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 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
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 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.
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."
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.
In order to succeed on a negligence claim, a plaintiff must prove duty, breach of duty, causation, and harm.
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.
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.
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.
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.
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 not caused by it" is "the length of time the
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.
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.
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,