FOR PUBLICATION

ATTORNEYS FOR APPELLANT:    ATTORNEYS FOR MANUFACTURER APPELLEES:
W. ANTHONY WALKER
LUKAS I. COHEN     JAMES P. DORR
JAMES B. MEYER     SARAH L. OLSEN
Meyer & Wyatt, P.C.     Wildman, Harrold, Allen & Dixon
Gary, Indiana     Chicago, Illinois

TERENCE M. AUSTGEN
ELIZABETH BEZAK
Singleton, Crist, Austgen & Sears
Munster, Indiana

ATTORNEY FOR APPELLEES BROWNING ARMS CO., GLOCK, INC., and HI-POINT FIREARMS:

RICHARD A. MAYER
Spangler, Jennings & Dougherty, PC
Merrillville, Indiana

ATTORNEYS FOR APPELLEES GLOCK, INC. and HI-POINT FIREARMS:

JOHN RENZULLI
LEONARD ROSENBAUM
Renzulli & Rutherford, LLP
New York, New York

ATTORNEY FOR APPELLEE BROWNING ARMS CO.:

WILLIAM M. GRIFFIN, III
Friday, Eldredge & Clark
Little Rock, Arkansas

STACIA L. YOON
Kopko, Genetos & Retson LLP
Merrillville, Indiana

MICHAEL C. HEWITT
Bruinsma & Hewitt
Costa Mesa, California

ATTORNEYS FOR APPELLEE COLT’S MANUFACTURING COMPANY, INC.:

THOMAS E. FENNELL
MICHAEL L. RICE
Jones Day Reavis and Pogue
Dallas, Texas

ROBERT F. PARKER
Burke, Costanza & Cuppy
Merrillville, Indiana

ATTORNEYS FOR APPELLEE TAURUS INTERNATIONAL MANUFACTURING, INC.:

RENEE J. MORTIMER
Hinshaw Culbertson
Munster, Indiana

TIMOTHY A. BAUMANN
Budd, Larner, Gross, Rosenberg, Greenberg & Sade
Atlanta, Georgia

ATTORNEY FOR APPELLEES CHARTER ARMS CO. and INTERARMS, INC.:

TIMOTHY ATWOOD
Shelton, Connecticut

ATTORNEYS FOR APPELLEE PHOENIX ARMS:

MICHAEL ZOMCIK
MICHAEL BRANISA
Tarics & Carrington
Houston, Texas

ATTORNEYS FOR APPELLEE BERETTA U.S.A. CORP.:

DAVID C. JENSEN
JOHN M. McCRUM
Eichhorn & Eichhorn
Hammond, Indiana

LAWRENCE S. GREENWALD
CATHERINE A. BLEDSOE
Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
Baltimore, Maryland

ATTORNEYS FOR APPELLEE SMITH & WESSON CORP.:

DAVID W. PERA
Buoscio, Pera & Kramer
Merrillville, Indiana

JEFFREY S. NELSON
Shook, Hardy & Bacon
Kansas City, Missouri

ATTORNEYS FOR APPELLEES BLYTHE’S SPORT SHOP, INC. and JACK’S LOAN, INC.:

KENNETH D. REED
JOHN P. REED
Abrahamson & Reed
Hammond, Indiana

ATTORNEY FOR APPELLEE CASH INDIANA, INC.:

JOHN E. HUGHES
Hoeppner, Wagner & Evans LLP
Merrillville, Indiana

ATTORNEYS FOR APPELLEE WESTFORTH SPORTS, INC.:

STEPHEN E. SCHEELE
Goodman, Katz, Scheele & Bauswell
Highland, Indiana

IHOR A. WOLOSHANSKY
Merrillville, Indiana

     IN THE COURT OF APPEALS OF INDIANA

CITY OF GARY, INDIANA, by its Mayor,        )
SCOTT L. KING,                                   )
                                                 )
Appellant-Plaintiff,                             )
                                                 )
vs.                                              )    No. 45A03-0105-CV-155
                                                 )
SMITH & WESSON CORP., BERETTA U.S.A.,        )
CORP., COLT’S MFG. CO., INC., BROWNING      )
ARMS CORP., GLOCK CORP., CHARTER                 )
ARMS CORP., HI-POINT FIREARMS CORP.,             )
NAVEGAR INC., d/b/a/ INTRATEC U.S.A.,            )
CORP., B.L. JENNINGS INC., BRYCO ARMS            )
CORP., PHOENIX ARMS CORP., LORCIN                )
ENGINEERING CORP., STURM, RUGER & CO.,       )
CORP., TAURUS FIREARMS CORP., DAVIS              )
INDUSTRIES, INC., AMERI-PAWN OF LAKE             )
STATION, INC., BLYTHE’S SPORT SHOP,         )
INC., CASH INDIANA, INC., JACK’S LOAN,      )

    APPEAL FROM THE LAKE SUPERIOR COURT
    The Honorable James J. Richards, Special Judge
    Cause No. 45D05-0005-CT-243

II.    whether the trial court properly dismissed the City’s negligence claims; and

III.    whether the trial court properly struck a proposed settlement agreement between the City and one of the Appellees from the City’s first amended complaint.

Manufacturers:

Smith & Wesson Corp.
F.I.E. Corp. [ * ]
Beretta U.S.A. Corp.
Glock Corp.
Charter Arms Corp.
Savage Arms Corp. [*]
Interarms Corp. [*]
Harrington & Richardson Corp. [*]
Hi-Point Firearms Corp.
Sigarms Corp. [*]
Navegar, Inc. d/b/a Intratec USA Corp.
Bryco Arms Corp.
Kel-Tec Cnc, Corp. [*]
Phoenix Arms Corp.
Lorcin Engineering Corp.
St[ur]m, Ruger & Co. Corp.
Sundance Industries Corp. [*]
Taurus Firearms Corp.

Dealers:

Ameri-Pawn of Lake Station, Inc.
Blythe[’]s Sport Shop, Inc.
Cash Indiana, Inc.
Fetla[’]s Bargain Center, Inc. [*]
Jim Shema’s Outdoor Sports
Westforth Sports, Inc.

Distributor:

B. L. Jennings, Inc.

Miscellaneous John Does:

It has been conceded that, basically, Manufacturers sell handguns to Distributors, who in turn sell to Dealers, who in turn sell to the general public. Manufacturers are precluded by law from selling direct to members of the general public. This lawsuit applies only to the sale and distribution of handguns; not long guns (rifles and/or shot guns).
During the course of proceedings, the City settled with defendant, Fetla[’]s Bargain Center, Inc., and they are no longer a party. In addition, the City unilaterally filed with the Court a copy of an unexecuted, but proposed written Settlement Agreement between defendant Smith & Wesson Corp. and the City. There is no evidence that such Agreement was ever entered into, and Smith & Wesson Corp. remains a party defendant in this litigation. Defendant objected and moved to strike out the filing. The City did not object or otherwise respond. During the course of the second day of arguments, City referred to the Agreement, and defendants reiterated their objection. The Court sustained defendants[’] objection and granted their Motion to Strike the document from the Court’s records, as irrelevant, under Rule of Evidence 401, and as a purported agreement of settlement and compromise under Rule of Evidence 408. It should be noted that efforts were made to remove this cause to the United States District Court, for the Northern District of Indiana, Hammond Division, sitting at Hammond. Many months elapsed, during which pleadings and papers were filed in the Federal Clerk’s Office, before the Federal Court declined removal, and remanded the cause to state court.
The defendants’ respective Motion(s) to Dismiss are predicated upon Ind. Trial Rule 12(B)(6) which provides, in substance, for a dismissal of a pending cause if the well-pleaded allegations of the pending complaint, when taken as true, fail to state a claim upon which any relief can be granted, even when all inferences and intendments are taken, and viewed, in a light most favorable to plaintiff. Donahue vs. St. Joseph County, 720 N.E.2d 1236 (Ind.Ct.App. 1999), and City of New Haven vs. Reichart, 729 N.E.2d 600 (Ind.Ct.App.2000).
The Court Finds, Concludes, Adjudges and Decrees that each and all of the respective defendants’, manufacturers[’], distributor[’s] and dealers[’] separate and several motions to dismiss should be, and the same hereby are, GRANTED, and this cause should be, and the same is hereby, DISMISSED, as to each and all of the remaining captioned defendants, for the following separate and several reasons, and upon the following separate and several grounds, to-wit:
….
The common law requirements for public nuisance claims in Indiana are very clear. First, public nuisance claims must arise from an unreasonable use of property. Deller vs. Hofferberth, 26 N.E. 889 (Ind. 1[89]1), or a violation of a specific statute, Whittington vs. State of Indiana , 669 N.E.2d 1363 (Ind. 1996). Second, to be liable for a public nuisance, one must be in control of the offending item or activity at the time of injury to plaintiff. See, e.g. Brown vs. Powell, 176 N.E. 241, 243 (Ind.Ct.App. 1931). Third, because public nuisance describes a form of harm rather than a free-standing tort theory of liability, plaintiffs must plead an actionable basis in tort for such a claim. Restatement (Second) of Torts § 821B, cmt. e. Fourth, a legislative body cannot authorize conduct on one hand, and seek to punish it through public nuisance actions on the other, particularly where a comprehensive regulatory scheme already governs the challenged conduct. Sopher vs. State, 81 N.E. 913 (Ind. 1907). Plaintiff’s Complaint does not satisfy any of these requirements. Plaintiff’s Complaint fails to bring the City’s public nuisance claim within the limits set by Indiana common law.
Arguing that it need not plead an underlying tort in order to claim relief for the harm produced by a public nuisance, the City departs once again from common law, which requires that a defendant’s interference with a public right involve conduct which is “intentional or unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities.” Restatement § 821B, cmt. e. In other words, public nuisance claims must arise from conduct which is actionable, not merely any conduct for which liability would not otherwise lie, as plaintiff proposes.
As the City’s cases demonstrate, Indiana courts require that a plaintiff plead and show underlying actionable conduct in order to support a public nuisance claim. Contrary to plaintiff’s argument, conduct cannot constitute a public nuisance unless it is actionable under some theory of tort law. Restatement (Second) of Torts § 821B cmt. c. The City has not pled and cannot plead actionable negligence, intentional misconduct or conduct creating an ultrahazardous activity. The City is required to do so to survive defendants’ motion to dismiss.
Indiana common law likewise prohibits the City’s public nuisance claim here because defendants’ commercial activities are legislatively authorized and extensively regulated. Restatement (Second) of Torts § 821B, cmt. f; Sopher, 81 N.E. at 915. Under an umbrella of statutes and regulations, the United States Congress, the Indiana legislature, and Gary have each authorized the lawful distribution, ownership and sale of firearms of specific styles to federally licensed commercial entities - precisely the activity the City now seeks to declare a nuisance.
The City misstates Indiana law, claiming that defendants owe a duty of care to the City, because harm to the City caused by the criminal misuse of firearms is foreseeable. Indiana law supports the imposition of a duty of care to avoid foreseeable injuries to foreseeable victims only where the defendant has a relationship with the plaintiff that gives rise to a duty to protect the plaintiff from such injuries or, in the absence of such a relationship, where the defendant has actual control over the instrumentality which caused the harm. Ebbingham, 693 N.E.2d at 648; Whitten v. Kentucky Fried Chicken Corp., 570 N.E.2d 1353,1356 (Ind.Ct.App. 1991); Helmchen, 685 N.E. 2d at 181.
Public policy, as articulated by the Indiana legislature, supports defendants’ continued lawful, regulated manufacture and distribution of firearms to Indiana citizens. Kellogg vs. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990). Indiana statutes and regulations reflect Indiana’s public policy considerations concerning firearms and the distribution thereof. Those statutes and regulations expressly allow defendants to do precisely what the City claims renders them subject to liability in negligence. See id. The City’s attempt to characterize defendants as “wrongdoers”, where their activities are expressly allowed by the Indiana Constitution and the Indiana legislature, is improper. See Ind. Code §35-47-2-1, et seq. (1999); see also Kellogg, 562 N.E.2d at 694.
The City attempts to aggregate all shootings, including accidental and intentional shootings, as a basis for its product liability claim. By doing so, the City seeks to hold defendants absolutely liable for injuries sustained through any use of firearms, even where the firearms are misused and/or deliberately operated to cause intentional injury. Neither Indiana nor any other court has adopted such a radical departure from product liability law. See id.
….
The City’s failure to warn claim is equally flawed. In an attempt to maintain its otherwise deficient claim, the City reconfigures its argument, stating that defendants have not adequately warned buyers about the non-obvious dangers posed by firearms. The City cannot evade the allegations of its own Complaint, which because of its aggregated nature seeks to impose liability for failing to warn of the open and obvious dangers associated with firearms, as well as of the dangers of intentional and criminal misuse. In Indiana, a duty to warn of a product’s risks extends only to those who can reasonably be assumed to be ignorant of the risks that a warning would illuminate. Senco Prod. Inc. vs. Riley, 434 N.E.2d 561, 570 (Ind.Ct.App. 1982). Moreover, the duty to warn assumes that there is a hidden defect in the product such that the danger created by the defect is not open or obvious to all. See Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061, cert. denied, 459 U.S. 825 (1982). There is no such basis for such an assumption here, in light of the City’s aggregated claims which seek liability on the basis of intentional as well as accidental shootings. Accordingly, the City’s failure to warn claim should be dismissed.
….
For the reasons, and upon the grounds, set forth above, the Court GRANTS defendants’ Motions to Dismiss and, pursuant to Ind. Trial Rule 54(B), the Court expressly determines that there is no just reason for delay in entry of Judgment in favor of the defendants. Accordingly, the Court expressly directs entry of Judgment in favor of each and all of the remaining defendants named in the caption, and against the plaintiff City of Gary, by its Mayor, Scott L. King.

It is so ORDERED, ADJUDGED and DECREED this 12 day of January, 2001.

On January 22, 2001, the City filed an amended complaint, naming as additional defendants manufacturer Appellees Browning Arms Corp. (“Browning”), Colt’s Manufacturing Co., Inc. (“Colt’s”), and Davis Industries, Inc. (“Davis Industries”). On March 13, 2001, the trial court granted Appellees’ motion to dismiss the amended complaint:

The City now appeals.

Borgman v. Aikens, 681 N.E.2d 213, 216-17 (Ind. Ct. App. 1997), trans. denied (1998) (citations omitted).

We will not affirm a dismissal under T.R. 12(B)(6) unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances. This court accepts as true the facts alleged in the pleading. Only when the pleading states a set of facts, which, even if true, would not support the relief requested, will we affirm the trial court’s dismissal.

Lattimore v. Amsler, 758 N.E.2d 568, 570 (Ind. Ct. App. 2001) (citations omitted).

Under Indiana’s “notice” pleading system, a pleading need not adopt a specific legal theory of recovery to be adhered to throughout the case. Ind.Trial Rule 8(A)[.] A pleading is sufficient when it pleads the operative facts so as to place the defendant on notice as to the evidence to be presented at trial. Rather than exalt form over substance, this Court will uphold its long-standing policy that cases should be decided on the merits and justice should not be defeated by technicalities.

Binninger v. Hendricks County Bd. of Zoning Comm’rs, 668 N.E.2d 269, 272 (Ind. Ct. App. 1996), trans. denied (1997) (some citations omitted). With these standards in mind, we turn to the City’s substantive claims.

Id. at 183, 81 N.E. at 915 (emphasis added).
The Sopher court went on to explain that
[i]t is not within the province of the judges of this court, nor of those of the lower courts, in the discharge of their official duties, to criticize the policy of the legislative department, which the latter has adopted in dealing with the liquor traffic. In the administration of justice all courts must be controlled, so far as applicable, by the laws which the legislature has constitutionally enacted, without regard to the individual views, in respect to the wisdom or expediency of such laws, of the persons who may preside over such courts. Neither boards of commissioners nor courts can be held responsible for granting a license under the laws to sell intoxicating liquors to an applicant therefor who is shown to be legally entitled to such license. In discharging this duty such boards of commissioners and courts but carry out the mandate of the law, above which no one can rise, and not the individual views of those who preside over them. It must be evident to every unprejudiced mind that a court cannot nullify an act of the legislature on the mere assertion of persons assailing it that a license granted thereunder permits the licensee to maintain a public nuisance per se by merely selling intoxicating liquors, without violating any of the laws of the State in conducting the place in which such liquors are sold, for, as heretofore shown, whatever is authorized by an act of the legislature, which that body is competent, under the Constitution, to pass, is not, in the eye of the law, a nuisance.
While all citizens of this State have a perfect right to cry out, or declare upon the hustings, or before the legislature, or other assembled bodies, that the liquor traffic cannot be legalized without committing a sin, and while their arguments might be sufficiently potent to induce the legislature to prohibit absolutely the traffic, they could be of no avail before a court which can neither make nor unmake laws.

Id. at 201-02, 81 N.E. at 921-22. In other words, if an activity causes harm that would otherwise constitute a public nuisance, but the activity has been authorized by the legislature, then the author of the activity cannot be held legally responsible for public nuisance. See footnote As the Sopher court stated, “if the legislature of the State, by a statute, authorizes an act to be done, … such act is thereby made lawful, and cannot be considered or regarded in a legal sense as a nuisance so far as the public is concerned[.]” Id. at 183, 81 N.E. at 915.
We must accept as true the City’s allegations that the illegal secondary handgun market in the City is causing increased fear among its residents and that Appellees are, at least in part, causing the increased fear through their activities. However, Appellees cannot be legally responsible for public nuisance if their activities are authorized by the legislature. See footnote For the City’s public nuisance claim to survive the pleading stage, the City must allege activity by Appellees that is specifically proscribed by the legislature. See footnote
The manufacture, distribution, and sale of handguns are authorized by both state and federal law, although these activities are heavily regulated. See footnote The City does not allege that any Appellees have violated any specific statute, ordinance, rule, or regulation with respect to the manufacture, distribution, or sale of handguns. After evaluating the City’s first amended complaint in the light most favorable to the City and drawing every reasonable inference therefrom in the City’s favor, we conclude that as to manufacturer Appellees Smith & Wesson Corp. (“Smith & Wesson”), Beretta U.S.A., Corp., Colt’s, Browning, Glock Corp., Charter Arms Corp., Hi-Point Firearms Corp., Navegar Inc., d/b/a/ Intratec U.S.A., Corp., Bryco Arms Corp., Phoenix Arms Corp., Lorcin Engineering Corp., Sturm, Ruger & Co., Corp., Taurus Firearms Corp., Davis Industries, distributor Appellee B.L. Jennings Inc., and dealer Appellees Jack’s Loan, Inc. (“Jack’s Loan”), Jim Shema’s Outdoor Sports, and Westforth Sports, Inc., the City has alleged no legislatively unauthorized activity. Thus, the trial court properly dismissed the City’s public nuisance claim against those parties for failure to state a claim upon which relief can be granted. Such is not the case for the remaining dealer Appellees, however.
Paragraph 39A of the City’s first amended complaint alleged that Appellee Cash Indiana, Inc. (“Cash Indiana”) sold a handgun to an undercover police officer who, known to Cash Indiana, was going to give it to a person who appeared to be unable legally to buy a handgun without first submitting to a background check. See Appellant’s App. at 15. Paragraph 39C alleged that Cash Indiana sold a handgun to an undercover police officer who, known to Cash Indiana, was going to give it to a person who claimed to be a convicted felon. Id. at 16. Paragraph 39E alleged that Appellee Ameri-Pawn of Lake Station, Inc. (“Ameri-Pawn”) sold a handgun to an undercover police officer who, known to Ameri-Pawn, was going to give it to a person who claimed to be a juvenile. Id. at 17. Paragraph 39F alleged that Appellee Blythe’s Sport Shop, Inc. (“Blythe’s”) sold a handgun to an undercover police officer who, known to Blythe’s, was going to give it to a person who claimed to be a juvenile. Id. Paragraph 39H alleged that Cash Indiana sold a handgun to an undercover police officer who, known to Cash Indiana, was going to give it to a person who appeared to be unable to legally purchase a handgun without first submitting to a background check. Id. Paragraph 39I alleged that Ameri-Pawn sold a handgun to an undercover police officer who, known to Ameri-Pawn, was going to give it to a person who appeared to be unable to legally purchase a handgun without first submitting to a background check.
Each of these allegations describes the straw purchase of a handgun, which is a felony in Indiana. See Ind. Code § 35-47-2.5-14(b) (“A person who purchases a handgun with the intent to … resell or otherwise provide the handgun to another person who the person knows or has reason to believe is ineligible for any reason to purchase or otherwise receive from a dealer a handgun … commits a Class D felony.”). A dealer who knowingly or intentionally attempts to aid, induce, or cause a straw purchase also commits an unlawful act and can be held criminally liable to the same extent as the purchaser. See footnote
Under the facts alleged by the City, dealer Appellees Cash America, Ameri-Pawn, and Blythe’s have attempted to aid, induce, or cause the straw purchase of a handgun, which is clearly legislatively unauthorized. We therefore reverse the trial court’s dismissal of the City’s public nuisance claim against those parties. See footnote

Id. at 35.
To sustain an action for negligence, the City must establish
(1) a duty owed by the defendant to conform its conduct to a standard of care arising from its relationship with the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. The first of these three elements, the existence of a duty, is a question of law for the court to determine.

Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999) (citations omitted). “The duty, when found to exist, is the duty to exercise reasonable care under the circumstances.” Stump v. Indiana Equip. Co., 601 N.E.2d 398, 402 (Ind. Ct. App. 1992), trans. denied (1993). “The duty never changes, [although] the standard of conduct required to measure up to that duty varies depending upon the particular circumstances.” Id. “Absent a duty, there can be no breach, and thus, no basis for recovery under a negligence theory.” Bloemker v. Detroit Diesel Corp., 720 N.E.2d 753, 757 (Ind. Ct. App. 1999), trans. denied (2000).
“[T]he relationship of the parties is a proper factor for consideration in determining whether a legal duty exists in a particular case.” Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 241-42 (Ind. 1997) (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991)). “This determination may also consider various other factors, among which are the reasonable foreseeability of harm and public policy concerns.” I d. In the instant case, we consider the relationship of the parties, See footnote the reasonable foreseeability of the harm, and public policy concerns. Some of the City’s allegations apply only to some Appellees of which there are three distinct classes: manufacturers, a distributor, and dealers. We consider each class of Appellees separately where appropriate.

Id. at 479 (citations omitted). Without regard to the City’s specific factual allegations, we conclude that it is indeed foreseeable that a municipality, such as the City, will incur costs because of the misuse of handguns within its municipal limits.

Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990). See footnote
The fact that the United States Congress and the Indiana General Assembly have pervasively regulated the manufacture, distribution, sale, and use of handguns suggests that those legislatures have already evaluated the public policy concerns regarding these activities. The misuse of handguns, whether criminal or merely accidental, imposes great costs on society, of which all legislators are undoubtedly aware. In an attempt to minimize the costs of handgun misuse, legislatures have passed laws designed to curtail handgun ownership by those who are more likely to misuse them, including known criminals, children, intoxicated persons, and mentally ill persons. We must presume that Congress and the General Assembly, as elected representatives of the people, have struck the appropriate balance between the societal costs of handguns and the historical right to bear arms.
It is worth noting, however, that the costs of the misuse of firearms in Indiana are substantial, perhaps nowhere more so than in the City. In 1999, homicide was the second-leading cause of death of all Hoosiers between the ages of fifteen and twenty-four. See footnote Of those homicides, 84.9% were committed with firearms. See footnote According to the City, over seventy persons were murdered with handguns in the City in 1997, and another fifty-four were murdered with handguns in 1998. Appellant’s App. at 9-10. In 2001, the City had the highest per-capita murder rate in the nation, at 59.4 murders per 100,000 population. See footnote In contrast, the 2001 murder rates per 100,000 population for other Indiana cities were 27.8 for Hammond, 12.5 for Indianapolis, 11.9 for South Bend, 9.9 for Fort Wayne, and 7.2 for Evansville. See footnote While we recognize that public policy, as expressed in our constitution and by our legislature and judiciary, favors the availability of firearms, including handguns, we would be remiss if we failed to note some of the societal costs of firearm misuse.

CITY OF GARY, INDIANA, by its Mayor,            )
SCOTT L. KING,                        )
    Appellant-Plainitff,        )
    )
vs.        )    No. 45A03-0105-CV-155
        )    
SMITH & WESSON CORP., BERETTA U.S.A.        )
CORP., COLT’S MFG. CORP., BROWNING        )
ARMS CORP., GLOCK CORP., CHARTER        )
ARMS CORP., HI-POINT FIREARMS CORP.,        )
NAVEGAR INC. d/b/a INTRATEC USA CORP.,        )
B.L. JENNINGS INC., BRYCO ARMS CORP.,        )
PHOENIX ARMS CORP., LORCIN ENGINEERING    )
CORP., STURM, RUGER & CO. CORP., TAURUS    )
FIREARMS CORP., DAVIS INDUSTRIES, INC.,        )
AMERI-PAWN OF LAKE STATION, INC.,        )
BLYTHES SPORT SHOP, INC., CASH INDIANA,    )
INC., JACK’S LOAN, INC., JIM SHEMA’S         )
OUTDOOR SPORTS, WESTFORTH SPORTS,        )
INC., and DOES 1-225,        )
    Appellees-Defendants.        )

RILEY, JUDGE, concurring in part and dissenting in part

I respectfully concur in part and dissent in part. I concur with the majority’s reversal of the trial court’s grant of Appellee retailers’ motion to dismiss City’s public nuisance complaint. I would, however, reverse the trial court’s grant of Appellee manufacturers’ and Appellee distributors’ Motions to dismiss the public nuisance complaint. I would further reverse the trial court’s grant of all Appellees’ motions to dismiss the negligence and product liability claims.

3) City failed to plead facts demonstrating that Appellees unreasonably interfered with a public right.

    Because I do not believe that legislative authorization requires dismissal of City’s public nuisance claim, I will address each of these arguments in turn.

Id. § 825.
    While our public nuisance statute does not require a plaintiff to plead intentional or negligent interference with a public right, City has nevertheless alleged facts sufficient to overcome even this heightened standard. For example, City has alleged that Appellees create, support, promote, and supply an illegitimate secondary market for handguns. Complaint, ¶ 69. Furthermore, it has alleged that Appellees knew or should have known that the creation and supply of this market would interfere with the public right of the citizens of Gary to be free from handgun violence. Id. ¶¶ 36, 38, 41-43.

Id. (Footnotes omitted.) A panel of this court has noted that “[t]he law of nuisance creates problems of definition for courts and commentators. As stated by one expert, ‘[t]here is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’.’” Sand Creek Partners, 647 N.E.2d at 1151 (quoting Keeton, supra, § 86). A comprehensive exploration of the definitional problems presented by nuisance is beyond the scope of this opinion.

Moreover, if it be conceded that the State might direct some particular specific act to be done in a specified manner, which would necessarily, under any condition, result in the creation of what would be, without such authorization, a private nuisance, yet in the absence of specific legislative direction as to the manner in which the act should be done, it should not be assumed that the State, public necessity not requiring it, would so exercise the power as to injure the property of an individual.
It must be noted that the statute simply makes it the duty of the board “in all cases to take prompt action to arrest the spread of contagious diseases.” The board is not required by the statute to erect and maintain a pesthouse. The discretion committed to the board is not limited to determining the location of a pesthouse, but it also involves the duty of determining whether it shall be built at all. That is, if the board erects a pesthouse, it does so under authority necessarily implied from the powers expressly conferred. And if the board pleads statutory sanction in justification of an act which the general rules of law constitute a nuisance to private property, it should show either that the act is expressly authorized by the statute, or that it is plainly and necessarily implied from the powers expressly conferred.

Id. at 77-78, 71 N.E. at 274 (emphases added).
Finally, the dissent cites to Howard v. Robinette, 122 Ind. App. 66, 99 N.E.2d 110 (1951) trans. denied, to support its argument. However, Howard is also a private nuisance case, and is therefore inapposite. See id. at 74, 99 N.E.2d 113 (“[G]rants of legislative authority do not confer on municipalities the power to operate the facilities of a power plant in total disregard of the private rights of others[.]”) (emphasis added).

Ind. Code § 35-47-2-7(b).