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Wednesday, August 27, 2014
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Published: Saturday, 6/21/2008

Is water a slippery situation for neighbor?

Dear Dale: The lots in my neighborhood are rather narrow and my property sits about two feet higher than the neighbors property. On that side of the house, my sump pump discharges water into my yard, but because my yard is higher the water runs into their driveway. I can t help it that my property is higher than theirs and I don t know what else to do with the sump. In the wintertime this could be a problem because it freezes and creates an icy spot. They haven t complained, but I must think about the future when they sell and someone else moves in who might complain. Also, would I be responsible if frozen water originating from my sump caused someone to slip and fall in their driveway?

Answer: You ve got a couple of related questions here. The first is whether you re essentially causing a trespass or nuisance on your neighbors property because the way in which the water from your sump pump discharges, and the second being whether you d be liable for a slip and fall from the resulting ice formation in the winter.

Water drainage issues create tricky questions of law. Generally, the owner of a higher property isn t responsible if surface water naturally flows to a lower property. The problems come in when the landowner alters the flow of surface water to the detriment of another property owner.

Property owners are not prohibited from making beneficial use of their land. It makes sense that a landowner may want to control surface water and channel it in one direction or another. That said, there can be consequences if the property owner alters the direction of surface water to the detriment of another.

The Ohio Supreme Court has adopted what s called the reasonable-use rule. The gist is that one can interfere with the natural flow of surface water even if it causes some harm to another property owner as long as the use is reasonable. The potential liability occurs only when the land use is unreasonable.

Determining what s reasonable and unreasonable becomes the key. Some of the issues used to make that determination are the extent of the harm, the utility of the alteration, the financial consequences of the harm, the burden of the harm, and whether the water was intentionally or unintentionally diverted to another s property. Those are pretty fact-specific questions so it s impossible to come up with a formula that would allow an outcome to be predicted.

The problem with your situation is that I m not sure whether water discharged from your sump pump constitutes surface water. While the water collected by your sump pump probably comes from rain or melting snow, I m not sure that it can still be termed surface water. It seems to me that you re directing water toward your neighbors property by pumping it to a spot that causes it to flow to their driveway. In a similar case, a court found a property owner liable for damages when his sump pump and drain system caused water to collect on a neighbor s property. Again, it s a fact-specific situation that would have to be viewed through the prism of the rules I wrote about above. My gut feeling is that your neighbors would have a case against you if they could show harm. A puddle of water in the driveway in the summer isn t the same thing as a dangerous sheet of ice in the winter.

And that brings us to the issue of whether you d be liable if someone slipped on a patch of ice created by the water draining from the pump. As a personal injury attorney, I can tell you I d try to make that case against you if one of my clients fell on the ice. Generally, people who slip and fall on a natural accumulation of snow and ice can t prove negligence. Here, I d argue that the ice hazard was man made and that you were the cause of it. The fact that you re aware of the risk you re creating would strengthen the case against you.

So, I guess you could take a few approaches. You could try to find a way to direct the hose from the pump in a way that the water wouldn t flow to your neighbors property, or at least wouldn t flow to their driveway. That way you d protect yourself from a nuisance suit and prevent a potential injury.

Or, you could hope it never becomes an issue. If it does, a court may find that you ve made reasonable use of your property and you haven t created a nuisance just because the water is flowing downward on to your neighbor s property. And, the possibility of an injury claim is probably pretty remote and I m guessing you have homeowner s insurance if you do get sued.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604.



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