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Acosta v. City of Mabton

Court of Appeals of Washington, Division 3

January 18, 2018

NORMA ACOSTA and GILBERT ACOSTA, individually, and the marital community comprised thereof, Appellants,
CITY OF MABTON, a municipal corporation, Respondent.



         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 81/2 inch ball, as the City claimed. In making this assertion, they set forth plausible arguments why a trier of fact might reasonably disbelieve City employees who claim that an 81/2 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.


         "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." SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d40 (2014). With this in mind, we set forth the facts favorably to the Acostas.


         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 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 mayor. In response to her complaint, Mayor Mario Martinez said:

"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.

          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 ...

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