C - 8.10 C - 11.00 C - 11.10 C - 14.20 C - 14.25 C - 14.50 C - 18.00 C - 23.00 C - 40.40 C - 72.00 C - 72.16 C - 73.00 (New) C - 74.00
K - 5.42 K - 7.23 (New) K - 8.20 K - 8.22 K - 8.95 (New)
2005 NDJI-CIVIL C - 8.10
Puffing or Sales Talk
Not every untrue statement is [deceit] [fraud]. The law recognizes that persons engaging
in trade will puff up their property, that people are free with their opinions about things, and
that when trading or dealing with others they indulge in what is known as puffing or sales
talk. Mere expressions of opinion or predictions of future events [such as [value] [profit]
[how good a product is]] or statements unlikely to deceive ordinary persons, do not
constitute [deceit] [fraud] because most people are aware that persons in trade and sales
indulge in that sort of conversation.
* * * * *
Smith Enterprises, Inc. v. In-touch Phone Cards, 2004 ND 169, ¶ 20, 685 NW2d 741, 747 (opinions not
actionable) Kary v. Prudential Ins. Co., 541 NW2d 703, 705-06 (ND 1996) Fitzgerald v. Balkowitsch, 288 NW2d 761, 763 (ND 1980) Gershman v. Engelstad, 160 NW2d 80, 83 (ND 1968) Sperle v. Weigel, 130 NW2d 315, 320 (ND 1964) Lesch v. Farmers & Merch. State Bank, 211 NW 687 (ND 1926)
2005 NDJI-CIVIL C - 11.00
False Imprisonment
One who [arrests] [detains] another without authority of law may be at fault for false
imprisonment.
An arrest is a detention of a person by means of physical force, or show of authority.
Formal words of arrest are not required, but circumstances must exist that would cause a
reasonable person to conclude that [he] [she] was under arrest or not free to leave.
* * * * * *
Wishnatsky v. Bergquist, 550 NW2d 394 (ND 1996) Haggard v. First Nat'l Bank, 8 NW2d 5 (ND 1942)
2005 NDJI-CIVIL C - 11.10
Good Faith
(False Imprisonment)
DELETED
NOTE: This instruction was deleted because the good faith (false imprisonment) instruction is applicable in
additional circumstances, and an instruction must be developed to fit each specific fact pattern.
2005 NDJI-CIVIL C - 14.20
Physician’s Duty to Disclose (Informed Consent)
A physician has a duty to disclose to a patient sufficient information to permit a patient to
make an informed and intelligent decision on whether to submit to a proposed course of
treatment or surgical procedure. This is called informed consent.
In providing informed consent for a medical procedure, a physician should disclose the
diagnosis, the general nature of the contemplated procedure, the material risks involved
in the procedure, the probability of success associated with the procedure, the prognosis
if the procedure is not carried out, and the existence and risks of any alternatives to the
procedure.
A physician is required to disclose material risks, not all risks. In determining whether risks
are material, a physician is not required to inform a patient of risks that are so remote as
to be negligible, even where the consequences may be severe. The physician is not
required to inform the patient of a very minor consequence even though the probability is
high. And, there is no duty to disclose risks that are common knowledge as inherent in the
treatment. A risk is material if a reasonable patient would consider it in deciding on
medical treatment.
A duty to disclose can arise only if the physician knew or should have known of the risk to
be disclosed.
* * * * *
Flatt v. Kantak, 2004 ND 173, 687 NW2d 208 Koapke v. Herfendal, 2003 ND 64, 660 NW2d 206 (dentist) Jaskoviak v. Gruver, 2002 ND 1, 638 NW2d 1 Kershaw v. Reichert, 445 NW2d 16, 17 (ND 1989) Buzzell v. Libi, 340 NW2d 36 (ND 1983) Winkjer v. Herr, 277 NW2d 579 (ND 1979)
NOTE: A causation instruction will also need to be given. See Kaopke v. Herfendal, 2003 ND 64, 660 NW2d
206. Expert testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of
occurrence, and reasonable alternatives. Expert testimony is particularly necessary when such information
is outside the common knowledge of the general public. See Flatt, 204 ND at ¶ 7, 687 NW2d at 212; and
Winkjer, 277 NW2d at 588.
2005 NDJI-CIVIL C - 14.25
Patient's Duty
DELETED
NOTE: See C - 14.50, Malpractice (Duty of Patient)
2005 NDJI-CIVIL C - 14.50
Malpractice
(Duty of Patient)
A patient may rely on the professional skill and advice of the [physician]. A patient need
not call in others, including other physicians, to determine whether the physician really
possesses the necessary skill or judgment or that the treatment is proper, unless the
patient becomes fully aware that the treatment given or prescribed is improper.
A patient, while exercising ordinary care, is required to listen to and cooperate in a
reasonable manner with the physician and to disclose truthfully to the physician material
and significant information about the patient’s physical condition or habits when requested
to do so by the physician and to follow the reasonable advice and direction of the [hospital]
[and] [physician] with respect to the treatment prescribed. If the patient negligently [or
willfully] fails to do so, or is otherwise negligent, you may consider that as evidence of fault
of the patient.
* * * * *
Miller v. Trinity Medical Ctr, 260 NW2d 4 (1997) (discusses diminished mental capacity of a patient affecting
patient's duty) Benedict v. St. Luke's Hosp., 365 NW2d 499 (ND 1985) Halvorson v. Zimmerman, 232 NW 754 (ND 1930)
McDonnell v. Monteith, 231 NW 854 (ND 1930)
NOTE: This instruction should be used only if the fault of a patient is asserted as a defense and is otherwise
appropriate.
2003 NDJI-CIVIL C - 18.00
Loss of Consortium
DELETED
NOTE: In 2005, this instruction was relocated to the damages section, NDJI C - 70.37.
2005 NDJI-CIVIL C - 23.00
Wrongful Death
If the death of a person is proximately caused by the fault of another, [the heirs at law] of
the decedent are entitled to seek damages.
* * * * *
NDCC 32-21-01
2005 NDJI-CIVIL C - 40.40
Gift of Personal Property
A "gift" is a transfer of personal property made voluntarily and without consideration.
To constitute a valid, effective gift, given while the donor is alive, there must be an intention
on the part of the donor then and there to transfer ownership of the property to the donee,
coupled with an actual or constructive delivery of the property of a nature sufficient to
divest the donor of exclusive possession and control of the property and to invest the
donee with the interest divested. To have the effect of a valid gift, the transfer of
possession and title must be absolute and go into immediate effect, so far as the donor
can make it so by intent and delivery, and must be so complete that if the donor again
resumes control over it without consent of the donee, the donor becomes liable as a
trespasser.
[An oral gift is not valid unless the means of obtaining possession and control of the
property are given. If the property is capable of delivery, there must also be an actual or
symbolic delivery of the property to the donee.]
If a transfer is unaccompanied by any condition to be performed by the donee, acceptance
of the gift is presumed[.] [,especially where the gift is from parent to child and operates
entirely for the donee's benefit. There is a rebuttable presumption of a gift when a parent
pays for property that is transferred to a child.]
* * * * *
NDCC 47-11-06, 47-11-14 - 16
In re Estate of Paulson, 219 NW2d 132 (ND 1974) In re Kaspari's Estate, 71 NW2d 558 (ND 1955) Lindvig v. Lindvig, 385, N.W. 2d (ND 1986) Kohler v. Flynn, 493 N.W.2d 647 (ND 1992) Durward v. Nelson, 481 N.W.2d (ND 1992)
2003 NDJI-CIVIL C - 70.37
Loss of Consortium
When a [wife] [husband] [child] is injured [her husband] [his wife] [his/her parents] may also
have a claim. The [husband’s] [wife’s] [parents’] claim for damages may include:
1) the loss of the [wife’s] [husband’s] [child’s] services and companionship [he] [she]
[the parents] would have received in the course of [married life] [childhood] up to the date
of trial.
2) the value of [wife’s] [husband’s] [child’s] services and companionship [he] [she]
[the parents] [is] [are] reasonably certain to lose in the future [during childhood].
* * * * *
NDCC 14-02-01
Wald v. City of Grafton, 442 NW2d 910 (ND 1989) Jacobs v. Anderson Bldg. Co., 430 NW2d 558 (ND 1988) First Trust Co. v. Scheels Hardware, 429 NW2d 5 (ND 1988) Hopkins v. McBane, 427 NW2d 85 (ND 1988) Milde v. Leigh, 28 NW2d 530 (ND 1947), 173 ALR 738
Cf. Hastings v. James River Aerie No. 2337 - Fraternal Order of Eagles, 246 NW2d 747 (ND 1976)
2005 NDJI-CIVIL C - 72.00
Exemplary or Punitive Damages
If you find by clear and convincing evidence that the Defendant acted with [oppression]
[fraud] [or] [actual malice] as defined in these instructions, then you may, in your discretion,
award a reasonable sum as exemplary or punitive damages. These damages are different
from the damages awarded to compensate for an injury or loss. These damages permit
you to make an example to others or to punish a wrongdoer.
If you decide to use your discretion to award a reasonable sum as exemplary or punitive
damages, then you must also find by clear and convincing evidence that:
1) the amount awarded bears a reasonable relationship to any harm that is likely
to result from the Defendant’s conduct and any harm that actually has occurred; and
2) the amount awarded is consistent with the degree of reprehensibility of the
Defendant’s conduct and its duration.
[Further, in considering an award of exemplary or punitive damages, you may also
consider:
1) the extent to which the Defendant was aware of the conduct or concealed it;
2) the extent to which the Defendant profited from the conduct and whether or not
it would be desirable to remove that profit or have the Defendant also sustain a loss;
3) the extent to which the Defendant has already been punished for the same
conduct by criminal sanctions.]
* * * * *
NDCC 32-03.2-11(5)
Ehrman v. Feist, 1997 ND 180, 568 NW2d 747 Continental Casualty Co. v. Kinsey, 499 NW2d 574 (ND 1993) Stoner v. Nash Finch, Inc., 446 NW2d 747 (ND 1989) Napoleon Livestock Auction, Inc. v. Rohrich, 406 NW2d 346 (ND 1987)
NOTE: The Court should instruct the Jury with the bracketed language as warranted by the evidence. A
specific finding is required.
See also: NDJI C- 72.02, Exemplary Damages - Compensatory Damages Required; NDJI C - 72.04,
Exemplary Damages (Products Liability); NDJI C - 72.10, Oppression; NDJI C - 72.12, Fraud as a Basis for
Exemplary Damages; and NDJI C - 72.16, Actual Malice.
For a discussion of due process concerns relating to consideration of out-of-state and dissimilar acts
evidence, and amount of exemplary damages see State Farm Mutual Ins. Co. v. Campbell, 538 US 408, 421-25, 123 SCt 1513, 1522-25 (2003).
2005 NDJI-CIVIL C - 72.16
Actual Malice
The term "malice" means an intent with ill will or wrongful motive to harass, annoy, or injure
another person.
Actual malice is the actual state or condition of the mind of the person who did the act.
Direct evidence of actual malice is not required. Rather, the character of the act itself, with
its surrounding facts and circumstances, may be inquired into for the purpose of
ascertaining the motive or purpose which influenced the mind of the party in committing
the act. Thus, upon the consideration of these, if that motive is found to be improper and
unjustifiable, the law authorizes the jury to find it was malicious.
* * * * *
NDCC 32-03.2-11(1)
Ingalls v. Paul Revere Life Ins. Group, 1977 ND 43, 561 NW2d 273 McLean v. Kirby Co., 490 NW2d 229 (ND 1992) Stoner v. Nash Finch, Inc., 446 NW2d 747 (ND 1989)
2005 NDJI-CIVIL C - 73.00
Measure of Damages (Benefit of the Bargain)
The measure of damages is the amount which will compensate for all damage proximately
caused by a specific misrepresentation, whether the damage could have been anticipated
or not.
This amount is the difference, if any, between the value of [the property] as represented
and the actual value of [the property].
The difference, if any, is to be measured as of the time the representation was made.
Whether the contract thereafter performed well or badly is not to be considered by you in
determining the damages, if any.
* * * * *
NDCC 32-03-20; 9-10-02
Eckmann v. Northwestern Fed. Sav. & Loan Ass’n, 436 NW2d 258, 261 (ND 1989) Guild v. More, 155 NW 44, 49 (ND 1915) Gunderson v. Havana-Clyde Mining Co., 133 NW 554, syl. 2, 555-56 (ND 1911) Sonnesyn v. Akin, 104 NW 1026, 1029 (ND 1905) Beare v. Wright, 103 NW 632, 633-35 (ND 1905) Fargo Gas & Coke Co. v. Fargo Gas and Elec. Co., 59 NW 1066, 1069 (ND 1894)
2005 NDJI-CIVILC - 74.00
Measure of Damages
(Contracts in General)
The measure of damages for breach of contract is the amount which will compensate for
all the damage proximately caused by the breach or which, in the ordinary course of things,
would be likely to result from the breach.
Damages must be limited to those damages the parties entering into the contact actually
anticipated or which were so probable and natural the damages would reasonably have
been anticipated. No damages can be recovered for a breach of contract if the damages
are not clearly ascertainable in both their nature and origin.
Damages must be reasonable and may not be more than the amount that would have
been gained by the full performance of the contract.
* * * * *
NDCC 32-03-09, 32-03-36
Wachter v. Gratech Co., Ltd., 2000 ND 62, 608 NW2d 279 Leingang v. City of Mandan Weed Bd., 468 NW2d 397, 398 (ND 1991) Swain v. Harvest States Coop., 469 NW2d 571, 573 (ND 1991) Vallejo v. Jamestown College, 244 NW2d 753, 759 (ND 1976)
2005 NDJI-CRIMINAL K - 5.42
Defendant Not Testifying
The Defendant has a constitutional right not to testify. You must not draw any inference
of guilt from the Defendant’s silence. The prosecutor cannot mention the Defendant’s
silence, and you must not discuss or consider it.
* * * * *
State v. His Chase, 531 NW2d 271 (ND 1995) State v. Skjonsby, 319 NW2d 764 (ND 1982) State v. Nordquist, 309 NW2d 109 (ND 1981)
2005 NDJI-CRIMINAL K - 7.23
Luring Minors by Computer
An adult who knows the character and content of a computer communication that, in whole
or in part, implicitly or explicitly discusses or shows actual or simulated [nudity] [sexual
acts] [sexual contact] [sadomasochistic abuse] [or other sexual performances] and uses
any computer communication system allowing inputting, outputting, examining, or
transferring any and all information contained on a computer from one computer to another
to initiate or engage in this kind of communication with a person the adult believes is a
minor; and
Through the communication, the adult importunes, invites, or induces a person the adult
believes is a minor [to engage in sexual acts or to have sexual contact with the adult] [to
engage in a sexual performance, obscene sexual performance, or sexual conduct for the
adult’s benefit, satisfaction, lust, passions, or sexual desires] is guilty of an offense.
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,
_______________ knowingly;
2) Made a communication that, in whole or in part, implicitly or explicitly discussed
or depicted actual or simulated [nudity] [sexual acts] [sexual contact] [sadomasochistic
abuse] [or other sexual performances];
3) Used a computer communication system that allowed the input, output,
examination, or transfer of computer data or computer programs from one computer to
another to initiate or engage in this type of communication;
4) To communicate with _______________ whom the Defendant,
_______________, believed was a minor; and
5) Through this communication, the Defendant, _______________, importuned,
invited, or induced _______________ to engage in sexual acts with the Defendant, to have
sexual contact with the Defendant, or to engage in a sexual performance, obscene sexual
performance, or sexual conduct for the Defendant’s’s benefit, satisfaction, lust, passions,
or sexual desires.
[6) The Defendant was an adult twenty-two years old or older and reasonably
believed the minor was fifteen years of age or younger.] DEFINITIONS
[Insert relevant definitions. NDCC 12.1-20-02 (sexual acts, sexual contact), 12.1-27.2-01
(simulated, obscene sexual performance, sexual performance), 12.1-27.1-03.1 (nudity),
12.1-27.1-01 (sadomasochistic abuse, sexual conduct), 14.10-01 (minor).]
* * * * *
NDCC 12.1-20-05.1
NOTE: The bracketed language of paragraph 6 should be used if a class C felony is charged; otherwise
the offense is a class A misdemeanor.
A person who creates a substantial risk of serious bodily injury or death to another human
being under circumstances manifesting extreme indifference to the value of human life is
guilty of Reckless Endangerment. There is risk if the potential for harm exists, whether or
not a particular person’s safety is actually jeopardized.
ESSENTIAL ELEMENTS OF OFFENSE
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant,
_______________, created a substantial risk of serious bodily injury or death to
_______________;
2) The Defendant created the risk under circumstances manifesting extreme
indifference to the value of human life; and
3) The Defendant engaged in the conduct recklessly.
State v. Jaster, 2004 ND 223, 690 NW2d 213 State v. Hanson, 256 NW2d 364 (ND 1977)
2005 NDJI-CRIMINAL K - 8.22
Reckless Endangerment
[If you find the Defendant not guilty of the crime of Reckless Endangerment Under
Circumstances Manifesting Extreme Indifference to the Value of Human Life, then you
must consider whether the Defendant is guilty of the lesser included offense, Reckless
Endangerment.]
A person who creates a substantial risk of serious bodily injury or death to another human
being is guilty of Reckless Endangerment. There is risk if the potential for harm exists,
whether or not a particular person’s safety is actually jeopardized.
ESSENTIAL ELEMENTS OF OFFENSE
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant,
_______________, created a substantial risk of serious bodily injury or death to
_______________; and
2) The Defendant engaged in the conduct recklessly.
State v. Jaster, 2004 ND 223, 690 NW2d 213 State v. Hanson, 256 NW2d 364 (ND 1977)
NOTE: Omit the bracketed paragraph if the Defendant is not charged with Reckless Endangerment
Under Circumstances Manifesting Extreme Indifference to the Value of Human Life.
2005 NDJI-CRIMINAL K - 8.95
Encouraging or Contributing to the Delinquency or Deprivation of a Minor
Any person, who by any act, willfully encourages, causes, or contributes to the delinquency
or deprivation of a minor is guilty of an offense.
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,
_______________, by any act willfully encouraged, caused, or contributed to the
delinquency or deprivation of _______________; and
2) _______________ was a minor. DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02 (It is not clear that the definition of “willfully”
in NDCC Title 12.1 is applicable to NDCC Title 14.), 27-20-02(6) (delinquency), 27-20-02(8)
(deprivation), 14-10-01 (minor).]