Simmons v. City of Othello, 34343-0-III

Citation399 P.3d 546,199 Wash.App. 384
Decision Date27 June 2017
Docket NumberNo. 34343-0-III,34343-0-III
Parties Donald and Katrina SIMMONS, husband and wife, Appellants, v. CITY OF OTHELLO, Respondent.
CourtCourt of Appeals of Washington

Alicia Marie Berry, Liebler Connor Berry & St. Hilaire PS, 1141 N. Edison St., Ste. C, Kennewick, WA, 99336-1434, for Appellants.

Kelly E. Konkright, Lukins & Annis, P.S., 717 W. Sprague Ave., Ste. 1600, Spokane, WA, 99201-0466, for Respondent.

Siddoway, J.¶1 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.

¶2 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.


¶3 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.

¶4 In mid-March 2014, the Simmonses began experiencing problems with sewer backup in the home. Within a matter of weeks, the lateral line1 that connects their home to the main sewer line was completely blocked. The city's public works department twice checked the operation of the main sewer line that runs the length of the alley and confirmed it was flowing freely.

¶5 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.

¶6 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.

¶7 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.

¶8 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.

¶9 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.

¶10 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.

¶11 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.


¶12 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 Wash.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 law." CR 56(c). We construe all facts and all reasonable inferences in the light most favorable to the nonmoving party. Volk , 187 Wash.2d at 254, 386 P.3d 254.

¶13 A defendant may move for summary judgment by showing that there is an absence of evidence to support the plaintiff's case. Young v. Key Pharm. , 112 Wash.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, 770 P.2d 182 (citing Celotex , 477 U.S. at 322, 106 S.Ct. 2548 ).

¶14 "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 Wash.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 Wash.2d 358, 368, 357 P.3d 1080 (2015) (citing Folsom , 135 Wash.2d at 662-63, 958 P.2d 301 ).


¶15 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 conclusory statements will not defeat [a summary judgment] motion." Suarez v. Newquist , 70 Wash.App. 827, 832, 855 P.2d 1200 (1993).

¶16 Statements of former 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.

¶17 The city moved to strike a third statement by Mr. McKay as expressing a legal opinion:

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.

CP at 317-18, 81-82. Courts will not consider legal conclusions in a motion for summary judgment. Ebel v. Fairwood Park II Homeowners' Ass'n , 136 Wash.App. 787, 791, 150 P.3d 1163 (2007) (citing Keates v. City of Vancouver , 73 Wash.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.

¶18 Statements of plumbers 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...

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