PATTERN JURY INSTRUCTION COMMISSION
October 3, 2002
Sakakawea Room, State Capitol Building, Bismarck, ND
The Pattern Jury Instruction Commission met October 3, 2002 at the State Capitol Building.
MEMBERS PRESENT: J. Bekken, L. Boschee, A. Boucher, K. Brust, J. Hagerty, J. Haskell, J. McClintock, S. Plambeck, T. Purdon
MEMBERS ABSENT: B. Beehler, J. Greenwood, J. Rustad
GENERAL BUSINESS
Immediate Past-Chair S. Plambeck called the meeting to order. Computer and clerical assistance was provided by Kara Schmitz, Law Clerk.
Membership: New members Judge Gail Hagerty, Judge Bruce Haskell, Attorney Larry Boschee, and Attorney Alvin Boucher were introduced.
Election of Vice-Chair: Tim Purdon was proposed as Vice-Chair for the 2002-2003 year.
Motion to approve: K. Brust
Second: J. McClintock
Approved
Minutes: Minutes of the June meeting were reviewed.
Motion to approve: T. Purdon
Second: J. McClintock
Approved
Financial Report: The 2001-03 PJIC budget is $24,697. Through August, the Commission spent $14,840, 60 per cent of the budget.
Interim Activities
The staff attorney received a request from Meg Olsen, a law student in Nebraska, who is conducting research comparing how jury instructions from different jurisdictions distinguish between trespasser, invitee, and licensee for the purposes of determining the standard of care required of a property owner to people present on the property. The relevant North Dakota instructions were forwarded. J. McClintock suggested that the Commission request the results of her study, and the staff attorney will contact Ms. Olsen.
SBAND has the 2002 instructions ready for publication. There have been a number of changes in the clerical staff responsible for the publication in the last three years. The Commission discussed the difficulty of receiving yearly updates of the instructions rather than complete sets. It is difficult to know if complete up-to-date instructions are available and accurate. J. Bekken noted that the instructions should be on the Supreme Court website. Accuracy and availability would be advantages. Judge Hagerty commented that SBAND receives remuneration for the instructions and may not want to relinquish this revenue or at least may want them on the SBAND website. That dues might be increased to cover the expense was one suggestion. Whether there should be a resolution presented at the annual SBAND meeting was discussed. Past-Chair Plambeck was asked to write a letter to the Board of Governors requesting that posting jury instructions on the web be investigated and accomplished.
Motion to endorse posting the ND jury instructions electronically: J. Bekken
Second: J. Haskell
Approved
INSTRUCTIONS
Intentional Interference With Contract and Unlawful Interference With Business: J. McClintock reviewed the history of these instructions. There has been no instruction on intentional interference with contract or interference with a business relationship, and these two tort claims are recognized in North Dakota. J. Simonson had originally presented a proposed Intentional Interference with Contract.
Hennen v. City of Medina and Bismarck Realty Co. v. Folden were discussed. Should there be elements stating that the Plaintiff knew of the contract, Plaintiff instigated the breach, the breach was wrongful, the breach was a proximate cause of the damages, and damages occurred, i.e., should knowledge be an element? Tracy does not list knowledge as an element. But, is there any disadvantage in listing knowledge as an element? Wording of the instruction was shortened. That the tort is sometimes called "tortious interference" rather than "intentional" was noted. Juries may have trouble with the word "tortious" however. Does this instruction cover contractual relations or just contracts? It could be interfering with a supplier, etc. "Intentional" could be removed from the title. Are both intent and wrongful conduct needed? Can the interference be intentional but not tortious? S. Plambeck suggested that knowledge and wrongful motive and intentional conduct are required. Justification as an affirmative defense for this tort was discussed. Are the elements of this tort clearly stated in the case law? A. Boucher questioned whether they were clear enough for a pattern instruction and suggested further review of the cases.
J. McClintock presented a proposed Unlawful Interference With Business instruction. Trade 'N Post v. World Duty Free was reviewed. In Trade 'N Post, motive is irrelevant. Is "business" the right word? This instruction is used when there is not a contract. J. McClintock moved that the instruction be approved. T. Purdon seconded. Further discussion concerned whether actual damages must be proved and the conclusion that this is necessary. The interference must be a proximate cause of the harm, and there must be actual damages. Having these stated as two separate elements rather than combining the elements may be clearer for the jury. It was noted that the interference does not include actions which are merely sharp or unfair. A note was added that the tortious or unlawful act should be specifically stated. The previous motion was withdrawn by consensus.
Motion to table Intentional Interference With Contract and approve Unlawful Interference With Business: T. Purdon
Second: J. McClintock
Approved
Loss of Consortium: K. Brust had initially reviewed Loss of Consortium following a request to clarify whether the consortium claim is a derivative claim under North Dakota law which would mean that the spouse cannot recover unless the injured spouse also recovers. After a review and concluding that the instruction as published was correct, that is, the instruction is addressing causationthere has to be an injury to the spouse before there can be a claim for loss of consortium, K. Brust was asked to review the language used in the claim. He had reviewed the federal instruction, the Wald case, and presented the Minnesota instruction as an example. This instruction was revised and circumstances relating to a child were added. The "usual" from "usual course of married life" was removed by a six to three vote.
Motion to approve: J. McClintock
Second: J. Haskell
Approved
Later during the meeting S. Plambeck noted that C - 18.10, Loss of Child's Companionship, was not necessary because of the additions to Loss of Consortium, C - 18.00. The cites from C - 18.10 were added to Loss of Consortium.
Motion to delete C - 18.10 and add its references to C - 18.00: T. Purdon
Second: K. Brust
Approved
Closing Instructions: K. Brust has been reviewing the older closing instructions. He presented a draft for Deliberations and Conduct of Jury in Retirement and Form of Verdict and Submission of Case that had been used by J. Kleven. J. Hagerty proposed asking for forms currently being used by the judges statewide since it is an instruction that is in common use. She and Judge Haskell will review these for the March meeting.
Bad Faith: K. Brust reported that there has been no instruction on bad faithduty of insurer. Simplifying the language was discussed. One or more of the instances enumerated in the brackets may be applicable so the words "and" and "or" were deleted. The title was changed from Bad Faith (Duty of Insurer) to Insurer's Duty to Act in Good Faith.
Motion to approve: J. Haskell
Second: J. Bekken
Approved
Murder: T. Purdon reviewed the 1985-86 Homicide instructions, and only one has had a statutory change: K - 6.03, Murder (While Committing Crime). Causing the death of any person while committing certain felony offenses against a child was added to the definition of the crime. A note indicating the NDCC references for the specific offenses against a child was added. Requiring the death of "a human being" instead of just referring to a death was left unchanged.
Motion to approve: K. Brust
Second: J. Haskell
Approved
Sex Crimes: T. Purdon reviewed the sex crime instructions. There had been extensive changes, and modifications were made to comply with new statutes. Changes were made to K - 7.01, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.20, 7.21 (deleted), 7.25, 7.31, 7.36, 7.54, and 7.60. The other instructions between 7.01 and 7.60 were reviewed with no changes.
Motion to approve: J. Hagerty
Second: J. Haskell
Approved
Additional Element of Offense - Nonexistence of Defense: J. Bekken reviewed the history of this instruction. Initially there had been a request regarding the burden of proof on the nonexistence of self-defense as an element of the crime. After a review, T. Purdon noted that it would be necessary to list it as an element on basically all criminal instructions. The element would be the nonexistence of any defense, and it was decided that the element should not be added to the individual crimes when there was the general instruction, K - 3.01. J. Bekken had suggested a note about when the additional element is used and the different ways it is presented. The discussion was whether this should be included as an element at the beginning of the case, at the end, or both. Currently the instruction's note stated that the instruction should immediately follow the Court's instructions setting forth the elements of the offense to which the defense applies. Some of the judges give the element, nonexistence of a defense, at the beginning of the trial. Others see if the defense arises and add it at the end using two sets of instructions. J. Hagerty suggested that sequencing should be the preference of the individual judge and not dictated in the instruction. The section of the note referring to timing was removed. That this instruction does not refer to affirmative defenses was retained as the note.
Motion to approve: T. Purdon
Second: J. Haskell
Approved
Constructive Possession: J. Bekken noted that discussion of the Possession instruction has been continuing since October 2000. The issue concerns the mens rea for possession. The instruction states "knowingly" but possession of a controlled substance is "willfully." Yet, there are situations, e.g., possession of a firearm by a felon, in which "knowingly" would be correct. The instruction was discussed again in October 2001. There was consensus that this is a generic possession instruction. Do there need to be separate instructions for actual and constructive possession? Should there be a note about minor in possession? The current possession instruction is correct as a general definition of possession. It remained unchanged (from the 1994 instruction) except for the addition of the McKinney cite and was republished in 2002. Whether there should be a note added and the contents of the note remained to be discussed at a future meeting. The discussion continued at the present meeting and whether "knowingly" should be replaced with "willfully" was asked. Also, should "intent" be replaced with "power?" T. Purdon commented that the act of possession is knowledge and control. He discussed whether there would be possession if a person had an illegal weapon in a safe in his home but did not have access to the safe. In a drug case, the mens rea is willful. There is a separate possession instruction for controlled substances, K - 22.35. If the general possession instruction is used in a drug case, the intent would have to be willful. The Commission discussed whether the general possession instruction is actually a constructive possession instruction. Should it be separated into two instructions? Should it be re-titled? A motion to amend the title by T. Purdon was subsequently withdrawn. What about a separate possession of alcohol instruction for persons under 21 years of age? J. Bekken thought that three separate instructions might be necessary. He will prepare drafts for review at the March meeting.
Fault Definitions: S. Plambeck has been reviewing instructions to ensure that they are consistent with current definitions of fault.
Negligence: S. Plambeck suggested substituting "fault" for "wrongful conduct.
Motion to approve: J. Bekken
Second: J. Haskell
Approved
Action for Damages by Spouse Against Spouse: "Fault" was substituted for "wrongful conduct."
Motion to approve: J. Haskell
Second: J. McClintock
Approved
Wrongdoing of Driver Not Imputed to Passenger: "Wrongful conduct"and "willful or negligent conduct" was changed to fault. The last sentence was simplified, the note shortened, and the title changed to Passenger Not Responsible for Driver's Fault.
Motion to Approve: K. Brust
Second: A. Boucher
Approved
Fault of Beneficiary Diminishes Recovery (Wrongful Death) and Fault of Decedent Diminishes Recovery (Wrongful Death): Are these instructions needed? What useful information do they provide? Are the instructions relevant or did they pertain to comparative negligence? The language was modified to provide working drafts, and the instructions tabled by consensus.
Damages (Liability Admitted): "Fault" was substituted for "wrongdoing."
Motion to approve: L. Boschee
Second: S. Plambeck
Approved
Adequate Compensation (Tort): "Fault" was substituted for "negligent act or omission." That damages may not be greater than the amount "claimed" was deleted. A. Boucher volunteered to check the cases cited regarding limits on amount of damages.
Motion to approve: A. Boucher
Second: K. Brust
Approved
Damages - Aggravation of Pre-existing Condition: "Fault" was substituted for "acts or omissions." Whether the third paragraph which states that the Defendant is not responsible for aggravation resulting from natural causes is necessary was discussed. This third paragraph is one that can be argued. For example, some conditions that were initially due to natural causes may degenerate faster due to the injury. Natural causes are not defined, however.
Motion to table: J. Hagerty
Second: T. Purdon
Approved
Injury Aggravated by Defendant's Wrongdoing and Condition Unrelated to Defendant's Wrongdoing: "Wrongful conduct" was changed to "fault." K. Brust volunteered to review these instructions.
Motion to table Injury Aggravated by Defendant's Wrongdoing: J. Bekken
Second: L. Boschee
Approved
Motion to table Condition Unrelated to Defendant's Wrongdoing: J. Bekken
Second: T. Purdon
Approved
ADMINISTRATIVE DETAILS
March Meeting
The next meeting will be March 6th and 7th. If the Heritage Center is not available and the Capitol Building area too busy with the Legislature's meeting, J. Hagerty will investigate the possibility of meeting at Burleigh County Courthouse.
Assignments
1. Interference With Contract (J. McClintock)
2. Deliberations and Conduct of Jury in Retirement; Form of Verdict and Submission of Case (J. Hagerty and J. Haskell)
3. Carrying a Concealed Weapon (J. Rustad)
4. Leaving the Scene of an Accident Involving Death or Personal Injuries (J. Rustad)
5. Malice of Corporate Officers (K. Brust)
6. Possession (of Alcohol by a Person Under 21 Years of Age) (Constructive/Actual)(J. Bekken)
7. Adequate Compensation (Tort)(review of cases cited) (A. Boucher)
8. Damages - Aggravation of Pre-existing Condition; Injury Aggravated by Defendant's Wrongdoing; Condition Unrelated to Defendant's Wrongdoing (K. Brust)
9. Fault of Beneficiary/Decedent Diminishes Recovery (Wrongful Death) (S. Plambeck)
10. C - 3.03, Operation of a Motor Vehicle (Impaired Driver); 3.05, Under the Influence of Intoxicant (Driver of Motor Vehicle); 3.12, Duty to Assist; 3.14, Willful Misconduct; 3.16, Family Car Doctrine; 3.30, Highway Protected by "Yield" Sign; 3.32, Highway Protected by "Stop" Sign; 3.36, Flashing Signals; 3.64 Backing Movement (B. Beehler)
11. K - 5.46, Dangerous Special Offender (Bifurcated Trial) (review legislative history for definitions) (J. Greenwood)
12. K - 11.01, Theft of Property (Unauthorized Conduct); 11.02, Theft of Property (Deception or Threat); 11.03, Theft of Property (Receipt of Stolen Property); 11.04, Theft of Services (Deception or Threat); 11.06, Theft of Lost or Mislaid Property; 11.07, Theft of Property Delivered by Mistake; 11.20, Misapplication of Entrusted Property; 11.30, Defrauding Secured Creditors (Property Subject to a Security Interest) (J. Greenwood)
13. K - 13.15, Hindering Law Enforcement;13.20, Aiding Consummation of Crime (Class B Misdemeanor); 13.21, Aiding Consummation of Crime (Class A Misdemeanor); 13.22, Aiding Consummation of Crime (Class C Felony) (J. Greenwood)
14. K - 14.10, Escape (By Use of Weapon); 14.12, Escape (Felony Charge or Criminal Conviction); 14.15, Official Detention (Definitions) (K- 14.05, 14.20, 14.25, 14.26, and 14.27 are also older instructions and need to be reviewed at a later time.) (J. Greenwood)
15. K - 15.00, Tampering With Witnesses and Informants in Proceedings (Use of Force, Threat, Deception, or Bribery); 15.22, False Report to Law Enforcement or Security Officers; 15.30, Bribery; 15.50, Trading in Public Office and Political Endorsement (Non-Public Servant or Party Official) (K - 15.05, 15.20, 15.25, 15.40, 15.42, 15.52, 15.55, 15.56, 15.60, 15.70, 15.70, 15.71, and 15.72 are also older instructions and need to be reviewed at a later time.) (J. Greenwood)
16. Continuing review of 1986 Instructions: This review is to ensure that the older instructions are still good law. Other considerations are whether newer cites are available and whether the language can be simplified.
| CIVIL | CRIMINAL |
| Introductory Instructions (J. Rustad) | Introductory Instructions (J. Rustad) |
| Tort Liability (L. Boschee) | Special Situations (J. Rustad) |
| Miscellaneous Torts (A. Boucher) | Defenses (J. Bekken) |
| Wills and Gifts (J. McClintock) | Affirmative Defenses (J. Bekken) |
| Contracts (S. Plambeck) | Other Personal Crimes (T. Purdon) |
| Legal Entities (S. Plambeck) | Robbery and Trespass (T. Purdon) |
| Damages (S. Plambeck) | Damage to Property (T. Purdon) |
| Eminent Domain (J. McClintock) | Theft (J. Greenwood) |
| Evidence (S. Plambeck) | Public Crimes (to 16.00) (J. Greenwood) |
| Verdict Forms (K. Brust) | Public Crimes (16.00 - 23.00)(J. Hagerty) |
| Verdict Forms (K. Brust) |
The meeting was adjourned.
Respectfully submitted,
Lynn A. Kerbeshian
Staff Attorney
2575 So. 35th St.
Grand Forks, ND 58201
(701) 775-6220 e-mail: NDPJI@yahoo.com