N.C.P.I.—Civil 805.65A

NOTE WELL: Use for claims arising before 1 October

2011. For claims arising on or after 1 October 2011, use

N.C.P.I-Civil 805.64B.

The (state number) issue reads:

"Was the plaintiff's [injury] [damage] [death] proximately caused

by the negligence of the defendant?"

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, five

things:

First, that the defendant maintained or allowed to exist on his

premises a condition inherently dangerous to children.

Second, that the defendant knew or, in the exercise of ordinary care

should have known, that children [would be likely to trespass on his

premises] [would likely be attracted to his premises by the inherently

dangerous condition] [had previously been attracted to his premises by

the inherently dangerous condition].

Third, that the defendant failed to exercise ordinary care to [guard]

[cover] [fence off] such inherently dangerous condition to prevent access

by a child. Ordinary 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] [damage] [death]. A person's failure to use

ordinary care is negligence.

Fourth, that the risk presented by the inherently dangerous

condition was not obvious to or realized by the plaintiff because of his

youth, capacity and experience.2

And Fifth, that the defendant's negligence was a proximate cause

of the [injury] [damage] [death]. Proximate cause is a cause which in a

natural and continuous sequence produces a person's [injury] [damage]

[death], and is a cause which a reasonable and prudent person could

have foreseen would probably produce such [injury] [damage] [death] or

some similar injurious result.

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

[damage] [death].)

Therefore, the plaintiff need not prove that the defendant's

negligence was the sole proximate cause of the [injury] [damage]

[death]. The plaintiff must prove, by the greater weight of the evidence,

only that the defendant's negligence was a proximate cause.

In this case, the plaintiff contends, and the defendant denies, that

the defendant was negligent in one or more of the following ways:

(Read all contentions of negligence supported by the evidence).

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

defendant's negligence was a proximate cause of the plaintiff's [injury]

[damage] [death].

I instruct you that negligence is not to be presumed from the mere

fact of [injury] [damage] [death].

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

defendant was negligent in any one or more of the ways contended by

the plaintiff and that such negligence was a proximate cause of the

plaintiff's [injury] [damage] [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.