Holland v. Baltimore & O. R. Co.

Citation431 A.2d 597
Decision Date29 May 1981
Docket NumberNo. 12429.,12429.
PartiesFrances HOLLAND, et al., Appellants, v. BALTIMORE & OHIO RAILROAD COMPANY, et al., Appellees.
CourtD.C. Court of Appeals

Florence R. King, Washington D. C., with whom Wiley A. Branton, Washington, D. C., was on the brief, for appellants.

Laidler B. Mackall, Washington, D. C., with whom Loren Kieve, Washington, D.C., was on the brief, for appellee Baltimore & Ohio Railroad Co.

James C. McKay, Washington, D. C., with whom Jeffrey G. Huvelle, Washington, D. C., was on the brief, for appellee Penn Central Transportation Co.

Alfred L. Singer, Washington, D. C., filed a brief for amicus curiae, Association of Plaintiffs' Trial Attorneys of Metropolitan Washington, D. C.

Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges, and GALLAGHER, Associate Judge, Retired.*

NEBEKER, Associate Judge:

This appeal arises from trial court orders dismissing appellants' complaint with respect to appellee Baltimore & Ohio Railroad Company (B & O), and granting summary judgment on the complaint to appellee Penn Central Transportation Company (Penn Central). The complaint sought damages for injuries suffered by a nine-year-old child who was injured by a train while trespassing on an area of railroad right-of-way where the two appellees maintain contiguous tracks.

In granting B & O's motion to dismiss for failure to state a claim upon which relief could be granted, the trial court utilized the standard set by Firfer v. United States, 93 U.S.App.D.C. 216, 208 F.2d 524 (1953), and dismissed because the complaint failed to allege a willful, wanton, or intentional injury.1 In so doing, the trial court ruled that the attractive nuisance theory of liability, which formed the basis of the complaint, was not available on the facts as pleaded. The court recognized that

[t]he present state of the law in this jurisdiction, Bethea v. United States [D.C.App., 365 A.2d 64 (1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977)], is that the doctrine of attractive nuisance "does not extend to things which become dangerous only when adults set them in motion" such as a moving railroad car. Harris v. Roberson, 78 U.S.App.D.C. 246, 139 F.2d 529 (1943). Here of course, the plaintiff was struck and injured by a moving train therefore he may not assert the attractive nuisance doctrine.

The court applied the same law in granting Penn Central's motion for summary judgment.2

A division of this court which originally heard the appeal affirmed the trial court's decision as to Penn Central, but reversed and remanded as to B & O. Holland v. Baltimore & Ohio R. Co. (No. 12429, June 15, 1979), vacated September 21, 1979.3

Having granted appellee B & O's petition for rehearing en banc, we are now called on to deride whether the Firfer rule should be abandoned, and if it is not, whether the attractive nuisance exception is available to appellants. We conclude that Firfer v. United States, supra, continues to represent the general rule of landowner liability to trespassers in this jurisdiction. We further hold that the narrow attractive nuisance doctrine exception to the general rule is not applicable in this case as a matter of law.

Since, as the trial court recognized, the same law concerning the general duty of landowners to trespassers and the availability of the attractive nuisance exception is outcome determinative as to both appellees, a unitary analysis is appropriate.

I. THE GENERAL RULE

In 1953, the United States Court of Appeals for the District of Columbia Circuit set the standard to be applied in suits by trespassers against landowners for injuries suffered on the landowners' property. Trespassers may only recover for "intentional, wanton or willful injury or maintenance of a hidden engine of destruction." Id. 93 U.S.App.D.C. at 219, 208 F.2d at 528. Firfer has never been overruled in the District of Columbia. Appellants urge, however, that we now abandon Firfer in favor of a "reasonable care under the circumstances" standard, as adopted in 1972 by the circuit court in Smith v. Arbaugh's Restaurant, Inc., 152 U.S.App.D.C. 86, 469 F.2d 97 (1972). While it is clear that this court sitting en banc may overrule otherwise binding precedent such as Firfer, we decline to do so in this instance.

We recognize that there has been some movement here, and in other jurisdictions, in the direction of abolishing the distinctions between invitee and licensee plaintiffs on the question of the duty of care owed them by landowners. However, the trespasser classification has not been included in this movement in the overwhelming majority of such jurisdictions, including the District of Columbia.4 See Alston v. Baltimore & Ohio R. Co., 433 F.Supp. 553 (D.D.C. 1977), W. Prosser, Law of Torts § 62, at 398 (4th ed. 1971). In Blumenthal v. Cairo Hotel Corp., D.C.App., 256 A.2d 400 (1969), and D. C. Transit System, Inc. v. Carney, D.C. App., 254 A.2d 402 (1969), this court adopted a reasonable care standard as to plaintiffs viewed as invitees or licensees. Carney involved a common carrier sued by a passenger for injuries suffered as a result of an abrupt stop made by the carrier's vehicle. In reversing the trial court's award of damages to the passenger, we stated that the carrier was held to a standard of care commensurate with the particular hazards involved. In Blumenthal, we sustained a summary judgment in favor of a landlord who was sued for alleged negligence in failing to maintain in working order a window lock in plaintiff/lessee's apartment. Plainly, landowner liability to trespassers was not an issue in either of these cases.

Appellants' argument for adopting a single standard of care as to trespassers is primarily based on Smith v. Arbaugh's Restaurant, Inc., supra. There, the plaintiff, a health inspector, suffered a back injury when he slipped on a restaurant stairway while making an inspection. In denying recovery, the circuit court stated its intention to discard the common law theories which determined liability of a landowner by reference to the status of the entrant upon the property, aid then concluded: "[a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances . " Id. 152 U.S.App.D.C. at 89, 469 F2d at 100.

The attempt in Arbaugh's to rewrite the general law of tort liability of landowners in the District of Columbia failed for two reasons. First, the issue of the duty of care owed a trespasser by a landowner was not before the court. Judge Leventhal noted this fact in his concurrence in Arbaugh's, id. 152 U.S.App.D.C. at 97, 469 F.2d at 108, and in his concurrence in a later case brought by an injured guest against his hosts, Cooper v. Goodwin, 155 U.S.App.D.C. 449, 454, 478 F.2d 653, 658 (1974).5

Judge Leventhal's concurrence in Cooper also noted the second reason why the abolishment of plaintiff classifications in Arbaugh's should not be given effect. At the time the Arbaugh's decision was handed down, the circuit court was "no longer the authoritative expositor of the common law of the District of Columbia." Cooper v. Goodwin, supra. The criteria for determining whether an opinion of the United States Court of Appeals for the District of Columbia Circuit constitutes binding precedent in this jurisdiction are set forth in M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). Decisions of the circuit court issued prior to February 1, 1971, the effective date of court reorganization, "constitute the case law of the District of Columbia." M.A.P. v. Ryan, id. at 312. In contrast, cases decided by the circuit court after that date, including those which purport to set aside prereorganization case law, are not binding on this court. Bethea v. United States, supra. Furthermore, it is arguable that under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the circuit court was bound in Arbaugh's to apply the law of the District of Columbia as if the District were a state. See Steorts v. American Airlines, 647 F.2d 194 (D.C.Cir., 1981); Lee v. Flintkote, 193 U.S.App.D.C. 121, 593 F.2d 1275 (1979). Erie requires federal court adherence to the substantive legal precedents of the highest court in the state. In the District, this means that the federal courts should follow (1) decisions rendered by this court subsequent to the court reorganization date, and (2) those decisions rendered prior to court reorganization by the circuit court which have not been overruled by this court sitting en banc.6

Having found the circuit court's attempt to modify District of Columbia case law in the 1972 Arbaugh's decision to be without precedential effect as to trespassers, we find no other compelling reason to abandon Firfer. In this jurisdiction, trespassers may, generally speaking, only recover from landowners for injuries that were willful, wanton, or that resulted from maintenance of a hidden engine of destruction.

II. THE ATTRACTIVE NUISANCE EXCEPTION

During the latter part of the nineteenth, and into the twentieth century, the attractive nuisance doctrine developed as a narrow exception to the general rule of landowner liability to trespassers. In 1934, the American Law Institute (ALI) set out its formulation of the attractive nuisance doctrine in the Restatement of Torts. A slightly modified formulation of this doctrine was later published by the ALI in 1959 in the Restatement (Second) of Torts. It reads as follows:

§ 339. Artificial Conditions Highly Dangerous to Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one...

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