N.C.P.I.—Civil 813.80

The (state number) issue reads:

"In what amount has [the plaintiff been injured] [the business of

the plaintiff been injured]?"

If you have answered all the preceding issues "Yes" in favor of the

plaintiff, the plaintiff is entitled to recover nominal damages even

without proof of actual damages. Nominal damages consist of some

trivial amount such as one dollar in recognition of the technical damage

caused by the wrongful conduct of the defendant.

The plaintiff may also be entitled to recover actual damages. 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, the amount of

actual damages sustained, if any, as a result of [his injury] [the injury to

his business].

Such damages would include (here give appropriate instructions on

damages. The following examples are not exhaustive2 but are offered to

provide guidance in most cases).3

I. For injury to the plaintiff as a competitor:

[any loss in profits suffered (or to be suffered) by the plaintiff]4

[any loss in the value of the plaintiff's business as a going concern]

[the value of the plaintiff's business as a going concern just before

it was destroyed. That is, the amount a willing buyer would pay for the

business, and a willing seller would accept, neither being in need of an

immediate purchase or sale].

II. For injury to the plaintiff as a consumer or to its business as

a customer:

[personal injury to the plaintiff. (Here give appropriate instructions

on personal injury damages. See N.C.P.I.-Civil 810.00 through 810.85.)]

[(give appropriate "benefit of the bargain" instructions. For

example: the difference in the value of (describe property) as

represented by the defendant and as actually delivered.)]

[(give appropriate instructions on cost of repairs. For example:

the reasonable cost of parts and labor necessary to repair (describe

property) to put it in as good condition as was represented at the time of

the sale.)]

[the amount of price discrimination paid by the plaintiff. That is,

the amount that the plaintiff was required to pay above what he would

have had to pay if (describe conduct that would have been

nondiscriminatory; e.g., "defendant had charged the same price in

Wilmington that he charged in Charlotte").]

[the excess price paid by the plaintiff. That is, the difference

between the price actually paid for (specify product or service) and the

price for which it could have been obtained in an open and free market.]

III. For damages resulting from a breach of contract to sell real

property:

[earnest money deposits]

[loss of the use of specific and unique property]

[loss of the appreciated value of the property

[(Here state such other elements of damage supported by the

evidence)].5

The plaintiff's damages are to be reasonably determined from the

evidence presented in the case. The plaintiff is not required to prove

with mathematical certainty the extent of [his injury] [the injury to his

business] in order to recover damages. Thus, the plaintiff should not be

denied damages simply because they cannot be calculated with exactness

or a high degree of mathematical certainty. An award of damages must

be based on evidence which shows the amount of the plaintiff's damages

with reasonable certainty. However, you may not award any damages

based upon mere speculation or conjecture.6

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find, by the greater weight of the evidence, the amount of

actual damages sustained by the plaintiff by reason of [his injury] [the

injury to his business], then it would be your duty to write that amount in

the blank space provided. If, on the other hand, you fail to so find, then

it would be your duty to write a nominal amount such as "One Dollar" in

the blank space provided.