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Quinn v. City of Cave Spring3/22/2000
water plant had been under a consent order for exceeding its discharge limit and that the accident could have been avoided if one of the sewage lines had been renovated when others were. He further testified that although in the past he had seen other manhole covers float up and rest "in a cocked position," this was the first time he had seen a manhole cover lift off of its retaining rings.
But the fact that the City was aware of violations of its discharge limits does not put the City on notice of the defective condition created by this manhole cover completely dislodging from its base. First, there is no evidence that there were repairs on or problems with the system at or near the site of Quinn's accident. Second, although Quinn urges that the employee's testimony that he has seen water cause a manhole cover to move into a cocked position is evidence of notice, it is not evidence (i) that the current sewage problems had caused any effluent to overflow out of a manhole cover so as to cause one to float, or (ii) that the City was on notice of the potential of this particular manhole or any manhole cover becoming completely dislodged. Third, nothing in the record shows a past occurrence of a manhole cover becoming dislodged on any of the City's streets, or that a consent order involved any such occurrence. Because there is a lack of evidence that the City had actual or constructive knowledge of the defect created by the overflow resulting in the absence of the manhole cover, the issue of negligence becomes a matter of law. The City's motion pierced the pleadings, putting the burden on Quinn to come forward with specific facts and present his case in full to show that genuine issues remained for jury resolution. Quinn's negligence claim must fail as he did not produce evidence to controvert the City's evidence that it had no notice of the defect. Accordingly, we affirm the trial court's grant of summary judgment to the City.
Judgment affirmed. Pope, P. J., and Smith, J., concur.
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