Can you give me a comprehensive explanation about volenti non fit injuria in US law? Thank you!

Full Question:

Can you give me a comprehensive explanation about volenti non fit injuria in US law? Thank you!
04/16/2017   |   Category: Civil Actions   |   State: New York   |   #35733

Answer:

For a definition see https://definitions.uslegal.com/v/volenti-non-fit-injuria/

"Volenti Non Fit Injuria" can apply to almost any type action.

We find one Statute that mentions "Volenti Non Fit Injuria" in a footnote. See Footnote 4 in the North Carolina Statute below. This does not mean that there are not other statutes that apply to this but just don't mention the term in the statute.

We also find over 1200 State Court opinions that mention the term and it was involved in those cases. A similar issue is called the last clear chance defense where the person has a clear chance to avoid the injury or matter and failed to do so. Another is contributory negligence where the person suing for example injuries was also at fault and contributed to the injuries.

Here are a few quotes from some of the Court Opinions:
 We find claimant's contention that he was unaware of the consequences of his participation to be unpersuasive. As set forth by the Court of Claims, given claimant's experience with rugby (almost three years at the time of the accident), his regular practice on Tobey Field, the fact that he had always practiced with student coaches and that he had seen prior injuries, albeit less serious than paralysis, dismissal was warranted as a matter of law because claimant had assumed the risks of play. The risk inherent in the sport of rugby is apparent, as is the risk inherent in football, basketball, lacrosse and other sports that involve contact. Individuals compete in such athletic events for a myriad of reasons including, but not limited to, competition, conditioning, comradery and sportsmanship. Matters involving serious injuries resulting from accidents which dramatically

654 N.Y.S.2d 491

alter the course of a young adult's life are unsettling; however, as aptly noted by Chief Judge Cardozo in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173, "Volenti non fit injuria. One who takes part in such sport accepts the dangers that inhere in it so far as they are obvious and necessary" (id., at 482, 166 N.E. 173).
 
Regan v. State, 654 N.Y.S.2d 488, 237 A.D.2d 851Supreme Court of New York, Appellate Division
 
The doctrine of no duty is said to rest on the maxim volenti non fit injuria, which means 'that to which a person assents is not esteemed in law an injury'. Levlon et ux. v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, 877, error refused. It means that the injured party consented to the act or omission which caused his injury and which, without such consent, would be a legal wrong. White v. McVicker, 216 Iowa 90, 246 N.W. 385. An excellent discussion and application of the maxim appears in Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233.  [150 Tex. 196] In 65 C.J.S., Negligence § 174, page 848, it is said, 'While it has been held that the
doctrine of assumption of risk, in its primary or usual meaning, is limited to controversies between master and servant and is not applicable in the absence of any contractual relation between the parties, there is ample authority for the view that in its broader sense the doctrine of assumption of risk may extend beyond contractual relations * * *. In any event, when plaintiff has brought himself within the operation of the maxim, Volenti non fit injuria, he cannot recover. The doctrine discussed herein, by whatever name it may be designated, is said to rest on, or be in its nature, effect, and import the equivalent at least of, the principle expressed by the maxim, Volenti non fit injuria, which is itself predicated on the theory of knowledge and appreciation of the danger and voluntary assent thereto. * * *

       'The mere encountering of a risk, * * * does not, legally speaking, constitute assumption of risk; it is only when the risk exists in spite of the exercise of due care or when the risk results from negligence which is obvious that it is assumed by the person injured'. (Italics ours.) And see Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041.

       In Gover v. Central Vermont Ry. Co., 96 Vt. 208, 118 A. 874, 877, the Supreme Court of Vermont says that since the maxim extends beyond contractual relations, the limitations of the doctrine of assumption of risk based thereon must be looked for in the terms of the maxim itself; that any other course would be illogical and the limitations could not escape being purely artificial; that, therefore, the doctrine of assumed risk, in an action between persons not having relations by contract, must be confined to cases where the plaintiff knew and appreciated the danger and put himself in the way of it of his own free will and as the result of an 'intelligent choice'. In support of this conclusion the court then observes: 'In effect the English cases hold that mere knowledge of the risk does not necessarily involve consent to the risk, and that the maxim does not apply on the mere showing of knowledge of the danger, but only where the circumstances are such as warrant the inference that the plaintiff encountered the risk freely and voluntarily with full knowledge of the nature and extent thereof. Thomas v. Quartermaine, supra (18 Q.B.Div. 685); Yarmouth v. France, 19 Q.B.Div. 647; Smith v. Baker, 60 L.J. (N.S.) 638; Broom's Legal Maxims (7th Ed.) 219. Lord Chancellor Halsbury expresses the opinion in Smith v. Baker that, in order to defeat a plaintiff's right by the application of the maxim, when he would otherwise[150 Tex. 197] be entitled to recover, the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.'

Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951)Supreme Court of Texas
 
[3] The introductory passage from the Harper and James treatise on The Law of Torts, that was cited with approval in Li, stated in this regard: "The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant's breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this 'assumption of risk in a secondary sense.' " (2 Harper & James, The Law of Torts (1st ed. 1956) § 21.1, p. 1162, fns. omitted, cited in Li, supra, 13 Cal.3d 804, 825.)

[4] Although in the academic literature "express assumption of risk" often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: "In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone .... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." (Prosser & Keeton on Torts, supra, § 68, pp. 480-481, fn. omitted, second italics added.)

Since Li, California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101 [32 Cal.Rptr. 33, 6 A.L.R.3d 693]), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597-602 [250 Cal.Rptr. 299], and cases cited.)

[5] In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the "firefighter's rule." (See Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437 [218 Cal.Rptr. 256].) In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 Cal.Rptr. 152].) Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. (See, e.g., Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719-721 [181 Cal.Rptr. 311]; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668]. See generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 739, pp. 69-70 [discussing rule as one illustration of duty approach]; Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, 276 ["a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers ...."].) Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk. This example again demonstrates that primary assumption of risk is not the same as "reasonable implied assumption of risk."

Knight v. Jewett, 11 Cal.Rptr.2d 2, 3 Cal.4th 296, 834 P.2d 696Supreme Court of California

The Court Opinions that we find that mention the term are broken down as follows. There are over 80 Court Opinions in New York that have used the term.

1
Alaska
51
Alabama
13
Arkansas
3
Arizona
21
California
3
District of Columbia
8
Colorado
23
Connecticut
6
Delaware
8
Florida
28
Georgia
4
Hawaii
26
Iowa
4
Idaho
17
Illinois
34
Indiana
5
Kansas
24
Kentucky
58
Louisiana
44
Massachusetts
20
Maryland
11
Maine
18
Michigan
11
Minnesota
78
Missouri
28
Mississippi
6
Montana
35
North Carolina
3
North Dakota
19
Nebraska
8
New Hampshire
46
New Jersey
6
New Mexico
2
Nevada
81
New York
40
Ohio
20
Oklahoma
16
Oregon
44
Pennsylvania
8
Rhode Island
21
South Carolina
1
South Dakota
27
Tennessee
172
Texas
10
Utah
23
Virginia
20
Vermont
63
Washington
14
Wisconsin
12
West Virginia
3
Wyoming


North Carolina Pattern Jury Instructions
NC Pattern Jury Instructions for Civil Cases
Part 5. Family Matters
Includes 2011 changes
N.C.P.I. Civil 815.70. Alimony - Issue of Marital Misconduct

N.C.G.S. §§ 50-16.1A(3) and 50-16.3A(d).

The (state number) issue reads: Did the [plaintiff] [defendant] (fn1), (state name of offending spouse), commit marital misconduct during the marriage [and prior to or on the date of separation] (fn2) of the plaintiff and the defendant?

On this issue the burden of proof is on the [plaintiff] [defendant]. This means the [plaintiff] [defendant] must prove, by the greater weight of the evidence, that during the marriage [and prior to or on the date of separation] of the plaintiff and the defendant, the [plaintiff] [defendant] committed marital misconduct.

Marital misconduct (fn3) is

[illicit sexual behavior voluntarily engaged in by the [plaintiff] [defendant] with someone other than his spouse. (fn4) Illicit sexual behavior means [acts of sexual intercourse] [deviate sexual intercourse] [deviate sexual acts] [cunnilingus] [fellatio] [analingus] [anal intercourse] [the penetration, however slight, by any object into the genital or anal opening of another person's body] voluntarily engaged in by a spouse with someone other than his spouse.] (fn5) A single act of illicit sexual behavior is sufficient.]

[involuntary separation as a consequence of a criminal act committed by the [plaintiff] [defendant] prior to this proceeding. (fn6)]

[abandonment of the [plaintiff] [defendant] without provocation. (fn7) One spouse abandons the other when he brings their cohabitation to an end without the intent (fn8) to renew it and without the consent of the other spouse. (fn9) (One spouse may abandon the other without physically leaving the home. (fn10) For example, if one spouse treats the other with such cruelty (fn11) or neglect (fn12) or withholds support (fn13) so that the other spouse is forced to leave or flee the home, then the offending spouse is deemed to have abandoned the other. (fn14))]

However, the [plaintiff's] [defendant's] abandonment must not have been provoked by his spouse. (fn15) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn16)]

[maliciously turning the [plaintiff] [defendant] out of doors [without provocation]. (fn17) A spouse is turned out of doors when ejected from or forced to leave the marital home by the other spouse. (fn18) (This may be accomplished by force or by threat of violence. It may also be accomplished by cruelty that causes the spouse to leave the marital home. Cruelty may consist of an affirmative act (fn19) or a willful failure, such as failing to provide adequate support as required by law. (fn20)) (Malice means hatred, ill will or spite. It also means the intentional doing of an act which is calculated to cause injury or harm and which is done without justification or excuse.)

[However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn21) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn22)]]

[cruel or barbarous treatment endangering the life of the [plaintiff] [defendant] [without provocation]. (fn23) Whether particular acts constitute cruelty or barbarous conduct depends on the facts and circumstances of each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the acts or violence alleged. Acts of cruelty or barbarous treatment may be mental, physical or both. (fn24)

[However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn25) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn26)]]

[engaging in indignities rendering the condition of the [plaintiff] [defendant] intolerable and life burdensome without provocation. (fn27) Indignities to the person amount to a type of mental cruelty. (fn28) Actual physical violence, or the threat of it, is not required. (fn29) The acts need not endanger life or health. The fundamental characteristic of indignities is that they must consist of a course of conduct or continued treatment which renders the condition of the other party intolerable and life burdensome. (fn30) The indignities must be repeated or continued over a period of time so that they may appear to have been offered willfully and intentionally, or at least consciously, to the annoyance of the [plaintiff] [defendant] rendering his condition intolerable and life burdensome. (fn31)

Whether the indignities of one spouse render the other spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the indignities alleged. (fn32)

However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn33) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn34)]

[the [plaintiff] [defendant] recklessly spending [his income] [the income of his spouse. (fn35)]

[destroying, wasting, diverting or concealing assets. (fn36)

[engaging in the excessive use of [alcohol] [drugs] so as to render the condition of the [plaintiff] [defendant] intolerable and life burdensome. (fn37) Whether the excessive use of [alcohol] [drugs] by one spouse renders the other spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the acts of excessive use alleged.]

[willfully failing to provide necessary subsistence according to the [plaintiff's] [defendant's] means and conditions so as to render the condition of the [plaintiff] [defendant] intolerable and life burdensome. (fn38) "Subsistence" means support, maintenance or livelihood. A spouse's failure to provide required subsistence is willful when, having the means to provide necessary subsistence, the spouse neglects or refuses to do so. (In determining necessary subsistence according to a spouse's means and condition in life, you may consider earnings, earning capacity, and holdings of money and other property, if any. (fn39))

The fundamental characteristic of a willful failure to provide support is that it must consist of a course of conduct or continued treatment. The willful failure to provide support which renders one spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the failure to provide support.]

Finally, as to this (state number) issue on which the [plaintiff] [defendant], (state name of offended spouse), has the burden of proof, if you find by the greater weight of the evidence, that during the marriage [and prior to or on the date of separation] of the plaintiff and the defendant, the [plaintiff] [defendant], (state name of offending spouse), committed marital misconduct, then it would be your duty to answer this issue "Yes" in favor of the [plaintiff] [defendant].

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 [plaintiff] [defendant].

FOOTNOTES

FOOTNOTE 1. See N.C. Gen. Stat. § 50-16.3A(d) (stating that "[i]n the claim for alimony, either spouse may request a jury trial on the issue of marital misconduct as defined in [N.C. Gen. Stat.] § 50-16.1A. If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct.").

FOOTNOTE 2. The acts set out in the instruction are included within the definition of "marital misconduct" under N.C. Gen. Stat. § 50-16.1A(3) if such acts "occur[red] during the marriage and prior to or on the date of separation."

FOOTNOTE 3. regarding certain acts of marital misconduct, then N.C.P.I.-Civil 101.38 ("Evidence - Invocation by Witness of Fifth Amendment Privilege Against Self-Incrimination") may be appropriate. See, e.g., In re Estate of Trogdon, 330 N.C. 143, 152, 409 S.E.2d 897, 902 (1991) (privilege invoked when wife questioned concerning adultery).

FOOTNOTE 4. Unlike several of the statutory acts of marital misconduct set out in the instruction, "it is not necessary to couple the allegation of [adultery] with a denial of provocation." Brooks v. Brooks, 226 N.C. 280, 285, 37 S.E.2d 909, 912 (1946). See also 6 Suzanne Reynolds, Lee's North Carolina Family Law§ 6.9 (noting that "no conduct by the complaining spouse justifies the other spouse to commit adultery or become an habitual drunkard; therefore, neither of these grounds requires the complaining spouse to allege and prove that the conduct was 'unprovoked.'") and Greene v. Greene, 15 N.C. App. 314, 316-18, 190 S.E.2d 258, 260 (1972) (noting that "'[c]onnivance in the law of divorce is the plaintiff's consent, express or implied, to the misconduct alleged as a ground for divorce.' (Citation omitted). 'Connivance, or procurement, denotes direction, influence, personal exertion, or other action with knowledge or belief that such action would produce certain results and which results are produced.' (Citation omitted). 'The basis of connivance is the maxim "volenti non fit injuria," or that one is not legally injured if he has consented to the act complained of or was willing that it should occur. It is also said that the basis of the defense of connivance is the doctrine of unclean hands.'" (citation omitted)).

FOOTNOTE 5. N.C. Gen. Stat. § 50-16.1A(3)a.

FOOTNOTE 6. Id. at § 50-16.1A(3)b. If the issue is raised, and in the absence of an applicable decision from North Carolina's appellate courts, the Civil Subcommittee of the North Carolina Pattern Jury Instruction Committee recommends that the date of filing be referenced as the date of "this proceeding."

FOOTNOTE 7. Id. at § 50-16.1A(3)c. For cases involving indignities, abandonment and cruelty see Earp v. Earp, 52 N.C. App. 145, 277 S.E.2d 877 (1981), Privette v. Privette, Sr., 30 N.C. App. 305, 227 S.E.2d 137 (1976), and Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

On the issue of including lack of provocation as an element of abandonment, see n.15 infra.

FOOTNOTE 8. For an instruction on intent, see N.C.P.I.--Civil 101.46.

FOOTNOTE 9. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Murray v. Murray, 37 N.C. App. 406, 246 S.E.2d 52 (1978), aff'd, 296 N.C. 405, 250 S.E.2d 276 (1979), and Lin v. Lin, 108 N.C. App. 772, 776, 429 S.E.2d 9, 11 (1993).

FOOTNOTE 10. See Panhorst, 277 N.C. at 671, 178 S.E.2d at 392. Abandonment without physically leaving the home is generally referred to as "constructive abandonment." See, e.g., Walker v. Walker, 143 N.C. App. 414, 420-21, 546 S.E.2d 625, 630 (2001) (evidence that husband "drank excessively, would not come home in the evenings after work, spent many weekends at the coast without his family, and was removed from the home [pursuant to a Chapter 50B emergency protective order] due to his violent behavior towards" the wife would allow a verdict in favor of, the wife "on the issue of constructive abandonment," notwithstanding "that he could not have actually abandoned [the wife] because he was forcibly removed from the marital home pursuant to a[n] . . . emergency protective order"), and Somerset v. Somerset, 3 N.C. App. 473, 476, 165 S.E.2d 33, 35 (1969) ("We perceive no reason why [wife]'s seeking the aid of the Domestic Relations Court should detract from her cause of action. It was for the jury to determine whether [husband]'s conduct prior to the [emergency protective] order . . . would justify [the wife] in seeking the aid of the Courts and thereby constitute a constructive abandonment by him. Defendant cannot hide behind the order which his own improper conduct brought about.").

FOOTNOTE 11. Eggleston v. Eggleston, 228 N.C. 668, 47 S.E.2d 243 (1948).

FOOTNOTE 12. See, generally, Ellinwood v. Ellinwood, 88 N.C. App. 119, 121-23, 362 S.E.2d 584, 586-87 (1987) (discussing neglect and constructive abandonment).

FOOTNOTE 13. See Brady v. Brady, 273 N.C. 299, 303-05, 160 S.E.2d 13, 16-18 (1968).

FOOTNOTE 14. Merely sleeping in a separate bedroom is not abandonment. See Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981). Nor does abandonment occur when spouses separate by agreement. See Sauls v. Sauls, 288 N.C. 387, 390, 218 S.E.2d 338, 341 (1975). "However, where the agreement to separate is induced by the misconduct of one spouse, the other can still maintain the charge of voluntary abandonment . . . . Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary . . . . Nor under such circumstances, is the innocent party obliged to protest, to exert physical force or other importunity to prevent the other party from leaving." Id.

FOOTNOTE 15. See 6 Suzanne Reynolds, Lee's North Carolina Family Law at § 6.8 (stating that "[a] spouse who ends marital cohabitation has not abandoned the other spouse if ending it was justified; therefore, the law imposes the requirement that a spouse not provoke the separation . . . . Procedurally, North Carolina recognizes the doctrine of provocation by requiring that the spouse alleging abandonment specifically allege and prove absence of provocation.").

FOOTNOTE 16. See Caddell v. Caddell, 236 N.C. 686, 690-91, 73 S.E.2d 923, 926 (1953).

FOOTNOTE 17. N.C. Gen. Stat. § 50-16.1A(3)d; see also n.21 (discussing lack of provocation as an element of maliciously turning out of doors).

FOOTNOTE 18. See 6 Lee's at § 6.9 (noting that "[t]he ground is self-explanatory, requiring the guilty spouse wrongfully to evict the other spouse.").

FOOTNOTE 19. See, generally, Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918) (finding that malicious turning out of doors is an instance of abandonment).

FOOTNOTE 20. See Ritchie v. White, 225 N.C. 450, 452-53, 35 S.E. 414, 415 (1945) (noting that "[i]t is the public policy of the State that a husband shall provide support for himself and family. This duty . . . is an obligation imposed by law, and penal sanctions are provided for its willful neglect or abandonment.").

FOOTNOTE 21. Inclusion of lack of provocation as an element in a malicious turning out-of-doors instruction has been questioned. See 6 Lee's at § 6.9 (stating that "[a]n issue that might arise involves the requirement that the innocent spouse plead and prove absence of provocation. The law has required the complaining spouse to prove lack of provocation as a way to balance the conduct of the spouses: if the conduct of the complaining spouse justified the other spouse to leave or withdraw, then the complaining spouse is not entitled to the relief sought . . . . [I]t is unclear whether malicious turning out of doors [requires specific pleading and proof of lack of provocation]. Since the ground involves malice and extreme conduct, the balancing implicit in the element of 'without provocation' may be inappropriate. At any rate, in the North Carolina cases on malicious turning out of doors, the appellate courts rarely discuss provocation. It may be that when the conduct is egregious enough to raise malicious turning out of doors, the accused parties have lacked the temerity to suggest that the conduct of the evicted spouse excused their own." (citations omitted)).

FOOTNOTE 22. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 23. N.C. Gen. Stat. § 50-16.1A(3)e; see also n.6 supra and n.25 infra (discussing the lack of provocation as an element of cruel and barbarous treatment).

FOOTNOTE 24. See Pearce v. Pearce, 226 N.C. 307, 310, 37 S.E.2d 904, 906 (1946).

FOOTNOTE 25. See 6 Lee's at § 6.10 (explaining that "[t]o establish cruelty . . . the complaining party must show . . . the absence of provocation . . . . [T]he requirement to prove absence of provocation has become clearer as the definition of cruelty has expanded. When the law considered only physical violence as cruelty, public policy may have dispensed with the need to establish lack of provocation: surely no conduct of the complaining spouse would justify the other to inflict physical injury. As the law recognized cruelty in conduct that did not involve force, however, establishing lack of provocation became more important. A number of appellate cases in North Carolina have reiterated that cruelty requires allegation and proof that the complaining spouse did not provoke the conduct of the offending spouse." (citations omitted)).

FOOTNOTE 26. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 27. . See N.C. Gen. Stat. § 50-16.1A(3)f, Barwick v. Barwick, 228 N.C. 109, 112, 44 S.E.2d 597, 599 (1947), Traywick v. Traywick, 28 N.C. App. 291, 295, 221 S.E.2d 85, 88 (1976), Presson v. Presson, 12 N.C. App. 109, 111, 182 S.E.2d 614, 616 (1971), and n.13 supra; see also n.33 infra (discussing the issue of including lack of provocation as an element of rendering a spouse's condition intolerable and his life burdensome).

FOOTNOTE 28. See 6 Lee's at § 6.11 ("Cruelty, especially mental cruelty, is a close cousin of indignities . . . , and the development of indignities in this state parallels the development of cruelty in other states.").

FOOTNOTE 29. See id. at § 6.12A ("Indignities need not involve force or the fear of it.").

FOOTNOTE 30. See Traywick v. Traywick, 28 N.C. App. 291, 295, 221 S.E.2d 85, 88 (1976); see also Miller v. Miller, 78 N.C. 102, 106-07 (1878) ("It would be impossible . . . to decide with any precision the course of conduct which will amount to . . . 'indignities.'").

FOOTNOTE 31. See id. (stating that "the indignity, whatever may be its form or nature, must be such as may be expected seriously to annoy a [person] of ordinary good sense and temper . . . . Generally speaking, the conduct of the [offending spouse] must be such as might reasonably be expected to annoy a [person] of an ordinarily sound and healthy nature. It must be repeated or continued in, so that it may appear to have been done willfully and intentionally, or at least consciously by the [offending spouse] to the annoyance of [his spouse]. [The offending spouse] must have reason to believe that [his] act or course of conduct will greatly and naturally annoy [his spouse], and must persist in it regardless of such annoyance."); see generally, Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904 (1946) (adulterous behavior of husband, disavowal of affection for wife, ejection of wife from bed and exclusion from marital home); Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911) (long course of neglect, cruelty, humiliation and insult of wife); Green v. Green, 131 N.C. 533, 42 S.E. 954 (1902) (insulting and injurious accusations against wife, "refusal to stay in the dwelling house and sleep" with her and denial that they were married); Scoggins v. Scoggins, 85 N.C. 348 (1881) (drunken husband cursed wife and drove her from the home and away from bedside of dying child); and Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981) (husband moved to basement of home, withdrew from family, viewed "hardcore" pornographic materials in basement, permitted his minor children to view these materials and requested wife "to indulge him in various unnatural sexual desires" before leaving the home for good).\

FOOTNOTE 32. See Sanders, 157 N.C. at 233, 72 S.E. at 877-78 ("The station in life, the temperament, state of health, habits and feelings of different persons are so unlike that treatment which would send the broken heart of one to the grave would make no sensible impression upon another.").

FOOTNOTE 33. See 6 Lee's at § 6.14 ("As developed in the North Carolina law of indignities, the provocation element requires the fact finder to weigh the conduct of the spouses and decide their relative responsibility. If the accused spouse is more blameworthy, then the complaining spouse has satisfied lack of provocation. The complaining spouse need not establish total absence of blame . . . . If the indignities cannot be explained away by the conduct of the complaining spouse, then the complaining spouse has not provoked the indignities." (citations omitted); id at § 6.14(A) ("In North Carolina, the law requires not only allegations of lack of provocation but sufficient specificity to enable the accused spouse to counter them." (citations omitted)); and id at § 6.14(B) ("To establish lack of provocation for indignities . . . , the complaining party need not establish that his or her conduct was perfect; only that it does not excuse the conduct of the accused spouse . . . . At least in the appellate cases, the complaining parties almost always prove absence of provocation, and when they do not, it is usually because the provoking conduct itself amount to marital misconduct . . . . [However, the] provoking conduct may not need to amount to marital misconduct. Whether the complaining party has satisfied the absence of provocation rests with the finder of fact, and often the appellate cases suggest that the complaining party has carried the burden of proving lack of provocation without offering much evidence of it." (citations omitted)).

FOOTNOTE 34. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 35. N.C. Gen. Stat. § 50-16.1A(3)g; see also Skamarak v. Skamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 562 (1986).

FOOTNOTE 36. N.C. Gen. Stat. § 50-16.1A(3)g.

FOOTNOTE 37. N.C. Gen. Stat. § 50-16.1A(3)h; see, e.g., Best v. Best, 228 N.C. 9, 44 S.E.2d 214,(1947) (finding that the wife's allegations that the husband was a habitual drunkard stated a cause of action for alimony without divorce under North Carolina law).

Similar to the adultery, the "law apparently does not require the spouse who complains of excessive use of alcohol or drugs to establish lack of provocation." 6 Lee's at § 6.15.

FOOTNOTE 38. N.C. Gen. Stat. § 50-16.1A(3)i; see also VanDooren v. VanDooren, 37 N.C. App. 333, 335, 246 S.E.2d 20, 22, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978).

FOOTNOTE 39. See id. at 335, 246 S.E.2d at 22.

Electronic NC Pattern Jury Instructions - Copyright CX Corporation, 1995-2011

   















For a definition see https://definitions.uslegal.com/v/volenti-non-fit-injuria/

"Volenti Non Fit Injuria" can apply to almost any type action.

We find one Statute that mentions "Volenti Non Fit Injuria" in a footnote. See Footnote 4 in the North Carolina Statute below. This does not mean that there are not other statutes that apply to this but just don't mention the term in the statute.

We also find over 1200 State Court opinions that mention the term and it was involved in those cases. A similar issue is called the last clear chance defense where the person has a clear chance to avoid the injury or matter and failed to do so. Another is contributory negligence where the person suing for example injuries was also at fault and contributed to the injuries.

Here are a few quotes from some of the Court Opinions:
 We find claimant's contention that he was unaware of the consequences of his participation to be unpersuasive. As set forth by the Court of Claims, given claimant's experience with rugby (almost three years at the time of the accident), his regular practice on Tobey Field, the fact that he had always practiced with student coaches and that he had seen prior injuries, albeit less serious than paralysis, dismissal was warranted as a matter of law because claimant had assumed the risks of play. The risk inherent in the sport of rugby is apparent, as is the risk inherent in football, basketball, lacrosse and other sports that involve contact. Individuals compete in such athletic events for a myriad of reasons including, but not limited to, competition, conditioning, comradery and sportsmanship. Matters involving serious injuries resulting from accidents which dramatically

654 N.Y.S.2d 491

alter the course of a young adult's life are unsettling; however, as aptly noted by Chief Judge Cardozo in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173, "Volenti non fit injuria. One who takes part in such sport accepts the dangers that inhere in it so far as they are obvious and necessary" (id., at 482, 166 N.E. 173).
 
Regan v. State, 654 N.Y.S.2d 488, 237 A.D.2d 851Supreme Court of New York, Appellate Division
 
The doctrine of no duty is said to rest on the maxim volenti non fit injuria, which means 'that to which a person assents is not esteemed in law an injury'. Levlon et ux. v. Dallas Ry. & Terminal Co., Tex.Civ.App., 117 S.W.2d 876, 877, error refused. It means that the injured party consented to the act or omission which caused his injury and which, without such consent, would be a legal wrong. White v. McVicker, 216 Iowa 90, 246 N.W. 385. An excellent discussion and application of the maxim appears in Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233.  [150 Tex. 196] In 65 C.J.S., Negligence § 174, page 848, it is said, 'While it has been held that the
doctrine of assumption of risk, in its primary or usual meaning, is limited to controversies between master and servant and is not applicable in the absence of any contractual relation between the parties, there is ample authority for the view that in its broader sense the doctrine of assumption of risk may extend beyond contractual relations * * *. In any event, when plaintiff has brought himself within the operation of the maxim, Volenti non fit injuria, he cannot recover. The doctrine discussed herein, by whatever name it may be designated, is said to rest on, or be in its nature, effect, and import the equivalent at least of, the principle expressed by the maxim, Volenti non fit injuria, which is itself predicated on the theory of knowledge and appreciation of the danger and voluntary assent thereto. * * *

       'The mere encountering of a risk, * * * does not, legally speaking, constitute assumption of risk; it is only when the risk exists in spite of the exercise of due care or when the risk results from negligence which is obvious that it is assumed by the person injured'. (Italics ours.) And see Gila Valley, G. & N. R. Co. v. Hall, 232 U.S. 94, 34 S.Ct. 229, 58 L.Ed. 521; Landrum v. Roddy, 143 Neb. 934, 12 N.W.2d 82, 149 A.L.R. 1041.

       In Gover v. Central Vermont Ry. Co., 96 Vt. 208, 118 A. 874, 877, the Supreme Court of Vermont says that since the maxim extends beyond contractual relations, the limitations of the doctrine of assumption of risk based thereon must be looked for in the terms of the maxim itself; that any other course would be illogical and the limitations could not escape being purely artificial; that, therefore, the doctrine of assumed risk, in an action between persons not having relations by contract, must be confined to cases where the plaintiff knew and appreciated the danger and put himself in the way of it of his own free will and as the result of an 'intelligent choice'. In support of this conclusion the court then observes: 'In effect the English cases hold that mere knowledge of the risk does not necessarily involve consent to the risk, and that the maxim does not apply on the mere showing of knowledge of the danger, but only where the circumstances are such as warrant the inference that the plaintiff encountered the risk freely and voluntarily with full knowledge of the nature and extent thereof. Thomas v. Quartermaine, supra (18 Q.B.Div. 685); Yarmouth v. France, 19 Q.B.Div. 647; Smith v. Baker, 60 L.J. (N.S.) 638; Broom's Legal Maxims (7th Ed.) 219. Lord Chancellor Halsbury expresses the opinion in Smith v. Baker that, in order to defeat a plaintiff's right by the application of the maxim, when he would otherwise[150 Tex. 197] be entitled to recover, the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.'

Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951)Supreme Court of Texas
 
[3] The introductory passage from the Harper and James treatise on The Law of Torts, that was cited with approval in Li, stated in this regard: "The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant's breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this 'assumption of risk in a secondary sense.' " (2 Harper & James, The Law of Torts (1st ed. 1956) § 21.1, p. 1162, fns. omitted, cited in Li, supra, 13 Cal.3d 804, 825.)

[4] Although in the academic literature "express assumption of risk" often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: "In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone .... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." (Prosser & Keeton on Torts, supra, § 68, pp. 480-481, fn. omitted, second italics added.)

Since Li, California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101 [32 Cal.Rptr. 33, 6 A.L.R.3d 693]), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597-602 [250 Cal.Rptr. 299], and cases cited.)

[5] In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the "firefighter's rule." (See Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437 [218 Cal.Rptr. 256].) In its most classic form, the firefighter's rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 Cal.Rptr. 152].) Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. (See, e.g., Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719-721 [181 Cal.Rptr. 311]; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668]. See generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 739, pp. 69-70 [discussing rule as one illustration of duty approach]; Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, 276 ["a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers ...."].) Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk. This example again demonstrates that primary assumption of risk is not the same as "reasonable implied assumption of risk."

Knight v. Jewett, 11 Cal.Rptr.2d 2, 3 Cal.4th 296, 834 P.2d 696Supreme Court of California

The Court Opinions that we find that mention the term are broken down as follows. There are over 80 Court Opinions in New York that have used the term.

1
Alaska
51
Alabama
13
Arkansas
3
Arizona
21
California
3
District of Columbia
8
Colorado
23
Connecticut
6
Delaware
8
Florida
28
Georgia
4
Hawaii
26
Iowa
4
Idaho
17
Illinois
34
Indiana
5
Kansas
24
Kentucky
58
Louisiana
44
Massachusetts
20
Maryland
11
Maine
18
Michigan
11
Minnesota
78
Missouri
28
Mississippi
6
Montana
35
North Carolina
3
North Dakota
19
Nebraska
8
New Hampshire
46
New Jersey
6
New Mexico
2
Nevada
81
New York
40
Ohio
20
Oklahoma
16
Oregon
44
Pennsylvania
8
Rhode Island
21
South Carolina
1
South Dakota
27
Tennessee
172
Texas
10
Utah
23
Virginia
20
Vermont
63
Washington
14
Wisconsin
12
West Virginia
3
Wyoming


North Carolina Pattern Jury Instructions
NC Pattern Jury Instructions for Civil Cases
Part 5. Family Matters
Includes 2011 changes
N.C.P.I. Civil 815.70. Alimony - Issue of Marital Misconduct

N.C.G.S. §§ 50-16.1A(3) and 50-16.3A(d).

The (state number) issue reads: Did the [plaintiff] [defendant] (fn1), (state name of offending spouse), commit marital misconduct during the marriage [and prior to or on the date of separation] (fn2) of the plaintiff and the defendant?

On this issue the burden of proof is on the [plaintiff] [defendant]. This means the [plaintiff] [defendant] must prove, by the greater weight of the evidence, that during the marriage [and prior to or on the date of separation] of the plaintiff and the defendant, the [plaintiff] [defendant] committed marital misconduct.

Marital misconduct (fn3) is

[illicit sexual behavior voluntarily engaged in by the [plaintiff] [defendant] with someone other than his spouse. (fn4) Illicit sexual behavior means [acts of sexual intercourse] [deviate sexual intercourse] [deviate sexual acts] [cunnilingus] [fellatio] [analingus] [anal intercourse] [the penetration, however slight, by any object into the genital or anal opening of another person's body] voluntarily engaged in by a spouse with someone other than his spouse.] (fn5) A single act of illicit sexual behavior is sufficient.]

[involuntary separation as a consequence of a criminal act committed by the [plaintiff] [defendant] prior to this proceeding. (fn6)]

[abandonment of the [plaintiff] [defendant] without provocation. (fn7) One spouse abandons the other when he brings their cohabitation to an end without the intent (fn8) to renew it and without the consent of the other spouse. (fn9) (One spouse may abandon the other without physically leaving the home. (fn10) For example, if one spouse treats the other with such cruelty (fn11) or neglect (fn12) or withholds support (fn13) so that the other spouse is forced to leave or flee the home, then the offending spouse is deemed to have abandoned the other. (fn14))]

However, the [plaintiff's] [defendant's] abandonment must not have been provoked by his spouse. (fn15) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn16)]

[maliciously turning the [plaintiff] [defendant] out of doors [without provocation]. (fn17) A spouse is turned out of doors when ejected from or forced to leave the marital home by the other spouse. (fn18) (This may be accomplished by force or by threat of violence. It may also be accomplished by cruelty that causes the spouse to leave the marital home. Cruelty may consist of an affirmative act (fn19) or a willful failure, such as failing to provide adequate support as required by law. (fn20)) (Malice means hatred, ill will or spite. It also means the intentional doing of an act which is calculated to cause injury or harm and which is done without justification or excuse.)

[However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn21) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn22)]]

[cruel or barbarous treatment endangering the life of the [plaintiff] [defendant] [without provocation]. (fn23) Whether particular acts constitute cruelty or barbarous conduct depends on the facts and circumstances of each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the acts or violence alleged. Acts of cruelty or barbarous treatment may be mental, physical or both. (fn24)

[However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn25) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn26)]]

[engaging in indignities rendering the condition of the [plaintiff] [defendant] intolerable and life burdensome without provocation. (fn27) Indignities to the person amount to a type of mental cruelty. (fn28) Actual physical violence, or the threat of it, is not required. (fn29) The acts need not endanger life or health. The fundamental characteristic of indignities is that they must consist of a course of conduct or continued treatment which renders the condition of the other party intolerable and life burdensome. (fn30) The indignities must be repeated or continued over a period of time so that they may appear to have been offered willfully and intentionally, or at least consciously, to the annoyance of the [plaintiff] [defendant] rendering his condition intolerable and life burdensome. (fn31)

Whether the indignities of one spouse render the other spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the indignities alleged. (fn32)

However, the [plaintiff's] [defendant's] conduct must not have been provoked by his spouse. (fn33) What constitutes provocation depends on the facts and circumstances of each case. Ordinarily, provocation does not exist unless the conduct of the [plaintiff] [defendant] has been such as would likely render it impossible for his spouse to continue the marital relationship with safety, health and self-respect. (fn34)]

[the [plaintiff] [defendant] recklessly spending [his income] [the income of his spouse. (fn35)]

[destroying, wasting, diverting or concealing assets. (fn36)

[engaging in the excessive use of [alcohol] [drugs] so as to render the condition of the [plaintiff] [defendant] intolerable and life burdensome. (fn37) Whether the excessive use of [alcohol] [drugs] by one spouse renders the other spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the acts of excessive use alleged.]

[willfully failing to provide necessary subsistence according to the [plaintiff's] [defendant's] means and conditions so as to render the condition of the [plaintiff] [defendant] intolerable and life burdensome. (fn38) "Subsistence" means support, maintenance or livelihood. A spouse's failure to provide required subsistence is willful when, having the means to provide necessary subsistence, the spouse neglects or refuses to do so. (In determining necessary subsistence according to a spouse's means and condition in life, you may consider earnings, earning capacity, and holdings of money and other property, if any. (fn39))

The fundamental characteristic of a willful failure to provide support is that it must consist of a course of conduct or continued treatment. The willful failure to provide support which renders one spouse's condition intolerable and life burdensome depends upon the facts and circumstances in each case. Factors you may consider include, among other things, the status of the parties and their sensibilities, social position, refinement, intelligence, temperament, state of health, habits and feelings, as well as the character and nature of the failure to provide support.]

Finally, as to this (state number) issue on which the [plaintiff] [defendant], (state name of offended spouse), has the burden of proof, if you find by the greater weight of the evidence, that during the marriage [and prior to or on the date of separation] of the plaintiff and the defendant, the [plaintiff] [defendant], (state name of offending spouse), committed marital misconduct, then it would be your duty to answer this issue "Yes" in favor of the [plaintiff] [defendant].

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 [plaintiff] [defendant].

FOOTNOTES

FOOTNOTE 1. See N.C. Gen. Stat. § 50-16.3A(d) (stating that "[i]n the claim for alimony, either spouse may request a jury trial on the issue of marital misconduct as defined in [N.C. Gen. Stat.] § 50-16.1A. If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct.").

FOOTNOTE 2. The acts set out in the instruction are included within the definition of "marital misconduct" under N.C. Gen. Stat. § 50-16.1A(3) if such acts "occur[red] during the marriage and prior to or on the date of separation."

FOOTNOTE 3. regarding certain acts of marital misconduct, then N.C.P.I.-Civil 101.38 ("Evidence - Invocation by Witness of Fifth Amendment Privilege Against Self-Incrimination") may be appropriate. See, e.g., In re Estate of Trogdon, 330 N.C. 143, 152, 409 S.E.2d 897, 902 (1991) (privilege invoked when wife questioned concerning adultery).

FOOTNOTE 4. Unlike several of the statutory acts of marital misconduct set out in the instruction, "it is not necessary to couple the allegation of [adultery] with a denial of provocation." Brooks v. Brooks, 226 N.C. 280, 285, 37 S.E.2d 909, 912 (1946). See also 6 Suzanne Reynolds, Lee's North Carolina Family Law§ 6.9 (noting that "no conduct by the complaining spouse justifies the other spouse to commit adultery or become an habitual drunkard; therefore, neither of these grounds requires the complaining spouse to allege and prove that the conduct was 'unprovoked.'") and Greene v. Greene, 15 N.C. App. 314, 316-18, 190 S.E.2d 258, 260 (1972) (noting that "'[c]onnivance in the law of divorce is the plaintiff's consent, express or implied, to the misconduct alleged as a ground for divorce.' (Citation omitted). 'Connivance, or procurement, denotes direction, influence, personal exertion, or other action with knowledge or belief that such action would produce certain results and which results are produced.' (Citation omitted). 'The basis of connivance is the maxim "volenti non fit injuria," or that one is not legally injured if he has consented to the act complained of or was willing that it should occur. It is also said that the basis of the defense of connivance is the doctrine of unclean hands.'" (citation omitted)).

FOOTNOTE 5. N.C. Gen. Stat. § 50-16.1A(3)a.

FOOTNOTE 6. Id. at § 50-16.1A(3)b. If the issue is raised, and in the absence of an applicable decision from North Carolina's appellate courts, the Civil Subcommittee of the North Carolina Pattern Jury Instruction Committee recommends that the date of filing be referenced as the date of "this proceeding."

FOOTNOTE 7. Id. at § 50-16.1A(3)c. For cases involving indignities, abandonment and cruelty see Earp v. Earp, 52 N.C. App. 145, 277 S.E.2d 877 (1981), Privette v. Privette, Sr., 30 N.C. App. 305, 227 S.E.2d 137 (1976), and Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217 (1964).

On the issue of including lack of provocation as an element of abandonment, see n.15 infra.

FOOTNOTE 8. For an instruction on intent, see N.C.P.I.--Civil 101.46.

FOOTNOTE 9. Panhorst v. Panhorst, 277 N.C. 664, 178 S.E.2d 387 (1971); Murray v. Murray, 37 N.C. App. 406, 246 S.E.2d 52 (1978), aff'd, 296 N.C. 405, 250 S.E.2d 276 (1979), and Lin v. Lin, 108 N.C. App. 772, 776, 429 S.E.2d 9, 11 (1993).

FOOTNOTE 10. See Panhorst, 277 N.C. at 671, 178 S.E.2d at 392. Abandonment without physically leaving the home is generally referred to as "constructive abandonment." See, e.g., Walker v. Walker, 143 N.C. App. 414, 420-21, 546 S.E.2d 625, 630 (2001) (evidence that husband "drank excessively, would not come home in the evenings after work, spent many weekends at the coast without his family, and was removed from the home [pursuant to a Chapter 50B emergency protective order] due to his violent behavior towards" the wife would allow a verdict in favor of, the wife "on the issue of constructive abandonment," notwithstanding "that he could not have actually abandoned [the wife] because he was forcibly removed from the marital home pursuant to a[n] . . . emergency protective order"), and Somerset v. Somerset, 3 N.C. App. 473, 476, 165 S.E.2d 33, 35 (1969) ("We perceive no reason why [wife]'s seeking the aid of the Domestic Relations Court should detract from her cause of action. It was for the jury to determine whether [husband]'s conduct prior to the [emergency protective] order . . . would justify [the wife] in seeking the aid of the Courts and thereby constitute a constructive abandonment by him. Defendant cannot hide behind the order which his own improper conduct brought about.").

FOOTNOTE 11. Eggleston v. Eggleston, 228 N.C. 668, 47 S.E.2d 243 (1948).

FOOTNOTE 12. See, generally, Ellinwood v. Ellinwood, 88 N.C. App. 119, 121-23, 362 S.E.2d 584, 586-87 (1987) (discussing neglect and constructive abandonment).

FOOTNOTE 13. See Brady v. Brady, 273 N.C. 299, 303-05, 160 S.E.2d 13, 16-18 (1968).

FOOTNOTE 14. Merely sleeping in a separate bedroom is not abandonment. See Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981). Nor does abandonment occur when spouses separate by agreement. See Sauls v. Sauls, 288 N.C. 387, 390, 218 S.E.2d 338, 341 (1975). "However, where the agreement to separate is induced by the misconduct of one spouse, the other can still maintain the charge of voluntary abandonment . . . . Mere acquiescence in a wrongful and inevitable separation, which the complaining spouse could not prevent after reasonable efforts to preserve the marriage, does not make the separation voluntary . . . . Nor under such circumstances, is the innocent party obliged to protest, to exert physical force or other importunity to prevent the other party from leaving." Id.

FOOTNOTE 15. See 6 Suzanne Reynolds, Lee's North Carolina Family Law at § 6.8 (stating that "[a] spouse who ends marital cohabitation has not abandoned the other spouse if ending it was justified; therefore, the law imposes the requirement that a spouse not provoke the separation . . . . Procedurally, North Carolina recognizes the doctrine of provocation by requiring that the spouse alleging abandonment specifically allege and prove absence of provocation.").

FOOTNOTE 16. See Caddell v. Caddell, 236 N.C. 686, 690-91, 73 S.E.2d 923, 926 (1953).

FOOTNOTE 17. N.C. Gen. Stat. § 50-16.1A(3)d; see also n.21 (discussing lack of provocation as an element of maliciously turning out of doors).

FOOTNOTE 18. See 6 Lee's at § 6.9 (noting that "[t]he ground is self-explanatory, requiring the guilty spouse wrongfully to evict the other spouse.").

FOOTNOTE 19. See, generally, Medlin v. Medlin, 175 N.C. 529, 95 S.E. 857 (1918) (finding that malicious turning out of doors is an instance of abandonment).

FOOTNOTE 20. See Ritchie v. White, 225 N.C. 450, 452-53, 35 S.E. 414, 415 (1945) (noting that "[i]t is the public policy of the State that a husband shall provide support for himself and family. This duty . . . is an obligation imposed by law, and penal sanctions are provided for its willful neglect or abandonment.").

FOOTNOTE 21. Inclusion of lack of provocation as an element in a malicious turning out-of-doors instruction has been questioned. See 6 Lee's at § 6.9 (stating that "[a]n issue that might arise involves the requirement that the innocent spouse plead and prove absence of provocation. The law has required the complaining spouse to prove lack of provocation as a way to balance the conduct of the spouses: if the conduct of the complaining spouse justified the other spouse to leave or withdraw, then the complaining spouse is not entitled to the relief sought . . . . [I]t is unclear whether malicious turning out of doors [requires specific pleading and proof of lack of provocation]. Since the ground involves malice and extreme conduct, the balancing implicit in the element of 'without provocation' may be inappropriate. At any rate, in the North Carolina cases on malicious turning out of doors, the appellate courts rarely discuss provocation. It may be that when the conduct is egregious enough to raise malicious turning out of doors, the accused parties have lacked the temerity to suggest that the conduct of the evicted spouse excused their own." (citations omitted)).

FOOTNOTE 22. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 23. N.C. Gen. Stat. § 50-16.1A(3)e; see also n.6 supra and n.25 infra (discussing the lack of provocation as an element of cruel and barbarous treatment).

FOOTNOTE 24. See Pearce v. Pearce, 226 N.C. 307, 310, 37 S.E.2d 904, 906 (1946).

FOOTNOTE 25. See 6 Lee's at § 6.10 (explaining that "[t]o establish cruelty . . . the complaining party must show . . . the absence of provocation . . . . [T]he requirement to prove absence of provocation has become clearer as the definition of cruelty has expanded. When the law considered only physical violence as cruelty, public policy may have dispensed with the need to establish lack of provocation: surely no conduct of the complaining spouse would justify the other to inflict physical injury. As the law recognized cruelty in conduct that did not involve force, however, establishing lack of provocation became more important. A number of appellate cases in North Carolina have reiterated that cruelty requires allegation and proof that the complaining spouse did not provoke the conduct of the offending spouse." (citations omitted)).

FOOTNOTE 26. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 27. . See N.C. Gen. Stat. § 50-16.1A(3)f, Barwick v. Barwick, 228 N.C. 109, 112, 44 S.E.2d 597, 599 (1947), Traywick v. Traywick, 28 N.C. App. 291, 295, 221 S.E.2d 85, 88 (1976), Presson v. Presson, 12 N.C. App. 109, 111, 182 S.E.2d 614, 616 (1971), and n.13 supra; see also n.33 infra (discussing the issue of including lack of provocation as an element of rendering a spouse's condition intolerable and his life burdensome).

FOOTNOTE 28. See 6 Lee's at § 6.11 ("Cruelty, especially mental cruelty, is a close cousin of indignities . . . , and the development of indignities in this state parallels the development of cruelty in other states.").

FOOTNOTE 29. See id. at § 6.12A ("Indignities need not involve force or the fear of it.").

FOOTNOTE 30. See Traywick v. Traywick, 28 N.C. App. 291, 295, 221 S.E.2d 85, 88 (1976); see also Miller v. Miller, 78 N.C. 102, 106-07 (1878) ("It would be impossible . . . to decide with any precision the course of conduct which will amount to . . . 'indignities.'").

FOOTNOTE 31. See id. (stating that "the indignity, whatever may be its form or nature, must be such as may be expected seriously to annoy a [person] of ordinary good sense and temper . . . . Generally speaking, the conduct of the [offending spouse] must be such as might reasonably be expected to annoy a [person] of an ordinarily sound and healthy nature. It must be repeated or continued in, so that it may appear to have been done willfully and intentionally, or at least consciously by the [offending spouse] to the annoyance of [his spouse]. [The offending spouse] must have reason to believe that [his] act or course of conduct will greatly and naturally annoy [his spouse], and must persist in it regardless of such annoyance."); see generally, Pearce v. Pearce, 226 N.C. 307, 37 S.E.2d 904 (1946) (adulterous behavior of husband, disavowal of affection for wife, ejection of wife from bed and exclusion from marital home); Sanders v. Sanders, 157 N.C. 229, 72 S.E. 876 (1911) (long course of neglect, cruelty, humiliation and insult of wife); Green v. Green, 131 N.C. 533, 42 S.E. 954 (1902) (insulting and injurious accusations against wife, "refusal to stay in the dwelling house and sleep" with her and denial that they were married); Scoggins v. Scoggins, 85 N.C. 348 (1881) (drunken husband cursed wife and drove her from the home and away from bedside of dying child); and Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, cert. denied, 302 N.C. 634, 280 S.E.2d 449 (1981) (husband moved to basement of home, withdrew from family, viewed "hardcore" pornographic materials in basement, permitted his minor children to view these materials and requested wife "to indulge him in various unnatural sexual desires" before leaving the home for good).\

FOOTNOTE 32. See Sanders, 157 N.C. at 233, 72 S.E. at 877-78 ("The station in life, the temperament, state of health, habits and feelings of different persons are so unlike that treatment which would send the broken heart of one to the grave would make no sensible impression upon another.").

FOOTNOTE 33. See 6 Lee's at § 6.14 ("As developed in the North Carolina law of indignities, the provocation element requires the fact finder to weigh the conduct of the spouses and decide their relative responsibility. If the accused spouse is more blameworthy, then the complaining spouse has satisfied lack of provocation. The complaining spouse need not establish total absence of blame . . . . If the indignities cannot be explained away by the conduct of the complaining spouse, then the complaining spouse has not provoked the indignities." (citations omitted); id at § 6.14(A) ("In North Carolina, the law requires not only allegations of lack of provocation but sufficient specificity to enable the accused spouse to counter them." (citations omitted)); and id at § 6.14(B) ("To establish lack of provocation for indignities . . . , the complaining party need not establish that his or her conduct was perfect; only that it does not excuse the conduct of the accused spouse . . . . At least in the appellate cases, the complaining parties almost always prove absence of provocation, and when they do not, it is usually because the provoking conduct itself amount to marital misconduct . . . . [However, the] provoking conduct may not need to amount to marital misconduct. Whether the complaining party has satisfied the absence of provocation rests with the finder of fact, and often the appellate cases suggest that the complaining party has carried the burden of proving lack of provocation without offering much evidence of it." (citations omitted)).

FOOTNOTE 34. See Caddell, 236 N.C. at 690-91, 73 S.E.2d at 926.

FOOTNOTE 35. N.C. Gen. Stat. § 50-16.1A(3)g; see also Skamarak v. Skamarak, 81 N.C. App. 125, 128, 343 S.E.2d 559, 562 (1986).

FOOTNOTE 36. N.C. Gen. Stat. § 50-16.1A(3)g.

FOOTNOTE 37. N.C. Gen. Stat. § 50-16.1A(3)h; see, e.g., Best v. Best, 228 N.C. 9, 44 S.E.2d 214,(1947) (finding that the wife's allegations that the husband was a habitual drunkard stated a cause of action for alimony without divorce under North Carolina law).

Similar to the adultery, the "law apparently does not require the spouse who complains of excessive use of alcohol or drugs to establish lack of provocation." 6 Lee's at § 6.15.

FOOTNOTE 38. N.C. Gen. Stat. § 50-16.1A(3)i; see also VanDooren v. VanDooren, 37 N.C. App. 333, 335, 246 S.E.2d 20, 22, cert. denied, 295 N.C. 653, 248 S.E.2d 258 (1978).

FOOTNOTE 39. See id. at 335, 246 S.E.2d at 22.

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