South Bend flood victims place blame on state, county and city

SOUTH BEND — Thirty property owners in the Jewell Woods area south of South Bend have served the city, St. Joseph County and the state of Indiana with tort claim notices, a precursor to a lawsuit, over damages they say they suffered from last year’s flooding.

Attorney Charles Rice sent the notices on Jan. 20, about five months after a historic rain hit the area Aug. 15 and 16. The storm set a new South Bend record for rainfall at 7.69 inches, and nearly another inch fell by the early morning hours. More broadly, it was the most rainfall on any date in South Bend.

The notices state that the property owners “suffered severe and destructive floods because of the negligence of the governmental entities responsible for controlling the increased runoff from the recently completed U.S. 31 project and ensuring that downstream drainage and sewage systems were able to handle this increased drainage.”

Most of the owners’ notices state that the full amount of their damages is not yet known. But combined, they add up to at least $900,000 and likely more than $1 million, said Rice, noting he has yet to determine how those costs should be distributed among the three entities.

Rice in September served them with a tort claim notice from homeowners Edward and Wanda Walton, “on behalf of all similarly affected residents” of the neighborhood. The Indiana Attorney General, representing the Indiana Department of Transportation, sent Rice a Jan. 6 letter saying, “Based on our investigation, it is our position that a settlement is not warranted in this matter and, therefore, this claim is denied.”

The city and county did not reply to the notice within 90 days, but both have been “very helpful” with Rice’s requests for drainage and planning records, Rice said.

“We’ve gotten a big stiff arm from INDOT,” Rice said. “They’ve made it clear they’re not cooperating on documents. There’s an old axiom that when somebody doesn’t want to produce records, they usually have something to hide.”

INDOT spokesman Doug Moats declined to comment Thursday.

The case could end up pitting the state against the county. The county is legally responsible for maintaining the Phillips Ditch, which flooded from the rains. The ditch crosses U.S. 31 and runs northwest through the Jewell Woods neighborhood.

In another apparent finger pointed toward the county, Moats in September told The Tribune that the county had approved all drainage plans for the U.S. 31 realignment project.

County Commissioner President Andy Kostielney took issue with that assertion.

“We don’t get any input into what the state is planning to do, we’re made aware of what they’re planning to do,” Kostielney said.

When contacted for comment Thursday, county attorney Jamie Woods said the area, west of U.S. 31 between Johnson and Jackson roads, had no history of flooding before the road project. The county has hired South Bend-based McCormick Engineering to conduct a study of the new highway’s effect on drainage, Woods said.

“It’s readily apparent that the ditch out there in Jewell Woods, even if it was dug infinitely deeper, the flooding would have occurred,” he said. “Something out there has changed in the surrounding area that we need to understand, in addition to this just being a major flood event.”

Woods said he hopes to have McCormick Engineering’s study by mid-February.

It was unclear what liability the property owners might allege that the city had. Rice said he could not yet comment on that, but he had served the city notice to preserve the right to add it as a defendant if needed. Rice said he had advised his clients not to comment on the case.

The law gives Rice’s clients two years from Aug. 15 to file suit. He said he had not yet decided whether his clients would file individual suits or join together in one class action case if settlements can’t be reached. He also said there was a “definite possibility” of adding more claimants.