N.C.P.I.—Civil 102.13

Was the plaintiff [injured] [damaged] by the negligence of the

minor defendant?

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, three

things:

First, that the minor defendant was capable of negligence. The law

presumes that a child who is between seven and fourteen years of age is

not capable of negligence. However, this presumption may be overcome

by evidence that a child of the minor defendant’s age ordinarily would

have the discretion, judgment and mental capacity to discern and

appreciate circumstances of danger.2 It is your duty to consider all of the

evidence in the case and determine whether the plaintiff has proven, by

the greater weight of the evidence, that a child of the minor defendant’s

age ordinarily would have the discretion, judgment and mental capacity

to use ordinary care to protect himself and others from [injury] [damage].3

Second, that the minor defendant was negligent. “Negligence”

refers to a person's failure to follow a duty of conduct imposed by law.

Every person is under a duty to use ordinary care to protect himself and

others from [injury] [damage]. Ordinary care means that degree of care

which a reasonable and prudent person would use under the same or

similar circumstances to protect himself and others from [injury]

[damage]. A person's failure to use ordinary care is negligence.

Even if a child who is between seven and fourteen years of age is

capable of negligence, the child is not required to exercise the same

degree of care for the safety of others that is required of an adult. 4 The

law imposes a duty upon a child to exercise only that degree of care for

the safety of others that a reasonably careful child of the same age,

discretion, knowledge, experience and capacity ordinarily would exercise

under the same or similar circumstances.5 A child's failure to exercise the

required degree of care would be negligence.

And Third, that the minor defendant’s negligence was a proximate

cause of the plaintiff’s [injury] [damage].

Proximate cause is a cause which in a natural and continuous

sequence produces a person's [injury] [damage], and one which a

reasonable and prudent child of the same age, discretion, knowledge,

experience and capacity could have foreseen would probably produce such

[injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the plaintiff need not prove that the minor

defendant's negligence was the sole proximate cause of the [injury]

[damage]. The plaintiff must prove, by the greater weight of the

evidence, only that the minor defendant's negligence was a proximate

cause.

In this case, the plaintiff contends, and the minor defendant

denies, that the minor defendant was capable of negligence and was

negligent in one or more of the following respects:

Read all contentions of negligence supported by the evidence.

The plaintiff further contends, and the minor defendant denies, that

the minor defendant's negligence was a proximate cause of the plaintiff's

[injury] [damage].

I instruct you that negligence is not to be presumed from the mere

fact of [injury] [damage].

Give law as to each contention of negligence included above.

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that the minor defendant was capable of negligence, was negligent (in

any one or more of the ways contended by the plaintiff) and that such

negligence was a proximate cause of the plaintiff’s [injury] [damage],

then it would be your duty to answer this issue “Yes” in favor of the

plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the minor defendant.