N.C.P.I.—Civil 814.02

The (state number) issue reads:

"Was the plaintiff's (describe property) [lost] [damaged] by the

negligence of the defendant?"

(You will answer this issue only if you have answered the (state

number) issue "Yes" in favor of the plaintiff.)1

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, that

the defendant was negligent and that such negligence was a proximate

cause of the plaintiff's [loss] [damage].

Negligence refers to a person's failure to follow a duty of conduct

imposed by law. Every person is under a duty to use ordinary care to

protect bailment property from [loss] [damage]. Ordinary care means

that degree of care which a reasonable and prudent person would use

under the same or similar circumstances to protect bailment property

from [loss] [damage]. A person's failure to use ordinary care is

negligence.2

The plaintiff not only has the burden of proving negligence, but also

that such negligence was a proximate cause of the [loss] [damage].

Proximate cause is a cause which in a natural and continuous

sequence produces [loss] [damage], and is a cause which a reasonable

and prudent person could have foreseen would probably produce such

[loss] [damage] or some similar injurious result.

There may be more than one proximate cause of [a loss] [damage].

Therefore, the plaintiff need not prove that the defendant's neligence

was the sole proximate cause of the [loss] [damage]. The plaintiff must

prove, by the greater weight of the evidence, only that the defendant's

negligence was a proximate cause.

Ordinarily, in order to recover, the plaintiff must prove some

negligent act or omission on the part of the defendant and that it

proximately caused his [loss] [damage]. Negligence is not to be

presumed from the mere fact of [loss] [damage]. However, in certain

situations, the law permits you, but does not require you, to infer from

the circumstances shown by the evidence that a negligent act or omission

has occurred and that it has proximately caused [loss] [damage].3

The plaintiff contends that this is a case where the circumstances

are such that you should infer and find that the defendant was negligent

and that his negligence proximately caused the plaintiff's [loss]

[damage]. On the other hand, the defendant denies any negligence on

his part and contends that you should not infer or find that he was

negligent or that his negligence proximately caused the plaintiff's [loss]

[damage]. In order for you to infer and find that the defendant was

negligent and that such negligence proximately caused the plaintiff's

[loss] [damage], the plaintiff must prove, by the greater weight of the

evidence, three things:

First, that the (describe property) was delivered to the defendant.

Second, that the defendant accepted the (describe property) and

had possession and control over it.

Third, that the defendant [failed to return the (describe property)]

[returned the (describe property) in a damaged condition].

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 was negligent in any one or more of the ways contended by

the plaintiff and that

such negligence was a proximate cause of the plaintiff's [loss] [damage],

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.