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BALLARD v. POLLY

January 17, 1975

Ruth E. BALLARD, Plaintiff,
v.
Ulysses G. POLLY et al., Defendants


Youngdahl, Senior District Judge.


The opinion of the court was delivered by: YOUNGDAHL

YOUNGDAHL, Senior District Judge.

 Plaintiff, individually and as administratrix of the estate of her deceased son, brought this survival and wrongful death action to recover damages for the death of her son against Ulysses G. Polly, A. F. Jorss Iron Works, Inc., and the District of Columbia. The action was commenced pursuant to Sections 12-101 and 16-2701, D.C.Code, 1973 Ed. Jurisdiction of the District Court was properly invoked under Section 11-501(4), D.C.Code, 1973 Ed.

 It is undisputed that at the time of the accident on June 1, 1972, the defendant Ulysses G. Polly, in the course of his employment, was driving a trailer truck owned by defendant A. F. Jorss Iron Works, Inc. in a westerly direction on Constitution Avenue toward the intersection of Constitution Avenue and 12th Place, N.E., in the District of Columbia. It is also undisputed that on the date of the accident the deceased, an infant 5 years and 10 months of age, was enrolled as a kindergarten student at Maury Elementary School, Tennessee and Constitution Avenues, N.E., in the District of Columbia. Maury is a part of the District of Columbia Public School System, an agency of the defendant District of Columbia. The deceased arrived at school shortly before noon, and proceeded to the school cafeteria for lunch. After lunch, at approximately 12:30 p.m., he was released from the lunchroom to the school playground until class commenced at approximately 1 p.m. A chain link fence surrounded that portion of the playground set aside for children of the age of the deceased (hereinafter the small playground). A portion of the fence along the south side of this small playground had come loose from its supporting poles and was on the ground. It had been down for at least several months prior to June 1, 1972. The small playground was being supervised by a book clerk who, with the principal's knowledge and permission, was substituting for the regular supervisor. Shortly after 12:30 p.m., the deceased child apparently wandered off the playground to the vicinity of Constitution Avenue and 12th Place. While attempting to recross Constitution Avenue in a northerly direction, he ran into the left rear wheel of the truck driven by defendant Polly, receiving injuries from which he died shortly thereafter. Plaintiff claimed that the accident was caused by the negligence of the District of Columbia in not repairing the fence or providing additional supervision of the playground and by the negligence of defendants Polly and Jorss in failing to take adequate steps to avoid the accident.

 After the trial had been in progress a brief time, the two defendants, Ulysses G. Polly and A. F. Jorss Iron Works, Inc., settled with the plaintiff for the sum of $3,000.00. The jury had no knowledge of this. With the consent of the remaining defendant District of Columbia, it was agreed that the action should be dismissed against said two defendants with prejudice, and that if plaintiff recovered a verdict against the District of Columbia, the $3,000.00 should be credited against such verdict.

 Further, it was agreed that the Court should charge the jury that said two defendants were no longer in the case, that the jury should not speculate as to why they were no longer in the case, and that the fact that said two defendants were no longer in the case was no indication as to how the jury should decide the case as to the remaining defendant.

 Pursuant to such agreement the Court charged the jury and the case was dismissed with prejudice with respect to defendants Ulysses G. Polly and A. F. Jorss Iron Works, Inc.

 The trial continued against the defendant District of Columbia alone, and a verdict was returned for the plaintiff against said defendant in the sum of $10,000.00 in the wrongful death action and $6,600.00 in the survival action.

 No objection was made to the Court's charge to the jury nor were any additional instructions requested by the attorney for defendant District of Columbia. However, the defendant District of Columbia, at the conclusion of plaintiff's case and again at the close of all the evidence made motions for a directed verdict, both of which motions were denied.

 Defendant District of Columbia now moves for a judgment notwithstanding the verdict.

 I

 It is well established that the District of Columbia has the responsibility to maintain safe playgrounds. Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 120, 337 F.2d 152, 156 (1964) Defendant incorrectly argues that the doctrine of sovereign immunity protects the District from suits involving playground supervision. Repair of fences and the assignment of supervisors are clearly ministerial rather than discretionary acts and do not warrant the protection of sovereign immunity. As the Court stated in Elgin :

 
"'Ministerial' connotes the execution of policy as distinct from its formulation. . . . [We] are not persuaded however, that the function of repairing broken guard rails imposes upon the District determinations of such delicacy and difficulty that its ability to furnish public education will be ponderably impaired by liability for neglect in failing to make such repairs." Elgin v. District of Columbia, supra 337 F.2d at 154

 Similarly, the formation of policy to provide a safe playground through adequate supervision comes from the Board of Education and is certainly not promulgated by principals of individual schools. By assigning adequate supervisory personnel, just as by maintaining the fences, the principal is merely executing the policy of the Board. Therefore, if the principal executes the policy in a ...


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