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Zwar v. City of Seattle

November 25, 1996


Appeal from Superior Court of King County. Docket No: 95-2-04603-7. Date filed: 08/18/95. Judge signing: Hon. Nancy A. Holman.

The opinion of the court was delivered by: Becker

BECKER, J. -- A diaper became stuck in a sewer, causing the sewer to back up into the Zwars' basement and flood their home. Evidence that roots in the sewer contributed to the backup indicates that the City may have caused the problem by failing in its duty to inspect and maintain the sewers. The trial court therefore erred in granting the City's motion for summary judgment. Since the Zwars did not conclusively establish negligence in their own motion for summary judgment, we return the case for trial on all elements of the claim.


When the basement of his Seattle home flooded with sewage in November of 1994, Kurt Zwar called the Seattle Engineering Department. The crew sent by the Engineering Department discovered that the main sewer line was blocked at a location 100 yards from the Zwar residence. On the "backup report" filed after the investigation, the crew remarked that they had relieved a backup caused by a diaper and roots. City records indicate that the line which was blocked is not on a routine maintenance cycle. The Zwars sued the City. The Zwars moved for partial summary judgment to establish that the City was negligent in failing to maintain the sewer. The City moved for summary judgment of dismissal, asserting that the Zwars had no evidence of causation.

The City submitted the declaration of Andrew Anderson, an employee of the City Engineering Department who had assisted in removing the diaper from the line. Anderson declared that he had been employed by the City and worked on sewers for over 15 years, and had been involved in hundreds of situations requiring removal of obstructions from sewer lines. The obstruction at issue, he said, was a diaper which had swollen with water and clogged the line. He and his co-worker did find roots in the line, but "it is not uncommon to encounter the amount of root growth which we found in sewer lines such as this."

Anderson offered his opinion that the backup would not have occurred if the diaper was not clogging the line. He said the diaper would have caused the backup even without the root growth in the line. Two days before the summary judgment hearing, the Zwars submitted the declaration of Pat Brown, a plumber. Brown said that in his opinion the diaper would have passed through the sewer line unimpeded if it had not caught on roots or grease in the line. The court refused to consider Brown's declaration because it was filed outside the time limit specified in CR 56(c).

The court denied plaintiffs' motion and granted the City's motion, dismissing the case. From both orders, the Zwars appeal.


This court reviews a grant of summary judgment by engaging in the same inquiry as the trial court, reviewing the facts in the record and drawing all reasonable inferences in the light most favorable to the non-moving party. Sherman v. State, 128 Wash. 2d 164, 183, 905 P.2d 355 (1995). Summary judgment will be affirmed if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Sherman, 128 Wash. 2d at 183.

The City of Seattle has a duty to exercise ordinary care in inspecting and maintaining its sewer lines so that foreseeable uses of the sewer will not obstruct the line and cause a backup of sewage. Vitucci Importing Co. v. Seattle, 72 Wash. 192, 194, 130 P. 109 (1913); Nejin v. Seattle, 40 Wash. App. 414, 698 P.2d 615 (1985); accord Creighton v. Town of Windsor, 154 Vt. 348, 577 A.2d 681 (Vt. 1990). The Zwars attempted to establish a prima facie case of negligence by introducing a maintenance record produced by the City which stated in reference to the sewer at issue: "LINE NOT ON ROUTINE MAINTENANCE". The City did not respond to this evidence of its negligence, choosing instead to attack on the issue of causation. The Zwars now ask us to hold that there was negligence as a matter of law because under CR 56(e) the nonmoving party must, to defend against the motion, respond to evidence supporting the movant's claim.

The maintenance record is insufficient to establish, even prima facie, that the City breached its duty of reasonable inspection. There was no showing of how often the City must inspect, nor how frequent routine maintenance is. Thus there was no showing that "routine maintenance" was necessary to meet the City's duty. We therefore affirm the trial court's denial of plaintiffs' motion for summary judgment on the issue of negligence.


The City's motion for summary judgment challenges the plaintiffs' case solely on the basis of lack of proof of causation. Assuming the City did breach its duty to maintain the sewer, to survive summary judgment plaintiffs must show that the breach was a proximate cause of their injury. Nejin, 40 Wash. App. at 419-20. The Zwars' theory is that the presence of the roots was, at least in part, the cause of the backup. As evidence in support of this theory they offer the City's "backup report". The backup report states in part: "B/U CAUSE DIAPER & ROOTS". The City's maintenance record also indicates the presence of roots. These documents are evidence of causation, and therefore distinguish this case from Nejin, 40 Wash. App. at 420-22. In Nejin the plaintiff conjectured that a leaking sewer could contribute causally to a landslide, but introduced no evidence that it actually did.

The backup report was made by the Engineering Department crew members (including Anderson) who had significant experience with sewer backups and personal knowledge of the backup at issue. The City now relies on the later declaration of Anderson to prove the backup would have happened even in the absence of roots. Contrary to his original report, Anderson opines in his declaration that the sole cause of the backup was the diaper, an obstruction that no inspection could have discovered. ...

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