Sump Pump Chump Dumped on Rump, Seeks Plump Sum

January 30, 2013 at 3:00pm By: Mr. Wilson Posted in The Lincolnite Blog

Back in August 2011, Christopher Hepburn wiped out while riding his bike along the SouthPointe Trail between 32nd and 34th Streets. Now he’s suing the current and former owners of the home adjacent to where he fell. Hepburn isn’t after some little payout, either. He’s after at least $100,000 for medical expenses, plus the traditional “pain and suffering” bonus.

The Journal Star first posted their article about this lawsuit on the 26th. I was going to write something about it then, but I decided to hold off to gauge the reaction. I’m glad I did. The general tone of comments on the article, as well as conversations I’ve had elsewhere, is that Mr. Hepburn is a jerk looking for a free payday. And maybe he is. Perhaps he’s exaggerating his case, as those who sue have been known to do, in order to make a little cash. Perhaps he should “man up”, accept the fact that he’s a clumsy oaf, and stop trying to blame other people for his problems. I’ve certainly said that before about folks involved in lawsuits.

I don’t think it’s that simple. First off, if Mr. Hepburn were after an easy payday he should have included the City of Lincoln in his lawsuit. The accident happened on a public trail after all. If the lawsuit were all about the money, wouldn’t you include the source with the largest checkbook?

Second, there’s the fact that the portion of trail Mr. Hepburn wiped out on should have been perfectly safe at that time of year. He didn’t crash on a patch of black ice or a sneaky bit of frost. Nor did the crash occur on a steep hill, a winding curve, or an area prone to goose attacks. (The latter can be experienced just a few blocks north and east of the accident location on the Tierra/Williamsburg Trail.) It should have been a perfectly normal chunk of concrete.

The lawsuit implies that the home’s sump pump was sending water off the property, across the bike trail, and into the adjacent drainage ditch. That’s not necessarily an awful thing, particularly if water is only sent across the trail periodically. If it only happened after a large rainfall, for example, the trail would likely be wet anyway. In addition, it’s not an unusual situation. The City of Lincoln directs storm water across the Billy Wolf Trail along Capitol Parkway and in the 27th & Capitol Parkway underpass. Signs warn of potentially slippery conditions.

But what if the sump pump was sending water onto the trail even in otherwise dry conditions? That situation would present two dangers: (1) it could promote the growth of slippery, slimy algae, mold, or the like; and (2) the slippery conditions would catch trail users off guard because who expects slime on a well-used trail on an otherwise hot and dry day? Sure, trail users must be vigilant to protect themselves from the sorts of dangers they might reasonably expect to encounter on a public trail—bumps and dips in the concrete, for example. But somewhere there lies a corresponding responsibility of those who might somehow “harm” the trail or its ability to be used. The same is true for every public good, including sidewalks, roads, public utilities, and so forth.

Indeed, it’s illegal to push snow from your property into the street for this very reason. It’s reasonable for drivers to expect certain conditions when driving in the snow. But when a property owner puts his snow into the street, the conditions may be worse than a driver could reasonably expect. There might be a larger-than-expected “hump” of snow, for example, which could cause a loss of control. Or pushing snow onto an otherwise clear road could make that section of the road unexpectedly slick.

I don’t know if the homeowners should be held financially responsible for Mr. Hepburn’s injuries. I don’t know if they were aware that their sump pump had (allegedly!) created a dangerous situation. (Who thinks to ask their builder, “Hey, did you install the sump pump such that it won’t create hazardous conditions on that bike trail out back?”) But I do know that Mr. Hepburn can’t automatically be assumed to be an idiot or an asshole. Give the guy a chance to make his case.

And while it’s on your mind, go check your property (and adjacent public areas) for any obvious unsafe conditions you might be causing. Save yourself a headache later on.

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The Comments

iowa_steve January 30, 2013 at 6:37pm

Doesn’t this chap’s mode of transportation have an effect on the burden of risk that he bears?  Was he flying down the path at EPO-enhanced speeds?  An inexperienced rider?  An overconfident rider? What if he’d fell while juggling knives riding a unicycle?  Was he wearing “proper” safety equipment for his mode of transport?  Helmet?  Full-faced helmet?  Kneepads? Elbowpads? Shinpads? Gloves? Full leathers?  Is a juror to be called every time a trail user falls/crashes to judge whether or not he/she was doing so safely?

And do not there have to be separate standards of “expected” conditions for each mode of transportation? The “expected” conditions an adjacent property owner might be expected to maintain for cyclists might be completely different for other users. For example, a skateboarder might be dismounted by a single pebble that migrated from the landowners property onto the trail surface, yet the cyclist would nary notice its presence. 

If the trails are to remain free and functional, they must operate under a “use at your own risk” policy. I’d think even the most unsophisticated juror would be hard-pressed to set a dangerous precedent by ruling in favor of Mr. Hepburn.

Scott January 30, 2013 at 6:58pm

He did try to get $200k from the city of Lincoln:

http://lincoln.ne.gov/city/council/agenda/2012/082012/12r197a.pdf

Mr. Wilson January 30, 2013 at 7:24pm

Aha! Thank you for finding that.

Fletch January 30, 2013 at 8:59pm

This is a tricky one for me. Did he really have $100,000 in medical expenses? How much pain and suffering could there be? Was he wearing a helmet? If not, was that the fault of the owner?

I used to run and ride on that exact trail quite frequently. I lived to the neighborhood south of there, and there are serious underground water issues. My house was built in 1997 with no sump pump installed. The pit stayed bone dry. Soon after, they dug basements for 2 new houses to the north of me, and I had water issues from that day forward. Sump pump was put in right away. It ran every 2-3 minutes, around the clock, on almost any given day of the year.

There seem to be many underground streams in Pine Lake Heights, so it could be true in Williamsburg. Simply drive around and view the curb cuts with water/ice nearby.

At first, we pumped the water out of the house and into the yard. It didn’t drain and turned into a mosquito breeding ground/swamp, so we buried PVC and drained it to the sidewalk. It flooded over the sidewalk so much that the sidewalk and driveway turned color - they did not get green and slimy, but they were slick.

I then extended the PVC under the sidewalk and over the curb, which colored the curb and led to much ice in the street. The city would not allow us to pump it directly into the sewers.

Eventually, I had to hire Thrasher, who put in a 2nd sump pump, merged both the lines pumping out of the house, and added an “ice dam” so the water could exit the house and not freeze in the winter, to keep it pumping. Between my house the the 2 next door, a ton of water ended up in the street and led to a lot of ice - 5-6 feet out (or more) from the curb. In my case, the question would be, what else could I have done? Where else could the water have gone?

I don’t know the particulars with the homeowners above. Have they done everything reasonably possible? No clue.  If it is due to the land on which they built the house, I don’t know how the homeowner should be at fault.

Thus, I remain torn.

Bill Dinger January 31, 2013 at 6:21pm

I walk this trail hundreds of times a year and this property (and another much further south) have areas that are constantly wet due to sump pumps and drainage sending water across the trail. It creates slick zones of moss that last the entire year round.

If you don’t know about them you can definitely fall if you aren’t paying attention but, at the same time, shouldn’t you just be paying attention? I mean, I’ve falled before off them as well because I was absent minded.

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