Millie JENNINGS, Special Administratrix of the Estate of Janet Lynn Lewis, Deceased, Appellant, v. STATE of Alaska, Appellee.
No. 2658.
Supreme Court of Alaska.
July 22, 1977.
567 P.2d 1304
Sanford M. Gibbs, Hagen, Smith & Brown, Anchorage, for appellee.
OPINION
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and BURKE, JJ.
RABINOWITZ, Justice.
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 Bjаrne 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 Alaska2 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.
On November 22, 1974, attorney Rosie4 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
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
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 Hoomissen8 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 оf 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
In this appeal the speсial 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 еntitlement 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
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 Nevertheless, we have stated that once the movant satisfies his burden of establishing an absence of genuine issue of material fact and its right, on the basis of the undisputed facts, to judgment as a matter of law, the non-movant is
required, in order to prevent entry of summary judgment, to set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute or contradict the [movant‘s] evidence, and thus demonstrate that a material issue of fact exist[s].19
This standard with respect to admissibility of evidence has led us to conclude that assertions of fact in unverified pleadings and memoranda cannot be relied on in de-
Since no affidavits were presented to the court in the case at bar, the burden provided in Rule 56(e) to “set forth specific facts showing that there is a genuine issue for trial,” must have been reached in ways “otherwise provided in this rule.” Subsection (c) refers to the “pleadings, depositions and admissions on file” аs other devices used to show a genuine issue of fact. Professors Wright and Miller set forth the following guidelines for use of such materials:
The formal issues framed by the pleadings are not controlling on a motion for summary judgment; the court must consider the issues presented by the other material offered by the parties on the motion to determine whether the Rule 56 request should be granted. Thus the court will examine the pleadings to ascertain what issues of fact they present and then consider the affidavits, depositions, admissions, answers to interrogatories and similar material to determine whether any of these issues are real and genuine and whether any of the post-pleading material suggests the existence of any other triable genuine issues of material fact. The parties need not formally offer their outside matter as evidence or have it marked as an exhibit at the hearing on the motion. Given this process, the court is obliged to take account of the entire setting of the case on a Rule 56 motion.22 (Footnotes omitted)
In concluding that “any governmental action that occurred . . . occurred at the planning as opposed to the operational level,” the superior court limited its review of the case at bar to the pleadings. Even though the parties did little to call the superior court‘s attention to other items, including the three depositions on file, the superior court should have gone outside the pleadings to consider the entire setting of the case to the extent that the material was brought to the court‘s attention by the parties on the motion.23 In order to determine whether this error was harmless, we think it necessary to consider what facts the superior court would have found had it gone outside the pleadings.
Defendant Lyons referred the superior court to portions of the deposition of Jerry Lee Lewis in which he claimed that the state had been notified of the conditions on College Road which were hazardous to the school children of Joy School. The deposition further asserted that “no overpass had been installed, no school warning sign erected, no lower speed limit enforced, and no additional crosswalk or traffic light installed.”
These are spеcific facts appearing in the record which were called to the superior court‘s attention in opposition to the motion for summary judgment. Since the party asserting that there is no genuine issue of material fact is the State of Alaska, these
We have been called upon to interpret the discretionary function exception on several occasions.26 In State v. Abbott, 498 P.2d 712 (Alaska 1972), and reaffirmed in State v. I‘Anson, 529 P.2d 188 (Alaska 1974), we adopted the planning-operational test in determining whether a particular governmental function was within or without the ambit of the discretionary function exception to governmental tort liability. In light of Alaska‘s decisional law on the sub-
ject of the discretionary function exception, the special administratrix claims:
When making its ruling on the State‘s claims to discretionary function immunity, the Superior Court misapplied the principles of State v. Abbott and State v. I‘Anson.
In its decision, the superior court reсognized that liability is the rule to which immunity is the exception, but found immunity in this case because, as it perceived the situation, any alleged negligence on the state‘s part occurred at the planning level rather than at the operational level.27 As indicated previously, we are of the opinion that the superior court correctly analyzed the character of the governmental function in question.28 More particularly, we are of the view, and so hold, that decisions whether or not to build one or more overpasses in the area of the intersection of College Road and Joy Street, whether or not to designate the subject intersection area as a school zone, and whether or not to undertake any other safety measures at the intersection in question or at other areas of College Road,
In light of the pleadings and depositions which were on file at the time appellee moved for summary judgment, we are of the opinion that the superior court correctly concluded that the asserted negligent failures of the State of Alaska came within the discretionary function exception to governmental liability under
The special administratrix‘s second specification of error alleges that the superior court erred in dismissing her amended complaint with prejudice without providing her an opportunity to further amend her amended complaint.31 There is no amendment as of right after the grant of a summary judgment motion. See Clardy v. Duke University, 299 F.2d 368, 369-70 (4th Cir. 1962). Since a motion for summary judgment is on the merits, courts are normally reluctant to allow amendments after summary judgment motions. See Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967). The superior court‘s reasons for not allowing further amendment of the amended complaint are not present in the record. Additionally, it was apparent that Judge Taylor would have allowed an amendment which was based on newly discovered evidence. In her memorandum accompanying the motion to amend the complaint, Jennings stated:
As to the STATE OF ALASKA, the Plaintiff will allege negligence concerning the posting of appropriate signs in the area, negligence in the maintenance and design of an area known to be a hazardous route and thereafter providing transportation, or otherwise assuring safe passage of Joy School children across College Road.
As our decision today makes clear, a claim for relief against the state for failing to designate the area as a hazardous route or for improperly designing and maintaining the crossing area is barred by the discretionary function exception to the waiver of
Appellant‘s third specification of error alleges that the superior court erred in dismissing thе amended complaint with prejudice without first requiring the state to comply with her request for production. The basis of the special administratrix‘s specification of error seems to be that because the State of Alaska had not complied with the request for production, she was unable to adequately oppose the state‘s motion for summary judgment. The special administratrix maintains that her motion to compel discovery and the statements in opposition to the state‘s motion for summary judgment were sufficient to be considered a Rule 56(f)33 motion for additional time. We find this argument devoid of merit. As Professors Wright and Miller state:
Rule 56(f) protects a party opposing a summary judgment motion who for valid reasons cannot by affidavit-or presumably by any other means authorized under Rule 56(e)-present ‘facts essential to justify his opposition’ to the motion. Under the rule a party who seeks the protection of subdivision (f) must state by affidavit the reasons why he is unable to present the necessary opposing material and the court then may (1) refuse to grant summary judgment, (2) order a continuance to permit affidavits to be taken or discovery to be had, or (3) ‘make such other order as is just.’34 (emphasis added)
Although requests made pursuant to Rule 56(f) should be freely granted, it is necessary that the party make it clear to the trial court and the opposing party that he opposes the summary judgment motion on this ground. As Professors Wright and Miller note:
However, the rule will not be liberally applied to aid parties who have been lazy or dilatory. The most obvious indication of lack of diligence is a failure on the part of the nonmovant to present affidavits under either subdivision (e) or (f). In this situation the court may accept the facts alleged in the movant‘s affidavits as true, and if they constitute a sufficient basis for summary judgment, the motion will be granted. Even in cases in which
In the case at bar, not only did the special administratrix fail to submit any affidavits in opposition to the summary judgment motion, but also there is no mention made of subsection (f) of Rule 56 in the special administratrix‘s opposition to the state‘s motion for summary judgment. Given these circumstances, we conclude that the superior court did not abuse its discretion in ruling on the state‘s motion for summary judgment without first requiring the state to comply with the special administratrix‘s request for production.
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.
ERWIN, J., not participating.
BURKE, Justice, dissenting in part.
I respectfully dissent with respect to the majority‘s holding that it was an abuse of discretion for the superior court to dismiss appellant‘s complaint with prejudice before a hearing was held on her motion to amend.
According to her memorandum filed in support of such motion, appellant indicated:
As to the STATE OF ALASKA, the Plaintiff will allege negligence concerning the posting of appropriate signs in the area, negligence in the maintenance and design of an area known to be a hazardous crossing area, as well as negligence in not having College Road designated as a hazardous route and thereafter providing transportation, or otherwise assuring safe passage of Joy School children across College Road. (emphasis added)
Thus amended, the complaint would, at most, allege only additional “planning level” failures on the part of the state. Therefore, I would affirm the judgment of the court below. Rule 15(a), Alaska R.Civ.P., does not require the trial court to indulge in futile gestures. Where a complaint, as amended, would be subject to dismissal on the same grounds upon which the initial complaint was dismissed, leave to amend should be denied. DeLoach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968).
Otherwise, I concur.