These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE PORTER SUPERIOR COURT. The Honorable Roger V. Bradford, Judge. Cause No. 64D01-0911-PL-11902.
ATTORNEY FOR APPELLANT: NICHOLAS T. OTIS, MARTIN W. KUS, Newby Lewis Kaminski & Jones, LLP, La Porte, Indiana.
ATTORNEY FOR APPELLEES: MICHAEL C. HARRIS, JULIE A. PAULSON, Harris Welsh & Lukmann, Chesterton, Indiana.
FRIEDLANDER, Judge. KIRSCH, J., and BAILEY, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Richard and Janet Brown filed a three-count complaint against the City of Valparaiso (the City) seeking damages for flooding of their property and home, contending that the flooding was caused by the City. In their complaint, the Browns claimed inverse condemnation, a 42 U.S.C. § 1983 civil action for deprivation of rights, and negligence. The trial court initially denied the City's motion for summary judgment as to the Browns' inverse condemnation and negligence claims, but entered judgment in favor of the City on the § 1983 claim. After holding an evidentiary hearing, the trial court entered an order denying the Browns' inverse condemnation claim on the merits. The City appeals from the trial court's order denying its motion for summary judgment as to the Browns' negligence claim, and denying its motion to strike certain exhibits designated and relied upon by the Browns to defend against the City's motion for summary judgment.
Sometime around 1973, Clarence Brown, Richard Brown's grandfather, parceled out of his farmland what is now the Browns' property, with Clarence retaining ownership of nearly 120 adjoining acres of farmland. The Browns live on the east side of Silhavy Road in Valparaiso, Indiana, and their property borders what is known as the Hotter Detention Facility, a water retention/detention facility run by the City. The Browns built an approximately 2000-square-foot, brick, ranch-style home with a 900-square-foot attached garage in the 1970s. In the late 1970s or early 1980s, the Browns finished the lower level of their home, completing an additional 2000 square feet of living area, with the lower level walking out onto a 20' by 40' concrete patio. Except for certain parts, the farmland would eventually become the site of the Hotter Detention Facility, which lies immediately to the east of the Browns' property.
Also in the 1970s, the City developed a project in conjunction with a county project known as the Smith-Koselki-Crooked Creek Drain. Storm drainage from the Smith Ditch, a city drain, would be connected with the Koselki Ditch, which connected with and drained into the Kankakee River. A part of the plan was to improve an approximately ten-mile stretch of ditches, by widening, improving, and developing them through the course of the project.
Nearly contemporaneously with the drainage project, the City began developing a traffic-control project at the five-point intersection of Calumet Avenue, Roosevelt Avenue, and Vale Park Road. During the course of the project, storm water problems developed and the City received money from the federal government to reconstruct the intersection to address the storm water issues. As a result of the storm water concerns, the City acquired the Hotter Lagoon property and developed it by installing a levee to retain the storm water. The City received approval from the Indiana Department of Natural Resources on March 24, 1977. Under the plan, water would be brought into the Hotter Lagoon at an elevation of 790.8 feet above sea level and would flow in a southeasterly direction into a ditch with a control structure of 3, 24-inch corrugated metal pipes with an invert of 788.4 feet and a crest of 791 feet above sea level. The project was completed in the 1970s.
In the early 1980s, the City experienced three major storms within a period of years. The City commissioned an engineering study to plan and develop a city-wide storm water plan because of the flooding and storm water problems experienced by the City. The City hired Donahue and Associates, design engineers and consultants, to assist the City Engineer, John Hardwick, in the design of the water-detention facility. Donahue was to study the storm water problems and to design and develop a larger storm water facility at the location of the current Hotter Facility, and to provide advice to the City by identifying problem areas, providing solutions to the problems, and providing cost estimates of the proposed improvements. In adopting the completed plan recommended by Donahue, the City, by its engineering and mayor's offices, weighed competing priorities and budgetary considerations. The Hotter Lagoon was expanded for the construction of the Hotter Detention Facility.
The Hotter Detention Facility was designed and developed to withstand a one-hundred-year storm based on the City's previous experience with severe storms and the balancing of costs to develop and maintain a facility capable of handling larger storms. At the time the Hotter Detention Facility was being developed, what is now known as the Indiana Department of Transportation was planning and engineering the Indiana State Highway 49 bypass. The Department of Transportation was in need of dirt and soil to build bridge embankments on Highway 49 and the City needed to remove dirt and soil in the development of the Hotter Lagoon project.
The City and the Department of Transportation entered into an agreement under which the City would prepare plans and preliminary special provisions for a storm detention pond, outlet structures, and emergency spillway. The City was to acquire all rights-of-way needed for construction of the Hotter Detention Facility. The cost to prepare the plans and acquire the rights-of-way was the City's obligation. The cost of the construction was to be the State's obligation with the City's consent. As consideration for construction of the Hotter Detention Facility, the State and its contractors were allowed to remove, at no charge, any and all material excavated during the construction to use on the Highway 49 Bypass Project. The City was to provide all maintenance to the Hotter Detention Facility after its construction.
Hardwick had information in his office indicating that a topographical survey prepared on May 27, 1977 showed the 100 Year Flood Stage at an elevation of 792.12 feet above sea level. The engineering drawing additionally showed the elevation at the border shared by the Browns' and the City's Property was at an elevation of 792.5 feet above sea level, and that portions of the Browns' backyard was at an elevation of 792.8 feet above sea level. 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 Hotter Detention Facility's spillway.
Over the weekend beginning September 13, 2008, Valparaiso, Indiana experienced significant rain storms, which led to flooding of some property, and which qualified the City of Valparaiso for federal disaster relief as a result of the storms and flooding. Water entered the northeast portion of the Browns' property where it adjoined the Hotter Detention Facility. Sandbagging efforts by the Browns proved unsuccessful and approximately eighteen or more inches of water entered the lower level of their home, damaging the carpeting, drywall, furniture, electrical outlets, appliances, and the furnace.
After unsuccessfully attempting to obtain relief from the City, the Browns complied with all tort-claim notice requirements and ultimately filed their complaint against the City to recover for their losses. At issue in this appeal is the trial court's denial of the City's motion for summary judgment with respect to the Browns' negligence claim, and the denial of the City's motion to strike certain evidence designated by the Browns. Additional facts will be supplied as necessary.
This is an appeal from the denial of a motion for summary judgment. In an Indiana summary judgment proceeding, " the party seeking summary judgment must demonstrate the absence of any genuine issue of fact as to a determinative issue, and only then is the non-movant required to come forward with contrary evidence." Jarboe v. Landmark Cmty. Newspapers of ...