The State of the Idaho Jury Instructions by Stephen L. Adams

January 4, 2024 by ccarns

by Stephen L. Adams

When it comes to instructing the jury, the parties provide the facts to the jury and the court provides the law. In my experience, this can be done in several ways. Some people rely on the form jury instructions prepared by the Courts, the Idaho Jury Instructions (“IDJI”) and Idaho Criminal Jury Instructions (“ICJI”). Several practitioners and judges write their own jury instructions from scratch every trial as a matter of preference. Sometimes, there is no option but to create jury instructions because there aren’t any form instructions available. This article discusses the purpose and history of the IDJIs, changes to certain instructions by Idaho’s appellate courts, as well as recommendations for additional instructions.

IDJIs and Jury Instructions in General

It is the opportunity (and obligation) of the parties to inform the Court as to what issues are to be presented to the jury, and request instructions to be given.[i] Under the rules of civil procedure, “Whenever the latest edition of Idaho Jury Instructions contains an instruction applicable to a case and the court determines that the jury should be instructed on the subject, the court should use the IDJI instruction unless it finds that a different instruction more adequately, accurately or clearly states the law.”[ii] In other words, there is no need to recreate the wheel when it comes to jury instructions: use the IDJIs when you can.

That being said, it should not automatically be presumed that an IDJI is the proper instruction to give. The Supreme Court requires that jury instructions, “when considered as a whole and not individually, fairly and adequately present the issues and state the applicable law.”[iii] A jury instruction is permissible so long as it is, “simple, brief, impartial, and free from argument.”[iv] These general principles match with the plain language of the civil rules allowing for the trial court to not use an IDJI if a different instruction more clearly states the law. Further, the Idaho Supreme Court will occasionally comment on individual IDJIs, and in doing so, may change or alter the law so that an IDJI no longer accurately sets forth the law on a subject.

History of the IDJIs

The last time the IDJIs were updated was in 2003,[v] and before that in 1988.[vi] Needless to say, the IDJIs are not updated daily and are currently 20 years old. The following is a discussion of caselaw addressing Idaho Jury Instructions. Due to their age, there are certain IDJIs that are no longer valid and should not be requested for use at trial.

IDJI 2.25 – Definition Of “Willful and Wanton”

This instruction has been acknowledged as a potential instruction for recklessness in civil cases.[vii] However, it does not specifically define recklessness, and was never required to be used as the only recklessness instruction.[viii] As a result, this instruction has rarely been used, and different formulations of recklessness have been given by courts throughout the years.[ix] Because there is no IDJI specifically addressing recklessness, there has been much argument and confusion as to how the jury should be informed regarding recklessness. The reason this matters is that general/non-economic damages are capped unless the jury finds that the defendant acted willfully or recklessly.[x]

The Idaho Legislature appears to have stepped in to resolve this issue, as there is now a statutory definition as to what amounts to recklessness for purposes of the non-economic damages cap. Idaho Code § 6-1601(10) reads: “‘Willful or reckless misconduct’ means conduct in which a person makes a conscious choice as to the person’s course of conduct under circumstances in which the person knows or should know that such conduct both creates an unreasonable risk of harm to another and involves a high probability that such harm will actually result.” In providing this definition, the Legislature did not mandate that this definition be used as a recklessness instruction in civil cases. Regardless, under the principles stated, the simplest, most accurate statement of law regarding recklessness (particularly as it applies to the non-economic damages cap) is this definition. As a result, it is anticipated that courts will utilize this definition, or a form of it, to instruct juries as to what constitutes recklessness. A discussion of concerns regarding this instruction is contained in the next article in this edition of The Advocate.

IDJI 2.30.1 and 2.30.2 – Which Proximate Cause Instruction to Use?

IDJI 2.30.1 and 2.30.2 are related jury instructions, in that they are two different formulations of the proximate cause instruction. IDJI 2.30.1 is the “but for” proximate cause instruction, and IDJI 2.30.2 is the “substantial factor” proximate cause instruction. However, they do not work together: “The ‘but for’ instruction and the ‘substantial factor’ instruction are mutually exclusive.”[xi] As a result, they cannot both be given in one case. The question a court must address first, then, is which one applies? According to the Supreme Court, “The trial court should give the ‘but for’ instruction when there is only one possible cause for the injury.”[xii] This guidance is of rather limited help, because when is there only one cause of an injury?

Looking at it another way, a clever attorney can typically identify multiple contributing factors to an injury. For example, a party, “cannot simultaneously point to a second cause, independent of his negligence, and at the same time maintain that this is a single cause case.”[xiii] As a result, it is unlikely that a “but for” instruction could be given if a defendant raises comparative negligence. Further, if the parties disagree as to the cause of the injury, then a “but for” instruction is likely not available.[xiv] Idaho caselaw even alludes to the possibility that if a plaintiff alleges two separate acts of negligence, which may be enough to avoid a “but for” instruction.[xv]

The practical effect of Idaho’s caselaw regarding the “but for” instruction is that IDJI 2.30.1 is a dead letter. The Idaho Supreme Court’s recent decision in Beebe v. N. Idaho Day Surgery, LLC seems to drive the final nail in the coffin for this jury instruction. Beebe was a medical malpractice case arising out of allegedly wrongful care in the treatment of a melanoma, in which a specimen was lost.[xvi] Though a number of defendants were sued on various causes of action, only one defendant went all the way through trial (the others settling prior to trial).[xvii] As a result, the remaining defendant successfully convinced the trial court that there was only one defendant and one claim, and therefore only one cause of the injury.[xviii] The plaintiffs argued that even though there was one defendant, the negligence was the result of multiple people and actions contributing to the injury.[xix] On appeal, the Supreme Court discussed the history of caselaw discussing IDJI 2.30.1 and 2.30.2, and found that because various arguments were made as to the cause of the injuries, a “but for” instruction could not be given.[xx]

Though Beebe does not say anything about IDJI 2.30.1 being unavailable, the practical result is that it is unlikely that a “but for” instruction will ever be available in negligence cases in the future. The last case the author could find that a “but for” jury instruction was approved by the Idaho Supreme Court was in 1989,[xxi] and that case was not unanimous. Therefore, it seems extremely unlikely that any negligence claim will ever support a “but for” instruction in the future. Practitioners should not assume that they will ever get such instruction in their cases, as it simply no longer appears viable.

IDJI 2.30.2 – Proximate Cause

As discussed, in negligence claims it appears that the only viable jury instruction is the “substantial factor” instruction. However, even this instruction is no longer valid in the form set forth in IDJI 2.30.2. This instruction has been modified by caselaw: the phrase, “It is not a proximate cause if the injury, loss or damage likely would have occurred anyway,” has been read out of the first paragraph.[xxii]

Further, there are a considerable number of issues with this instruction. Though it is not the purpose of this article to discuss the numerous policy factors inherent in the language of IDJI 2.30.2 (even as modified by caselaw), parties should be aware that there are numerous additional arguments that can (and should) be made regarding this instruction.[xxiii]

IDJI 6.22.1, 6.22.2, and 6.24.1

Each of these IDJIs deals with equitable issues, such as waiver and estoppel. The validity of these jury instructions is questionable, mainly because they are not issues that a jury would resolve. Based on its name, equitable estopple is an equitable concept. The same is true for waiver and other forms of estoppel – they are straightforward equitable constructs.[xxiv] As actions or defenses in equity, it is unclear why there are jury instruction on an these issues because juries do not decide equitable claims or defenses.[xxv] Though I.R.C.P. 39(c) gives the trial court the authority to have an advisory jury hear equitable issues, it is unclear why the IDJIs contain jury instructions solely for waiver and equitable estoppel.

IDJI 6.27.1 – Fraud

This instruction sets forth the elements of fraud as a defense, as opposed to fraud as a cause of action. In addressing this instruction, the Idaho Supreme Court has stated that the ninth element, as set forth in IDJI 6.27.1, is not supported by any law they could identify.[xxvi] This comment was made in a footnote, and the comment specifically indicates that the Supreme Court was not ruling on this issue because it did not affect the outcome of the case. However, the plain subtext of the comment is that the text of IDJI 6.27.1 is questionable and may not be a reliable source of law on this defense.

IDJI 6.40.6 – Agent or Independent Contractor

This instruction sets forth the law on an agency relationship as opposed to an independent contractor relationship. The Idaho Supreme Court has recently stated that the law on the agency/independent contractor relationship is confusing. Specifically, the Supreme Court has noted that the terms have different meanings depending on the context in which they are used, such as in tort, contract, and workers’ compensation law.[xxvii] In discussing this confusion, the Supreme Court pointed to IDJI 6.40.6, indicating that a one-size-fits-all instruction (stating that “an independent contractor is not an agent”) may not work under every circumstance.[xxviii] As a result, while IDJI 6.40.6 may apply in some situations, the Supreme Court has clearly indicated that an agency relationship may exist between an independent contractor and the person who hired them. As a result, before utilizing IDJI 6.40.6, a practitioner is encouraged to research if their case is the type of case where IDJI 6.40.6 is a correct statement of law and is applicable under the circumstances.

**How Eldridge May Require Modified Special Verdict Forms**

There are a variety of special verdict forms included in the IDJIs. Most of these have places for the jury to determine liability, and if liability is found, a place for the jury to assess damages. However, there is at least one substantial post-verdict issue that must be addressed by the Court which involves issues where a standard special verdict form would be insufficient. Specifically, Idaho’s collateral source rule states that, “Evidence of payment by collateral sources is admissible to the court after the finder of fact has rendered an award. Such award shall be reduced by the court to the extent the award includes compensation for damages which have been compensated independently from collateral sources.”[xxix] This rubric states that damages awarded by the jury may be reduced by the trial court to the extent any collateral source payments were made to the plaintiff. However, this reduction only occurs after the trial is complete and the jury is dismissed.

In Eldridge v. West, the Supreme Court made it clear that the collateral source rule applies to Medicare and insurance adjustments to medical bills.[xxx] However, they did not explain how this was supposed to work. At trial, a plaintiff may present to the jury the amounts charged by medical care providers to treat injuries, and after trial, any Medicare or insurances adjustments and negotiated reductions are removed from damages. However, none of the special verdict forms in the IDJIs have a space where a jury could identify which medical expenses it awards. Thus, a jury could award all medical expenses a plaintiff requests, in which case it is relatively easy to determine the amount of adjustments/write-offs. However, a jury could also award a lesser amount, in which circumstance it may be impossible to determine which expenses are being awarded, and which are not. This also makes it difficult, if not impossible, to determine which adjustments or negotiated reductions should be removed from damages. The Supreme Court did not give any indication in Eldridge how this is to work.

As a result, where a civil case involves medical expenses as a type of damages, a modified special verdict form will be necessary to allow for the post-trial collateral source reductions. Possible solutions to this problem include listing on the special verdict form every medical bill supposedly caused by the wrongful conduct. An alternate solution includes utilizing percentages, such that if the total adjustments amount to 60% of the billed amount, then the award, whatever it is, is reduced to the same adjusted percentage, even if such reduction does not completely accurately represent the reductions that occurred. A third option could be to require the jury to simply identify which medical expenses are being awarded.

Needless to say, some of these solutions may be unworkable, and potentially even create improper limits on a jury’s role as factfinder. While it would be helpful to have a uniform method of dealing with this issue, and a special verdict form that parties could work off of, the Supreme Court has not given any guidance on this issue. Until this issue reaches the Supreme Court again, practitioners are encouraged to be creative in their modifications of the special verdict forms. There are likely alternate solutions not considered herein. Potential IDJIs impacted by this issue include IDJI 1.43.1 and 1.43.2.

As a practical matter, it is encouraged that practitioners propose some reasonable option to the court when submitting jury instructions (and during the jury instruction conference). A potential fear is that if a trial court is unable to figure out how the reduction is supposed to happen (such as by not being able to match up the jury’s medical expense award with specific medical expenses), the trial court will simply toss up its hands and make no reduction at all. However, the collateral source rule says that collateral sources “shall” be reduced from damage awards.[xxxi] This means the reduction is mandatory.[xxxii] If a reasonable special verdict form (or other method for the jury to explain their award of medical expenses) is proposed and the trial court refuses to offer it, an argument could be made that the trial court abused its discretion in failing to give a sufficient instruction.[xxxiii] This way, the issue is preserved for appeal, and it cannot be argued that the parties invited the error.[xxxiv]

The Need for Additional IDJIs

While it is likely that the next version of the IDJIs will include changes based on the caselaw outlined here, the reality is that there is a substantial need for more uniform instructions. Any practitioner who has dealt with employment law has likely had an experience drafting jury instructions from scratch regarding whistleblower actions, or something similar. While some employment jury instructions may be borrowed from federal law, not every state employment claim matches up with a federal claim. Therefore, it may be time to utilize Section 5.00 and Section 8.00 of the IDJIs (which are currently “reserved”) to add instructions on claims not yet covered by IDJIs, including employment law claims.

Conclusion

The IDJIs are an especially useful resource to practitioners and judges. However, relying on an IDJI without doing research to see whether it is valid may be hazardous to the health of a case. Every practitioner should confirm that a desired IDJI is still valid before requesting it for use at trial. Similarly, an update to the IDJIs would benefit practitioners and Idaho’s trial courts, as there is not always a straightforward way to determine if the IDJI is in line with current law. Such an update would allow for addition of jury instructions for claims not currently addressed in the IDJIs.

While the information discussed here is intended to assist parties in preparation of jury instructions, the ultimate obligation lies with practitioners to research the law about the claims in their cases. If the law matches with the IDJI, then use of the IDJI is most likely appropriate. If the law has changed, or the IDJI was never appropriate in the first place, then alternate jury instructions should be prepared and recommended to the court.

[i] I.R.C.P. 51(a).

[ii] I.R.C.P. 51(g).

[iii] Highland Enters. v. Barker, 133 Idaho 330, 343, 986 P.2d 996, 1009 (1999).

[iv] Herrett v. St. Luke’s Magic Valley Reg’l Med. Ctr., Ltd., 164 Idaho 129, 137, 426 P.3d 480, 488 (2018).

[v] See https://isc.idaho.gov/main/civil-jury-instructions (last checked Oct. 5, 2023).

[vi] See https://isc.idaho.gov/sites/default/files/Civil_Jury_Instructions/1_Introduction.docx (last checked Oct. 5, 2023).

[vii] See, e.g., Noel v. City of Rigby, 166 Idaho 575, 583, 462 P.3d 103, 111 (2020).

[viii] Herrett, 164 Idaho at 137, 426 P.3d at 488 (2018) (“While we have said that IDJI 2.25 would be acceptable as a jury instruction defining the term reckless, we have never held that this is the only definition.”).

[ix] See Carrillo v. Boise Tire Co., 152 Idaho 741, 747, 274 P.3d 1256, 1262 (2012); Hennefer v. Blaine Cty. Sch. Dist., 158 Idaho 242, 253, 346 P.3d 259, 270 (2015); Ballard v. Kerr, 160 Idaho 674, 708, 378 P.3d 464, 498 (2016); Herrett v. St. Luke’s Magic Valley Reg’l Med. Ctr., Ltd., 164 Idaho 129, 136, 426 P.3d 480, 487 (2018); Noel v. City of Rigby, 166 Idaho 575, 462 P.3d 103, 111 (2020).

[x] Idaho Code § 6-1603(4).

[xi] Garcia v. Windley, 144 Idaho 539, 543, 164 P.3d 819, 823 (2007).

[xii] Le’Gall v. Lewis Cnty., 129 Idaho 182, 186, 923 P.2d 427, 431 (1996).

[xiii] Newberry v. Martens, 142 Idaho 284, 289, 127 P.3d 187, 192 (2005).

[xiv] Fussell v. St. Clair, 120 Idaho 591, 592, 818 P.2d 295, 296 (1991).

[xv] Garcia v. Windley, 144 Idaho 539, 543–44, 164 P.3d 819, 823–24 (2007).

[xvi] Beebe v. N. Idaho Day Surgery, LLC, 171 Idaho 779, 526 P.3d 650, 654 (2023), reh’g denied (Apr. 10, 2023).

[xvii] Id. at 655.

[xviii] Id.

[xix] Id.

[xx] Id. at 658–59.

[xxi] Hilden v. Ball, 117 Idaho 314, 337–38, 787 P.2d 1122, 1145–46 (1989).

[xxii] See Fussell v. St. Clair, 120 Idaho 591, 595, 818 P.2d 295, 299 (1991); Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 51, 830 P.2d 1185, 1189 (1992); Newberry v. Martens, 142 Idaho 284, 287–91, 127 P.3d 187, 190–94 (2005); Garcia v. Windley, 144 Idaho 539, 543–46, 164 P.3d 819, 823–26 (2007).

[xxiii] See Adams, Stephen, “How to Use the Substantial Factor Jury Instruction,” The Dynamics of Civil Defense, Winter 2023, pp. 1 – 2 and 4.

[xxiv] See Bronco Elite Arts & Athletics, LLC v. 106 Garden City, LLC, 534 P.3d 558, 570 (Idaho 2023) (“The doctrine of waiver is an equitable one, based upon fairness and justice.”); Med. Recovery Servs., LLC v. Eddins, 169 Idaho 236, 243, 494 P.3d 784, 791 (2021) (holding that judicial estoppel is equitable); SilverWing at Sandpoint, LLC v. Bonner Cnty., 164 Idaho 786, 800, 435 P.3d 1106, 1120 (2019) (promissory estoppel is equitable); Hollingsworth v. Thompson, 168 Idaho 13, 22, 478 P.3d 312, 321 (2020) (quasi estoppel is based on “notions of justice and fair play”).

[xxv] Rees v. Gorham, 30 Idaho 207, 164 P. 88, 89 (1917) (“This court has adhered to the rule that parties are not entitled to a jury trial in equitable actions.”).

[xxvi] Washington Fed. Sav. v. Van Engelen, 153 Idaho 648, 657, 289 P.3d 50, 59 (2012) (fn. 1).

[xxvii] Nelson v. Kaufman, 166 Idaho 270, 277, 458 P.3d 139, 146 (2020).

[xxviii] Id.

[xxix] Idaho Code § 6-1606.

[xxx] Eldridge v. West, 166 Idaho 303, 313–14, 458 P.3d 172, 182–83 (2020).

[xxxi] Idaho Code § 6-1606.

[xxxii] See Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150 (1995).

[xxxiii] Correctness of jury instructions is a question of law. Bailey v. Sanford, 139 Idaho 744, 750, 86 P.3d 458, 464 (2004). However, whether a jury instruction is supported by evidence and whether it should be given is a discretionary question. Craig Johnson Const., L.L.C. v. Floyd Town Architects, P.A., 142 Idaho 797, 800, 134 P.3d 648, 651 (2006).

[xxxiv] “The purpose of the invited error doctrine is to prevent a party who caused or played an important role in prompting a trial court to give or not give an instruction from later challenging that decision on appeal.” State v. Adamcik, 152 Idaho 445, 476, 272 P.3d 417, 448 (2012).