N.C.P.I.—Civil 805.67

“Was the plaintiff [injured] [damaged] 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, that

the defendant was negligent and that such negligence was a proximate

cause of plaintiff's [injury] [damage].

The law requires [cities] [counties] to keep their [streets]

[sidewalks] [alleys] [bridges] [public ways] in proper repair, open for

travel, and free from unnecessary obstructions.1 This means that every

[city] [county] has a duty to exercise ordinary care to maintain its

[streets] [sidewalks] [alleys] [bridges] [(name other public ways)] in a

reasonably safe condition for all who use them in a proper manner.2 A

breach of this duty is negligence.

In order to prevail on this issue, the plaintiff must prove, by the

greater weight of the evidence, the following six things:

First, that (name street, sidewalk, alley, bridge or other public way)

is a [street] [sidewalk] [alley] [bridge] [public way] which the [city]

[county] is responsible for maintaining.

Second, that there was a dangerous condition on the [street]

[sidewalk] [alley] [bridge] [public way]. The law does not require a [city]

[county] to maintain the surfaces of its public ways in a perfectly smooth,

even condition and free from every possible obstruction to mere

convenient travel.3 Slight unevenness, depressions, differences in grade,

deviations in elevations and other immaterial obstructions or trivial

defects which are not naturally dangerous will not render a [city] [county]

liable for [injury] [damage] caused by these conditions.4 The condition

must be material or dangerous enough that injury to travelers using its

public way in a proper manner is reasonably foreseeable.5

Third, that the [city] [county] knew or, in the exercise of ordinary

care, should have known of the existence of the dangerous condition.6

Actual knowledge is not required. It is sufficient if the [city] [county], in

the exercise of ordinary care, should have discovered the existence of the

dangerous condition.

Fourth, that the [city] [county] knew or, in the exercise of ordinary

care, should have known of the existence of the dangerous condition

sufficiently in advance of the occurrence of plaintiff's [injury] [damage] to

give the [city] [county] a reasonable opportunity to remedy it or to guard

against [injury] [damage] from it.7

Fifth, that under the circumstances known or which, in the exercise

of ordinary care, should have been known to it, the [city] [county] did not

use ordinary care to repair the dangerous condition or to guard against

[injury] [damage] from it.

Sixth, that the [city's] [county's] failure to use ordinary care under

the circumstances was a proximate cause of plaintiff's [injury] [damage].8

Proximate cause is a real cause- a cause without which the claimed

[injury] [damage] would not have occurred, and one which a reasonably

careful and prudent person could foresee would probably produce such

[injury] [damage] or some similar injurious result.

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

[damage]. Therefore, the plaintiff need not prove that the defendant's

negligence was the sole proximate cause of the [injury] [damage]. 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 respects:

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

The plaintiff further contends, and the defendant denies, that

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

[damage].

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

fact of [injury] [damage].

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 and that such negligence was a proximate cause

of the plaintiff's [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.