrying Loaded Firearm in Vehicle
It is a crime for a person to keep or carry a loaded firearm in or on any motor vehicle.
[If relevant to the case, the Jury must be instructed on one or more of the following exceptions:
1) A member of the armed forces of the United States or national guard, organized reserves, state defense forces, or state guard organizations while possessing the firearm issued to the member by the organization and while on official duty;
2) A law enforcement officer, except while the officer is engaged in hunting or trapping activities with a rifle or shotgun;
3) Any person possessing a valid North Dakota concealed weapons license or a valid license issued by another state authorizing the person to carry a dangerous weapon concealed if that state permits a holder of a valid North Dakota concealed weapons license to carry a dangerous weapon concealed in that state without obtaining a similar license from that state, except while that person is in the field engaged in hunting or trapping activities;
4) Any person in the field engaged in lawful hunting or trapping of nongame species of furbearing animals;
5) A security guard or private investigator licensed to carry firearms by the attorney general;
6) Any person possessing a valid special permit issued pursuant to NDCC 20.1-02-05.]
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year] in [County], North Dakota, the Defendant, ________________, had a loaded firearm; and
2) That loaded firearm was kept or carried in or on a motor vehicle.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 62.1-01-01(16).]
NDCC 62.1-02-10
A person who is injured or has property damaged because of another's fault may recover money damages for past and future loss. Future damages must be proved with reasonable certainty. The evidence need not show conclusively or without a shadow of a doubt that future damages will be incurred. While absolute certainty is not required, an award of future damages cannot be based on conjecture or mere possibility.
NDCC 32-03-01 - 03
Bekken vs. Equitable Life Assur. Soc. Of United States, 293 NW 200
Peerless Oil & Gas Co. Vs. Teas., 128 SW2d 637 (TexCivApp)
(Personal Injury, NDCC 32-03.2-04)
In arriving at the amount of your verdict for damages arising from personal injury, you may consider and award compensation for economic damages and compensation for non-economic damages, proximately resulting from the injury.
Economic Damages
The term "economic damages" includes damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings, loss of earning capacity, loss of income, loss of support, cost of substitute domestic services, loss of employment, loss of business, and loss of employment opportunities.
Compensation for economic damages such as medical expenses and medical care; custodial care, substitute domestic services, and rehabilitation services is measured by the reasonable value, not exceeding the actual cost of the goods or services reasonably required and actually furnished to the injured party or that are reasonably certain to be required in the future.
Compensation for economic damages such as loss of earnings, loss of earning capacity, loss of income, loss of support, loss of employment; loss of business, and loss of business opportunities is measured by the reasonable value of those losses the injured party has sustained and the reasonable value of those losses the injured party is reasonably certain to sustain in the future.
Non-economic Damages
The term "non-economic damages" includes damages arising from pain, suffering, inconvenience, physical impairment; disfigurement, mental anguish, emotional distress, fear of injury, fear of loss, fear of illness, loss of society and companionship, loss of consortium, injury to reputation, and humiliation.
Compensation for non-economic damages such as pain, suffering, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, fear of loss, fear of illness, injury to reputation, humiliation, and inconvenience is measured by the reasonableness of the award in the light of all the circumstances of the case. In considering the reasonableness of an award, you may consider whether the element of damage is temporary or permanent and whether in the future it can or will be averted or relieved.
NOTE: This chapter applies to claims for relief for damages for injury to person accruing after July 1, 1987.
If damages for loss of support; loss of society and companion; or loss of consortium are claimed by the spouse of the injured party, use NDJI C -xxx , Loss of Consortium, for elements of damages for that kind of loss.
If damages for loss of support are allowed to a party under this instruction, NDJI C -xxx, those damages should not be allowed also to that party under NDJI C - xxx, Loss of Consortium.
The term "fault" as used in these instructions means [strict liability for product defect] [breach of warranty] [negligence] [assumption of risk] [misuse of a product for which the Defendant otherwise would be liable] [dram shop liability] [failure to exercise reasonable care to avoid an injury or to mitigate damages].
NDCC 32-03.2-01
NDCC 32-03.2-03 (7/8/87 - 4/30/93)
NOTE: This list is not all-inclusive. Other theories of tort liability may be included.
The law makes no distinction between accident-causing "fault" and injury-causing "fault." If you find fault, you must allocate the fault on a percentage basis between all persons legally responsible for such fault, whether they are or ever were parties to this lawsuit. .
NDCC 32-03.2-02
Day v. GMC, 345 NW2d 349 (ND 1984)
Foreseeability
The term "foreseeability" means the reasonable anticipation that harm or injury is a likely result of acts or omissions. Consequences which are probable are foreseeable. Consequences which are merely possible are not foreseeable.
Spieker v. Westgo, Inc., Civ. No. 88-721 (Cass County District Court), aff'd, 479 NW2d 837, 846 (ND 1992)
No Inference of Fault from an Incident or Injury
The mere fact that an incident or injury occurred, standing alone, is not evidence that anyone was at fault. You have no right to assume that an incident or injury was caused by anyone's fault.
Bismarck Baptist Church v. Wiedemann Indus. Inc., 201 NW2d 434, 440 (ND 1972)
Forester v. Fischbach Moore, Inc., 178 NW2d 258 (ND 1970)
Haga v. Cook, 145 NW2d 888 (ND 1966)
Burden of Proof
The essential elements of a claim or an affirmative defense must be proven by the greater weight of the evidence.
Evidence is of greater weight if, when considered and compared with that opposed to it, it is more persuasive and convinces you that what a party seeks to prove is more likely true than not true.
Cites to be added.
(Hostile Work Environment)
It is unlawful for an employer to discriminate on the basis of an employee's sex. Sexual harassment is a form of sex discrimination.
Plaintiff alleges the Defendant engaged in sex discrimination by creating or maintaining a hostile or offensive work environment. Plaintiff has the burden of proving, by the greater weight of the evidence, each of the following essential elements:
1) Plaintiff belongs to a protected group;
2) Plaintiff was subjected to unwelcome sexual harassment;
3) The sexual harassment was based on the Plaintiff's gender;
4) The harassment affected a term, condition, or privilege of Plaintiff's employment; and
5) The Defendant knew or should have known of the harassment and failed to take proper remedial action.
Opp vs. Source One Management, Inc., 1999 ND 52, 591 NW2d 101
We, the Jury, answer the following questions:
1) Was [Defendant] at fault?
Answer: Yes ______ No ______
If you answered Question 1 "No," sign and return this verdict. If you answered Question 1 "Yes," then answer Question 2.
2) Was [Defendant's] fault a proximate cause of the [Plaintiff's] damages?
Answer: Yes ______ No ______
If you answered Question 2 "No," sign and return this verdict. If you answered Question 2 "Yes," then answer Question 3.
3) Was [Plaintiff] at fault?
Answer: Yes ______ No ______
If you answered Question 3 "No," then go on to Question 5. If you answered Question 3 "Yes," then answer Question 4.
4) Was the fault a proximate cause of [Plaintiff's] damages?
Answer: Yes ______ No ______
Whether you answered "Yes" or "No" to Question 4, answer Question 5.
[5) Was [person other than a party] at fault?
Answer: Yes _____ No ______
If you answered Question 5 "No" and answered Question 4 "Yes," then answer Question 7. If you answered Question 5 "No" and answered Question 4 "No," then answer Question 8. If you answered Question 5 "Yes," then answer Question 6.
6) Was the fault a proximate cause of the [other person's] damages?
Answer: Yes _____ No ______
If you answered Question 6 "No" and answered Question 4 "No," then answer Question 8. If you answered Question 6 "No" and answered Question 4 "Yes," then answer Question 7. If you answered Question 6 "Yes," then answer Question 7.]
7) Taking all of the fault that was a proximate cause of [Plaintiff's] damages as 100%, what percentage of fault do you allocate to:
Defendant
_______%
Plaintiff
_______%
[Other Person
_______%]
TOTAL
_______%
8) What amount of money will fairly compensate [Plaintiff] for:
Past economic damages
$_______
Future economic damages
$_______
Past non-economic damages
$_______
Future non-economic damages
$_______
9) Do you award Plaintiff interest?
Answer: Yes _____ No ______
10) If your answer to Question No. 9 above was "Yes," what percent interest, up to 6% per annum, do you award Plaintiff?
Answer _______
_______________
Jury Foreperson
NDCC 32-03.2-01
NDCC 32-03.2-05
NOTE: This suggested Special Verdict Form applies to claims arising after July 8, 1987. This form must be revised as required for each case.
Instruction 10 does not apply to contract cases. In contract cases, when a different rate has not been provided in writing, the rate must be calculated at six percent. As a result, there is no discretion with the Jury, and an interest instruction should not be given. NDCC 47-14-05; Hirschkorn vs. Severson, 319 NW2d 475 (ND 1982).