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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

Kelly v. Municipality of Anchorage (3/2/2012) sp-6653

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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ETHEL B. KELLY,                                ) 

                                               )       Supreme Court No. S-13858 

                Appellant,                     ) 

                                               )       Superior Court No.      3AN-08-04271 CI 

        v.	                                    ) 

                                               )       O P I N I O N 


                                               )       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. 


                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. 



                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. 

                                                  -2-                                            6653

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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. 


       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 


              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). 

                                            -3-                                       6653

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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 


        9       636 P.2d 47, 52 (Alaska 1981). 

        10      Id. 

                                                  -4-                                               6653 

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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 . . . ." 

                                                -5-	                                          6653

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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 


                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 

                                                  -6-	                                            6653

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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. 


                                                    -7-                                              6653

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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. 


              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. 


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. 

                                             -8-                                         6653 

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