Rogers v. Ford
| Docket Number: | 2009-CA-01933-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-15-2011 Opinion Author: Ishee, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Property damage - Negligent pruning - Natural growth - Gratuitous promise Judge(s) Concurring: Lee, C.J., Irving, P.J., Griffis, P.J., Myers, Barnes, Carlton and Maxwell, JJ. Concur in Part, Concur in Result 1: Roberts, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 11-04-2009 Appealed from: Adams County Circuit Court Judge: Forrest A. Johnson, Jr. Disposition: Summary Judgment Entered Case Number: 09-KV-0003-J |
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| Party Name: | Attorney Name: | |||
| Appellant: | Josie Rogers, Individually and as a Conservator for Chester Rogers |
ROBERT C. LATHAM, JEREMY PETER DIAMOND |
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| Appellee: | Ernest Ford, Jr. | MARK C. CARROLL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Property damage - Negligent pruning - Natural growth - Gratuitous promise |
| Summary of the Facts: | A large pecan tree located on Ernest Ford’s property uprooted and fell on Chester Rogers’s garage. Prior to the uprooting of the tree, E.D. Jennings was hired by Ford to cut and trim some limbs from this tree. Jennings was then approached by Rogers to inquire if he would cut the tree limbs on her side of the tree, which was never done. In September 2008, as a result of strong winds and heavy rains, the tree was uprooted. The tree was of natural growth, and at the time the tree was uprooted, it was still green and alive. Josie Rogers, acting individually and as conservator for Chester Rogers, appeals summary judgment granted in favor of Ford. |
| Summary of Opinion Analysis: | Rogers argues that because Ford had pruned or cut limbs off the tree on his side and not hers, that this was negligent pruning and is what caused the tree to fall. Further, Rogers believes that because Ford knew of the limbs that were overhanging Rogers’s property and failed to have them trimmed as well, he is liable for Rogers’s damages. The test of the appellant's liability vel non is whether the tree from which this limb overhung the land of the appellee's assignors was of natural growth or had been planted by the appellant or a former possessor of her land. If the latter is the case, liability appears but if the former is the case the appellant is not liable. Here, the pecan tree in question was of natural growth; it was healthy and alive; and Rogers had an opportunity to cut the limbs that overhung her property. There is no evidence of negligence on behalf of Ford or anything presented to find that the cutting of the limbs was done improperly. Ford was under no obligation to cut the limbs from Rogers’s side of the tree. His gratuitous promise to do so was not binding. The tree was alive and green and posed zero threat to Rogers’s property. |
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