                                                                             FILED
                                                                          JUNE 27, 2017
                                                                  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

DONALD and KA TRINA SIMMONS,                   )
husband and wife,                              )          No. 34343-0-111
                                               )
                     Appellants,               )
                                               )
       V.                                      )
                                               )         PUBLISHED OPINION
CITY OF OTHELLO,                               )
                                               )
                     Respondent.               )

       SIDDOWAY, J. - Donald and Katrina Simmons appeal the summary judgment

dismissal of their lawsuit against the city of Othello, arising from the failure of a line

connecting their home to the city's main sewer line. Based on evidence that the failure

occurred in the portion of the line lying under a public alley traveled by heavy city

garbage trucks, the Simmonses contend they are entitled to a trial on the city's liability

for negligence.
No. 34343-0-111
Simmons v. City of Othello


         A motion to strike some the Simmonses' evidence was well taken. Their

admissible evidence fails to present any genuine issue of material fact (1) that the city

owed a duty to maintain or repair the line that failed or (2) that the city's operation of its

garbage trucks was negligent or was the cause of the line's failure. We affirm.

                      FACTS AND PROCEDURAL BACKGROUND

         The Simmonses own a home on 10th Avenue in Othello. The record indicates that

the home was built in 1957. Beside the home is an alley that runs the length of the block.

A city main sewer line, to which the Simmonses' home is connected, runs under the

alley.

         In mid-March 2014, the Simmonses began experiencing problems with sewer

backup in the home. Within a matter of weeks, the lateral line' that connects their home

to the main sewer line was completely blocked. The city's public works department




         1
          In this litigation, the city has used a generic term, "lateral line," to describe the
entire line connecting the Simmonses' home to the main sewer line. Although the
Simmonses have complained that the term is misleading, it is a natural use of the
adjective "lateral," which is defined, in part, to mean
         of or relating to the side : situated on, directed toward, or coming from the
         side <the - branches of a tree> <a - view>
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 1275 (1993). We, like the city,
refer to the entire line connecting the Simmonses' home to the main sewer line as a
lateral line. Use of the term is merely descriptive, having no legal significance.



                                                2
No. 34343-0-111
Simmons v. City of Othello


twice checked the operation of the main sewer line that runs the length of the alley and

confirmed it was flowing freely.

       The Simmonses ultimately engaged three plumbers to assist in locating and

addressing the problem: Vincent Enriquez, who specializes in locating and clearing

obstructions from sewer lines but who was unable to clear the Simmonses' lateral line;

Arthur Gonzalez, who was brought in to excavate the lateral line, locate and repair the

failure; and Rodney Heist, who used a "locater" to help Mr. Gonzalez locate the lateral

line and inserted a camera in the line to help find the failure. Clerk's Papers (CP) at 87.

Mr. Gonzalez suspected and later confirmed that the failure had occurred in a portion of

the lateral line located under the alley. The city's public works department took the

position that the failure was still in the lateral line, not the main sewer line, and was the

homeowner's responsibility. The city did issue a permit so that Mr. Gonzalez could

perform excavation work in the alley.

       A week into Mr. Gonzalez's excavation-much of which had to be done by hand

because of city gas and water lines in the same vicinity-Ms. Simmons, convinced that

the problem was not her responsibility, demanded a meeting with the mayor. The mayor

was persuaded that the city should make the repair and promised to send out a city crew.

The next day, a city crew installed a new saddle connection to the sewer. Because the

undamaged portion of the Simmonses' lateral line would not connect with the new

connection provided by the city, Mr. Gonzalez replaced that part of the lateral line.

                                               3
No. 34343-0-111
Simmons v. City of Othello


       The Simmonses then filed a notice of claim with the city and, when their claim

was not resolved, filed suit. Following discovery, the parties filed cross motions for

summary judgment.

       The Simmonses presented no evidence that the city constructed any part of the

lateral line connecting their home to the main sewer line. They presented no evidence

that the lateral line, assuming it was installed privately, was ever donated to the city and

accepted by it. Their opening brief in support of their motion for summary judgment

simply assumed that the portion of their lateral line located under the alley was a part of

the city's public sewer system, which the city thereby had a duty to maintain. They also

supported their motion with declarations from Messrs. Enriquez, Gonzalez, and Heist,

stating their belief that the line failed as the result of heavy garbage trucks operating in

the unpaved alley.

       The city, recognizing that its municipal code defines "public sewer,"

acknowledged responsibility for infrastructure falling within that definition but denied

that the Simmonses' lateral line did. "Public sewer" is defined by Othello Municipal

Code (OMC) 12.04.050 to mean, "a sewer in which all owners of abutting properties

have equal rights, and is controlled by public authority." The city argued that the lateral

line serving the Simmonses' home did not and could not serve other property owners and

was not under its control.




                                              4
No. 34343-0-111
Simmons v. City of Othello


       On the garbage truck causation issue, the city offered the declaration of a

practicing engineer who identified the information that would be needed to determine

whether the failure of the lateral line was caused by garbage truck traffic. He explained

his opinion why, on a more probable than not basis, a 40,000 pound truck could not break

a sewer line or coupling buried 8 to 10 feet underground.

       The city moved to strike testimony in a declaration of former Othello mayor

Shannon McKay offered by the Simmonses, as well as testimony from the Enriquez,

Heist, and Gonzalez declarations. It challenged testimony on the basis that it was either

(1) inadmissibly speculative, (2) constituted hearsay, (3) lacked an adequate foundation,

(4) constituted inadmissible legal conclusions, (5) contained unqualified expert

testimony, or (6) conflicted with prior sworn deposition testimony. The trial court

granted the motion to strike the testimony and, after hearing the parties' arguments on the

cross motions for summary judgment, denied the Simmonses' motion and granted the

city's motion. The Simmonses appeal.

                                       ANALYSIS

       When reviewing grants of summary judgment, our review is de novo and we

perform the same inquiry as the trial court. Volk v. DeMeerleer, 187 Wn.2d 241, 254,

386 P.3d 254 (2016). Summary judgment is appropriate when there is "no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of




                                             5
No. 34343-0-III
Simmons v. City of Othello


law." CR 56(c). We construe all facts and all reasonable inferences in the light most

favorable to the nonmoving party. Volk, 187 Wn.2d at 254.

       A defendant may move for summary judgment by showing that there is an absence

of evidence to support the plaintiffs case. Young v. Key Pharm., 112 Wn.2d 216,225

n.1, 770 P.2d 182 (1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (1986)). Once this showing is made, the burden shifts, and if the

plaintiff fails to make a showing sufficient to establish the existence of an element

essential to its case, on which it will bear the burden of proof at trial, then the court

should grant the motion. Id. at 225 (citing Celotex, 477 U.S. at 322).

       "The de novo standard of review is used by an appellate court when reviewing all

trial court rulings made in conjunction with a summary judgment motion." Folsom v.

Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). It applies to our review of the

trial court's evidentiary rulings on the city's motion to strike. Keck v. Collins, 184 Wn.2d

358, 368, 357 P.3d 1080 (2015) (citing Folsom, 135 Wn.2d at 662-63).

                                   MOTION TO STRIKE

       CR 56(e) requires affidavits supporting or opposing a motion for summary

judgment to be made on personal knowledge, set forth such facts as would be admissible

in evidence, and affirmatively show "that the affiant is competent to testify to the matters

stated therein." It is well settled that "speculation, argumentative assertions, opinions and




                                               6
No. 34343-0-111
Simmons v. City of Othello


conclusory statements will not defeat [a summary judgment] motion." Suarez v.

Newquist, 70 Wn. App. 827, 832, 855 P.2d 1200 (1993).

       Statements offormer mayor Shannon McKay. The city moved to strike three

statements from the declaration of former Othello mayor Shannon McKay. It moved to

strike the following two statements as lacking a foundation, as apparent hearsay, and as

too speculative:

       During my term as mayor, a homeowner by the name of Mr. Crosier had a
       sewage backup into his basement. Upon investigation it was determined
       that his connection between his house line and the main sewer line had
       been broken in the alley.

CP at 316. "A witness may not testify to a matter unless evidence is introduced sufficient

to support a finding that the witness has personal knowledge of the matter." ER 602.

The Simmonses offered no evidence that the mayor had personal knowledge of the

sewage backup suffered by Mr. Crosier or its cause. This is the type of thing that a city's

mayor could easily have learned from staff. The statements were appropriately stricken

for failure to show personal knowledge.

       The city moved to strike a third statement by Mr. McKay as expressing a legal

opm1on:

      Based on the municipal code, we determined that the City of Othello was
      responsible for repairing the connection between the residence and the main
      line but we were not responsible for repairing the line from the house to
      that connection.




                                             7
No. 34343-0-111
Simmons v. City of Othello


CP at 317-18, 81-82. Courts will not consider legal conclusions in a motion for summary

judgment. Ebel v. Fairwood Park JI Homeowners' Ass 'n, 136 Wn. App. 787, 791, 150

P.3d 1163 (2007) (citing Keates v. City of Vancouver, 73 Wn. App. 257,265, 869 P.2d 88

( 1994)). Understood as a legal conclusion, the -statement was properly stricken. If, as the

Simmonses contend, it was offered to show state of mind, it was irrelevant.

       Statements ofplumbers Enriquez, Gonzalez, and Heist. The city moved to strike

statements by Mr. Enriquez, Mr. Gonzalez, and Mr. Heist, expressing the belief that the

lateral line's failure must have been caused by heavy garbage truck traffic overhead. It

argued that the mens' testimony exceeded the scope of permissible lay witness testimony,

lacked an adequate foundation, was speculative, and in the case of Mr. Enriquez and Mr.

Gonzalez, conflicted with prior deposition testimony.

       None of the three men claimed to be testifying to personal knowledge of how the

break occurred: all were expressing opinions. The Simmonses do not try to argue on

appeal that the men were offering lay opinions. They concede the testimony was offered

as expert testimony, based on the three men's "extensive experience and training in the

field of plumbing." Br. of Appellant at 10.

       The expert testimony of an otherwise qualified witness is not admissible if the

issue at hand lies outside the witness's area of expertise. State v. Farr-Lenzini, 93 Wn.

App. 453, 461, 970 P.2d 313 (1999) (citing Queen City Farms, Inc. v. Cent. Nat'l Ins.

Co., 126 Wn.2d 50, 103-04, 882 P.2d 703, 891 P.2d 718 (1994)). "An expert must stay

                                              8
No. 34343-0-111
Simmons v. City of Othello


within the area of his expertise." Queen City, 126 Wn.2d at 102. In the absence of

evidence that the witness has the specialized training or expedence necessary to draw the

inference offered, the opinion lacks a proper foundation and is not admissible under ER

702. Farr-Lenzini, 93 Wn. App. at 461. An opinion mu~t also be supported by sufficient

foundational facts. Queen City, 126 Wn.2d at 104. "Where there is no basis for the

expert opinion other than theoretical speculation, the expert testimony should be

excluded." Id. at 103.

       The city offered the declaration of Kurt Holland, an engineer with a bachelor of

science in civil engineering from Montana State University and over 20 years' practice

experience, including projects involving the design and installation of underground sewer

lines. He testified:

           · In order to determine whether a garbage truck driving over a gravel
             alley could have caused a sewer line or coupling to break 8 to 10 feet
             underground, an engineer would need to know ( 1) the type of soil and
             energy absorbing/dispersing qualities of the soil above the lateral line;
             (2) subsurface water levels; (3) calculations of the force created by the
             weight, number, and frequency of vehicles driving in the alley; (4)
             specifications of the piping; (5) the weight of the soil above the lateral
             line; and (6) an analysis of existing adjacent sewer laterals that had not
             failed. Using this information, the engineer would need to run a
             number of calculations to determine whether the force created by the
             vehicles was strong enough to overcome the structural integrity of the
             pipe and/or coupling. Even with this information and conducting
             these calculations, it would be nearly impossible to determine with
             any degree of confidence whether a garbage truck driving down a road
             could cause an underground sewer line to fail.
                 ... In my experience as an engineer, it is my opinion, on a more
             probable than not basis, that it is unlikely that a 40,000 pound garbage

                                              9
No. 34343-0-111
Simmons v. City of Othello


             truck could exert enough force to break a sewer line or coupling
             buried 8 to 10 feet underground unless there was excessive subsurface
             ground water. The lines would likely be too far underground to be
             impacted by the weight of such a vehicle.

CP at 380. The Simmonses did not offer conflicting evidence as to the information

needed to analyze causation.

       Mr. Enriquez, when asked in deposition if he had any experience or education that

would qualify him to have an opinion that heavy trucks driving down an alley could

damage a sewer line, testified only that he'd "seen it before," without explaining how he

arrived at that theory of causation to the exclusion of others. CP at 175. Later, asked if

·he had an opinion as to what happened to the Simmonses' lateral line, he answered:

       No, I have no opinion other than from what I could say just by looking at
       the picture is that it's something that's been going on for a while. And
       eventually like I say, sometimes the sewer systems just get to a point where
       they start to fail and fall apart. And that just happens over time.

CP at 176.

       The opinions expressed by the three men that the city asked be stricken were all to

the effect that heavy equipment operating over underground pipes for many years can

cause problems in sewer lines, and that they were aware of no other reason the

Simmonses' lateral line would have failed. None of the three men explained (1) what

evidence would justify concluding that a sewer line failed from being driven over by

heavy vehicles as opposed to failing from some other cause, (2) the basis for his

knowledge of how to diagnose the cause of a sewer line's failure, (3) what he knew about

                                            10
No. 34343-0-111
Simmons v. City of Othello


the duration and character of city garbage truck traffic in the alley adjacent to the

Simmonses' home, or (4) what evidence justified drawing the conclusion in this case that

city garbage truck traffic was the cause of the failure. Given the lack of foundational

facts or any demonstration that the men were staying within the area of their sewer line

clearing, plumbing, or septic system expertise, their testimony was appropriately stricken.

We need not address whether the testimony should have been stricken for the further

reason that it contradicted prior deposition testimony.

                            SUMMARY JUDGMENT DISMISSAL

       The Simmonses' arguments often sound like they are asserting a restitution claim,

but they sued for negligence--for the city's breach of a "duty of reasonable care in the

repair and maintenance of the municipal sewer system." CP at 3. 2 To prove negligence,

they must prove the existence of a duty, a breach of that duty, and injury proximately

caused by the breach. Kempter v. City of Soap Lake, 132 Wn. App. 155, 158, 130 P.3d

420 (2006).

       "Washington recognizes that a municipality has a duty to exercise reasonable care

in the repair and maintenance of the municipal sewage system." Id. At issue is whether

the Simmonses' lateral line is a part of the municipal sewage system.




       2
           A restitution claim would fail where the city had no duty to repair the lateral line.


                                                11
No. 34343-0-III
Simmons v. City of Othello


          The Simmonses' lateral line has not been shown to be part of the municipal

sewage system by virtue of ownership of the land, because there is no evidence the city

owns the land under the alley. In connection with the summary judgment motions, Mr.

Simmons submitted a copy of a 1909 plat that includes his home and that "donate[s] and

dedicate[ s] to the use of the public forever the streets, Avenues and alleys, shown

hereon." CP at 80. RCW 58.08.015 provides that the effect of a donation marked on a

plat is considered to be "a quitclaim deed ... for the purposes intended by the donor or

donors, grantor or grantors." For more than a century, Washington decisions have held

that the purpose intended by a street dedication is to quitclaim an easement. Rainier Ave.

Corp. v. City ofSeattle, 80 Wn.2d 362, 366, 494 P.2d 996 (1972) (tracing the rule to

Burmeister v. Howard, 1 Wash. Terr. 207 (1867)). "' [T]he fee in a public street or

highway remains in the owner of the abutting land, and the public acquires only the right

of passage, with powers and privileges necessarily implied in the grant of the

easement."' Id. (quoting Finch v. Matthews, 74 Wn.2d 161, 167-68, 443 P.2d 833

( 1968)). The owner of abutting land, as the owner in fee of land under the street, has "the

right to use the sub-surface of the street for all lawful purposes that are consistent with

full enjoyment of the easement acquired by the public." Lanham v. Forney, 196 Wash.

62, 65, 81 P.2d 777 (1938); Nystrand v. O'Malley, 60 Wn.2d 792,795,375 P.2d 863

(1962).




                                              12
No. 34343-0-III
Simmons v. City of Othello


       The Simmonses have presented no evidence that their lateral line is part of the

municipal sewer system by virtue of city ownership of its component parts. The line was

presumably privately constructed. The current version of an Othello city ordinance that

was first adopted in 1955 3 dictates when property owners must connect to the public

sewer. It provides that the owner of real property within the city and within three

hundred feet of a sewer lateral or trunk line shall connect its toilet and sewer producing

facilities with the public sewer system "at his own expense" within 30 days after the city

building official mails a notice to connect. OMC 12.12.040 (emphasis added). No

evidence was presented that following the home's 1957 construction, its owner, having

constructed the lateral line at his own expense, ever donated it to and had it accepted by

the city.

       Finally, the Simmonses have not presented evidence raising a genuine issue of

material fact whether the city has ever assumed the control and management of their

lateral line. Under common law, assuming control and management of private sewers is

another way that a municipality can make them a part of the public sewer system.

Sigurdson v. City ofSeattle, 48 Wn.2d 155, 161-62, 292 P.2d 214 (1956) (quoting 18

EUGENE McQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS§ 53.118, at 467 (3d ed.



       3
        The Simmonses offered no earlier version of the ordinance, so we assume it was
not materially different in 1955.



                                             13
No. 34343-0-111
Simmons v. City of Othello


1950). Consistent with common law, city control is a characteristic of the "public sewer"

as defined by Othello's municipal code. OMC 12.04.050 (defining public sewer, in part,

as "controlled by public authority"). 4

       In Sigurdson, the city's assumption of control and management of a drainage

system constructed by the Works Progress Administration (WP A) was demonstrated by

the testimony of an assistant city engineer that the WP A had transferred the maintenance

function to the City Engineer's Office; and by the fact that the city had exercised control

and management for a period of approximately 18 years, making extensive repairs to the

system in 1937, 1941, 1948, and 1950. 48 Wn.2d at 160-61. In the summary judgment

proceedings below, the Simmonses offered no historical evidence that the city ever

assumed control and management of their lateral line.

       Othello's municipal code defines "public sewer" as also being "a sewer in which

all owners of abutting properties have equal rights." OMC 12.04.050. The Simmonses


       4
           Sigurdson states, quoting McQuillin,
               "Municipal liability is restricted to the public sewers which the
       corporation controls; it does not extend to private sewers and drains which
       it did not construct, nor accept. . . . But if sewers, drains or culverts
       constructed by third persons are, in some legal manner, adopted by the
       municipality as a part of its sewerage or drainage system, or the
       municipality assumes control and management thereof, the municipality
       becomes liable for injuries resulting therefrom, since in such cases it is
       immaterial by whom the sewer drain, or culvert was constructed."
48 Wn.2d at 161 (emphasis omitted).


                                             14
No. 34343-0-III
Simmons v. City of Othello


argue that OMC 12.12.040, the ordinance that requires property owners to connect to the

public sewer, applies to owners of property in the city "within three hundred feet of a

sewer lateral or trunk line" (emphasis added), and suggest that the owner of property

within 300 feet of their lateral line could connect to it, thereby making it a public sewer.

But as earlier observed, "lateral" is an adjective describing a spatial relationship between

any two lines, private or public. OMC 12.12.040 must reasonably be construed as

referring only to lateral public lines. The ordinance does not say that an owner of

property can connect to any line that is lateral to another, it says that the owner "shall

connect ... with the public sewer system, at his own expense." Not only is this clear

from a reading of the entire provision, but city design standards also say that "[ s]ide

sewer laterals"-meaning the portion of a lateral line falling within a public right-of-way

or easement-"shall be for a single connection only." CP at 49. 5




       5At the time of the repair, the city had public works design standards in place that
used the term "side sewer lateral," which
       is considered to be that portion of a sewer line that will be constructed
       between a main sewer line and a property line or easement limit line.
CP at 49. The term "private side sewers" is used in the design standards to mean
       the extension of side sewer laterals located outside of the public rights-of-
       way or easements granted to the City of Othello.
Id. These terms contemplate the type of street easement that existed for the alley adjacent
to the Simmonses' home. They describe the two parts of the Simmonses' lateral line.


                                              15
No. 34343-0-111
Simmons v. City of Othello


       Finally, the Simmonses' point to the fact that individuals must obtain a permit to

excavate in the city's alleys. But this is irrelevant to the issue of whether a lateral line

lying underneath an alley is controlled by the city. OMC 11.08.010, which requires

persons to obtain written permission from the street superintendent before obstructing,

disturbing, or interfering with the free use of the streets, alleys, sidewalks and other

public places, does not assert any control over connections to the main sewer line that are

installed by homeowners.

       The Simmonses fail to demonstrate any genuine issue of material fact requiring

jury trial of their negligence claim.

       Affirmed.




                                                       Cldthw~.~-
                                                   siddoway, J.
                                                                                  1




WE CONCUR:




Fear~~,:S,
                                                                                           j




                                              16
