N.C.P.I.—Civil 741.65

NOTE WELL: This instruction should be used where the

plaintiff's right to sue is being challenged on the

ground of lack of privity with the defendant.

The (state number) issue reads:

"Did the defendant's [express warranty] [implied warranty of

merchantability] [implied warranty of fitness for a particular purpose]

[implied warranty created by [course of dealing] [usage of trade]]

extend3 to the plaintiff?"

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

number) issue "Yes" in favor of the plaintiff.

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, four

things:

First, the plaintiff must [be] [have been] a natural person. This

means an individual.4 (The following are not natural persons: a

corporation, government or governmental subdivision or agency, business

trust, estate, trust, partnership or association, two or more persons

having a joint or common interest,5 or any other legal or commercial

entity.6)

Second, at the time of his [injury] [death], the plaintiff must have

been [in (name buyer)'s family] [in (name buyer)'s household] [a guest in

(name buyer)'s home].7

[A person is in someone's "family" if he or she is a (describe family

relationship).]8

[A person is in someone's "household" if he or she lives there.]9

[A person is a "guest" in someone's home when he or she is

present (in the home) (on the immediate premises) with the express or

implied consent of a lawful occupant.]10

Third, that the defendant should reasonably have expected that a

person like the plaintiff might use, consume or be affected by the (name

good). Whether the defendant should have had such a reasonable

expectation will depend on factors such as (the closeness of family ties

between the plaintiff and (name buyer)) (the distance between (name

buyer)'s home and where the plaintiff lived) (the nature of the product,

that is, whether the (name good) was of a type which the defendant

could foresee that (name buyer) would use around the plaintiff, or pass

on to the plaintiff for his use or consumption, or which would otherwise

affect plaintiff) (describe other relevant factors).11

Fourth, the breach of [express warranty] [implied warranty of

merchantability] [implied warranty of fitness for a particular purpose]

[implied warranty created by [course of dealing] [usage of trade]] caused

the plaintiff's [injury] [death].12 Cause means real cause- a cause

without which the claimed [injury] [death] would not have occurred.

(There may be more than one cause of [an injury] [a death]. Therefore,

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

defendant's breach of [express warranty] [implied warranty of

merchantability] [implied warranty of fitness for a particular purpose]

[implied warranty created by [course of dealing] [usage of trade]] was a

cause of the plaintiff's [injury] [death].)

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 [express warranty] [implied warranty of merchantability]

[implied warranty of fitness for a particular purpose] [implied warranty

created by [course of dealing] [usage of trade]] extends 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.