N.C.P.I.—Civil 503.75

NOTE WELL: This instruction previously was labeled

“N.C.P.I.–Civil 517.20 Breach of Contract - Special

Damages - Loss of Profits.” It has been revised and

renumbered as N.C.P.I.-Civil 503.75.

A party injured by a breach of contract may (also) be entitled to

recover special or consequential damages, that is, actual economic losses

that occur because of special circumstances or conditions attending a

breach of contract,2 such as loss of profits from other transactions.

Before you may award such damages, the [plaintiff] [defendant]

must prove two things by the greater weight of the evidence:

First, he must prove that, as a result of the breach of contract, he

has suffered a loss of profits from other transactions, and that this loss

was within the contemplation of the parties at the time they made the

contract.3 Loss of such profits would have been within the contemplation

of the contracting parties if: (1) the parties were aware of the special

circumstances or conditions that would give rise to a loss of profits, and

(2) the loss of profits was reasonably foreseeable to one who was aware

of these special circumstances or conditions.4

And Second, the [plaintiff] [defendant] must prove the amount of

the loss of such profits with a reasonable degree of certainty.5 This does

not mean that the [plaintiff] [defendant] must prove the amount of his

loss with mathematical exactness or with absolute certainty. It does

mean, however, that these damages, if any, may not be based upon

conjecture, speculation, or guesswork.6 An award of damages for loss of

profits must be based upon actual facts from which a reasonably accurate

conclusion regarding the amount of the loss can be logically and

rationally drawn.7