N.C.P.I.—Civil 102.86

(NOTE WELL: Use this instruction only where an issue

as to plaintiff's contributory negligence will be

submitted and where the plaintiff seeks to overcome a

prospective adverse finding on the issue of contributory

negligence by proving defendant's conduct was willful

or wanton.1 If plaintiff's contributory negligence is not

at issue, N.C.P.I.-Civil 102.85 should be used.)

The (state number) issue reads:

"Was the plaintiff [injured] [damaged] by willful or wanton conduct

of the defendant?"

You will answer this issue only if you have answered the (state

number) issue as to the defendant's negligence "yes" in favor of the

plaintiff and the (state number) issue as to plaintiff's contributory

negligence "yes" in favor of the defendant. Ordinarily a finding of

contributory negligence would prevent any recovery by the plaintiff.

However, the plaintiff may recover when the defendant's conduct goes

beyond ordinary negligence and is willful or wanton.

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

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

defendant engaged in willful or wanton conduct and that such conduct

was a proximate cause of the plaintiff's [injury] [damage].

The tests for negligence and contributory negligence which I

defined and explained to you previously are not the same tests which you

will apply in considering this issue. The issue here is whether the

defendant's conduct was willful or wanton.

An act is willful if the defendant intentionally fails to carry out

some duty imposed by law or contract which is necessary to protect the

safety of the person or property to which it is owed.2

An act is wanton if the defendant acts in conscious and intentional

disregard of and indifference to the rights and safety of others.3

In this case, the plaintiff contends, and the defendant denies, that

the defendant engaged in willful or wanton conduct in one or more of the

following respects:

Read all contentions of willful or wanton conduct supported

by the evidence.

You must decide whether such conduct occurred and, if it did occur,

whether such conduct was willful or wanton.

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

alleged willful or wanton conduct was a proximate cause of the plaintiff's

[injury] [damage]. The test for proximate cause which I defined and

explained to you previously is the same test which you will apply in

considering this issue.

I instruct you that willful or wanton conduct is not to be presumed

from the mere fact of negligence or injury, and proximate cause is not to

be presumed from the mere existence of willful or wanton conduct.

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 defendant's conduct was willful or wanton, and that such conduct

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 defendant.