N.C.P.I.—Civil 810.24

The (state number) issue reads:

“By what amount, if any, should the plaintiff's actual

damages be reduced because of his unreasonable failure to avoid

or minimize his injuries?”

You are to answer this issue only if you have answered the

(state number) issue in any amount of actual damages in favor

of the plaintiff.

On this issue the burden of proof is on the defendant. 2

This means the defendant must prove, by the greater weight of

the evidence, the amount, if any, by which the plaintiff's actual

damages should be reduced because of the plaintiff's unreasonable

failure to avoid or minimize his injuries.

A person injured by the [negligent] [wrongful] conduct of

another is nonetheless under a duty to use that degree of care

which a reasonable person would use under the same or similar

circumstances to seek treatment, to get well and to avoid or

minimize the harmful consequences of his injury.3 A person is not

permitted to recover for injuries he could have avoided by using

means which a reasonably prudent person would have used to

cure his injury or alleviate his pain. However, a person is not

prevented from recovering damages he could have avoided unless

his failure to avoid those damages was unreasonable.4

(If you find that a health care provider advised the plaintiff

to [submit to an operation] [(describe other treatment)], you would

not necessarily conclude that the plaintiff acted unreasonably in

declining such [operation] [treatment]. In determining whether the

plaintiff's conduct was reasonable, you must consider all of the

circumstances as they appeared to the plaintiff at the time he

chose not to follow the health care provider's advice. These may

include [the financial condition of the plaintiff] [the degree of risk

involved] [the amount of pain involved] [the likelihood of success]

[the benefits to be obtained from the procedure] [the availability

of alternate procedures] [whether (name applicable types of health

care providers) agree among themselves as to the advisability of

the procedure] [the knowledge or lack of knowledge of the

plaintiff] [describe any other factor supported by the evidence].)

Finally, as to this (state number) issue on which the

defendant has the burden of proof, if you find by the greater

weight of the evidence that the plaintiff's actual damages should

be reduced because of his unreasonable failure to avoid or

minimize his injuries, then it would be your duty to answer this

issue by writing the amount by which the plaintiff's actual

damages are to be reduced in the blank space provided.

If, on the other hand, you fail to so find, then it would be

your duty to answer this issue by writing “None” in the blank

space provided.