The Indiana Court of Appeals recently reversed a $6,000,000.00 jury verdict in a wrongful death case in which an Indianapolis bus ran over and killed a pedestrian attempting to board the bus because the Court found—unlike the jury that decided the case, the judge who ruled on the case, and a dissenting member of the appellate panel—that no reasonable person could conclude that the pedestrian was free from contributory negligence causing his death. In Indianapolis Pub. Transportation Corp. v. Bush, Michael Rex Fergerson (“Fergerson”) was killed as he attempted to board a bus operated by the Indianapolis Public Transportation Corporation d/b/a IndyGo Public Transportation (“IndyGo”), a municipal corporation and governmental entity. Since Indiana’s legislature has excluded tort claims against governmental entities from Indiana’s Comparative Fault Act (under Indiana’s Comparative Fault Act a claimant can recover damages so long as the claimant’s fault is not greater than the fault of all persons whose fault proximately contributed to the claimant’s damages), governmental entities retain the common law defense of contributory negligence, which bars any recovery if the claimant is not “completely free of all negligence.” In other words, under Indiana’s Comparative Fault Act, a claimant can recover damages so long as the claimant’s fault is not greater than 50%, whereas a claimant asserting a claim against a governmental entity cannot recover even if the claimant is, for instance, only 1% at fault, despite the governmental entity being 99% responsible for the resulting harm to the claimant.
Fergerson was 63 years old. He was an alcoholic who had started drinking alcohol when he was eight years old. He suffered from sciatica, a painful condition of the spine that can affect one’s ability to stand up and walk. He lived with his mother and, while he had a license, he often used IndyGo buses for transportation. He had been eight-days sober prior to the date of his injury. However, the morning he was run over, he had started drinking again and was briefly hospitalized for intoxication, confusion, and incoordination. After being released from the hospital, still mildly intoxicated, Fergerson went to a grocery store. Later, Fergerson was drinking from a liquor bottle while seated at the Lafayette Square Mall bus stop. One IndyGo bus driver refused to pick him up, telling him “[y]ou’re not coming on here with that liquor bottle.” A little over thirty minutes later, another IndyGo bus, driven by David Ross (“Ross”), pulled up and stopped past the bench where Fergerson was seated. Fergerson stood up, collected his packages, and walked towards the door of the bus, while two passengers on the bus exited. When Fergerson was about two feet from the door, the bus pulled away. Fergerson raised his arm reaching towards the bus from the sidewalk. His arm contacted the bus, his body spun around, he fell from the sidewalk onto the street under the bus, and he was run over by the rear wheels of the bus. Fergerson died from complications of blunt-force trauma. His blood alcohol concentration was over three times the legal limit to drive.
As they approach bus stops, IndyGo bus drivers are supposed to assess bus stops, including who is at the bus stop and may want to ride the bus. IndyGo bus drivers are trained on safety rules, including the need to keep a safety perimeter around the bus while stopped and in motion. The driver of the bus that ran over Fergerson, Ross, acknowledged, among other things, that he occasionally encountered drunk or disruptive riders, it was his responsibility to ensure their safety, including making sure everyone was completely clear of the bus before moving the bus, and he was supposed to allow extra time for the elderly and disabled. Ross acknowledged IndyGo buses have blind spots and that he was trained to, and knew he had to, check mirrors to confirm the presence of persons. He was also aware that the window by the bus door was tinted, limiting his visibility, which he had to take into consideration for safety.