PATTERN JURY INSTRUCTION COMMISSION June 11, 2002 Radisson Hotel, Bismarck, ND The Pattern Jury Instruction Commission met June 11, 2002 at the Radisson Hotel, Bismarck in conjunction with the annual State Bar Association of North Dakota meeing. MEMBERS PRESENT: B. Beehler, J. Bekken, B. Blazer, J. Greenwood, J. McClintock, J. McLees, S. Plambeck, T. Purdon, J. Simonson MEMBERS ABSENT: K. Brust, J. Rustad, T. Slorby GENERAL BUSINESS Chair S. Plambeck called the meeting to order. Minutes: Minutes of the March meeting were reviewed. Motion to approve: J. Simonson Second: J. McClintock Approved Financial Report: The 2001-03 budget is $24,697. Through the end of April, which completes 42 per cent of the biennium, the Commission spent $10,343, 42 per cent of their budget. Approval of Instructions to be Published in 2002 2002 NDJI CRIMINAL K - 3.01 Additional Element of Offense - Nonexistence of Defense K - 3.06 Lack of Criminal Responsibility as a Defense K - 5.35 Motive K - 5.46 Dangerous Special Offender (Bifurcated Trial) K - 8.11 Assault (New instruction) K - 13.01 Obstruction of Government Function (Defense) K - 13.05 Preventing Arrest or Discharge of Other Duties K - 13.08 Preventing Arrest or Discharge of Other Duties (Misdemeanor Arrest) K - 13.10 Preventing Arrest or Discharge of Other Duties (Defense) K - 18.30 Issuing a [Check] [Draft] [Electronics Fund Transfer] [Order] Without Sufficient Funds or Credit (New) K - 22.00 Unlawful Possession of Drug Paraphernalia K - 22.05 Unlawful Manufacture or Delivery of Drug Paraphernalia K - 22.10 Unlawful Delivery of Drug Paraphernalia to a Minor K - 22.15 Unlawful Advertisement of Drug Paraphernalia K - 22.42 Possession J. Geenwood noted that he was going to do further research for Dangerous Special Offender (Bifurcated Trial) to define several of the terms used. The instruction as drafted will be published this year with additions, if available, at a later date. Motion to approve the 2002 criminal instructions: B. Blazer Second: J. McClintock Approved 2002 NDJI CIVIL C - 1.41 Burden of Proof - Clear and Convincing C - 2.05 Negligence C - 2.06 Evidence of Compliance or Non-Compliance With Statute C - 2.30 Malice C - 2.75 Assumption of Risk C - 2.76 Momentary Forgetfulness of Danger C - 3.60 Duty of Driver to Keep Lookout (Railroad Crossing) C - 3.80 Duty of Passenger C - 3.82 Assumption of Risk (By Passenger) (Deleted) C - 3.84 Wrongdoing of Driver Not Imputed to Passenger C - 16.18 Duty of Care Owed by School Authorities C - 18.00 Loss of Consortium C - 21.35 Assumption of Risk (Strict Products Liability) (Deleted) C - 68.02 Comparative Fault C - 70.47 Life Expectancy (Wrongful Death) C - 70.50 Life Expectancy (Personal Injury) C - 72.00 Exemplary Damages C - 72.08 Exemplary Damages (Duty of Insurer) (Deleted) C - 72.14 Malice (Deleted) C - 72.16 Actual Malice (Reviewed with no changes) C - 72.17 Malice of Corporate Officers C - 90.56 Special Verdict Form The complete title of C - 90.56, Special Verdict Form is Special Verdict Form - Suggested. J. Simonson commented that all of the instructions are suggested and having "Suggested" in the title is unnecessary. Motion to delete "Suggested" from the title of C - 90.56: J. Simonson Second: B. Blazer Approved The Actual Malice instruction was reviewed with no changes. The Commission discussed how to indicate this. The staff attorney had requested information from other states. Many publish additions in supplements. New Jersey puts the date of adoption by each, e.g., 3/91 and then adds the date of any revision, e.g, Adopted 3/11; Revised 10/00. J. Greenwood noted that there is a difference between "reviewed" and "reviewed with changes," that is, revised. Traditionally whenever there has been a modification to an existing instruction, it has been republished with the year of publication with the title. J. Greenwood commented that this may be confusing as the year may suggest that it is the year the instruction was developed, not when any revision was done. Because it would be very difficult to change the format of the instructions already published, the Commission decided to just make a new notation for the ones that are reviewed with no changes. Whether this is necessary was discussed. T. Purdon noted that when an instruction has an older year, users may think that it has not been updated in some time and that they have to check for more current information. The Commission had decided to review all 1985-86 instructions for language and accuracy of cites, and because there are instructions that will not be changed, this is a situation which has not arisen before. Motion to format the title indicating the original year and an additional year only when indicating that the instruction has been reviewed with no changes made: T. Purdon Second: J. Greenwood Approved Reviewing several civil instructions, S. Plambeck noted that some of the words are not consistent with other changes that are being made, e.g., using "wrongful conduct" instead of "fault." And, the conduct is only evidence of fault and not fault, e.g., a passenger not protesting or warning the driver of a dangerous situation is evidence of fault when considering the duty of a passenger. He mentioned comments in Oanes v. Westgo, Inc.. A motion was made to change this language. T. Purdon noted that instructions need to be publicized for comments before publication. If there are changes made, can the instruction be published this year? The Commission agreed that minor changes could be made but that any substantive changes needed to be discussed, a draft approved, and an opportunity for comments. There were several instructions tabled last June for further discussion. Because publication is once yearly, it was suggested that the instructions be published with discussion and possible changes to follow next year. S. Plambeck will review these for October. Motion to approve the 2002 civil instructions: J. McClintock Second: B. Blazer Approved Additional Instructions K - 13.00s: J. Greenwood has been reviewing this section. K - 13.00 has a new cite to State v. Tipler. K - 13.01, 13.05, 13.08, and 13.10 were approved in the 2002 Criminal list. K - 13.15 had "knowingly " removed. K - 13.20 defines a class B misdemeanor for aiding consummation of a crime. K - 13.21 is a proposed new instruction which defines a class A misdemeanor for aiding consummation of crime. K - 13.22 adds information about conduct constituting a class A or B felony when aiding consummation of crime. J. Bekken commented that when stating the offense for the jury, the level of the offense does not need to be stated. Whether it would make a difference in the level if the person were acquitted or convicted was asked. Motion to table K - 13.15, 13.20, 13.21, and 13.22 for further discussion and to approve K - 13.00: T. Purdon Second: B. Beehler Approved C - 3.00s: B. Beeher reviewed the 1985-86 instructions in this section. C - 3.01, 3.22, 3.24 and 3.50 had typographical corrections. No changes were made to 3.05, 3.20, 3.26, 3.28, 3.32, 3.34, 3.38, 3.40, 3.42, 3.44, 3.46, 3.48, 3.52, 3.54, 3.56, 3.58, 3.62, 3.66, and 3.82. Motion to approve as reviewed: T. Purdon Second: B. Blazer Approved Intentional Interference with Contract: J. Simonson presented a proposed Intentional Interference with Contract. He cited elements from Baty v. Protech Ins. Agnecy, 2002 Tex. App. and elements from a North Dakota case defining interference with a business relationship. S. Plambeck suggested that the conduct inducing the breach of contract must be wrongful. There is currently no intruction on intentional interference with contract or interference with a business relationship. These two tort claims have been recognized in North Dakota. Motion to table this instruction for further discussion: J. McClintock Second: T. Purdon Approved ADMINISTRATIVE DETAILS Membership: Retiring members J. Simonson, J. McLees, and B. Blazer were thanked. J. Bekken indicated that J. Haskell will be joining the Commission. Other new members will be announced after the June SBAND meeting. Assignments The next meeting will be October 3rd and 4th. Review of 2002 Civil instructions for consistency with fault definitions (S. Plambeck) Aiding Consummation of Crime and Hindering Law Enforcement (J. Greenwood) Completion of C - 3.00s (3.03, 3.05, 3.12, 3.14, 3.16, 3.30, 3.32, 3.36, 3.64 (B. Beehler) Intentional Interference with Contract (J. McClintock) Bad Faith (tort) (T. Purdon) Loss of Consortium (K. Brust) Carrying a Concealed Weapon (J. Rustad) Accidents Involving Death or Personal Injuries - Elements of the Offense (J. Rustad) Special Offenders (review legislative history for definitions) (J. Greenwood) Malice of Corporate Officers (to be assigned) Additional Element of Offense - Nonexistence of Defense (possible note - J. Bekken) Constructive Possession (possible note about minors in possession - J. Bekken) Review of 1986 Instructions CIVIL CRIMINAL Introductory Instructions (J. Rustad) Introductory Instructions (J. Rustad) Tort Liability (tba) Special Situations (J. Rustad) Miscellaneous Torts (tba) Defenses (J. Bekken) Wills and Gifts (J. McClintock) Affirmative Defenses (J. Bekken) Contracts (S. Plambeck) Closing Instructions (tba) Legal Entities (S. Plambeck) Homocide (T. Purdon) Damages (S. Plambeck) Sex Crimes (T. Purdon) Eminent Domain (J. McClintock) Other Personal Crimes (tba) Evidence (S. Plambeck) Robbery and Trespass (tba) Closing Instructions (K. Brust) Damage to Property (tba) Verdict Forms (K. Brust) Theft (J. Greenwood) ) Public Crimes (J. Greenwood and tba) Respectfully submitted, Lynn A. Kerbeshian Staff Attorney 2575 So. 35th St. Grand Forks, ND 58201 (701) 775-7384 e-mail: NDPJI@yahoo.com or jkerbesh@medicine.nodak.edu