Indiana Court of Appeals Reverses $6 Million Dollar Jury Verdict for Estate of Man Run Over and Killed by IndyGo Bus

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.

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.