N.C.P.I.—Civil 804.10

NOTE WELL: This series of instructions is designed to

be used with 804.12 (“Excessive Force in Making Arrest-Section 1983 Claim—Sample Verdict Sheet”).

NOTE WELL: 804.10 is similar to the damages

instruction for a state law claim, 804.04, with the

primary difference being the inclusion of language in

this instruction regarding the defendant’s violation of

plaintiff’s constitutional rights. Because a jury may

determine that the violation of plaintiff’s constitutional

rights enhances the ordinary elements of damage for

which the jury may award damages under the state law

claim, if state law and federal law claims are

submitted to the jury, the court should instruct both as

to the damages available for a state law claim and the

damages available for a federal claim. If damages are

returned as to each claim, the plaintiff must elect

between the awards.

The (state number) issue reads:

“What amount is the plaintiff entitled to recover as a result of the

defendant’s use of excessive force in violation of the plaintiff’s

constitutional rights?”

If you have answered either the third issue or the fourth issue

“Yes,” then you will consider the remaining issue(s). If, on the other

hand, you have answered the third issue and fourth issue “No,” then you

will not consider the remaining issue(s).

If you have answered either the third issue (804.08) “Yes” or the

fourth issue (804.09) “Yes” in favor of the plaintiff, then the plaintiff is

entitled to recover nominal damages even without proof of actual

damages. Nominal damages consist of some trivial amount such as one

dollar in recognition of a technical injury to the plaintiff. The mere fact

that a constitutional deprivation has been shown to have occurred as a

result of the defendant’s use of excessive force is an injury to the

plaintiff, even when no actual damages flow from the deprivation.

The plaintiff may also be entitled to recover actual damages. Actual

damages are the fair compensation to be awarded to a person for any

[past] [present] [future] injury caused by the wrongful conduct of

another.

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

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

amount of actual damages proximately caused by defendant’s deprivation

of plaintiff’s constitutional rights.

Actual damages are the fair compensation to be awarded to a

person for any [past] [present] [future] injury caused by the wrongful

conduct of another.

In determining the amount, if any, to award the plaintiff for actual

damages, you will consider the evidence you have heard as to (each of

the following types of damages):

[medical expenses]

[loss of earnings]

[pain and suffering]

[scars or disfigurement]

[(partial) loss (of use) of part of the body]

[permanent injury]

[state any other type of damage supported by the evidence].

The total of all damages is to be awarded in one lump sum.

I will now explain the law of damages as it relates to each of these

types of damages.

NOTE WELL: Insert here the actual damages

instructions found in Chapter 12 (810.04-810.22 et

seq.) as supported by the evidence.

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

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

amount of actual damages caused by the defendant’s use of excessive

force in violation of plaintiff’s constitutional rights, then it would be your

duty to write that amount in the blank space provided.

If, on the other hand, you fail to so find, then it would be your duty

to write a nominal sum such as “One Dollar” in the blank space provided.

NOTE WELL: If instruction regarding punitive damages

is supported by the evidence, this instruction should be

followed by 804.11 (“Excessive Force in Making Lawful

Arrest-Section 1983-Punitive Damages”).