N.C.P.I.—Civil 805.50

NOTE WELL: Use this instruction only when there is an

issue concerning the legal status (lawful visitor or

trespasser) of the plaintiff. Where there is no issue as

to the status of the plaintiff when injured on the

defendant's premises, this issue is not applicable. The

best practice is to obtain the parties' stipulation as to

the plaintiff's status as part of the pretrial procedure.

The (state number) issue reads:

"Was the plaintiff a lawful visitor at the time and place of his

alleged [injury] [damage]?"2

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, that

the plaintiff was a lawful visitor at the time and place of his alleged

[injury] [damage].

A lawful visitor is one who goes upon the premises in response to

an express or implied invitation by the [owner] [person in possession]

and for the mutual benefit of himself and the [owner] [person in

possession]. Also a lawful visitor is one who goes upon the premises

solely for his own interest, convenience or gratification but with the

consent of the [owner] [person in possession]. The consent or

permission of the [owner] [person in possession] may be implied where

[the plaintiff has] [others have] repeatedly made similar use of the

premises with the knowledge of the [owner] [person in possession], and

where the [owner] [person in possession] has not acted to stop such use.

By contrast, a trespasser is one who goes on the premises without the

consent or permission, express or implied, of the [owner] [person in

possession] and has no right to be there.3

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 plaintiff

was a lawful visitor at the time and place of his alleged [injury]

[damage], 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.