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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kelly v. Municipality of Anchorage (3/2/2012) sp-6653
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ETHEL B. KELLY, )
) Supreme Court No. S-13858
Appellant, )
) Superior Court No. 3AN-08-04271 CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
) No. 6653 - March 2, 2012
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter Michalski, Judge.
Appearances: Charles W. Coe, Law Office of Charles W.
Coe, Anchorage, for Appellant. Pamela D. Weiss, Assistant
Municipal Attorney, and Dennis A. Wheeler, Municipal
Attorney, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
I. INTRODUCTION
Appellant Ethel Kelly sued the Municipality of Anchorage (MOA) for
negligence after she stepped into an uncovered valve box assembly pipe in a crosswalk
and sustained injuries. MOA concedes that the valve box cover was missing, but denies
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it was responsible for this condition. MOA moved for summary judgment in the superior
court on grounds that MOA had no duty to Kelly since it neither caused nor had notice
of the dangerous condition; Kelly filed an opposition and cross-motion for summary
judgment. The superior court granted summary judgment to MOA. Kelly appeals.
Because material issues of fact exist concerning whether MOA caused the defect and
whether it had constructive notice of it, we vacate the superior court's grant of summary
judgment and remand for further proceedings.
II. FACTS AND PROCEEDINGS
1
Ethel Kelly stepped into an uncovered valve box assembly pipe (hereafter,
"valve box") in the western crosswalk of the intersection at 3rd Avenue and F Street in
Anchorage on May 22, 2006, suffering "[i]njuries to her knee, ankle, leg, hip, and back."
Kelly had been walking with Terri Wakefield from the Anchorage Hilton, their
workplace, to the employee parking garage across the street.
Wakefield reported Kelly's fall to Hilton security, and a security guard
photographed the intersection containing the open valve box. Security brought Kelly
into the Hilton in a wheelchair.
Kelly filed suit against MOA alleging that MOA was negligent in leaving
the valve box uncovered. After answering and denying these allegations, MOA filed a
motion for summary judgment in which it sought to dismiss all causes of action in
Kelly's complaint. Kelly opposed the motion and filed a cross-motion for summary
1 Valve box assembly pipes sit atop valves above the water main; they allow
Anchorage Water and Wastewater Utility (AWWU) employees to control valves
connected to the water distribution system. The lid cap, also referred to as a valve box
cover, is approximately one inch tall, sits atop the valve box assembly pipe and is visible
from the street. Gravity keeps these lids on. The pipe and lid are approximately five
inches in diameter. There are approximately 30,000 valve boxes throughout Anchorage.
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judgment, in which she sought a ruling that MOA was negligent as a matter of law.
After briefing was complete and after oral argument, the superior court granted summary
judgment to MOA and dismissed Kelly's claims with prejudice. The superior court
entered final judgment on April 27, 2010, and awarded MOA attorney's fees and costs.
Kelly appeals.
III. DISCUSSION
A. Standard Of Review
We review a grant of summary judgment de novo, "affirming if the record
presents no genuine issue of material fact and if the movant is entitled to judgment as a
matter of law."2 We must determine "whether any genuine issue of material fact exists,"3
and in so doing all factual inferences must be drawn in favor of - and the facts must be
viewed in the light most favorable to - the party against whom summary judgment was
granted.4
The moving party has the initial burden of showing by admissible evidence
that there is an absence of genuine factual disputes and that it is entitled to judgment as
a matter of law.5 Once the moving party satisfies its burden, the non-moving party must
produce "admissible evidence reasonably tending to dispute or contradict the movant's
2 Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134, 138
(Alaska 2008) (citing Matanuska Elec. Ass'n v. Chugach Elec. Ass'n , 152 P.3d 460, 465
(Alaska 2007)).
3 Nielson v. Benton , 903 P.2d 1049, 1051-52 (Alaska 1995) (citing Wright v.
State, 824 P.2d 718, 720 (Alaska 1992)).
4 Rockstad v. Erikson , 113 P.3d 1215, 1219 (Alaska 2005) (citing Ellis v.
City of Valdez, 686 P.2d 700, 702 (Alaska 1984)).
5 Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005) (internal
citations omitted).
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evidence."6 The non-moving party may not "rest upon mere allegations, but must set
forth specific facts showing that there is a genuine issue of material fact."7
B. It Was Error To Grant Summary Judgment To MOA Because
Genuine Issues Of Material Fact Exist.
In order to succeed on a negligence claim, a plaintiff must prove duty,
breach of duty, causation, and harm.8 Here, Kelly claims MOA was negligent because
it caused the dangerous condition (the uncovered valve box) or had notice of the
condition's existence and failed to rectify it, causing her to fall and become injured.
In Johnson v. State of Alaska , we stated that whether the State had notice
of a dangerous condition is relevant when the dangerous condition is not caused by the
State; in such a case the plaintiff must establish that the State had actual or constructive
notice of the dangerous condition.9 But where a public entity itself causes a dangerous
condition, proof that it was on notice is not necessary.10 To prevail in her negligence
action against MOA, Kelly therefore must show that MOA either caused the valve box
lid to be left uncovered or had either actual or constructive notice of the condition. The
existence of a genuine issue of material fact on any of these fronts - causation, actual
notice, or constructive notice - is sufficient to preclude the award of summary judgment
to MOA.
6 Id. at 339.
7 Id.
8 Lyons v. Midnight Sun Transp. Servs., Inc. , 928 P.2d 1202, 1204 (Alaska
1996).
9 636 P.2d 47, 52 (Alaska 1981).
10 Id.
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On appeal, Kelly argues that a genuine issue of material fact exists as to
whether (1) MOA caused the lid to be removed; (2) MOA had actual notice of the open
hole because the condition was reported to MOA after an earlier fall by another Hilton
employee, Charisse Lyons; and (3) MOA had constructive notice of the uncovered valve
box because it had been uncovered for a period preceding Kelly's fall and MOA "should
have known about it due to the length of time it was left off." MOA argues that the
testimony of Kelly's witnesses was vague, and that upon deposition these witnesses were
found to lack personal knowledge of the events and conditions to which they testified.
Courts do not weigh evidence or witness credibility on summary
judgment. 11 With regard to affidavit testimony, we have stated that "[i]f the parties
choose to submit affidavits, they must be based upon personal knowledge, set forth facts
that would be admissible evidence at trial and affirmatively show that the affiant is
competent to testify to the matters stated."12 We find that Kelly's witnesses produced
sufficient uncontradicted testimony to raise genuine issues of material fact.
1. A genuine issue of material fact exists concerning whether MOA
caused the valve box cover to be left open.
Kelly argues that MOA workers were responsible for the valve box being
left uncovered. Another Hilton employee, Charisse Lyons, had stepped into the same
uncovered valve box approximately a week before Kelly did.13 Lyons stated that she had
11 Meyer v. State , Dep't of Revenue, Child Support Enforcement Div. ex rel.
N.G.T. , 994 P.2d 365, 367 (Alaska 1999) (citing Gudenau & Co. v. Sweeney Ins., Inc.,
736 P.2d 763, 765 (Alaska 1987)).
12 Broderick v. King's Way Assembly of God Church , 808 P.2d 1211, 1215
(Alaska 1991).
13 MOA does not dispute that Lyons "stepped into the very same hole
approximately a week prior to Ms. Kelly's incident . . . ."
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seen "municipal workers" in "that area." She admitted at deposition, however, that she
had no reason to believe these had been MOA workers beyond the fact that they wore
"yellow vests," and she clarified that she had not seen them at the precise intersection
where she and Kelly fell.
Lyons's affidavit, in light of her deposition testimony, does not appear to
be based on personal knowledge and therefore does not establish a genuine issue of
material fact regarding whether MOA caused the valve box to become uncovered.
James Griffin, an employee in the Hilton security department, stated that
"prior to Ms. Kelly's fall, [he] also observed city workers working on the crosswalk at
Third and F [streets]. The valve box cover would be removed and left off at various
times during the day." At deposition, Griffin maintained that he saw workers in that
intersection and that they were using a jackhammer. He again stated that "when the
workers left, the cover was still open." Griffin also stated that he personally recalled
fresh paint in the crosswalk where Kelly fell, and surmised that the intersection had been
painted not long before the accident. Via interrogatory, MOA admitted that its
employees had painted the crosswalk on the north side of the intersection, which is,
however, not the intersection where Kelly fell. Griffin's testimony concerning city
workers and fresh paint in the intersection is based on personal observation and suffices
to raise a genuine issue of material fact concerning causation. We therefore reverse the
grant of summary judgment with respect to the issue of causation and remand for further
proceedings.
2. A genuine issue of material fact exists concerning whether MOA
had constructive notice of the open valve box.
We stated in Johnson v. State of Alaska that among the factors "to be
considered in a negligence action against the [S]tate for a dangerous highway condition
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not caused by it" is "the length of time the dangerous condition existed."14 We also
stated that constructive notice is a permissible inference where the dangerous condition
exists "for such a period of time prior to the accident , and is of such an obvious nature,
that the defendant public entity, in the exercise of due care, should have discovered the
condition and its dangerous character."15 Notice may also be inferred if evidence exists
of prior accidents.16
Johnson involved a railway crossing that proved dangerous to cyclists;
prior to the accident at issue in that case, a series of similar accidents had occurred over
a period of four years.17 In the instant case, Lyons testified that she fell in the same
uncovered valve box, and Kelly alleges that the valve box remained uncovered for at
least a week before her fall. Griffin also testified that he had seen the valve box
uncovered prior to Kelly's fall.
MOA argues that one week is an insufficient period of time to support a
claim of constructive notice under Johnson . MOA argues that the cases Johnson relied
on regarding constructive notice all involve conditions that existed for longer than a
week, sometimes years.18 But while the dangerous condition in this case may have
14 636 P.2d 47, 52 n.5 (Alaska 1981).
15 Id. at 52 (emphasis added).
16 Id . ("Notice is also a permissible inference that the jury may draw where
there is evidence of prior accidents caused by the asserted dangerous condition.").
17 Id. at 50; see also id. at 53 ("Eleven witnesses testified to falling sometime
prior to Johnson's accident while riding a bicycle across the same spur crossing.").
18 See City of Atlanta v. Williams, 166 S.E.2d 896, 897 (Ga. App. 1969)
(raised manhole condition in place for approximately one year; notice inferred under
Code Sec. 69-303); Galbreath v. City of Logansport, 279 N.E.2d 578, 580-81 (Ind. App.
(continued...)
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existed for a shorter period of time - and is known to have caused only one prior
accident19 - the length of time the dangerous condition existed, and the number and
nature of prior accidents necessary to impute constructive notice to MOA, are questions
properly directed to the fact finder on remand. We therefore conclude that Kelly has
raised a genuine issue of material fact concerning whether MOA had constructive notice
of the open valve box.
IV. CONCLUSION
Because genuine issues of material fact exist as to whether MOA caused
the dangerous condition that injured Kelly, and as to whether it had constructive notice
of this condition,20 we REVERSE the superior court's grant of summary judgment and
REMAND for further proceedings consistent with this opinion.
18(...continued)
1972) (photographs and testimony showed sidewalk defect existed for a "long period of
time"; referred back to jury to determine if this constituted notice); Peters v. State , 252
N.W.2d 799, 804 (Mich. 1977) (roadway flooding observed approximately three times
per year over six years); James v. Metro. Gov't of Nashville & Davidson Cnty. , 404
S.W.2d 249, 252 (Tenn. App. 1966) (evidence that defective condition of meter box
existed "for a considerable length of time" is a jury question).
19 Again, MOA does not dispute that Lyons "stepped into the very same hole
approximately a week prior to Ms. Kelly's incident . . . ."
20 Granting summary judgment to either party is therefore inappropriate. For
this reason, the superior court did not err in denying Kelly's cross-motion for summary
judgment. We also note that since we conclude there are genuine issues of material fact
regarding causation and constructive notice, we do not need to decide whether a factual
question exists on the issue of actual notice.
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