concurring in result with opinion.
I concur in the majority's decision as it pertains to Count II of the Jacksons' Amended Complaint, and concur in result as to the portion of the opinion concerning Count III.
Count III of the Jacksons' Amended Complaint seeks to hold Jordan Demolition liable for the costs the Jacksons incurred due to Jordan's depositing improper fill dirt on the property in violation of Indianapolis Code §§ 8-130, 8-131. The majority, relying on our Supreme Court's decision in Citizens Gas & Coke Util. v. American Econ. Ins. (1985), Ind., 486 N.E.2d 998, 1000, concludes that Jordan was entitled to summary judgment on the Jacksons's negligence claim because "there is no privity between Jordan and Jacksons." Op. at 453. Indeed, our Supreme Court held in Citizens Gas that:
One who ... does construction work pursuant to a contract with the owner of a building or premises which presents imminent danger to the health and safety of not only the party he contracts with but to other members of the public, can be held liable for resulting injuries even though the third party injured is not privy to the contract. -It does not follow that the same exception would be applied where the risk is only that of property damage.
Id. at 1000-1001. I do not agree with this reasoning.
As Justice DeBruler noted in his dissenting opinion, the duty arising in Citizens Gas and in the case at bar is not based upon a contractual relationship or even common law. It arises instead from a public law: in Citié-zens Gas a plumbing code and in this case a city ordinance. See id. at 1001. Although the Jacksons alleged that Jordan breached its contract by using improper fill dirt, their negligence claim specifically alleges misconduct due to Jordan's failure to conform its work to the mandate of the Indianapolis Code. See also, id. at 1001. As Justice DeBruler reasoned:
The purpose of the plumbing code is not just to protect persons like the [previous owner] who contracted with the gas company to install the water heater. The plumbing code has instead the broader goal of protecting persons such as the [subsequent purchasers] who may later use the water heater and have property in its proximity.
Id.
I agree with Justice DeBruler's conclusion that where lability is based upon negligence, a contract between the defendant and a previous property owner is merely incidental and the legal concept of privity is irrelevant. Id. The limits of the contractor's negligence liability are defined not by privity of contract, but by the class of persons the law is intended to protect. Inland Steel v. Pequignot *454(1993), Ind.App., 608 N.E.2d 1378, 1383, trans. denied.
The duty in this case is created by the Indianapolis Code provisions requiring the use of clean fill dirt. One is hard-pressed to find a law that serves to protect a class of persons that spans generations in a manner such as a law that governs the care and maintenance of land. While water heaters such as the one in the Citizens Gas case may eventually have to be replaced, or even the house in which it was installed may be remodeled, removed or demolished, the land on which Jordan Demolition worked will remain forever. As happened in this case, it is more certain than not that ownership of the land will one day pass to another, and it is consistent that the laws governing the maintenance of land, and particularly the quality of soil that is deposited on the land, inure to the benefit of all those who may come to hold title to the property in subsequent years. Clearly, the laws governing the quality of fill dirt one may deposit on land protects current and future property owners alike, and those who act in violation of the laws may be held accountable by those whom the laws seek to protect.
For the reasons set forth above, I conclude that the Jacksons may prosecute their action in negligence against Jordan Demolition for its failure to comply with the Indianapolis Code provisions governing the quality of fill dirt deposited onto land. However, due to the deference this Court must give to the decision of our Supreme Court espoused in Citizens Gas, I must concur in the majority's conclusion that the Jacksons, as a matter of law, may not hold Jordan Demolition liable for property damages that resulted from Jordan's alleged negligence.