N.C.P.I.—Civil 805.64C

NOTE WELL: Use for claims arising on or after 1

October 2011.

The (state number) issue reads:

“Was the plaintiff’s [injury] [death] caused by the defendant’s

failure to exercise ordinary care not to injure the plaintiff when the

plaintiff was in a position of [peril] [helplessness]?”

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

number) issue “No” in favor of the defendant.1 If you answered the (state

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

number issue) and not this one.2)

On this issue the burden of proof is on the plaintiff. That means

that the plaintiff must prove, by the greater weight of the evidence, the

following four things:3

First, that the plaintiff was in a position of [peril] [helplessness] on

the property of the defendant.4

Second, that the defendant discovered the plaintiff’s [peril]

[helplessness].5

Third, that the defendant failed to exercise ordinary care not to

injure the plaintiff.6 Ordinary care means that degree of care which a

reasonable and prudent person would use under the same or similar

circumstances to protect himself and others from [injury] [death].

And Fourth, that such failure by the defendant proximately caused

the plaintiff’s [injury] [death].

Proximate cause is a cause which in a natural and continuous

sequence produces a person’s [injury] [death], and is a cause which a

reasonable and prudent person could have foreseen would probably

produce such [injury] [death] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[death]. Therefore, the plaintiff need not prove that the defendant’s

conduct was the sole proximate cause of the [injury] [death]. The

plaintiff must prove, by the greater weight of the evidence, only that the

defendant’s conduct was a proximate cause.

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 plaintiff was in a position of [peril] [helplessness] on the

defendant’s property; and that the defendant discovered the plaintiff's

position of [peril] [helplessness]; and that the defendant failed to

exercise reasonable care not to injure the plaintiff; and that such failure

proximately 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.