N.C.P.I.—Civil 805.30

"What amount is the plaintiff entitled to recover from the

defendant for substantially and unreasonably interfering with the

plaintiff's use and enjoyment of (identify real property)?”

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.1 Nominal damages consist of some

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

incurred by the plaintiff.2

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 proximately3 caused by the nuisance 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:4

[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 property immediately before the nuisance occurred and its

fair market value immediately after the nuisance was removed.5 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.6

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

repairing] the damage to the (name real property) may be considered by

you in determining the difference in fair market value before and after the

nuisance occurred.)7]

[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 measured:8 The plaintiff’s actual

property damages are equal to the amount reasonably needed to [repair

the damage to the (identify real property)]9 [replace the (identify real

property) damaged]10, less [the salvage value of the [(identify real

property)] [parts replaced]] [the accumulated depreciation11 on the

property replaced].12]

[Direct Damages-Intrinsic Value. Use where damages measured by

market value would not adequately compensate the plaintiff and repair or

replacement would be impossible or economically wasteful:13 The

plaintiff's actual damages equal the actual value of the (identify real

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.14 In determining

the actual value of the (identify real property), you may consider:

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

the (identify real property)]

[the age of the (identify real property)]

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

used]

[the condition of the (identify real property) just before it was

damaged]

[the uniqueness of the (identify real property)]

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

real property)]

[the cost of replacing the (identify real 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 real property)]15

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

consider any fanciful, irrational or purely emotional value that

(identify real property) may have had.16]

[the opinion of any experts as to its value]

[state other appropriate factors supported by the evidence17

].)

(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 real

property).18 (Here give the applicable alternative statement (give only

one):)

[Repairs feasible at reasonable cost in reasonable time. When

(identify real property) damaged by the nuisance of another can be

repaired at a reasonable cost and within a reasonable time, the owner

may recover for the loss of its use. The measure of such damages is the

cost of renting similar (identify real property) for a reasonable repair

period (whether or not the owner actually rented such a similar (identify

real property).]

[Repairs not feasible at reasonable cost in reasonable time. When

(identify real property) damaged by the nuisance of another cannot be

repaired at a reasonable cost and within a reasonable time, and if a

replacement (identify real property) is not immediately obtainable, the

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

necessary to acquire a replacement (identify real property) and put it into

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

real property) during the period of time it takes to locate a replacement

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

actually rents such temporary (identify real property).]

[Total destruction. When (identify real property) is totally destroyed

or damaged by the nuisance of another and a replacement (identify real

property) is not immediately obtainable, the owner may recover for loss

of use during the period reasonably necessary to acquire temporary

(identify real property). The measure of such damages is the cost of

renting a temporary (identify real property) for the period of time

reasonably necessary to replace the (identify real property originally

destroyed) (whether or not the owner actually rented such a similar

(identify real property)].]

[Owner elects to replace repairable property. When a (identify real

property), damaged by the nuisance 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 real 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 real 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 supported by the evidence: If an owner proves

with reasonable certainty the net revenues lost through inability to use

the (identify real property), the owner may recover such net revenues lost

during a reasonable period within which to make repairs.]

[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.)

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 nuisance 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.