N.C.P.I.—Civil 805.64

NOTE WELL: Use for claims arising on or after 1

October 2011. For claims arising before 1 October

2011, use N.C.P.I.-Civil 805.65.

If the defendant contends that the plaintiff trespasser

entered the land or building of the defendant owner,

possessor, lessee or other occupant of land with the

intent to commit a crime, then the instruction

regarding reasonable use of force also should be given

with this instruction. See N.C.P.I.-Civil 805.64A

The (state number) issue reads:

“Was the plaintiff’s [injury] [death] [caused by the willful or wanton

conduct of the defendant] [intentionally caused by the defendant]?”

(You will answer this issue only if you have answered the (state

number) issue “No” in favor of the defendant.2 If you answered the (state

number) issue “Yes” in favor of the plaintiff, you will answer the (state

number) issue and not this one.)3

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 defendant acted willfully or wantonly and that such willful or wanton

conduct resulted in the plaintiff’s [injury] [death]] [that the defendant

intentionally caused the plaintiff’s [injury] [death].]4

In North Carolina, the general rule is that [an owner] [a person in

possession] [a lessee] [an occupant] of land does not owe a duty of care

to a trespasser and is not subject to liability for any injury to a

trespasser.5

However,

[[An owner] [A person in possession] [A lessee] [An occupant]

of land is under a duty not to cause [injury] [death] to a

trespasser by willful or wanton conduct.6]

[[An owner] [A person in possession] [A lessee] [An occupant]

of land is under a duty to not intentionally cause [injury]

[death] to a trespasser.7]

[An owner] [A person in possession] [A lessee] [An occupant] of

land may be subject to liability if the trespasser’s [injury] [death],

[either:]

[resulted from the [owner’s] [possessor’s] [lessee’s]

[occupant’s] willful or wanton conduct;] [or]

[was intentionally caused by the [owner] [person in

possession] [lessee] [occupant] of the land.8]

[An act is willful if the [owner] [person in possession] [lessee]

[occupant] of the land intentionally9 fails to carry out a duty imposed by

law or contract which is necessary to protect the safety of persons or

property.10

[An act is wanton if the [owner] [person in possession] [lessee]

[occupant] of land acts in conscious or reckless disregard for the safety of

others.11]

[An act is intentional if the [owner] [person in possession] [lessee]

[occupant] of land intended to cause [injury] [death] to the plaintiff

trespasser.12 A person acts intentionally if he desires to cause the

consequences of his act or believes that the consequences are

substantially certain to occur.13 Intent may be proven by direct evidence

or inferred from the circumstances.]

(The [owner] [person in possession] [lessee] [occupant] of land is

not required to anticipate the presence of a trespasser.)

The plaintiff not only has the burden of proving the defendant’s

[willful or wanton] [intentional] conduct, but also that the plaintiff’s

[injury] [death] [resulted from the defendant’s willful or wanton conduct]

[was intentionally caused by the defendant].

As to this (state number) issue, the plaintiff contends, and the

defendant denies, that the defendant engaged in [willful or wanton]

[intentional] conduct in one or more of the following ways: (Read all

contentions of [willful or wanton] [intentional] conduct supported by the

evidence.)

The plaintiff further contends, and the defendant denies, that [the

plaintiff’s [injury] [death] resulted from the defendant’s willful or wanton

conduct] [the defendant’s intentional conduct caused the plaintiff’s

[injury] [death]].

I instruct you that [willful or wanton] [intentional] conduct is not to

be presumed from the mere fact of [injury] [death].

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,

that the defendant acted [willfully or wantonly] [intentionally] (in any one

or more of the ways contended by the plaintiff) and that [the plaintiff’s

[injury] [death] resulted from the defendant’s willful or wanton conduct]

[the defendant intentionally caused the plaintiff’s [injury] [death]], 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.