By: Fiona Morgan

A local business owner, Nina Kirkland with Coldwell Banker VIP Realty, has filed a civil lawsuit alleging that the Downtown Streetscape Project caused flooding in her building.

The lawsuit is against the City of Danville; Louisville Paving Company; LPX, Inc.; Pace Contracting; and Gresham Smith, which is the project’s design firm. These parties are involved with the Streetscape Project, which was aimed at widening the sidewalks in downtown Danville.

The project started in the summer of 2022, with a goal of creating safer sidewalks with more space for pedestrians to walk and sit outside.

Kirkland owns the property at 317 W. Main St. in Danville, where she runs the real estate company VIP Realty. According to the suit, she’s owned the building for 43 years and has never had major flooding, aside from a small amount of water seepage in the basement after severe rainfall.

Around November 2022, when sidewalk construction began in front of Kirkland’s building, “the property has experienced severe flooding in its basement,” the suit says. “The flooding occurs after any rainfall event, regardless of its severity.”

According to the suit, the flooding has caused water and mold damage to the building, and damage to personal property and business records stored in the basement. Exhibit A in the suit shows photos of boxes and drawers of files sitting wet in several inches of water.

Kirkland’s lawyer Ephraim Helton said that just last week, the building had two to three inches of water in the basement again. While they don’t have a verified source or cause of the flooding yet, since construction and the flooding started around the same time, that timing can be used as evidence. He explained a legal term called “res ipsa loquitur,” which is Latin for “the thing speaks for itself.”

“So if you previously never had a problem, and the only reason you have a problem now is due to something new occuring, that new occurrence has created that problem,” Helton said.

Helton explained that there was an old well located a bit west of Kirkland’s building, which is shown on an old City of Danville map. Helton believes that the well was collecting water runoff from an underground spring.

“Under all of these properties that start right about where Kirkland’s property is, there’s an underground spring that runs from that area, a little bit east of Fourth Street, and it runs all the way down to Centre College,” Helton said. “Right about at St. Mildred’s Court, you’ll see a dip there, that’s where that spring empties out.”

Helton said they have witnesses who say that construction workers filled in or dammed up the well, and allegedly knew the risk of doing so.

“We have people that will testify that they talked to construction workers, and they filled in this well, and we believe the well was taking excess runoff from all of the buildings,” Helton said.

He continued, “The construction worker, and I don’t have a sworn affidavit at this point, the construction worker actually said ‘we believe this may flood a lot of properties around here,’ and they filled it in.”

The Advocate-Messenger did not hear back from attempts to get comment from Louisville Paving Company, LPX, Inc., Pace Contracting, and Gresham Smith.

Danville City Manager Earl Coffey said that the city does not comment on active litigation.

The lawsuit is in the initial stages of collecting and verifying statements. Witnesses are currently putting together statements. They haven’t had any discovery yet, which is when parties exchange information and evidence. They will be starting to file interrogatories and requests for documents.

While they don’t know for a fact where the water is coming in from, Helton said evidence suggests that water is coming up from the ground.

Kirkland technically owns two buildings, which from the front, appear as one building with two sides. They took up flooring in the basement of her adjacent building at 313 W. Main St., which is a different elevation than the building at 317 W. Main. The flooring in the adjacent building was still dry.

“I’m not an engineer, but based upon what I saw today, it further supports that I think this water is underground water; it’s coming up from under the foundations,” Helton said.

He said they learned that several other buildings right next to Kirkland’s have also experienced recent major and minor flooding.

Helton owns the building at 432 W. Main St., which was built in 1887. The underground spring also runs under his building, except his building has a sump pump, whereas some of the others on Main Street didn’t need one up until now.

“The buildings that were kind of down the slope of Main Street, you knew you were going to have water here,” he said.

Helton said they tried to get compensation for the flooding damage before filing the lawsuit, but were turned down.

“We tried to resolve this very amicably with the city … and we couldn’t get any movement,” Helton said. “So the city suggested we discuss this with the contractors. We sent all of our damages to the contractor, the remediation costs, the damage to personal property, and the contractor said ‘not our fault, it’s the architects.’ At that point we were left with no choice but to sue the city, the contractor, and the architect, and they’re going to have to figure out which of them caused this problem.”

Exhibit B in the suit shows an estimate of $32,263 for fixing structural damage and waterproofing of Kirkland’s property. An estimate for mold damage remediation is $6,424.

“Kirkland is not trying to obtain any large settlement or amount of money from the city, the contractor, or the architect,” Helton said. “What she is trying to do is simply be compensated for the destruction of all of her personal property, … to stop the rainwater that’s coming into the basement, … and to remediate black mold.”

Helton said they are working with the city to install a sump pump for a short term solution. However, they have to figure out how to discharge the water from the sump pump with concrete all around the building. He said the city is working with them in good faith to install a sump pump.

Further allegations

Another goal of the Streetscape Project was to slow down traffic on Main Street. Crews have or are installing new street and sidewalk lights, new traffic light poles, new trees, curb bump-outs, and overhead utility relocation. The overall goal is to create more pedestrian safety, and for more people to shop downtown.

However, the suit alleges that, “Despite the above-quoted lofty goals the City of Danville claimed to have for the project, in reality, the project has decimated downtown-based small businesses by making foot traffic on sidewalks hazardous or impossible, blocking or complicating access to those buildings, causing traffic congestion, and complicating, or for periods completely eliminating, convenient downtown parking for these businesses.”

“The above-described disruptions caused by the City of Danville’s Project has resulted in the loss of thousands of dollars in income to the same small business owners the project purportedly was meant to assist, including plaintiffs,” the suit alleges.

Earlier this year, Danville sent grants of up to $10,000 to eligible downtown businesses that lost revenue due to sidewalk construction. However, since construction continued through the summer, businesses have likely lost even more revenue.

“I think it’s very sad that the city spends all this money on this project, and they have in essence devalued, and caused a great deal of economic hardship, on one of our major Main Street properties,” Helton said. “That doesn’t even take into account the economic impact that all these merchants and business people have endured as a result of the disruption of the sidewalks.”

Under count 1 of negligence, the suit says that defendants had a duty to exercise reasonable care or competence in the planning, design, engineering, and construction of the project. It also says the City of Danville had a duty to hire contractors who could do construction in a workmanlike manner, free from defects, with an appropriate design, and using suitable materials.

Under count 2 of nuisance, the suit alleges that Danville was negligent in hiring contractors that failed to do construction that was free from defects, with an appropriate design, etc. Count 3 alleges that defendants failed to comply with the Kentucky building code. Count 4 regards emotional distress caused by damage to Kirkland’s property and her business.

According to a Danville City Commission meeting on May 26, 2022, the city received one construction bid for the project, and the commission approved that bid. In that meeting, which happened on a Thursday, City Engineer Josh Morgan said that the city had opened bids only earlier that week.

The one bid was for $6.12 million from Pace Contracting, which Morgan said was higher than the original estimate. He said an engineer estimate for the project was between $4.5 and 4.7 million, but that the higher bid didn’t surprise him due to rising material costs.

City Manager Earl Coffey said in the May 26, 2022 meeting that they had met with other contractors who were willing to bid, but they couldn’t meet the schedule for the project.

The city had hoped to get construction going by early June 2022. After about 20 minutes of discussion in the special-called meeting, mostly about budgeting for the project, electrical work and tree care, commissioners agreed to accept the bid, citing a limited timeline with not many other options, and an immediate need for safer sidewalks.

Helton hopes to get a mediation scheduled quickly where all parties could sit down and possibly come up with a solution. Going through full litigation could take 18 to 24 months. He said he’s worried about Kentucky getting more rain as the winter months come, which could further deteriorate the building.