                                                                             FILED
                                                                        Dec 30 2016, 8:25 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      Michael C. Harris                                         Nicholas T. Otis
      Connor H. Nolan                                           Martin W. Kus
      Harris Welsh & Lukmann                                    Newby Lewis Kaminski & Jones,
      Chesterton, Indiana                                       LLP
                                                                La Porte, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Richard Brown and Janet                                   December 30, 2016
      Brown,                                                    Court of Appeals Case No.
      Appellants-Plaintiffs,                                    64A05-1607-PL-1488
                                                                Appeal from the Porter Superior
              v.                                                Court
                                                                The Honorable Roger V. Bradford,
      City of Valparaiso, Indiana,                              Judge
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                64D01-0911-PL-11902



      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
      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016               Page 1 of 17
      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

      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 2 of 17
        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.

Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 3 of 17
        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


Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 4 of 17
        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 flooding of
        any properties on the perimeter of or adjoining the Hotter
        Detention Facility save for the Browns’ property.



Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 5 of 17
               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.


      Brown v. City of Valparaiso, No. 64A03-1308-PL-332, 2014 WL 1400198, at *1-3

      (Ind. Ct. App. April 10, 2014) (“Brown II”).1 In their complaint, the Browns

      asserted three counts: inverse condemnation; a civil action under 42 U.S.C. §

      1983; and a tort claim based on negligence. The Browns later withdrew the §

      1983 claim. The trial court bifurcated the two remaining claims and, following

      a bench trial on the Browns’ inverse condemnation claim in December 2012,

      the trial court found in favor of the City. We affirmed the trial court on appeal.

      Id. at *8. Thereafter, prior to trial on the tort claim, the Browns “amended the

      pre-trial order to include claims for public nuisance in addition to [the]

      negligence claims set for trial.” Appellants’ Br. at 9. Accordingly, the trial

      court postponed trial to allow further discovery.


[4]   On November 25, 2015, the City filed its motion for partial summary judgment

      alleging that it was entitled to judgment on the Browns’ public nuisance claim.

      The Browns filed a response and their own motion for partial summary




      1
        The instant appeal is the fourth appeal in this matter. In the first appeal, we affirmed the trial court’s denial
      of the City’s motion for partial summary judgment on the Browns’ negligence claim and the trial court’s
      denial of the City’s motion to strike certain evidence. Brown v. City of Valparaiso, No. 64A03-1307-PL-239,
      2014 WL 992090 (Ind. Ct. App. March 13, 2014) (“Brown I”). In Brown II, we affirmed the trial court’s
      judgment in favor of the City on the Browns’ inverse condemnation claim. In the third appeal, we reversed
      the trial court’s grant of the City’s motion to dismiss the Browns’ complaint alleging inverse condemnation
      under Trial Rule 12(B)(8). Brown v. City of Valparaiso, No. 2016 WL 6396105, 2016 WL 6396105 (Ind. Ct.
      App. Oct. 26, 2016) (“Brown III”).

      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                          Page 6 of 17
      judgment on the public nuisance claim and their negligence per se claim under

      the Flood Control Act. Following a hearing, the trial court entered judgment

      for the City on both the Browns’ public nuisance claim and their negligence per

      se claim. Appellants’ App. Vol. II at 17. The trial court found that there was

      “no just cause for delay” and ordered “all of the above judgments entered as

      final judgments.” Id. The Browns filed a motion to correct error, which the

      trial court denied following a hearing. This appeal ensued.2


                                       Discussion and Decision
                                               Standard of Review

[5]   Our supreme court has set out the applicable standard of review on summary

      judgment as follows:

               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).




      2
        The Browns do not argue that the trial court erred when it denied their motion to correct error, and our
      standard of review for appeal from the denial of a motion to correct error directs us to consider the
      underlying order. See Lighty v. Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008).

      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                      Page 7 of 17
               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


                                      Issue One: Negligence Per Se

[6]   The Browns first contend that they have a private cause of action under the

      Flood Control Act (“the Act”) and, thus, are entitled to pursue their claim that

      the City was negligent per se when it violated the Act. Accordingly, they assert

      that the trial court erred when it entered summary judgment in favor of the City

      on this issue and denied their motion for summary judgment. We cannot

      agree.


[7]   Generally speaking, negligence per se is the unexcused or unjustified violation of

      a duty prescribed by statute. See City of Fort Wayne v. Parrish, 32 N.E.3d 275,

      277 (Ind. Ct. App. 2015), trans. denied. Here, the Browns allege that, when it

      constructed the Hotter Detention Facility in the late 1980s, the City violated




      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 8 of 17
      Indiana Code Section 13-2-22-13 (1987),3 which provided in relevant part as

      follows:


               (b) It is unlawful to erect, make, use, or maintain any structure,
               obstruction, deposit, or excavation in or on any floodway or to
               suffer or permit any structure, obstruction, deposit, or excavation
               to be erected, made, used, or maintained in or on any floodway
               which will adversely affect the efficiency of or unduly restrict the
               capacity of the floodway or which, by virtue of its nature, design,
               method of construction, state of maintenance, or physical
               condition, will constitute an unreasonable hazard to the safety of
               life or property, or result in unreasonably detrimental effects
               upon the fish, wildlife, or botanical resources, and the same are
               declared to be and to constitute public nuisances.

               (c) The commission may commence, maintain, and prosecute
               any appropriate action to enjoin or abate a nuisance, including
               any of the nuisances described in subsection (a) and any other
               nuisance which adversely affects flood control or the safety of life
               or property, or is unreasonably detrimental to fish, wildlife, or
               botanical resources.


[8]   In addition, Indiana Code Section 13-2-22-20 provided:


               (a) A person who violates section 13 . . . of this chapter commits
               a class B infraction, and each day of continuing violation after
               conviction of the offense constitutes a separate offense.




      3
        The parties do not provide an exact date for the construction of the facility and cite to both the 1981 and
      1987 versions of the applicable statutes in support of their arguments on appeal. Because the differences
      between the two versions are not substantive, for ease of discussion we cite the 1987 version.

      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                        Page 9 of 17
              (b) The commission may maintain an action to enjoin any
              violation of this chapter.


[9]   In support of its motion for partial summary judgment, 4 the City argued that,

      because the Act “only provided one remedy, an infraction, and one

      enforcement mechanism, the commission, there can be no private cause of

      action for . . . violation of [Indiana Code Section] 13-2-22-3.” Appellants’ App.

      Vol. II at 14. In support of that contention, the City relies on this court’s

      opinion in Estate of Collup v. State, 821 N.E.2d 403 (Ind. Ct. App. 2005), where

      we were asked to determine whether a plaintiff was entitled to bring a private

      cause of action under Indiana Code Section 9-21-19-6, which creates a duty for

      owners and occupants of real property to maintain and keep in repair the

      approaches to their land. We held as follows:

              When a civil cause of action is premised upon violation of a duty
              imposed by statute, the initial question to be determined by the
              court is whether the statute in question confers a private right of
              action. Roberts v. Sankey, 813 N.E.2d 1195, 1198 (Ind. Ct. App.
              2004), trans.[denied]. The determination of whether a civil cause
              of action exists begins with an examination of legislative intent.
              Id. This primarily includes discerning whether the statute is
              designed to protect the general public and whether the statutory
              scheme contains an enforcement mechanism or remedies for
              violation of the duty. See id. “As a general rule, a private party
              may not enforce rights under a statute designed to protect the


      4
        In its partial summary judgment motion and in its brief on appeal, the City conflates the two issues of
      negligence per se under the Act and the Browns’ public nuisance claim. Because these issues are distinct, we
      address them separately. We agree with the City’s argument on the issue of whether the Browns can bring a
      private cause of action under the Act, but the City is incorrect when it contends that the same argument
      applies to the question of the public nuisance claim, which we address in Issue Two.

      Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                    Page 10 of 17
        public in general and containing a comprehensive enforcement
        mechanism.” Id. (quoting LTV Steel Co. v. Griffin, 730 N.E.2d
        1251, 1260 (Ind. 2000)).

        Here, Indiana Code § 9-21-19-6 is located in the chapter entitled
        Entrances to State Highways from Private Property. Section two
        of that chapter provides, “The Indiana department of
        transportation shall adopt rules and requirements for private
        entrances, driveways, and approaches necessary to provide for
        drainage of the highway, preservation of the highway, and the
        safety and convenience of traffic on the highway.” Ind. Code §
        9-21-19-2. Thus, the statutory scheme is aimed at benefiting the
        general public rather than specific individuals. After establishing
        the Indiana Department of Transportation as the overseeing
        agency and setting forth various requirements and restrictions for
        approaches, the chapter indicates that a person who violates any
        of the chapter’s provisions commits a Class C infraction. Ind.
        Code § 9-21-19-8. In Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind.
        Ct. App. 1991), we reiterated, “when legislation expressly
        provides a particular remedy or remedies, courts should not
        expand the coverage of the statute to subsume other remedies.
        ‘When a statute limits a thing to be done in a particular mode, it
        includes the negative of any other mode.’” Id. (quoting Nat’l R.R.
        Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 459
        (1974), reh’g denied). Moreover, in Borne v. Northwest Allen
        County Sch. Corp., 532 N.E.2d 1196 (Ind. Ct. App. 1989), trans.
        denied, we found no private cause of action where [the] statutory
        scheme provided a criminal penalty for the knowing failure to
        report suspected child abuse. Based on the foregoing, we find
        that Cullop cannot maintain a private cause of action based on
        the duty created by Indiana Code § 9-21-19-6.


Id. at 408-09.




Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 11 of 17
[10]   Our supreme court cited Estate of Collup with approval in Howard Regional Health

       System v. Gordon, 952 N.E.2d 182, 187 (Ind. 2011). In Gordon, the plaintiff

       alleged that her health care providers had violated a statute governing the

       maintenance of health care records and that that statutory violation was

       negligence per se. Following cross-motions for partial summary judgment, the

       trial court concluded that “a separate cause of action for failure to maintain

       these records existed and that the Hospital had breached its duty to maintain

       records[.]” Id. at 185. On transfer, our supreme court held in relevant part as

       follows:

               “We have long-standing analytical tools for addressing whether a
               statute contains an implied private right of action.” Kho v.
               Pennington, 875 N.E.2d 208, 218 (Ind. 2007) (Sullivan, J.,
               concurring in part and dissenting in part). Determining whether
               a civil cause of action exists begins with an examination of
               legislative intent. Estate of Cullop[], 821 N.E.2d [at 408].

               A private party may not usually enforce rights under a statute
               designed to protect the public in general and which contains an
               enforcement provision. Id. “When a statute limits a thing to be
               done in a particular mode, it includes the negative of any other
               mode.” Id. at 409 . . . . Whether a statute creates a private right
               of action is a question of law for the court. See Blanck v. Ind. Dep’t
               of Corr., 829 N.E.2d 505 (Ind. 2005).

                                                       ***

               As the statutes existed at the time of [the alleged medical
               malpractice], a violator of Chapter 7, Section 1, would be subject
               to disciplinary sanctions under the law that governs the
               provider’s licensure, registration, or certification under Title 16 or
               Title 25. By contrast, a violator of Section 2 would be exposed to

       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 12 of 17
               the same disciplinary sanctions but would possess substantial
               immunity created by subsection (e).[] The language of subsection
               (e) in Section 2 is similar to the language added in 2009 to
               subsection (d) of Section 1. Recalling that Sections 1 and 2 were
               crafted at the same time, the legislature could have created civil
               liability for a violation of Section 1 and did not do so. This
               differential treatment says a fair amount about legislative intent
               as respects the law at the time relevant to this lawsuit.

               Moreover, the structure of Section 1(d) reads largely as a grant of
               immunity to hospitals that lose records due to natural disasters.
               It was enacted in the wake of a storm that destroyed the medical
               records of a leading hospital.[] We conclude that neither the rules
               of statutory construction nor the history of the enactment lead to
               the idea that Section 1(d) confers a private remedy for the
               Gordons.


       Id. at 186-88.


[11]   In light of Gordon and Estate of Collup, we agree with the City that the Browns

       have no private cause of action for negligence per se under the Act. Indiana

       Code Section 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.


[12]   We reject the Browns’ contention that this court’s opinion in Phoenix Natural

       Resources, Inc. v. Messmer, 804 N.E.2d 842 (Ind. Ct. App. 2004), governs and

       requires reversal. First, we note that the Browns ignore the City’s reliance on

       Estate of Collup and make no argument that it is not controlling here. Second, in

       Messmer, the parties conceded that a violation of the current version of the Flood
       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 13 of 17
       Control Act constituted negligence per se, and the sole issue presented on appeal

       was whether the trial court erred when, in instructing the jury, it “did not

       permit the jury to consider evidence that Phoenix had an excuse or justification

       for violating” the Act. Id. at 847. In essence, the Browns maintain that implicit

       in our holding in Messmer that the trial court properly instructed the jury is a

       determination that a plaintiff may bring a private cause of action under the Act.

       But the Browns are incorrect. Rather, neither party raised that issue on appeal

       in Messmer and we did not otherwise consider that issue. Thus, Messmer does

       not apply here.5


[13]   Likewise, the Browns’ reliance on our supreme court’s decision in Kho v.

       Pennington, 875 N.E.2d 208 (Ind. 2007), is misplaced. First, there was no

       majority opinion for our supreme court in Kho. As such, it is not binding

       authority. In any event, the issue in Kho was “whether violation of the

       defendant identity confidentiality provision of Indiana Code § 34-18-8-7 in the

       Indiana Medical Malpractice Act may give rise to an action for damages.” Id.

       at 210 (plurality opinion). Writing the lead opinion, Justice Dickson began his

       analysis by recognizing that our courts “have a long and continuous history of

       recognizing negligence actions for statutory violations” and the “unexcused

       violation of a statutory duty constitutes negligence per se ‘if the statute or

       ordinance is intended to protect the class of persons in which the plaintiff is




       5
         Likewise, the Browns’ reliance on Stillwater of Crown Point Homeowner’s Association, Inc. v. Kovich, 865
       F.Supp.2d 922 (N.D. Ind. 2011), has no applicability here.

       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                       Page 14 of 17
       included and to protect against the risk of the type of harm which has occurred

       as a result of its violation.’” Id. at 212 (quoting Plesha v. Edmonds ex rel.

       Edmonds, 717 N.E.2d 981, 986 (Ind. Ct. App. 1999)) (plurality opinion). The

       Browns maintain that, because they are within the class of persons the Act was

       intended to protect, and because flooding is the type of harm that the Act

       sought to prevent, they can pursue a claim of negligence per se against the City.


[14]   However, we agree with then-Justice Rush that not every statute creates an

       implied right of action, and a claim of negligence per se depends on a

       determination of legislative intent to make a defendant liable in tort. F.D. v.

       Ind. Dep’t of Child Servs., 1 N.E.3d 131, 143 n.12 (Ind. 2013) (Rush, J.,

       concurring in part and dissenting in part). And as our supreme court held in

       Gordon, we determine our legislature’s intent by considering whether the statute

       is (1) designed to protect the public in general and (2) contains an enforcement

       provision. 952 N.E.2d at 187. Further, as we held in Estate of Collup, we

       consider whether the statute already provides remedies for a violation of its

       duties. 821 N.E.2d at 408. Applying those factors to the statutes at issue here,

       we hold that the legislature did not intend to create a private cause of action for

       violation of the Act. Accordingly, the Browns cannot pursue their claim that

       the City’s violation of the Act constituted negligence per se.


                                        Issue Two: Public Nuisance

[15]   The Browns also contend that they “have the right to pursue monetary damages

       for the [City’s] creation and maintenance of a public nuisance.” Appellants’ Br.

       at 22. The Browns point out that Indiana Code Section 13-2-22-13 provides in
       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 15 of 17
       relevant part that “any structure, obstruction, deposit, or excavation in or on

       any floodway . . . which will adversely affect the efficiency of or unduly restrict

       the capacity of the floodway . . . [is] declared to be and to constitute [a] public

       nuisance[].” The Browns maintain that the Hotter Detention Facility

       constitutes a public nuisance and, as such, they are entitled to damages for the

       flooding they sustained to their real property.


[16]   Generally, a public nuisance is caused by an unreasonable interference with a

       common right. Blair v. Anderson, 570 N.E.2d 1337, 1339 (Ind. Ct. App. 1991)

       (citing Restatement (2d) of Torts, § 821B). A private party generally has no

       right of action under a public nuisance because “[i]t is the province of the public

       authorities to procure redress for public wrongs.” Id. (quoting Adams v. Ohio

       Falls Car Co., 131 Ind. 375, 379, 31 N.E. 57 (1891)). However, an aggrieved

       party may bring a private action to abate or enjoin a public nuisance if that

       party demonstrates a special and peculiar injury apart from the injury suffered

       by the public. Id. at 1339-40.


[17]   Here, the Browns contend that they are entitled to bring a private action for

       public nuisance because they suffered a “special and peculiar injury” apart from

       the general public. In particular, they assert that they were the only residents

       who sustained flooding to their real property “due to the obstructed floodway.”

       Appellants’ Br. at 45. However, in Brown II, in addressing the issue of whether

       a taking had occurred as a result of the flooding, we held as follows:




       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016   Page 16 of 17
                Furthermore, the flooding damage suffered by the Browns was not
                special or peculiar[] for purposes of takings analyses.[6] Burkman
                testified to the major flooding that occurred throughout
                Valparaiso during the period of time when the Browns’ property
                flooded. City of Valparaiso qualified for federal disaster relief as
                a result of the storms and flooding, and the Indiana Governor
                declared Lake, Porter, and LaPorte counties a disaster as a result
                of the storm. The City sent a storm-water survey to its residents
                and received a response from approximately 180 residents that
                they suffered some sort of water-entry problem as a result of the
                storms. Among those problems was water entering basements
                through windows and doors, sewer backup, storm water standing
                in back yards, and basement seepage. Retention ponds
                overflowed and caused flooding damage. Therefore, the evidence
                shows the Browns’ flooding damage was neither special nor peculiar.


       2014 WL 1400198 at *7 (emphases added). For the same reasons, we hold that

       the Browns’ damage was neither special nor peculiar for purposes of their

       public nuisance claim. Thus, the trial court did not err when it entered

       summary judgment in favor of the City on that claim.


[18]   Affirmed.


       Bailey, J., and May, J., concur.




       6
          As we stated in Bussing v. Indiana Department of Transportation, 779 N.E.2d 98, 104 (Ind. Ct. App. 2002),
       trans. denied,
                [t]he general rule is that, before any basis for compensable damage may be obtained by an
                owner of real estate in an eminent domain proceeding, either some physical part of the real
                estate must be taken from the owner or lessor[] or some substantial right attached to the use
                of the real estate taken; it must be special and peculiar to the real estate and not some general
                inconvenience suffered alike by the public.
       (Emphasis added).

       Court of Appeals of Indiana | Opinion 64A05-1607-PL-1488 | December 30, 2016                         Page 17 of 17
