N.C.P.I.—Civil 743.10

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 744.10.

The (state number) issue reads:

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

by failure to exercise reasonable care in using the (name product) under

all the circumstances then existing?"

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

number) issue in favor of the plaintiff.

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,

three things:

First, that the plaintiff used the (name product).

Second, that under all the circumstances then existing, the plaintiff

failed to exercise reasonable care in using the (name product).

Reasonable care means that degree of care which a reasonable and

prudent person would use under the same or similar circumstances to

protect himself and others from [injury] [death] [damage].4

Third, that the plaintiff's failure to exercise reasonable care was a

proximate cause of his [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 plaintiff's failure to exercise

reasonable care was the sole proximate cause of the [injury] [death]

[damage]. The defendant must prove, by the greater weight of the

evidence, only that the plaintiff's failure to exercise reasonable care was

a proximate cause.

In this case the defendant contends, and the plaintiff denies, that

the plaintiff failed to exercise reasonable care in using the (name

product) in one or more of the following respects:

(Read all contentions of failure to exercise reasonable care

supported by the evidence.)

The defendant further contends, and the plaintiff denies, that the

plaintiff's failure to exercise reasonable care in using the (name product)

was a proximate cause of the plaintiff's [injury] [death] [damage].

Failure to exercise reasonable care is not to be presumed from the mere

fact of [injury] [death] [damage].

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 failure to exercise

reasonable care in using the (name product) under all the circumstances

then existing 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.