N.C.P.I.—Civil 805.64B

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 805.65A.

The (state number) issue reads:

“Was (name person) a child trespasser [who was injured] [whose

death was caused] by an artificial condition1 on the land of 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, each

of the following nine things:4

First, that the defendant was the [owner] [person in possession]

[lessee] [occupant] [person acting on behalf of a lawful possessor] of

land.5

[NOTE WELL: If the parties have stipulated that the

defendant was the owner, person in possession,

lessee, occupant or person acting on behalf of a lawful

possessor of land pursuant to N.C. Gen. Stat. § 38B-

4(2), then the jury should be so instructed here.]

Second, that (name person) was a child trespasser on the land of

the defendant.6

[As was previously explained to you in the (state number) issue, a

trespasser is a person who enters on the property of another without

permission and without an invitation, express or implied, of the [owner]

[person in possession] [lessee] [occupant] [person acting on behalf of a

lawful possessor] of land and has no right to be there.] 7

A child trespasser is a trespasser who [is less than 14 years of age]

[or] [has the level of mental development found in a person less than 14

years of age].8

Third, that the defendant maintained or allowed to exist [a] [an]

(identify artificial condition), and that it was an artificial condition on the

land.9

Fourth, that the defendant knew or had reason to know that

children would be likely to trespass on his premises at the location of the

(identify artificial condition).10

Fifth, that the defendant knew or reasonably should have known

that the (identify artificial condition) involved an unreasonable risk of

serious bodily injury or death to such children.11

Sixth, that (name person) did not [discover the (identify artificial

condition)] [realize the risk involved in the (artificial condition)] [realize

the risk in coming within the area made dangerous by the (artificial

condition)].12

Seventh, that the utility to the defendant of maintaining the

(identify artificial condition) and the burden of eliminating the danger

were slight as compared with the risk to (name person).13

Eighth, that the defendant failed to exercise reasonable care to

eliminate the danger or otherwise to protect (name person) from [injury]

[death].14 Reasonable care means that degree of care which a

reasonable and prudent person would use under the same or similar

circumstances to protect children from [injury] [death].

And Ninth, that (name person)’s [injury] [death] resulted from the

defendant’s conduct.

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:

(1) the defendant was the [owner] [person in possession] [lessee]

[occupant] [person acting on behalf of a lawful possessor] of land;

(2) (name person) was a child trespasser on the land of the

defendant;

(3) the defendant maintained or allowed to exist [a] [an] (identify

artificial condition), and that it was an artificial condition on the land;

(4) the defendant knew or had reason to know that children would

be likely to trespass on his premises at the location of the (identify

artificial condition);

(5) the defendant knew or reasonably should have known that the

(identify artificial condition) involved an unreasonable risk of serious

bodily injury or death to such children;

(6) (name person) did not [discover the (identify artificial

condition)] [realize the risk involved in the (artificial condition)] [realize

the risk in coming within the area made dangerous by the (artificial

condition);

(7) the utility to the defendant of maintaining the (identify artificial

condition) and the burden of eliminating the danger were slight as

compared with the risk to (name person);

(8) the defendant failed to exercise reasonable care to eliminate

the danger or otherwise to protect (name person) from [injury] [death];

and

(9) (name person)’s [injury] [death] resulted from the defendant’s

conduct,

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.