HAWS v. EAGER

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE WILLIS and KATHY HAWS, husband and wife, ) ) ) Plaintiffs/Appellants, ) ) v. ) ) ) TOWN OF EAGAR, a municipal ) corporation in the State of ) Arizona, ) ) Defendant/Appellee. ) DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0580 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Apache County Cause No. S0100CV201100180 The Honorable Donna J. Grimsley, Judge AFFIRMED Goodman Law, PLLC by Jeremy M. Goodman Attorneys for Plaintiffs/Appellants Phoenix The Doyle Law Firm, PC by William H. Doyle Attorneys for Defendant/Appellee Phoenix H O W E, Presiding Judge ¶1 The Haws appeal from the entry of summary judgment against them on their claim that the Town of Eagar, Arizona, was negligent in maintaining and inspecting its sewer system. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 The undisputed facts are as follows: The Haws own a home in Eagar. In December 2010, sewage backed up in the sewer line and flooded the Haws home. An obstruction in the main sewer line that the Town owned and operated caused the backup and flood. The Town had inspected the sewer line one to two months before the flood without incident. After the backup and flood had occurred, the Town began inspecting the sewer line at least twice a week. ¶3 The Haws sued the Town for its negligence in maintaining and inspecting the sewer line. The Town moved for summary judgment, arguing that its only duty was to exercise ordinary or reasonable care to keep the sewers in safe condition, and that it had met this duty by its sewer inspection schedule. As part of this schedule, the Town inspects sewer manholes that have regular problems every two to three months, and also examines manholes in the vicinity of those with regular problems. arguing The that Haws the opposed following the motion warranted for a summary denial of judgment, the Town s motion: (1) The doctrine of res ipsa loquitor gave rise to an inference of negligence on the part of the Town; (2) The Town negligently maintained conditions 2 in its sewer system, which allowed introduction of foreign objects into the system; (3) The Town failed to perceive foreseeable threats to the sewer system s integrity; and (4) The Town was on notice for at least twenty years that the manhole covers did not protect the sewer from the entry of foreign objects. ¶4 The court ruled that the applicable standard was whether the Town had exercised ordinary and reasonable care to keep the sewer line from obstruction. Based on the evidence and argument presented, the court found that the Town did not fail[] to exercise the requisite level of care and granted the motion for summary judgment. ¶5 The Haws moved for reconsideration which was denied. The Haws timely appeal. DISCUSSION ¶6 On appeal, the Haws argue that summary judgment was improper because the determination whether the Town s inspection schedule was adequate and whether the manhole covers adequately secured the sewer against debris were questions of fact for a jury. ¶7 exists Summary judgment may be granted when no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Johnson v. Earnhardt s Gilbert Dodge, Inc., 212 Ariz. 381, 385 ¶ 15, 132 P.3d 825, 829 (2006). We determine de novo whether any issues of material fact 3 exist and whether the trial court properly applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130 ¶ 4, 7 P.3d 136, 139 (App. 2000). We view the evidence in the light most favorable to the nonmoving party. Tilley v. Delci, 220 Ariz. 233, 236 ¶ 7, 204 P.3d 1082, 1085 (App. 2009). ¶8 The party moving for summary judgment must produce evidence that it believes demonstrates the absence of a genuine issue of material fact and must explain why summary judgment is warranted. Nat l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115 ¶ 14, 180 P.3d 977, 980 (App. 2008). If the nonmoving party has the burden of proof of the claim or defense at trial, the moving party need not disprove the nonmoving party s claim or defense, but need only point out the lack of evidence on an essential element of the claim or defense. Id. at 117 ¶ 22, 180 P.3d at 982. If the moving party meets its burden, the burden shifts to the nonmoving party to present sufficient evidence demonstrating the existence of a disputed fact. Id. at 119 ¶ 26, 180 P.3d at 984. The nonmoving party cannot then rest on its pleadings, but must call to the court s attention evidence to explain why the motion should be denied. Id. If the party with the burden of proof on the claim or defense cannot respond to the motion by showing that there is evidence creating a genuine issue of fact on the element in question, then the motion for summary judgment 4 should be granted. Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). ¶9 General statements or allegations by counsel are insufficient to defeat a summary judgment motion: When a motion for summary judgment is made and supported as provided in this Rule, an opposing party may not rely merely on allegations or denials of affidavits its or own as pleading; otherwise specific facts showing opposing party does a not rather, provided genuine so its in this issue respond, response Rule, for summary must, set trial. by forth If the judgment, if appropriate, shall be entered against that party. Ariz. R. Civ. P. 56(e)(4); see also In re Estate of Kerr, 137 Ariz. 25, 29-30, 667 P.2d 1351, 1355-56 (App. 1983) disapproved on other grounds by In re Estate of McGathy, 226 Ariz. 277, 246 P.3d 628 (2010). ¶10 To establish a claim for negligence, the Haws must have shown that the Town had a duty to conform to the standard of care; the Town breached this duty; that a connection existed between the Town s conduct and the resulting injury; and that they suffered actual damages. Wickham v. Hopkins, 226 Ariz. 468, 470 ¶ 8, 250 P.3d 245, 247 (App. 2011) (listing the elements for negligence). In moving for summary judgment, the Town argued that [t]he duty of a municipality to keep its sewers in repair involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time and preventing 5 them from becoming dilapidated or obstructed, citing City of Tucson v. Hughes, 23 Ariz. App. 350, 351, 533 P.2d 561, 562 (1975). The Town argued that it exercised a reasonable degree of watchfulness in ascertaining the condition of its sewers from time to time by complying with its regular sewer inspection schedule. ¶11 To survive the motion for summary judgment, the Haws had to point to specific evidence demonstrating that a question existed regarding whether the Town had breached its duty. Alternatively, if the Haws could not do so by the time required for a response to the summary judgment motion, they could have requested time for further discovery under Arizona Rule of Civil Procedure 56(f). Instead, the Haws rested upon their claims that the Town was negligent because it failed to protect the sewer system from foreign objects and that the sewer inspections were too infrequent. The superior court, however, cannot rely on the Haws unsupported claims. Although the Haws attached to their opposition two unsworn, unsigned written statements described as Affidavits, the superior court could not properly have considered those documents as evidence in considering the Town s 6 motion. See Ariz. R. Civ. P. 56(e)(1); 80(i). 1 Because the Haws did not properly support their claims, summary judgment was proper. CONCLUSION ¶12 For the foregoing reasons, we find no error and affirm. __/s/_____________________________ RANDALL M. HOWE, Presiding Judge CONCURRING: _/s/_________________________________ SAMUEL A. THUMMA, Judge _/s/_________________________________ PATRICIA A. OROZCO, Judge 1 Although the original complaint was verified by plaintiff Kathy Haws, the amended complaint in place before the Town s motion was not verified. Moreover, even if it had remained operative, the Haws do not argue that the verified original complaint would have precluded the court from granting the Town s motion for summary judgment. 7

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