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Alienation of Affection and Criminal Conversation Part 4

N.C.P.I.—Civil 800.27
CRIMINAL CONVERSATION—STATUTE OF LIMITATIONS.
GENERAL CIVIL VOLUME
REPLACEMENT JUNE 2015


NOTE WELL: For actions arising from acts occurring prior to October 1, 2009, use this instruction. For actions arising from acts occurring on or after October 1, 2009, see N.C.P.I-Civil 800.27A ("Criminal Conversation – Statute of Limitations").

The (state number) issue reads:

"Did the plaintiff file this action within three years of the date it became apparent or ought reasonably to have become apparent to the plaintiff that the defendant had committed criminal conversation with the plaintiff's spouse?"1

If you have answered the (state number) issue "Yes"in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming criminal conversation must be filed within three years after the date the plaintiff discovered or ought reasonably to have discovered, whichever event first occurred, that the defendant committed criminal conversation with the plaintiff's spouse.3 The plaintiff filed the present lawsuit on (state date of filing of criminal conversation action).

On this issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must prove, by the greater weight of the evidence, that the plaintiff filed this action within three years after the date it became apparent or ought reasonably to have become apparent to the plaintiff, whichever event first occurred, that the defendant had committed criminal conversation with the plaintiff's spouse. An event would have been or would have become reasonably apparent to the plaintiff when it would have been or would have become apparent to a reasonable and prudent person in the same or similar circumstances as 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 the plaintiff filed this action within three years after the date it became apparent or ought reasonably to have become apparent to the plaintiff, whichever event first occurred, that the defendant had committed criminal conversation with the plaintiff's spouse, 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.


1 N.C. Gen. Stat. § 1-52(16) provides that a cause of action "for personal injury . . . shall not accrue until bodily harm to the claimant . . . becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs."In Misenheimer v. Burrus, 360 N.C. 620, 623-24, 637 S.E.2d 173, 175-76, the North Carolina Supreme Court ruled that "an action for criminal conversation falls under the . . . definition of personal injury as it concerns an invasion of a [sic] individual's personal right"and "the discovery rule"in N.C. Gen. Stat. § 1-52(16) "tolls the statute of limitations"set out in § 1-52(5) "in cases of criminal conversation,"although "such actions remain subject to the [ten year] statute of repose provision in § 1-52(16), which states that 'no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.'"

2 N.C. Gen. Stat. § 1-52(5) (2009) provides that a plaintiff must file an action within three years "[f]or criminal conversation."A "statute of limitations"is "the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable." South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact."Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 See Misenheimer, 360 N.C. at 624-25, 637 S.E.2d at 176 ("[W]e interpret N.C. Gen. Stat. § 1-52(5) and § 1-52(16) together to mean that . . . the statute of limitations for criminal conversation begins to run when the tort is discovered or should have been discovered, not upon completion of the last act constituting the offense.") Whether a plaintiff exercised due diligence in discovering the criminal conversation is ordinarily an issue of fact for the jury absent dispositive or conclusive evidence indicating neglect by the plaintiff as a matter of law. In other words, when there is a dispute as to a material fact regarding when the plaintiff should have discovered the [criminal conversation], summary judgment is inappropriate, and it is for the jury to decide if the plaintiff should have discovered the [criminal conversation]. Failure to exercise due diligence may be determined as a matter of law, however, where it is clear that there was both capacity and opportunity to discover the [criminal conversation]. Ward v. Fogel, ____ N.C. App. ___, 768 S.E.2d 292, 299 (2014) (quoting Spears v. Moore, 145 N.C. App. 706, 708-09, 551 S.E.2d 483, 485 (2001) (internal citation omitted)). Unless the circumstances are such that any reasonable party would have acted upon the opportunity, determination as a matter of law is inappropriate. See Wells Fargo Bank, N.A. v. Coleman, ___ N.C. App. ___, 768 S.E.2d 604 (2015).

4 See Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997): While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred. (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when defendant asserts statute of limitations as an affirmative defense).

N.C.P.I.—Civil 800.27A
CRIMINAL CONVERSATION—STATUTE OF LIMITATIONS.
GENERAL CIVIL VOLUME
REPLACEMENT JUNE 2015


NOTE WELL: For actions arising from acts occurring on or after October 1, 2009, use this instruction. For actions arising from acts occurring prior to October 1, 2009, see N.C.P.I.-Civil 800.27 ("Criminal Conversation – Statute of Limitations").

The (state number) issue reads:

"Did the plaintiff file this action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim?"1

If you have answered the (state number) issue "Yes"in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2 The law provides that a lawsuit claiming criminal conversation must be filed within three years of the date of the last act of the defendant which gave rise to the plaintiff's claim. [The law further provides that if the plaintiff and the plaintiff's spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such physical separation may give rise to the plaintiff's criminal conversation claim.3] The plaintiff filed the present lawsuit on (state date of filing of criminal conversation action).

By answering issue (state number) "Yes"in favor of the plaintiff, you found that the defendant had sexual intercourse with the spouse of the plaintiff prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.

On this (state number) issue, the burden of proof is on the plaintiff.4

This means that the plaintiff must now prove, by the greater weight of the evidence, that the last act of sexual intercourse between the defendant and the plaintiff's spouse occurred less than three years before the date of the filing of this lawsuit by the plaintiff. [(In cases where there is physical separation) Furthermore, because the plaintiff and his spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, the plaintiff must also prove that the act occurred prior to the physical separation.]

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 plaintiff filed this action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim, 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.


1 The statute of limitations for "criminal conversation"is three years. N.C. Gen. Stat. § 1-52(5). N.C. Gen. Stat. § 52-13(b), effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, establishes the statute of repose for such actions. It provides as follows: An action for . . . criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action. This specific statute of repose is an exception to the general statute of repose for causes of actions for personal injury found in N.C. Gen. Stat. § 1-52(16). Thus, for actions for criminal conversation arising from acts occurring on or after October 1, 2009, the statute of repose and the statute of limitations are the same: three years.

2 A "statute of limitations"is "the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable."South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). "Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact."Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 See N.C. Gen. Stat. § 52-13(a).

4 See Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997):While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred. (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when defendant asserts statute of limitations as an affirmative defense).

JURY INSTRUCTION – PRESENT VALUE

N.C.P.I.—Civil 810.96
PUNITIVE DAMAGESLIABILITY OF DEFENDANT.
GENERAL CIVIL VOLUME
REPLACEMENT MARCH 2016


NOTE WELL: Use this instruction in conjunction with claims for relief arising on or after January 1, 1996.1 For claims for relief arising prior to January 1, 1996, use N.C.P.I. —Civil 810.90.

The (state number) issue reads:

"Is the defendant liable to the plaintiff for punitive damages?"

(You are to answer this issue only if you have awarded the plaintiff relief in conjunction with (state number(s) of plaintiff's issue(s).)2

On this issue the burden of proof is on the plaintiff to prove three things.

The plaintiff must prove the first thing by clear and convincing evidence.3 Clear and convincing evidence is evidence which, in its character and weight, establishes what the plaintiff seeks to prove in a clear and convincing fashion.

You shall interpret and apply the words "clear" and "convincing" in accordance with their commonly understood and accepted meanings in everyday speech.

Thus, the first thing the plaintiff must prove, by clear and convincing evidence, is the existence of [fraud] [malice] [willful or wanton conduct].4

[Fraud means a false representation of material fact made by the defendant with intent to deceive which was reasonably calculated to deceive and which did, in fact, deceive and damage the plaintiff because of his reasonable reliance on it.]5

[Malice means a sense of personal ill will toward the plaintiff that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the plaintiff.]6

[Willful or wanton conduct means the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage or other harm. Willful or wanton conduct means more than gross negligence.]7

The plaintiff must prove the second and third things by the greater weight of the evidence. The greater weight of the evidence does not refer to the quantity of the evidence, but rather to the quality and convincing force of the evidence. It means that you must be persuaded, considering all of the evidence, that the necessary facts are more likely than not to exist. These second and third things are:

Second, that the [fraud] [malice] [willful or wanton conduct] was related to the injury to the plaintiff for which you have already awarded relief.8

And Third, that the [defendant participated in] [the defendant's officers, directors or managers participated in or condoned] the [fraud] [malice] [willful or wanton conduct].9

Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the standards herein explained that the defendant is liable to the plaintiff for punitive damages, 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 "No" in favor of the defendant.


1 N.C. Gen. Stat. § 1D became effective January 1, 1996, displacing common law punitive damages. It applies to all "claims for relief arising on or after the date." 1995 N.C. Sess. Laws 514, § 5. Pursuant to N.C. Gen. Stat. § 1D-30, upon the motion of the defendant, the issues of liability for and amount of punitive damages shall be tried separately from the issues of liability for and amount of compensatory damages.

2 This admonition should be omitted in the event of a bifurcated procedure pursuant to N.C. Gen. Stat. § 1D-30. See Watson v. Dixon, 132 N.C. App. 329, 331-332, 511 S.E.2d 37, 38 (1999) cert. den. 351 N.C. 191, 541 S.E.2d 727(1999).

3 N.C. Gen. Stat. § 1D-15(b). Note that the statute omits any reference to "strong."

4 N.C. Gen. Stat. § 1D-15(a).

5 See N.C.P.I.—Civil 800.90. Note that this summary definition must be adapted in "concealment" cases. In an appropriate case, the five elements of fraud set out in greater detail in N.C.P.I.—Civil 800.00 can be given. "Constructive fraud" can also qualify as "fraud" for the purposes of N.C. Gen. Stat. § 1D-15(a) if "an element of intent is present." N.C. Gen. Stat. § 1D-5(4). Thus, an intentional breach of fiduciary duty would be sufficient. In such instances, the jury could be instructed that, "Fraud occurs when a person who is a fiduciary for another intentionally fails to act in good faith and with due regard for such other person." See N.C.P.I. Civil 800.96.

6 N.C. Gen. Stat. § 1D-5(5).

7 N.C. Gen. Stat. § 1D-5(7).

8 N.C. Gen. Stat. § 1D-15(a). Note, however, that Mehovic v. Mehovic, 133 N.C. App. 131, 136, 514 S.E.2d 730, 734 (1999) holds that punitive damages are appropriate where the plaintiff elects rescission rather than compensatory damages.

9 Punitive damages may not be awarded against a person solely on the basis of vicarious liability for the acts or omissions of another. N.C. Gen. Stat. § 1D-15(c).

N.C.P.I.—Civil 810.14
PERSONAL INJURY DAMAGES—PERMANENT INJURY.
GENERAL CIVIL VOLUME
REPLACEMENT JUNE 2015


810.14 PERSONAL INJURY DAMAGES—PERMANENT INJURY.

(For medical malpractice cases filed on or after 1 October 2011, use N.C.P.I.-Civil 809.114 and 809.115.)

Damages for personal injury also include fair compensation for permanent injury1 incurred by the plaintiff as a [proximate result of the negligence] [result of the wrongful conduct] of the defendant. An injury is permanent when any of its effects will continue throughout the plaintiff's life.2

These effects may include

[medical expenses]

[loss of earnings]

[pain and suffering]

[scarring or disfigurement]

[(partial) loss (of use) of part of the body]

[(state any other element of damages supported by the evidence)]

to be incurred or experienced by the plaintiff over his life expectancy.

However, the plaintiff is not entitled to recover twice for the same element of damages. Therefore, you should not include any amount you have already allowed for [medical expenses] [loss of earnings] [pain and suffering] [scarring or disfigurement] [(partial) loss (of use) of part of the body] because of permanent injury.

Life expectancy is the period of time the plaintiff may reasonably be expected to live. [The life expectancy tables are in evidence.] [The court has taken judicial notice of the life expectancy tables.]3 They show that for someone of the plaintiff's present age, (state present age), his life expectancy is (state expectancy) years.4

In determining the plaintiff's life expectancy, you will consider not only these tables, but also all other evidence as to his health, constitution and habits.5

N.C. Gen. Stat. § 8-46. Mortality tables as evidence.

NOTE WELL: Whenever it is necessary to establish the expectancy of continued life of any person from any period of the person's life, whether the person is living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to determine litigation, as evidence, with other evidence as to the health, constitution and habits of the person, of such expectancy represented by the figures in the columns headed by the words "completed age" and "expectation" respectively:

Completed Age / Expectation
  • 0 / 75.8
  • 1 / 75.4
  • 2 / 74.5
  • 3 / 73.5
  • 4 / 72.5
  • 5 / 71.6
  • 6 / 70.6
  • 7 / 69.6
  • 8 / 68.6
  • 9 / 67.6
  • 10 / 66.6
  • 11 / 65.6
  • 12 / 64.6
  • 13 / 63.7
  • 14 / 62.7
  • 15 / 61.7
  • 16 / 60.7
  • 17 / 59.8
  • 18 / 58.8
  • 19 / 57.9
  • 20 / 56.9
  • 21 / 56.0
  • 22 / 55.1
  • 23 / 54.1
  • 24 / 53.2
  • 25 / 52.2
  • 26 / 51.3
  • 27 / 50.4
  • 28 / 49.4
  • 29 / 48.5
  • 30 / 47.5
  • 31 / 46.6
  • 32 / 45.7
  • 33 / 44.7
  • 34 / 43.8
  • 35 / 42.9
  • 36 / 42.0
  • 37 / 41.0
  • 38 / 40.1
  • 39 / 39.2
  • 40 / 38.3
  • 41 / 37.4
  • 42 / 36.5
  • 43 / 35.6
  • 44 / 34.7
  • 45 / 33.8
  • 46 / 32.9
  • 47 / 32.0
  • 48 / 31.1
  • 49 / 30.2
  • 50 / 29.3
  • 51 / 28.5
  • 52 / 27.6
  • 53 / 26.8
  • 54 / 25.9
  • 55 / 25.1
  • 56 / 24.3
  • 57 / 23.5
  • 58 / 22.7
  • 59 / 21.9
  • 60 / 21.1
  • 61 / 20.4
  • 62 / 19.7
  • 63 / 18.9
  • 64 / 18.2
  • 65 / 17.5
  • 66 / 16.8
  • 67 / 16.1
  • 68 / 15.5
  • 69 / 14.8
  • 70 / 14.2
  • 71 / 13.5
  • 72 / 12.9
  • 73 / 12.3
  • 74 / 11.7
  • 75 / 11.2
  • 76 / 10.6
  • 77 / 10.0
  • 78 / 9.5
  • 79 / 9.0
  • 80 / 8.5
  • 81 / 8.0
  • 82 / 7.5
  • 83 / 7.1
  • 84 / 6.6
  • 85 & over / 6.6

1 A jury may consider permanent injury as an element of damages where there is sufficient evidence showing that the injury is permanent and that it proximately resulted from the wrongful act. See Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46–47 (1964); Collins v. St. George Physical Therapy, 141 N.C. App. 82, 84, 539 S.E.2d 356, 358 (2000); Matthews v. Food Lion, Inc., 135 N.C. App. 784, 785, 522 S.E.2d 587, 588 (1999).

2 "Where, however, the injury is subjective and of such a nature that laymen cannot, with reasonable certainty, know whether there will be future pain and suffering, it is necessary, in order to warrant an instruction which will authorize the jury to award damages for permanent injury, that there 'be offered evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from a hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven.'"Gillikin v. Burbage, 263 N.C. 317, 326, 139 S.E.2d 753, 760–61 (1965) (internal citations and quotation marks omitted); Littleton v. Willis, 205 N.C. App. 224, 231–32, 695 S.E.2d 468, 473 (2010) (finding error in trial court's instruction to jury on permanent injury where the plaintiff "did not present any medical expert testimony that [p]laintiff, 'with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven,'"as an instruction on permanent injury would have required jurors to speculate on how long they believed plaintiff's pain would continue in the future) (citation omitted).

3 The terms "life expectancy tables"and "mortality tables"are used interchangeably. Ordinarily the "mortality tables"will be in evidence. However, since they are statutory (see N.C. Gen. § Stat. 8-46), "judicial notice"of them may be taken. See Chandler v. Moreland Chem. Co., 270 N.C. 395, 400, 154 S.E.2d 502, 506 (1967); Rector v. James, 41 N.C. App. 267, 272, 254 S.E.2d 633, 637 (1979). The annuity tables (see N.C. Gen. Stat. § 8-47) are different and should not be admitted in evidence. As pointed out in Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326 (1953), the annuity tables have nothing to do with the establishment of life expectancy and it would be error to admit them for this purpose. Where the life expectancy to be determined is that of the plaintiff, his age is to be measured as of the date the jury charge is given.

4 The purpose of the permanent injury instruction "is to compensate the plaintiff for additional future harm that she is expected to experience because of a permanent injury that she suffered as a proximate result of the defendant's conduct."Nicholson v. Thom, ___N.C. App. __, __, 763 S.E.2d 772, __ (2014). In the event that the "decedent is not alive at the time of the trial and [if] Plaintiff did not bring suit for wrongful death,"the trial court should not instruct on permanent injury. Id. In these circumstances [where the decedent is no longer living and there is no wrongful death claim], this instruction should not be used. Id. 5 A failure to include this sentence, or its equivalent, is reversible error. See generally Kinsey v. Kenly, 263 N.C. 376, 139 S.E.2d 686 (1965); Harris v. Atl. Greyhound Corp., 243 N.C. 346, 90 S.E.2d 710 (1956).

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