N.C.P.I.—Civil 640.48

The (state number) issue reads:

"Was the [plaintiff] [decedent] [injured] [killed] as a proximate

result of the negligence of the defendant?"1

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] [decedent's] [injury] [death].

Negligence refers to a party's failure to follow a duty of conduct

imposed by law. A person who employs another to do an inherently

dangerous job or activity has a continuing duty to use ordinary care to

ensure that reasonable safety precautions are taken to protect that both

the workers employed and the public generally.2 I instruct you that

negligence is not to be presumed from the mere fact of [injury] [death].

To establish negligence on the part of the defendant, the plaintiff

must prove, by the greater weight of the evidence, four things:3 1) that

the activity which resulted in the [plaintiff’s] [decedent’s] [injury] [death]

was, at the time of that [injury] [death], an inherently dangerous

activity,4 2) that the defendant knew or should have known that the

activity was, at the time of the [plaintiff’s] [decedent’s] [injury] [death],

an inherently dangerous activity, 3) that the defendant failed to use

ordinary care to prevent that [injury] [death], either by taking reasonable

safety precautions5 or by ensuring that such precautions were taken, and

4) that this failure by the defendant to use ordinary care was a proximate

cause of the [plaintiff’s] [decedent’s] [injury] [death]. I will now discuss

these things one at a time and explain the terms used.

First, the plaintiff must prove that the activity which resulted in

[his] [the decedent’s] [injury] [death] was, at the time of that [injury]

[death], an inherently dangerous activity. An activity is inherently

dangerous if it carries with it some substantial danger inherent in the

work itself. 6 In other words, a job or activity is inherently dangerous

when injury or death to those who perform it are recognizable and

substantial risks of the work.7

In determining whether the activity which resulted in the

[plaintiff’s] [decedent’s] [injury] [death] was, at the time of that [injury]

[death], inherently dangerous, your focus must be upon the particular

activity which was conducted and the pertinent circumstances surrounding

that activity.8 Therefore, you may consider the nature of the activity itself

as well as the area in which it was performed.9 However, any dangers

created by how the activity was actually performed may not be considered

in your determination of whether that activity was inherently dangerous.10

Second, the plaintiff must prove the defendant either knew or

should have known that the activity was inherently dangerous at the time

of the [plaintiff’s] [decedent’s] [injury] [death]. This means that the

defendant either actually knew the activity was, at thetime of the

[plaintiff’s] [decedent’s] [injury] [death], inherently dangerous, or should

have known it was inherently dangerous in the exercise of the same

degree of care as would have been exercised by a reasonably careful and

prudent employer in the same or similar circumstances as the defendant.

Third, the plaintiff must prove that the defendant failed to use

ordinary care to prevent [injury] [death] either by taking reasonable

safety precautions or by ensuring that such precautions were taken.

Reasonable safety precautions are those which a reasonable and prudent

person would have taken under the same or similar circumstances to

protect himself and others from [injury] [death] in the performance of the

inherently dangerous activity.

Fourth, the plaintiff must prove that such failure by the defendant

to use ordinary care was a proximate cause of the [plaintiff’s]

[decedent’s] [injury] [death]. Proximate cause is a cause which in a

natural and continuous sequence produces a person's [injury] [death],

and is a cause which a reasonable and prudent person could have

foreseen would probably produce such [injury] [death] or some similar

injurious result.

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

[death]. Therefore, the plaintiff need not prove that the defendant's

failure to use ordinary care was the sole proximate cause of the

[plaintiff’s] [decedent’s] [injury] [death]. The plaintiff must prove, by the

greater weight of the evidence, only that the defendant's failure to use

ordinary care was a proximate cause.

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 activity which resulted in the [plaintiff’s] [decedent’s] [injury] [death]

was, at the time of the [plaintiff’s] [decedent’s][injury] [death], an

inherently dangerous activity, that the defendant knew or should have

known that the activity, at the time of the [plaintiff’s] [decedent’s]

[injury] [death], was an inherently dangerous activity, that the defendant

failed to use ordinary care to prevent [injury] [death] either by taking

reasonable safety precautions or by ensuring that such precautions were

taken, and that this failure by the defendant was a proximate cause of

the [plaintiff's] [decedent’s] [injury] [death], 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.