JURY INSTRUCTION DRAFTS - October 2007
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2008 NDJI-CIVIL C - 11.40
False Arrest and Unlawful Detention by Private Person
A private person may arrest and detain another for a public offense. A "public offense" is a misdemeanor, felony, or infraction. 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.
The law authorizes and permits a private person to arrest another [for a public offense committed or attempted in the arresting person's presence] [when the person arrested has committed a felony even when not committed in the arresting person's presence] [when a felony has been in fact committed, and the arresting person has reasonable grounds to believe the person arrested to have committed it].
A private person, who is attempting to make an arrest of another, must inform the person to be arrested of the intention to arrest him, and of the cause of the arrest. These obligations are excused, however, if the person to be arrested is then engaged in the commission of the offense, or is pursued immediately after its commission, or flees or forcibly resists the person attempting to make the arrest; or, if the giving of such information would imperil the arrest.
If a private person makes an arrest for the commission of a public offence [he][she] is then obligated to deliver the person arrested to a magistrate or law enforcement officer without unnecessary delay. Unnecessary delay is the failure to exercise reasonable diligence in presenting the person arrested to a magistrate or law enforcement officer. It depends on the facts of each case and what would be reasonable under the circumstances.
A person who is arrested may not be subjected to unnecessary or unreasonable force, nor any greater restraint than necessary for the person's detention.
In determining whether [Defendant] lawfully arrested or confined [Plaintiff], the burden of proof is on [Defendant] to show by the greater weight of the evidence that the circumstances for an arrest by a private person existed.
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NDCC 29-06-01, 02(3), 04, 08, 09, 10, 20, 23 & 25.
Wishnatsky v. Bergquist, 550 NW2d 394 (ND1996)
Haggard v. First Nat'l Bank, 8 NW2d 5, 14 (ND 1942)
NOTE: Definitions for misdemeanor, infraction, and felony may need to be given. For arrests by law enforcement officers, see generally NDCC Ch. 29-06.
2008 NDJI-CIVIL C - 16.07
Ice and Snow
The accumulation or presence of ice and snow on property does not in of itself establish fault by a defendant.
[[For injuries on common approaches next to or attached to a building]. A person has a duty to maintain this area of the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury, the seriousness of the injury and the burden of avoiding the risk of injury.]
[[For injuries on premises remote or abutting]. A person has no duty to remove natural accumulations of ice and snow from this area of the property. A person may, however, be a fault for an act or omission that created an unnatural condition on this area of the property that is unreasonably dangerous or more hazardous due to that person=s conduct.]
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Makeeff v. City of Bismarck, 2005 ND 60, 693 NW2d 639
Fast v. State, 2004 ND 111, & 12, 680 NW2d 265
Green v. Mid Dakota Clinic, 2004 ND 12, & 8, 673 NW2d 257
Skjervem v. Minot State University, 2003 ND 52, 658 NW2d 750
Note: The Court will have to decide what bracketed language to give based on where the injury occurred. This instruction may not cover all circumstances. In cases where there is a question of fact as to where the injury occurred, the Court may need to give a special interrogatory to determine which duty applies. For claims involving injuries to persons occurring on municipally owned streets or sidewalks, see NDJI C-16.10 (2006) and NDCC 40-42-05. For injuries occurring on a street or a public sidewalk abutting State-owned property, see NDJI C-16.09.
2008 NDJI-CIVIL C B 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
The State of North Dakota [or name of state agency] is not at fault for accumulation of snow and ice upon a [highway] [street] [public sidewalk that does not abut a state owned [building][parking lot]], unless the condition is affirmatively caused by the negligent act or omission of a state employee.
A condition is affirmatively caused by a state employee if the employee by an act or omission creates an unnatural condition that is unreasonably dangerous or more hazardous.
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NDCC 32-12.2-02(3)(i)
Fast v. State, 2004 ND 111, 680 NW2d 265
Skjervem v. Minot State University, 2003 ND 52, 658 NW2d 750
Note: For claims involving injuries to persons occurring on sidewalks and in other areas abutting a state owned building or parking lot, see NDJI C-16.07 (2006).
2008 NDJI-CIVIL C - 16.10
Liability of Municipality for Damages Caused by [Snow and Ice]
[Frost or Loose Snow] on [Sidewalk] [Crosswalk]
A municipality is not at fault for damages or injuries suffered or sustained by reason of accumulation of snow and ice upon a [sidewalk] [crosswalk] within the municipality unless the executive officer, the governing body [city council] [city commission], [or] a police officer of the municipality had actual knowledge of the defective, unsafe, or dangerous condition of the [sidewalk] [crosswalk] at least forty-eight (48) hours prior to the damage or injury.
Actual knowledge of the defective condition is not presumed and may not be inferred from the fact that the condition existed. It must be proved as an independent fact.
However, if the municipality had actual knowledge of the existence of the condition, you are free to decide whether snow and ice were present at the time of the mishap in such form as to be a proximate cause of the Plaintiff's injuries.
[A municipality is not at fault for damages or injuries occasioned through the mere slippery condition of the [sidewalk] [crosswalk] due to the presence of frost or loose snow.]
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NDCC 40-42-05 (statute specific to municipalities only)
Haugen v. City of Grand Forks, 187 NW2d 68 (ND 1971)
NOTE: For situations involving snow and ice on stairways and sidewalks abutting municipally owned buildings, see Makeeff v. City of Bismarck, 2005 ND 60, 693 NW2d 639. For claims involving injuries occurring in other areas which are not sidewalks or crosswalks, of a municipality, see C-16.07.
2008 NDJI-CIVIL C B 21.42
Extended Use
For a [manufacturer][seller] to be at fault, the alleged defect in the product must have existed at the time the [manufacturer][seller] sold it. You may, but are not required to, infer from normal, extended, and problem-free use of the product, that the product was not defective at the time of sale. You may not make this inference when the alleged defect would only appear later, or upon the happening of non-routine events.
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Speiker v. Westgo, Inc., 479 NW2d 837 (ND 1992)
Air Heaters, Inc. v. Johnson Electric, Inc., 258 NW2d 649 (ND 1977)
2008 NDJI-CIVIL C B 80.39
Preceding a View
The Court has granted a request for you to view the _____. This viewing is to help you understand the evidence received during the trial and assist you in weighing the evidence and determining the credibility of witnesses.
You will be escorted to the _______ by the bailiffs under the direction of the Court. You must not communicate with each other on any subject connected with the trial. No person other than the person appointed by the Court may communicate with you on any subject connected with the trial.
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NDCC 28-14-15
Schmitt v. Northern Imp. Co., 115 NW2d 713 (ND 1962)
2008 NDJI-CIVIL C - 80.40
After a View
You have been permitted to view the _____ involved in this case solely to help you understand the evidence received during the trial and to assist you in weighing the evidence and determining the credibility of witnesses. A view of the ____ does not allow you to consider matters outside the evidence received in Court.
While you need not shut your eyes to what you see when a view is allowed by the Court, your verdict must be within the limits of the evidence received. Your verdict cannot rest alone upon your view of the __________.
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NDCC 28-14-15
Schmitt v. N. Improvement Co., 115 NW2d 713, 720 (ND 1962)
NOTE: See C - 80.39 for an instruction to give before the view
2008 NDJI-CIVIL C - 80.60
Presumption
Presumptions take the place of evidence. The following presumption has been asserted by [insert party's name]: [Insert appropriate presumption language].
Before a presumption can be assumed to exist, you must determine whether [name of party proposing the presumption] has proven the facts giving rise to the presumption by the greater weight of evidence. The facts necessary to establish the existence of the presumption being asserted are as follows: [insert fact that needs to be proven]].
[(For a conclusive presumption, see N.D.C.C. ' 31-11-02) [If these facts have been established by a greater weight of the evidence, this presumption is assumed to be true by law. Since this presumption cannot be disputed, you must assume it to be true.]]
[(For a disputable presumption, see N.D.C.C. '31-11-03) [If these facts have been established by a greater weight of the evidence, this presumption is assumed to be true by law, unless [the party opposing the presumption] can establish by the greater weight of evidence that it is not true.]
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NDCC 31-11-02, 31-11-03
NDREv 301
Western Tire, Inc. v. Skrede, 307 NW2d 558 (ND 1981)
Fancher v. North Dakota Workmen's Comp. Bureau, 123 NW2d 105 (ND 1963)
Dick v. New York Life Ins., Co., 359 USs 444, 29 SCt 921, 925, 3 LEd 2d 935 (1959)
Note: A presumption may be conclusive or disputable. For criminal cases, see NDREv 303, NDCC 12.1-01-03, and NDJI K-5.08, Presumption.
2008 NDJI-CIVIL C - 80.62
Presumption of Ordinary Care (Death Case)
DELETED, see NDJI C-80.60.
2008 NDJI-CIVIL C - 80.64
Presumption of Ownership From Brand
DELETED. It does not appear to the Committee that NDCC 36-09-19, creates a presumption.
2008 NDJI-CIVIL C - 80.66
Presumption of Fair Market Value
(Deficiency Judgment)
(Without Notice and/or Commercial Reasonableness)
After default, if a secured creditor disposes of collateral (property pledged by the debtor to secure payment of a debt) by sale, lease, license, or otherwise, in a manner that is commercially unreasonable or fails to give the debtor advance notice of the intended disposition, it is presumed that the fair market value of the collateral is equal to the unpaid debt. Accordingly, the secured creditor cannot recover a deficiency judgment against the debtor unless the creditor overcomes that presumption by proving by the greater weight of the evidence that the fair market value of the collateral was less than the unpaid debt. A creditor who meets that burden is entitled to a deficiency judgment for the lesser of the difference between 1) the unpaid debt and the fair market value of the collateral sold, and 2) the unpaid debt and the amount received upon disposition of the collateral.
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NDCC 41-01-19 (1-305), 41-09-107 (9-610), 41-09-108 (9-611)
Oliver-Mercer Elec. Coop. v. Davis, 2004 ND 86, 678 NW2d 757
2008 NDJI-CIVIL C - 80.67
Presumption of Fair Market Value
(Deficiency Judgment)
(With Notice and Commercial Reasonableness)
After default, if a secured creditor disposes of collateral (property pledged by the debtor to secure payment of a debt) by sale, lease, license, or otherwise, in a manner that is commercially reasonable and provides advance notice of the intended disposition, the creditor is entitled to a deficiency judgment of an amount equal to the difference between the debt and the amount received from the disposition.
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NDCC 41-01-19 (1-305), 41-09-107 (9-610), 41-09-108 (9-611)
Oliver-Mercer Elec. Coop. v. Davis, 2004 ND 86, 678 NW2d 757
2008 NDJI-CRIMINAL K B 2.40
Preceding a View
The Court has granted a request for you to view the _____. This viewing is to help you understand the evidence received during the trial and assist you in weighing the evidence and determining the credibility of witnesses.
You will be escorted to the _______ by the bailiffs under the direction of the Court. You must not communicate with anyone, and no one may communicate with you, about any subject connected with the trial.
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NDCC 29-21-26
State v. Schlickenmayer, 334 NW2d 196, 199-200 (ND 1983)
State v. Rohrich, 135 NW2d 175, 180 (ND 1965)
NOTE: NDCC 29-21-26, requires that the bailiffs Amust be sworn to suffer no person to speak to, nor communicate with the jurors, nor to do so themselves, on any subject connected with the trial, and return them into court without unnecessary delay or at a specified time.@ This section also requires that the trial judge must be present and the state=s attorney and counsel for the defendant may be present at the view by the jurors.
2008 NDJI-CRIMINAL K - 5.08
After a View
You have been permitted to view the _____ involved in this case solely to help you understand the evidence received during the trial and to assist you in weighing the evidence and determining the credibility of witnesses. A view of the ____ does not allow you to consider matters outside the evidence received in Court.
While you need not shut your eyes to what you see when a view is allowed by the Court, your verdict must be within the limits of the evidence received. Your verdict cannot rest alone upon your view of the ________.
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NDCC 29-21-26
State v. Schlickenmayer, 334 NW2d 196, 199-200 (ND 1983)
State v. Rohrich, 135 NW2d 175, 180 (ND 1965)
2008 NDJI-CRIMINAL K - 5.18
Presumption
A presumption is an inference of a fact not certainly known, which the law expressly directs to be drawn from particular facts or circumstances in the case. It substitutes for evidence and governs you in finding the facts unless it is disproved (meaning that the contrary has been established by credible evidence or if, from the evidence, you have a reasonable doubt as to the existence of the presumed fact), in which event the presumption is rebutted and ceases to operate. Although the evidence as a whole must establish the presumed fact beyond a reasonable doubt, you may so find on the basis of presumption alone, because the law regards the facts giving rise to the presumption as strong evidence of the fact presumed.
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NDCC 12.1-01-03; 31-11-03
City of Dickinson v. Gresz, 450 NW2d 216 (ND 1989)
State v. Trieb, 315 NW2d 649 (ND 1982)
State v. Sheldon, 301 NW2d 604 (ND 1980)
Sandstrom v. Montana, 442 US 510, 99 SCt 2450, 61 LEd2d 39 (1979)
NOTE: This instruction will likely be preceded by a specific instruction that outlines a statutory presumption. Examples of statutory presumptions are found in NDCC 12.1-28-01, 14-07-17, and 36-12-04. Caution should be exercised in determining whether to instruct the Jury on a statutory presumption that in effect presumes guilt from specified circumstances. Presumptions of this sort have been held to be a denial of due process of law because they operate to countermand the fundamental presumption of innocence and cast the burden on the Defendant to disprove his guilt.
2008 NDJI-CRIMINAL K B 7.96
Presence of Sexual Offender Near School
A sexual offender may not knowingly enter upon the real property comprising a [public] [nonpublic] [elementary] [middle] [high] school unless through compliance with a written policy of the [school board of a public school] [governing body of a nonpublic school].
Definitions
A Asexual offender@ is a person who has pled guilty or been found guilty of or has been adjudicated delinquent of a Class A misdemeanor or felony sexual offense against a minor or is required to register as a sex offender.
Essential Elements of Offense
The burden of proof resting upon the State is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged:
(1) That on or about the ______ day of _______, 20__, in __________ County, North Dakota, the Defendant, _________________, knowingly did enter upon the real property of a [public] [nonpublic] [elementary] [middle] [high] school; and
(2) At the time of such entry the Defendant was a sexual offender; and
(3) The entry was not through compliance with a written policy adopted by the [school board of a public school] [governing body of a nonpublic school].
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NDCC 12.1-20-25