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.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

Under Indiana’s General Wrongful Death Statute, damages inure to the benefit of the decedent’s estate for payment of reasonable medical, hospital, funeral and burial expenses, and the remainder of damages, which are uncapped, including damages for loss of love, care and affection, inure to the exclusive benefit of the surviving spouse, dependent children, or dependent next-of-kin. Ind. Code § 34-23-1-1. When an unmarried adult dies without dependents, a claim can be brought under Indiana’s Adult Wrongful Death Statute, which provides that damages for reasonable medical, hospital, funeral and burial expenses inure to the decedent’s estate, while other damages, including loss of love and companionship, inure to the nondependent parent or nondependent child of the decedent. Ind. Code § 34-23-1-2. Importantly, under the Adult Wrongful Death Statute, damages for loss of love and companionship are capped at $300,000.00. Ind. Code § 34-23-1-2(e).

Vaughn lived with Virginia in her home since 2005 until her death in March 2018. Virginia paid her own mortgage, home insurance, property taxes, utilities, and food. Vaughn lived with Virginia rent-free but paid his own bills. Although Vaughn had access to Virginia’s checking account, which he used to pay for items on her behalf, he had his own checking account and did not need any assistance from Virginia to pay his bills. Vaughn took care of himself with Virginia not providing any services, such as cooking, cleaning or other daily living tasks. Virginia bought Vaughn two cars, which he would not have been able to afford and which he needed for work and transporting Virginia, but he testified that these were gifts. After 2001 neither Vaughn nor Virginia claimed each other as a dependent on their taxes, which they both filed separately. From 2013 to 2017 Vaughn testified he could afford to live on his own and did not have any financial needs from his mother but chose to live with her to take care of her. When Virginia’s health deteriorated in 2017, Vaughn took medical leave to help her, and Virginia reimbursed him for his lost wages.

Although dependency is not defined in the General Wrongful Death Statute, Indiana courts have established a standard for dependency requiring proof of (1) a need or necessity of support on the part of the alleged dependent and (2) the decedent’s contribution to such support. A decedent’s support or contribution to a beneficiary must amount to more than a service or benefit to which a beneficiary has become accustomed, and such must go beyond merely helping family members, even as to family members who have relied on that assistance. Here, as to the first consideration, the Court found Vaughn did not have an actual need or necessity for Virginia’s support. He was financially stable and paid his bills and expenses without assistance since 2005 and from 2013 to 2017 he had the means to maintain an independent household. As to the second consideration, the Court found Virginia’s support amounted to gifts, donations and acts of generosity. The Court therefore held that no reasonable jury could find that Vaughn was dependent on his mother.

Under Indiana’s Survival Act, an action for personal injuries to the decedent can be maintained to recover damages to the decedent resulting before the decedent’s death, including damages for pain and suffering, but only if the decedent died of causes other than those personal injuries. Ind. Code § 34-9-3-4. The damages in a survival action, which are uncapped, compensate the decedent’s estate for the decedent’s injuries, whereas damages for wrongful death compensate decedent’s survivors for the loss resulting from the decedent’s death. While parties can alternatively assert claims for wrongful death and survivorship, a party can only recover under one theory. Here, the Court found the Defendants’ admissions in their answer constituted a judicial admission conclusive and binding on the trier of fact. Since it was established that Virginia died as a result of the Defendants’ negligence, the Court found Vaughn could not show that Virginia died of causes other than Defendants’ negligence, and therefore, had no cause of action under the Survival Act.

The Court of Appeals reversed the trial court’s denial of the Defendants’ motion for summary judgment and remanded the case for further proceedings consistent with the opinion.

You can read the full opinion here.