607 N.E.2d 280 (1993)
239 Ill. App.3d 1017
180 Ill.Dec. 386
Beth SWIERKOSZ, Plaintiff-Appellant,
v.
STARVED ROCK STABLES, Defendant-Appellee.
No. 3-92-0301.
Appellate Court of Illinois, Third District.
January 5, 1993.
R.J. Lannon, Jr., Herbolsheimer, Lannon, Henson, Duncan & Reagan, LaSalle, Michael C. Jansz (argued), Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, for Beth Swierkosz.
*281 Eugene P. Daugherity (argued), Myers, Daugherity, Berry & O'Conor, Ltd., Ottawa, for Starved Rock Stables.
Presiding Justice McCUSKEY delivered the opinion of the court:
Plaintiff, Beth Swierkosz, brought an action to recover damages for injuries she received when thrown from a horse rented from defendant, Starved Rock Stables. Plaintiff appeals the dismissal of two counts in her complaint which alleged negligence and a violation of the Animal Control Act. We affirm the dismissal of both counts of the complaint.
We conclude (1) plaintiff failed to state a cause of action under the Animal Control Act, and (2) the exculpatory agreement signed by the plaintiff released defendant from liability for its alleged negligence.
Plaintiff was injured in July 1991 when she fell from a horse rented from defendant. Count I of plaintiff's three count complaint was premised on common law negligence. Count III was brought pursuant to section 16 of the Animal Control Act, which provides:
"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." Ill. Rev.Stat.1989, ch. 8, par. 366.
Defendant filed a motion to dismiss counts I and III of the complaint. (Ill.Rev. Stat.1989, ch. 110, par. 2-619(9).) Defendant argued that an exculpatory agreement signed by the plaintiff released the defendant from liability for the negligence alleged in count I. Defendant further argued that the plaintiff was precluded from recovery in count III under the Animal Control Act pursuant to our supreme court's decision in Harris v. Walker (1988), 119 Ill.2d 542, 116 Ill.Dec. 702, 519 N.E.2d 917.
Plaintiff filed counteraffidavits in response to the defendant's motion to dismiss. Plaintiff stated that in the months preceding the accident, she had ridden on two other occasions at Starved Rock Stables. She had no other "contact or familiarity" with horses. She knew horses would "buck and rear up as well as kick out with their hind legs." However, she was unaware that horses would suddenly jump to the side when spooked or startled. She "expected and anticipated that the horse she was riding would walk or trot in a straight line following the horse in front of it." She read and signed the exculpatory agreement on her first visit to the stables that summer. Thereafter, during her next two visits, she simply signed the exculpatory agreement without ever reading it.
The trial court granted defendant's motion to dismiss, and plaintiff appeals. Based upon our supreme court's decision in Harris, we first conclude that the trial court properly determined that the plaintiff failed to state a cause of action under the Animal Control Act.
"[W]here a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages from the person who rented the horse to him under section 16 of the Animal Control Act." Harris v. Walker (1988), 119 Ill.2d 542, 548, 116 Ill.Dec. 702, 704, 519 N.E.2d 917, 919.
The plaintiff in Harris was injured in a fall from a horse which he rented from defendant's riding stable. The plaintiff signed an exculpatory agreement relieving the defendant from liability that might be incurred "while on the premises or for any injury which may result from horseback riding." Harris, 119 Ill.2d at 548-49, 116 Ill.Dec. at 704, 519 N.E.2d at 919.
The plaintiff in Harris, like the plaintiff in the instant appeal, filed an action based on section 16 of the Animal Control Act and on a common law negligence theory. (Harris, 119 Ill.2d at 545, 116 Ill.Dec. at 703, 519 N.E.2d at 918.) In Harris, the supreme court reversed the appellate court and affirmed the trial court's grant of summary judgment for the defendant. Our supreme court determined that *282 "the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them." (Harris, 119 Ill.2d at 547, 116 Ill.Dec. at 704, 519 N.E.2d at 919.)
The supreme court concluded that the plaintiff's act of contracting with the defendant to rent a horse established a relationship with the owner of the horse such that the plaintiff removed himself from the class of persons the legislature intended to protect. Harris, 119 Ill.2d at 547-48, 119 Ill.Dec. at 704, 519 N.E.2d at 919.
We recognize that our supreme court's holding in Harris may be premised in part on the fact that the plaintiff evidenced his understanding and acceptance of the risks of horseback riding by executing an exculpatory agreement prior to riding, and later confirmed his understanding in deposition testimony. (Harris, 119 Ill.2d at 547-48, 119 Ill.Dec. at 704, 519 N.E.2d at 919.) Assuming, then, as the instant plaintiff maintains, that her inexperience prevented her from a meaningful understanding of the risks of horseback riding and further, that the exculpatory agreement she signed was ambiguous and unclear, we still conclude that no claim exists under the Act when a rider is thrown from a horse she has voluntarily mounted. Ennen v. White (1992), 232 Ill.App.3d 1061, 174 Ill.Dec. 219, 598 N.E.2d 416 (as corrected September 18, 1992).
The plaintiff in Ennen brought an action under the Animal Control Act for compensation for injuries she sustained when the defendants' horse threw her while she was riding the horse on defendants' property. The plaintiff in Ennen had not signed an exculpatory agreement. The appellate court affirmed the dismissal of her amended complaint for failure to state a cause of action under the Act. The Ennen court reasoned that the plaintiff
"should have recognized her conduct involved a risk, she should have known the qualities and habits of animals, and capacities of things and forces insofar as they are matters of common knowledge in the community. This applies even if she was ignorant of the possibility Coke might throw her. See Restatement (Second) of Torts § 290, Comment g, at 50 (1965)." (Emphasis added.) (Ennen, 232 Ill.App.3d at 1065,174 Ill.Dec. at 222, 598 N.E.2d at 419.)
The Ennen court concluded:
"There is no legal or policy justification for extending the protections of the Act to a rider of a horse. Once the rider mounts the horse, the rider is no longer a bystander or observer but is someone who has asserted dominion over the animal and is an active partner with the animal in recreational activity. The rider assumes control and responsibility for the horse. While a cause of action may be stated under other theories of liability, there is none under the Act." (Emphasis in original.) (Ennen, 232 Ill. App.3d at 1066, 174 Ill.Dec. at 222, 598 N.E.2d at 419.)
Accordingly, following the analysis and reasoning of Harris and Ennen, respectively, we conclude that the trial court did not err in dismissing count III of plaintiff's complaint under the Animal Control Act.
Plaintiff next contends that the trial court erred in dismissing her common law negligence count based upon her execution of an exculpatory agreement. We disagree.
The supreme court in Harris "reaffirm[ed] that under certain circumstances exculpatory contracts may act as a total bar to a plaintiff's negligence claim." (Harris, 119 Ill.2d at 548, 119 Ill.Dec. at 704, 519 N.E.2d at 919.) The supreme court cited the general rule of enforcing exculpatory contracts "`unless (1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.' [Citations.]" Harris, 119 Ill.2d at 548, 119 Ill.Dec. at 704, 519 N.E.2d at 919.
Our supreme court in Harris found the broad language of the release before it sufficient to encompass the plaintiff's injury. *283 The court explained that the parties' failure to have considered the precise occurrence which resulted in the plaintiff's injury did not invalidate the exculpatory agreement. (Harris, 119 Ill.2d at 549, 119 Ill.Dec. at 705, 519 N.E.2d at 920.) The supreme court observed that "horseback riding involves various risks of injury that are plain to experienced riders." (Harris, 119 Ill.2d at 549, 119 Ill.Dec. at 704-05, 519 N.E.2d at 919-20.) The court concluded:
"We believe that only the most inexperienced of horseback riders would not understand that under certain circumstances a horse may become spooked or `side-shocked' and cause a rider to fall from the horse." Harris, 119 Ill.2d at 549, 119 Ill.Dec. at 705, 519 N.E.2d at 920.
We note that our supreme court in Harris did not find any public policy conflicting with its holding that the exculpatory agreement released the defendant from any negligence liability. The court also noted that the plaintiff voluntarily entered into the relationship with the defendant. Harris, 119 Ill.2d at 549-50, 119 Ill.Dec. at 705, 519 N.E.2d at 920.
Plaintiff concedes that our supreme court in Harris held an exculpatory agreement could be effective to relieve a defendant from liability. Plaintiff argues, however, that the release she signed was unclear and ambiguous, and therefore ineffective to release the defendant from liability. We find the plaintiff's focus is misplaced. The plaintiff dwells only upon certain individual phrases and sentences contained in the exculpatory agreement without focusing on the entire document. The obvious meaning of the release is derived from reading the entire argument. We find that the release is clear and unambiguous. Accordingly, we hold that it is enforceable.
The release provided in pertinent part:
"Section II. Warnings and Assumption of Risk Agreement
A. I/We understand that horse back riding is classified as ADVENTURE RECREATIONAL SPORT ACTIVITY and that there are inherent elements of risk always present in any such activity despite all safety precautions. I fully accept such risk, some examples of which are listed as follows:
1. * * * [I]t is not possible for any person or establishment to predict exactly how a horse will behave when it is frightened, angry or under stress; it may react according to its natural instincts which are to jump sideways, forward or backward * * *.
2. Upon mounting a horse and taking up the reins the rider is in primary control of the horse * * *. If a rider falls from a horse to the ground it will be a fall of from 3½ to 5 feet and impact will be according to physical law, possibly resulting in injury to a rider."
* * * * * *
"Section III. Release Agreement
A. I/We understand and agree that except in event of THIS STABLE'S gross negligence, I/We accept full responsibility for bodily injury * * * which [is] sustained by any member of my group so listed above, on or in relationship to the premises and operations of THIS STABLE and/or while riding or handling horses or other animals owned by same; and that I/We hereby, for myself * * *, do hereby release and discharge the owners, operators, sponsors of the premises and their respective servants, agents, officers and all other participants of and from all claims, demands, actions and causes of action for same injuries * * *."
We first note that the causeand even the effectof the plaintiff's fall were precisely enumerated in the release as the risks which the plaintiff assumed when she rented the horse:
"[I]t is not possible * * * to predict exactly how a horse will behave * * *; it may react according to its natural instincts which are to jump sideways * * *.
* * * * * *
If a rider falls from a horse to the ground it will be a fall of from 3½ to 5 feet and impact will be according to physical law, possibly resulting in injury to a rider." *284 Therefore, we hold in the instant appeal that the plaintiff accepted the risk with full knowledge and appreciation of the danger.
The plaintiff further argues that she is not covered by the holding in Harris because she was an inexperienced rider. Even if we accept plaintiff's argument that she was inexperienced, we believe the supreme court's discussion of the plaintiff's experience in Harris was necessary because the release language there was broad and general. However, the plaintiff's experience here is less of a factor because the release specifically enumerated the risks of horseback riding. Also, we cannot ignore the fact that the plaintiff has admitted this was her third visit to the defendant's stables.
We conclude that the plaintiff's execution of the exculpatory agreement bars her recovery of damages under a negligence theory. The risks of horseback riding were clearly delineated in the release agreement. We find the trial court properly dismissed count III of the plaintiff's complaint.
For the reasons indicated, the judgment of the circuit court of La Salle County is affirmed.
Affirmed.
SLATER and STOUDER, JJ., concur.


422 A.2d 765 (1980)
Terry R. BUNDY, Appellant,
v.
UNITED STATES, Appellee.
No. 79-468.
District of Columbia Court of Appeals.
Argued September 9, 1980.
Decided October 17, 1980.
*766 Donald W. Whitehead, Washington, D.C., appointed by the court, with whom Edward N. Leavy, Washington, D.C., was on the brief, for appellant.
Richard C. Bicki, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and John R. Fisher, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.
Before KELLY, NEBEKER and MACK, Associate Judges.
MACK, Associate Judge:
Following a jury trial, appellant was convicted of armed robbery, D.C.Code 1973, §§ 22-2901, -3202, assault with a dangerous weapon, D.C.Code 1973, § 22-502, and carrying a concealed weapon, D.C.Code 1973, § 22-3204. On appeal, appellant contends inter alia,[1] that the trial court committed reversible error by admitting into evidence, in violation of Super.Ct.Cr.R. 12.1(f), testimony of a prior withdrawn alibi defense. Although we agree with appellant that admission of the prior alibi defense was error, our review of the record leads us to conclude that the defect did not rise to the level of plain error. Accordingly, we affirm the judgment of conviction.
The pertinent facts are as follows. At approximately 9:00 a. m. on the morning of June 5, 1977, Byron Lindsey, an employee of the Gino's Restaurant at 1448 Pennsylvania Avenue, S.E., was working in the parking lot of that establishment preparing for the 11:00 a. m. opening of business, when he observed appellant at a nearby bus stop. After appellant failed to board any of the several buses that passed, he approached Mr. Lindsey and inquired about a job. Lindsey advised appellant to direct his inquiry to the manager, Antoine Perry, who, at that time was not on the premises. Mr. Perry arrived shortly thereafter and appellant confirmed his identity with Lindsey. After Lindsey completed his parking lot duties, appellant grabbed him by the arm, told him that "This is a stick up . . .", pointed a gun at his ribs and ordered him to gain entry into the rear of the restaurant. Lindsey rang the rear door bell while appellant stood out of view. When Mr. Perry opened the door, appellant entered, pushing Lindsey ahead of him, put the gun in Perry's back, and ordered him to open the safe of the establishment. Perry opened the safe and placed approximately $200 in a brown paper bag supplied by appellant. Appellant then fled and the police were notified and provided with a description of him.
One week later, on June 12, 1977, Police Officer Steven M. Smith observed appellant sitting on a brown paper bag at the same bus stop near Gino's Restaurant. Once again, appellant failed to board several buses that passed. Recalling the Gino's robbery and the description of the robber, Officer Smith attempted to question appellant. Appellant, however, had started to walk away from the bus stop, and he ignored Officer Smith's inquiries. Smith then exited his patrol car and confronted appellant. Appellant put his hand to his waistband while backing up in a nervous and fidgety manner. Officer Smith ordered appellant to remove his hand from his waist, conducted a patdown search, and discovered a butcher knife in appellant's waistband. Appellant was then arrested. Lindsey and Perry identified appellant's picture from a photographic array and subsequently identified him in a police lineup.
In response to the prosecution's demand for written proffer of an alibi defense, defense counsel, Alan Bayles, on February 11, 1978, tendered a handwritten note listing appellant's cousin, Keith Bundy, as a possible alibi witness. Mr. Bayles orally notified the prosecution that the defense would be that appellant was in the company of Keith Bundy, in the District of Columbia on the day of the crime. However, at the end of *767 February, Mr. Bayles informed the government that appellant no longer intended to call his cousin as an alibi witness, and he conveyed the impression that appellant would present no alibi defense.
At trial, commencing on June 23, 1978, appellant, now represented by Harvey Smith, testified that on the day of the crime, he was with a sincedeceased friend, Janice Perry, visiting the campus of her college, Virginia Union College, Richmond, Virginia. The prosecution asked for a side bar conference and there requested that the alibi be stricken from the record due to appellant's failure to give prior notification to the government in accordance with the Superior Court Rules of Criminal Procedure. A ruling on this request was postponed and, at the conclusion of appellant's testimony on direct examination, the court, after another conference with counsel, ordered a continuance to allow the government time to investigate appellant's new alibi. On the following day, another conference was held at which time defense counsel asserted, in effect, the attorneyclient privilege in an attempt to preclude the government from calling Mr. Bayles as a witness for impeachment purposes. The objection was denied as premature, and the government was granted an additional day to pursue its investigation.[2]
When trial resumed, the prosecution cross-examined appellant concerning his prior alibi defense. No defense objection was raised, and appellant proceeded to testify that no previous alibi existed and that he intended to call his cousin merely as a character witness. The prosecution, over the objection[3] of defense counsel, then called Alan Bayles to the stand. Mr. Bayles testified that he disclosed to the prosecution in early February, 1978, appellant's alibi defense involving his cousin, but that in the latter part of that month he gave notice that appellant no longer intended to call Keith Bundy as an alibi witness.
On appeal, appellant contends[4] that the prosecution's cross-examination of him and direct examination of his former counsel concerning the subject of a previously withdrawn alibi defense violated Super.Ct.Cr.R. 12.1(f), and constituted reversible error. Rule 12.1(f) provides that:

Inadmissibility of Withdrawn Alibi. Evidence of an intention to rely upon an alibi defense, later withdrawn or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.
The line of questioning pursued by the prosecution clearly violated Rule 12.1(f) and therefore constituted error. However, because appellant did not object on the basis of this rule at trial, our review is limited to the question whether the error committed rose to the level of plain error. See Brown v. United States, D.C.App., 387 A.2d 728 (1978); Watts v. United States, D.C. App., 362 A.2d 706 (1976) (en banc). Under the plain error standard, the error complained *768 of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial. Watts v. United States, supra. In this endeavor, we look to all the circumstances of the case to determine whether there is a probability that there has been a miscarriage of justice. Lloyd v. United States, D.C.App., 333 A.2d 387 (1975). After reviewing the record in the instant case, we conclude that admission of the challenged evidence did not constitute plain error requiring reversal.
At trial, the government produced substantial evidence strongly indicating appellant's guilt of the crimes charged. Byron Lindsey and Antoine Perry, the victimized employees of Gino's Restaurant, testified that appellant was the individual who threatened them at gunpoint. The two employees had the opportunity to get a good view of appellant during the robbery, and consequently, they identified him, without hesitation, both from a photographic array and from a police lineup. Additionally, the circumstances of appellant's arrest lend themselves to a finding of guilt: appellant was observed at the same bus stop from which he initiated his criminal activity the week before; he again carried an empty brown paper bag and he exhibited the same preliminary behavioral pattern of letting numerous buses pass him by; he attempted to avoid Officer Smith; and he was armed at the time of arrest. Although he testified that on the date of the robbery he was with Janice Perry touring her college campus and meeting her friends, appellant presented no evidence to corroborate this account and, indeed, he testified that he made no attempt to contact the people to whom he was allegedly introduced on the date of the robbery. Thus, we conclude that, quite apart from the testimony that appellant previously intended to present a different alibi defense, the government's evidence was so compelling as to justify a finding of guilt. While we strongly caution against the use of any evidence in violation of Rule 12.1(f), we hold that the error in the circumstances of this case was not so clearly prejudicial as to jeopardize the very fairness and integrity of trial. Finding no plain error, we affirm the convictions.
Affirmed.
NOTES
[1]  Appellant also contends that he was denied a fair trial due to the prosecutor's tactic of "intimidating" defense counsel during trial and that the trial court erred by not allowing appellant to testify regarding an unrelated criminal offense. After reviewing the record, we hold that these contentions are meritless.
[2]  After interviewing the family of the deceased Ms. Perry, the government concluded that it would be inappropriate to subpoena them to testify in light of the ordeal they had recently experienced in burying Ms. Perry and in participating in the trial of her murderer.
[3]  The objection lodged by counsel was based on the grounds previously raised during conference, i. e., that the attorneyclient privilege precluded the admission of Mr. Bayles' testimony.
[4]  Appellant also contends that the attorneyclient privilege precludes the admission of evidence of his conversations with Mr. Bayles regarding an alibi defense. We hold that the communications in question were not privileged. The privilege which attaches to a confidential communication between attorney and client is waived when the substance of that communication is related to a nonprivileged party. See, e. g., Gale v. United States, D.C. App., 391 A.2d 230 (1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979). In the instant case, when the substance of appellant's prior alibi defense was disclosed to the prosecution by appellant's attorney, that information became public knowledge and was not subject to assertion of the attorney-client privilege. See, e. g., Underwater Storage, Inc. v. United States Rubber Co., 314 F.Supp. 546 (D.D.C.1970) (material disclosed to adverse party via discovery proceedings thereby became part of the public domain and was no longer subject to the attorney-client privilege).


942 A.2d 1103 (2008)
Carmelita JONES, Appellant
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Appellee.
No. 06-CV-1437.
District of Columbia Court of Appeals.
Argued December 11, 2007.
Decided January 30, 2008.[*]
*1104 H. Vincent McKnight, Jr., Washington, DC, for appellant.
Andrew J. Marcus, with whom Joseph S. Crociata and Andrew Butz, Washington, DC, were on the brief, for appellee.
Before REID and FISHER, Associate Judges, and BELSON, Senior Judge.
FISHER, Associate Judge:
Appellant Carmelita Jones asks us to reverse the Superior Court's orders granting summary judgment to appellee National Railroad Passenger Corporation ("Amtrak") and denying her motion for reconsideration. Discerning no legal error or abuse of discretion, we affirm.

*1105 I. Factual Background
Ms. Jones worked as a coach cleaner for Amtrak from March 16, 1981, until June 24, 2003. She performed a variety of cleaning duties, and sometimes she was asked to vacuum the passenger coaches. In January 2003, Ms. Jones began to experience pain in her right arm. At first, the pain was intermittent: "It might hurt today, but not hurt tomorrow." Sometime in March 2003, Ms. Jones told one of her supervisors that her "arm hurt" and asked to be relieved from vacuuming duty that day. She made this same request "eight or nine times" over the course of her remaining employment and each time her supervisor granted the request and assigned her to different duties. Ms. Jones testified that she would inform a supervisor that "I can't vacuum today, my arm hurts, I'd rather clean today, and they would let me clean."
When Ms. Jones made these requests, she would sometimes attribute the pain to arthritis or even old age. She never told her supervisors that she "could no longer vacuum ever," nor did she request reassignment from her position as a coach cleaner. In fact, Ms. Jones agreed that she "could do what [she] needed to do, other than vacuum." She never told her supervisors that she thought the problems with her arm and shoulder were caused by her work or that her work was making her arm worse. She also stated that she did not know the cause of her pain until she visited Dr. Pyfrom in June 2003.
Ms. Jones did, however, see other doctors about her arm and shoulder pain before consulting Dr. Pyfrom. For example, on January 25, 2003, she left work,[1] instead of working an overtime shift, and went to the emergency room. Throughout her treatment at the ER she "den[ied] any known injury or overuse." Ms. Jones then visited her primary care physician, Dr. Shepard-Lewis, on February 4, 2003, March 5, 2003, and March 26, 2003. The records of these four visits do not contain any reference to Ms. Jones's work as a coach cleaner, and Ms. Jones conceded that she did not discuss her job with her doctor.
The records from three of the visits do contain instructions for Ms. Jones to consult with an orthopaedic specialist. However, she failed to do so until June 2, 2003, when she visited Dr. Pyfrom. After an MRI conducted on or about June 10 revealed a rotator cuff tear, Dr. Pyfrom scheduled Ms. Jones for arthroscopic surgery. Ms. Jones continued working as a coach cleaner until June 24, 2003. Dr. Pyfrom performed the surgery on June 25, 2003, and a second surgery on November 13, 2003. Ms. Jones returned to work for Amtrak under its "Right Care Day One" modified duty program from March 13, 2004, until May 5, 2004. She has since retired on disability.

II. Procedural Background
On October 27, 2004, Ms. Jones filed a civil complaint in the Superior Court alleging that Amtrak had violated the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq., when it "allowed Ms. Jones to continue her duties over a period of six months despite their awareness of her aggravated shoulder discomfort[,]" failed to "evaluate [her] condition to determine whether she could continue to function as a coach cleaner[,]" "failed to refer her to medical treatment," and "failed to *1106 re-assign" her to "jobs suitable to her medical condition."
Amtrak moved for summary judgment on July 8, 2005, and Ms. Jones filed her opposition on July 25, 2005. The trial court granted summary judgment on October 17, 2005, "because the Plaintiff has failed to sufficiently demonstrate that her injury might be causally connected to her work at National Railroad." The court denied Ms. Jones's motion for reconsideration, stating: "Plaintiff has offered insufficient evidence and argument to convince the Court that its October 17, 2005, Order should be vacated."

III. Principles Governing Our Review
"Summary judgment is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law." Blodgett v. University Club, 930 A.2d 210, 217 (D.C.2007) (citations and quotation marks omitted). "In reviewing a trial court order granting a summary judgment motion, we conduct an independent review of the record . . . [and] we must view the record in the light most favorable to the non-moving party[.]" Id. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id.
"We can affirm the judgment on a different ground [than that relied upon by the court below] if the appellant [will] suffer[ ] no procedural unfairness  that is, [if it] had notice of the ground upon which affirmance is proposed, as well as an opportunity to make an appropriate factual and legal presentation with respect thereto." Nat'l Assoc. of Postmasters of the United States v. Hyatt Regency Washington, 894 A.2d 471, 474 (D.C.2006) (citations and quotation marks omitted).
In addition, we review a trial court's denial of a motion for reconsideration for an abuse of discretion. Blodgett, 930 A.2d at 232 (citing Tobin v. John Grotta Co., 886 A.2d 87, 90 (D.C.2005)); see Berkow v. Lucy Webb Hayes Nat'l Training School for Deaconesses and Missionaries Conducting Sibley Memorial Hospital, 841 A.2d 776, 780 (D.C.2004) (citing District No. 1-Pacific Coast District v. Travelers Cas. & Sur. Co., 782 A.2d 269, 278 (D.C.2001) (orders denying Rule 59(e) and Rule 60(b) "motions for reconsideration" are reviewed under abuse of discretion standard)).

IV. Analysis
Under FELA, Amtrak is liable in damages to its employees for any injury "resulting in whole or in part from the negligence of any of [its] officers, agents, or employees." 45 U.S.C. § 51. "That FELA is to be liberally construed . . . does not mean that it is a workers' compensation statute." Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). The Supreme Court has "insisted that FELA does not make the employer the insurer of the safety of [its] employees while they are on duty. The basis of [the employer's] liability is . . . [its] negligence, not the fact that injuries occur." Id. (internal quotation marks and citation omitted); accord, Keranen v. Nat'l Railroad Passenger Corp., 743 A.2d 703, 711 (D.C.2000).
Among other things, Amtrak "has a duty to assign employees to work for which they are reasonably suited . . . [and it] breaches that duty if it negligently assigns an employee to perform work beyond his capacity." Fogg v. Nat'l Railroad *1107 Passenger Corp., 585 A.2d 786, 789 (D.C.1991) (citations and quotation marks omitted). "The railroad is negligent if it knew or should have known that its assignment exposed the employee to an unreasonable risk of harm." Id. In other words, the jury must focus on whether "the Defendant knew or should have known of the Plaintiff's diminished work capacity and in spite of that knowledge . . . unreasonably continued to assign Plaintiff to tasks that Defendant knew or should reasonably have known would aggravate her physical condition." Id. (approving jury instructions). See Nat'l Railroad Passenger Corp. v. Krouse, 627 A.2d 489, 495 n. 10 (D.C.1993) (construing Fogg).
The plaintiff "must put on expert testimony to establish the applicable standard of care if the subject dealt with is so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson." Nat'l Railroad Passenger Corp. v. McDavitt, 804 A.2d 275, 285 (D.C.2002) (citations omitted).
Applying these standards, we conclude that Ms. Jones failed to put forth "sufficient evidence . . . [upon] which the jury could reasonably find," Blodgett, 930 A.2d at 217 (citations omitted), that Amtrak had notice of her diminished work capacity or breached the applicable standard of care.[2] Therefore, summary judgment was proper on two independently sufficient grounds.

A. Notice
The evidence, viewed in the light most favorable to Ms. Jones, establishes that on "eight or nine" occasions she asked her supervisor to relieve her of vacuuming duty because her "arm hurt." Ms. Jones acknowledges that, when she made these requests, she would sometimes attribute the pain to arthritis or old age, but never attributed it to her duties as a coach cleaner. Nonetheless, every time she made such a request, her supervisor took her off vacuuming duty.
Ms. Jones argues that this accommodation was insufficient because Amtrak had a duty to do more than "change[ ] her job duties" given their notice of her "diminished capacity." The evidence does not support these assertions. First, each time Ms. Jones made a request, she specifically limited it to relief from vacuuming. Second, Ms. Jones stated that she never requested a reassignment from her coach cleaner position and none of her other job duties presented a problem for her. In fact, Ms. Jones would specifically ask for "clean[ing]" duties and described her typical request as follows: "I can't vacuum today, my arm hurts, I'd rather clean today, and they would let me clean." Third, Ms. Jones admits that she never told Amtrak that she could no longer vacuum, that her arm pain was caused by her job duties, or that her duties were making the pain worse.
To survive summary judgment on a negligent assignment claim, Ms. Jones must present "sufficient evidence . . . [upon] which the jury could reasonably find," Blodgett, 930 A.2d at 217, among other elements, that Amtrak "knew or should have known that its assignment exposed [her] to an unreasonable risk of harm." Fogg, 585 A.2d at 789. Ms. Jones herself conceded that she was not aware of the relationship between her job duties and her pain until she consulted Dr. Pyfrom in June 2003. Before that point, however, Ms. Jones had ample opportunity to notify *1108 Amtrak of her medical situation and she repeatedly failed to do so. In fact, even after Dr. Pyfrom scheduled her surgery, Ms. Jones continued to work as a coach cleaner without providing Amtrak with additional information. "They knew what day I was leaving for the surgery. But that's it." In sum, Ms. Jones has not produced sufficient evidence that Amtrak "knew or should have known" that her normal job assignments exposed Ms. Jones to an unreasonable risk of harm. Therefore, Amtrak is entitled to judgment as a matter of law.

B. Standard of Care
Ms. Jones also failed to proffer sufficient evidence of an applicable standard of care requiring Amtrak to evaluate her physical capacity or to refer her for medical treatment in circumstances like these. Although Jones argues that Amtrak's internal policies "establish an adequate standard," we have held that unpublished, internal procedures "cannot embody the standard of care under a negligence per se theory." Clark v. District of Columbia, 708 A.2d 632, 636 (D.C.1997). Such internal procedures may be "admissible as bearing on the standard of care," but "expert testimony was still required to establish that the [internal policies] . . . embodied the national standard of care and not a higher, more demanding one." Id. The employer's duty in a situation like this is not so "amenable to common sense" or sufficiently "within the realm of common knowledge and everyday experience" that a jury may resolve the issue of negligence without guidance from an expert. McDavitt, 804 A.2d at 285 (citations and quotation marks omitted).
Ms. Jones's failure to proffer expert testimony establishing the applicable standard of care also entitles Amtrak to judgment as a matter of law.

V. Conclusion
For the foregoing reasons, the judgment of the Superior Court is hereby
Affirmed.
NOTES
[*]  The decision in this case was originally released as a Memorandum Opinion and Judgment on January 30, 2008. Pursuant to D.C.App. R. 36(c), we granted the motion to publish filed by appellee National Railroad Passenger Corporation.
[1]  On this instance, Ms. Jones was scheduled to work a double shift at "S & I," which is the "maintenance facility out in Ivy City," as opposed to her usual assignment at Union Station with her regular supervisors.
[2]  In its order granting summary judgment, the trial court found insufficient evidence of causation. We consider this issue to be a close one and therefore affirm on alternative grounds. See Nat'l Assoc. of Postmasters of the United States, 894 A.2d at 474. These grounds were raised in the trial court and fully debated before us.


600 So.2d 998 (1992)
M & M WHOLESALE FLORIST, INC.
v.
Mary Maude EMMONS and Floyd Earl Emmons, Jr.
1910264.
Supreme Court of Alabama.
June 26, 1992.
*999 Alex W. Zoghby and Mylan R. Engel of Engel, Walsh & Zoghby, Mobile, for appellant.
Daniel G. Blackburn and George R. Irvine III of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for appellees.
INGRAM, Justice.
This appeal arises from an action brought by M & M Wholesale Florist, Inc. ("M & M"), to recover on the account of Bay Minette Flower Shop, Inc.; M & M sought to recover from Mary Maude Emmons and her son Floyd Earl Emmons, Jr., individually. In the early 1950s, Mrs. Emmons opened an account at M & M in order to purchase flowers and florist supplies for her flower shop in Bay Minette. In 1973, the flower shop was incorporated. Mrs. Emmons managed the day-to-day operations of the business until sometime in the 1980s, when her son took over those operations. It is undisputed that the debt on the account at M & M was incurred after the flower shop was incorporated and while Mr. Emmons was running the store.
In order to recover against an individual for the debts of a corporation, the plaintiff must show (1) that the individual agreed to be liable for the debts; or (2) that the facts surrounding the transaction support a disregard for the corporate form. The evidence is undisputed that there was no agreement between the parties that Mrs. Emmons or her son would be personally liable for the debts of the flower shop to M & M. Therefore, M & M is not entitled to recover the amount owing on the flower shop's account from those individuals on that basis.
There is no evidence that would support this Court's disregarding the corporate form and "piercing the corporate veil." This Court has said:
"Our case law holds that the corporate identity will not be disregarded unless the individual sought to be charged with the corporation's liability has used the corporate identity as his alter ego. Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982). Also, this Court has held that a corporation is a `distinct and separate entity from the individuals who compose it as stockholders or who manage it as directors or officers.' Cohen v. Williams, 294 Ala. 417, 420, 318 So.2d 279, 281 (1975). Also, the `corporate form is not lightly disregarded, since limited liability is one of the principal purposes for which the law has created the corporation.' Krivo Industrial Supply Co. v. National Distillers & Chemical *1000 Corp., 483 F.2d 1098, 1102 (5th Cir. 1973)."
Chenault v. Jamison, 578 So.2d 1059, 1061 (Ala.1991).
This Court has stated that the following factors are to be considered when determining whether to disregard the corporate form: "(1) inadequacy of capital; (2) fraudulent purpose in conception or operation of the business; or (3) operation of the corporation as an instrumentality or alter ego." First Health, Inc. v. Blanton, 585 So.2d 1331, 1334 (Ala.1991).
The only evidence in this case to support this Court's disregarding the corporate entity is the evidence that the account was opened while the flower shop was a sole proprietorship and that M & M was never informed of the subsequent incorporation. These facts alonefor indeed there is no other evidence in the record to indicate that either Mrs. Emmons or her son agreed to be personally liable or to support piercing the corporate veilare not sufficient to allow a court to disregard a validly created corporate entity. Therefore, we affirm the summary judgment in favor of Mrs. Emmons and her son.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.


367 F.Supp. 868 (1973)
EASTEX AVIATION, INC.
v.
The SPERRY & HUTCHINSON COMPANY et al.
Civ. A. No. 5601.
United States District Court, E. D. Texas, Tyler Division.
November 20, 1973.
*869 Jack N. Price, Price, Fisher, Hill, Patton & McLemore, Longview, Tex., for plaintiff.
J. Sam Winters, Donald Scott Thomas, Jr., Clark, Thomas, Denius, Winters & Shapiro, Austin, Tex., for defendant Sperry & Hutchinson Company.
John M. Smith, Smead, Roberts, Harbour, Smith, Harris & French, Longview, Tex., for defendants Royce Barnwell and Gregg County Aviation, Inc.

MEMORANDUM OPINION AND ORDER
JUSTICE, District Judge.
In this civil action, the plaintiff attacks and the defendant seeks to protect certain business practices of Sperry and Hutchinson Company (hereinafter "S&H"), marketer of the familiar "S&H Green Stamps" that many merchants hand over to their customers as an incentive to do business with them. In applying for a permanent injunction against S&H, the plaintiff relies, inter alia, upon Sections One and Two of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2.[1] By way of counterclaim, S&H seeks injunctive relief against the plaintiff on the basis of unfair competition.

I. FACTS
The plaintiff, Eastex Aviation, Inc., is a fixed-base operator at Gregg County Airport in Longview, Texas. Among the goods and services it offers to its customers are aviation gasoline, oil, parts, and accessories, flight instructions, charter flights, airplane rentals, and mechanical services. The defendant Gregg County Aviation, Inc., is also a *870 fixed-base operator at Gregg County Airport, doing business in competition with the plaintiff. Defendant Royce Barnwell is the owner and president of Gregg County Aviation, Inc. At all times relevant to this suit, Gregg County Aviation has been a licensee of defendant S&H, and has dispensed S&H Green Stamps to its customers. The plaintiff, finding that the stamps were giving its competitor a marketing advantage, especially with respect to the sale of gasoline and oil products to corporate aircraft, requested licensing from S&H. It was refused on the grounds that S&H policy forbade the licensing of two similar businesses in such close geographical proximity. The plaintiff then entered into an agreement with another trading-stamp company to dispense its stamps, but this venture was unsuccessful, in part because the other company maintained no redemption center for its trading stamps in the Longview area. The plaintiff also attempted to compensate for its inability to offer stamps by giving its customers a cash discount equivalent to or greater than the cash value of the stamps that might be awarded for their purchases. This marketing ploy also failed, however, mostly because the corporate-owned aircraft that constitute the bulk of the fixed-base operator's business are often piloted by personnel who charge gasoline and oil purchases to the corporation and keep the trading stamps for themselves.
The plaintiff then commenced an activity characterized by the defendants as "pirating" or "bootlegging"i. e., the purchase of Green Stamps from retailers who had received them from S&H under a license but who were willing to resell them.[2] S&H became aware of the plaintiff's activities and managed to trace the source of its initial supply of "pirated" stamps by noting the serial numbers thereon. S&H then informed the plaintiff's supplier that it was in violation of its licensing agreement, which prohibited disposition of the stamps in any manner except in accordance with its provisions. On threat of losing its license to deal in Green Stamps, the supplier agreed to stop supplying the plaintiff with the stamps. This sequence of events was then repeated with another licensee who was initially willing to supply the plaintiff; that source also disappeared as a result of S&H's actions.
S&H occupies the predominant market position in the Longview area, insofar as trading stamps are concerned. No other trading stamp company maintains a redemption center in the near vicinity of Longview or offers S&H serious competition in this territory.
The plaintiff now requests that this court issue an injunction forbidding S&H to refuse to license it as a distributor of S&H Green Stamps or, in the alternative, an injunction forbidding S&H to interfere with such of its licensees as may wish to resell their supplies of stamps to the plaintiff. S&H has counterclaimed for an injunction forbidding the plaintiff to purchase Green Stamps from S&H licensees.

S&H LICENSING POLICIES
When S&H agrees to permit a retailer to dispense Green Stamps, their various obligations are set out in a "licensing agreement." S&H's obligations are to provide the retailer with the stamps and other materials and to redeem the books of stamps presented by the retailer's customers for merchandise. S&H sells Green Stamps to these merchants for a price of about $2.65 per 1000 stamps.[3]*871 The merchants ordinarily present their customers with one stamp for every ten-cent purchase, and 1200 stamps fill one book of stamps; thus, the customer must purchase $120.00 worth of goods to fill each book. The completed books of stamps may be redeemed at "redemption centers" for merchandise, at the rate of approximately $3.00 worth of merchandise per book.
In addition to the stamps, S&H is obligated to provide the retailer with empty stamp collecting books, catalogues of redemption merchandise, and advertising materials, including signs indicating that the merchant is a dispenser of Green Stamps. The agreement sometimes allows the parties to indicate a certain geographical area within which S&H agrees not to license any other retailer in a business primarily of the same type as the business of the licensee (except for those already doing business with S&H). The retailer must obligate himself to advertise the fact that he dispenses Green Stamps; to offer Green Stamps to all of his cash customers at the rate of one per ten-cent purchase; and to refrain from procuring, issuing, or disposing of the stamps in any manner except for the manner provided in the agreement. Finally, both parties stipulate that "property in and title to" the stamps (as well as the books and signs) remains in S&H, even while the stamps are possessed by the retailer or a consumer. The same stipulation appears on the materials supplied to consumers.
S&H pursues its policy of limiting the number of merchants whom it will license in certain geographical areas in order to offer to consumers a clear choice between establishments that offer Green Stamps and establishments that do not. In particular, S&H will sometimes refuse to license a certain retailer on the grounds that a nearby retailer in a similar type of business is already licensed to dispense Green Stamps.[4] S&H contends that this policy is necessary to preserve the value of a Green Stamp license to a retailer. It claims that, were it to make the stamps available to any merchant who requested them, all merchants soon would be stamp dispensers, none would gain a competitive advantage by offering the stamps to customers, and eventually all merchants would cease to use them. S&H's restrictions upon resale or retailer-to-retailer transfer of Green Stamps are apparently directed toward the same purpose.

II. ISSUES
The court is presented with three questions:
(1) Whether the plaintiff is entitled under the antitrust laws to an injunction forbidding S&H to refuse to license the plaintiff as a distributor of Green Stamps;
(2) Whether the plaintiff is entitled under the antitrust laws to an injunction forbidding S&H to interfere with such of its licensees as may wish to resell their supplies of stamps to the plaintiff; and
(3) Whether under its counterclaim alleging unfair competition S&H is entitled to an injunction forbidding the plaintiff to purchase Green Stamps from S&H licensees.

S&H'S REFUSAL TO LICENSE PLAINTIFF
The plaintiff contends that by refusing to license it as a distributor of S&H Green Stamps, S&H has committed a violation of Section One of the Sherman Act. As authority for this proposition, the plaintiff relies primarily upon the Supreme Court's decision in United States v. Arnold, Schwinn & Co., 388 U. S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 *872 (1967). That opinion affords the plaintiff no comfort, however, because of the following language appearing in it:
. . . a manufacturer of a product other and equivalent brands of which are readily available on the market may select his customers, and for this purpose he may "franchise" certain dealers to whom, alone, he will sell his goods.
Id. at 376, 87 S.Ct. at 1864.
Nor may the case at bar be compared successfully with cases in which a number of suppliers have conspired or agreed to refuse to deal with a retailer. See, e. g., Klor's v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). Here, there is only the unilateral action of S&H, one of several national purveyors of trading stamps, in refusing to do business with the plaintiff. The naming of Gregg County Aviation, Inc., and its president as co-defendants does not create a conspiracy that qualifies as a Sherman Act violation. Were the court to accept the plaintiff's contention in this respect, it would be, in effect, declaring illegal the market devices of franchising and licensing. The Sherman Act does not provide, nor has it been interpreted to mean, that every manufacturer or purveyor of goods must supply every retailer that wishes to carry its products. United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919).

S&H'S PROHIBITION ON RESALE OF STAMPS
Plaintiff's second contention, that S&H's attempts to prevent or dissuade its licensees from selling or otherwise disposing of their supplies of Green Stamps to the plaintiff constitutes a violation of Section One of the Sherman Act, is principally based upon United States v. Arnold, Schwinn & Co., supra. The defendant claims that any inquiry into the possible antitrust violations to be found in this activity is foreclosed by FTC v. Sperry & Hutchinson Co., 432 F.2d 146 (5th Cir. 1970), modified and remanded, 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972).
In that case, the Federal Trade Commission found that S&H had engaged in the practice of attempting, through litigation and threat of litigation, to prevent the operation of so-called "trading stamp exchanges" and related enterprises. These exchanges, established throughout the country, would exchange books of one variety of stamps for books of another, for a fee. Alternatively, some would pay the collector cash for wholly or partially completed books. Other conduct to which S&H objected related to merchants who did not or could not dispense stamps and who sought to compete by offering their customers price discounts in return for stamps. S&H, apparently deciding that these exchange and discount practices posed a threat to its hegemony in the trading stamp market, succeeded in obtaining injunctions against the exchanges and discounters in many localities.
The FTC ruled that the prosecution of these suits by S&H against exchangers and discounters constituted an "unfair trade practice" and issued a cease-and-desist order. In reversing the FTC order, the Fifth Circuit held: (1) the S&H conduct in question violated neither the letter nor the spirit of the antitrust laws; and (2) the FTC has no authority to prevent conduct not constituting a violation of the spirit or letter of the antitrust acts. Before the Supreme Court, the FTC did not challenge the Fifth Circuit's first rulingthat S&H's conduct did not violate the spirit or letter of the antitrust actsbut appealed only the question of the scope of FTC authority. Accordingly, the Supreme Court, while reversing the Court of Appeals on the authority question, stated that it "intimated no opinion" on the first issue.[5] 405 U.S. at 239, 92 S.Ct. *873 898. The Supreme Court did, however, indicate that a possibly feasible antitrust theory upon which S&H's conduct could be found illegal had been ignored at all stages of the case. 405 U.S. at 247-248, n. 6, 92 S.Ct. 898. That theory, first articulated in the Schwinn case, is now urged before this court; it is that "if the manufacturer parts with dominion over his product or transfers risk of loss to another, he may not reserve control over its destiny or the conditions of its resale". 388 U.S. at 379, 87 S.Ct. at 1865.
The Fifth Circuit's unappealed ruling that S&H's conduct was consistent with the antitrust laws does not preclude this court's inquiry in the case at bar for two reasons. First, the conduct at issue in the FTC case was not identical to the conduct at issue here. The FTC case considered the legality of S&H's seeking injunctions against the actions of exchanges and discounters; here, S&H's self-help attempts to prevent an enterprise from gaining access to Green Stamps are in issue. Moreover, the Supreme Court held in FTC v. Sperry & Hutchinson: "The efforts of some retailers to reissue S&H stamps are not involved in this case. The FTC explicitly left S&H free to seek injunctions against reissuance." 405 U.S. at 237, n. 3, 92 S.Ct. at 902. The practice of seeking injunctions against the reissuance of stamps by retailersreissuance being the situation before this courtwas thus not before the Fifth Circuit.[6] Second, the argument based upon the Schwinn doctrine was not urged before the Fifth Circuit; consequently, this court is entitled to entertain it.
In Schwinn, the Supreme Court declared certain of the marketing practices of a bicycle manufacturer to be violative of the Sherman Act. The manufacturer, Schwinn, designated certain retailers as Schwinn franchisees and sold bicycles only to these franchisees or to one of twenty-two Schwinn distributors. The distributors were allowed to resell the bicycles only to the licensed franchisees, and the retailer-franchisees were prohibited from selling to any other retail establishments. The effect of these restrictions was to prevent the retail sale of Schwinn bicycles by any but Schwinn-approved retailers. Schwinn also consigned some bicycles to its distributors for sale on a commission basis, and it retained title to bicycles marketed in this manner until their sale to the consumer.
The Supreme Court found that the manufacturer's restrictions upon resale of bicycles that had been finally sold to retailers constituted an unreasonable restraint of competition in violation of Section One of the Sherman Act, holding, in effect, that Schwinn could impose any restrictions it wished upon the sale of bicycles consigned to distributors for sale, but that it could not limit the class to whom bicycles could be resold by distributors or retailers who had finally purchased them from Schwinn. The Court drew its operative distinction between *874 "the situation where the manufacturer parts with title, dominion, or risk with respect to the article, and where he completely retains ownership and risk of loss." 388 U.S. at 378-379, 87 S.Ct. at 1865. The court directly held that an attempt to impose restraints upon resale in the former situation is a per se violation of the antitrust laws, "so obviously destructive of competition that [its] mere existence is enough." Id. at 379, 87 S.Ct. at 1865.
The defendant, S&H, raises two serious objections to the applicability of the Schwinn doctrine to the instant case. First, it argues that essential differences between bicycles and trading stamps make the doctrine inapposite to the latter. Second, it urges that the printed warning disseminated with the stamps to both retailers and consumers, stating that S&H retains "property in and title to" the stamps at all times, removes the stamps from the ambit of the rule.
S&H insists that a trading stamp is not a tangible like a bicycle but, rather, a chose in action or intangible. This contention is unexceptionable. Sperry & Hutchinson v. Hertzberg, 69 N.J.Eq. 264, 60 A. 368 (Ct.Chancery N.J.1905). It urges further, however, that a trading stamp, as an intangible or chose in action, is not governed by the Schwinn rule or other legal doctrines applicable to tangibles, citing Bitterman v. Louisville & N. Ry. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171 (1907) and Rance v. Sperry and Hutchinson Co., 410 P.2d 859 (Okl.1965), cert. den., 382 U.S. 945, 86 S.Ct. 395, 15 L.Ed.2d 353 (1965). With deference, this court does not consider those precedents to be controlling, since both were decided prior to the Schwinn decision. Moreover, exhaustive examination of the Schwinn decision reveals no language whatever that suggests that the doctrine there articulated is limited to bicycles or other tangibles.[7]
In a very early reported case dealing with trading stamps, Chancellor Stevenson accurately described their substance, as follows:
The thing of value . . . is not the piece of paper and the ink thereon which constitutes physically the trading stamp, but the absolute property right which the stamp represents and evidences . . . [The] holder [of trading stamps] owns what in a court of equity is practically equivalent to a negotiable warehouse receiptpractically the same thing as a chattel. Sperry & Hutchinson v. Hertzberg, supra at 370, 374.
Cf. Landy v. Nicholas, 221 F.2d 923, 929-931 (5 Cir. 1955).
Since the trading stamps are merely representative of the merchandise that can be redeemed by them, any impediment attached to the free transfer of the stamps is the counterpart of a limitation on the alienability of the merchandise an unreasonable restraint of competition of the type denounced in Schwinn. S&H's election to conduct its enterprise by the convenient system of scrip instead of the cumbersome process of supplying merchandise directly to retailers for transfer to their customers cannot shield it from the operation of the antitrust laws.
*875 S&H also contends that it expressly reserves title to the stamps at all times and that it may, therefore, impose conditions upon the disposition that retailers make of their stamps under the Schwinn exception for items as to which manufacturers retain title. This argument does not survive close examination. At most, S&H can attempt to reserve an interest in the "pieces of paper and the ink thereon" that constitutes the trading stamps. Any more extensive claim is unavailing, given the equitable property rights inherent in the possession of the stamps, whether by the retailer or by his customers.
Yet S&H cannot successfully make even that limited claim by unilateral declaration in the presence of substantive facts to the contrary. The language of Schwinn is disjunctive, requiring application of its rule whenever a manufacturer parts with "dominion, control or risk" with respect to an item furnished to retailers. It would appear that a Green Stamp in the hands of a retailer or customer is subject to his dominion and control. Furthermore, the evidence reveals unequivocally that one in possession of a Green Stamp bears the risk of its loss or destruction; S&H does not replace a stamp that a retailer or customer has lost. Accordingly, S&H's efforts to escape the Schwinn rule by informing retailers and customers that it reserves title in and property to the stamps are nugatory; the possessor of a Green Stamp has all of the incidents of title that are relevant in the present context.
In summary, there appears no reason to exempt S&H from the consequences of the Schwinn decision. S&H cannot legally forbid the retailers who purchase stamps from it to resell them to the plaintiff or to any individual or establishment, for such restraints constitute per se violations of the Sherman Act.
The plaintiff's injuries are imminent and irreparable, and have no adequate remedy at law. Accordingly, the plaintiff is entitled to an injunction prohibiting S&H from interfering with any S&H licensees who wish to resell or otherwise transfer Green Stamps to plaintiff.

COUNTERCLAIM FOR INJUNCTIVE RELIEF
S&H counterclaims that it is entitled to an injunction to prevent the plaintiff from interfering with its contractual relationships with its licensees by persuading them to sell stamps to it in violation of their agreements with S&H. Since S&H cannot legally enter into such agreements with its licensees, it follows that S&H is not entitled to an injunction on that ground. To grant such an injunction would be to allow the "seeking [of] the aid of a court in equity to perpetuate an illegal system." Revlon, Inc. v. Regal Pharmacy, Inc., 29 F.R.D. 169, 177 (E.D.Mich.1961). It may be that the plaintiff's unauthorized use of S&H's trademark sign constitutes a violation of S&H's trademark rights, but that claim has been neither raised nor argued before this court. Accordingly, it is
Ordered that the defendant Sperry and Hutchinson Company be, and it is hereby, permanently enjoined from conditioning its dealings with any retailer upon the retailer's agreement not to resell stamps acquired from S&H to the plaintiff and from terminating or threatening to terminate its relationship with any of its licensees for the reason that the licensee has resold stamps acquired from S&H to the plaintiff. It is further
Ordered that defendant's counterclaim be, and it is hereby, dismissed.
NOTES
[1]  Section One of the Sherman Act makes illegal every "contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations". 15 U.S.C. § 1 (1973). Section Two prescribes a penalty for every person "who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations". 15 U.S.C. § 2 (1973).
[2]  The plaintiff also managed to procure an S&H sign from a licensee who was not using it; he displayed the sign in a way that could fairly have misled customers into believing that the plaintiff was a licensed S&H distributor. Apparently some incidents ensued (with which the court is not concerned) concerning removal and replacement of the sign.
[3]  The figures are taken from the Supreme Court's opinion in FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 236, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972). They may, of course, have changed since the time when that opinion was written.
[4]  S&H may be bound to refuse by reason of an agreement with a prior licensee, or it may refuse as a matter of its own policy objectives even though not bound to do so by any prior contracts. S&H has not seriously alleged that its refusal to license the plaintiff in this case was dictated by any agreement with an existing licensee; the agreement between defendant Gregg County Aviation, Inc. and S&H contained no provision requiring S&H not to deal with the plaintiff.
[5]  On remand to the FTC, the S&H case was settled by consent decree, with one Commissioner dissenting from the settlement. In the Matter of the Sperry & Hutchinson Co., a Corporation, FTC Docket No. 8671, Decision and Order Relating to Count III of the Complaint (September 18, 1973). The agreement required S&H to offer to redeem its stamps for cash if presented in minimum amounts of 300. It further required S&H to cease and desist from acting in concert with any other trading stamp company to prevent the operation of trading stamp exchanges and to apply to vacate every injunction against the operation of trading stamp exchanges issued in the last twelve years.
[6]  There does appear in the Fifth Circuit opinion some language indicating that it considered retailers who attempted to acquire stamps for reissuance in the same category as other so-called "traffickers". See 432 F. 2d at 149. This is puzzling in light of the Supreme Court's assertion that reissuance was not in question in the case. One possible explanation is that there are two types of "reissuers": those retailers who acquire stamps from customers by offering cash discounts for them and who then reissue them to other customers, and those retailers who supply unlicensed retailers with stamps that they have acquired from S&H pursuant to a licensing agreement. In any event, this court does not consider that the Fifth Circuit's ruling in the FTC case requires it to rule against the plaintiff here, for all the reasons mentioned in the text.
[7]  S&H's suggestion that "intangibles" are exempt from the operation of the antitrust laws will have a hard time slipping by the available precedents. See, e. g., Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963) (securities market subject to antitrust regulation); United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944) (insurance business subject to antitrust regulation); Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 131 U.S.App.D.C. 226, 404 F.2d 804 (1968), cert. denied, 393 U.S. 1093, 89 S.Ct. 872, 21 L. Ed.2d 784 (1969) (service industries subject to antitrust regulation); accord, United States v. Pennsylvania Refuse Removal Service, 242 F.Supp. 794 (E.D.Pa.1965), aff'd, 357 F.2d 806 (3d Cir.) cert. denied, 384 U.S. 961, 86 S.Ct. 1588, 16 L.Ed.2d 674 (1966); see also United States v. American Medical Ass'n, 28 F.Supp. 752 (D.D.C.), rev'd on other grounds, 72 App.D.C. 12, 110 F.2d 703, cert. denied, 308 U.S. 599, 60 S.Ct. 131, 84 L.Ed. 502 (1939) (professional occupations subject to antitrust regulation).


696 S.E.2d 408 (2010)
ESTATE OF William J. SHANNON et al.
v.
AHMED et al.
No. A10A0917.
Court of Appeals of Georgia.
June 10, 2010.
Terrence A. Shannon, for Appellants.
Brennan & Wasden, Joseph P. Brennan, B. Nicole Smith, Hunter, Maclean, Exley & Dunn, Kirby G. Mason, Hall, Booth, Smith & Slover, Michael G. Frick, Oliver Maner, Christopher L. Ray, Savannah, for Appellees.
ANDREWS, Presiding Judge.
After the death of William J. Shannon, his son and administrator brought this action for fraud, battery, wrongful death and other claims against the doctors and others involved in Shannon's care. On appeal, the *409 Shannons argue that the trial court erred when it granted defendants' motion to dismiss for failure to attach an expert affidavit as required by OCGA § 9-11-9.1. The Shannons also argue that the trial court erred when it denied their motion to add a medical malpractice claim and mooted their motion to strike defendants' answers. We reverse as to the Shannons' claims for intentional tort and remand for further proceedings.
A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12(b)(6). On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor.
(Citations and punctuation omitted.) Liu v. Boyd, 294 Ga.App. 224, 668 S.E.2d 843 (2008).
So viewed, the record shows that on July 8, 2004, the decedent's administrator and heirs filed a verified complaint in Chatham County Superior Court against Dr. Masood Ahmed and Dr. George Negrea, these doctors' practice groups, and Candler General Hospital and its nurses. The complaint set out claims for fraud, battery, conspiracy, and wrongful death, and prayed for compensatory and punitive damages as well as fees. In April 2006, plaintiffs voluntarily dismissed this initial suit. On October 10, 2006, plaintiffs refiled substantially similar claims against the same defendants as well as Hospice Savannah and one of its employees, and named Cynthia Balkstra as one of the Candler General nurses involved in Shannon's care.
The new complaint alleged that Shannon was placed under the care of Drs. Ahmed and Negrea at Candler General in early July 2002, and that while tied to his bed in a vest and hand restraints, Shannon twice aspirated, biting off a portion of his tongue and becoming comatose as a result of the second aspiration. The new complaint also alleged that (a) on learning of Shannon's condition, Dr. Ahmed decided to withhold further medical assistance; (b) at a meeting between July 8 and July 12, he informed the family that Shannon's cancer had taken over his body without saying that his comatose condition was actually the result of aspiration; (c) Dr. Negrea and Nurse Balkstra "reinforced" Dr. Ahmed's misrepresentations by "omitt[ing] the material fact that [Shannon] had aspirated while under Ahmed's care" and "remained silent about the false diagnosis that [Shannon's] cancer had spread"; (d) as a result of these fraudulent acts and omissions, Shannon was transferred to hospice care, where he was denied food and water, given morphine and other drugs, and suffered renal failure; (e) Dr. Ahmed furthered his scheme of concealing the cause of Shannon's condition by representing that Shannon's pancreatic cancer had metastasized to his lungs, though it had not, and that his renal failure was also the result of metastasis, though it was not; and (f) on learning that Shannon's coma was actually the result of aspiration, the family insisted that he be returned to Candler General, where he died on September 13.
In late 2006, Hospice Savannah and Dr. Negrea moved to dismiss the new complaint on the ground that plaintiffs had failed to file the expert affidavit required by OCGA § 9-11-9.1. Dr. Ahmed and Candler General had raised the matter in their answers.[1] Defendants also moved for partial summary judgment on the merits (not including their § 9-11-9.1 motion).
Plaintiffs moved to strike defendants' answers for spoliation and concealment of evidence, arguing that Dr. Ahmed had altered Shannon's medical records to delete his misrepresentation concerning metastatic cancer and had refused to represent to the hospice that Shannon was terminal, and that Dr. Ahmed and the hospice had destroyed or failed to release relevant documents until 2007, over three years after they had been requested. Plaintiffs also moved to add a medical malpractice claim to the new complaint.
The trial court granted defendants' motion to dismiss the claims against all three defendants *410 for failure to file a § 9-11-9.1 affidavit, reasoning that because all of plaintiffs' claims concerned Shannon's diagnosis, care, and treatment, they required testimony by a medical expert. The trial court also mooted plaintiffs' motion to strike, denied plaintiffs' motion to add a medical malpractice claim, and mooted defendants' summary judgment motions.
1. Plaintiffs first argue that the trial court erred when it granted the motions to dismiss their claims in intentional tort. We agree.
OCGA § 9-11-9.1(a) provides:
In any action for damages alleging professional malpractice against ... [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional ... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.
(Emphasis supplied.) The Supreme Court of Georgia has explained that when the General Assembly passed OCGA § 9-11-9.1, it "sought to reduce the number of frivolous professional malpractice actions by placing a procedural hurdle before those plaintiffs who sought damages for professional negligence." (Emphasis in original.) Labovitz v. Hopkinson, 271 Ga. 330, 336, 519 S.E.2d 672 (1999). By contrast, "those claims grounded on a professional's intentional acts which allegedly resulted in injury to one with whom the professional had a professional relationship are not required to be accompanied by an expert affidavit." (Emphasis in original.) Id. at 336-337, 519 S.E.2d 672.
As we have often held, then, a motion to dismiss a complaint raising matters of professional malpractice may be granted only to the extent that it alleges merely negligent rather than fraudulent or otherwise intentional acts, and is thus defective for lack of a § 9-11-9.1 affidavit. See Murrah v. Fender, 282 Ga.App. 634, 636(1), 639 S.E.2d 595 (2006) (affirming trial court's denial of motion to dismiss complaint for lack of a § 9-11-9.1 affidavit when the complaint alleged medical fraud); Brown v. Tift Health Care, 279 Ga. App. 164, 166, 630 S.E.2d 788 (2006) ("a § 9-11-9.1 affidavit is required when the issue is a defendant's compliance with a professional standard of conduct, but when professional judgment and skill are not involved, a § 9-11-9.1 affidavit is not required"); Bowling v. Foster, 254 Ga.App. 374, 380-381(1)(b), 562 S.E.2d 776 (2002) (affirming directed verdict for lack of a § 9-11-9.1 affidavit as to that portion of a medical malpractice action concerning a failure to reveal results of surgery, but reversing verdict concerning defendants' affirmative misrepresentations); Newton v. Porter, 206 Ga.App. 19, 424 S.E.2d 323 (1992) (reversing grant of motion to dismiss complaint for medical battery because a plaintiff alleging a battery claim need not attach a § 9-11-9.1 affidavit).
To make out a case for fraud, a plaintiff must plead five essential elements:
(1) That the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; [and] (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.
Walker v. Walker, 293 Ga.App. 872, 874(2)(a), 668 S.E.2d 330 (2008). These allegations must be pled with particularity. Id., citing OCGA § 9-11-9(b). A claim for medical battery also arises when a patient's consent to a procedure is obtained by "fraudulent misrepresentations of material facts" in obtaining that consent. OCGA § 31-9-6(d); Lloyd v. Kramer, 233 Ga.App. 372, 375, 503 S.E.2d 632 (1998). Finally, "[a] conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means." (Citation and punctuation omitted.) U.S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297(1), 443 S.E.2d 833 (1994). "The gist of [a conspiracy] action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage." (Citation and punctuation omitted.) Savannah College of Art, etc. v. School *411 of Visual Arts, etc., 219 Ga.App. 296, 297, 464 S.E.2d 895 (1995).
Read in plaintiffs' favor, the new complaint adequately pleads fraud, battery, conspiracy, and wrongful death against all three defendants. Specifically, the complaint asserts that Dr. Ahmed knowingly and falsely represented to the family that Shannon's comatose condition was the result of metastasized cancer rather than aspiration, and that his intention in doing so was to deceive the family as to its actual cause. The complaint also asserts that Dr. Negrea and Nurse Balkstra were complicit in Dr. Ahmed's misrepresentations and assisted him in the deception of the family; that the family relied on the defendants' misrepresentations when it agreed to admit Shannon to hospice care; and that as a proximate result of being admitted to hospice, Shannon was denied food and water and suffered renal failure.
Even if the complaint is not as specific as it might be concerning Dr. Negrea's and Nurse Balkstra's participation in the fraud, we cannot say with certainty at this stage in the proceedings that the Shannons will be unable to prove any set of facts in support of their claim that would entitle them to relief. The complaint's specificity concerning the few days of time between Shannon's aspiration and his admission to hospice care would have provided all three defendants with "sufficient notice to enable [them] to prepare a responsive pleading." Hayes v. Hallmark Apts., 232 Ga. 307, 309(1), 207 S.E.2d 197 (1974). Moreover, "[t]he proper remedy for seeking more particularity is by motion for a more definite statement at the pleading stage or by the rules of discovery thereafter," and not by the grant of a motion to dismiss. Cochran v. McCollum, 233 Ga. 104, 105, 210 S.E.2d 13 (1974).
Because plaintiffs were not required to support their adequately pled claims for fraud, battery, and conspiracy with a § 9-11-9.1 affidavit, the trial court erred when it granted the motion to dismiss them. Murrah, 282 Ga.App. at 636(1), 639 S.E.2d 595 (affirming denial of motion to dismiss medical fraud claim for failure to supply a § 9-11-9.1 affidavit); Lloyd, 233 Ga.App. at 375, 503 S.E.2d 632 (reversing grant of summary judgment on medical fraud and battery claims); Cochran, 233 Ga. at 105, 210 S.E.2d 13 (reversing dismissal of fraud claim when plaintiffs were not given an opportunity to plead with greater particularity before dismissal).
2. It follows from the same authorities cited in Division 1, however, that because any negligence claims against the defendants would have required the support of a § 9-11-9.1 affidavit, the trial court did not err when it denied plaintiffs' motion to amend their complaint to add claims in professional negligence against any of the defendants.
3. As a result of its order dismissing the case against each of the defendants, the trial court mooted both plaintiffs' motion to strike defendants' answers as well as defendants' motions for partial summary judgment. Having reversed a portion of the trial court's order in Division 1, and also noting that the transcript of the July 1, 2008 hearing on the motion to strike is not included in the record before us, we remand the case for further proceedings on these pending motions.
Judgment affirmed in part and reversed in part, and case remanded with direction.
SMITH, P.J., and ADAMS, J., concur.
NOTES
[1]  Plaintiffs do not raise the question whether a defendant's failure to make a separate motion to dismiss for lack of a § 9-11-9.1 affidavit waives the matter. See Chandler v. Opensided MRI of Atlanta, 299 Ga.App. 145, 682 S.E.2d 165 (2009). We therefore express no opinion on the subject.


594 F.2d 903
Gene L. WELCH, Petitioner-Appellant,v.DISTRICT COURT OF VERMONT UNIT NO. 5, WASHINGTON COUNTY,Respondent-Appellee.
No. 653, Docket 79-2001.
United States Court of Appeals,Second Circuit.
Argued Jan. 19, 1979.Decided March 15, 1979.

William A. Nelson, Appellate Defender, Montpelier, Vt., for petitioner-appellant.
Richard A. Unger, Asst. Atty. Gen., Montpelier, Vt.  (M. Jerome Diamond, Atty. Gen., State of Vermont, Montpelier, Vt., of counsel), for respondent-appellee.
Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.
PER CURIAM:

1
Gene L. Welch appeals from a judgment of the United States District Court for the District of Vermont, James S. Holden, Chief Judge, dismissing his petition for a writ of habeas corpus.  We affirm.

2
Welch was convicted on June 13, 1977, after a jury trial in the Vermont state district court of driving while under the influence of intoxicating liquor on October 2, 1976.  At the trial, pursuant to statutory authority, 23 V.S.A. § 1205(a),1 the prosecution introduced into evidence over Welch's objection his refusal at the time of his arrest to take a breath test which would have provided scientific evidence of the amount of alcohol in his blood.  The trial judge, at the State's request, instructed the jury that the evidence of Welch's refusal could not be considered to decide the ultimate issue of guilt or innocence, but only as an explanation of why no scientific evidence of intoxication was introduced by the State.  Welch appealed his conviction to the Vermont Supreme Court, which affirmed the judgment on September 11, 1978.  Welch then petitioned the United States District Court for a writ of habeas corpus under 28 U.S.C. § 2254, and he now appeals from the dismissal of that petition.2

3
The sole issue on appeal is whether the introduction of evidence of Welch's refusal to take a breath test violated his constitutional privilege against self-incrimination under the Fifth and Fourteenth Amendments.  Appellant concedes, as he must, that he had no constitutional right to refuse to take the breath test, since his breath constitutes "real or physical" rather than "testimonial or communicative" evidence and compulsion of physical evidence from the body of the defendant does not violate the privilege against self-incrimination.  Schmerber v. California, 384 U.S. 757, 760-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).  Welch contends, however, that his refusal to furnish such physical proof, as distinguished from the physical evidence itself, constitutes a testimonial or communicative act protected by the Constitution from disclosure.

4
This issue was raised in Schmerber but the Court did not resolve it because defense counsel in that case had failed to object at trial to the admission of the refusal evidence or the prosecutor's comments on that evidence.  384 U.S. at 765 n.9, 86 S.Ct. 1826, 1833 n.9.  The Court did note that "general Fifth Amendment principles, rather than the particular holding of Griffin (V. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)), would be applicable in these circumstances."  Id., citing Miranda v. Arizona, 384 U.S. 436, 468, n.37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).  The Supreme Court also held that the State "may have to forgo the advantage of any Testimonial products of administering the test," such as incriminating statements or confessions made by the accused out of fear of the process of extracting physical evidence from his body or out of religious opposition to the test.  384 U.S. at 765 n.9, 86 S.Ct. at 1833 n.9 (emphasis in original).

5
There is no claim in this case that Welch refused out of fear of any "pain, danger, or severity" associated with the breath test, Id., or that he opposed the test on religious grounds.  Nor did he "confess" when faced with the threat of a compelled test.  Although the evidence introduced constituted more than a mere "No" on the part of Welch, and included not only vague and contradictory answers but also a request for the presence of a third party witness if he should submit to the test, he did not give a reason for his refusal or actually make an incriminating statement to the effect that he was drunk.3  His only claim, therefore, is that the very act of refusal was itself testimonial in nature.

6
We have already rejected a similar claim in the area of handwriting exemplars, holding in United States v. Wolfish, 525 F.2d 457, 461 (2d Cir. 1975) (per curiam), Cert. denied, 423 U.S. 1059, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976), that it was not error to admit evidence of the defendant's refusal to cooperate in giving a handwriting exemplar, including his efforts to disguise his handwriting in the exemplar.  Appellant seeks to distinguish Wolfish in two respects.  First, the defendant's effort to disguise his handwriting in Wolfish represented an attempt to provide false physical evidence.  Thus the refusal to cooperate in Wolfish included not only a refusal to follow directions, as is the case here, but also an effort to falsify evidence.  There is no reason to believe that our decision in Wolfish would have been different had only the former aspect of the refusal to cooperate been present.

7
Second, Welch contends that Wolfish can be distinguished on the ground that there the defendant had no statutory right to refuse to provide an exemplar, whereas here there is a right under Vermont law to refuse.  Cf. Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir. 1969), Cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970) ("where an underlying right to refuse . . .  a blood test is present, it would be improper to draw adverse inferences from failure of the accused to respond to a request for a blood test because the accused would thereby be penalized for exercising his rights to refuse the test").  Whatever may be the merit of such a distinction where the State grants by statute an unqualified right to refuse to submit to a breath test (or other physical evidence extraction procedure), it has no weight where, as here, the statutory right to refuse is expressly conditioned on the State's correlative right to introduce evidence of that refusal at trial.  There is no claim of unfair surprise here; Welch was well aware at the time of his refusal that he had no unqualified right to refuse.  And there is nothing unconstitutional in the manner in which Vermont has chosen to condition its statutory right to refuse.  The statute does not compel a driver refusing to take the test to surrender any constitutional right.  It is merely an explicit recognition of the practical existence of situations that might develop where a driver simply will not cooperate even though required to by state law, such as resort by the police to force in an effort to obtain the physical evidence to which they are entitled.

8
Since we find no merit in appellant's contention that the introduction of evidence of his refusal to take a breath test violated his Fifth and Fourteenth Amendment right against self-incrimination, we affirm the denial of the petition for a writ of habeas corpus.

1
 23 V.S.A. § 1202 at the time of Welch's arrest provided in relevant part:
Any person who operates, attempts to operate or is in actual physical control of any vehicle on a highway in this state is deemed to have given his consent to the taking of a sample of his breath for the purpose of determining the alcoholic (or drug) content of his blood.

23
 V.S.A. § 1205(a) provides in relevant part:
If the person refuses to submit to a chemical test, it shall not be given but such refusal may be introduced as evidence in a criminal proceeding.
Section 1205(a) also provides for license suspension for one year for a refusal to take a breath test if the police officer who requested the breath test had reasonable grounds to believe that the driver was operating a vehicle while under the influence of alcohol.

2
 Welch was sentenced to six to nine months' imprisonment, all suspended but sixty days, with probation.  Execution of that sentence has been stayed pending the decision of this court

3
 Although the defendant's negative response does contain certain communicative qualities by definition, that alone does not render the refusal "sufficiently testimonial for purposes of the (Fifth Amendment) privilege."  Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976)


79 F.3d 1144
Jonesv.Southwestern Bell Telephone Co.
NO. 95-10528
United States Court of Appeals,Fifth Circuit.
Feb 08, 1996
Appeal From:  N.D.Tex., No. 3:93-CV-2354

1
AFFIRMED.


         [Cite as State v. Davis, 2012-Ohio-2642.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO

STATE OF OHIO,                                       :   APPEAL NO. C-110620
                                                         TRIAL NO. 11CRB-16060
        Plaintiff-Appellee                           :

  vs.                                                :        O P I N I O N.

JUSTIN DAVIS,                                        :

    Defendant-Appellant.                             :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: June 15, 2012

John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Melanie J.
Reising, Assistant City Prosecutor, for Plaintiff-Appellee,

Robert R. Hastings, Jr., for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

       {¶1}    Following a bench trial, defendant-appellant Justin Davis was convicted

of possessing a drug abuse instrument in violation of R.C. 2925.12(A). Because his

conviction was not supported by sufficient evidence, we must reverse.

                                Factual Background

       {¶2}    At trial, Cincinnati Police Officer Jason Rice testified that on June 1,

2011, he and his partner were investigating a drug complaint near the corner of

Montgomery Road and Woodmont Avenue in Cincinnati, Ohio. They observed a

vehicle pull alongside another vehicle in a parking lot, and shortly thereafter, the

vehicles left together. The officers found the two vehicles on nearby Arrow Avenue,

parked side-by-side in a manner consistent with a drug transaction.

       {¶3}    As Rice and his partner approached the vehicles, one vehicle fled but the

other remained. The officers ordered the occupants in the remaining vehicle to put

their hands on the dashboard and asked whether they had anything on them. Seated in

the front passenger seat, Davis replied that he had a needle. Rice instructed Davis to

exit from the vehicle and advised him of his Miranda rights. Davis then told the

officers that the needle was in his pocket, and from there Rice recovered a hypodermic

needle and syringe. Davis admitted to Rice that he occasionally came to Ohio to buy

heroin, and that he had intended to buy heroin from an individual in the vehicle that

had fled. Police later stopped that vehicle and found heroin inside. No heroin was

recovered from Davis, and no heroin was found in the hypodermic needle or syringe.

       {¶4}    Based on this evidence, the trial court found Davis guilty of possessing a

drug abuse instrument in violation of R.C. 2925.12(A), fined him $200 plus court costs,

and suspended his driver’s license for six months. This appeal followed.

                                           2
                     OHIO FIRST DISTRICT COURT OF APPEALS

                                        Analysis

       {¶5}    In his single assignment of error, Davis argues that his conviction was

both not supported by sufficient evidence and contrary to the manifest weight of the

evidence. In light of the particular wording of R.C. 2925.12(A), his assertion has merit.

       {¶6}    The Due Process Clause of the Fourteenth Amendment to the United

States Constitution “protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In

deciding whether the evidence adduced at trial is legally sufficient to support a finding

of guilt, “[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court must

reverse any conviction not supported by sufficient evidence. E.g., State v. Fyffe, 67

Ohio App.3d 608, 615, 588 N.E.2d 137 (10th Dist.1990).

       {¶7}    Davis was convicted of possessing a drug abuse instrument in violation

of R.C. 2925.12(A), which provides

               No person shall knowingly make, obtain, possess, or use

               any instrument, article, or thing the customary and

               primary purpose of which is for the administration or

               use of a dangerous drug, other than marihuana, when

               the instrument involved is a hypodermic or syringe,

               whether or not of crude or extemporized manufacture or

               assembly, and the instrument, article, or thing involved

                                            3
                      OHIO FIRST DISTRICT COURT OF APPEALS

               has been used by the offender to unlawfully administer

               or use a dangerous drug, other than marihuana, or to

               prepare a dangerous drug, other than marihuana, for

               unlawful administration or use.

       {¶8}     Thus, for criminal liability to attach under this statute, the instrument

in question must have been used by the offender either (1) to unlawfully administer or

use a dangerous drug or (2) to prepare a dangerous drug for unlawful administration or

use. Although the trial court determined that Davis “had a needle to prepare it for [a]

dangerous drug for unlawful administration or use,” that is not a crime under this

particular statute. Given the statute’s unambiguous language, an offender must have

actually used the instrument, not merely have possessed the instrument with the intent

to use it at a later time. Compare R.C. 2925.14 (defining “drug paraphernalia” as “any

equipment, product, or material of any kind that is used by the offender, intended by

the offender for use, or designed for use, in * * * preparing * * * or otherwise

introducing into the human body, a controlled substance” and prohibiting its

possession [emphasis added]).

       {¶9}     The state directs our attention to Wadsworth v. Eutin, 9th Dist. No.

09CA0074-M, 2010-Ohio-4654. In Eutin, the Ninth Appellate District held that the

prosecution had presented sufficient evidence, albeit circumstantial, that the defendant

had used syringes to administer or prepare a dangerous drug for use where police had

found the syringes with a burnt spoon containing a white, powdery residue in the

defendant’s purse. Id. at ¶ 11.

       {¶10}    In the case at bar, however, although the state presented evidence that

Davis had previously bought heroin in Ohio and had intended to buy heroin

immediately before his arrest, we cannot say that these facts alone are sufficient to

                                            4
                        OHIO FIRST DISTRICT COURT OF APPEALS

show that Davis had actually used the hypodermic needle and syringe in his pocket

either to unlawfully administer or use a dangerous drug, or to prepare a dangerous drug

for unlawful administration or use. Because the state failed to present any evidence to

support this essential element of possessing a drug abuse instrument—as the legislature

has defined the offense under R.C. 2925.12(A)—we must hold that Davis’s conviction

was not supported by sufficient evidence. Consequently, his further assertion that his

conviction was contrary to the manifest weight of the evidence is rendered moot. See

State v. Hartley, 194 Ohio App.3d 486, 2011-Ohio-2530, 957 N.E.2d 44, ¶ 48 (1st

Dist.).

          {¶11}   The single assignment of error is sustained. The judgment of conviction

is reversed, and Davis is discharged from further prosecution in this case.

                                            Judgment reversed and appellant discharged.

S UNDERMANN , P.J., H ENDON and F ISCHER , JJ.

Please note:
          The court has recorded its own entry this date.

                                              5