Court of Appeals enters judgment in favor of IndyGo after fatal bus incident

The Indiana Court of Appeals reversed a trial court’s decision denying IndyGo’s motion for directed verdict after the transportation company was sued for the death of a man who was struck by an IndyGo bus in 2018.

On Sept. 29, 2018, 63-year-old Michael Rex Fergerson was struck by an IndyGo bus he attempted to board at the Lafayette Square Mall bus stop.

At the time, Fergerson had a dependence on alcohol, and earlier that day, he was taken to the hospital after being found intoxicated on a sidewalk.

When he was released from the hospital, he was still intoxicated, according to court records.

Around 7:35 p.m., an IndyGo bus driven by David Ross pulled up to the Lafayette Square Mall stop. Video at the stop showed Fergerson approach the front door of the bus but did not reach it before it began to drive away a minute later.

As it pulled away, Fergerson reached toward it and made contact, causing him to get spun around and fall into the bus’s path.

On Oct. 12, 2018, Fergerson died from his injuries, the cause of death being complications from blunt force trauma.

Medical records showed that at the time of the incident, Fergerson’s blood alcohol concentration was three times over the legal limit to drive.

During the jury trial in April 2023, the only evidence presented regarding Fergerson’s conduct was video showing Fergerson moving toward Ross’s bus. No eyewitness testified about his conduct immediately before being hit by the bus.

After the presentation of all evidence, IndyGo moved for a directed verdict under Trial Rule 50, or judgment on the evidence, which the trial court verbally denied.

The jury then returned a verdict in favor of Fergerson’s estate.

After the verdict, IndyGo filed a motion to correct error and a brief in support of the motion. The trial court denied the motion, and IndyGo appealed.

Under Indiana Code section 34-51-2-2, when a tort claim is brought against a governmental entity like IndyGo, the common law defense of contributory negligence can be applied.

In the opinion, Court of Appeals Judge Peter Foley wrote that Fergerson was negligent to some degree when reaching toward the bus, because he failed to act as a reasonable person given his experience with riding a bus.

“Contrary to the Estate’s argument that Fergerson was not negligent, 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,” Foley wrote.

Because Fergerson was at least a “proximate cause” of his being struck by the IndyGo bus, he was contributorily negligent, and IndyGo had a right to claim contributory negligence as a defense, Foley wrote.

Judge Elaine Brown concurred.

Judge Patricia Riley dissented, writing that IndyGo failed to show burden of proof by not providing sufficient evidence that Fergerson acted unreasonably when reaching his arm out to the bus.

A mere 15 seconds passed between Ross pulling up to the bus stop and pulling away, Riley wrote, and the near immediate acceleration of the bus would’ve startled Fergerson who, having suffered from mobility problems, would’ve reasonably reached out to use the bus to steady him and regain balance.

Fergerson’s actions did not amount to negligence but instead reflected a series of unfortunate events leading to his death, Riley wrote.

“Although I agree with the majority that the facts are undisputed, more than one reasonable inference can be drawn from them and therefore, the issue of contributory negligence in the cause before us is not a question of law as the majority concluded, but rather remains within the realm of the jury’s determination,” Riley wrote.

The case is Indianapolis Public Transportation Corporation d/b/a IndyGo Public Transportation v. Norma Jean Bush, as Personal Representative of the Estate of Michael Rex Fergerson, Deceased, 23A-CT-1483.