N.C.P.I.—Civil 102.95

This (state number) issue reads:

“Was the plaintiff damaged by the negligence of the 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, that

the defendant was negligent and that such negligence was a proximate

cause of the plaintiff's damage.

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 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

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

The plaintiff not only has the burden of proving negligence, but also

that such negligence was a proximate cause of the damage.

Proximate cause is a cause which in a natural and continuous

sequence produces a person's damage, and is a cause which a reasonable

and prudent person could have foreseen would probably produce such

damage or some similar injurious result.

There may be more than one proximate cause of damage.

Therefore, the plaintiff need not prove that the defendant's negligence

was the sole proximate cause of the damage. The plaintiff must prove,

by the greater weight of the evidence, only that the defendant's

negligence was a proximate cause.

In this case, the [architect] [project expediter] [(name other

appropriate term)] entered into a contract with (name owner), the owner

of the (name project), to provide services including the scheduling of

work on the project by contractors and subcontractors. An [architect]

[project expediter] [(name other appropriate term)] is required to

exercise that degree of ability, skill and care customarily used by

[architects] [project expediters] [(name other appropriate term)] upon

such projects under the same or similar circumstances. A failure to

exercise such ability, skill and care is negligence.1

The plaintiff contends, and the defendant denies, that the

defendant was negligent in one or more of the following ways:2

(Read all contentions of negligence supported by the

evidence.)

[The defendant failed to properly schedule the work.]

[The defendant failed to maintain a reasonable and workable

project schedule.]

[The defendant failed to give adequate and reasonable notice to

subcontractors regarding the work schedule to ensure efficient

coordination of all phases of the work.]

[The defendant failed to properly incorporate the subcontractors'

input regarding the work schedule.]

[(State other contentions supported by the evidence.)]

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

defendant's negligence was a proximate cause of the plaintiff's damage.

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

fact of damage.

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 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 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.