Eric Toomer v. William C. Smith & Co., Inc. , 2015 D.C. App. LEXIS 101 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-1210
ERIC TOOMER, APPELLANT,
V.
WILLIAM C. SMITH & CO., INC., APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-8675-12)
(Hon. Anthony C. Epstein, Trial Judge)
(Submitted May 13, 2014 Decided March 26, 2015)
Keith W. Watters and Patricia D. Watters were on the brief for appellant.
Patricia H. Beall and Jennifer E. Cameron were on the brief for appellee.
Before FISHER and BECKWITH, Associate Judges, and KING, Senior Judge.
BECKWITH, Associate Judge: Appellant Eric Toomer filed a negligence suit
for injuries sustained while climbing a fence owned and maintained by appellee
William C. Smith & Company (Smith), a company that develops and manages real
estate. The trial court granted summary judgment to Smith. We reverse and
remand for proceedings consistent with this opinion.
2
I.
Mr. Toomer was repairing his wife’s car in the parking lot of his apartment
complex when his pet dog, Rocky, escaped and ran through a gap in the steel fence
bordering the neighboring Skyland Apartments, a property managed by Smith.
Fearing that he would lose Rocky, Mr. Toomer tried to climb the fence by ―holding
onto the top‖ and ―throwing [his] body over.‖ While doing so, Mr. Toomer’s
hands slipped on grease on the fence, and his left calf was impaled on the fence
post. Skyland management had intentionally applied the grease to deter
trespassers, placing no warning signs on the fence. Mr. Toomer, who suffered
serious injuries to his leg, including an infection he said was caused by the grease,
sued under a negligence cause of action.
The trial court granted summary judgment to Smith. Applying the standard
of care owed to trespassers, the court noted that Mr. Toomer could only recover for
―intentional, wanton, or willful injury or the maintenance of a hidden engine of
destruction,‖ citing Firfer v. United States, 208 F.2d 524, 528 (D.C. Cir. 1953).1
See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (holding that D.C. Circuit
1
The trial court declined to address whether Mr. Toomer’s entry was
privileged. Citing Firfer, 208 F.2d at 528, for the proposition that a landowner
owes the same duty of care to a trespasser and a licensee, the court ruled that ―any
privilege would not affect the nature of the landowner’s duty‖ and concluded that
Mr. Toomer’s privilege to enter vel non was therefore irrelevant.
3
decisions prior to February 1, 1971, ―constitute the case law of the District of
Columbia‖ unless overruled by this court en banc). The court ruled that the grease
on the fence was ―not hidden, and no reasonable jury could find otherwise,‖
relying on evidence that the grease was ―obvious to the touch‖ and was ―visible to
the naked eye‖ in a post-accident photograph. Mr. Toomer appealed.
II.
Mr. Toomer first argues that the trial court incorrectly concluded that the
grease on the fence was ―open and obvious.‖ On summary judgment, we must
examine the record in the light most favorable to the non-moving party, and ―[a]ny
doubts about the existence of a factual dispute must be resolved in favor of the
non-moving party.‖ Ivey v. District of Columbia, 949 A.2d 607, 611 (D.C. 2008)
(alteration in original) (internal citation and quotation marks omitted). Sworn
testimony indicated that Mr. Toomer did not see the grease—which was black on a
black fence—prior to grabbing onto the fence and that he did not feel the grease
until his hands had already slipped, leading to his injury. Although the record also
contained evidence to the contrary, we agree with Mr. Toomer that, taking the
evidence in the light most favorable to him, a reasonable jury could have found
that the grease was ―hidden.‖
Whether the grease was ―open and obvious‖ is not legally relevant, however,
4
if Mr. Toomer was a trespasser. Even if the grease were hidden, Mr. Toomer
cannot recover as a trespasser unless he shows that Smith caused him ―intentional,
wanton, or willful injury‖ or ―maint[ained] . . . a hidden engine of destruction‖ by
placing grease on the fence. Boyrie v. E & G Prop. Servs., 58 A.3d 475, 477 (D.C.
2013) (quoting Firfer, 208 F.2d at 528). This court has, in passing, characterized a
hidden engine of destruction as ―a trap,‖ see WMATA v. Ward, 433 A.2d 1072,
1074 (D.C. 1981), and the courts of the only other jurisdiction we have found to
use this standard—New York—have described a hidden engine of destruction as
―spring guns or kindred devices,‖ Carbone v. Mackchil Realty Corp., 71 N.E.2d
447, 449 (N.Y. 1947) (quoting Mendelowitz v. Neisner, 179 N.E. 378, 379 (N.Y.
1932)). With reference to both traps and spring guns, the Supreme Court of the
District of Columbia2 described a landowner’s liability to trespassers under the
common law as follows:
[T]he owner would only be liable [to a trespasser] in case
of some willful injury, such as secretly depositing spring
guns where they could not be seen, in a place likely to be
traveled over by a stranger, who might be a trespasser, or
pitfalls similarly concealed. In such a case as that, it is
conceded that the owner of the premises would be liable,
2
This court was renamed the United States District Court for the District of
Columbia in 1936. See History of the Federal Judiciary: U.S. District Court for the
District of Columbia, Federal Judicial Center (Jan. 20, 2015),
http://www.fjc.gov/history/home.nsf/page/courts_district_dc.html.
5
because there the injury is willful. The purpose and
object of the owner of the premises in creating these
dangerous places, or depositing dangerous weapons,
liable to be discharged by a person stepping on them, is
willful and wicked.
Greenwell v. Wash. Mkt. Co., 21 D.C. 298, 303-04 (D.C. 1892) (emphasis added);
see also United States v. Gilliam, 25 F. Cas. 1319, 1320 (D.C. Crim. Ct. 1882)
(noting that a party is liable for use of a spring gun ―as if he were present himself
and fired the weapon‖). Following this logic, common law tort liability for
―maintenance of a hidden engine of destruction‖ similarly requires ―willful and
wicked‖ intent—that is, intent to harm trespassers with a hidden device. This
intent requirement makes sense given that a trespasser may only otherwise recover
for ―intentional, wanton, or willful injury.‖ Boyrie, 58 A.3d at 477.
The D.C. Circuit’s decision in Firfer likewise makes clear that liability for
―maintenance of a hidden engine of destruction‖ only attaches when the owner
intends to harm trespassers. When discussing liability to ―bare licensees,‖ the
court stated that the owner must ―not knowingly permit such licensee to run upon a
hidden peril or a hidden engine of destruction.‖3 208 F.2d at 528. With respect to
liability to trespassers, however, the court limited liability to ―intentional, wanton,
or willful injury or the maintenance of a hidden engine of destruction.‖ Id. This
3
This aspect of Firfer is no longer good law. See infra note 9.
6
distinction demonstrates that ―maintenance‖ of a hidden engine of destruction
requires something more than ―knowingly‖ allowing it to persist such that someone
might unwittingly ―run upon‖ it. Indeed, in denying the landowner’s liability to a
trespasser, the Firfer court stressed that ―[n]o contention was made that the injuries
suffered by Mr. Firfer were the result of an intention to do harm.‖ 208 F.2d at 528.
Courts applying D.C. tort law have concluded that a landowner did not
maintain a hidden engine of destruction when the owner negligently created a
dangerous condition or allowed it to exist without a warning sign. In Lacy v.
Sutton Place Condominium Ass’n, Inc., 684 A.2d 390 (D.C. 1996), we summarily
stated that faulty floorboards in an attic ceiling did not constitute a hidden engine
of destruction. Id. at 393. In Firfer, the D.C. Circuit held that a hidden hole in the
ground was not an engine of destruction. 208 F.2d at 528. And the federal district
court ruled in an unpublished opinion that a gate designed to keep individuals out
of the subway tunnels was not an engine of destruction where an alleged defect
permitted a person to pass through it and enter the tunnel. Whittaker v. WMATA,
No. 82-2771, 1984 U.S. Dist. LEXIS 16712, at *16-17 (D.D.C. May 14, 1984)).
Contrary to Smith’s contention here, Whittaker is not on all fours with this
case. There is no denying that Smith intentionally applied grease to the fence and
created a dangerous condition. Yet Mr. Toomer’s complaint did not allege that
7
Smith intended to cause injury to him or other trespassers—he solely raised a claim
of negligence.4 And even if we consider the more sweeping statements
Mr. Toomer made in his brief in opposition to Smith’s motion for summary
judgment in the trial court,5 Mr. Toomer cannot point to any record evidence
suggesting that Smith intended to injure trespassers. At best, Mr. Toomer pointed
to deposition statements made by Patrick McKenzie, Smith’s asset manager,
suggesting that Smith knew that people could get hurt on the greased fence. But
knowledge of a possibility of injury is not the same as intention to bring about an
injury. See Firfer, 208 F.2d at 528; cf. Grillo v. Nat’l Bank of Wash., 540 A.2d
743, 744 (D.C. 1988). Instead, the record shows that Smith applied the grease as a
4
At one point Mr. Toomer alleged, somewhat confusingly, that Smith’s
―negligence in failing to post warning signs was intentional, wanton and willful.‖
He clarified, however, that his injuries ―were solely caused by Defendant’s
negligent failure to post any warning signs‖ and that his physical and financial
injuries were both ―a direct and proximate result of the negligence of the
Defendant.‖
5
Mr. Toomer claimed that by applying grease, Smith ―created a dangerous,
unsafe condition [and] without a warning about the hidden hazard, its conduct
amounted to intentional, wilful, wanton behavior.‖ Mr. Toomer further asserted
that ―[t]he very acts of greasing the fence and failing to warn of the hazard . . .
demonstrate that William C. Smith was expecting trespassers and intended to
injure them.‖
8
deterrent to keep people from climbing over the fence.6 Even viewing the record
in the light most favorable to him, Mr. Toomer cannot identify evidence creating a
genuine dispute of material fact that Smith applied grease to the fence in order to
injure trespassers. Therefore, a reasonable jury could not conclude that Smith
maintained a hidden engine of destruction under our case law. If classified as a
trespasser, then, Mr. Toomer is not entitled to relief.
III.
Mr. Toomer alternatively argues that Smith owed him a duty of reasonable
care as a licensee because his entry onto the Skyland Apartments property was
privileged.7 The trial court did not decide whether Mr. Toomer’s entry was
6
Smith employees testified in their depositions that Smith had difficulty
with trespassers entering to break into apartments or evade police at several other
Smith properties, so Smith applied grease to fences at all of its properties as a
preventative measure. Although Mr. Toomer’s expert indicated that there were
other safer and more effective ways to prevent trespassers, the availability of safer
feasible alternatives speaks to negligent, not intentional, harm. See Restatement
(Second) of Torts § 292 (1965).
7
Mr. Toomer does not make this contention in his initial brief to this
court—it first appears in his reply brief. We opt not to treat this point as
abandoned, however. See In re Shearin, 764 A.2d 774, 778 (D.C. 2000). As this
argument was raised, fully briefed, and clearly addressed in the trial court, Smith
was not prejudiced by Mr. Toomer’s oversight in his appellate briefing. See
Glover v. District of Columbia, 77 A.2d 788, 789 (D.C. 1951) (deciding appeal on
the merits when violations of rules regarding briefs did not result in prejudice to
appellee). Moreover, Mr. Toomer’s argument does not require us to ―delve into
(continued…)
9
privileged, citing Firfer, 208 F.2d at 528, for the proposition that privilege was
irrelevant because licensees and trespassers are entitled to the same duty of care.
But Firfer is no longer good law in our jurisdiction in this respect. See Foshee v.
Consol. Rail Corp., 849 F.2d 657, 660 (D.C. Cir. 1988) (Wald, C.J., dissenting)
(explaining that Firfer continues to apply in trespass cases but no longer applies to
licensees).8 Under current District of Columbia tort law, licensees are entitled to a
duty of reasonable care, whereas trespassers are not. Boyrie, 58 A.3d at 477;
Holland v. Balt. & Ohio R.R. Co., 431 A.2d 597, 599-601 (D.C. 1981) (en banc)
(citing Blumenthal v. Cairo Hotel Corp., 256 A.2d 400 (D.C. 1969), and District of
Columbia Transit Sys., Inc. v. Carney, 254 A.2d 402 (D.C. 1969)) (affirming
Firfer with respect to trespasser cases but noting that we ―adopted a reasonable
care standard as to plaintiffs viewed as invitees or licensees‖); Ward, 433 A.2d at
1074 (Ferren, J., concurring). Whether Mr. Toomer was a licensee or trespasser is
(…continued)
complex and seemingly difficult‖ issues. Cf. Aeon Fin., LLC v. District of
Columbia, 84 A.3d 522, 530 (D.C. 2014).
8
In fact, Firfer drew a distinction between ―bare licensees‖ and ―licensees
by invitation (direct or implied),‖ the former of which were treated like trespassers
but the latter of which were treated like invitees. 208 F.2d at 527-28. D.C. tort
law no longer distinguishes between types of licensees or between licensees and
invitees. See Young v. Sherwin-Williams Co., 569 A.2d 1173, 1177 n.7 (D.C.
1990) (citing Holland v. Balt. & Ohio R.R. Co., 431 A.2d 597, 599–601 (D.C.
1981) (en banc)).
10
therefore central to his claim.9
For duty of care purposes, a trespasser is one ―who enters or remains upon
land in the possession of another without a privilege to do so created by the
possessor’s consent or otherwise.‖ Boyrie, 58 A.3d at 477-78 (emphasis added)
(quoting Firfer, 208 F.2d at 528). Thus a person entering pursuant to a lawful
privilege is not a trespasser under D.C. law. Saidi v. United States, No. 14-CM-
136, slip op. at 8-9 (Feb. 26, 2015) (stating that a person entering land in exercise
of a private necessity privilege is not a trespasser). This mirrors section 345 (1) of
the Restatement (Second) of Torts (1965), which provides that a person ―who
enters the land only in the exercise of a privilege, for either a public or private
purpose, and irrespective of the possessor’s consent,‖ is entitled to the standard of
care of a licensee. The duty of care owed to Mr. Toomer therefore turns on
whether or not his entry onto Smith’s property was privileged.
9
If Mr. Toomer was a licensee subject to a duty of reasonable care, he has
produced sufficient evidence to survive summary judgment. See Campbell v.
Noble, 962 A.2d 264, 266 (D.C. 2008) (noting that ―an owner of property has a
duty to exercise reasonable care to cure a dangerous condition‖ of which he has
actual or constructive notice and over which he has right to exercise control).
Moreover, Smith would not be entitled to an ―open and obvious‖ defense as a
matter of law, see, e.g., WMATA v. Barksdale-Showell, 965 A.2d 16, 25 (D.C.
2009), for the reasons given in the first paragraph of Section II, supra.
11
Mr. Toomer argues that his entry onto Smith’s property was justified by the
private necessity privilege to ―prevent serious harm to . . . [his] chattels.‖
Restatement (Second) of Torts § 197 (1) (1965). Under this provision,
[w]here the actor enters for the protection of himself or
his property, it is sufficient for the existence of the
privilege that the actor’s conduct is necessary or
reasonably believed by him to be necessary for the
purpose of protecting himself, his land or chattels, and
that his entry and the measures taken by him are
reasonable in the light of all the circumstances. . . . [T]he
probable advantage to the actor to be expected from the
entry must be weighed against the probable detriment to
the possessor of the land or other persons properly upon
it.
Id. cmt. c;10 see also Morgan v. Foretich, 546 A.2d 407, 411 (D.C. 1988)
(explaining that the criminal necessity defense requires reasonable belief of
imminent harm and no reasonable legal alternative). Smith argued in the trial court
that this privilege was inapplicable because ―[t]here was no threat of serious harm‖
to Mr. Toomer’s dog. But Mr. Toomer alleged that Rocky did not respond to
commands while chasing squirrels or cats and he was ―afraid that the dog would
10
See also Benamon v. Soo Line R. Co., 689 N.E.2d 366, 370 (Ill. App. Ct.
1997) (noting that a plaintiff must have reasonable belief of threat of harm and
action taken to avoid threat must be reasonable); Protectus Alpha Navigation Co.
v. N. Pac. Grain Growers, Inc., 585 F. Supp. 1062, 1068 (D. Or. 1984) (same),
aff’d, 767 F.2d 1379 (9th Cir. 1985).
12
become lost, or that [the dog] might hurt or injure someone else.‖11 A reasonable
jury could conclude (1) that Mr. Toomer reasonably believed his entry was
necessary to protect Rocky or others and (2) that both his entry and his manner of
entry were reasonable in light of all the circumstances, including the negligible
harm it would cause Smith. Cf. Rossi v. DelDuca, 181 N.E.2d 591, 593-94 (Mass.
1962) (holding that a jury could find that entry onto a property to escape a dog
attack was privileged). Smith was therefore not entitled to summary judgment and
we remand for further proceedings consistent with this opinion. See Person v.
Children’s Hosp. Nat’l Med. Ctr., 562 A.2d 648, 651 (D.C. 1989) (remanding
when there was a dispute of material facts regarding whether defendant’s actions
were privileged); cf. N.Y. State Energy Research & Dev. Auth. v. Nuclear Fuel
Servs., Inc., 561 F. Supp. 954, 975-76 (W.D.N.Y. 1983) (noting that summary
judgment is only appropriate when no reasonable person could believe actions
11
In fact, Rocky was a pit bull, a dog breed that has at times been subject to
government regulation for what some legislators perceived to be its particular
dangerousness. See McNeely v. United States, 874 A.2d 371, 379 & n.9 (D.C.
2005) (outlining the District’s short-lived Pit Bull and Rottweiler Dangerous Dog
Designation Emergency Amendment Act of 1996); Tracey v. Solesky, 50 A.3d
1075, 1080 (Md. 2012) (―Because of its aggressive and vicious nature and its
capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit
bulls are inherently dangerous.‖), superseded by statute, Md. Code Ann., Cts. &
Jud. Proc. § 3-1901 (2014).
13
were privileged).12
So ordered.
12
Given its disposition of the case, the trial court did not consider Smith’s
arguments concerning proximate cause and contributory negligence, and Smith
may press these arguments on remand. We take no position on their merits.