N.C.P.I.—Civil 810.94

NOTE WELL: Use this instruction in conjunction with

all claims for relief arising prior to January 1, 1996.

Claims for relief arising on or after January 1, 1996 are

governed by N.C. Gen. Stat. §§ 1D-1 et seq., effective

January 1, 1996. For such cases, use N.C.P.I.-Civil

810.98.

Caveat: This instruction should not be used except in those

infrequent cases where special evidentiary1 or procedural2 considerations

make it prudent to do so.

The (state number) issue reads:

"What amount of punitive damages, if any, does the jury in its

discretion award to the plaintiff?"

You are to answer this issue only if you have answered (identify

issues and specify answers necessary for a consideration of this issue).

Whether to award punitive damages is a matter within the sound

discretion of the jury.3 Punitive damages are not awarded for the purpose

of compensating the plaintiff for his [injury] [damage], nor are they

awarded as a matter of right. In deciding whether to award punitive

damages, you must determine that there is a need to punish the

defendant for his conduct, or to deter the defendant or others from

engaging in this or similar conduct in the future, or to make an example

out of the defendant.

Furthermore, if you decide, in your discretion, to award punitive

damages, any amount you award must bear a rational relationship4 to the

sum reasonably needed to punish the defendant for his conduct, or to

deter the defendant or others from engaging in this or similar conduct in

the future, or to make an example out of the defendant. In determining

such amount, you may consider such of the following factors as are

supported by the evidence:5

NOTE WELL: Either plaintiff or defendant may produce

evidence as to factors 1 through 10;6 factors 11 and 12

are mitigating factors as to which only the defendant

should be allowed to produce evidence.

[(1) the [injury] [damage] which occurred from the defendant's

conduct]

[(2) the [injury] [damage] which could have occurred from the

defendant's conduct]

[(3) the degree of reprehensibility of the defendant's conduct]

[(4) the duration of the defendant's conduct]

[(5) the defendant's awareness of the nature and character of his

conduct]

[(6) the defendant's awareness of the probable consequences of his

conduct]

[(7) any concealment by the defendant of the facts or

consequences of his conduct]

[(8) the existence and frequency of any similar past conduct by the

defendant]

[(9) whether or not the defendant profited from his conduct and, if

so, whether that profit should be taken away]

[(10) the financial status or position of the defendant]7

[(11) whether the defendant has already been punished, in whole

or in part, by criminal sanctions]

[(12) whether the defendant has already been punished or is likely

to be punished through other civil actions involving the same or similar

conduct].

You may consider such other factors as arise logically and fairly

from the evidence presented.

Finally, if you determine, in your discretion, to award punitive

damages, then, considering those factors which are supported by the

evidence, you may award to the plaintiff an amount which bears a

rational relationship to the sum reasonably needed to punish the

defendant, or to deter the defendant or others from engaging in this or

similar conduct in the future, or to make an example out of the

defendant. That amount should be written in the space provided on the

verdict sheet.