N.C.P.I.—Civil 806.50

Note Well: This instruction applies when the trial judge

has determined as a matter of law 2 that: (1) the

statement is libelous3 on its face 4; (2) the plaintiff is a

private figure and (3) the subject matter of the

statement is not of public concern.

NOTE WELL: A “Yes” answer to this issue entitles the

plaintiff to instructions on presumed damages (N.C.P.I.

—Civil 806.81 (“Defamation Actionable Per Se—Private

Figure—Not Matter of Public Concern-Presumed

Damages”)) and, if proof is offered, actual damages

(N.C.P.I.—Civil 806.84 (“Defamation—Actual

Damages”)) as well. If the plaintiff seeks an award of

punitive damages and the evidence supports

instruction on punitive damages, the jury should be

instructed using N.C.P.I.—Civil 810.96 (“Punitive

Damages—Liability of Defendant”) and 810.98

(“Punitive Damages—Issue of Whether to Make Award

and Amount”).

The (state number) issue reads:

“Did the defendant libel the plaintiff?”

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, four

things:

First, that the defendant [wrote]5 [printed] [caused to be printed]

[possessed in [written] [printed] form] the following statement about the

plaintiff:

(Quote the alleged statement)

Second, that the defendant published6 the statement. “Published”

means that the defendant knowingly [communicated7 the statement]

[distributed8 the statement] [caused the statement to be distributed] so

that it reached one or more persons9 other than the plaintiff.

[Communicating the statement] [Distributing the statement] [Causing

the statement to be distributed] to the plaintiff alone is not sufficient.10

Third, that the statement was false.11

Fourth, that at the time of the publication, the defendant either

knew the statement was false or failed to exercise ordinary care in order

to determine whether the statement was false.12 Ordinary care is that

degree of care that a reasonable and prudent person in the same or

similar circumstances would have used in order to determine whether the

statement was false.

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 [wrote] [printed] [caused to be printed] [possessed in

[written] [printed] form] the following statement about the plaintiff:

(Quote the alleged statement), that the defendant published the

statement, that the statement was false, and that, at the time of the

publication, the defendant either knew the statement was false or failed

to exercise ordinary care in order to determine whether the statement

was false, 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.