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Defendant Land Owner’s Property Did Not Have Any “Hidden Engine of Destruction,” But Factual Dispute Over Plaintiff’s Status as Licensee or Trespasser Leads to Reversal of Trial Court Grant of Summary Judgment to Defendant

Toomer v. William C. Smith & Co., Inc.
No. 13-CV-1210 (District of Columbia Court of Appeals, Mar. 26, 2015)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Available at:

In Toomer v. William C. Smith & Co., Inc., 13-CV-1210 (District of Columbia Court of Appeals, Mar. 26, 2015), Plaintiff Toomer filed a negligence suit for injuries sustained while climbing a fence owned and maintained by the Defendant property manager. The trial court granted summary judgment to Defendant on the grounds that the Plaintiff was a trespasser, who could only recover for intentional, wanton or willful injury by the Defendant, and that the danger with the fence at issue was open and obvious. The appellate court reversed and remanded.

In terms of the underlying facts, Plaintiff was repairing his wife’s car in the parking lot of his apartment complex when his pet pit bull, escaped and ran through a gap in the steel fence bordering the neighboring apartment complex, which was managed by Defendant. Plaintiff attemped to climb the fence to chase after his dog, by holding onto the top and throwing his body over. While doing so, Plaintiff’s hands slipped on grease on the fence, and his left calf was impaled on the fence post. Defendant had intentionally applied grease to the fence to deter trespassers, and there were no warning signs on the fence. Plaintiff filed a negligence case against Defendant.

The trial court granted summary judgment to Defendant, by applying the standard of care owed to trespassers. The court noted that Plaintiff could only recover for intentional, wanton, or willful injury or the maintenance of a “hidden engine of destruction,” under Firfer v. United States, 208 F.2d 524, 528 (D.C. Cir. 1953). 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. Plaintiff appealed.

Plaintiff disputed that the danger with the fence was open and obvious. Plaintiff submitted sworn testimony that he had not seen the black grease on the black fence prior to grabbing onto it, and that he did not feel the grease until his hands had already slipped, which led to his injury. Although the record also contained evidence to the contrary, the trial court should have taken the evidence in the light most favorable to the Plaintiff as the non-moving party, and a reasonable jury could have found that the grease was hidden. Whether the grease was hidden, however, was not legally relevant if Plaintiff was a trespasser. A Plaintiff cannot recover as a trespasser unless he shows that Defendant caused him intentional, wanton, or willful injury, or maintained a “hidden engine of destruction” by placing grease on the fence. Examples of hidden engines of destruction are traps and spring guns. When such devices are used, the owner’s purpose is “willful and wicked.” In such cases, the owner is liable because the injury is willful. Liability for maintenance of a hidden engine of destruction only attaches when the owner intends to harm trespassers. Negligently creating a dangerous condition or allowing it to exist without a warning sign does not create a liability to trespassers. There was no denying that the Defendant intentionally applied the grease and created a dangerous condition, but there was also no evidence in the record suggesting that the Defendant intended to injure trespassers. The record showed that the Defendant applied the grease to deter trespassers. Even viewing the evidence record in the light most favorable to Plaintiff, Plaintiff could not prevail if he was classified as a trespasser since there was no hidden engine of destruction maintained by Defendant.

The Court next considered whether Plaintiff was owed a duty of reasonable care as a licensee because his entry into Defendant’s property was privileged. If Plaintiff was a licensee subject to a duty of reasonable care, then he produced sufficient evidence to survive summary judgment, and the open and obvious defense would not be available to the Defendant. Plaintiff argued that his entry onto Defendant’s property was justified by the private necessity privilege, which pertains to preventing serious harm to chattels. Defendant argued that the privilege did not apply because there was no threat of serious harm to Plaintiff’s dog, but Plaintiff alleged that his dog did not respond to his commands and he was afraid the dog might become lost, or hurt or injure someone else. It was notable to the Court that the pit bull breed of dog has at times been subject to government regulation for what some legislators perceive to be its particular dangerousness (citing Maryland law). The Court held that a reasonable jury could conclude that Plaintiff reasonably believed his entry was necessary to protect his dog or others; that both his entry and manner of entry were reasonable under the circumstances, including the negligible harm it would cause Defendant; and therefore, Defendant was not entitled to summary judgment. The Court reversed and remanded the case back to the trial court for further proceedings. It noted that the trial court did not consider Defendant’s arguments concerning proximate cause and contributory negligence, which may be considered on remand, and the Court took no position on the merits of those defenses in its appellate review.