N.C.P.I.—Motor Vehicle 106.24

"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.1 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 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.2 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.3

(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 chances for 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.