Justin Whitmore v. South Bend Public Transportation Corporation a/k/a Transpro, 2014 Ind. App. LEXIS 236

Whitmore, after consuming alcohol, boarded a crowded TRANSPO bus in South Bend (Sept. 3, 2011).
Whitmore sat next to a man Whitmore perceived as a bully; the man taunted him and warned he was not to be trifled with.
The man punched Whitmore, Colnitis intervened (Colnitis was choked), and a second assault occurred on Whitmore on the bus.
Whitmore and Colnitis pushed to remove the assailant but could not; the assailant and his girlfriend fled the bus.
Whitmore sustained a fractured orbital bone; BAC was .126 about 30 minutes after last drink.
Whitmore sued TRANSPO for a negligent environment; the trial court granted summary judgment for TRANSPO on contributory negligence and incurred risk.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is Whitmore contributory negligence a question of law or fact?	Whitmore argues he was not negligent; the facts require jury determination.	Whitmore’s conduct bar as contributory negligence; law governs.	Question of material fact; not law.
Did Whitmore incur the risk of injury as a matter of law?	Whitmore did not knowingly incur the risk by defending himself.	Whitmore knowingly risked retaliation when engaging near the aggressor.	Question of material fact; not law.

Funston v. School Town of Munster, 849 N.E.2d 595 (Ind. 2006) (any degree of contributory negligence bars government claims)
Peavler v. Bd. of Comm’rs of Monroe Cnty., 557 N.E.2d 1077 (Ind.Ct.App.1990) (proximate causation standard; foreseeability analysis)
Power v. Brodie, 460 N.E.2d 1241 (Ind.Ct.App.1984) (incurred risk requires conscious, voluntary conduct with knowledge)
Richardson v. Marrell’s Inc., 539 N.E.2d 485 (Ind.Ct.App.1989) (incurred risk requires actual knowledge of specific risk)
Hobby Shops, Inc. v. Drudy, 317 N.E.2d 473 (Ind. App. 1974) (foreseeability of injury; general standard for proximate consequences)