N.C.P.I.—Civil 744.19

NOTE WELL: This instruction may be given in a product liability action

when the defendant claims as a bar to liability the affirmative “military

contractor” defense.2 As a matter of policy, the “military contractor”

defense exists to insulate the military procurement process from the

injurious effects of state products liability claims.3

The (state number) issue reads:

“Was the defendant acting as a military contractor when it supplied [state

name of product or equipment] to the plaintiff?”

Under certain circumstances, a defendant in a suit brought by a party who

claims injury due to the inadequate design or formulation of a product or

equipment4 may avoid liability if the defendant qualifies as a military contractor.5

On this issue the burden of proof is on the defendant.6 This means that the

defendant must prove, by the greater weight of the evidence, five things7:

First, that the [state name of product or equipment] alleged to be the

proximate cause of the plaintiff’s [injury] [death] was military equipment.8 “Military

equipment” is equipment owned by a branch of the United States Armed Forces.9

Second, that the defendant was the manufacturer of the [state name of

product or equipment].10 A "manufacturer" is one who designs, assembles,

fabricates, produces, constructs or otherwise prepares a product, or component

part of a product, prior to its sale.11

Third, that the United States Government approved reasonably precise

specifications for the [state name of product or equipment].12 Approval must

consist of more than a mere “rubber stamp.”13 This means that [the Government

must have actively participated in the design of the [state name of product or

equipment]] [the Government provided the design of the [state name of product or

equipment] to the defendant].14 Simple approval of a design submitted to the

Government by the manufacturer, without other proof of Government participation

in the design, is not sufficient.15

Fourth, that the [state name of product or equipment] conformed to the

Government specifications.16 To “conform” means to satisfy the design

requirements or specifications stipulated or approved by the Government.

Fifth, that if the defendant knew of the danger[s] in the use of the [state

name of product or equipment] that proximately caused the plaintiff’s [injury]

[death], and the Government was not aware of such danger[s], the defendant must

have warned the Government about such dangers.17

Finally, as to this (state number) issue on which the defendant has the

burden of proof, if you find, by the greater weight of the evidence, that the

defendant was acting as a military contractor when it furnished [state name of

product or equipment] to the plaintiff, 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.