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Grager v. Schudar - 2009 ND 140, 770 N.W.2d 692


Jury instructions must fairly and adequately inform the jury of the applicable law. Although a party is entitled to instructions that present the party's theory of the case, a district court is not required to instruct the jury in the exact language sought by a party if the court's instructions correctly and adequately inform the jury of the applicable law. On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient. 


Plaintiff Michele DeeAnn Grager filed a lawsuit in North Dakota stat court against defendants Kevin Schudar, individually and as an employee of defendant Barnes County, North Dakota ("County"), alleging that while Grager was incarcerated in the Barnes County Jail in Nov. 2004, Schudar sexually assaulted her. As a result of the incident, Schudar pleaded guilty to sexual abuse of a ward under N.D.C.C. § 12.1-20-06, which proscribed a jailer's sexual act with a prisoner regardless of the prisoner's consent. In Gager's civil action, Grager alleged causes of action for assault, battery, intentional infliction of emotional distress, and a violation of her civil rights; as to the County, she Gager alleged claims of negligent supervision of Schudar and violations of her civil rights. After trial, a jury found that the County was not at fault in supervising Schudar and that Grager consented to Schudar's conduct. Judgment was entered dismissing Grager's civil action, and the district court thereafter denied Grager's motion for a new trial. Grager appealed.


Did the district court err when it instructed the jury that Grager's consent was a complete defense to her claims against Schudar and the County?




The state supreme court reversed the district court's judgment and remanded the action for further proceedings.The court held that an adult prisoner's apparent consent to or participation in sexual conduct with a jailer imposed neither absolute liability on the jailer nor a complete bar to the prisoner's recovery in a civil action premised upon the sexual conduct. When consent to a sexual act by a person who was in official custody was at issue in a situation where the actor had control over the detained person, a jury had to be instructed that it had to consider all of the factors limiting the detained person's ability to control the situation or to give consent in deciding if the detained person effectively consented to the sexual act. The district court's instruction that Grager's consent to or participation in Schuder's conduct was a complete defense was not a correct statement of the law. 

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