N.C.P.I.—Civil 741.66

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 [implied warranty of merchantability] [implied

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

[course of dealing] [usage of trade]] extend4 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, that the defendant is a manufacturer. A manufacturer is a

person or entity who designs, assembles, fabricates, produces, constructs

or otherwise prepares a product or component part of a product prior to

its sale to a user or consumer. ("Manufacturer" includes a seller owned in

whole or significant part by the manufacturer, or a seller owning the

manufacturer in whole or significant part.)5

Second, that the defendant manufactured the (state product).6

Third, that (name buyer) bought the (state product).7

Fourth, that at the time of the [injury] [death] [damage to

property], the plaintiff must have been [a member of (name buyer)'s

family] [a guest

of a member of (name buyer)'s family] [a guest of (name buyer)] [(name

buyer)'s employee].

[A person is a member of a family if he or she is a (describe family

relationship).8]

[A person is a guest of a member of a family if (name family

member) is the buyer's (describe family relationship)9 and such person is

(present in the home)10 (on the premises)11 (in the automobile)12

(describe other situation)13 with (name family member)'s express or

implied consent.14]

[A person is a guest of a buyer if such person is (present in the

home)15 (on the premises)16 (in the automobile)17 (describe other

situation)18 with the buyer's express or implied consent, and such person

has the right to be there.19]

[A person is a buyer's employee if he is engaged in an employment

under any appointment or contract of hire or apprenticeship, express or

implied, oral or written (including aliens, whether lawfully or unlawfully

employed) (including minors, whether lawfully or unlawfully employed)

(including (here describe other classes of statutory employees under N.C.

Gen. Stat. § 97-2(2)).20 A person is a buyer's employee if the buyer has

the right to control the manner or method in which such person does the

work. As long as the buyer has this right of control, it does not matter

whether the buyer actually exercises it.21]

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 [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.