N.C.P.I.—Motor Vehicle 102.13A

NOTE WELL: This instruction should be used only

where the defendant is between the ages of fourteen

and sixteen, including a child fourteen years and zero

days to fifteen years, 364 days, and is contending that

his conduct should be judged by a non-adult standard.

NOTE WELL: Motor vehicle instruction N.C.P.I.-Civil

220.10, Operation of Vehicle Without a License- Under

Age, states that the minor shall be judged in the same

manner as a reasonably careful and prudent person

would have done under all the circumstances then

existing.

This issue reads:

"Was the plaintiff (name plaintiff) injured or damaged by the

negligence of the minor defendant (name minor defendant)?"

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 minor defendant (name defendant) was negligent and that the

plaintiff suffered [personal injury] [property damage] [either personal

injury or property damage, or both] as a proximate result of the

negligence of the minor defendant.

Negligence refers to a party's conduct. In most cases, negligence

is a lack of ordinary care. The law imposes a duty upon every person to

use ordinary care to protect himself and others from injury. A breach of

that duty is called negligence, and such a breach occurs when a person

fails to use ordinary care to protect himself and others from injury.

Ordinary care means that degree of care which a reasonable and prudent

person would use under the same or similar circumstances.

Negligence is not to be presumed from the mere fact of [personal

injury] [property damage] [either personal injury or property damage, or

both].

At the time of the [accident] [state other event giving rise to

claim], (name defendant) was (state age) years old. The law presumes

that a child between fourteen and sixteen years of age possesses the

capacity of an adult and is responsible for using the same standard of

ordinary care which is expected of an adult.1 Thus, even though the child

is (state age), his failure to use that degree of care which a reasonably

careful and prudent person would use under the same or similar

circumstances would be negligence.

In this case, however, the defendant contends, and the plaintiff

denies, that he should be held to a different standard of care than that

which I have just stated. I instruct you that while the law presumes that

a child of (state number) years possesses the capacity of an adult, this

presumption may be rebutted. The burden of rebutting this presumption

is upon the minor defendant, (name defendant), who must satisfy you, by

the greater weight of the evidence, that he lacks the ability, capacity or

intelligence of an ordinary child his age.2

If you find, by the greater weight of the evidence, that the

defendant lacked the ability, capacity or intelligence of an ordinary child

his age at the time of the [accident] [state other evidence giving rise to

claim], then it would be your duty to apply a different standard of care in

determining whether the defendant was negligent. The test of such

child's negligence is whether the child exercised the same care for the

safety of others that a reasonably careful child of the same age,

discretion, knowledge and experience ordinarily would have exercised

under the same or similar circumstances. In other words, a child of this

age is only required to exercise that degree of care which a reasonably

careful child of his same age, discretion, knowledge and experience may

be expected to possess. The standard of care varies with the child's age,

learning, experience and capacity.3 The failure of such child to exercise

that degree of care for the safety of others which a reasonably careful

child of his same age and with his same discretion, knowledge and

experience would ordinarily exercise under the same or similar

circumstances would be negligence.

On the other hand, if, considering all the evidence, you fail to find

that the defendant lacks the ability, capacity or intelligence of an

ordinary child his age, or you are unable to say, then it would be your

duty to apply the ordinary standard of care applicable to adults as I have

previously explained to you.

Additionally, a party seeking damages as a result of negligence has

the burden of proving not only negligence, but also that such negligence

was a proximate cause of the [injury] [damage].

Proximate cause is a real cause- a cause without which the claimed

[injury] [damage] would have not occurred, and one which a reasonably

careful and prudent person could foresee would probably produce such

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

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the party seeking damages need not prove that the

other party's negligence was the sole proximate cause of the [injury]

[damage]. He must prove by the greater weight of the evidence, only

that the other party's negligence was a proximate cause.

Thus, on this issue, the burden of proof is on the plaintiff to satisfy

you by the greater weight of the evidence that the minor defendant was

negligent, and that such negligence was a proximate cause of the

plaintiff's [injury] [damage].

In this case, members of the jury, the plaintiff contends, and the

defendant denies, that the minor defendant, (name minor defendant),

was negligent in one or more of the following ways:

(Here read all contentions of negligence supported by

the evidence).

The plaintiff further contends, and the defendant denies, that the

negligence of the defendant was a proximate cause of [injury] [damage]

to the plaintiff.

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 at the time

of the [accident] [state other event giving rise to claim] the minor

defendant (name minor defendant) was negligent, and that such

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

then it would be your duty to answer this issue "Yes" in favor of the

plaintiff.

On the other hand, if, considering all the evidence, you fail to so

find, or you are unable to say, then it would be your duty to answer this

issue "No" in favor of the defendant.