DeGraff v. Wight ( 1997 )

McDEVITT,^* Justice,

dissenting.

The Court is retrying this ease. The jury found DeGraff a “trespasser.” There was an abundance of evidence to support the jury having based its finding on Instruction 10(2a) that DeGraffs presence was not known nor reasonably anticipated. There is no basis to find the jury was mislead or went awry. “Reversible error only occurs when an instruction misleads the jury or prejudices a party.” Manning v. Twin Falls Clinic & Hosp., 122 Idaho 47, 51, 830 P.2d 1185, 1189 (1992) (citing Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985)). It is not PLAUSIBLE for me to join the Court’s opinion.

* Justice McDevitt participated in this decision pri- or to his resignation.