N.C.P.I.—Motor Vehicle 106.40

The (state number) issue reads:

"What amount is the estate of (name deceased) entitled to recover

for wrongful death?"

If you have answered the (state number) issue "Yes" (and the

(state number) issue "No") in favor of the estate, the estate is entitled

to recover nominal damages even without proof of actual damages.1

Nominal damages consist of some trivial amount such as one dollar in

recognition of the technical damages incurred by the estate.

The estate may also be entitled to recover actual damages.2 On

this issue, the burden of proof is on the estate. This means the estate

must prove, by the greater weight of the evidence, the amount of actual

damages [proximately caused by the negligence] of the defendant.

Actual damages are the fair compensation to be awarded to the

estate for the death of (name deceased) [proximately caused by the

negligence] of the defendant. Such damages may include:

(NOTE WELL: Set forth below are the four types of

damages permitted by the wrongful death statute.

Give only those bracketed components supported by

the evidence.)

[expenses for care, treatment and hospitalization incident to the

injury resulting in death]3

[pain and suffering]4

[reasonable funeral expenses]5

[the present monetary value of (name deceased) to his next-of-kin].6

The total of all damages 7 are to be awarded in one lump sum. 8 I

will now explain the law of damages as it relates to (each of) these.

[Use where there is evidence of medical expenses: Expenses for

care, treatment and hospitalization9 include all [hospital] [doctor] [drug]

[state other] expenses reasonably paid10 or incurred11 by (name

deceased) as a [proximate result of the negligence] of the defendant.

(The parties have agreed and stipulated that (name deceased's)

reasonable medical expenses were (state amount).)]

[Use where there is evidence of pain and suffering: Damages for

(name deceased's) death also include fair compensation for the actual

physical pain and mental suffering12 experienced by (name deceased)

between the time of his injury and the time of his death. You may

consider:

[the nature, extent and degree of the injury(ies) sustained by

(name deceased) 13]

[the length of time (name deceased) lived and was conscious 14 of

his pain and suffering]

[state any other factor supported by the evidence].

There is no fixed formula for placing a value on physical pain and

mental suffering. You will determine what is fair compensation by

applying logic and common sense to the evidence.]

[Use where there is evidence of funeral expenses: Damages for

(name deceased's) death also include all funeral (and burial)15 expenses

reasonably paid16 or incurred17 by the estate.

(The parties have agreed and stipulated that the estate's

reasonable funeral (and burial) expenses were (state amount).)]

[Use where there is evidence of the deceased's monetary value to

next-of-kin:18 Damages for (name deceased's) death also include fair

compensation for the present monetary value of (name deceased) to his

next-of-kin. (In this case, (name deceased's) next-of-kin are (name

persons and specify relationships).)19

There is no fixed formula for determining the present monetary

value of (name deceased) to his next-of-kin. You must determine what is

fair compensation by applying logic and common sense to the evidence.20

You may consider:

[The net income (name deceased) would have earned during the

remainder of his life. You must subtract from (name deceased's)

reasonably expected income the amount he would have spent on himself

or for other purposes which would not have benefited his next-of-kin.21

The amount he would have earned depends upon his prospects in life,

health, character, ability, industry and [the means he had for making

money] [the business in which he was employed]. It also depends upon

his life expectancy- that is, the length of time he could reasonably have

been expected to live but for the [negligence] of the defendant.]

[The services, protection, care and assistance of (name deceased),

whether voluntary or obligatory, to his next-of-kin.22 These words are to

be given their ordinary meanings. You may consider the family and

personal relations between (name deceased) and his next-of-kin, and

what you find to be the reasonable value of the loss to them of these

things over the life expectancy of (name deceased)23 (or, as I will explain

to you, over a shorter period). 24]

[The society, companionship, comfort, guidance, kindly offices and

advice of (name deceased) to his next-of-kin.25 These words are to be

given their ordinary meanings. You may consider the family and personal

relations between (name deceased) and his next-of-kin and what you find

to be the reasonable value of the loss to them of these things over the

life expectancy of (name deceased)26 (or, as I will explain to you, over a

shorter period.)]

As I have indicated, in determining (name deceased's) [net income

expectancy] [the value of his services, protection, care and assistance]

[the value of his society, companionship, comfort, guidance, kindly offices

and advice], you must consider his life expectancy.27 Life expectancy is

the period of time (name deceased) may reasonably have been expected

to live but for the [negligence] [wrongful conduct] of the defendant. The

life expectancy tables are in evidence.28 They show that for one of (name

deceased's) age at the time of his death, his life expectancy would have

been (state expectancy). In determining (name deceased's) life

expectancy, you will consider not only these tables, but also all other

evidence as to his health, his constitution and his habits.29

(The life expectancy tables show that, at the time of the death of

(name deceased), the life expectancy for (name next-of-kin) was (state

expectancy), which was shorter than the expectancy shown by the tables

for (name deceased). Therefore, you must determine the expectancy of

(name next-of-kin) as well as the expectancy of (name deceased). In

determining the expectancy of (name next-of-kin), you will consider not

only these tables, but also all other evidence as to his health, his

constitution and his habits. If you find that the expectancy of (name

next-of-kin) is shorter than that of (name deceased), you will determine

the monetary value of the (name deceased) to (name next-of-kin) by the

shorter of the two life expectancies. In other words, when the

expectancy of a next-of-kin is shorter than that of a deceased, the award

to the next-of-kin is limited to the value of benefits he might have

expected to receive during his own life.)30

In determining the amount of actual damages to be awarded to

(name deceased's) next-of-kin, you are not limited to the things which I

have mentioned. You may consider any other evidence which reasonably

tends to establish the monetary value of (name deceased) to his next-of-kin.

Any amount you allow as damages for the future monetary value of

(name deceased) to his next-of-kin must be reduced to its present value,

because a smaller sum received now is equal to a larger sum received in

the future. (There is evidence before you that (name deceased's) future

monetary value to his next-of-kin has already been reduced to its present

value. Whether it has in fact been so reduced is for you to determine

from the evidence and from your logic and common sense. However, if

you find that (name deceased's) monetary value to his next-of-kin has

already been reduced to present value, you must not reduce it again.)]

I instruct you that your findings on the (state number) issue must

be based on the evidence and the rules of law I have given to you with

respect to the measure of damages.31 You are not required to accept the

amount of damages suggested by the parties or their attorneys.

(Use only if counsel makes a per diem argument: An attorney is

allowed to suggest an amount of damages and therefore can suggest an

amount for each (specify unit(s) of time, e.g., "day, hour or minute") of

physical pain or mental suffering. However, I instruct you that there is

no fixed mathematical formula for computing damages for physical pain or

mental suffering. Furthermore, an attorney's argument is not evidence

but is merely an approach to the damage issue which you may consider

but need not adopt. 32)

Your award must be fair and just. You should remember that you

are not seeking to punish either party, and you are not awarding or

withholding anything on the basis of sympathy or pity.

Finally, as to the (state number) issue on which the estate has the

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

amount of actual damages [proximately caused by the negligence] of the

defendant, 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 sum such as "One Dollar" in the blank space provided.