Jennings v. State
| Decision Date | 22 July 1977 |
| Docket Number | No. 2658,2658 |
| Citation | 566 P.2d 1304 |
| Parties | Millie JENNINGS, Special Administratrix of the Estate of Janet Lynn Lewis, Deceased, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and BURKE, JJ.
This appeal is from the superior court's grant of summary judgment in favor of the State of Alaska in litigation involving the alleged wrongful death of Janet Lewis, a 7-year-old student at the Joy School in Fairbanks.
The amended complaint alleged the following factual situation: After school on December 7, 1971, Janet Lewis and a schoolmate were about to cross College Road, a four-lane highway in a suburban section of Fairbanks. Elizabeth Lyons, a named defendant below, stopped her car and motioned for the children to cross. 1 Several cars stopped behind Ms. Lyons in the outside lane, but defendant Bjarne Aune, approaching the scene on the inside lane of College Road, struck and killed Janet Lewis.
The amended complaint further alleged that the State of Alaska 2 was negligent in its failure to adequately provide for the safety of the children of Joy School. More particularly, it was alleged that the State of Alaska
had received numerous complaints regarding inadequate safety precautions and hazards regarding children attending Joy School and their attempts to cross College Road
and further that the State of Alaska
failed to take any action whatever that had any overall effect on the safety of the pupils attending Joy School and as a result of their negligence in failing to provide an overpass and to meet other requests which were made of them, Janet Lynn Lewis was killed attempting to cross College Road.
In its answer, the State of Alaska denied the allegations of the amended complaint and advanced six affirmative defenses, the most significant of which asserts that the negligence alleged was based on a discretionary function for which the state was immune from suit. 3
On November 22, 1974, attorney Rosie 4 filed, on behalf of the special administratrix, a request for production of certain documents from the state and the North Star Borough. The state filed objections to this request on December 23, 1974, grounded on its belief that some of the requested items were irrelevant and that the requests were so broadly stated that it would be an unreasonable burden on the state to produce the information. The state specifically objected to production of material relating to other accidents on College Road involving children on the basis of a possible privilege. The state filed a motion for summary judgment March 24, 1975, alleging that no genuine issue of fact existed and, as a matter of law, it was entitled to judgment because either (1) the discretionary function clause of AS 09.50.250 5 barred the claim or (2) the alleged negligence on the part of the state was not the proximate cause of the accident. On April 22, 1975, the same day that she filed her statement of genuine issues and opposition to the motion for summary judgment, the special administratrix filed a motion requesting the superior court to issue an order compelling discovery from the state. On May 6, Judge Warren W. Taylor issued a Memorandum Decision, granting the state's motion for summary judgment and finding that the discretionary function exception to the waiver of sovereign immunity barred the suit, since "any governmental action that occurred (in this case) occurred at the planning as opposed to the operational level." 6
On May 16, 1975, the special administratrix moved to vacate the Memorandum Decision and for reconsideration of the state's motion for summary judgment. This motion was based on three factors: (1) the state's refusal to cooperate in discovery had hampered the special administratrix's attempt to discover evidence which would show the existence of a disputed material fact; (2) there was a misunderstanding between the state, the special administratrix and the superior court as to the actual claim of negligence asserted against the state; and (3) Civil Rule 56 "envisions a hearing on the motion before it is decided." 7 On May 22, 1975, Judge Taylor stated that he was persuaded by the motion but wanted to hear what the state would say in opposition. Thus, he set hearing on the motion to vacate for June 12, 1975. Argument was heard on that date and Judge Taylor took the motion under advisement. On June 17, Judge Taylor issued a Memorandum Decision denying the motion to vacate his prior decision and stating:
If the Plaintiff has newly discovered evidence sufficient to base a cause of action against the State, then it might be appropriate for the Plaintiff to seek to amend its complaint. On the basis of the pleadings as they presently stand, however, the Court finds that the State is immune from liability for reasons previously stated in the Court's May 6, 1975, Memorandum Decision.
On June 30, 1975, the special administratrix filed a motion to amend her amended complaint. As the proposed amendment related to the state, it would have alleged negligence in failing to post the appropriate signs in the area, in the maintenance and design of the area which was known to be a hazardous crossing area, and in not designating College Road a hazardous route. Prior to the hearing of this motion, on July 3, 1975, Judge Van Hoomissen 8 signed a judgment dismissing the complaint against the state with prejudice. 9 Jennings appeals from that dismissal with prejudice.
In order to understand the allegations of negligence asserted against the State of Alaska, it is necessary that the location of the scene of the accident in relation to the situs of the Joy School be delineated. The Joy School is not located adjacent to College Road; it is located on Joy Street several hundred feet from the intersection of Joy Street and College Road. That intersection has a crosswalk and an electronically controlled traffic signal. During the times when most of the children in the neighborhood are either going to or coming from school, there is usually a crossing guard at the intersection of Joy School and College Road. 10 Since this area of College Road was not designated a school zone, 11 the posted speed limit on College Road for the area west of Joy Street was 40 miles per hour. From the direction that the Aune vehicle approached, the posted speed limit on College Road was 30 miles per hour. On the day of the accident, Janet Lewis did not use the crosswalk at the intersection of Joy Street and College Road. She was struck and killed while attempting to cross College Road between Mary Leigh Street and Bridget Street, where she lived. 12 The point of impact was several hundred feet from the intersection of College Road and Joy Street. A rough sketch of the area, not drawn to scale, follows:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
In this appeal the special administratrix advances three separate specifications of error committed by the superior court. First, the administratrix claims that the superior court erred
in holding that providing an overpass or employing other devices to protect the children in their attempt to cross College Road to attend the Joy School was a discretionary function of the State, the breach of which would not render the State liable in damages for the death of a child crossing College Road on his way home from school.
Secondly, the administratrix specifies:
The Superior Court erred and abused its discretion in entering judgment for the State of Alaska and dismissing the Appellant's Complaint with prejudice without first providing the Appellant an opportunity to amend its Complaint so as to state a cause of action against the State of Alaska if possible under the set of facts presented to the Court.
The administratrix's final specification of error asserts:
The Superior Court erred and abused its discretion in entering the judgment dismissing appellant's claim against the State with prejudice without first ruling on Appellant's motion to compel discovery from the State of Alaska.
These specifications of error will be discussed seriatim.
At the time of this litigation, Civil Rule 56(c) provided, in part:
Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
In order to prevail on a motion for summary judgment, a party must show the absence of an issue relating to any material fact and entitlement to judgment as a matter of law. If there is any genuine issue of material fact to be tried, a grant of summary judgment would deprive the party of his or her right to a jury trial on that issue of fact. 13 Thus, we have declared that the burden of showing the absence of a genuine issue of fact is on the movant. 14
In its memorandum accompanying the motion for summary judgment, the state contended that, as a matter of law and based on the evidence that had been adduced to that point, "the plaintiff (had) not stated a cause of action upon which relief could be granted against the state." In response, defendant Lyons and the special administratrix Jennings submitted statements of genuine issues. 15 Neither submitted affidavits nor did they submit any sworn items which would show the superior court how they planned to support their position on those issues with facts which would be admissible at trial. 16 The state claims that, as a matter of law, Jennings' opposition did not comply with the requirements of Civil Rule 56(e) 17 and thus, summary judgment was properly granted. That contention is not well founded.
Affidavits either in support of, or in opposition to, a summary judgment motion are permissive not mandatory. 18...
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