N.C.P.I.—Civil 743.07

NOTE WELL: Use this instruction only with causes of

action arising before January 1, 1996. For causes of

action arising on or after January 1, 1996, use N.C.P.I.-

Civil 744.07.

The (state number) issue reads:

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

by an alteration or modification made to the (name product) by someone

other than the defendant after it left the defendant's control and [without

the defendant's express consent] [not in accordance with the defendant's

instructions or specifications]?"

On this issue the burden of proof is on the defendant. This means

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

four things:

First, that the (name product) was altered or modified. A product

has been altered or modified if there has been a change in its [design]

[function] [formula] [use from that originally designed, tested or intended

by the manufacturer] [(state any other alleged alteration or

modification)]. (An alteration or modification can also occur as a result

of someone's failure to observe routine care and maintenance. However,

a product is not altered or modified as the result of ordinary wear and

tear.)4

Second, that someone other than the defendant made the

alteration or modification after the (name product) left the control of the

defendant.5

Third, [that the defendant did not expressly consent6 to such

alteration or modification] [that such alteration or modification was not in

accordance with the defendant's instructions and specifications].

Fourth, that such alteration or modification 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

defendant need not prove that the alteration or modification was the sole

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

prove, by the greater weight of the evidence, only that the alteration or

modification was a proximate cause.

Finally, as to this issue on which the defendant 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 alteration or

modification made to the (name product) by someone other than the

defendant after it left the defendant's control and [without the

defendant's express consent] [not in accordance with the defendant's

instructions or specifications], then it would be your duty to answer this

issue "Yes" in favor of the defendant.

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 plaintiff.