N.C.P.I.—Civil 744.08

The (state number) issue reads:

“Was the plaintiff's [injury] [death] [damage] caused by his using

the (state name of product) in a manner contrary to any express and

adequate instructions or warnings which he knew or should have known

were [delivered with] [appearing on] [attached to] [on the original

container or wrapping of] the (state name of product)?”

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

issue number) issue “Yes” 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,

four things:

First, that the plaintiff used the (state name of product) contrary to

instructions or warnings [delivered with]4 [appearing on] [attached to]

[on the original container or wrapping of] the (name product).

Second, that such instructions or warnings were express and

adequate. Instructions or warnings are “express” if they are stated5

affirmatively and definitely. Instructions or warnings are “adequate”

1) if they are sufficient in content to inform foreseeable users

how to use the (name product) safely, and

2) if they are communicated so that they are reasonably likely to

reach such users and be understood by them.6

Third, that the plaintiff knew, or in the exercise of ordinary care

should have known, of the existence of such instructions or warnings. A

person “knows” something when he has actual knowledge of it. However,

it is not necessary for a person to have read the instructions or warnings

to be responsible for knowing of their existence. A person “should have

known” of something when, in the exercise of reasonable and diligent7

care, he should have acquired knowledge of it under all the circumstances

existing at the time.

Fourth, that the plaintiff's [injury] [death] [damage] was caused by

his use of the (state name of product) contrary to the instructions or

warnings. Cause is a real cause- a cause which in a natural and

continuous sequence produces a person’s [injury] [death] [damage].8

There may be more than one cause of [an injury] [a death] [damage].

Therefore, the defendant need not prove that the plaintiff's contrary use

of the (state name of product) was the sole cause of the [injury] [death]

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

evidence, only that the plaintiff's contrary use of the (state name of

product) was a 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 caused by his using the (state name of

product) in a manner contrary to any express and adequate instructions

or warnings which he knew or should have known were [delivered with]

[appearing on] [attached to] [on the original container or wrapping of]

the (state name of product), 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.