Toomey v. District of Columbia, 7662.
| Decision Date | 13 February 1974 |
| Docket Number | No. 7662.,7662. |
| Parties | Ellen F. TOOMEY, Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
| Court | D.C. Court of Appeals |
Edward P. Barrett, Washington, D.C., for appellant.
James N. Dulcan, Asst. Corp. Counsel, Washington, D.C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington D.C., were on the brief, for appellee.
Before REILLY, Chief Judge, and FICKLING and GALLAGHER, Associate Judges.
After an accident causing personal injury, appellant by certified mail (return receipt requested), gave notice to the District of Columbia (District), pursuant to D.C. Code 1973, § 12-309, that she intended to sue for damages she had allegedly sustained as a result of the alleged negligent maintenance and/or design of a sewer grating. This notice stated, however, that the accident had occurred north of a certain railroad bridge in this city when it fact it had occurred south of that bridge.
D.C. Code 1973, § 12-309 provides:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Commissioner of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.
When appellant later brought this action the District pleaded as an affirmative defense, the deficiency of the notice and later moved to dismiss the complaint on this ground. Appellant asserted that she had, within the six month period required by the statute, sent a letter, correctly indicating the location of the accident, by regular mail to the investigator assigned the case by the Corporation Counsel. The District denied receipt of this letter and at the hearing on a motion to dismiss the investigator for the District testified to this effect. The trial court found as a fact that the second letter had not been received and dismissed the cause. This appeal followed.
Appellant contends that there was insufficient evidence upon which the trial court could make a finding that the District of Columbia had not received a second notice giving the correct location of the accident as required by D.C. Code 1973, § 12-3091 "[U]pon proof of the mailing of a letter, properly addressed and stamped, a presumption is raised that it was received by the addressee." Columbia Finance...
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