N.C.P.I.—Civil 741.72

NOTE WELL: Use this instruction only with causes of

action arising on or after January 1, 1996.

The (state number) issue reads:

"Was the plaintiff's [injury] [death] [damage] proximately caused

by an actual defective design of the [firearm] [ammunition]?"

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] [five] things:2

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

[firearm] [ammunition]. [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.] [A "seller" is a retailer, wholesaler or distributor,3

including an importer. ("Seller" also includes any individual or entity

engaged in the business of selling a product, whether such sale is for

resale or for use or for consumption.)4 ("Seller" also includes a lessor

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

engaged in the business of loaning products to others for pay.)6]

Second, that the actual design of the [firearm] [ammunition] was

defective.

Third, that such defective design caused the [firearm] [ammunition]

not to function in a manner reasonably expected by an ordinary consumer

of the [firearm] [ammunition].

Fourth, that the defective design was a proximate cause of the

plaintiff's [injury] [death] [damage]. 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 defective design of the [firearm] [ammunition] was the

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

prove, by the greater weight of the evidence, only that the defective

design of the [firearm] [ammunition] was a proximate cause.

(Where the claim is asserted against a "manufacturer," the Court

should give this additional element:

Fifth, that at the time of its manufacture, the defendant acted

unreasonably in designing or formulating the (name product).7 In

determining whether the defendant acted unreasonably, you shall

consider, in addition to any other factors supported by the evidence

bearing on the reasonableness of the defendant's conduct, the following:8

1. The nature and magnitude of the risks of harm associated

with the design or formulation in light of the intended and

reasonably foreseeable uses, modifications or alterations of the

[firearm] [ammunition].

2. The likely awareness of users of the [firearm] [ammunition],

whether based on warnings, general knowledge, or otherwise, of

those risks of harm.

3. The extent to which the design or formulation conformed to

any applicable government standard that was in effect when the

[firearm] [ammunition] left the control of the defendant.

4. The utility of the [firearm] [ammunition], including the

performance, safety and other advantages associated with that

design or formulation.

5. The technical, economic and practical feasibility of using an

alternative design or formulation at the time of manufacture.

6. The nature and magnitude of any foreseeable risks associated

with the alternative design or formulation.

(7. State any other factor supported by the evidence which the

Court determines is relevant to whether the defendant acted

unreasonably.))

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the plaintiff's

[injury] [death] [damage] was proximately caused by an actual defective

design of the [firearm] [ammunition], 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.