N.C.P.I.—Civil 805.15

The (state number) issue reads:

"What amount is the plaintiff entitled to recover for trespass to

(identify personal property)?"

If you have answered the (state number) issue "Yes" in favor of

plaintiff, the plaintiff is entitled to recover nominal damages even

without proof of actual damages.1 Nominal damages consist of some

trivial amount such as one dollar in recognition of the technical damages

incurred by the plaintiff.

The plaintiff may also be entitled to recover actual damages. 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 proximately2 caused by the trespass of the defendant.

Proximate cause is a cause which in a natural and continuous sequence

produces a person's [injury] [damage] and is a cause which a reasonable

and prudent person could have foreseen would probably produce such

[injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the plaintiff need not prove that the defendant's

wrongful conduct was the sole proximate cause of the [injury] [damage].

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

the defendant's wrongful conduct was a proximate cause.

(Direct Damages. Use where there is competent evidence of direct

damages:

[Direct Damages-Fair Market Value. Use where the plaintiff

relies on the difference in fair market value formula to provide damages:

The plaintiff's actual damages equal the difference between the fair

market value of the (identify personal property) immediately before the

trespass and its fair market value immediately after the trespass.3 The

fair market value of any property is the amount which would be agreed

upon as a fair price by an owner who wishes to sell, but is not compelled

to do so, and a buyer who wishes to buy, but is not compelled to do so.4

(Evidence of [estimates of the cost to repair] [the actual cost of

repairing] the damage to the (identify personal property) may be

considered by you in determining the difference in fair market value

immediately before and after the trespass occurred.)5]

[Direct Damages-Cost of Repair. Use where damages

measured by market value are impractical because there is no market by

which the degree of damage to the property can be measured6: The

plaintiff's actual property damages are equal to the amount reasonably

needed to [repair the damage to the (identify personal property)]7

[replace the (identify personal property) damaged]8, less the [salvage

value of the [property] [parts replaced]] [accumulated depreciation9 on

the (identify personal property) replaced].10

[Direct Damages-Intrinsic Value. Use where damages

measured by market value would not adequately compensate the plaintiff

and repair or replacement would be impossible (as where an item such as

a family portrait is destroyed) or economically wasteful (as where

obsolete property is damaged beyond economically feasible repair)11: The

plaintiff's actual damages equal the actual value of his (identify personal

property) immediately before it was damaged (less the salvage value, if

any, that it had after its damage). The actual value of any property is its

intrinsic value; that is, its reasonable value to its owner.12 In

determining the actual value of the plaintiff's (identify personal property),

you may consider:

[the original cost of (labor and materials used in producing) the

(identify personal property)]

[the age of the (identify personal property)]

[the degree to which the (identify personal property) has been

used]

[the condition of the (identify personal property) just before it

was damaged]

[the uniqueness of the (identify personal property)]

[the practicability of [repairing] [reconstructing] the (identify

personal property)]

[the cost of replacing the (identify personal property) (taking

into account its depreciation; that is, the degree to which it had

been used up or worn out with age)]

[the insured value of the (identify personal property)]13

[the opinion of the plaintiff as to its value. You should not

consider any fanciful, irrational or purely emotional value that

(identify personal property) may have had to the plaintiff.14]

[the opinion of any experts as to its value]

[state other appropriate factors supported by the evidence15].)

(Incidental Damages: Use where there is competent evidence of

loss of use of the benefit of the property: The plaintiff's actual property

damages may also include compensation for the loss of use of (identify

personal property).16 (Here give only one of the following alternative

statements, as applicable:)

[Incidental Damages-Repairs feasible at reasonable cost in

reasonable time. When a (identify personal property) damaged by the

trespass of another can be repaired at a reasonable cost and within a

reasonable time, the owner may recover for the cost of renting a similar

(identify personal property) for a reasonable repair period (whether or not

the owner actually rented such a similar (identify personal property).]

[Incidental Damages-Repairs not feasible at reasonable cost

in reasonable time. When a (identify personal property) damaged by the

trespass of another cannot be repaired at a reasonable cost and within a

reasonable time, and if a replacement (identify personal property) is not

immediately obtainable, the owner may recover for loss of use during the

period of time reasonably necessary to acquire the replacement and put it

into service. The measure of damages is the cost of renting a similar

(identify personal property) during the period of time it takes to acquire

the replacement and put it into service (whether or not the owner actually

rented such similar (identify personal property).]

[Incidental Damages-Total destruction. When a (identify

personal property) is totally destroyed by the trespass of another, and a

replacement (identify personal property) is not immediately obtainable,

the owner may recover for loss of use during the period reasonably

necessary to acquire the replacement and put it into service. The

measure of such damages is the cost of renting a temporary (identify

personal property) for the period of time reasonably necessary to replace

(identify personal property) and put it into service (whether or not the

owner actually rented such similar (identify personal property)).]

[Incidental Damages-Owner elects to replace repairable

property. When a (identify personal property) damaged by the trespass of

another can be repaired at a reasonable cost and within a reasonable

time, but the owner elects to replace it by acquiring a substitute (identify

personal property), the owner may recover for loss of use during the time

reasonably required to make repairs or to acquire the substitute,

whichever is shorter. The measure of such damages is the cost of renting

a similar (identify personal property) during such period].]

(Consequential Damages. Use where there is competent evidence

of consequential damages:

[Consequential Damages-Lost Net Revenues. Do not use the

following paragraph unless there is evidence of lost net revenues. If an

owner proves that he made a reasonable effort to obtain a substitute

(identify personal property) but was unable to do so, and further proves

with reasonable certainty the net revenues he lost through inability to

use the (identify personal property), he may recover net revenues lost

during a reasonable period within which to [make repairs] [obtain a

substitute].]

[Consequential Damages-Other. Give such other

consequential damage instruction as is supported by the evidence.])

(Other Damages. Give such further instruction as may be supported

by the evidence.17)

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 proximately caused by the trespass of the

defendant, 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.