A couple whose home near a water retention and detention facility was flooded in 2008 when the city of Valparaiso experienced a 200-year storm are not able to assert a private cause of action under Indiana’s Flood Control Act, the Indiana Court of Appeals affirmed Friday.
Richard and Janet Brown built a home in the 1970s on farmland owned by Richard Brown’s grandfather that bordered the Hotter Detention Facility, a water retention/detention facility run by Valparaiso built in the 1980s to withstand a 100-year storm. The Browns’ property, although higher than the 100-year flood standard, was more than 3 feet lower than the wall of the Hotter Detention Facility and more than 2 feet lower than the facility’s spillway.
In September 2008, Valparaiso experienced significant rain storms that were considered 200-year or 500-year storms. As a result, the facility could not handle the water exceeding its capacity and more than 18 inches of water flooded the lower level of the Browns’ home. Theirs was the only privately owned property that received water from the facility.
The couple sued after unsuccessfully obtaining relief from the city. At issue in Richard Brown and Janet Brown v. City of Valparaiso, Indiana, 64A05-1607-PL-1488, is whether the trial court properly granted partial summary judgment to the city on the Browns’ public nuisance and negligence per se claims.
The Browns claimed they were entitled to assert a private cause of action alleging negligence per se under Indiana’s Flood Control Act, but the Court of Appeals disagreed, citing Estate of Collup v. State, 821 N.E.2d 403 (Ind. Ct. App. 2005) and Howard Regional Health System v. Gordon, 952 N.E.2d 182, 187 (Ind. 2011)
Indiana Code 13-2-22-13 is “designed to protect the general public and contains an enforcement mechanism and remedies for violation of the duty. The trial court did not err when it entered partial summary judgment in favor of the City on this issue,” Judge Edward Najam wrote.
The judges held that the Legislature did not intend to create a private cause of action for violation of the Act, so the Browns cannot pursue their claim that the city’s violation of the Act constituted negligence per se.
The judges also found that the Browns’ damage was neither special nor peculiar for the purposes of their public nuisance claim, again ruling in favor of Valparaiso.