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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 8.
                                          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.
