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Idaho Civil Jury Instructions

By the Idaho Pattern Jury Instruction Committee - 1988 Committee:

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IDJI	CAPTION	COMMENTS
1	The Voir Dire	This material need not be given at any trial. However, the Committee suggests that each venireman, during his tenure of service, be informed in some manner of the subjects covered by this trial guide.
2	Introduction to Trial Procedure	This material need not be given at trial. However, the Committee suggests that each venireman, during his tenure of service, be informed in some manner of the subjects covered by this trial guide. This particular format may be used either before the beginning of the voir dire or after the jury has been impaneled. If given before the voir dire, the pattern instruction on the voir dire may be inserted as indicated; and also, if given then, the phrase "the jury" or "those of you who are selected for the jury" should be substituted for "you" after the first paragraph. Variations to coincide to the particular trial and procedures should, of course, be made. The Committee recommends that this instruction be accompanied by such of the pattern instructions as are known to be applicable to the case. This will include the general or "stock" instructions and the instructions on the claims of the parties; it is not likely to include instructions on the issues.
100	Introduction	This instruction may be given at the beginning or at the end of the trial.
100A	Corporate Parties
101	Insurance - Cautionary	The use of this instruction is discretionary with the trial court. The Judge may use it or not, depending on whether inquiry is made into insurance company advertisements relating to jury verdicts.
102	Claims of the Parties - Introductory Comments   No instruction	CLAIMS OF THE PARTIES Introductory Comments The Committee suggests that the instructions on the claims of the parties may be given to the jury, whenever feasible, at the beginning of the trial, preferably immediately after the jury is impaneled. Generally the claims have been crystallized by discovery and can be determined by the court at the pretrial conference or by statements supplied by each party at the time of the pretrial conference. Such instructions at the very beginning of the trial should aid the jury in understanding the statements of counsel and the evidence. If given at the beginning of the trial, the claims need not be repeated at the end of the trial.  The Committee recommends that the trial judge do not give the factual claims of the parties to the jury by way of literal recitations from the pleadings. If the claims are not recited to the jury until after the evidence is in, then claims ruled out by the court, withdrawn by the parties, or unsupported by evidence should not be presented. If the claims are recited before the evidence, there need be no express statement that claims have been withdrawn or ruled out or are unsupported, as they simply will not be included in the issues sent to the jury. In reciting the claims of the parties, the court should take care to avoid language which, under Instruction #112 defining the burden of proof, would impose a burden of proof as to facts nor constituting a cause of action nor an affirmative defense.
103	Claims of the Parties
104	Claims of Defendant - No Counterclaim
105	Claims of Defendant - Counterclaim
106	Claims of Third-Party and Cross Plaintiffs	This form is applicable both to third-party claims and to cross-claims. In those rare instances where the third-party or cross complainant is a party other than a defendant, the court should substitute the appropriate party designation for "defendant."
107	Claims of Third-Party and Cross Defendants	This form is applicable both to third-party claims and to cross-claims. In those rare instances where the third-party or cross claim is initiated by someone other than a defendant, the court should substitute the appropriate party designation for "defendant."
108	Claims and Statement of Claims Not In Evidence
109	Jurors Not to Discuss Case	This is one form which may be used, if the court deems it appropriate. See IRCP 47(n).
110	Reminder Not to Discuss Case	This is one form which may be used, if the court deems it appropriate, in order to comply with IRCP 47(n).
111	Facts Not in Dispute	The Committee recommends that the trial judge not give the undisputed facts to the jury by way of literal recitations from the pleadings.
112	Burden of Proof - Defined	Any instruction which discusses the burden of proof with the jury in terms of "preponderance of the evidence," "if the evidence is evenly balanced then the jury shall find for the defendant," and in negative terms relating to numbers of witnesses, illustrates the type of instruction this work seeks to avoid. The term "preponderance of the evidence" almost defies precise and accurate definition or interpretation for the layman; and it results in slanted instructions. At one time the courts approved an instruction on behalf of the plaintiff that if the evidence preponderated in his favor "although but slightly," he was entitled to recover. To counteract the thrust of this statement, there was the approved "evenly balanced" instruction. Eventually, the courts began to recognize that instructions of this kind are argumentative and misleading, and therefore tend to confuse the jury who look to the court for disinterested guidance. Well-reasoning authorities condemn these types of instructions. While it is true the plaintiff should recover if there is the slightest preponderance of the evidence in his favor, and that he should fail to recover if there is the slightest lack of preponderance, still the answer to the question which a trial judge must continually ask himself, "Will stating the law in these terms aid the Jury?" is an emphatic "No." What the Illinois Supreme Court said in Teter v. Spooner, 305 Ill. 198, 137 N.E. 129, states the case against all slanted instructions. "If there is a slight preponderance of the evidence, it is sufficient, but it would not be proper for the court to give an instruction to the jury that a perceptible preponderance of the evidence was sufficient any more than that a clear preponderance of the evidence was required. The effect of the adjectives is merely to confuse the jury and invite them to minimize or maximize the weight of the evidence on one side or the other. Such instructions ought not to be given." The Committee recommends that the trial judge do not give such instructions in terms of "preponderance of the evidence," "evenly balanced," etc.
112A	Burden of Proof - Defined	As to the comparison of "preponderance of the evidence" and "clear and convincing evidence," see Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983). As to the definition of "clear and convincing evidence," see e.g., Hobson v. Eaton, 399 F.2d 781 (6th Cir. 1968); Butler v. Poulin, 500 A.2d 257 (Me. 1985); In re Guardianship of Sain, 348 N.W.2d 435 (1984); In re Conduct of Chambers, 642 P.2d 286 (1982). As to the factors to be considered in determining whether evidence is clear and convincing, see Aetna Ins. Co. v. Paddock, 301 F.2d 807 (5th Cir. 1962); Weigand v. Union Nat. Bank of Wichita, 610 P.2d 572 (1980); Taylor v. Hill, 661 S.W.2d 412 (1983); People v. Caruso, 436 P.2d 336 (1968); Slomowitz v. Walker, 429 So.2d 797 (Fla. App. 1983). This instruction is an alternative IDJI 112 and should be given when some issues in the case must be proved by clear and convincing evidence, but some issues must be proved by a preponderance of the evidence.
113	Application of Burden of Proof No instruction	The Committee recommends that no instructions be given to apply or attempt to apply the burden of proof to any claim or defense, except as covered by the issue instructions. Since the significance of the burden of proof is defined and explained and since the issue instructions expressly state the requirements of sustaining the burden of proof as to each element of each claim and each defense, the subject already is covered completely. Anything more would be repetitious and argumentative.
120	Evidence to be Considered	(No Comment)
121	Evaluation of Evidence	(No Comment)
122	Taking Papers into Jury Room	The Committee suggests that this instruction may be given at the start of the trial.
123	Direct and Circumstantial Evidence - Inferences
124	Expert Testimony	The Committee considers that an instruction on "weighing expert testimony" is usually inadvisable. Expert testimony is commonplace in modern jury trials. There is no good reason why the weight of expert testimony should be subject to criteria different from that for other witnesses. The instruction on general standards for weighing evidence and determining credibility should suffice. [See IDJI #100] The subject of expert testimony is peculiarly within the province of argument of counsel. However, in the event such an instruction is advisable, the Committee recommends this instruction.
125	Deposition Evidence	If evidence by deposition is introduced in the absence of the witness, then this instruction should be read to the jury, preferably prior to the reading of the deposition. In view of the liberal use of evidence depositions, this instruction is likely to have frequent application. This is an example of an instance in which the Committee believes it is proper for the court to call attention to specific evidence because a jury might otherwise not understand the function of a deposition.
126A	Presumptions	Presumptions Rule 301 of the Idaho Rules of Evidence treats most presumptions as shifting only the burden of producing evidence on the issue to the party opposing the presumption. The only exceptions are those instances in which a statute expressly shifts the burden of proof to that party. Neither this instruction nor Instruction 126B purport to cover those instances in which a statute is controlling. Moreover, Rule 301 provides that the presumption itself has no weight as evidence. Again, the only exceptions are those instances expressly covered by statute. The effect of a rebuttable presumption affecting only the burden of producing evidence is, upon proof of the fact from which the presumption is made (the "basic fact"), to require the trier of fact to assume the existence of the presumed fact until evidence is introduced which would support a finding to the contrary, in which case the trier of fact is required to determine whether the presumed fact is true based upon the consideration of the evidence as a whole without regard to the presumption. Nothing in the rule prevents the trier of fact from drawing any inferences that may be appropriate. If the basic fact giving rise to the presumption of the presumed fact has been proved, whether by stipulation, admission, judicial notice, or by evidence that no reasonable jury could reject, the rebuttable presumption in most instances operates only to shift the burden of going forward with the evidence to the opponent. The question of whether or how to instruct the jury turns on whether the opponent offers evidence to rebut the presumed fact. a. If no evidence is offered to disprove the presumed fact, or if the evidence that is offered provides an insufficient basis for concluding that the presumed fact has been disproved, the jury should be instructed that the basic and presumed facts have been established (Instruction 126A). b. If evidence disproving the presumed fact is offered and is sufficient to permit a jury to find the contrary of the presumed fact, the presumption disappears and no instruction as to presumption should be given. c. If the evidence disproving the presumed fact is uncontradicted and of such nature that it cannot rationally be disbelieved, the court need not give any instruction, but may in an appropriate case decide to instruct the jury or grant a directed verdict as to the fact at issue. If the basic fact giving rise to the presumption of a presumed fact is a jury question, and there is either no evidence regarding the presumed fact or insufficient evidence to support a finding that the presumed fact has been disproved then the jury should be instructed that, if it finds the existence of the basic fact, it must find the existence of the presumed fact (Instruction 126B). If the basic fact giving rise to the presumption of a presumed fact is a jury question and the opponent has offered evidence sufficient to support a finding of the contrary of the presumed fact, no instruction as to presumption should be given. The foregoing explanation shows that Instruction 126A and Instruction 126B may be used only in two instances, and both of those instances arise from situations in which there is no evidence for or against the presumed fact. Thus, the instructions apply only in narrow circumstances. This explanation is shown in schematic form by the following chart, which sets forth the possible degrees of proof for both the basic and presumed facts and shows how they affect the question of whether an instruction should be given.  Presumed Fact   No evidence regarding presumed fact Presumed fact proved Presumed fact disputed Presumed fact disproved No evidence regarding basic fact No inst. may be given Instruct at discretion of judge No inst. may be given   Instruct at discretion of judge Basic fact proved Inst. 126A Instruct at discretion of judge No inst. may be given   Instruct at discretion of judge Basic fact disputed Inst. 126B Instruct at discretion of judge No inst. may be given   Instruct at discretion of judge Basic fact disproved Instruct at discretion of judge Instruct at discretion of judge No inst. may be given   Instruct at discretion of judge   The entries on the chart are defined as follows: A. "No evidence" means that either no evidence was offered either for or against the basic or presumed fact or that whatever evidence was offered is sufficient to support a finding one way or the other;  B. "Proved" means that the proof supporting the basic or presumed fact is such that all reasonable minds would find that the fact had been established. The degree of proof is such that a directed verdict would be appropriate on that issue of fact; C. "Disputed" means that the proof offered for and against the basic or presumed fact is such that reasonable minds might differ in determining whether that fact had been proved; D. "Disproved" means that the proof offered against the basic or presumed fact is such that all reasonable minds would find that contrary to the fact at issue has been established. Again, the degree of proof is such that a directed verdict on the issue would be appropriate; E. "No instruction may be given" means that the court should issue no instruction regarding the presumption [of] basic or presumed facts. F. "Instruction [126A]" means that Instruction 126A should be given. G. "Instruction 126B" means that Instruction 126B should be given. H. "Instruct at discretion of judge" means that, while the court might, in its discretion, grant an instruction or directed verdict concerning the facts at issue, it would not be required to do so. The left column of the chart lists the four possible degrees of proof of the basic fact, i.e., no evidence, proved, disputed or disproved, while the top row does the same in connection with the presumed fact. By reading horizontally along the row stating the applicable degree of proof of the basic fact and vertically down the column stating the applicable degree of proof regarding the presumed fact, one can determine whether the jury should be instructed as to the basic or presumed facts and, if so, which instruction is appropriate. For example, if the basic fact is proved and there is no evidence regarding the presumed fact, Instruction 126A should be given. If the basic fact is disputed and the presumed fact is proved, the judge has discretion as to whether to instruct the jury or issue a directed verdict. The jury is never to be instructed in terms of a presumption per se. Instead, it should be instructed as to whether the basic and presumed facts are proved.
126B	Presumptions	This instruction should be given only when the basic fact is disputed and when there is either no evidence against the presumed fact or the evidence tending to disprove it provides an insufficient basis for finding that the presumed fact has been disproved. See comment to IDJI 126A.
127	Limited Admission of Evidence	If only one bracketed paragraph is applicable, strike the other. This instruction presupposes that the court will have admonished the jury of the limited scope fo the evidence when it was initially admitted.
128	View of the Premises - Preliminary Instructions
129	View of the Premises - Final Instruction	Both this instruction and the preceding one should be given when the jury is allowed to view the premises. See IRCP 43(f).
130	Impeachment of Witness   No instruction.	The Committee recommends that no "impeachment" instruction be given.  In view of the general instruction on standards for assessing testimony an instruction on impeachment is repetitious and no assistance is afforded to the jury in the performance of its duty to weight the testimony. It is the opinion of the Committee that the statutes relating to impeachment are for the guidance of the court and the examiner. Furthermore, the connotations derived from the word "impeachment" may unduly influence the jury in assessing "impeached" testimony.
131	Witness Wilfully False No instruction.	The Committee recommends that no instruction on the wilfully false witness be given.  Such an instruction is argumentative, invades the province of the jury, and suggests the court's belief that a witness has sworn falsely. It emphasizes the issue of false testimony which is a matter solely within the province of the jury. Instructions have been given which inform jurors that the testimony of a witness who has knowingly and wilfully sworn falsely on a material issue may be disregarded, except insofar as the testimony has been corroborated by other credible evidence. Determination of a witness's credibility is the subject of standards outlined in the previous general instruction on credibility of witnesses, IDJI 100.
132	Witness Presumed to Speak the Truth  No instruction.	The Committee recommends that no  instruction be given that "a witness is presumed to speak the truth." Again, determination of a witness's credibility is the subject of standards outlined in the previous general instruction on credibility of witnesses, IDJI 100.
133	Witness Need Not Be Believed	The Committee recommends that no instruction that the "witness need not be believed" be given. Juries have been instructed that "they are not bound to believe anything to be a fact simply because a witness has stated it to be so provided that they believe the witness is mistaken or has testified falsely." Determination of credibility of witnesses is solely within the province of the jury and it is superfluous to inform them that certain witnesses need not be believed. The standards for assessing credibility of witnesses are adequately set forth in IDJI 100.
134	Inherently Improbable Testimony    No instruction.	The Committee recommends that no "inherently improbable testimony" instruction be given. Some trial attorneys habitually offer an instructions to the effect that the jury need not believe "inherently improbable testimony." This type of charge is somewhat argumentative and is quite unnecessary because the same proposition is necessarily implied in IDJI 100, which tells jurors that they are the triers of the facts and that they have a right to consider the evidence in the light of their own observations and experiences and background. The subject of improbable testimony can be most adequately covered by counsel in argument and should not be the subject of a charge to the jury.
135	Party Competent as a Witness	The Committee recommends that no instruction on the "party competent as a witness" be given. Instructions that the jury should consider the interest of a particular litigant in the outcome of the lawsuit in determining his credibility as a witness have been given. The varying emphases to be placed upon any particular witness's testimony are best explained by argument of counsel.
140	Concluding Remarks - How to Deliberate
141	Communication with the Court	For discussion of communicating with jury after case has been submitted, see Rueth v. State, 100 Idaho 203, 595 P.2d 1097 (1979).
142	Requesting the Jury to Deliberate Further	The trial court is cautioned not to use this instruction unless and until the circumstances actually seem to warrant its use and indicate that it might be helpful without being coercive. State of Bailey, 94 Idaho 285, 486 P.2d 998; State v. Brown, 94 Idaho 352, 487 P.2d 946. For discussion of communicating with jury after case has been submitted, see Rueth v. State, 100 Idaho 203, 595 P.2d 1097 (1979).
143	Quotient Verdicts	In Papp v. Cantrell, 96 Idaho 751 (1974), the Court stated that a verdict arrived at by averaging individual juror's estimates of damages is not a quotient verdict so long as the jurors do not agree in advance to be bound by the average reached.
144	Foreman; Filling Out Verdict
145	Post Verdict Jury Instruction
150	Withdrawal of Issue    No instruction.	No form instruction recommended. Comments:  Ordinarily there will be only two situations in which the jury needs instructions as to the absence of issues. One is the decision on the issues by the court, as by a motion for a directed verdict. The other is the establishment of an evidentiary fact by means other than the presentation of evidence before the jury, such as by judicial notice, admissions in the pleadings, or stipulation. An evidentiary fact not in dispute sometimes may be presented to the jury by a witness, in which event the judge should not comment on it. On the other hand, the fact may be established by stipulation or judicial notice, but without a witness; in this event the court may appropriately inform the jury as to the fact. No instruction is necessary or appropriate as to the conclusive establishment of an ultimate fact, for such a situation may be covered more simply and directly by not giving to the jury any issue to decide as to the established ultimate fact. If an ultimate fact or an element of a claim or defense is established, there remains no issue thereon; and no issue, thus, should or need be mentioned to the jury. Even if only one issue, such as that of damages, remains for the jury, only that one issue need ever be mentioned to the jurors.
151	Forms of Verdict	Signature lines for the foreman and 11 other jurors should be added to each form. Each form should be placed on a separate sheet of paper, with its own full court heading. Provision for punitive damages, when appropriate, may be added as indicated on Form I. The names of the respective parties are to be filled in for clarity once on each form by counsel or the court before submission of the form to the jury. The location of the name is indicated on each form by the parenthetical instruction "(name)."
160	Issues - Introductory Comments No instruction.	The instruction defining the phrase "burden of proof" should be given with the instruction or instructions on the issues. Only issues supported by evidence and not determined by withdrawal, stipulation, or ruling of the court should be mentioned to the jury It is anticipated that, in connection with the legal designation of the parties as "plaintiff" or "defendant" or such, the court will also parenthetically repeat the names of the parties sufficiently often to fix the relationships of the parties in the minds of the lay jurors. The court should adjust matters of singular and plural nouns, pronouns, and verbs to fit the situation. Likewise, masculine and feminine pronouns should be adjusted. It is recommended that these adjustments be made for clarity, rather than that the adjustments be omitted and correction be attempted by a blanket singular-includes-plural or masculine-includes-feminine instructions.
161	Plaintiff's Case	In view of Idaho's comparative negligence law, this instruction is not suitable for a statement of negligence issues. The last paragraph of this instruction should not be used in products liability actions.
162	Plaintiff's Case and Affirmative Defenses	In view of Idaho's comparative negligence law, this instruction is not suitable for a statement of negligence issues. The last paragraph of this instruction should not be used in products liability actions.
163	Plaintiff's Case and Counterclaim	If the Complaint is no longer in the case and only the counterclaim is submitted to the jury, then this instruction should not be used, and the instruction pertaining to a plaintiff's case, with appropriate modifications, should be given. This instruction is aimed at the case where either the plaintiff or the defendant may recover, but both cannot. Where both may recover, as where the counterclaim states a claim for relief unrelated to that of the plaintiff, this instruction must be modified accordingly. If the case involves not only a counterclaim but also an affirmative defense, this basic instruction will have to be modified. In view of Idaho's comparative negligence law, this instruction is not suitable for a statement of negligence issues. The last paragraph of this instruction should not be used in products liability actions.
164	Plaintiff's Case and Third Party or Cross Claim	If the case involves not only a complaint and third-party or cross complaint, but also affirmative defenses or a counterclaim, this basic instruction must be modified. In those rare instances where the third party or cross claim is initiated by someone other than a defendant, the court should substitute the appropriate party designation for "defendant." In view of Idaho's comparative negligence law, this instruction is not suitable for a statement of negligence issues. The last paragraph of this instruction should not be used in products liability actions.
200	Duty to Use Ordinary Care
201	Standard of Conduct for a Minor	See Goodfellow v. Coggburn, 98 Idaho 202, 560 P.2d 873 (1977), and Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652. When the law imposes an adult standard of care on a child, this instruction is not applicable.
202	Duties of a Common Carrier	Only so much of this form as is applicable to the facts and is in issue should be given. See Clark v. Tarr, 76 Idaho 383, 392-393, 283 P.2d 942, and Ness v. West Coast Airlines, 90 Idaho 111,116, 410 P.2d 965.
203	Duty as to Electricity	See Chase v. Washington Water Power Co., 62 Idaho 298, 303, 111 P.2d 872, Russell v. City of Idaho Falls, 78 Idaho 466, 482-483, 305 P.2d 740, and Ellis v. Ashton & St. Anthony P. Co., 41 Idaho 106, 115, 238 Pac. 517.
204	Ultrahazardous Activities	The Committee takes no position as to what is the Idaho law applicable to ultrahazardous activities. The instruction above is made available for possible use and is thought to accord with the general law of absolute liability in such situations.
205	Duty of a Physician	See Conrad v. St. Clair, 100 Idaho 401, 599 P.2d 292 (1979) and Davis v. Potter, 51 Idaho 81, 88, 2 P.2d 318, and Swanson v. Wasson, 45 Idaho 309, 311, 262 Pac. 147. a) LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962, (1980) b) Maxwell v. Women's Clinic, 102 Idaho 53, 625 P.2d 407 (1981) See also Idaho Code §6-1012
206	Consent to Medical Treatment	Such portions of this form as are not at issue or not applicable to the particular case should, of course, not be given. The suit based on lack of consent is a battery and is not a negligence action. However, the subsidiary issue of care in an emergency, if such issue is in the case, is dependent upon negligence for its determination. See I.C. §39-4304.
210	Negligence - Definition	The bracketed portion will not be utilized if a negligence per se instruction is given.
211	Violation of a Statute or Ordinance	See Bratton v. Slininger, 93 Idaho 248, 250 (1969); Mann v. Gonzales, 100 Idaho 769 (1980); Carron v. Guido, 54 Idaho 494, 501 (1934); State v. Richardson, 76 Idaho 9, 14 (1954) and Bradbury v. Voge, 93 Idaho 360, 363 (1969). See Sanchez v. Galey, 112 Idaho 609 (1987), where violation of an administrative regulation may constitute negligence per se The final bracketed portion is not applicable when the law imposes an adult standard of care on a child..
212	Authorized Emergency Vehicles	The committee recommends that in a case involving an emergency vehicle no instruction other than this should be given on the emergency or emergency vehicle aspects of the case. Of course, the regular forms of instructions on the claims of the parties, on the issues, and defining the duty of care, negligence, and proximate cause should also be given, as appropriate.
213	Inference of Due Care No instruction.	IDJI 213, Inference of Due Care, has been superseded by IDJI 126A and IDJI 126B.
214	Presumption of Due Care	This instruction may be used when the person involved in the accident is dead or has sustained such injuries as to be unable to testify. Bradbury v. Voge, 93 Idaho 360, 461 P.2d 255 (1969); Koch v. Elkins, 71 Idaho 50, 255 P.2d 457 (1950); Jorstad v. Lewiston, 93 Idaho 122, 456 P.2d 766 (1969). This instruction is not to be given, however, when there is evidence of the person's conduct immediately prior to and at the time of the accident. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976); Dewey v. Keller, 86 Idaho 506, 388 P.2d 988 (1964). A comprehensive discussion is contained in Johnson v. Pierce Packing Co., 550 F.2d 474 (9th Cir. 1977).
215	Res Ipsa Loquitur	See Shaffer v. Adams, 85 Idaho 258, 378 P.2d 816; C.C. Anderson Stores Co. v. Boise Corp., 84 Idaho 355, 372 P.2d 752; and Straley v. Idaho Nuclear Corp., 94 Idaho 917, 500 P.2d 218. This instruction may be applicable to medical malpractice actions, but only in the instances where a layman could say as a matter of common knowledge that the injury would not have happened if due care had been exercised. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).
216	Sudden Emergencies No instruction.	The Committee recommends that no instruction of the duty of one in imminent peril be given. The existence or absence of negligence or due care under the standard given by the general definition instructions, is to be determined with reference to the circumstances. This matter, therefore, is covered. An instruction to the effect that one suddenly confronted with peril is not expected to use the same judgment as is required of him in calmer moments constitutes an argument by the court as to whether a party exercise ordinary care under the circumstances.
217	Fact of Accident Alone No instruction.	The Committee recommends that no instruction that negligence may not be presumed from the fact of an accident alone be given.
218	Care Commensurate with Hazards No instruction.	The Committee recommends that no general instructions relating the amount of care to the hazards of the situation be given. Such an instruction constitutes a comment by the judge on the fact issue as to what a reasonable careful person may or should do. This is a jury question. Those particular situations requiring special duties, such as the duty of a power company in handling electricity, should be covered by appropriate instructions which relate only to the peculiar situation.
219	Assumption as to Conduct of Others No instruction.	The Committee recommends that no instruction to the effect that a person has a right to anticipate due care or obedience to the law on the part of others be given. Such an instruction constitutes a comment by the judge on the fact issue as to what a reasonably careful person may or should do. This is a jury question. Those particular situations requiring special duties, such as the duty of a power company in handling electricity, should be covered by appropriate instructions which relate only to the peculiar situation. Potter v. Mulberry, 100 Idaho 429, 421 (1979); Robinson v. Westover, 101 Idaho 766 (1980).
220	Intent Not an Element of Negligence No instruction.	The Committee recommends that no instruction that intent is not an essential element of negligence be given. Such an instruction constitutes a comment by the judge on the fact issue as to what a reasonably careful person may or should do. This is a jury question. Those particular situations requiring special duties, such as the duty of a power company in handling electricity, should be covered by appropriate instructions which relate only to the peculiar situation.
221	Possibility of Avoiding Accident No instruction.	The Committee recommends that no instruction that possibility of avoiding accident is not a test of negligence be given. Such an instruction constitutes a comment by the judge on the fact issue as to what a reasonably careful person may or should do. This is a jury question. Those particular situations requiring special duties, such as the duty of a power company in handling electricity, should be covered by appropriate instructions which relate only to the peculiar situation.
222	Care Required for Safety of Child No instruction.	The Committee recommends that no instruction on the care required for the safety of a child be given.
223	Miscellaneous Factors Affecting Negligence No instruction.	The Committee recommends that no instruction, except any appropriate pattern instruction pertaining to the violation of a statute or ordinance, be given as to any particular day. These patterns cover all duties relevant to negligence actions. Thus, the statutes or ordinances, when enacted and applicable, set forth special duties as to all matters covered by statutes or ordinances; and the general pattern instruction on the violation of statutes or ordinances relates the statutory or ordinal duties to negligence. In certain other situations, special rules of law apply; such situations are covered by one or more of these pattern instructions. In all other situations, the general rules of ordinary care apply. Recitations of supposed particularized duties constitute an argument by the court as to the alleged negligence or lack of negligence of a party and are inappropriate. Examples of the types of matters on which the Committee recommends no instruction by the court, except as per statute, are the allegedly appropriate reaction to an emergency vehicle, the duty of a guest to warn his driver, the duty of a motorist or of a pedestrian as such, the duty to keep a lookout, duties at nighttime, duties as to intersections and as to turning or rights-of-way, the duties of either the motorist or the railroad at a railroad crossing, matters of speed and speed limits, custom and practice, the care of a party with impaired faculties, and the duty of a medical patient to follow the doctorts advice. Many of these factors, of course, are governed by statute; in such cases the statutory duty should be expressed to the jury. For situations governed by special rules of law, see the duties of an occupant of land (pattern instructions ##290-334), and the duties of a person who sells personally (pattern instructions ##400-401), and IDJI ## 201, 202, 203, 204, 206, 213, 214, 245, 248, 250, and 260.
224	Gross Negligence Defined
225	Willful and Wanton Misconduct   (No instruction)	The Committee recommends that no instruction be given on gross negligence in a comparative negligence case because under I.C. §6-801 gross negligence is compared the same as ordinary negligence. In instructing the jury upon punitive damages, it is now unnecessary to refer to "willful and wanton misconduct" (IDJI 921); however, some variety of the term still appears in several instances in Idaho law, e.g. Umphrey v. Sprinkel, 106 Idaho 700, 682 P.2d 1247 (1983).
226	Intoxication Defined	When intoxication by liquor or drug is an issue for the jury, an instruction dealing with the violation of the statute, Idaho Code §18-8004, will normally be given. This definition may appropriately accompany the instruction on violation of that statute in a civil case.
230	Proximate Cause	See Edmark Motors, Inc., v. Twin Cities Toyota, 111 Idaho 846 (1986). Bracketed material may be used in appropriate cases.
231	Multiple or Concurrent Causes   No instruction.	The Committee recommends that no instruction as to multiple or concurrent causes be given. These aspects of causation are covered by the definition of proximate causation. Any coverage more detailed is apt to be confusing or incorrect under the comparative negligence doctrine.
232	Last Clear Chance No instruction	The Committee recommends that no instruction on the doctrine of "last clear chance" be given. Under comparative negligence law and under the definition of proximate cause, the subject of the last clear chance is adequately covered.
233	Unavoidable Accident No instruction.	The Committee recommends that no unavoidable accident instruction be given. See Schaub v. Linehan, 92 Idaho 332, 336, 442 P.2d 742.
240	No Imputing of Negligence
241	Driver's Negligence not Imputed to Passenger	This instruction is not to be given when the plaintiff is the driver's employer, principal, partner, or joint venturer, nor when there is an issue in that regard. The first sentence of this instruction is appropriate only when the driver or the driver's principal is a party charged with liability. If neither the driver nor the driver's principal is a party to the action, then either the conditional clause may be omitted and only the main clause, modified to fit the case, given or else the general instruction forbidding the imputing of negligence may be modified to fit the case and given.
242	Driver's Negligence Not Imputed to Passenger - Issue of Guest or Passenger Status	This instruction is to be used when there is an issue as to whether the plaintiff is the guest (passenger) of the driver. See Rogers v. Yellowstone Park Company, 97 Idaho 14, 539 P.2d 566, 1974.
243	Joint Enterprise	See Easter v. McNab, 97 Idaho 180, 541 P.2d 604 (1975)
244	Imputation of Negligence from Ownership of Vehicle	This instructions covers the imputation of liability provided for by I.C. §49-1404. The bracketed material may be used as appropriate when there is an issue of ownership or of permission for use of the car or both. If there is no issue either as to ownership or permission, only the concluding portion of this instruction need be used. If there is an issue as to permission by implication, as contrasted with express permission, it will be appropriate to instruct the jury as to the requirements for an implied permission.
245	Negligence of Parents Not Imputed	This instruction is to be used when the parent is not a party in interest, except as guardian ad litem, and there is evidence from which the jury might conclude that the parent was guilty of negligence which contributed to the child's injury. Pedigo v. Rowley, 101 Idaho 201, 610 P.2d 560 (1980); Owen v. Burcham, 100 Idaho 441 (1979).
246	Parent and Child Both Parties in Interest
247	Negligence Imputed to Signer of Minor's Application	This instruction is to be used in cases involving imputed negligence under Idaho Code §49-313. See also Smith v. Sharp, 85 Idaho 16, 375 P.2d 184. The first two brackets are offered for the alternative situations when there is, or is not, an issue as to whether the parent signed the application so as to bring the case within §49-313. The child may or may not be a party defendant and may be designated as such when he is. The bracketed material about driving a motor vehicle on the highway is necessary only when there is an issue as to whether the child was driving a motor vehicle on the highway at the time in question; this is a required element under I.C. §313(b). The committee is of the view that both negligence and gross negligence are included in the statutory phrase "any negligence or willful misconduct." This for example, may be appropriate in an action by a guest against a parent whose child was driving at the time of an accident.
250	Agent's negligence Imputed to Principal - Agency Admitted	The bracketed sentence may be omitted in cases in which only the principal is a party, but is to be included in cases in which both principal and agent are parties. When principal and agent are defendants, the word "liable" is appropriate. When they are plaintiffs and contributory negligence is in the case, the word "negligent" is appropriate.
251	Principal and Agent - Issue as to Agency	This form applies when there is an issue as to whether a principal-agent relationship existed. This form may be used in cases wherein principal and agent are both parties and also in cases wherein only the principal is a party. If the principal only is a party, there will be a claim of agency; thus the bracketed clause "claimed to have been" will be appropriate.
252	Agency Defined	This instruction is to be used in conjunction with the instruction defining the issue as to agency.
253	Agent - Scope of Authority	This instruction is to be used only when there is an issue as to whether the agent or alleged agent was acting within the scope of his authority at the time of question. The instruction defining the issue as to agency is to be used in conjunction with this one.
254	Inference of Agency from Ownership of Car No instruction.	The Committee recommends that no instruction be given regarding an inference of agency from one's ownership of a motor vehicle that is loaned to another. See I.C. §49-1404.
255	Agent or Independent Contractor	This instruction is to be used in conjunction with the instruction defining the issue as to agency.
260	Assumption of Risks	The Committee takes no position on the question as to whether the doctrine of assumption of risk applies in Idaho to situations not arising out of a contractual or employment relationship. Compare Hodge v. Borden, 91 Idaho 125, 132, 417 P.2d 75, with Fawcett v. Irby, 92 Idaho 48, 54, 436 P.2d 714. In either event this form should be applicable. The Committee is of the opinion that it is not enough, in order to apply assumption of risk in Idaho, that the plaintiff "in the exercise of ordinary care should have know the dangers existed and realized the possibility of injury from them." Otts v. Brough, 90 Idaho 124, 136, 409 P.2d 95; Hodge v. Borden, 91 Idaho 125, 133, 417 P.2d 75; Fawcett v. Irby, 92 Idaho 48, 53, 436 P.2d 714.
270	Issues - Negligence Case - No Affirmative Defense	This form is the standard issue instruction, applied to a negligence case. Comparative negligence is not covered because this instruction assumes that no affirmative defense has been raised. If the claims of the parties have been recited at the beginning of the trial, the court may wish in effect to refresh the recollection of the jury by modifying the first element of plaintiff's case to read in this manner: "1. That the defendant acted, or failed to act, as claimed by plaintiff, in one of the following particulars, that is, in failing to maintain a lookout for other vehicles or to apply his brakes or in the driving faster than the speed limit or through a red light, and that in so acting, or failing to act, the defendant was negligent; . . . " This approach can, of course, be used, at the option of the judge, in any negligence issue instruction. The rationale behind this approach is that it incorporates the claims of the party plaintiff into the issue instruction, possibly thereby simplifying or clarifying the instructions. The last paragraph of this instruction should not be used in products liability actions.
271	Issue - Affirmative Defense Comparative Negligence	This is the form for use when the defendant raises the defense of comparative negligence. It is assumed that this defense usually will be raised. The application of the comparative negligence doctrine to the assessment of the damage award is covered in the damage instruction and is not included in this instruction. The Committee recommends that no general issue instructions such as this be given in a comparative negligence case in which the statutory special verdict is employed unless it is followed with an instruction patterned on the Seppi v. Bette case, 99 Idaho 186, 579 P.2d 683. The combination of general issue materials and the interrogatories of the special verdict causes confusion for the jury. The judge may elect to incorporate or to restate the claims of the parties into this instruction in the manner illustrated in the comment to the next proceeding instruction. It is the Committee's recommendation that the comparative negligence instruction, based on Seppe v. Bette, be given immediately after this instruction.
280A	Instruction on the Special Verdict - Comparative Negligence - Direct Claim Only, Single Parties
280B	Special Verdict Form - Comparative Negligence - Direct Claim Only, Single Parties
281A	Instruction on the Special Verdict - Comparative Negligence - Direct Claim Only, Multiple Parties	This form is to be used only where there are more than one Plaintiff or sets of Plaintiffs and/or more than one Defendant or sets of Defendants. Also, this form should only be used when there are issues of negligence on the part of each party. This form is not appropriate for cases involving counterclaims. There follows a form for such a case. The numbering of the questions should be checked. Also, the references to questions numbers in the explanation on the verdict form should be correlated appropriately.
281B	Special Verdict Form - Comparative Negligence - Direct Claim Only, Multiple Parties
282A	Instruction on the Special Verdict - Comparative Negligence, Claim and Counterclaim	This form is to be used in negligence cases when there is a counterclaim and a request by a party for a special verdict. The comments accompanying the preceding instruction on the special verdict, No. 280-A, apply equally to this form.
282B	Special Verdict - Comparative Negligence, Claim and Counterclaim
283A	Instruction on the Special Verdict - Comparative Negligence - Direct Claim Only, Multiple and Unnamed Parties
283B	Special Verdict - Comparative Negligence - Direct Claim Only, Multiple and Unnamed Parties
290	Premises Liability - Introduction   No instruction.	Introduction These instructions are to be used in connection with the general pattern instructions on negligence. Normally, the word "owner" should not be used in this series unless the owner was in possession of the premises.
291	Owner's or Occupier's Duty - Intentional Harm or Willful Injury
292	Owner's or Occupier's Duty - Condition of Premises	This instruction should be accompanied by the instruction which defines negligence, Instruction #210.
293	Owner's or Occupier's Duty as to Defective Conditions
294	Owner's or Occupier's Duty - Imputation of Knowledge of Condition to Owner or Occupant	Only such of this instruction as is in issue and supported by evidence should be used.
295	Duty to Invitee	The bracketed portion should be used only when there is an issue of concealed defects. When this instruction is given the instruction defining "invitee" and instruction defining "ordinary care" should also be given. The minimal duties owed licensees and trespassers are, of course, also owed an invitee.
296	Duty to Invitee
297	Duty to Invitee - Where Invitee Lacks Freedom of Movement - Amusement Devices and Ski Lifts, etc	This instruction is applicable only to those kinds of devices wherein the user is required to give up his freedom of movement and control of the situation and to submit himself to the control of the operator. In appropriate cases, a more descriptive term may be substituted for the words "amusement device."
298	Duty to Invitee - Contractors and Workman
299	Duty to Invitee - Duty of General Contractor to Employees of Subcontractor
300	Invitee - Definition	The Committee takes no position as to whether one who goes on premises "to do some act which is of advantage to such (owner) (occupant) or of mutual advantage to both the visitor and the (owner) (occupant)" is an invitee under Idaho law, although it seems to be the law elsewhere. The Committee takes no position at all as to the status of persons upon public premises. Idaho Code §36-1603 and §36-1604 should be examined in situations dealing with recreational use of land without charge.
301	Invitee - Scope of Invitation
302	Invitee - Subcontractor
303	Duty to Licensee	Whenever this instruction is used, the instruction defining "licensee" should also be given.
304	Duty to Discovered Licensee or Trespasser
305	Licensee - Definition	See also instruction #301, as to when an invitee or licensee may become a trespasser. Idaho Code §36-1603 and §36-1604 should be examined in situations dealing with recreational use of land without charge.
306	Licensee - Social Guest
307	Licensees - Police and Firemen
308	Duty to Trespasser
309	Trespasser - Definition	See also instruction #301 as to when an invitee may become a licensee or trespasser.
310	Attractive Nuisance
320	Premises Liability - Publicly Owned Property
321	Public Entity - Actual Notice of Dangerous Condition
322	Public Entity - Constructive Notice of Dangerous Condition
323	Public Entity - Reasonable Time to Take Protective Measures
324	Publicly Owned Property - Immunity for Approved Plan	This instruction should be given only in cases wherein I.C. §6-904(8) is applicable. Former IDJI 325 has been deleted because of the decision in Leliefeld v. Johnson, 104 Idaho 357, 366, 659 P.2d 111, 120 (1983), holding that the immunity granted by Section 6-904(8) of the Idaho Code is perpetual. The Committee does not attempt to interpret the statute and depending upon the facts of each case, further explanation to the jury may be necessary.
325	Publicly Owned Property - Limits of Continuing of Immunity for Approved Plan	This instruction should be accompanied by instruction #321 on actual notice to a public entity, or instruction #322 on constructive notice to a public entity, or both #321 and #322. This instruction is not based on either statutory or Idaho case law. It seems only a logical corollary of the fundamental concept of State liability for its torts and the limiting effect of I.C. §6-904(8).
330	Landlord and Tenant - Issues as to Occupant's Liability for Injury from Latent Defect	The instruction may be used either in a case by a lessee or tenant against a lessor or landlord or in a case by a tenant's visitor "plaintiff, who was on the premises with the tenant's permission" against the lessee or tenant. The designation of the parties as "lessor," "landlord," "lessee," or "plaintiff, who was on the premises with the tenant's permission" should be appropriate to the case. Issues dealing with the tenant's or visitor's awareness of the defect which caused the accident may be dealt with as matters of contributory negligence or assumption of risk when properly at issue and supported by evidence. The general instructions on these matters may be used.
331	Landlord and Tenant - Accident on Leased Premises - Latent Defect
332	Landlord and Tenant - Control of Premises Reserved
333	Landlord and Tenant - Lessor's Liability as Affected by His Promise to Repair Premise	This instruction is applicable when the landlord's promise would be otherwise enforceable in a contract action. When such is not the case, the landlord may still be liable for negligent repair.
334	Landlord and Tenant - Liability of Lessor Who Undertakes Repair of Premises
400	Strict Liability - Issues	The current problems and conflicts in the area of strict liability deal with the definition of defect and the means and quantum of proof required to prove the existence of a defect. As to the latter problem, the means of proof seems to be direct evidence of the defect, as opposed to circumstantial, unless the alleged defective product is unavailable (destroyed by crash or explosion, changed, deteriorated or lost). As to the quantum of proof problems, recent cases have held proof of a specific defect is no longer necessary. Alman Bros. v. Diamond Laboratories, 437 F.2d 1295 (5th Cir. 1971). See also Farmer V. International Harvester, 97 Idaho 742, 553 P.2d 1306 (1976); Rindlisbaker V. Wilson, 95 Idaho 952, 519 P.2d 42 (1974). There are several definitions of defect available. Because of the number and variety, the Committee makes no recommendation as to which one should be used. Some choices are as follows: 1. Uniform Commercial Code definition of merchantability: Sec. 28-2-314(2) I.C. 2. Frumer & Friedman, Product Liability, Sec. 16.01(1): " ... (a) the product or article in question has been transferred from the manufacturer's possession while in a 'defective' state, more specifically, the product fails either to be 'reasonably fit for the particular purpose intended' or of 'merchantable quality' as these two terms, separate but often overlapping are defined by law; and (b) as a result of being defective the product causes personal injury or property damage." 3. Justice Traynor's definition (Traynor, "The Ways and Means of Defective Products and Strict Liability" 32 Tenn. L. Rev. 363 (1965)), a product is defective if it fails to match the average quality of like products. 4. A defect is a condition not contemplated by the ultimate consumer which would be unreasonably dangerous to him. Restatement, Torts 2d 402A comment g. 5. "A product is to be regarded as defective if it is not safe for such a use that can be expected to be made of it, and no warning is given." (50 Minn. L. Rev. 791) The last paragraph of this instruction should not be used in products liability actions.
401	Strict Liability Based on Misrepresentation Issues
410	Malicious Prosecution or Abuse of Process - Issues	The appropriate bracketed material may be selected from paragraph one for use in cases of either abuse of process or malicious prosecution and for use in malicious prosecution actions founded upon either improper civil proceedings or improper criminal proceedings. The second and fourth elements should be omitted in an abuse of process case. In an abuse of process case, there should also be an instruction briefly and succinctly stating the normal and proper usage with respect to the particular type of process involved; no instruction as to any improper use of such a process is needed or appropriate. In paragraph three any alternative not supported by evidence, either direct or circumstantial, should be omitted. See Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717; DeLamater v. Little, 32 Idaho 358, 182 Pac. 853.
411	Probable Cause Defined	The second paragraph will usually be necessary in malicious prosecution actions founded upon a criminal prosecution. The third paragraph is to be used when defendant claims that he consulted a lawyer prior to commencement of the prosecution.
420	False Arrest and False Imprisonment - Issues	Any of the alternative elements not supported by evidence may be omitted from paragraph One. In every case in which there is an issue as to the lawfulness of defendant's activity this must be accompanied by the instruction describing the factors making for a lawful detention. See Griffin v. Clark, 55 Idaho 364, 42 P.2d 297.
421	Lawful Detention Defined	Only such portions of this instruction as are at issue and supported by evidence should be used. The bracketed phrase "during the daytime" should be used when the crime involved was not a felony. I.C. §19-607. See Idaho Code, Title 19, Chapter 6, and Peterson v. Merrill, 25 Idaho 324, 137 Pac. 526; Harkness v. Hyde, 31 Idaho 784, 176 Pac. 885; Madsen v. Hutchison, 49 Idaho 358, 290 Pac. 208; Waters v. Barclay, 57 Idaho 376, 64 P.2d 1079; Anderson v. Foster, 73 Idaho 340, 252 P.2d 199; Sima v. Skaggs Payless Drug Center, Inc., 82 Idaho 387, 353 P.2d 1085.
430	Battery - Issues	This instruction is in proper form for a case with the affirmative defense of lawful contact. That portion pertaining to the affirmative defense should not be used unless such an issue has been raised and supported by the evidence. Only those portions of the instruction on the affirmative defense should be used as are at issue and supported by evidence. If the affirmative defense is based on a lawful arrest, the pertinent portion of Instruction #421, dealing with "Lawful Detention Defined" should also be used.
431	Assault - Issues
440	Trespass - Issues
450	Conversion - Issues	Those conversions covered by the Uniform Commercial Code are not necessarily covered by this form. The Committee recommends that in cases covered by that Code, this form be used but that, in addition, the relevant portion of the appropriate Code section be read or paraphrased as a definition, description, or explanation of the phrase "exercised dominion over" or of the phrase "deprived of possession." See Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139; Klam v. Koppel, 63 Idaho 171, 118 P.2d 729; Adair v. Freeman, 92 Idaho 773, 451 P.2d 519.
460	Fraud - Issues	See Faw v. Greenwood, 101 Idaho 387, 613 P.2d 1338 (1980); Smith v. King, 100 Idaho 331, 597 P.2d 217 (1979); King v. McNeel, Inc. 94 Idaho 444, 489 P.2d 1324.
470	Inducement of Breach of Contract - Issues	Only such of the affirmative defenses as shall be in issue and supported by evidence shall be given. Refer to Barlow v. International Harvester Company, 95 Idaho 881, 522 P.2d 1102 (1974). Note that both Barlow and Restatement of Torts, §767, recognize that the law regarding privilege in this area has not crystallized entirely. In the event that an instruction on affirmative defense A is given, it is anticipated that appropriate instructions defining the particular alleged restrain of trade may be necessary.
480	Libel and Slander - Issues	In the first element of plaintiff's case the bracketed alternatives "communicated to another person" and "published" are meant to be used appropriately, depending upon whether there, respectively, is or is not any issue as to whether the material was "published." The second element assigns to the plaintiff the burden of proving the falsity of the defendant's words; this requirement represents the Committee's view that the decision of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974), and its progeny establish that falsity must ordinarily be proved as part of plaintiff's case, rather than truth as defendant's affirmative defense. See also Restatement (Second) of Torts § 581A, 613 Comment j, but see Baker v. Burlington Northern, Inc., 99 Idaho 688, 587 P.2d 829 (1978). The alternatives given as subparts to paragraph 3 are applicable, respectively: (a) to defamation actions generally; (b) to defamation actions involving slander per se., (c) to defamation actions involving libel per se. It should be borne in mind that Barlow v. International Harvester an , 95 Idaho 892, 522 P.2d 1102 (1974), apparently fully he view of the Restatement of Torts §615, that the court must determine whether a crime or disease imputed by speaking is of such a nature as to make the utterance slanderous per se. The fourth element establishes the plaintiff's burden to prove fault (or actual malice in the case of a "public figure") as required by Gertz v. Robert Welch, Inc., supra. It is assumed that the fault standard that would be adopted by this state would be negligence. The fifth element of plaintiff's case reflects the holding of Gertz vs. Robert Welch, Inc., that, in any defamation action, the plaintiff can recover only for his actual injury (as distinguished from special damages), unless the plaintiff proves that the defendant knew his words were false or uttered his words in reckless disregard of whether they were false or not. Only such of the instructions regarding the affirmative defenses should be given as are warranted by the evidence; and the Committee specifically recognizes that Barlow v. International Harvester Company, supra, embraces the view of the Restatement of Torts § 619, that it is the duty of the court to determine whether the occasion upon which the defendant published the allegedly defamatory material was privileged and the jury must then determine whether the defendant abused the privilege. If the asserted privileges were absolute, the defendant's state of mind or knowledge would, of course, be irrelevant.
481	Express Malice - Definition	This definition is found in Barlow v. International Harvester Company, 95 Idaho 881, 892, 522 P.2d 1102 (1974).
490	Nuisance - Issues	Only such of the subparagraphs of the second element of plaintiff's case as are at issue and supported by evidence should be given. See Title 52, Idaho Code, and McNichols v. J.R. Simplot Co., 74 Idaho 321, 262 P.2d 1012.
491	Nuisance - Unreasonable Interference	See Carpenter v. Double R Cattle Co., Inc., 108 Idaho 602, 701 P.2d 222 (1985) (rejecting Restatement (Second) of Torts §§822, 826); McNichols v. J.R. Simplot Co., 74 Idaho 321, 262 P.2d 1012 (1953); I.C. §52-101, et seq.
500	Livestock - Herd Districts	See I.C. §25-2408; Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979); and Corthell v. Pearson, 88 Idaho 295, 399 P/2d 266 (1965).
501	Animals - Generally No instruction	The Committee offers no special instructions as to duties on the owners of animals, except the instruction Livestock -- Herd Districts, Instruction # 500, because an animal case, depending on its particular circumstances, would be governed either by the general law of assault and battery or by the general law of negligence. In a case founded on alleged negligence, certain activities might be negligence per se because they would constitute violations of such statutes as I.C. §§ 18-5808, 25-2107, 25-109, 25-2112, 25-2115, 25-2805, or 25-2806, or because they would violate various municipal ordinances.
510	Other Torts No instruction.	The Committee has not included particular instructions pertaining to every type of tort. The claims and issues in cases involving other torts should be presented in accordance with the format suggested by the general instructions herein on claims and issues.
600	Contracts Introductory Comment
601	Contracts Generally - Elements	This instruction or those portions of it which are at issue and supported by evidence should be given only when there is an issue as to whether a contract existed. The final sentence of this instruction would not be applicable when there is an issue as to the statute of frauds nor when the contracting persons agreed that there should be no contract until a writing was executed.
602	Offer Defined	Modifications may be necessary in cases involving the sale of goods under the Uniform Commercial Code [28-2-206 I.C.]
603	Acceptance