N.C.P.I.—Civil 103.30

NOTE WELL: This instruction is to be used only where civil

conspiracy is alleged2 to associate the defendant with others3 for

the purpose of establishing joint and several liability. There is no

independent claim for civil conspiracy alone.4 To create joint and

several liability by reason of conspiracy, there must be injury or

damage caused by an overt or wrongful act,5 done by a

conspirator, pursuant to the common scheme and in furtherance

of the conspiracy.6

The (state number) issue reads: “Did (name defendant) conspire with

(name all alleged co-conspirators) or any one or more of them to (state

object(s) of conspiracy)?”

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

issue “Yes” in favor of the plaintiff.]7

NOTE WELL: Select one bracketed paragraph depending on

whether the defendant conspired to do an unlawful act, or

conspired to do a lawful act in an unlawful way.

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

and (name all alleged co-conspirators) conspired to do an unlawful act, that

is (state claim). I instruct you, members of the jury, that (state claim) is an

unlawful act. Thus, if you have answered the (state number) issue “Yes” in

favor of the plaintiff, you must consider whether the defendant conspired with

the (name all alleged co-conspirators) or any one or more of them to (state

claim).]

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

and (name all alleged co-conspirators) conspired to do a lawful act in an

unlawful way. An act, while lawful in and of itself, may be done with an intent

or purpose which makes it unlawful.8 I instruct you, members of the jury, that

(state act or acts) [is] [are] not, in and of [itself] [themselves], unlawful.

However, if (state act or acts) [was] [were] done with the purpose or intent9

to (state object of offense), then while the act(s) may be lawful in and of

[itself] [themselves], this purpose or intent would make [it] [them] unlawful.10

Thus, if you have answered the (state number) issue “Yes” in favor of the

plaintiff, you must consider whether the defendant conspired with (name all

alleged co-conspirators) or any one or more of them to (state act or acts) with

the purpose or intent to (state object of offense).]

On this issue the plaintiff has the burden of proof. This means that the

plaintiff must prove, by the greater weight of the evidence,11 the following

[two] [three] things:

First, that (name all alleged co-conspirators) or any one or more of them

agreed with (name defendant) [to do an unlawful act] [to do a lawful act in

an unlawful way], [and]

Second, that one or more of the parties to the agreement committed an

overt act in furtherance of the aims of the agreement12

NOTE WELL: If the issue of whether a defendant has committed a

wrongful act has previously been determined, then the third

element, as to proximate cause, need not be given. If the issue of

whether a defendant has committed a wrongful act has not

previously been given, then the jury would be instructed on the

third element, as bracketed below.

[And third, that the act(s) committed in furtherance of the aims of the

agreement proximately caused [injury] [damage] to the plaintiff.13]

I will now explain each of these requirements.

First, the plaintiff must prove that (name all alleged co-conspirators) or

any one or more of them agreed with (name defendant) to do [an unlawful

act] [a lawful act in an unlawful way]. Such an agreement is called a

conspiracy. A conspiracy is a combination of two or more persons to

accomplish some unlawful purpose or to accomplish some lawful purpose by

unlawful means. There can be no conspiracy unless more than one person is

involved. The very word “conspiracy” means “together with someone else.” In

other words, a conspiracy is a kind of partnership or joint enterprise in which

each member becomes the agent of every other member with respect to the

common plan, and each member is held responsible for the acts of or

statements made by any other member made or done in furtherance of the

common plan.14 The essence of a conspiracy is an unlawful combination to

violate or to disregard the law.15

[And] Second, the plaintiff must prove that one or more of the parties

to the agreement committed an overt act in furtherance of the aims of the

agreement. An overt act is an act which could be neutral in its character, but

which is evidence of affirmative action showing an intent to accomplish or

further the objects of the alleged conspiracy. It is not necessary for the

plaintiff to prove that all or any one of the aims of the agreement was

accomplished.16 The plaintiff must show, however, that one or more of the

parties to the agreement performed at least one act in furtherance of the

agreement.

[And Third, the plaintiff must prove that the overt act(s) committed in

furtherance of the conspiracy [was] [were] a proximate cause of [injury]

[damage] to the plaintiff.

A proximate cause is a real cause—a cause without which the claimed

[injury] [damage] would not have occurred, and one which a reasonably

careful and prudent person could foresee 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 party seeking damages need not prove that the overt act(s)

[was] [were] the sole proximate cause of the [injury] [damage]. The plaintiff

must prove, by the greater weight of the evidence, only that the overt act(s)

[was] [were] a proximate cause.

Finally, with respect to this issue, on which the plaintiff has the burden

of proof, if you find, by the greater weight of the evidence, that the defendant

agreed with (name all alleged co-conspirators) or any one of them to do [an

unlawful act] [a lawful act in an unlawful way], and that one or more of the

parties to the agreement then committed [an] overt act(s) in furtherance of

the aims of the agreement, [and that such overt act(s) proximately caused

[injury] [damage] to the plaintiff], 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.