N.C.P.I.—Civil 741.70

NOTE WELL: Use this instruction only with causes of

action arising on or after January 1, 1996.

The (state number) issue reads:

"Did the defendant unreasonably fail to provide an adequate

warning or instruction with the (name product), proximately causing the

plaintiff's [injury] [death] [damage]?"

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, five

things:

First, that the defendant was the [manufacturer] [seller] of the

(name product).

[A "manufacturer" is a person or entity who designs, assembles,

fabricates, produces, constructs or otherwise prepares a product or a

component part of a product prior to its sale to a user or consumer.]2

[A "seller" is any individual or entity engaged in the business of

selling a product, whether such sale is for resale or for use or for

consumption.3 ("Seller" also includes a retailer, wholesaler or distributor.4

) ("Seller" also includes a lessor engaged in the business of leasing.)5

("Seller" also includes a bailor, that is, one engaged in the business of

lending products to others for pay.)6]

Second, that the defendant failed to provide an adequate warning

or instruction.

Third, that the defendant's failure to provide an adequate warning

or instruction was unreasonable. Failure to provide an adequate warning

or instruction is unreasonable if a reasonable and prudent [manufacturer]

[seller], acting under the same or similar circumstances, would have

provided an adequate warning or instruction.

Fourth, that

[at the time the (name product) left the control of the defendant

without an adequate warning or instruction, the (name product) created

an unreasonably dangerous condition that the defendant knew or, in the

exercise of ordinary care should have known, posed a substantial risk of

harm to a reasonably foreseeable claimant. Ordinary care means that

degree of care which a reasonable and prudent [manufacturer] [seller]

would use under the same or similar circumstances to protect others from

[injury] [death] [damage]7].

[after the (name product) left the control of the defendant, the

defendant became aware of or, in the exercise of ordinary care should

have known, that the (name product) posed a substantial risk of harm to

a reasonably foreseeable user or consumer and failed to take reasonable

steps to give adequate warning or instruction or to take other reasonable

action under the circumstances. Ordinary care means that degree of care

which a reasonable and prudent [manufacturer] [seller] would use under

the same or similar circumstances to protect others from [injury] death]

[damage]8].

[No manufacturer or seller may be held liable for failing to warn

about an open and obvious risk, or a risk that is a matter of common

knowledge.9]

And Fifth, that the defendant's failure to provide an adequate

warning or instruction was a proximate cause of the plaintiff's [injury]

[death] [damage].10 Proximate cause is a cause which in a natural and

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

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

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

injurious result. There may be more than one proximate cause of [an

injury] [a death] [damage]. Therefore, the plaintiff need not prove that

the defendant's failure to provide an adequate warning or instruction was

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

must prove, by the greater weight of the evidence, only that such failure

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 defendant unreasonably failed to provide an adequate warning or

instruction with (name product) and that this failure proximately caused

the plaintiff's [injury] [death] [damage], 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.