Van Meter v. City of Wells et al

Filing 32

ORDER granting 21 Motion for Summary Judgment; denying 22 Motion to Reconsider. Clerk shall enter judgment and close case. Signed by Chief Judge Robert C. Jones on 7/30/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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RON VAN METER et al.,
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Plaintiffs,
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vs.
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CITY OF WELLS et al.,
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Defendants
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3:12-cv-00282-RCJ-WGC
ORDER

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This case arises out of sewage backup up into a residence. Before the Court is a Motion

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for Summary Judgment (ECF No. 21) and a Motion to Reconsider (ECF No. 22). For the

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following reasons, the Court grants the Motion for Summary Judgment and denies the Motion to

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Reconsider.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiffs Ron and Jody Van Meter have owned and resided at a house located at 356

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Castle Street in Wells, Nevada since 1989. (Compl. 4, ECF No. 1). On October 19, 2011,

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Defendant City of Wells’s (the “City”) sewer line “failed to function as intended,” and raw

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sewage “invaded” Plaintiffs’ basement (the “first incident”). (Id. at 4–5). Plaintiffs contacted

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Trail 40 Corp., a plumbing company, to inquire into the reason for the sewage. (Id. at 5). Trail

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40 Corp. advised that “a defective City of Wells sewer line caused the sewage to backup into

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Plaintiffs’ basement.” (Id. (emphasis omitted)). On October 24, 2011, Plaintiffs contacted

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Defendant Jolene M. Supp, the City Manager, and requested that the City clean up the mess and

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compensate Plaintiffs for the damage to their residence and personal belongings. (Id.). Supp

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declined both requests, so Plaintiffs cleaned up the raw sewage in their basement. (Id.).

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Defendants also did not take action to fix the defective sewer. (Id.).

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On November 3, 2011, more raw sewage “physically invaded” Plaintiffs’ basement from

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the same defective sewage line (the “second incident”). (Id. at 6). Plaintiffs contacted Supp and

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she again declined to compensate Plaintiffs and clean up the sewage. (Id.). The City still has not

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corrected the problem with the sewer. (Id.). As a result of the incident, and because the

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ventilation lines for the house are drawn from the basement, Plaintiffs’ entire house smells like

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sewage. (Id.). Plaintiffs are deterred from cleaning up the sewage themselves because they are

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worried the sewer will just leak again. (Id. at 7). They also allege that the sewer is a public

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improvement, and “[t]he disposing, transporting, and treating of raw sewage” concerns the whole

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community. (Id.). They allege that Plaintiffs have contributed more than their share to the public

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undertaking, and the City should compensate Plaintiffs for their trouble. (Id.).

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Plaintiffs sued the City and Supp on nine nominal causes of action: (1) declaratory relief

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under 28 U.S.C. §§ 2201 and 2202; (2) civil constitutional claims under 42 U.S.C. § 1983; (3)

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inverse condemnation under Article I § 8(6) of the Nevada Constitution (against the City); (4)

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negligence; (5) intentional infliction of emotional distress; (6) trespass; (7) breach of implied

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contract (against the City); (8) private nuisance (against the City); and (9) respondeat superior

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(against the City). (See id. at 9–14). Defendants moved to dismiss. The Court dismissed the first

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and ninth claims, as well as the second through eighth claims insofar as they arose out of

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Defendants’ failure to inspect the sewage pipes before the first incident, without leave to amend.

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The Court refused to dismiss the second through eighth claims insofar as they arose out of

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Defendants’ failure to clean up the sewage, compensate Plaintiffs, and repair the sewage pipe

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after the first incident. Defendants have now moved for summary judgment, and Plaintiffs have

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asked the Court to reconsider the earlier dismissals.

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II.

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LEGAL STANDARDS
A court must grant summary judgment when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if

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there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See

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id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary

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judgment, a court uses a burden-shifting scheme:

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When the party moving for summary judgment would bear the burden of proof at
trial, it must come forward with evidence which would entitle it to a directed
verdict if the evidence went uncontroverted at trial. In such a case, the moving
party has the initial burden of establishing the absence of a genuine issue of fact
on each issue material to its case.

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C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations

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and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden

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of proving the claim or defense, the moving party can meet its burden in two ways: (1) by

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presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by

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demonstrating that the nonmoving party failed to make a showing sufficient to establish an

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element essential to that party’s case on which that party will bear the burden of proof at trial.

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See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden,

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summary judgment must be denied and the court need not consider the nonmoving party’s

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evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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If the moving party meets its initial burden, the burden then shifts to the opposing party

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to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing

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party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment

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by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and

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allegations of the pleadings and set forth specific facts by producing competent evidence that

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shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.

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At the summary judgment stage, a court’s function is not to weigh the evidence and

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determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477

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U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are

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to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely

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colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50.

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III.

ANALYSIS
Defendants adduce the affidavit of Dennis Calton, a public works employee with the

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City. Calton responded to the first incident with fellow employee Gus Villalobos. (See Calton

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Dep. 11–13, Apr. 10, 2013, ECF No. 21-1, at 52). Upon using a “jet rooter” to clear the line

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downstream from Plaintiffs’ house, Calton discovered that “some shop towels and a rag like a T-

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shirt or something” had been causing the blockage. (See id. 13, 16). Calton indicated that there

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were twelve residences upstream from the blockage (seven single-family homes and one five-

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residence apartment building), and there was no way to know which residence was the source of

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the items simply from inspecting the blockage itself. (See id. 18, 26). Calton told Jody Van

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Meter she could “put a back check in the system” and that “[t]hey are not a complete failsafe, but

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a lot of times they will keep something from coming back in when the line does plug up.” (Id.

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Defendants also adduce the affidavit of Jason Pengelly, the public works supervisor for

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the City. (See Pengelly Dep. 12, Apr. 10, 2013, ECF No. 21-1, at 62). Pengelly was on leave

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during the first incident, but Calton had verbally reported it to him. (Id. 20–21). Pengelly

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responded to the second incident himself and found a blockage similar to the blockage Calton

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had reported from the first incident, i.e., “[h]eavy duty paper shop towels, like the ones you can’t

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even tear.” (Id. 21, 24). The blockage was not a remnant of the first incident, but rather new

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material, because no foreign material from the first incident could have survived the jet rooter,

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which creates pressure of 1500–2000 pounds per square inch. (Id. 22). The foreign material

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would have caused a blockage even if the pipe had been bigger; it would simply have taken a bit

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longer to clog. (Id.). There were only three houses and one apartment complex upstream from

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the blockage, so the culprit must have put the material into the line from one of those residences.

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(Id. 25).

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Defendants have satisfied their initial burden on summary judgment to show that there

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was no deliberate indifference or negligence on their part, negating any constitutional, IIED, or

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negligence claim. Nor was there any intent to invade Plaintiff’s property, negating a trespass,

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takings, or condemnation claim. Nor was the sewage backup the result of any voluntary action

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by the City on its own land adjacent to Plaintiffs’, negating a nuisance theory. Defendants have

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provided evidence negating any intentional act by them causing any damage. The evidence

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shows that the second incident was caused by one of Plaintiffs neighbors, or perhaps even by

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Plaintiffs, but there is no evidence it was caused by Defendants. At most, Plaintiffs can accuse

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Defendants of negligence in failing to continuously inspect and maintain the sewer lines, but, as

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Defendants have noted, they are immune from claims based upon such allegations pursuant to

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Nevada Revised Statutes section 41.033. A person may not sue a municipality or its employees

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for:

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(a) [f]ailure to inspect any building, structure, vehicle, street, public
highway or other public work, facility or improvement to determine any hazards,
deficiencies or other matters, whether or not there is a duty to inspect; or
(b) [f]ailure to discover such a hazard, deficiency or other matter, whether
or not an inspection is made.

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Nev. Rev. Stat. § 41.033(1)(a)–(b). Municipalities in Nevada are immune from suit for a failure
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to inspect sewer systems in order to discover obstructions or other deficiencies. See Fischmann v.
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City of Henderson, 556 P.2d 923, 924 (Nev. 1976) (holding that the City of Henderson was
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immune from suit for failing to inspect sewage lines after raw sewage leaked in to the plaintiff’s
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house); Schroeder v. Ely City Mun. Water Dep’t, 910 P.2d 260, 261–62 (Nev. 1996) (holding
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that the City of Ely was immune from suit for failing to maintain a sewer when sewage leaked

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into the plaintiffs’ businesses). The Court previously noted that in Fischmann and Schroeder,

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the plaintiffs sued after only a single incident of flooding, see Fischmann, 556 P.2d at 923;

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Schroeder, 910 P.2d at 261, but that here, Plaintiffs allege that Defendants did not fix the

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problem after the first flooding, thereby causing the second incident. The Court therefore

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permitted the second through eighth claims to proceed to discovery insofar as they were based

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upon the second incident, because it was possible Plaintiffs could show Defendants actually

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caused the second incident through actions for which they would not be immune, e.g., by causing

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a clog in the line itself or through some other affirmative action causing the second flooding.

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But the only evidence adduced indicates that Defendants fixed the problem after the first incident

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and that the second incident was not caused by any intentional act or even negligence on

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Defendants’ part, except insofar as Plaintiffs argue that Defendants were negligent in not

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inspecting the sewer lines to keep them free of obstructions, which claim is barred by section

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41.033.

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In response, Plaintiffs first argue that the Motion for Summary Judgment is untimely.

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They are correct. The Scheduling Order indicated May 27, 2013 as the deadline for filing

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dispositive motions, and Defendants filed the Motion for Summary Judgment on May 28, 2013.

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Defendants do not have the benefit of the holiday rule, because the Scheduling Order specified

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the date directly and did not require any computation. However, because the Motion is

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meritorious, an extension to consider it is much more in the interest of judicial economy than to

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strike it and require a trial. Accordingly, the Court grants a one-day extension.

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As to the merits, Plaintiffs adduce several relevant pieces of evidence. First, Plaintiffs

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adduce City Manager Jolene Supp’s deposition transcript. (See J. Supp. Dep., Apr. 10, 2013,

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ECF No. 23-1, at 5). Supp confirmed Calton’s and Pengelly’s testimony as to the cause of the

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blockages and testified generally as to the sewer system but did not indicate any affirmative

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actions taken by the City that could have caused the blockage. (See generally id.). Although

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counsel questioned her repeatedly about the City’s inspection and maintenance policies and the

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sufficiency of the City’s efforts to discover the culprit(s) who flushed the foreign material and to

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inform residents not to flush foreign material, those questions were directed at discovering facts

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that might lead one to conclude that the City was negligent in the way it maintained and

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inspected the sewer lines. The City is immune from such claims.
Plaintiffs also adduce Calton’s and Pengelly’s deposition transcripts. They did not testify

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as to any affirmative act taken by any agent of the City causing the blockage but only that they

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failed to discover exactly who was flushing the foreign material. Jody and Ron Van Meter

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testified consistently with Calton and Pengelly and did not indicate any affirmative action taken

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by the City to cause the invasion. (See generally J. Van Meter Dep., Apr. 9, 2013, ECF No. 23-2,

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at 4; R. Van Meter Dep., Apr. 9, 2013, ECF No. 23-2, at 17).

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Plaintiffs have not satisfied their shifted burden to show a genuine issue of material fact

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as to any of their claims. Plaintiffs adduce no evidence indicating that Defendants took any

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affirmative action indicating any intent to cause the invasion or that Defendants were negligent

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in any way for which they are not immune. At most, the evidence shows that Defendants failed

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to continuously inspect the sewer line to keep it free of debris, and, again, Defendants are

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immune from claims arising out of this kind of alleged negligence. The proper defendant in this

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case is the party that flushed the foreign material, as there is no genuine dispute of fact that this is

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what caused the blockage. There is no evidence adduced that the City or its agents flushed the

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material, there can be no res ipsa inference where it is clear that the occupants of twelve private

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residences had the ability to cause the blockage by flushing foreign material, and the City is

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immune from claims based upon its failure to discover the foreign material. See Fischmann, 556

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P.2d at 924 (“It appears clear to this court that the legislative intent was that political

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subdivisions are not to be held liable to lawsuit for failure to inspect sewer systems in order to

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discover obstructions or other malfunctionings and deficiencies.”).

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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 21) is
GRANTED.

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IT IS FURTHER ORDERED that the Motion to Reconsider (ECF No. 22) is DENIED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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DATED 16th day
DATED:this 30th dayofJuly, 2013.
July, 2013.
Dated thisThis 8thdayofofJuly, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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