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Parker v. Barefoot

July 07, 1998

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 THOMSON, 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, PLAINTIFFS-APPELLANTS,
v.
W. TERRY BAREFOOT AND RITA J. BAREFOOT, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Wynn, Judge.

Appeal by plaintiffs-appellants from judgment entered 30 August 1997 by Judge Howard E. Manning in Johnston County Superior Court. Heard in the Court of Appeals 2 April 1998.

The appealing parties in this case present one issue for us to consider: "Whether the trial court's denial of plaintiffs' written request to instruct the jury 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 constitutes reversible error?" We answer: "Yes"; and therefore award the plaintiffs a new trial.

The plaintiffs in this case own and reside on certain tracts of land located in the Town of Four Oaks in Johnston County, North Carolina. In close proximity to plaintiffs' property lies defendants' 95 acre farm, upon which defendants operate an industrial hog production facility. This facility, which was designed by the Federal Soil Conservation Service in 1991, consists of four hog houses -- together holding approximately 2,880 hogs -- and an open pit lagoon in which waste from the hogs is deposited and stored for future use as crop fertilizer.

In consideration of the odor that often emanates from a hog lagoon, defendants surrounded the lagoon with large acreage fields of growing crops, trees and woods. They also installed an expensive, underground irrigation system and built the lagoon 20% larger than required so as to better control the waste odor. Despite these efforts, however, plaintiffs claim that the odor from the lagoon is often so noxious that at times it burns their eyes and noses, making it difficult for them to see and breathe. Indeed, for those plaintiffs living closest to defendants' hog facility -- the three closest homes being situated across the road from the hog facility, approximately 650 feet from the facility, and 1,750 feet from the facility -- the stench from the lagoon is described as unbearable.

Unwilling to endure the lagoon odor, plaintiffs sought injunctive and monetary relief against defendants alleging that the hog facility constituted a nuisance. Defendants answered stating that the facility was not a nuisance, plaintiffs' suit was barred under our State's right-to-farm laws, and federal law pre-empted a state common law nuisance claim. Defendants also asserted that their hog facility was "operated with the most careful, prudent and modern methods known to science."

This action was tried before a jury in Johnston County Superior Court, the Honorable Howard E. Manning, Jr. presiding. At the close of all the evidence, and before the jury began its deliberations, plaintiffs requested that Judge Manning specifically instruct the jury that the law does not recognize as a defense to a claim of nuisance that defendants used "state-of-the-art" technology in an attempt to avoid or alleviate the nuisance. This request, however, was denied and on 30 August 1996, the jury returned a verdict in favor of defendants. Assigning error to Judge Manning's denial of their request for the specific jury instruction, plaintiffs bring this appeal.

When a request is made for a specific jury instruction, which is itself correct and supported by the evidence, the trial court, while not obliged to adopt the precise language of the prayer, must give at least the substance of the requested instruction, otherwise he commits reversible error. Faeber v. E.C.T. Corp., 16 N.C. App. 429, 430, 92 S.E.2d 1, 2 (1972)(citing Bass v. Hocutt, 221 N.C. 218, 19 S.E.2d 871(1942)). In determining on appeal whether the instructions given encompass the substance of the instruction requested, the reviewing court must consider and review the challenged instructions in their entirety; it cannot dissect and examine them in fragments. Robinson v. Seaboard System Ry., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987), cert. denied, 321 N.C. 474, 364 S.E.2d 924 (1998)(citing Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967)). Furthermore, "[u]nder such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury." Id.

In sum, a party appealing from a trial court's denial of a request for a specific jury instruction, bears the burden of showing the reviewing court that: (1) the requested instruction was correct as a matter of law; (2) the requested instruction was supported by the evidence; and (3) the instruction given by the trial court, when viewed in its entirety, failed to encompass the substance of the law as they requested, and that such a failure likely mislead the jury.

Plaintiff's first burden: "Was the requested instruction correct as a matter of law?"

The plaintiffs requested that the following instruction be given to the jury:

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, and therefore the defendants may be held liable for creating a nuisance even though they used the latest known technical devices in their attempts to control the condition. The use of technical equipment and control devices may be considered by you as evidence bearing upon the magnitude of a nuisance but not as to its existence. Indeed, if defendants created a nuisance they are liable for the resulting injuries, regardless of the degree of skill they used to avoid or alleviate the nuisance. (citations omitted).

According to plaintiffs, this requested instruction correctly reflects North Carolina's private nuisance law as set forth in Morgan v. High Penn Oil Company & Southern Oil Transportation Co., Inc., 238 N.C. 185, 77 S.E.2d 682 (1953) and Watts v. PAMA, 256 N.C. 611, 124 S.E.2d 908 (1962). We agree.

In both Morgan and Watts, our Supreme Court noted that "[a] person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury." Morgan, 238 N.C. at 194, 77 S.E.2d at 689 (citations omitted); Watts, 256 N.C. at 616, 124 S.E.2d at 813 (citations omitted). Hence, in this State, a defendant's use of state-of-the-art technology in the operation of a facility or the fact that he was not negligent in the design or construction of that facility are not defenses to a nuisance claim. The instruction requested by plaintiffs embodies the substance of this rule.

Nonetheless, defendants contend that the requested instruction is in several respects, legally impermissible, misleading and inaccurate. The instruction is impermissible, they contend, because it runs contrary to Rule 51(a) of the North Carolina Rules of Civil Procedure, which states that a Judge, in charging a jury, "shall not give an opinion as to whether or not a fact is fully or sufficiently proved, summarize or recapitulate the evidence, or ... explain the application of law to the evidence." According to defendants, the instruction requested by plaintiffs called upon the trial court to explain the law arising on the evidence and to make findings of facts that were in dispute. This argument is unpersuasive. The language of plaintiff's instruction is not specific to the facts of this case; rather, the instruction, like most jury instructions, is worded in very general terms so as to apply to any nuisance case. Thus, if the ...


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