N.C.P.I.—Civil 744.05

NOTE WELL: Use this instruction only with causes of

action arising on or after January 1, 1996. For causes

of action arising before January 1, 1996, use N.C.P.I.-

Civil 743.05.

The (state number) issue reads:

"Did the defendant acquire and [sell] [lease] [loan for pay]5

[consign]6 the (describe product)7 [in a sealed container] [without

reasonable opportunity to inspect it in a way that would have or should

have revealed the claimed defect]?

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 defendant.8 This means

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

two things:

First, that the defendant was [a retailer] [a wholesaler] [a

distributor]9 [a lessor engaged in the business of leasing] [a bailor

engaged in the business of loaning products to others for pay] [engaged

in the business of selling a product for resale, use or consumption];10 and

Second, that the defendant acquired and [sold] [leased] [loaned for

pay] [consigned] the (describe product) [in a sealed container] [without

having a reasonable opportunity to inspect the (describe product) in a

way that would have or should have revealed the defect on which the

plaintiff is now suing if he had exercised reasonable care].

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

defendant acquired and [sold] [leased] [loaned for pay] [consigned] the

(describe product) [in a sealed container] [without a reasonable

opportunity to inspect it in a way that would have or should have

revealed the claimed defect if he had exercised reasonable care], 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.