N.C.P.I.—Civil 806.51

NOTE WELL: This instruction1 applies when the trial

judge has determined as a matter of law2 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 of public concern.5

NOTE WELL: See N.C.P.I—Civil 806.40 (“Defamation—

Preface”), nn.12, 14, 29, 30 and accompanying text for

a discussion of the proof requirements for this type of

plaintiff. A "Yes" answer to this issue entitles the

plaintiff to an instruction on actual damages if proof is

offered. See N.C.P.I—Civil 806.84 (“Defamation—

Actual Damages”). Presumed damages are only

allowed upon a showing of actual malice. See N.C.P.I

—Civil 806.82 (“Defamation—Actionable Per Se—Private

Figure—Matter of Public Concern—Presumed

Damages”). Punitive damages are permissible if actual

malice is shown and the Chapter 1D requirements for

punitive damages met. See N.C.P.I—Civil 806.85

(“Defamation—Private Figure—Matter of Public Concern

—Issue of Actual Malice”).

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] [printed] [caused to be printed]6

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

plaintiff:

(Quote the alleged statement)

Second, that the defendant published7 the statement. "Published"

means that the defendant knowingly [communicated8 the statement]

[distributed9 the statement] [caused the statement to be distributed] so

that it reached one or more persons10 other than the plaintiff.

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

the statement to be distributed] to the plaintiff alone is not sufficient.11

Third, that the statement was false.12

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.13 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.