                                                              FILED
                                                          JANUARY 18, 2018
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

NORMA ACOSTA and GILBERT                       )         No. 35159-9-111
ACOSTA, individually, and the marital          )
community comprised thereof,                   )
                                               )
                     Appellants,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
CITY OF MABTON, a municipal                    )
corporation,                                   )
                                               )
                     Respondent.               )

       LAWRENCE-BERREY, A.CJ. -In January 2012, a City of Mabton (City) sewer

line became clogged and several inches of raw sewage backed up into the basement of

Norma and Gilbert Acosta's house. The Acostas sought damages against the City and

asserted several causes of action. The trial court summarily dismissed the Acostas'

causes of action on the basis that the Acostas failed to explain how the blockage occurred.

       The Acostas appeal the summary dismissal of their causes of action. They assert

that a trier of fact could reasonably find that the blockage was caused by solidified grease

rather than an 8Yz inch ball, as the City claimed. In making this assertion, they set forth
No. 35159-9-III
Acosta v. City of Mabton


plausible arguments why a trier of fact might reasonably disbelieve City employees who

claim that an 8Y2 inch ball had blocked the 10 inch line. The Acostas further assert that if

the blockage was caused by solidified grease, the City's practice of not maintaining the

sewer lines and merely waiting for blockages to occur constitutes negligence. Because a

trier of fact could reasonably find that solidified grease caused the blockage and because

a municipality breaches its duty of care by simply waiting for blockages to occur, we

reverse the trial court's summary dismissal of the Acostas' claims.

           GENERAL STANDARD FOR REVIEWING SUMMARY JUDGMENTS

       "When reviewing dismissal of a case on summary judgment, we employ the same

inquiry as the trial court under CR 56(c)." Ducote v. Dep 't of Soc. & Health Servs., 167

Wn.2d 697, 701, 222 P.3d 785 (2009). "On a motion for summary judgment, all facts

submitted and reasonable inferences therefrom must be viewed in the light most favorable

to the nonmoving party." Sentine!C3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40

(2014 ). With this in mind, we set forth the facts favorably to the Acostas.

                                             FACTS

       The Acostas own a home near 6th and B streets in Mabton. During the morning of

January 12, 2015, the City's sewer system backed up and raw sewage flooded the

basement of the Acostas' home. Mrs. Acosta called the City to report the problem. City


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Acosta v. City of Mabton


public works employees Noe Trujillo, Michael Mendoza, and Erik Van Doren responded

to clear the blockage. The employees were able to determine the approximate location of

the blockage by removing various manhole covers and looking into the manholes and

noticing where the sewer flowed and did not flow. At around 9:00 p.m., the public works

crew cleared the blockage.

      Once cleared, raw sewage flowed so quickly that 5,000 to 10,000 gallons of

sewage escaped from a downstream manhole temporarily uncovered by the public works

crew. The resulting contamination required City employee Mendoza to send a written

report of the day's events to the Department of Ecology. In the report, Mendoza makes

reference to "the blockage" multiple times; but not once does he mention a ball. The City

also took pictures of the manhole after the blockage was cleared above the manhole. The

purpose of the pictures was to show what had created the blockage. One can see

significant clumps of grease in the manhole. One cannot see a ball.

      Months later, because the City still had not assisted the Acostas with their

extensive property damage, Mrs. Acosta went to a City Council meeting to complain to

the m~yor. In response to her complaint, Mayor Mario Martinez said:




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No. 35159-9-111
Acosta v. City of Mabton


              "A lot of times we have grease problems. Everybody knows that.
       We know that when it does get backed up, it is ... it ends up right there for
       whatever reason. That's where it ends up in the system ... it's on B Street
       and Sixth ... near Sixth Street. And that's where everything tends to end
       up and it starts to back up from there."

Clerk's Papers (CP) at 416.

       The Acostas brought suit against the City on various legal theories, including

negligence. The City denied liability. When deposed by the Acostas, Mayor Martinez

testified that after the City crew dislodged the blockage, he looked into the manhole

immediately downstream and saw debris, including a"' mostly inflated'" ball. CP at 198.

He described the ball as about the size of a "'beginner's basketball."' Id.

       In their depositions, City public works employees Mendoza and Trujillo described

the City's maintenance of its sewer system. According to both, the City had problems

with grease clogging the sewer lines. As temperatures became colder, the grease

solidified and sometimes caused clogs. Until one or two years before the Acosta

blockage, the City cleaned its entire sewer system from the highest elevation to the lowest

elevation once or twice a year through a process known as jet rodding. In addition to jet

rodding, the City poured a product into the system called "Fireball" that melted the

solidified grease all the way to the City's sewer plant.




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    No. 35159-9-III
    Acosta v. City of Mabton


           The City's practice changed a year or two before the Acosta blockage. When Mr.

    Martinez became mayor, he changed the City's emphasis from maintaining the sewer

    system to only responding to blockages. Employee Trujillo explained that clearing a

    blockage simply moved the blockage lower in the system:

          [W]hen the guys ... were jet rodding and that's the way they showed me,
          we have to start from the highest point towards the bottom to pull
          everything down towards the sewer plant. ...

    CP at 322.

          [But] if you're jumping from one side to the other, if you're up on a high
          spot and you unplug a major line, obviously it's going to plug down towards
          the bottom somewhere ....

    CP at 322. Trujillo further explained:

          [L]ike I said, we weren't jet rodding for at lea~t a year or so, a year or two,

I         because we had other things, our boss had other things on his mind than jet
          rodding .

                  . . . But if they would jet rod, like I said, at least once or twice a year,
          they would eliminate that problem. Because, like I said, there is a lot of
          stuff in there, a lot of grease, and if they continue jet rodding, they would
          eliminate those problems.

    CP at 301,318.

          According to Trujillo, because of the City's changed emphasis from

    maintaining the system to responding to blockages, more sewage backups




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No. 35159-9-III
Acosta v. City of Mabton


occurred. When asked what caused the sewer to back up into the Acostas'

basement, Mendoza answered, "[a] lot of grease." CP at 348.

       Once the parties completed discovery, the City moved to have the trial court

summarily dismiss the Acostas' claims. The City argued that an inflatable ball

caused the blockage, that such a blockage would have caused the sewer to quickly

backup, and that it was not negligent for failing to quickly discover the blockage.

Mayor Martinez and City employees Mendoza and Van Doren claimed that the

blockage was caused by an inflatable ball. In addition, the City's expert opined

that the blockage of the 10 inch sewer line could not have occurred absent the

introduction of the 81/i inch ball into the line.

       The Acostas responded mostly by impeaching the claim that an 81/i inch ball

caused the blockage. The Acostas impeached Mendoza with his own deposition.

In his deposition, Mendoza admitted that he only once saw a ball in a manhole, but

could not recall whether it was in relation to the January 12, 2015 Acosta

blockage.




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No. 35159-9-III
Acosta v. City of Mabton


       The Acostas responded also by attaching the report of their expert, industrial

hygienist Susan Evans. 1 Ms. Evans explained that the City's maintenance of its system

during the year or two before the Acosta blockage was deficient. Ms. Evans noted that

there are two nearby schools with cafeterias that discharge grease. She further noted:

       A study by the American Society of Civil Engineers reports that the most
       important maintenance activities for operation of a sanitary sewer system is
       cleaning. [The study recommends] that 29.9% of the system should be
       cleaned each year. A review of the [City's] maintenance logs ... showed
       significantly less than 30% of the system is cleaned each year.

CP at 202 (footnote omitted).

       She also explained why she did not believe the City's claim that an 8Y2 inch ball

got into the sewer line. A ball about the size of a kid's basketball is much too large to

enter the system through a toilet or other plumbing fixture. Also, the City's sewer system

is not combined with a stormwater system. For these reasons, the only way such a ball

could enter the sewer line is by it being rolled or dropped into a manhole. Ms, Evans



       1
         In its response brief, the City renews its motion to strike Ms. Evans's report. The
report was attached as an exhibit to opposing counsel's summary judgment declaration.
The trial court denied the City's motion to strike because the report was unquestionably
Ms. Evans' s report, it was submitted to the City during discovery, and the City questioned
Ms. Evans extensively about it during her sworn deposition. We find no abuse of trial
court discretion and deny the City's renewed motion to strike. See, e.g., Young Soo Kim
v. Choong-Hyun Lee, 174 Wn. App. 319, 326-27, 300 P.3d 431 (2013) ("Courts do not
always demand strict compliance with the express requirements of CR 56(e ), due to the
potentially drastic consequences of a summary judgment motion, particularly with respect

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    No. 35159-9-III
    Acosta v. City of Mabton


    explained that manholes are covered, and manhole covers weigh between 90 and 150

    pounds. 2

           The trial court noted that Ms. Evans did not directly state what caused the sewer

    line to backup. The trial court believed that without clear evidence as to the cause of the

    backup, Ms. Evans's opinion that the City's maintenance was deficient would be

    inadmissible. For this reason, the trial court summarily dismissed the Acostas' claims.

           The Acostas appealed.

                                            ANALYSIS

    A.     SUMMARY JUDGMENT AND IMPEACHMENT OF MOVING PARTY


           A party may move for summary judgment by setting out its own version of the

    facts. Pac. Nw. Shooting Park Ass 'n v. City of Sequim, 158 Wn.2d 342, 350, 144 P.3d

i   276 (2006). It is then incumbent on the nonmoving party "to present admissible evidence


I   demonstrating the existence of a genuine issue of material fact." Id. at 3 51.




    to the nonmoving party.").
           2
             The Acostas take this argument further: The mayor originally described the ball
    as "mostly inflated." Ms. Evans testified, "I can rule [the ball's presence] out based on
    his description of the ball [as] mostly inflated." CP at 267. She explained that a mostly
    inflated ball almost the diameter of the sewer line could not sink beneath the level of the
    sewer in a manhole in order to enter the sewer line.

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No. 35159-9-III
Acosta v. City of Mabton


       Sometimes a material "fact" is particularly within the knowledge of the moving

party and the nonmoving party cannot directly contradict it. In those situations, the

nonmoving party may create a genuine issue of material fact by impeaching the moving

party's witness or witnesses. Dunlap v. Wayne, 105 Wn.2d 529, 536, 716 P.2d 842

(1986). In those situations where a proponent's "fact" reasonably might be disbelieved,

"' it is advisable that the cause proceed to trial in order that the opponent ... be allowed

to disprove such fact[ ] by cross-examination and by the demeanor of the [witness] while

testifying."' Brown v. Brown, 157 Wn. App. 803, 820, 239 P.3d 602 (2010) (internal

quotation marks omitted) (quoting Riley v. Andres, 107 Wn. App. 391, 395, 27 P.3d 618

(2001)).

       Here, a trier of fact could reasonably disbelieve the City's witnesses that its 10

inch sewer line was blocked by an 8Yi inch ball. First, City employee Mendoza's nearly

contemporaneous report to the Department of Ecology does not describe the blockage as

being caused by a ball. Second, Mayor Martinez's response to Mrs. Acosta's complaint

during the City Council meeting does not mention a ball. Instead, Mayor Martinez

discusses a history of blockages near the Acosta home as being due to the lines being

blocked by grease. Third, City employee Mendoza's statements are inconsistent as to

whether he saw a ball in the manhole after the Acosta blockage was cleared. Fourth,


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No. 35159-9-III
Acosta v. City of Mabton


there is no credible explanation of how an 8Y2 inch ball could get into a 10 inch sewer

line. The idea that a strong person removed the heavy manhole cover, climbed into the

raw sewage, and inserted the ball into the sewer line is not a theory a finder of fact needs

to believe.

       A trier of fact could also reasonably disbelieve the City's expert that the blockage

in the 10 inch sewer line would not have occurred in the absence of an inflatable ball.

The mayor and City employees discussed the line in question and agreed that it often

became blocked with grease. Employees Mendoza and Trujillo testified consistently that

only once did they see a ball in a City manhole, and Trujillo testified he saw a ball years

before the Acosta blockage and in a different part of the City. There is no evidence that

the City's history of blocked sewer lines had anything to do with large objects such as

balls in the lines. In fact, Mendoza testified that the cause of blocked lines is "mostly

always grease." CP at 352. Trujillo also described how the City's recent practice of

dislodging blockages in the sewer lines simply led to blockages lower in the City's lines.

       We conclude that the Acostas sufficiently rebutted the City's theory that a foreign

object such as a large ball caused the blockage that led to their damages. The Acostas

produced sufficient evidence that the accumulation of grease, solidified by cold winter

temperatures, caused the blockage.


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No. 35159-9-III
Acosta v. City of Mabton


B.     NEGLIGENCE OF THE CITY


       In an action for negligence, the plaintiff must prove (1) the existence of a duty,

(2) breach of that duty, (3) a resulting injury, and (4) proximate cause linking the breach

to the injury. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587,605,257 P.3d 532 (2011).

       1. Duty of municipalities to maintain and repair sewer systems

       A municipality has a duty to exercise reasonable care in the repair and

maintenance of its sewage systems. Kempter v. City of Soap Lake, 132 Wn. App. 155,

158, 130 P.3d 420 (2006). This'" duty to keep its sewers in repair, is not performed, by

waiting to be notified by citizens that they are out of repair, and repairing them only when

the attention of the officials is called to the damage they have occasioned by having

become dilapidated or obstructed."' Vittucci Importing Co. v. City of Seattle, 72 Wash.

192, 195, 130 P. 109 (1913) (quoting McCarthy v. City of Syracuse, 46 N.Y. (1 Sickels)

194, 197-98 (1871)). "'Where the obstruction or dilapidation is an ordinary result of the

use of the sewer, which ought to be anticipated and could be guarded against by

occasional examination and cleansing, the omission to make such examinations and to

keep the sewers clear is a neglect of duty which renders the city liable.'" Id. at 196

(quoting McCarthy, 46 N.Y. at 198).




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No. 35159-9-III
Acosta v. City of Mabton


       2. Breach of duty

       Here, City employees testified that during the one or two years preceding the

Acosta blockage, the City's practice of maintaining its sewer system was limited to

responding to obstructions. Based on this testimony, a trier of fact could find that the

City breached its duty to the Acostas.

       3. Resulting injury

       The City does not dispute that the Acostas were injured when sewage backed up

into their basement.

       4. Proximate cause

       "Proximate cause can be divided into two elements: cause in fact and legal cause."

Michaels, 171 Wn.2d at 609. "'Cause in fact' refers to the actual, 'but for,' cause of the

injury.'" Id. at 610 (internal quotation marks omitted) ( quoting Schooley v. Pinch 's Deli

Market, Inc., 134 Wn.2d 468,478,951 P.2d 749 (1998)). Legal cause refers to policy

considerations of whether the defendant's act was too remote or insubstantial to impose

liability. Id. at 611. The City argues that the Acostas failed to establish cause in fact.

       "' Establishing cause in fact involves a determination of what actually occurred

and is generally left to the jury.'" Id. at 610 (quoting Schooley, 134 Wn.2d at 4 78). The

mayor and City employees Trujillo and Mendoza admitted that the City's lines often were


                                              12
No. 35159-9-III
Acosta v. City of Mabton


blocked by grease, especially near the Acostas' home. Trujillo explained that as the

temperatures dropped, the grease solidified and blocked the lines. Only once did Trujillo

and Mendoza see a ball in a manhole. The evidence that grease and only grease had

historically caused the City's sewer lines to be blocked refutes the City's position that the

Acosta blockage would not have occurred but for a large object such as a ball in the sewer

line.

        Trujillo further testified that for the year or two preceding the Acosta blockage, the

City's practice of clearing blockages only caused the blockage to be moved lower in the

City's lines. When asked what caused the Acostas' blockage, Trujillo answered, "a lot of

grease." CP at 348. Trujillo's answer is consistent with the pictures of the manhole that

show only grease, Mendoza's report to the Department of Ecology that does not mention

a ball, and the mayor's statement during the council meeting that mentions only grease.

        Here, the Acostas submitted sufficient evidence for a trier of fact to reasonably

find that the sewer blockage of January 12, 2015, was caused by solidified grease. The

City knew that grease accumulated in the sewer lines near the Acosta home. Despite this,

the City's procedures for a year or two did not involve clearing the grease from this area.

For these reasons, a trier of fact could reasonably find that the City's breach of its duty to

maintain its sewer lines was the cause in fact of the Acostas' damages.


                                              13
No. 35159-9-111
Acosta v. City of Mabton


       Reversed.




                                        Lawrence-Berrey, A.CJ.
                                                                 j
WE CONCUR:




     ~
Kors~ (/
                   r   Jl   (result only)




~.Q-
Pennell, J.




                                   14
