#### WILTON B. PARKER, SHIRLEY K. PARKER, RANDY PARKER, JANET T. PARKER, GARY PARKER, DIANE P. PARKER, KEITH PARKER, DARLENE W. PARKER, JAMES ALAN PARKER, ANN D. PARKER, KEITH SLOCUM, EUGENE BARBOUR, DIXIE BARBOUR, VERNON THOMPSON, PATRICIA THOMPSON, DELBERT ALLEN, JR., DEBORAH BLACKMON, BETTIE C. UPCHURCH, GLENN TWIGG, Administrator of the Estate of Pharo Twigg, DELLA T. TWIGG, THOMAS EARL TOOLE, MAYRLENE TOOLE, CHRISTINE P. THOMPSON, LAURCEY MASSENGILL, CHARLIE MATTHEWS and LORRAINE MATTHEWS v. W. TERRY BAREFOOT AND RITA J. BAREFOOT

No. 408A98

(Filed 8 October 1999)

Nuisance— hog farm — state-of-the-art technology not defense — instruction not required

A Court of Appeals decision is reversed for the reason stated in the dissenting opinion in the Court of Appeals that the evidence in a nuisance action against the operators of an industrial hog farm did not require the trial court to give plaintiffs’ requested instruction that the law does not recognize as a defense to a claim of nuisance that defendants used the best technical knowledge available at the time to avoid or alleviate the nuisance.

Justice Freeman did not participate in the consideration or decision of this case.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 130 N.C. App. 18, 502 S.E.2d 42 (1998), finding error in the instruction given to the jury by Manning, J., and subsequent judgment entered 24 September 1996 in Superior Court, Johnston County and ordering a new trial. Heard in the Supreme Court 13 April 1999.

Morgan, Reeves & Gilchrist, by Robert B. Morgan and Mary Morgan Reeves, for plaintiff-appellees.

Bode, Call & Stroupe, L.L.P., by John V. Hunter III and Diana E. Ricketts; and Narron, O’Hale & Whittington, by John P. O’Hale, for defendant-appellants.

PER CURIAM.

For the reasons stated in the dissent of Judge John Martin in the Court of Appeals, the opinion of the Court of Appeals is reversed.

*41REVERSED.

Justice Freeman did not participate in the consideration or decision of this case.