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Toomer v. William C. Smith & Co., Inc.

Court of Appeals of Columbia District

March 26, 2015

ERIC TOOMER, APPELLANT,
v.
WILLIAM C. SMITH & CO., INC., APPELLEE

Submitted May 13, 2014.

Editorial Note:

This is an unpublished decision under D.C.App. R. 28 (h) and is of no precedential value except when used under res judicata, collateral estoppel, in a criminal action against same defendant or in a disciplinary action against the same respondent.

Appeal from the Superior Court of the District of Columbia. (CAB-8675-12). (Hon. Anthony C. Epstein, Trial Judge).

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.

OPINION

Page 325

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.

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, 93 U.S. App.D.C. 216 (D.C. Cir. 1953).[1]See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (holding that D.C. Circuit 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 ...


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