NORMA ACOSTA and GILBERT ACOSTA, individually, and the marital community comprised thereof, Appellants,
CITY OF MABTON, a municipal corporation, Respondent.
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.
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'
STANDARD FOR REVIEWING SUMMARY JUDGMENTS
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 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.
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.
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."
Papers (CP) at 416.
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.
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
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
[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 ...