N.C.P.I.—Civil 805.26

The (state number) issue reads:

“Did the defendant cause substantial damage to or interference

with the plaintiff’s use and enjoyment of the plaintiff’s property by

unreasonably altering the flow of surface water on the defendant’s

property?”

North Carolina law allows every landowner to make a reasonable

use of the owner’s land, even if that reasonable use alters the flow of

surface water and causes harm to others. A landowner incurs liability

under the law only when the owner’s harmful interference with the flow

of surface water is unreasonable and causes substantial damage to

another.1

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, two

things:

First, that the defendant’s action(s) in altering the flow of surface

water [was] [were] unreasonable.2 The reasonableness of the

defendant’s action(s) should be determined by weighing the gravity of

the harm to the plaintiff against the utility of the conduct of the

defendant. A defendant’s action(s) [is] [are] unreasonable if a person of

ordinary prudence and discretion would consider those actions excessive

or inappropriate after giving due consideration to the interests of the

plaintiff, the interests of the defendant, and the interests of the

community.

In evaluating the gravity of the harm to the plaintiff, you may

consider:

[the extent and character of the harm to the plaintiff]

[the social value which the law attaches to the type of use which is

invaded]

[the suitability of the locality to that use]

[the burden on the plaintiff to minimize the harm] [and]

[state any other factor arising from the evidence]

In evaluating the utility of the conduct of the defendant, you may

consider:

[the purpose of the defendant’s conduct]

[the social value which the law attaches to that purpose]

[the suitability of the locality for the use the defendant makes of

the property] [and]

[state any other factor arising from the evidence].3

Even when the alteration of the flow of surface water is reasonable

in the sense that the social utility arising from the change outweighs the

harm to the plaintiff, you may still find that the defendant’s action(s) [is]

[were] unreasonable if the resulting interference to the plaintiff’s use

and enjoyment of [his] [her] property is greater than it is reasonable to

require the plaintiff to bear under these circumstances.

Second, that the defendant’s alteration of the flow of surface water

caused substantial damage to the plaintiff’s property or substantially

interfered with the plaintiff’s use and enjoyment of the plaintiff’s

property.4 Such damage or interference is substantial when it results in

significant annoyance, material physical discomfort, or injury to a

person's health or property. Minor harms, slight inconveniences, or petty

annoyances are not substantial damage or interference.5

Finally, as to this issue on which the plaintiff has the burden of

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

defendant’s action(s) in altering the flow of surface water [is] [was]

unreasonable and the defendant’s alteration of the flow of surface water

caused damage to the plaintiff’s property or substantially interfered with

the plaintiff’s use and enjoyment of the plaintiff’s property, then it would

be your duty to answer this issue “Yes” in favor of the plaintiff.

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 defendant.