N.C.P.I.—Civil 805.21

NOTE WELL: N.C. Gen. Stat. § 14-399(h) creates a

cause of action for a person who sustains damage due

to felonious littering.1 This instruction should be used

in conjunction with N.C.P.I.-Civil 805.20 “Littering-Civil

Action for Damages for Felonious Littering.”

This (state number) issue reads:

"What amount is the plaintiff entitled to recover?"2

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

plaintiff, the plaintiff is entitled to recover nominal damages even

without proof of actual damages.3 Nominal damages consist of some

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

to the plaintiff's property.4

The plaintiff may also be entitled to recover actual damages.5 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 property damages proximately6 caused by the defendant’s littering.

A proximate cause is a cause which in a natural and continuous

sequence produces damage to property, and is a cause which a

reasonable and prudent person in the same or similar circumstances could

have foreseen would probably produce such damage or some similar

damaging result. There may be more than one proximate cause of

damage to property. The plaintiff is not required to prove that the

defendant's littering was the sole proximate cause of the damage. The

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

defendant's littering was a proximate cause.

The purpose of awarding actual damages is to restore the plaintiff's

property to its condition prior to the damage proximately caused by the

defendant.7 The monetary amount of actual damages is that sum which

you find by the greater weight of the evidence to be the reasonable cost

to the plaintiff of the expenses necessary to repair and restore the

plaintiff's property. The amount of actual damages may include other

reasonable amounts for incidental losses as well.8 The amount of actual

damages is to be reasonably determined from the evidence presented.

Although this does not require proof of that amount with mathematical

precision,9 you may not make any award based upon speculation or

conjecture.10

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

monetary amount of actual property damages proximately caused by the

defendant's littering, then you will answer this issue by writing that

amount in the space provided.

On the other hand, if the plaintiff has failed to prove the monetary

amount of actual property damages by the greater weight of the

evidence, then you will answer this issue in the space provided by

awarding the plaintiff some nominal amount such as one dollar in

recognition of the technical damage to the plaintiff's property.