N.C.P.I.—Civil 806.60

NOTE WELL: This instruction applies when the trial

judge has determined as a matter of law2 that: (1) the

statement is subject to two interpretations, one of

which is defamatory and one of which is not; or the

statement is not libelous3 on its face, but is capable of

a defamatory meaning when extrinsic evidence is

considered;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 a

plaintiff to an instruction on actual damages. See

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

Presumed damages are not available. See N.C.P.I.—

Civil 806.40 (“Defamation—Preface”), n. 32. If the

plaintiff seeks an award of punitive damages and the

evidence supports instruction on punitive damages, the

plaintiff may receive an instruction on punitive

damages under the general statutory standards

enunciated in N.C. Gen. Stat. § 1D-15. See N.C.P.I.—

Civil 806.40 (“Defamation—Preface), n. 23. 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”) should be

utilized.

The (state number) issue reads:

“Did the defendant libel the plaintiff?”

A libelous statement is one which (select the appropriate

alternative):

[charges that a person has committed an infamous crime.5 I instruct

you that (state infamous crime)6 is an infamous crime.]

[charges a person with having an infectious disease. I instruct you

that [state infectious disease, i.e., HIV/AIDS, syphilis] is an

infectious disease.]

[tends to [impeach7] [prejudice8] [discredit9] [reflect unfavorably

upon]10 a person in that person's trade or profession.]

[tends to subject a person to ridicule, contempt or disgrace.]11

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,

seven things:

First, that the defendant [wrote]12 [printed] [caused to be printed]

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

plaintiff:

(Quote the alleged statement)

Second, that the defendant published13 the statement. "Published"

means that the defendant knowingly [communicated14 the statement]

[distributed15 the statement] [caused the statement to be distributed] so

that it reached one or more persons16 other than the plaintiff.

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

the statement to be distributed] to the plaintiff alone is not sufficient.17

Third, that the statement was false.18

Fourth, that the defendant intended19 the statement to [charge the

plaintiff with having committed an infamous crime] [charge the plaintiff

with having an infectious disease] [impeach the plaintiff in the plaintiff’s

trade or profession] [subject the plaintiff to ridicule, contempt or

disgrace].

Fifth, that the person other than the plaintiff to whom the

statement was published reasonably understood20 the statement to

[charge the plaintiff with having committed an infamous crime] [charge

the plaintiff with having an infectious disease] [impeach the plaintiff in

the plaintiff’s trade or profession]21 [subject the plaintiff to ridicule,

contempt or disgrace].

Sixth, 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.22 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.

Seventh, that the plaintiff, as a result of the publication, suffered a

monetary or economic loss.23

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, that the defendant intended

the statement to [charge the plaintiff with having committed an infamous

crime] [charge the plaintiff with having an infectious disease] [impeach

the plaintiff in the plaintiff’s trade or profession] [subject the plaintiff to

ridicule, contempt or disgrace], that the person to whom the statement

was published reasonably understood the statement to [charge the

plaintiff with having committed an infamous crime] [charge the plaintiff

with having an infectious disease] [impeach the plaintiff in the plaintiff’s

trade or profession] [subject the plaintiff to ridicule, contempt or

disgrace], 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, and that the plaintiff, as a

result of the publication, suffered a monetary or economic loss, 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.