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BUTLER v. DISTRICT OF COLUMBIA

No. 22221.

417 F.2d 1150 (1969)

Ronald T. BUTLER, an Infant, by Booker T. Butler, his Father and Next Friend, and Booker T. Butler, Individually, Appellants v. DISTRICT OF COLUMBIA, Appellee.

United States Court of Appeals District of Columbia Circuit.

Decided June 20, 1969.

Petition for Rehearing Denied August 15, 1969.

Attorney(s) appearing for the Case

Mr. I. Irwin Bolotin, Washington, D. C., with whom Messrs. Philip J. Lesser and Gerald Herz, Washington, D. C., were on the brief, for appellants.

Mr. David P. Sutton, Asst. Corporation Counsel for the District of Columbia, with whom Mr. Charles T. Duncan, Corporation Counsel, Mr. Hubert B. Pair, Principal Asst. Corporation Counsel, and Mr. Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellee.

Before PRETTYMAN, Senior Circuit Judge, and BURGER and LEVENTHAL, Circuit Judges.

PRETTYMAN, Senior Circuit Judge:

Our appellants were plaintiffs in a civil action in the District Court against the District of Columbia. At the close of their case the trial judge directed a verdict for the defendant-appellee. This verdict was on alternative grounds. Relying on the test established in Elgin1 the judge held that the evidence adduced showed that the alleged negligent act was "a clearly discretionary matter" that...

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