In Toomer v. William C. Smith & Co., Inc., 112 A.3d 324 (D.C. 2015), the D.C. Court of Appeals recently addressed the duty of care owed to trespassers in premises liability cases, as well as the application of the private necessity privilege to such cases. In Toomer, the plaintiff, a dog owner, attempted to climb over a steel fence bordering the defendant’s property in order to catch his dog, which had entered the defendant’s property through a small opening in the fence. The defendant, a property management company, had intentionally applied grease to the fence to deter trespassers, placing no warning signs about the grease. While climbing the fence, the plaintiff slipped on the grease and his calf was impaled on a fence post.
In reversing the trial court’s order granting summary judgment to the defendant, the Court of Appeals focused on the distinction between the duty of care owed to a trespasser in a premises liability case with that which is owed to a licensee. Under District of Columbia tort law, licensees are entitled to a reasonable duty of care. Trespassers, on the other hand, are only entitled to legal protection from “hidden engines of destruction” or “traps” that are intended to cause injury – a loaded spring gun being the archetypal example.
The grease-coated fence on which the plaintiff slipped did not constitute such a trap, the Court of Appeals reasoned, because the record did not include evidence suggesting that the defendant applied the grease to the fence with the intention of injuring trespassers.
Thus, if the plaintiff was a trespasser, the defendant was entitled to summary judgment. However, the Court of Appeals concluded that a reasonable jury could conclude that the plaintiff entered the defendant’s property in exercise of his private necessity privilege to prevent harm to his dog, and that his entry was reasonable in light of the circumstances, including the negligible harm it would cause to the defendant. In reaching its conclusion, the court focused on record evidence that the plaintiff’s dog did not respond well to commands while chasing cats or squirrels, and that the plaintiff was afraid the dog would become lost or injure someone else.