109 A.3d 1118
D.C.2015Background
- Victoria Johnson was injured when another car swerved to avoid an uncovered utility test station hole in the middle of Alabama Avenue, causing a collision that pushed Johnson into a utility pole.
- Johnson sued Washington Gas, alleging its employees removed the test station cover during maintenance in June 2007 and failed to replace it, creating the hazard.
- Washington Gas acknowledged employees worked at the site and removed the cover and mounting ring during June maintenance, backfilled temporarily, and replaced permanent asphalt three days after the accident.
- Johnson testified she drove past the site twice daily and had seen construction and the uncovered hole at least a week before the accident, but there is no direct record showing who left the cover off.
- Washington Gas’s corporate designee testified the cover (and ring) are extremely heavy and difficult for the public to remove; there was no evidence of public tampering.
- The trial court granted summary judgment for Washington Gas, finding Johnson failed to show the company had notice or that its employees created the hazard, relying on District of Columbia v. Smith to say the lapse of time left open the possibility a third party removed the cover.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence suffices to show defendant created hazardous condition (primary negligence) | Johnson: Washington Gas removed cover during maintenance and she observed the uncovered hole before the accident, so a jury could infer employees did not replace the cover | Washington Gas: No direct proof employees left cover off; gap of ~4 weeks permits third-party removal; covers could be removed by public | Reversed: Viewing evidence in plaintiff's favor, reasonable jurors could infer Washington Gas failed to replace the cover and thus created the hazard |
| Whether constructive or actual notice of dangerous condition is required | Johnson: Notice not required if defendant’s agents created the hazard by failing to replace cover | Washington Gas: Even if notice required, none was given before accident | Court: Notice is irrelevant if primary negligence is shown; here jury could find primary negligence, so summary judgment improper |
| Whether Smith controls (time lapse defeats inference of defendant negligence) | Johnson: Smith is distinguishable because here there is affirmative evidence employees removed cover and witness saw hole in weeks before accident; cover is heavy and unlikely to be removed by public | Washington Gas: Longer lapse (4 weeks) than Smith’s 3 days; third-party removal plausible | Court: Distinguished Smith; material facts permit jury to find defendant more likely than not failed to replace cover |
| Whether summary judgment appropriate | Johnson: Material factual dispute exists that should go to jury | Washington Gas: No genuine issue of material fact; plaintiff’s proof insufficient | Court: Summary judgment reversed and case remanded for trial |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (establishes burden-shifting at summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment requires that reasonable jurors could not find for nonmoving party)
- District of Columbia v. Smith, 642 A.2d 140 (plaintiff’s inability to exclude third-party tampering after lapse of time defeats inference of defendant negligence)
- Sherman v. District of Columbia, 653 A.2d 866 (primary negligence by defendant’s agent makes notice irrelevant)
- Grant v. May Dep’t Stores Co., 786 A.2d 580 (summary judgment standard and viewing evidence in light most favorable to nonmoving party)