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11/29/93 AUBREY POWELL v. DISTRICT COLUMBIA

November 29, 1993

AUBREY POWELL, A MINOR, BY AND THROUGH HIS MOTHER, SHIRLEY RICKS, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. John A. Suda, Trial Judge)

Before Rogers, Chief Judge, and Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Aubrey Powell, a minor, appeals from the Superior Court's dismissal of his complaint for failure to state a claim upon which relief can be granted. Through his mother and next friend, Shirley Ricks, Aubrey filed a three-count complaint against the District of Columbia, alleging that injuries which he sustained in a traffic accident were proximately caused by the District's common law negligence and by its negligence in failing to comply with certain federal and local statutes. The complaint also alleged that the District denied Aubrey liberty and property interests protected by the Fifth Amendment. The essence of all three counts is that by placing Aubrey in a homeless shelter at a busy intersection, six miles from his elementary school, and by failing to provide him with transportation to and from school, the District was legally responsible for injuries which Aubrey suffered when he was struck by an automobile while he was crossing the street on his way home from school. We affirm the judgment below.

I.

THE FACTS

The complaint alleges that prior to September 1990, Aubrey and his younger brother Jacques had been living with their mother in an apartment in the Anacostia section of the District. Both brothers attended the Friendship School, a public school located across the street from their residence. In March 1990, Ms. Ricks lost her job as a nursing assistant. Six months later, Ms. Ricks had exhausted her savings and had fallen several months behind in her rent.

On September 17, 1990, according to the complaint, the family was evicted from the Anacostia apartment. After sleeping for two days in the hallway outside their former unit, Ms. Ricks and her sons obtained emergency shelter through the District's Department of Human Services (DHS). The agency placed the family in the Budget Motor Inn, which is located at 1615 New York Avenue, N.E., six miles from their former home in Anacostia. Aubrey, then aged thirteen, and Jacques, then aged nine, continued to attend the Friendship School. *fn1

The complaint alleges that Aubrey and Jacques had to cross Bladensburg Road at New York Avenue each day in order to take public transportation to and from Friendship School. It is alleged that the intersection which they were required to cross was a heavily travelled and very dangerous one, and that the District had frequently been apprised of the danger and had promised to provide a school bus. On December 4, 1990, according to Aubrey's counsel, the boys were returning home from school when Jacques suddenly darted out into Bladensburg Road, about fifteen feet from the intersection. Aubrey raced into the street in order to save his brother, and was struck by an oncoming automobile. *fn2 Aubrey sustained contusions, lacerations, and a fractured left femur. His injuries required surgery, and he was placed in a body cast. No claim is made that the driver, who is not a party to this suit, failed to exercise due care.

Ms. Ricks filed a timely complaint on Aubrey's behalf against the District in the Superior Court. The District filed a motion to dismiss the complaint or, in the alternative, for summary judgment. The trial court dismissed the action on the District's motion, without written elaboration and without any oral statement of reasons. This appeal followed.

II.

LEGAL DISCUSSION

A complaint may be dismissed for failure to state a claim only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359, 364 (D.C. 1984); Super. Ct. Civ. R. 12 (b)(6). In reviewing the dismissal, we accept as true the facts alleged in the complaint and construe them in the light most favorable to the plaintiff. Wanzer v. District of Columbia, 580 A.2d 127, 129 (D.C. 1990); Laufer, 482 A.2d at 364. The legal sufficiency of the complaint is a question of law, and our review of the trial court's decision is therefore de novo. Vaughn v. United States, 579 A.2d 170, 172 (D.C. 1990).

A fair reading of the complaint discloses that relief is sought under three separate, although somewhat interconnected theories, namely (1) common law negligence, (2) negligence based on alleged statutory violations, and (3) denial of federally protected ...


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