Greer v. Lawhon
| Decision Date | 09 April 1980 |
| Parties | Alois GREER, Plaintiff-Appellant, v. Rex LAWHON, Individually and d/b/a Rex Lawhon Horticulture Spray Service, and Rex Lawhon Horticulture Spray Service, Inc., Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
Allan J. Wade, Charles C. Harrell, Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, for plaintiff-appellant.
J. Kimbrough Johnson, James E. Conley, Jr., Thomason, Crawford & Hendrix, Memphis, for defendants-appellees.
This is an action for damages allegedly resulting from defendants' negligent application of chemicals to the grass, plants, trees and shrubbery situated on the residential property of the plaintiff. The Trial Judge directed a verdict for defendants at the close of plaintiff's proof. The plaintiff appeals insisting that she made out a prima facie case sufficient to go to the jury.
In May of 1958 the plaintiff and her late husband purchased their residence located on South Parkway in Memphis, and a substantial amount of time, money and effort were invested over the years in developing and beautifying the lawn, both front and back. In the summer of 1977 plaintiff's sister, Mrs. Williams, contacted defendants to arrange for spraying on the premises. In her complaint plaintiff alleges that the services of defendants were engaged "for the purpose of spraying plaintiff's front and back lawn for insects which were developing to be a slight nuisance". At the trial plaintiff denied that the services were engaged for that purpose and insisted that her problem was limited to bag worms on two spruce trees located near the entrance to her private drive off South Parkway. In any event, defendants responded on August 16, 1977, by spraying plaintiff's trees, shrubs, grass and plants in her front and back yards. The following morning plaintiff noticed that "things started turning brown". Within the next several days the situation worsened and eventually substantial portions of the vegetation sprayed by defendants withered and died.
The proof at trial consisted of the testimony of the plaintiff and George P. Atkins, landscape contractor. The plaintiff testified in detail concerning the facts and circumstances surrounding the incident. She stated that during the period of time in question to her knowledge the application made by defendants was the sole contact which her plants, shrubs, trees and grass had with any outside influence; and that following the spraying by defendants there was a visible change in the appearance and condition of the vegetation from that which had existed for a number of years. She expressed the opinion that her property had depreciated in value to the extent of $20,000.00 to $35,000.00 based on the value before less value after the August 16 spraying. Atkins testified that he examined the property on September 5, 1977, to evaluate the damage and estimate replacement costs. He stated that he found the plants, shrubs, trees and grass in a bad physical condition and in various stages of deterioration. He attributed the condition to "being fed or sprayed, whatever you want to say, something that was applied a material was applied to them that was a killer for the plant". Atkins testified that the cost of replacing the damaged items would total $9,866.50, including $5,165.50 for the front yard and $4,701.00 for the back yard.
At the conclusion of plaintiff's proof the attorney for defendants moved for a directed verdict "on the grounds that there is no proof as to negligence and, therefore, it would be inappropriate to proceed further". The Trial Court in granting the motion stated as follows:
In this case the complaint specifically sets out that they violated the Tennessee Pest Control Act of 1972. There is no allegation in the complaint of res ipsa loquitur, the law being that res ipsa loquitur applies when there is no negligence alleged. There is no proof here of the rates exceeding the state and federal labels. There's no proof to support the allegation that there is a violation of the Tennessee Code.
In paragraphs numbered seven, eight and twelve of her complaint plaintiff made general allegations of "negligent conduct"; "gross, willful and wanton negligence"; and "gross, willful and wanton acts of negligence". In paragraphs numbered nine, ten and eleven of the complaint plaintiff alleged the violation of the Tennessee Pest Control Operator's Act of 1972 (T.C.A. 62-2101 et seq.) and the regulations promulgated thereunder. As observed by the Trial Judge, plaintiff failed to prove any specific acts of negligence with respect to violation of state law or regulations promulgated thereunder. As to general negligence plaintiff's case is based largely, if not entirely, upon circumstantial evidence. She relies upon the circumstance that the vegetation in her yard was in good condition until sprayed by defendants and that...
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...the application of the doctrine in a case involving the spraying of insecticides on trees, shrubs, and grass. Greer v. Lawhon, 600 S.W.2d 742, 745 (Tenn.Ct.App.1980). Similarly, the courts of other states have not hesitated to approve the application of the doctrine in crop spraying cases.1......
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Morris v. Wal-Mart Stores, Inc.
...causing the harm under the exclusive control and management of defendants before res ipsa loquitur applies at all." Greer v. Lawhon, 600 S.W.2d 742, 745 (Tenn.Ct.App.1980) (quoting Johnson v. Ely, 30 Tenn.App. 294, 205 S.W.2d 759 (1947)). As the plaintiff in the instant case has failed to m......
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