316 F.2d 366 (D.C. Cir. 1963), 16726, Sass v. District of Columbia

Docket Nº:16726.
Citation:316 F.2d 366
Party Name:Leonard SASS et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
Case Date:February 14, 1963
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 366

316 F.2d 366 (D.C. Cir. 1963)

Leonard SASS et al., Appellants,



No. 16726.

United States Court of Appeals, District of Columbia Circuit.

February 14, 1963

Argued Nov. 21, 1962.

Mr. Walter J. Murphy, Jr., Washington, D.C., with whom Messrs. H. Mason Welch, J. Harry Welch, J. Joseph Barse and James A. Welch, Washington, D.C., were on the brief, for appellants. Mr. Arthur V. Butler, Washington, D.C., also entered an appearance for appellants.

Mr. Richard W. Barton, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee.

Before WASHINGTON, BURGER and WRIGHT, Circuit Judges.

WASHINGTON, Circuit Judge.

An action was brought in the District Court by Alberta R. Fallone, Administratrix of the estate of Albert C. Fallone, her son, to recover damages for his alleged wrongful death. The deceased was killed in a collision between the automobile he was driving and a truck driven by Charles Giles and owned by Leonard and Andrew Sass, all of whom were named as defendants. The accident occurred

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on April 4, 1961, at the intersection of 18th and Monroe Streets, N.E., in the District of Columbia.

A motion by defendants (nor appellants) to bring in the District of Columbia as a third-party defendant was granted. However, the District, in response to the third-party complaint served upon it, moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b), for failure to state a claim upon which relief could be given, and its motion was granted. The order granting the motion to dismiss contained a certification pursuant to 28 U.S.C. § 1292(b), and this court allowed the requested interlocutory appeal.

While the District Court did not specifically state the question of law found to be controlling, it is clear from the record that the question presented is whether the District of Columbia can successfully invoke the doctrine of sovereign immunity as a defense to the complaint filed by the third-party plaintiffs below.

The third-party complaint states that 'on April 4, 1961, at approximately 6:50 a.m. the traffic light control signals at the intersection of 18th and Monroe Streets, N.E., Washington, D.C., were not functioning properly and had not been functioning properly prior to the date of the accident and for some time after the accident.' It adds:

'If the plaintiff was injured and damaged as alleged in the complaint, such injury and damage was caused by...

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