NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, Judge.

INTRODUCTION

Stevie Bonifas fell into a manhole owned by the City of Lexington located on property owned by Dawson County School District No. 1 in Lexington, Nebraska, as a result of which she sustained injuries. Stevie's parents, Nathan Bonifas and Leticia Bonifas, brought suit against the city and school district, and the district court entered summary judgment in favor of the city and school district. We conclude that the evidence is undisputed that neither the city nor the school district created a dangerous condition, knew of a dangerous condition, or by the exercise of reasonable care should have known of a dangerous condition involving the manhole. Accordingly, we affirm the grant of summary judgment.

BACKGROUND

On May 8, 2006, Stevie, a fifth grade student, was participating in physical education class at an elementary school. The class was outside on a field owned by the school district, and as Stevie was waiting in line to participate in a softball throw activity, she stepped on a manhole cover and fell partially into the manhole.

Nathan and Leticia brought a premises liability action against the city and school district, alleging that the city knew or had reason to know the manhole cover presented a dangerous situation and was negligent in failing to properly install, maintain, inspect, and/or otherwise care for the manhole cover, and that the school district knew or had reason to know that the practice field that it owned, operated, and maintained had a manhole cover on it that was dangerous and where children could be injured. The complaint alleged that Stevie suffered injuries which caused Nathan and Leticia to incur medical bills and expenses and caused Leticia to incur lost wages. The complaint also sought damages for Stevie's past and future pain and suffering and impairment of her future earning capacity.

Discovery was conducted which included the depositions of Stevie; Leticia; Jerry Bergstrom, Stevie's elementary school principal; Bo Berry, the buildings and grounds supervisor for Lexington Public Schools; Glenn Hawks, the community services director for the city; and Jeannie Homan, an elementary school teacher. In addition, interrogatories were propounded upon, and answered by, Nathan and Leticia. The city and school district each moved for summary judgment, and the foregoing items were received as exhibits at the hearings held on the motions. In addition, affidavits from Stevie, Hawks, and a student were received in evidence.

In her deposition taken on May 20, 2009, Stevie testified that she was participating in physical education class on the day of the accident and was waiting in line to throw a softball. She indicated that the manhole was located near a backstop and "home plate" on an open field. When her turn approached, she stepped forward onto the manhole cover and fell in. She did not see the manhole cover before stepping on it, although she had probably thrown the softball more than once that day. When asked why she did not see the manhole cover, Stevie testified that it was covered up with dirt and there was grass around and on it, which was also how she described the ground in the area around the manhole. Stevie indicated that she glanced at the ground where the manhole cover was located before stepping on it, but she did not notice the manhole cover. Stevie also testified that since she did not realize that there was a manhole "lid" where she fell, she did not see anything wrong with it before stepping on it. Stevie stated that she stepped on the manhole cover and that all she remembers is falling in and then catching herself. Other students helped pull Stevie out, but Stevie could not remember who the students were, and she was not aware of anyone else who saw her fall that day. Stevie first stated that she did not know if the manhole cover fell in, flipped, or moved in some way when she stepped on it. Stevie later said that she believed it flipped or the "top of it spun upwards." Stevie did not remember if she had one or both feet on the manhole cover. Stevie was not sure how far she fell in the manhole, although she said that she caught herself with her underarms and that her feet were muddy.

In response to several questions relating to the accident, Stevie stated in her deposition that she did not know what happened or did not remember. In an affidavit dated April 29, 2010, Stevie stated that she did remember what happened on the day of the accident, but because she was nervous during her deposition, she could not remember all of the details at that time. Stevie stated that she does not remember whether she took a step or was standing still, but she does remember standing on the manhole cover, and that it tipped open and she fell into the manhole up to her armpits. Stevie indicated that it happened really fast and that she does not remember exactly how it happened, but that she remembers being stuck and having to be pulled out by other students. After reviewing the class list, she was able to identify three students who either saw her fall or helped her out of the manhole.

One of the students identified by Stevie stated in his affidavit that he was looking in Stevie's direction and saw her fall in the manhole. He did not know if the manhole cover was on the manhole when Stevie fell in. Homan was assisting with supervising the physical education class on the day of Stevie's accident. Homan did not see Stevie's fall, but some of the students advised her that Stevie had fallen down and was hurt. When Homan got to the fall area, Stevie was already up and Homan walked with her to the school building. Stevie told Homan that she slipped into the manhole. Homan observed that the lid to the manhole was ajar, that it had flipped up, and that the lid was tipped up from or off the rim about 4 to 6 inches in the air. Homan was not previously aware that there was a manhole in that location. Homan later told Bergstrom about the incident, and Bergstrom prepared an accident report that Homan signed.

Bergstrom has been the principal at the elementary school in Lexington for 21 years. Bergstrom was told about Stevie's fall on the day of its occurrence. Bergstrom investigated the matter by talking to Stevie and Homan and by personally inspecting the manhole. On the day of the accident, Bergstrom inspected the manhole alone and then with Berry, the buildings and grounds supervisor for the school district. When Bergstrom inspected the manhole, he tried to force the cover open with his hands, and although he was not able to open it, it "did not seem tight, didn't fit secure," and "jiggled" when he pushed on the sides of the cover. The following day, Bergstrom inspected the manhole again with Leticia. Bergstrom did not recall attempting to move the manhole on this occasion. Bergstrom was not aware that the manhole cover on the school field existed prior to Stevie's incident.

Bergstrom prepared an accident report, in which he reported that Stevie was standing on the manhole cover and it flipped up and that she fell into the hole scraping her leg and hitting her knee on the cover. Bergstrom testified that this information came from Stevie. The report also stated that "[t]he cover over the hole is not a standard manhole cover. It does not fit properly. It can collapse unexpectedly." Bergstrom testified that this information came from Berry. The report also states that "[o]ur supervisors were not aware of the condition of the cover." Finally, the report contains a section for "recommendations . . . for preventing other accidents of this type" to which Bergstrom wrote "[s]eal the manhole and cover with soil," which information Bergstrom testified also came from Berry.

Berry has worked for the school district for 9 years and is the buildings and grounds supervisor. Berry physically examined the manhole in question with Bergstrom after the incident. Berry indicated that they initially looked at the manhole cover but did not try to move the cover. Berry then stood on the cover and it did not open or dislodge, although he indicated that it did "jiggle" or "rattle" or "rock back and forth" with his body movement. After standing on it, Berry then opened or tilted the cover by lifting it with his hands. According to Berry, the style, weight, and thickness of this cover is different than those located on streets. After examining the cover, Berry contacted Hawks for any repairs, since the manhole and cover were city property. Berry indicated that his staff mowed around the area where the manhole was located but that Berry was not aware of any incident where the cover had been knocked loose during mowing. Berry testified that he had never seen the cover other than in place on top of the manhole, except for when he physically removed it during the inspection following the accident, and that he had not ever received any reports that the cover was off.

Hawks has worked for the city for 60 years and was the community services director at the time of this incident. The manhole in question is located on a city right-of-way. Hawks was notified the day following the incident that someone fell into the manhole at the practice field. Hawks and an employee inspected the manhole the next day and did not find a problem with the cover as it was in place in the ring. Hawks observed his employee stand on the cover, and Hawks indicated that the cover was "firm into the collar" and did not rock or move. Hawks indicated that the city has a similar manhole cover in the middle of the football field at the junior high which is buried under the sod. Hawks testified that it would take some type of external force, such as being caught by a piece of equipment or somebody intentionally removing the cover, for the cover not to be flush into the ring. In a separate affidavit, Hawks stated that the manhole and cover in question were standard equipment used on similar manholes in nonvehicular traffic locations throughout the city. Manhole covers of the type involved in the incident have been in continual use throughout the city for many years prior to the incident and are still in regular use. Hawks stated that the manhole and cover at issue were examined by city employees under his supervision after the accident and were found to be in good condition and were not defective in any way. Hawks also stated that the city had not received any complaints about the manhole or the cover at the school field prior to the accident and that the manhole had not been opened by the city on the day in question. Hawks indicated that the city had no knowledge or notice that the manhole cover was not securely in place at all times on May 8, 2006, prior to the accident.

Leticia testified that on the day of the accident, Stevie called Leticia from school and asked her to bring Stevie clothes because she had fallen in a hole and her clothes were wet. Later that evening, Nathan and Leticia went to the school field and observed that the hole was an actual manhole and that the cover was on it. The following day, Leticia went to Stevie's school and spoke with Bergstrom. Leticia testified that Bergstrom did not think that there was a manhole on the field. Leticia and Bergstrom then went to the field, and after locating the manhole, Bergstrom stepped on it and it did not move. Leticia testified that the "maintenance man" then showed up a few minutes later and stepped on the cover and that it flipped open. Leticia testified that the following day she saw Bergstrom at a track meet at which time he told her that it was an "illegal" manhole cover and that it was too thin. Leticia testified that she was not aware of anyone from the school district who knew about the presence of the manhole prior to Stevie's accident and that she was not aware anyone had complained to the city or the city had been told of any problems or complaints with the manhole prior to Stevie's accident.

In answers to interrogatories, Nathan and Leticia stated that they were not aware of any code or standard that was applicable to the manhole and/or cover that was not complied with.

On May 24, 2010, the district court entered its written judgment granting the motions for summary judgment in favor of the city and school district, and dismissing the complaint. The district court made detailed findings and a thorough analysis of the law pertaining to premises liability, as well as the law concerning summary judgments.

Nathan and Leticia (hereinafter the appellants) filed a timely appeal.

ASSIGNMENTS OF ERROR

The appellants argue, combined and restated, that the district court erred in granting summary judgment in favor of the city and school district.

The appellants also assert that the district court erred in finding that the accident report is not a business record and is therefore excluded from admission under the hearsay rules. At the summary judgment hearing, both the city and school district objected to the admission of the accident report attached to Bergstrom's deposition on the grounds of hearsay and lack of foundation. The appellants argued that the report was admissible under Neb. Rev. Stat. § 27-803(5) (Reissue 2008), the business records exception. Because the report was based upon statements of others made to Bergstrom, and the statements had insufficient guarantees of trustworthiness, were speculative, and lacked foundation, the district court sustained the objections to the admission of the accident report. In their brief on appeal, the appellants state that the issue of the district court's ruling on the admission of the accident report "is not critical to the [appellants'] case . . . and as a result is not addressed at this time." An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). We do not consider this assignment of error further.

STANDARD OF REVIEW

An appellate court will affirm a lower court's granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010); Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).

ANALYSIS

In their complaint, the appellants allege that Stevie's fall and injuries were caused by her falling into a manhole which was owned by the city but located on property owned by the school district. The appellants alleged that the city knew or had reason to know that the manhole cover presented a dangerous situation to Stevie or other children and that the city was negligent in failing to properly install, maintain, inspect, and/or otherwise care for the manhole cover. The appellants further allege that the school district knew or had reason to know that the field utilized by the elementary school students had a manhole cover that was dangerous to Stevie or other children and that those children could be injured by utilizing the practice field owned, operated, and maintained by the school district.

Under Nebraska law, a possessor of land is subject to liability for injury caused to a lawful visitor by a condition on the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized the condition involved an unreasonable risk of harm to the lawful visitor; (3) the defendant should have expected that a lawful visitor such as the plaintiff either (a) would not discover or realize the danger or (b) would fail to protect himself or herself against the danger; (4) the defendant failed to use reasonable care to protect the lawful visitor against the danger; and (5) the condition was a proximate cause of damage to the plaintiff. Hofferber v. City of Hastings, 275 Neb. 503, 747 N.W.2d 389 (2008); Range v. Abbott Sports Complex, 269 Neb. 281, 691 N.W.2d 525 (2005); Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003).

A plaintiff must show either actual or constructive notice on the part of the defendant of the condition which caused the plaintiff to fall. Cloonan v. Food-4-Less, 247 Neb. 677, 529 N.W.2d 759 (1995). In order for a defendant to have constructive notice of a condition, the condition must be visible and apparent and it must exist for a sufficient length of time prior to an accident to permit a defendant or the defendant's employees to discover and remedy it. Id.

Summary Judgment for City.

The evidence submitted by the city shows that the manhole and cover at issue were standard equipment used on similar manholes in nonvehicular traffic locations throughout the city and had been in continual use throughout the city for many years prior to Stevie's accident. The city had not received any complaints about the manhole or the cover at the school field prior to the accident, and the manhole had not been opened by the city on the day of the accident. The city had no knowledge or notice that the manhole cover was not securely in place at all times on May 8, 2006, prior to the accident. Further, an examination of the manhole and cover after the accident revealed that they were in good condition and not defective in any way. The record also reveals that there was no evidence of the actual condition of the manhole cover at any time before the accident, let alone that it was a dangerous condition as alleged by the appellants.

Based upon the foregoing, we conclude that the city adduced sufficient evidence to establish that it did not create a condition, know of a condition, or by the exercise of reasonable care could not have discovered a condition with regard to the manhole and cover that was dangerous and that caused the injury to Stevie.

A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial. State ex rel. Wagner v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010). After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Id.

The appellants failed to produce evidence showing the existence of a material issue of fact as it relates to the city's creation or knowledge of any condition regarding the manhole or cover that caused Stevie's fall. No evidence was adduced by the appellants to show any defect with the manhole or cover or any problem with the manhole or cover prior to the accident that the city either knew about or should have known about. The appellants did not adduce evidence as to how the accident happened. Stevie, the only witness to the fall, was not sure what happened—only that the cover somehow flipped and she fell partially into the manhole. There was no evidence presented to show what caused the cover to "flip." Negligence is never presumed, and the mere happening of an accident does not prove negligence as a matter of law. Stones v. Sears, Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540 (1997).

The appellants point to evidence concerning matters that transpired after Stevie's accident: namely, Leticia's testimony that the "maintenance man" also caused the manhole cover to flip open upon stepping upon it and Bergstrom's statement to Leticia that the manhole cover was "illegal." However, this evidence does not establish that there was a defect with the cover which was created by the city, known by the city, or in the exercise of reasonable care, should have been known to the city, prior to Stevie's accident, such that the city was negligent in failing to protect Stevie. This evidence is insufficient to create a genuine issue of material fact. Because the record shows no genuine issue of material fact to support the appellants' allegation that the manhole and cover were a dangerous condition, we need not address the remaining elements of the premises liability cause of action. Viewing the evidence in the light most favorable to the appellants and giving them the benefit of all reasonable inferences deducible from the evidence, we conclude that the district court did not err in finding that the city was entitled to judgment as a matter of law.

Summary Judgment for School District.

The appellants allege that the school district knew or had reason to know that the practice field that it owned, operated, and maintained had a manhole cover on it that was dangerous to Stevie and other children and where children could be injured. The same law concerning premises liability stated above applies to our analysis here, and we do not repeat that proposition here. The appellants do not allege that the school district created any condition regarding the manhole cover; rather, they focus on the element of knowledge.

The evidence adduced by the school district shows that no one from the school district knew or should have known that the manhole and cover were dangerous and could cause injury. Bergstrom and Homan were not aware of the existence of the manhole and cover prior to Stevie's accident. It was unclear whether Berry was aware of the existence of the manhole and cover before the accident; however, he clearly testified that he had never seen or received reports that the cover was off of the manhole or that the cover was knocked loose or run over during mowing of the field. The school district therefore produced enough evidence to demonstrate that it was entitled to judgment if the evidence was uncontroverted at trial. Again, the appellants failed to adduce any evidence to rebut the lack of knowledge of any dangerous condition on the part of the school district in order to show the existence of a genuine issue of material fact. The fact that a manhole and cover were located on the school field is not sufficient to establish negligence on the part of the school district. See McIntosh v. Omaha Public Schools, 254 Neb. 641, 578 N.W.2d 431 (1998) (no evidence to prove that condition of practice field was proximate cause of injury). The district court did not err in granting summary judgment in favor of the school district.

CONCLUSION

The evidence was undisputed that neither the city nor the school district created a dangerous condition, had knowledge of a dangerous condition, or by the exercise of reasonable care, should have known of a dangerous condition relating to the manhole and cover prior to Stevie's injury. The district court properly granted summary judgment in favor of the city and school district.

AFFIRMED.