Alaska SC vacates summary judgment in favor of city

Jessica M. Karmasek Mar. 5, 2012, 11:31am


JUNEAU, Alaska (Legal Newsline) - The Alaska Supreme Court last week remanded a woman's personal injury case against the municipality of Anchorage back to superior court.

In May 2006, plaintiff Ethel Kelly was walking with co-worker Terri Wakefield from the Anchorage Hilton, their workplace, to the employee parking garage across the street when Kelly stepped into an uncovered valve box assembly pipe.

Valve box assembly pipes sit atop valves above the water main.

In this case, they allow Anchorage Water and Wastewater Utility employees to control valves connected to the water distribution system.

Kelly, who suffered injuries to her knee, ankle, leg, hip and back as a result of the fall, sued Anchorage for negligence.

The municipality concedes the valve box cover was, indeed, missing, but denies it was responsible.

Anchorage moved for summary judgment in the state's Third Judicial District on grounds that it had no duty to Kelly since it did not cause or was not given notice of the cover's condition.

Kelly filed an opposition and cross-motion for summary judgment.

The superior court granted summary judgment to Anchorage.

Kelly subsequently appealed to the state's high court.

The Court, in its eight-page opinion filed Friday, said material issues of fact still exist as to whether the municipality caused the dangerous condition and whether it had notice of it.

Justice Craig Stowers, who authored the Court's opinion, said courts do not weigh evidence or witness credibility on summary judgment.

Therefore, it vacated the superior court's grant of summary judgment.

"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.'

"We find that Kelly's witnesses produced sufficient uncontradicted testimony to raise genuine issues of material fact."

Stowers noted that the length of time the condition existed and the number and nature of prior accidents are among those questions "properly directed to the fact finder on remand."

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