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Lynn v. District of Columbia

July 22, 1999

EVELYN NICKENS LYNN, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE.



The opinion of the court was delivered by: Per Curiam

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Michael L. Rankin, Trial Judge)

Argued March 17, 1999

Before Terry and Ruiz, Associate Judges, and Pryor, Senior Judge.

Appellant Evelyn Nickens Lynn filed a complaint against the District of Columbia for an injury she allegedly sustained when she fell on a sidewalk in a deteriorated condition. The case was resolved in the trial court by the grant of the District's motion for summary judgment. Lynn appeals, claiming there were genuine issues of material fact with respect to: (1) whether the District had constructive notice of the condition of the sidewalk; and (2) whether Lynn was contributorily negligent. We reverse and remand.

I. FACTS

In the early evening in May 1992, appellant fell and fractured her left knee when she stepped up onto the curb after crossing the intersection of Benning Road and F Street, Southeast. At the time, she was walking with her four young children on the way to visit appellant's adult daughter, Lolita Capers. Appellant fell in a treebox after she and the children crossed Benning Road from the southeast corner of F Street. Appellant states that on the day she fell, the level of dirt in the tree box had deteriorated to a level approximately three inches lower than the adjacent pavement. Lynn asserts that she slipped because of the uneven ground surface.

During discovery, appellant testified that the pavement and treebox had been in a condition of disrepair for a substantial period of time. In deposition she stated the condition had existed for "[m]ore than a month" and "[p]robably" for a year. She described the intersection as heavily traveled because it is proximate to two shopping centers and large housing developments. Appellant stated there is also a public school and a police sub-station nearby. She stated she had observed workmen surveying the area sometime prior to her fall.

In an affidavit, appellant stated that she was aware of an alternate route to cross the street, but chose not to use it. According to appellant, that path, emanating from the northwest corner of F Street, also entailed crossing two busy streets instead of one, and was unsafe for her and her children because it was littered with gravel, stones, and other debris. Appellant's adult daughter also filed an affidavit describing the alternate pavement across the street as cracked and deteriorated. She stated that in 1991 she herself had fallen on stones and gravel and twisted her ankle.

In response to a motion by the District, the trial court issued an order of summary judgment, stating Lynn had failed to present prima facie evidence of constructive notice, and that she was contributorily negligent as a matter of law.

II. STANDARD OF REVIEW

Summary judgment "is appropriate only when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law." Willis v. Cheek, 387 A.2d 716, 719 (D.C. 1978) (citations omitted); see Tippens v. Celotex Corp., 805 F.2d 949 (11th Cir. 1986). On appeal, the Court of Appeals conducts an independent review of the record, but the substantive standard is the same as that utilized by the trial court. Northbrook Ins. Co. v. United Servs. Auto Ass'n, 626 A.2d 915, 917 (D.C. 1993). All inferences which may be drawn from the facts are resolved against the movant. Willis, supra, 387 A.2d at 719 (citations ...


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