Fergerson was 63 years old and a chronic alcoholic. He also suffered from sciatica. He had a license but used IndyGo buses for transportation. In the morning on the day he was killed, Fergerson relapsed from an 8-day alcohol abstention and was briefly hospitalized for intoxication. He was released later that day. In the evening, after grocery shopping, Fergerson attempted to board an IndyGo bus to go home. One IndyGo bus driver refused to let him board because he had a liquor bottle. Later, another IndyGo bus pulled up to the bus stop. As two passengers exited the bus, Fergerson grabbed his two grocery bags and walked toward the front door of the bus. The bus driver checked his mirror for a “split second” and then pulled away from the curb. The driver did not remember checking his mirrors for proper alignment or having approached the stop in accordance with IndyGo’s policies. When the bus pulled away, Fergerson lost his balance and, with his arm outstretched towards the bus, fell off the curb and onto the road where he was run over by the bus’s rear wheels, causing his death two weeks later. His blood alcohol concentration was over three times the legal limit to drive. 

Fergerson’s mother, for his estate, filed a wrongful death lawsuit against IndyGo. A Marion County jury returned a jury verdict of $6 million dollars, which was reduced to $700,000 because of a limit on damages against governmental entities under Indiana law. At trial IndyGo argued Fergerson was contributorily negligent as a matter of law, referencing his intoxication and video footage of the incident. The trial court denied both of IndyGo’s motions, a motion for judgment on the evidence pre-verdict and a motion to correct error post-verdict. IndyGo appealed the denial of the post-verdict motion to correct error. A panel of the Indiana Court of Appeals reversed the trial court, with one judge dissenting. The Indiana Supreme Court granted transfer and ultimately affirmed the trial court’s denial of IndyGo’s motion to correct error.

As a preliminary matter, the Indiana Supreme Court first determined that its standard of review was de novo, that is, without deference to the trial court’s decision, as opposed to abuse of discretion, since IndyGo had asserted the jury’s verdict was clearly erroneous as contrary to the evidence. 

Next the Court reviewed whether the evidence supported a reasonable inference that Fergerson was not contributorily negligent, as a finding of contributory negligence as a matter of law is only proper when there exists only one inference to be drawn from the evidence, that of contributory negligence proximately causing the claimed injuries. Under Indiana law, a person is contributorily negligent if they fail to exercise the degree of care that an ordinary, reasonable, and prudent person would exercise for their own protection and safety under similar circumstances. Evidence of intoxication alone is insufficient; there must be evidence that a person’s intoxication proximately caused the person’s injuries. Contributory negligence, that is, fault on behalf of a person injured, however slight, acts as a complete bar to recovery against governmental entities in Indiana.

The Indiana Supreme Court reviewed and dispensed with IndyGo’s two arguments: first, that the video footage showed Fergerson was contributory negligent in reaching out to touch a moving bus, particularly given his intoxication, and two, that Fergerson was contributory negligent for violating Indiana Code § 9-21-17-5, which states “[a] pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard” and Indiana Code § 7.1-5-1-6, which prohibits a person from being intoxicated when using public transportation if the person’s intoxication endangers their own life.

As to IndyGo’s first argument, the Court noted that when the bus pulled away, the video footage did not show Fergerson’s legs and feet, and thus, a single, undisputed account of his conduct at the time of the incident. While noting one could certainly infer negligence finding Fergerson, possibly because of his intoxication or sciatica, lunged for or reached out to touch the moving bus, two other possible inferences also existed: first, that “Fergerson, through no unreasonable action and simply by accident, stumbled and then raised his arm in an involuntary attempt to brace himself as he fell,” and two, that “the bus’s sudden and unexpected momentum caused him to lose his balance as he carefully approached the bus and involuntarily reached out to stop himself from falling.” 

As to Fergerson’s intoxication, the Court noted that negligence cannot be presumed solely because an accident occurs and there was evidence Fergerson had ridden IndyGo buses many times while intoxicated without issue, chronic alcoholics can develop a tolerance to alcohol, and Fergerson’s mother could not say Fergerson “sounded drunk” when she spoke with him that evening. The Court reasoned, “[f]rom this evidence, coupled with the video footage, a reasonable jury could have inferred that Fergerson’s tolerance for alcohol minimized any impairment from his BAC level and thus concluded that his intoxication was not a proximate cause of his injuries.” 

As to IndyGo’s second argument, negligence per se based upon violation of Indiana law, the Court found a reasonable inference could be drawn from the video footage that Fergerson did not suddenly leave the curb by walking or running into the path of the bus under Indiana Code § 9-21-17-5 and, as noted with respect to IndyGo’s first argument, that his intoxication was not a proximate cause of his injuries endangering his own life under Indiana Code § 7.1-5-1-6. 

Finding “multiple, reasonable inferences” that the jury could have reached, the Indiana Supreme Court found IndyGo had not established Fergerson’s contributory negligence as a matter of law and therefore affirmed the trial court’s denial of IndyGo’s motion to correct error. While noting this was a “close case,” the Court recognized that its role is not to “stand in the place of the factfinder.” The Court noted the jury members were attentive, were properly instructed on the law, and found Fergerson was not contributorily negligent. Similarly, the Court noted the trial court and a judge on the Indiana Court of Appeals found Fergerson was not contributorily negligent as a matter of law. 

Justice Slaughter dissented with a separate opinion in which Justice Massa joined.

You can read the full opinion here.

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.

Ross stopped the bus at the bus stop for only fifteen seconds, which included the time it took for two passengers to exit the bus. He testified he checked his mirrors, but only for a “split second, I guess.” Ross did not see Fergerson at any time before or after the incident. Ross did not see Fergerson sitting at the bus stop, approaching the bus, standing next to the bus, falling under the bus, or being run over by the bus. Ross first learned of the incident later in the evening on the day of the incident during his break.

Fergerson’s estate filed a wrongful death lawsuit against IndyGo. IndyGo moved for a directed verdict during trial based upon video from the bus, which was the only evidence presented at trial as to Fergerson’s actions. IndyGo argued Fergerson was contributorily negligent as a matter of law. A person is contributorily negligent by failing to exercise reasonable care that an ordinary person would exercise in similar situations—by failing to exercise that degree of care and caution an ordinary, reasonable, and prudent person would exercise under similar circumstances. While contributory negligence is typically a question of fact, it can become a question of law for courts to decide if the facts are undisputed and only a single inference can be drawn from the facts.

The trial court denied IndyGo’s motion for directed verdict. While the jury was instructed that any contributory fault on Fergerson’s part barred any recovery, the jury returned a $6,000,000.00 verdict for Fergerson’s estate, comprised of damages for loss of love and companionship and medical bills. The verdict was lowered, by stipulation of the parties, to $700,000.00, based upon the damages caps under Indiana’s Adult Wrongful Death Statute, which caps damages for loss of love and companionship of an adult person without dependents to $300,000.00, and the Indiana Tort Claims Act, which caps damages against governmental entities at $700,000.00.

On appeal, IndyGo argued the trial court erred in denying its motion for directed verdict because the indisputable video evidence showed Fergerson was at least somewhat negligent for reaching out to touch a moving bus. When reviewing a motion for directed verdict, reviewing courts consider only the evidence and reasonable inferences most favorable to the nonmoving party, and like trial courts, do not weigh evidence or assess witness credibility. The majority panel of the Indiana Court of Appeals noted that when video evidence is indisputable, meaning no reasonable person could view the video and conclude otherwise, the Court can rely on such evidence and reverse the fact-finder’s findings, which does not constitute reweighing evidence.

Here, the Court found “the undisputed evidence inescapably leads to the reasonable inference that Fergerson acted unreasonably in the face of a clearly-visible threat: his conduct in reaching out toward a moving bus demonstrated a lack of reasonable care that an ordinary person would exercise in like or similar circumstances, particularly in light of the fact that he suffered from sciatica, which can affect a person’s mobility, and the fact that he was intoxicated at the time.” In her dissent, Judge Riley noted directed verdicts are only appropriate when there has been a complete failure of proof because there is no substantial evidence or reasonable inference supporting an essential element of a claim. She opined one reasonable inference is that, in light of the bus’s quick stop and sudden departure while Fergerson was right next to the bus, Fergerson, who suffered from sciatica, was startled and reached out to the nearest thing to steady himself, which was unfortunately the bus. Like the jury, she opined Fergerson acted reasonably in the situation for his own protection and safety.

You can read the majority opinion and dissent here.

The personal injury lawsuit arose when Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). After Smith filed a lawsuit, the School filed a motion to dismiss arguing that Smith failed to comply with the notice provisions of the newly enacted CAPSA. Smith did not file a response to the motion to dismiss, and when the trial court dismissed Smith’s complaint without prejudice, he did not appeal. Instead, after two months had passed, Smith filed a series of filings requesting reinstatement of his complaint pursuant to Indiana Trial Rule 41(F), which the trial court denied.

The Indiana Supreme Court did not review whether Smith’s tort claim notice pursuant to the Indiana Tort Claims Act satisfied the notice requirements of CAPSA, or whether CAPSA could be retroactively applied given it was enacted after the subject accident. Instead, the Court focused on whether Smith followed the proper procedure in challenging the trial court’s dismissal.

Under Indiana Trial Rule 41(F), “[f]or good cause shown and within a reasonable time [a trial court] may set aside a dismissal without prejudice.” Ind. R. Trial P. 41(F). Smith argued he met Indiana Trial Rule 41(F)’s requirements and was entitled to reinstatement because the trial court incorrectly interpreted the law in dismissing his complaint. In response, the School argued Smith failed to properly raise his substantive arguments in a timely and procedurally appropriate manner. The Indiana Supreme Court agreed with the School, noting that reinstatement pursuant to Indiana Trial Rule 41(F) is extraordinary relief, and a motion for reinstatement is not a substitute for a direct appeal of a dismissal and is not intended to address the legal basis of a judgment.

Smith did not file a response to the School’s motion to dismiss. Smith did not file an appeal of the trial court’s dismissal, which was a final appealable order. After two months had passed since the dismissal, Smith attempted to have his case reinstated pursuant to Indiana Trial Rule 41(F) by disputing the legal basis of the trial court’s dismissal, which he argued established “good cause” under Indiana Trial Rule 41(F). However, the Indiana Supreme Court noted that Smith’s claims of error were known or knowable at the time of dismissal but were not raised by him. The Indiana Supreme Court held Smith’s request for reinstatement was not made “within a reasonable time” and for “good cause,” but was instead an impermissible collateral attack on the dismissal order. The Indiana Supreme Court, therefore, affirmed the trial court’s dismissal of Smith’s lawsuit.

You can read the full opinion here.

The ITCA governs tort claims against governmental entities or public employees. Under the ITCA, a claim against the state of Indiana is barred unless notice of the claim is filed with the attorney general or the state agency involved within two hundred seventy (270) days after the loss occurs. Ind. Code § 34-13-3-6. Claims against political subdivisions, for example cities or counties, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. To comply with the notice provision of the ITCA, a claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice.” Ind. Code § 34-13-3-10.

CAPSA was enacted on July 1, 2018 and provides that claimants may not initiate a civil action or administrative proceeding against a public school “unless the individual or entity submits a written notice to the public school and the governing body… that notifies the public school and the governing body… of the alleged violation of law and indicates a proposed remedy.” Ind. Code § 34-13-3.5-4. The proposed remedy must provide “a specific request for relief” and “[a]llow the public school to offer [the claimant] the relief requested,” to which the public school must respond within fifteen (15) days after the notice is submitted, before the claimant can initiate a civil action or administrative proceeding. Ind. Code §§ 34-13-3.5-5, 34-13-3.5-6. If a claimant does not provide the required notice under CAPSA, the action “shall [be] dismiss[ed]… without prejudice.”

Smith argued on appeal that the trial court erred by not reinstating his dismissed complaint because CAPSA did not apply and because the notice he provided under the ITCA also satisfied the notice requirements of CAPSA. In determining the retroactive application of new laws, courts inquire as to legislative intent and presume laws do not have a retroactive application absent an express indication otherwise. Courts also look for strong and compelling reasons for retroactive application and inquire as to whether the new law attaches new legal consequences to events occurring before the law’s enactment. As to Smith’s compliance with the notice provisions of the ITCA, the Court of Appeals held that Smith’s compliance was conclusively established, as the School had waived any alleged deficiency by raising such for the first time on appeal. However, without deciding whether Smith’s compliance with the ITCA satisfied CAPSA, the Court concluded that applying CAPSA to Smith’s case would be “an impermissible retroactive application” of CAPSA. The Court concluded that CAPSA did not apply to Smith’s claim, and therefore, the trial court abused its discretion in failing to find good cause to reinstate Smith’s dismissed lawsuit.

You can read the full Court of Appeals’ opinion here.

An Indiana Officer’s Standard Crash Report must be completed by the investigating police officer when a car accident causes an injury or death or property damage greater than $1000. The most significant portions of the crash report for personal injury cases are the check-the-box section on contributing circumstances and the section where the officer is to provide a narrative/diagram of the incident.

The check-the-box section on contributing circumstances includes a variety of options for the investigating officer to list for the “Primary Cause” and for the other vehicle(s) involved. Options for the officer include such human factors as alcoholic beverages, illegal drugs, prescription drugs, unsafe speed, failure to yield, disregarding a signal, improper turning, using a cell phone, passenger distraction and pedestrian’s actions. Options also include mechanical factors such as brake failure, accelerator failure, tire failure, and tow hitch failure. Finally, the options include environmental factors such as glare, roadway surface, severe crosswinds, roadway construction, an animal or object in the roadway, utility work, or the view was obstructed. The primary cause is the officer’s strongest suspicion as to what caused the accident. Contributing factors are other issues that may have caused or contributed to the accident.

The narrative/diagram requirement of the report gives the officer a chance to explain the matter in more detail. Here the officer often lists the basis for the check-box conclusions, such as witness observations, skid-marks, gouge marks, damage, or other available information, assuming the officer was not an eyewitness, which does happen on occasion.

Although a police report stating that the other driver was the “primary cause” can go a long way to persuading a liability insurer or trucking company that their insured or driver will ultimately be found to be at fault in a legal case, it does not end the question as an evidentiary matter in a legal case. When it comes to an actual fault determination in a legal case, there is no check-the-box approach. The Indiana Code defines fault much more generally as follows:

IC 34-6-2-45 “Fault”

(a) “Fault”, for purposes of IC 34-20, means an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term includes the following: (1) Unreasonable failure to avoid an injury or to mitigate damages. (2) A finding under IC 34-20-2 (or IC 33-1-1.5-3 before its repeal) that a person is subject to liability for physical harm caused by a product, notwithstanding the lack of negligence or willful, wanton, or reckless conduct by the manufacturer or seller. (b) “Fault”, for purposes of IC 34-51-2, includes any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.

Comparing the detailed options available to the police officer investigating a motor vehicle injury and the more general notions of legal “fault” leads many to wonder whether the officer’s more detailed findings in the report can simply be placed before the court or jury in the form of an exhibit. Indiana law, embodied by the hearsay doctrine, generally prohibits admission of the police report itself in most cases for the reason that, unless the officer was a witness to the accident, the officer’s conclusions were most likely based upon the statements of others.

Hearsay is an evidentiary doctrine that provides that a statement not made by the person testifying which is offered for the truth of the statement is not admissible unless it falls under an exception to the hearsay rule. One such exception is for public records. However, even though a police report is a public record, the exception itself provides that “investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case” are not excepted from the hearsay rule. Some offering police reports into evidence in a case have argued that the report is yet admissible for the reason it involves a “routine, ministerial, objective nonevaluative matter.” The Indiana Court of Appeals rejected this argument in the 2014 case of Averitt Express, Inc. v. State of Indiana. The Averitt Court also rejected the argument that the officer’s affidavit opinion about the cause of the accident was admissible as an opinion of a skilled witness for the reason that a skilled witness opinion may not be based upon “information received from others or a hypothetical question.” As such, and as explained more thoroughly by the concurring opinion in Averitt, when an officer develops an opinion only from a post-accident investigation into the statements of others and is not otherwise qualified as an expert witness, the officer’s opinion as to causation will not be admissible.

In conclusion, a police report may be a likely indicator of how a case may play out in court. However, if a dispute arises over the conclusions in the report itself, there will be plenty of legal legwork to perform to prove up the case.

Unfortunately, as is the case with any vehicle on the road, it is possible that a megabus could be involved in a traffic accident. In the state of Indiana, four such incidents have occurred since October of last year. Two of those incidents involved the bus tipping over. The most recent incident happened earlier this month. It is currently unclear if there are similarities between the crashes.

At the time of the early morning crash a 49-year-old woman was behind the wheel of the large vehicle. According to authorities alcohol did not play a role in the crash. In addition, the driver was not charged with violating any traffic laws. Just what the cause of the crash was will likely be uncovered in the course of an investigation.

Though 19 people were hurt in the crash, fortunately none of their injuries were described as serious. Nonetheless, it is possible that those who were injured might still have to deal with healing from an injury that disrupted their lives, and seek compensation for the injury from the bus company. This may be accomplished via a personal injury lawsuit.

Whether lawsuits will be filed in conjunction with this crash remains to be seen. Anyone considering that course of action however should meet with a personal injury lawyer sooner rather than later to determine how best to proceed.

The accident occurred as school was being dismissed. The principal, who had been at the school for 22 years, was with students when a bus jumped a curb and came toward her and the children. The principal reportedly pushed children out of the way before she was struck.

Medics treated and rushed two children to a nearby hospital for treatment of serious injuries. Those children were said to be stable. The principal died at the scene of the incident. Police are still investigating what caused the bus to jump the curb and a fatal alcohol and crash team is involved.

This tragic accident that took the life of the beloved educator and injured two children could lead to a finding of culpability on the part of the bus driver. Dependent on the findings of the investigation, the family of the fatally injured principal in Indiana may have legal options, in addition to workers’ compensation, that can be in their best interests to pursue after they deal with the emotional and difficult loss of their loved one. A wrongful death suit may be appropriate in circumstances such as this and can help the family avoid financial ruin or difficulties after they have already endured such a tragic and unexpected loss.

Source: wzzm13.com, “Bus driver: Struck principal pushed kids to safety“, Jan. 26, 2016