Najam, J.
Statement 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 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.
We affirm.
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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.
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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.
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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.
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The Browns also contend that they “have the right to pursue monetary damages for the [City’s] creation and maintenance of a public nuisance.”…
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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.”…. 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.
Affirmed.
Bailey, J., and May, J., concur.