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Brown v. City of Valparaiso

Court of Appeals of Indiana

December 30, 2016

Richard Brown and Janet Brown, Appellants-Plaintiffs,
City of Valparaiso, Indiana, Appellee-Defendant.

         Appeal from the Porter Superior Court The Honorable Roger V. Bradford, Judge Trial Court Cause No. 64D01-0911-PL-11902.

          ATTORNEYS FOR APPELLANTS Michael C. Harris Connor H. Nolan Harris Welsh & Lukmann Chesterton, Indiana.

          ATTORNEYS FOR APPELLEE Nicholas T. Otis Martin W. Kus Newby Lewis Kaminski & Jones, LLP La Porte, Indiana.

          Najam, Judge.

         Statement of the Case

         [¶1] Richard Brown and Janet Brown appeal from the trial court's entry of partial summary judgment in favor of the City of Valparaiso, Indiana ("the City"), on the Browns' complaint in which they alleged, in relevant part, that the City was negligent in causing flooding to their residence in 2008. The Browns present several issues for our review, but we need only address the following two dispositive issues:

1. Whether the Browns are entitled to assert a private cause of action alleging negligence per se under Indiana's Flood Control Act.
2. Whether they are entitled to assert a private cause of action for a public nuisance.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] This court has stated the facts underlying the Browns' claims as follows:

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 drain. Storm drainage from one ditch, a city drain, would be connected with another 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. 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 three, 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 Detention 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 were at an elevation of 792.8 feet above sea level. The Browns' property, although higher than the 100 Year Flood standard, was more than three feet lower than the wall of the Hotter Detention Facility and more than two 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. Tim Burkman, the City's engineering director, testified that the second of those storms, which occurred on September 11, 2008[, ] through September 15, 2008, was in excess of the City's storm water capacity. Other detention facilities in Valparaiso exceeded their capacity and spilled over into streets and property. The storm produced 9.8 to 11 inches of rain. According to Burkman, the U.S. Geological Survey reported that the storm was in excess of a 200-year storm based on 9.8 inches of rain. Some areas near the Hotter Detention Facility showed rain in excess of ten inches, which would be considered a 500-year storm event. David McCormick, an expert testifying on behalf of the Browns, acknowledged that[, ] based upon the amount of rain that fell, the storm was considered to be between a 200-year and 500-year storm. Burkman testified that the Hotter Detention Facility was designed for a 100-year storm and performed as it should[] but could not handle the water exceeding its capacity.
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. The Browns' property was the only privately-owned property that received water from the Hotter Detention Facility, as there were no reports of ...

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