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.
of the Case
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
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.
and Procedural History
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
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
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 ...