Court of Appeals of Arizona, First Division, Department C
WILLIS and KATHY HAWS, husband and wife, Plaintiffs/Appellants,
TOWN OF EAGAR, a municipal corporation in the State of Arizona, Defendant/Appellee.
Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure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
Goodman Law, PLLC Phoenix by Jeremy M. Goodman Attorneys for Plaintiffs/Appellants
The Doyle Law Firm, PC Phoenix by William H. Doyle Attorneys for Defendant/Appellee
RANDALL M. HOWE, 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.
¶3The 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. The Haws opposed the motion for summary judgment, arguing that the following warranted a denial of 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 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.
¶6On 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.
¶7Summary judgment may be granted when no genuine issue exists 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 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 ...