Articles Posted in Bus Accidents

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.

We previously wrote on the Indiana Court of Appeals’ decision in Smith v. Franklin Twp. Cmty. Sch. Corp. in which the Court of Appeals reversed a trial court’s dismissal of a personal injury lawsuit concerning a motor vehicle accident finding the pre-suit notice requirements of Indiana’s Claims Against Public Schools Act (“CAPSA”), which was enacted a year and a half after the subject accident, could not be retroactively applied. Recently, on a petition to transfer, the Indiana Supreme Court weighed in and affirmed the trial court’s dismissal on procedural grounds.

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.

The Indiana Court of Appeals recently reversed a trial court’s dismissal of an Indiana automobile accident case in which the injured motorist was alleged not to have complied with the notice provisions of Indiana’s Claims Against Public Schools Act (“CAPSA”). In Smith v. Franklin Twp. Cmty. Sch. Corp., Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). A few months after the accident, Smith provided notice of his tort claim to the School in accordance with the Indiana Tort Claims Act (“ITCA”). A year and a half after the accident, Indiana’s legislature enacted CAPSA which provides notice requirements in all civil actions or administrative proceedings against public schools. After Smith filed a lawsuit against the School, and after the applicable statute of limitations had run, the trial court granted the School’s motion to dismiss Smith’s complaint without prejudice on the basis that he had failed to comply with CAPSA.

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.”

Before we meet with a prospective client about their potential car accident injury case or truck accident injury case, we will have already obtained and reviewed the crash report.  We will then go through the crash report with them and identify whether the officer determined anyone was the primary cause of the accident and whether there were any contributing factors. Sometimes the investigating officer has made a definitive decision as to the primary cause. Other times we find the officer was unable to determine what was the primary cause of the accident and has provided an “either or” type answer. Ultimately, we are asked what will the insurance company or trucking company do with the officer’s findings? Unfortunately, like many answers in the law, it depends.

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.

Megabuses have become a popular mode of transportation for individuals throughout the nation including in the state of Indiana. The large buses transport many people from one location to another for a reasonable cost.

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.

Anytime anyone is struck by a vehicle, the potential for injuries is great. When that vehicle is a bus, the injuries can be massive if not fatal. In fact, one incident recently unfolded outside of an Indiana elementary school in which a principal was fatally injured and the incident may possibly open the door to a wrongful death suit.

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.

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