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Idaho Civil Jury Instructions

By the Idaho Pattern Jury Instruction Committee - 1988 Committee:

Justice Robert C. Huntley, Jr., Chairman

J. Robert Alexander

Brian Ballard Richard C. Mellon
Howard D. Burnett John J. Shindurling
Hon. G. D. Carey William A. Stellmon
Larry R. Duff Jeffrey A. Strother
Hon. James Judd Hon. Jesse R. Walters

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  
604 Consideration Defined See Eastern Idaho Production Credit Association v. Placerton, Inc., 100 Idaho 863, 606 P/2d 967 (1980).
605 Consideration - Promise to Pay Debt Discharged By Bankruptcy This does not apply in situations involving a consumer debt.
606 Contract to Be Reduced to Writing  
607 Minority The second numbered paragraph should be omitted if there is no dispute that the defendant is single and not yet 18 or if the only dispute on which there is evidence is on the issue of whether or not the defendant was 18 at the time the alleged contract was entered into. Also, if the contract is wholly executory, the second paragraph may not be applicable.

The age of 18 became effective July 1, 1972. See I.C. Sections 32-101, et seq.

608 Mental Capacity See Olsen v. Hawkins, 90 Idaho 28, 33, 408 P.2d 462.
609 Substantial Performance The Committee warns that this instruction is not appropriate without qualification for the purpose of avoiding damages for an insubstantial breach but is appropriate in situations in which insubstantial breaches fail to affect substantive rights, as, for example, not giving a right to rescind.
610 Impossibility Those portions of this form which are appropriately at issue and supported by evidence are to be used as an integral part of the general instruction on the issues in Plaintiff's Case and Affirmative Defenses, Instructions # 162 and # 661.
611 Prevention of Performance  
612 Anticipatory Breach  
613 Time Not Expressed - Reasonable Time See Curzon v. Wells Cargo, Inc., 86 Idaho 38, 382 P.2d 906, and Irvine v. Perry, 78 Idaho 132, 299 P.2d 97 and I.C. 28-1-204.
614 Acceleration Option  
615 Intent of Parties - Specific Issue This instruction presupposes that the question of interpretation is properly one for the jury.

See Commercial Ins. Co. v. Hartwell Excavating Co., 89 Idaho 531, 407 P.2d 312.

Again, in appropriate cases, statutory rules of UCC and 29-1009, I.C., should be consulted.

616 Amendment of Contract  
617 Accord and Satisfaction An executory accord, that is, where the satisfaction promised under the new contract has not been rendered, does not bar recovery on the original obligation unless there is specific wording to that effect in the new contract. Therefore, in such cases, this instruction should not be given, unless the instruction is appropriately modified, and as modified there is some evidence in support.

This instruction is not applicable where the claim allegedly satisfied was a liquidated debt and the only thing given in accord was a lesser sum of money.

Again, if appropriate, check the UCC.

618 Release Release is an affirmative defense.
619 Waiver  
620 Estoppel  
630 Implied Contracts In cases involving issues as to persons capable of contracting, lawfulness of object, or consideration, the appropriate paragraphs from the instruction on Contracts Generally, Instruction #601, and the appropriate instructions defining capacity and consideration should be added.

The last paragraph is intended to cover certain particular situations and, when appropriate, should be used in lieu of the next to the last paragraph.

631 Quasi-Contract (Contract Implied in Law) See Continental Forest Products, Inc. v. Chandler Supply Co., Inc., 95 Idaho 739, 743, 518 P.2d 1201, 1205 (1974): "The measure of recovery in a quasi-contractual action is not the actual amount of the enrichment, but the amount of the enrichment which, as between the two parties, it would be unjust for one party to retain."
640 Agent's Act Binds Principal - Agency Admitted This form is for use on contract actions and is comparable to instruction #250, which is applicable to tort actions.

The possibility of using the form on Agent Defined, instruction #252, in connection with this form should be considered.

641 Principal an Agent - Issue as to Agency This form is for use in contract actions and is comparable to instruction #251, which is applicable to tort actions.

The possibility of using either the form on Agent Defined, instruction #252, or the form on Agent - Scope of Authority, instruction #253, or both of those forms in connection with this form should be considered.

642 Agency - Apparent Authority This instruction is meant to be used with the appropriate instruction defining the issue as to whether any agency existed and usually will be preceded by the form on Agent - Scope of Authority, instruction #253.
643 Liability of Agent This instruction is to be used only when the agent is a party against whom relief is prayed, and the principal is disclosed.

The first bracketed sentence is to be included only when there is an issue as to whether there was an agency. In such an event, this instruction would have to be used in connection with the appropriate Agency issue instruction.

650 Fraud in the Inducement See Janinda v. Lanning, 87 Idaho 91, 390 P.2d 826, Zuhlke v. Anderson Buick, 94 Idaho 634, 496 P.2d 95.

In the case where plaintiff relies upon the fraud of the defendant, appropriate modifications may be made.

See also, 29-106, I.C., contract not put in writing through fraud.

651 Fraud - Non-disclosure In the case where plaintiff relies upon the fraud of the defendant, appropriate modifications may be made.
652 Fraud - Suppression or Concealment In the case where plaintiff relies upon the fraud of the defendant, appropriate modifications may be made.
653 Mutual Mistake These are the elements of mutual mistake and are to be inserted in and used only with the standard form of issue instruction, either for plaintiff's case, for a counterclaim, or for an affirmative defense, as may be appropriate. Only such portions of this form as are at issue and supported by evidence should be used.

See Copenhaver v. Lavin, 92 Idaho 681, 448 P.2d 774 (1968).

654 Rescission This is the form for rescission as an affirmative defense and is to be used with the balance of the general instruction on the issues of Plaintiff's case and affirmative defenses, Instruction # 162. If used as a claim by plaintiff, these elements of rescission, either mutually or unilaterally, should be numbered and used according to the form for issues on Plaintiff's case, Instruction #161.

Only that defense, mutual rescission or unilateral rescission upon breach, should be used which is at issue and supported by evidence.

The issue of mutual rescission is not appropriate for a jury when one party has fully performed or when the contract is unilateral, rather than bilateral.

This form should be modified in cases in which there is a third party beneficiary and in cases in which there is an issue as to whether there was any contract in the first place.

655 Duress This instruction should not be used in a case involving a confidential or fiduciary relationship.

See Newland v. Child, 73 Idaho 530, 254 P.2d 1066, Inland Empire v. Jones, 69 Idaho 335, 206 P.2d 519.

656 Undue Influence This instruction should not be used in a case involving a confidential or fiduciary relationship.
660 Breach of Unilateral Contract - Issues It may not be necessary to use any damage instruction with this form, if the bracketed phrase "payments due to" is used in the sixth line.
661 Breach of Bilateral Contract and Affirmative Defense of Non-fulfillment of Condition - Issues This is an example of the regular form of issue instruction applied to a breach of contract action for bilateral contract. The form may be varied to accommodate various other issues and various other affirmative defenses. In a case in which there is a counterclaim, the standard form of issue instruction for Plaintiff's Case and Counterclaim, Instruction #163, should be used.

The affirmative defense contains language appropriate both to conditions precedent and to conditions subsequent. Only the appropriate language should be used.

662 Action on Account - Issues This is an example of the application of the general issue instruction to an action on an account, with no affirmative defenses. This form, with its variations, should be usable in almost all actions on an account.

The various bracketed materials in the second numbered paragraph contain language for several possible issues, which include the following:

A. An express charge by plaintiff of a specific amount but no issue as to the reasonableness of the amount, in which event the second paragraph could read:

"2. The amount which plaintiff charged for such goods;"

B. An issue, or no issue, as to the amount charged but an issue as to the reasonableness of whatever plaintiff charged, in which event the second paragraph could read:

"2. The amount which plaintiff charged for such goods and that the amount charged by plaintiff was reasonable;''

C. An issue as to whether the amount charged by plaintiff was reasonable, plus evidence as to a value other than the amount charged by plaintiff, in which event the second paragraph could read:

"2.. The amount which plaintiff charged for such goods or the reasonable value of the goods, whichever is the lesser in amount;"

Other variations for other issues supported by evidence are suggested by some of the brackets.

It is not necessary to use any damage instruction with this form, if the bracketed material in the concluding paragraph is used.

Frequently matters potentially coming within the ambit of this instruction may be governed by the Uniform Commercial Code, which, when applicable, controls and should be used, either by quotation or by paraphrasing.

663 Account Stated - Issues This is an example of the application of the general issue instruction to an action on an account stated, with no affirmative defense. This form, with its variations, should be usable in almost all actions on stated accounts.

The first numbered paragraph includes two common alternative issues pertaining to this type of action. The account may be agreed on, as though by a contractual agreement or by an express consent; or the consent or agreement may be implied from the debtor's failure promptly to object to a statement of the account. Each of these approaches are provided for in the bracketed material.

It is not necessary to use any damage instruction with this form, if the bracketed material in the concluding paragraph is used.

664 Quantum Meruit and Quantum Valebant - Issues This is an example of the application of the general issue instruction to an action in the nature of assumpsit quantum meruit or quantum valebant, with no affirmative defense. This form should be usable in almost all actions of this nature.

It is not necessary to use any damage instruction with this form, if the bracketed material in the concluding paragraph is used.

700 Comment as to Eminent Domain Generally  
701 Eminent Domain - Issues  
702 Sole Issue Just Compensation This instruction should be used in every condemnation trial.

Article I, Section 14, Constitution of the State of Idaho; Rueth v. State, 100 Idaho 203, 222, 1979: All issues other than just compensation are for court resolution.

703 Burden of Proof

 

No instruction.

The Committee takes no position as to whether, in a direct condemnation, an instruction on burden of proof should be given. The sole duty of the jury is to determine just compensation. The Supreme Court has said that the burden of proof must be borne by the condemnee; but this seems to pertain to the issue as to which party has the burden of going forward with the evidence.

In an "inverse" condemnation case, the standard burden of proof instruction should be read.

Mabe v. State, 86 Idaho 254 (1963).
704 Witness Opinions

No instruction.

The standard expert witness instruction should be given along with the standard instructions on the credibility of witness and on the weight of the testimony.
710 Measure of Compensation - Total Taking This instruction should be given where total ownership is taken.

In the event of multiple owners of property there should be a lump sum verdict; and the distribution among owners should be made by the Court.

Lump sum special verdict form approved: State ex rel Moore v. Bastain, 98 Idaho 888 (1978).

Compensation and damages measured as of date of issuance of summons, Idaho Code 7-712; State ex rel Moore v. Bastain, 97 Idaho 444 (1976).

711 Fair Market Value - Factors to be Considered See City of Caldwell v. Roark, 92 Idaho 99 (1968); State v. City of Mountain Home, 94 Idaho 528 (1972).
712 Fair Market Value Defined - Total Taking  
713 Special Use of Property City of Caldwell v. Roark, 92 Idaho 99, 437 P.2d 615; State v. City of Mountain Home, 94 Idaho 528, 493 P.2d 387.
714 Owner's Development Plan See City of Caldwell v. Roark, 92 Idaho 99, 437 P.2d 615; State v. City of Mountain Home, 94 Idaho 528, 493 P.2d 387.
715 Measure of Compensation - Partial Taking Use this instruction where only a part of the property is being taken and where the remaining property is not specially and directly benefitted. If only a portion of the property rights are taken, the nature of such rights should be specifically stated. Idaho Code 7-711(2).
716 Factors to be Considered - Partial Taking This instruction may be used in a partial taking where severance damages are claimed.
717 Measure of Compensation - Partial Taking Where Benefits May Accrue This instruction should be used where part of property is being taken and where there is a request for severance damages, and where there is evidence of benefit to the remainder from the property improvement.

See State v. Collier, 93 Idaho 19 (1969).

Idaho Code 7-711 prohibits offsetting benefits to remainder against compensation for taking. Benefits to remainder may be offset only against damages to remainder. Orofino v. Swayne, 95 Idaho 125 (1972).

800 Will Contest 

 

No instruction.

No instruction recommended.

1. Following adoption of the Uniform Probate Code in 1971, the nearly universal practice has been to try will contest issues to the court without a jury. Consequently, the Committee decided that no significant benefit would be gained by preparing a full set of jury instructions on this subject. If jury instructions are required, those found in California Jury Instructions - Civil [BAJI] Nos. 12.00 - 12.24 may be adapted to Idaho practice.

2. Will contest instruction No. 800, contained in the first edition of IDJI, should not be used, since it contains errors relating to the burden of proof. For the appropriate burden of proof on specific issues, practitioners are referred to Idaho Code l5-3-307.

3. The Uniform Probate Code provides for a jury trial on controverted issues of fact only if a constitutional right to a jury exists with respect to a particular issue. Idaho Code 15-1-306. The Idaho Supreme Court has decided that a "constitutional" right to a jury trial is limited to issues triable to a jury under the common law and territorial statutes in force at the time of the approval of the Idaho Constitution in 1890. Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975). With respect to will contests, the following issues constitutionally require a jury trial if demanded:

a. competency of a decedent to make a will;

b. freedom of a decedent at the time of execution of will from duress, menace, fraud, or undue influence;

c. due execution and attestation of a will by a decedent or the subscribing witnesses;

d. any issue substantially affecting the validity of a will. See, R.S. 1887, Section 5308.

900 Damage Instructions Do Not Imply Liability Although in the general instructions the jury has been instructed previously that they should consider only matters shown by the evidence, including damages, the Committee suggests that this additional cautionary instruction is appropriate.
901 Damages for Tort - Introduction this form is intended for use as to all types of tort actions and for recoveries both on complaints and on counterclaims, cross-claims, and third-party claims. The appropriate elements of damage are to be selected from the following damage instructions and inserted in this form, as indicated.

*This sentence should be used in fraud cases, because of the different burden of proof with respect to the other elements of fraud. Compare, IDJI 460-1. The sentence should not be used in other tort actions.

902 Damages for Breach of Contract - Introduction This form was developed in 1981 for general use in actions for breach of contract, including actions involving counterclaims, complaints, cross-claims and third-party claims, as appropriate. The elements of damage that have basis in the evidence are to be inserted in this form.

This instruction is based upon the rules respecting recoverable damages expressed in Traylor v. Henkels & McCoy, Inc., 99 Idaho 560, 585 P.2d 970 (1978), and Lockwood Graders of Idaho v. Neibaur, 80 Idaho 123, 326 P.2d 675 (1958).

910 Elements of Damage - Personal Injury Such of these paragraphs as are supported by evidence, should be used as an integral portion of Instruction # 901, which is the introductory damage instruction.

For negligence cases in which there is no physical contact or in which there is an issue as to whether there was physical contact, the Committee recommends that the word "physical" be inserted before, and as a modifying adjective of, the word "injury" wherever the latter word occurs. For cases of intentional tort, when damages may be awarded for mental suffering alone, the Committee recommends the substitution of the word "wrong" for the word "injury" in the appropriate paragraphs.

This instruction includes also elements appropriate to personal injuries claimed as community property or as to minors.

The Committee recommends against the giving of any instruction that the defendant must take the plaintiff in the state of health or disease in which he was at the time of the accident and against the giving of any instruction that it is no defense that the injury caused by the accident aggravated or rendered more difficult to cure by reason of plaintiff's preexisting condition. Such instructions are argumentative. The instructions recommended cover these aspects in their phrasing as to causation.

Paragraph 7 deals, alternatively, with either loss of marital consortium or loss of a minor's comfort. In the former case the phrases "conjugal relationship with" and "her husband" or "his wife" should be used; in a case by parents for injury to their child, the phrases "protection of" and "their child" should be used. This paragraph does not include loss of financial support in either type of case.

911 Elements of Damage - Death Case See I.C. 5-311 and Hepp v. Ader, 64 Idaho 240, 130 P.2d 859.

In a death case, when supported by evidence, this is to be used as an integral portion of the general introductory damage instruction, Instruction # 901.

It should be noted that a choice is presented as to whether the plaintiff or the decedent's life expectancy is to be mentioned in connection with future losses. The choice, of course, depends upon which of the respective life expectancies is shorter. See BAJI, (6th ed. 1977) no. 14.52. This issue may present a question of fact that must be left to the jury. In that event, language such as "taking into account the life expectancy of the plaintiff or the decedent, whichever you find to be shorter" may be used.

912 Elements of Damage - Property Damage Only Such of these paragraphs as are supported by evidence should be used as an integral portion of Instruction #901, which is the introductory damage instruction.

The committee takes no position as to whether the plaintiff must prove both 1and 2 above. For discussion of this point, See Skaggs Drug Center, Inc. v. City of Idaho Falls, 90 Idaho 1, 407 P.2d 605.

913 Elements of Damage - Total Destruction of Property When applicable, this paragraph should be used as an integral portion of Instruction #901, which is the introductory damage instruction.
914 Elements of Damages - Crop Damages When applicable, this paragraph should be used as an integral portion of Instruction #901, which is the introductory damage instruction.
915 Elements of Damage - Conversion See Unfried v. Libert, 20 Idaho 708, 119 Pac. 885, and Gunnell v. Largilliere Co., 46 idaho 551, 269 Pac. 412, Adair v. Freeman, 92 Idaho 773, 451 P.2d 519.

Such of these paragraphs as are supported by evidence should be used as an integral portion of Instruction #901. Paragraphs 1 and 2 will not normally both be given in the same case. Paragraph 2 is meant for cases in which the property was wrongfully detained, but was returned unharmed. If property is detained wrongfully and returned in a damaged condition, then Paragraphs 2 and 3 of this Instruction and the appropriate paragraphs from Instruction #912, dealing with property damage, should all be given if supported by evidence.

916 Elements of Damage - Breach of Contract Boise City v.. National Surety Co., 30 Idaho 455, 165 Pac. 1131; Dover Lumber Co. v. Case, 31 Idaho 276, 170 Pac. 108; French v. Nabob Silver-Lead Co., 82 Idaho 120, 350 P.2d 206; King v. Beatrice Foods Co., 89 Idaho 52, 402 P.2d 966; Nelson v. Hazel, 91 Idaho 850, 433 P.2d 120.

Such of these paragraphs as are supported by evidence and appropriate in law should be used as an integral portion of Instruction # 901.

The instructions pertaining to business losses may also be pertinent in connection with breaches of contract and should be checked. Although these forms of instructions should be sufficient for most cases, occasionally very unusual situations will require other or additional instructions as to elements of damage.

No instructions are offered with respect to matters covered by the Uniform Commercial Code, as the appropriate statutory language may be used or paraphrased for instructions in cases governed by that Code.

Paragraph 6 above deals with the sale of realty. Of course, in cases involving the breach of land sale contracts, others of these forms may also or alternately, be appropriate in certain situations. State v. Clinger, 72 Idaho 222, 238 P.2d 1145; Anderson v. Michel, 88 Idaho 228, 398 P.2d 228.

Paragraph 7 deals with the situation in which there is a rescission or an issue as to a possible rescission.

917 Liquidated Damages This form is to be used when appropriate as an integral part of the general instruction on Damages - Introduction, Instruction #901, this being inserted as one of the elements of damage. Only those clauses or elements at issue and supported by evidence should be used.

See Graves v. Cupic, 75 Idaho 451, 262 P.2d 1020; Scogings v. Love, 79 Idaho 179,312 P.2d 570; Howard v. Bar Bell Land & Cattle Co., 81 Idaho 189, 340 P.2d 103; Melton v. Amar, 83 Idaho 99, 358 P.2d 855, 86 Idaho 262, 385 P.2d 406; Paffile v. Sherman, 84 Idaho 63, 369 P.2d 434; Walker v. Nunnenkamp, 84 Idaho 485, 373 P.2d 559, 88 Idaho 222, 398 P.2d 444; Miller V. Remior, 86 Idaho 121, 383 P.2d 596; Nichols v. Knowles, 87 Idaho 550, 394 P.2d 630; Dolbeer v. Harten, 91 Idaho 141, 417 P.2d 406; Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005; State v. Parson Construction Co., 93 Idaho 118, 456 P.2d 762; Thompson v. Fairchild, 93 Idaho 584, 469 P.2d 316.

This form may not adequately deal with the appropriateness of a liquidated damage provision in situations in which the actual damages are not measurable by any exact pecuniary standard. Benewah Creek Co. v. Milwaukee Land Co., 41 Idaho 783.

918 Elements of Damage - Business Losses See DeWiner v. Nelson, 54 Idaho 560, 33 P.2d 356; Williams v. Bone, 74 Idaho 185, 259 P.2d 810; Conley v. Amalgamated Sugar Co., 74 Idaho 416, 263 P.2d 705; Curzon v. Wells Cargo, Inc., 86 Idaho 38, 382 P.2d 906; King v. Beatrice Foods Co., 89 Idaho 52, 402 P.2d 966.

Such of these paragraphs as are supported by evidence and appropriate in law should be used as an integral portion of Instruction #901. In some cases both paragraphs 1 and 2 may be appropriate, without paragraph 3.

The instructions pertaining to property damage or breach of contract may also be pertinent in connection with business losses and should be checked.

No instructions are offered with respect to matters covered by the Uniform Commercial Code, as the appropriate statutory language may be used or paraphrased for instructional purposes.

919 Elements of Damage - Fraud The first paragraph states the measure of damages for fraud by a vendor in a sale in Idaho. See Addy v. Stewart, 69 Idaho 357, 207 P.2d 498, and Weitzel v. Jukich, 73 Idaho 301, 251 P.2d 542. In cases covered by the Uniform Commercial Code the appropriate code section should be applied.

The second paragraph suggests in appropriate form, here applied to crops, for the measure of damages when the fraud affects the plaintiff's capacity to complete production of new or separate goods or services.

Punitive damages may be appropriate under certain conditions in a fraud case. Forms for instructions on punitive damages are suggested in Instruction #921 and may be appropriate.

920 Elements of Damage - Other Torts Such of these paragraphs as are supported by evidence and appropriate in law should be used as an integral portion of Instruction #901.

Paragraph 1 states the general tort measure of damages and may be used either alone or as introductory to more specific paragraphs, depending upon the type of case and the evidence. Paragraphs 2, 3, and 4 are intended chiefly for cases of libel, slander, malicious prosecution, and false arrest. Paragraph 5 will apply to false arrest. Paragraph 6 may apply to malicious prosecution and to false arrest cases.

The instructions pertaining to punitive damages and to personal injury cases, particularly those paragraphs on loss of earnings, pain and suffering, and medical expenses, may be appropriate in certain cases and should be reviewed for possible application.

The Committee takes no position as to what is the Idaho law applicable to the measure of damages in all miscellaneous torts. The instruction above is made available for use and is thought to accord with the general law applicable to the torts specified above in these comments.

921 Elements of Damage - Punitive Damages This instruction reflects the holding by the Idaho Supreme Court in Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 655 P.2d 661 (1983), concerning the amount of punitive damages in that it omits any reference to the amount of fees that the jury should award. As stated in Cheney, the trial court now bears the responsibility for refining the amount of such an award. Cheney should not, however, be construed to require any allegation of punitive damages to be submitted to the jury, for the opinion clearly states that the issue of whether such damages should be awarded is one left to the trial court's discretion exercised in light of prior authority, including Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980); Jolley v. Puregro Co., 94 Idaho 702, 496 P.2d 939 (1972). See Soria v. Sierra Pacific Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (1986); Nelson v. Worldwide Lease, Inc., 110 Idaho 369, 716 P.2d 513 (1986).

In describing the state of mind of the defendant on which an award of punitive damages may be predicated, the committee adopted the reference to "a malicious or oppressive state of mind" as a more accurate statement of the basis on which the Supreme Court ultimately decides whether an award of punitive damages is sustained by the evidence. While passing reference was occasionally made to whether the conduct was performed with "an understanding of or a disregard of its likely consequences," the standard applied in the prior instruction, the final analysis generally rested upon the court's determination of whether the defendant was malicious, wanton or oppressive rather than he had acted with an understanding of or disregard of the likely consequences of his conduct. See, e.g., Cheney v. Palos Verdes Investment Corp., 104 Idaho 897 at 905, 665 P.2d 661 (1983). It appeared that the deviation from reasonable standards of conduct with an understanding of or disregard of the likely consequences of doing so was but one example of when punitive damages might be awarded. In other words, the committee intends the reference to "[malice] [fraud] [oppression] [wantonness] [gross negligence]" to be a more general standard than that of the previous instruction. Thus, acting with an extremely harmful state of mind or with an understanding of, or disregard of the likely consequences of, an extreme deviation from reasonable standards of conduct may still be used as proof that the defendant behaved maliciously, oppressively, wantonly or with gross negligence. It is for the court and counsel to select the description applying to a particular case.

930 Value Defined This instruction is not suggested for eminent domain proceedings but for all other types of cases involving evaluation of things and services.
931 Present Case Value  
932 Mitigation See Casey v. Nampa Irrigation District, 85 Idaho 299, 379 P.2d 409.
933 Mortality Tables  
934 Amount of Damages Alleged

No instruction.

By statute, no "amount of damages alleged" instruction is to be given.

See Idaho Code 10-111.

935 Speculative Damages

No instruction.

The Committee recommends against the giving of any instruction as to not permitting speculative damages.

This is a matter properly for control by the court. The Committee is of the view that it is not proper to allow the jury to consider evidence which is speculative in nature and then to instruct them not to award speculative damages. Evidence as to damages which are unduly remote or speculative should not be admitted; if such evidence is admitted and later not properly connected up, the court should instruct the jury to disregard that evidence. If at the end of all the evidence the court concludes that the only evidence on certain damage items is too remote or speculative, no issue as to such damages should be submitted to the jury; such evidence may, in addition, be the subject of an instruction to disregard.

936 Limitation of Liability of Owner of Motor Vehicle

No instruction.

 The Committee recommends that the jury not be instructed as to the limitation in the amount of a liability recoverable against an owner, as owner simpliciter, of a motor vehicle. The Committee recommends rather, that the trial court should accept a verdict on all damages, as modified by comparative negligence, and should then, if necessary, reduce the damage award or awards, proportionately if necessary, to meet the limitations of Idaho Code 49-1404(2). If there is an issue as to whether the vehicle driver was an agent or simply a permissive user, an appropriate special interrogatory should be submitted to the jury on this point.
937 Income Taxes See, e.g., Norfold & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755 (1980); Internal Revenue Code of 1986, IRC 104(a). This instruction should be given only with respect to claims arising out of personal injuries or wrongful death and in other instances - such as recovery for physical damage to property - in which the nontaxability of the jury's award would be clear.
938 Reduced Value of the Dollar

No instruction.

The Committee recommends that no instruction be given about the allegedly reduced value of the dollar. Such an instruction is argumentative.
939 Aggravation of Preexisting Condition Do not use this instruction as an insert in the damage instruction, IDJI #901. It is intended for use as an explanatory instruction where the evidence warrants it.

This instruction deals with proximate cause. It is not a separate element of damage. It is improper to give an instruction of this nature if there is no evidence that any pain or disability was being caused by the preexisting condition prior to the occurrence. See Blaine v. Byers, 91 Idaho 665, 429 P.2d 405 (1967); Bushong v. Kamiah Grain Growers, 96 Idaho 659, 534 P.2d 1099 (1975).

940 Previous Infirm Condition Use bracketed material as applicable. In a directed verdict or admitted liability case, omit the bracketed phrase "if your verdict is in favor of."

Do not use this instruction as an insert in the damage instruction IDJI 901 et seq. It is intended for use as an explanatory instruction where the evidence warrants it.

Use this instruction for a preexisting condition which was not causing pain or disability. If the preexisting condition was causing pain or disability, use IDJI 939.  If evidence is in dispute as to the existence of such preexisting pain or disability, use both instructions.

If the condition was susceptibility which caused more serious consequences, rather than being a dormant condition which was activated by the occurrence, do not use the bracketed phrases which refer to the activation of a dormant condition. Use those two bracketed phrases if more serious consequences of the condition include the activation of a dormant condition. Use the last bracketed sentence only if the evidence would justify a finding that some of the results would have occurred as a normal progression of the condition even if there had been no accident.

This instruction deals with proximate cause. It is not a separated element of damage.

If there is no evidence that a preexisting bodily condition was causing pain or disability before the occurrence, then the activation of that preexisting condition makes a defendant liable for all damages proximately caused to the person in that condition. There is no prior pain or disability to segregate.

See Blaine v. Byers, 91 Idaho 665, 429 P.2d 405 (1967). Bushong v. Kamiah Grain Growers, 96 Idaho 659, 534 P.2d 1099 (1975).

1001 Negligence of Manufacturer Restatement (2d) of Torts, 395, 398; Cf., Idaho Code 6-1405(3). This instruction presumes that the standard IDJI negligence or comparative negligence instructions will be given.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401, et seq. It may be not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction my be necessary.

1002 Negligence of Merchants Other than Manufacturers Idaho Code 6-1407(1). This instruction presumes that the standard IDJI negligence or comparative negligence instructions will be given.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1003 Negligent Failure to Warn - Defined Idaho Code 6-1407(1)(a); Restatement (2d) of Torts 308. This instruction presumes that the standard IDJI negligence or comparative negligence instructions will be given.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1004 Issues - Products Liability Case - Strict Liability Restatement (2d) of Torts 402A. But see Idaho Code 6-1405(4), which puts the burden of proving a change in condition of the product upon the defendant.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1005 Merchant - Defined Idaho Code 28-2-104; Idaho Code 6-1402(1).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1006 Manufacturer - Defined Idaho Code 6-1402(2); Idaho Code 6-1407(1)(c).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1007 Unreasonably Dangerous Defective Condition - Defined Restatement (2d) of Torts 402A, Comments (g) and (i).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1008 Issues - Products Liability Case - Express Warranty Idaho Code 28-2-313 and 28-2-607(3). The listed elements of proof assume the situation in which the defendant sells the product directly to the plaintiff. Their language is not appropriate when the plaintiff did not himself purchase the property but is, instead, one of the persons protected by Idaho Code 28-2-318. In such an instance, several of the numbered paragraphs would have to be modified to fit the precise factual situation.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1009 Affirmation of Fact or Promise - Defined Idaho Code 28-2-313(1).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1010 Breach of Affirmation of Fact or Promise - Defined Idaho Code 28-2-313; 28-2-106(2).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1011 Affirmation of Fact or Promise - Opinion Excluded Idaho Code 28-2-313(2).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1012 Products Liability Case Issues - Implied Warranty of Merchantability Idaho Code 28-2-314 and 28-2-607(3). The listed elements of proof assume the situation in which the defendant sells the product directly to the plaintiff. Their language is not appropriate when the plaintiff did not himself purchase the property but is, instead, one of the persons protected by Idaho Code 28-2-318. In such an instance, several of the numbered paragraphs would have to be modified to fit the precise factual situation.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1013 Implied Warranty of Merchantability - Defined Idaho Code 28-2-314(2).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1014 Issues - Products Liability Case - Implied Warranty of Fitness for a Particular Purpose Idaho Code 28-2-315 and 28-2-607(3). The listed elements of proof assume the situation in which the defendant sells the product directly to the plaintiff. Their language is not appropriate when the plaintiff did not himself purchase the property but is, instead, one of the persons protected by Idaho Code 28-2-318. In such an instance, several of the numbered paragraphs would have to be modified to fit the precise factual situation.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1015 Implied Warranty of Fitness for a Particular Purpose - Defined Idaho Code 28-2-315.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1016 Products Liability Defense - Reasonable Care Idaho Code 6-1407(1). This defense is available only to defendants other than the manufacturers.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1017 Defense of Reasonable Care Inapplicable Idaho Code 6-1407(1).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1018 Products Liability Defense - Failure to Examine Idaho Code 28-2-316(3).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1019 Products Liability Defense - Product Misuse Idaho Code 6-1405(3).

In products liability actions, the defenses of product misuse and assumption of the risk includes such defenses as comparative or contributory negligence upon which no instructions need be given.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1020 Products Liability Defense - Assumption of the Risk Idaho Code 6-1405(2). In products liability actions, the defenses of product misuse and assumption of the risk includes such defenses as comparative or contributory negligence upon which no instructions need be given.

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1021 Products Liability Defense - Alteration of Product Idaho Code 6-1405(4).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1022 Defense of Alteration of Product Inapplicable Idaho Code 6-1405(4).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1023 Products Liability Defense - Failure to Observe Idaho Code 6-1405(1).

This instruction is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act. The instructions and verdict forms as a whole presume the use of either the short or long verdict forms in this section. If a general verdict form is used, some modification of the instruction may be necessary.

1024A Instruction on the Special Verdict - Products Liability Action - Direct Claim Only - Single Parties - Short Form This verdict form is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act.
1024B Special Verdict - Products Liability Action - Direct Claim Only - Single Parties - Short Form This verdict form is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act.
1025A Instruction on the Special Verdict - Products Liability Action - Direct Claim Only - Single Parties - Long Form This form assumes that all possible claims and defenses affecting comparative causation are submitted to the jury. In cases where this is not true, appropriate deletions from the form must be made and the remaining questions renumbered.

This verdict form is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act.

1025B Special Verdict - Products Liability Action - Direct Claim Only - Single Parties - Long Form This form assumes that all possible claims and defenses are submitted to the jury. In cases where this is not true, appropriate deletions from the form must be made and the remaining questions renumbered.

This verdict form is addressed specifically to actions arising under the Idaho Product Liability Reform Act, Idaho Code 6-1401 et seq. It may not be appropriate for use in actions arising before the effective date of that Act.

 

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Last modified: December 04, 2003