PATTERN JURY INSTRUCTION COMMISSION
MARCH 2000 MEETING
The Pattern Jury Instruction Commission met Thursday, March 2, 2000, at the Heritage Center, State Capitol, in Bismarck.
MEMBERS PRESENT: B. Blazer, K. Brust, J. McClintock, J. McLees, J. Simonson, D. Vogel, J. Vukelic
MEMBERS ABSENT: J. Hagerty, S. Plambeck, J. Rustad, T. Slorby
GENERAL BUSINESS
Chair Brenda Blazer called the meeting to order. Matt Sagsveen, Law Clerk, was present to assist. The resignation of Steven Lian was announced. He plans to move to North Carolina this summer.
Minutes. Minutes of the October 1999 meeting were reviewed.
Motion to approve: K. Brust
Second: D. Vogel
Approved
Financial Report. The 1999/2001 budget allocation is $23,000. During the first six months of the biennium, the Commission spent %5,221.
Interim Activities.
1. Dr. Doug Peters will continue to work with the mock juries at the UND Law School and will be providing videotapes of the jury discussions for the staff attorney to review.
2. The new Minnesota "plain English" instructions were available for perusal. Dr. Rosemary Parks, a professor of adult education and a specialist in English, assisted with the revisions. A motion to send the staff attorney to a video replay of the CLE seminar on the new JIGs was presented.
Motion to approve: D. Vogel
Second: K. Brust
Approved
3. The contents page for the Damages section is incorrectly numbered in the jury instructions. SBAND has been notified. Errors which are identified can be corrected with the yearly publications.
INSTRUCTIONS
Registration Requirement (Sexual Offenders and Offenders Against Children). J. McClintock noted that previously there had been two instructions on this topic: Registration Requirement (Crimes Against Children) and [Duty to Register] [Duty to Inform] (Sexual Offender), but some changes were necessary due to the new statute, NDCC 12.1-32-15. This statute was reviewed. Whether "[t]he Defendant was required to register" is necessary as an essential element was discussed, i.e, is this a fact question for the jury or will the judge determine whether registration was necessary. It was left as an element because the defendant may question a prior conviction or challenge whether registration was required due to that prior conviction. For imposition of a minimum mandatory sentence on a first offense, a class A misdemeanor, the jury must find that the defendant acted willfully. The State does not have to prove that the defendant acted willfully for a class C felony, that is, failing to register following a prior conviction for this offense. J. McClintock will add a note explaining this. His proposal will be sent to the members before the June meeting so that this instruction can be published in 2000.
Motion for approval with the addition of a note: J. Vukelic
Second: D. Vogel
Approved
Sex Discrimination (Hostile Work Environment. Judge Vukelic had done further research on the question of whether the harassment was based upon the Plaintiff's sex and whether the discrimination was "but for" the Plaintiff's sex. The research is practically universal that the "but for" analysis is correct. Additional language was added: "The sexual harassment was based on the Plaintiff's gender; or in other words, that but for the fact of the Plaintiff's gender, the Plaintiff would not have been the object of harassment." D. Vogel provided additional handouts defining hostile environment, employee's duty regarding claim of sexual harassment, employer's duty regarding a claim of sexual harassment, and employer's liability for sexual harassment by a supervisor. Because North Dakota has not had case law on these expanded topics, the Commission decided to not prepare additional instructions at this time.
Motion to approve: D. Vogel
Second: J. McLees
Approved
Sudden Emergency. Judge Vukelic discussed Ebach v. Ralston, 510 NW2d 604 (ND 1994). What ordinary care is changes depending upon the circumstances. In a sudden emergency, a person will not have the same accuracy of judgment. A motion to approve with gender neutral language was made.
Motion to approve: K. Brust
Second: J. McClintock
Approved
Damages. Judge Vukelic revised the current instruction in order to simplify it. It was suggested that the words "entitled to" be substituted for "liable for."
Motion to approve: K. Brust
Second: J. McClintock
Approved
Comparative Fault. K. Brust presented the proposed instruction. An introductory paragraph explaining that fault does not bar a recovery of damages for death or injury unless the fault was as great as the combined fault of all other persons who contribute to the injury, but that any damages allowed must be diminished in proportion to the amount of fault attributed to the person recovering. Whether this paragraph should be given is a gray area. J. McClintock noted that juries have been confused about the result if the Plaintiff is 51% at fault. Sometimes this information is requested but other times, the lawyers do not do so. It was decided to put the information in a note. The Commission will ask the Board of Governors to request clarification from the legislature at the next session about whether this information should be provided. In Minnesota, the information is in the Rules of Civil Procedure rather than in the jury instructions. It is a concern and is an area that is frequently discussed. The phrase "contributory fault" will be "fault." All references to contributory will be deleted.
Motion to approve: D. Vogel
Second: J. McClintock
Discussion: The works "if so" and "where appropriate" were removed. Whether "without reduction for fault" should be removed was discussed but left in. The Special Verdict form was reviewed and appeared clear. Contributory Negligence and Diminution of Damages Because of Contributory Negligence are to be deleted.
Approved
Momentary Forgetfulness of Danger and Distracting Circumstances. K. Brust discussed these topics with corresponding case law: Keller v. Vermeer Mfg. Co., 360 NW2d 502, 505-06 (ND 1984) and Harfield v. Tate, 598 NW2d 840 (ND 1999). These concepts have survived comparative fault. The ND Supreme Court has cautioned, however, against instructions that unduly emphasize these situations. The Assumption of Risk instructions in products liability and non-products liability should be reviewed. Minnesota recognizes assumption of risk as a total bar. In North Dakota, one can argue that assumption of risk did not survive comparative fault. S. Plambeck will be reviewing Ordinary Negligence. D. Vogel suggested reviewing the fault section to ensure that all of the relevant topics are covered. These instructions will be considered at the October meeting. Harfield will be added as a cite to the Sudden Emergency instruction.
Life Expectancy. J. Simonson reviewed the instruction on Life Expectancy. The former instruction determined life expectancy from the date of the mishap for plaintiffs who died as well as those who survived the mishap. The Commission concured with the proposed instruction which indicates that the life expectancy should be determined from the date of trial for surviving plaintiffs.
Motion to approve: J. McLees
Second: K. Brust
Approved
J. Simonson also prepared a separate Life Expectancy instruction for wrongful death. Whether to use "beneficiaries" instead of "Plaintiff" was discussed. The order of the second and third paragraphs were switched.
Motion to approve: J. Simonson
Second: D. Vogel
Approved
Earning Capacity Definition. S. Lian proposed and prepared an instruction on Earning Capacity Definition. D. Vogel suggested that if earning capacity is defined, other elements in the damages instruction should also be defined. K. Brust noted that earning capacity is a little more unique than some of the other elements which have definitions commonly used. J. McLees will investigate further.
Alternative Findings. B. Blazer reviewed this instruction and suggested that it be deleted as the contents are outdated.
Motion to delete: J. Simonson
Second: J. McLees
Approved
Burden of Proof. Cites will be added to the Burden of Proof instruction before the June meeting so that this instruction can be published this year. D. Vogel noted that Minnesota has a good instruction on burden of proof.
ADMINISTRATIVE DETAILS
The next meeting will be in conjunction with the annual SBAND meeting in Minot.
Assignments.
Registration of Sex Offenders note (J. McClintock)
Burden of Proof cites (D. Vogel)
DUI/APC (T. Slorby)
Ordinary Negligence, Assumption of Risk (products liability, non-products liability),
Distracting Circumstances, Momentary Forgetfulness of Danger (S. Plambeck,
D. Vogel, K. Brust)
Earning Capacity (J. McLees)
Constructive Fraud/Deceit (S. Plambeck)
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2812 B 17th Avenue So.
Grand Forks, ND 58201
(701) 772-0159
e-mail: jkerbesh@medicine.nodak.edu