*1 WHITMORE, Appellant- Justin

Plaintiff, TRANSPOR BEND PUBLIC SOUTH TATION CORPORATION a/k/a

Transpo, Appellee-Defendant.

No. 71A03-1306-CT-242. of Indiana. Appeals Court 19, March 3, 2014. April Published Ordered *2 contributory

actions were could and that he not foresee that the man he sat next to on the would bus assault circumstances, him. Under these we find is question that there material fact as to whether Whitmore or incurred the risk of his as- Therefore, sault. reverse remand for proceedings. further

FACTS public transportation

TRANSPO is a corporation government entity and is a for purposes of the Indiana Tort Claims Act.1 During early morning hours of Satur- 3, 2011, Whitmore, day, September his Colnitis, sister, friend Steven Colnitis’ Kara, fiance, Pudenz, and Kara’s Justin Wayne boarded a TRANSPO bus on Street in South Bend. Whitmore was a recent graduate of Notre Dame’s MBA program, visiting and was Notre Dame game to attend football that weekend. Pfeifer, McKeever, H. Daniel Jerome W. had consumed four or five Pfeifer, Stesiak, Bend, “vod- Morgan & South ka sodas” a bar between hours of IN, Attorney Appellant. p.m. 10:30 or 11:00 September Woods, James R. Byron, Jamie C. 2:00 or 2:15 on September before get- Grodnik, LLP, Mishawaka, IN, At- Thorne ting on the Appellant’s TRANSPO bus. torneys Appellee. App. at 54. He had ... “definitely a buzz from the alcohol.” Id. OPINION crowded, The was very bus with almost BAKER, Judge. every occupied seat people and several In case an unprovoked standing up. we consider Whitmore walked down As appellee-defendant aisle, assault tortious on an he tripped something over Transportation Corpo- South Bend Public ground. did not fall to the (TRANSPO) ration bus. the trial turned around and saw man2 sitting granted summary judgment in favor down his legs stretched out in the appellant-plaintiff of TRANSPO on aisle. James Whitmore “saw him and he was Whitmore’s negligence complaint, immediately Whitmore, deter- engaging with” mining that action on the bus led Whitmore to believe contributory person just constituted “was the [who made con- had] arguing Whitmore now appeals, tact with” Whitmore. Id. at 69-70. seq. § Statute Ind. 34-13-3-1 et the scene Whitmore's fled before specifically apprehended, Tort be Indiana Claims Act includes he could and he has not transportation corporations. public been identified to date. fractured treatment for his gency medical or dumbass an “idiot called Whitmore a health hospital, At the orbital bone. laughed. thing” kind of or that a blood alcohol administered provider care that the 71. Whitmore *3 test, that Whit- which indicated content 72-73. Id. at or “macho.” “tough guy” content was .126. blood alcohol more’s that the man also Whitmore taken at least one-half reading That bully. had last consumed hour after Whitmore man next to the and sat down Whitmore morning. beverage alcoholic friends. vicinity in the of Whitmore’s also against a complaint filed Whitmore him, next to sat down After Whitmore “negligent that it was alleging TRANSPO shoulder,” the to “nearly shoulder to a safe environment failing provide for girlfriend” talking man’s] “kept [the at 3. TRANSPO its invitees.” Id. him. Id. at 79- other side of seated on the alleging summary judgment moved say, “This heard the man Whitmore summary judgment it was entitled to me, sitting down next to coming and guy’s entity the governmental it is a and because know, of this.” Id. just I’m like tired you contributory negligence and doctrines of interpret- heard that and at 80. Whitmore claims incurred risk bar Whitmore’s “being [the ed it to refer to Whitmore Following it a matter of law. against as thought that space.” Id. Whitmore man’s] summary hearing, the trial court entered Id. behavior was “bizarre.” the man’s TRANSPO. This judgment in favor of from his seat. did not move Whitmore appeal ensued. to Whitmore and The man then turned * said, wrong f* with the “You’re DISCUSSION AND DECISION respond- And one.” Id. at 81. Whitmore ed, Id. you.” “I’m not scared of Review I. Standard of think of credible [the man] “did not of a grant we review the or denial When physically.” threat at 83. [him] motion, the summary judgment apply we a “verbal heard what sounded like Colnitis Kroger standard as the trial court. same him altercation” behind between (Ind. Plonski, 1, N.E.2d 4-5 930 Co. sitting the man next to him. Id. at and 2010). Summary judgment appropriate “verbally heard the men kind 115. Colnitis that no only where the evidence shows bashing each other and the situation of of material fact exists and genuine issue very quickly.” Id. 115-16. escalat[ed] moving party judgment is entitled to the Id.; Rule talk as a matter of law. Ind. Trial began Whitmore turned and When 56(C). friends, inferences up and All facts and reasonable ing to his the stood from facts are construed in in the face. Colnitis drawn those punched Whitmore intervened, non-moving party, the and all placed the man in favor of Colnitis the of a mate attempted pull concerning doubts existence a choke hold. Whitmore Colnitis, against resolved the away but the man’s rial issue must be the man from Nevertheless, non-moving party. girlfriend pushed intervened and Whit grant summary judgment point, back into a seat. At some trial court’s more with a appellate “enters review clothed attempted Colnitis Whitmore bus, validity,” appellant they presumption the man off the were unsuc demonstrating again hit bears the burden cessful. The man then Whitmore Trustcorp Mortg. trial court erred. breaking orbital eye, in the Inc., Mortg. girlfriend v. Metro Co. The assailant and his Co. bones. 203, Finally, if the (Ind.Ct.App.2007). received emer- 211 fled the bus. Whitmore summary inference can be therefrom. grant judgment court’s drawn trial theory any sustained on or basis in can be record, City will Beck v. affirm. facts are as (Ind.Ct.

Evansville, N.E.2d follows: Whitmore four consumed or five App.2006).3 beverages alcoholic getting before on the Negligence II. Contributory While boarding bus. brought When a tort claim is may accidentally tripped believes governmental entity such over his assailant. Whitmore sat TRANSPO, law defense of common “nearly seat next to his assailant shoulder *4 contributory negligence applicable remains shoulder,” to and the man “kept talking Indiana Code section 34-51-2-2. under to girlfriend” [the man’s] seated on the Thus, plaintiff if a to even a is other side of him. Appellant’s App. p. 79- degree negligence proxi small and that 80. Whitmore man say, heard the “This mately damages, contributes to claimed his me, guy’s coming sitting and down next to contributory negligence operate will as a know, I’m you just like tired of this.” Id. action; this complete bar to his is true at Whitmore not move did from his nongovernmental though even seat. man to turned Whitmore and entities, any only fault of a will plaintiff * said, f* “You’re with the wrong damages he might to reduce the operate Id. at responded, one.” 81. Whitmore Funston v. Town Mun obtain. School not you.” “I’m scared of Id. Whitmore (Ind.2006). ster, began talking turned and to his friends. trial court determined that Whitmore’s ac point, At that up the man stood and tions, namely attempting to remove the punched Whitmore in face. at 86. bus, contributory from the intervened, placed Colnitis and law. negligence as a matter of We dis in a choke hold. Id. at Colnitis 89. At agree. point, some Colnitis and Whitmore at plaintiff A negli is tempted to the man off the when below the gent his conduct falls stan point the then hit which to he conform for dard which should his eye, breaking in the again Whitmore’s or protection Negligence safety. own de bones. bital Id. at 96. pends upon the lack of reasonable care More than might one inference be ordinary an person would exercise in instance, from these For drawn facts. or similar like circumstances. might factfinder that a determine reason- contributory another way, Put ably prudent person might have acted as failure of exercise for person to his told “bully” Whitmore did when he this safety degree care and caution own that he was not of him. Id at 81. scared reasonable, ordinary, pru an Accordingly, question wisdom of person in a situation dent similar would determining as a matter law that an contributory Generally, neg exercise. contributorily negligent is individual when question jury is a of fact for the ligence is aggressor not the first an alterca- question It only decide. will be a law tion, judgment simply meekly away if fails to walk appropriate summary only are an single violently facts from individual that dis- record, argument parties designated any provide did not 3. TRANSPO argument its lack of While this court develop evidence to thus far. may any theory affirm or basis in the in the engaged of retaliation when Therefore, question that a risk we find posed. or not course of conduct as to whether and deliberate fact exists conscious of material contributo- off the actions constituted throw the assailant attempt bus,” App. ry negligence. agree. Appellant’s we cannot one, as a say that p. 277. We cannot Risk III. Incurrence of law, of assault incurs the risk matter of also determined The trial court Therefore, we he defends himself. when the risk of his had incurred that Whitmore question of mate- that there is determine TRANSPO a matter of law. injuries as incurred whether Whitmore rial fact as to incur the did indeed argues the risk of assault. injuries because risk of that his words knew or should have known of the trial judgment We reverse physical provoking and actions risked proceedings consis- court and remand physical injury. altercation and serious opinion. tent with this a defense to a claim of Incurred risk is from the

negligence, separate NAJAM, J., and distinct CRONE, J., concurs, and *5 Power contributory negligence. defense of opinion. with dissents (Ind.Ct. Brodie, 1241, 1243 460 N.E.2d v. NAJAM, dissenting. Judge, definition, very es “By App.1984). conscious, sence of incurred risk agree I with the respectfully I dissent. intentional embarkation deliberate and would hold that Whitmore trial court and knowledge with upon a course of conduct a matter of contributorily negligent was the circumstances.” Id. An incurred In v. School Town Mun law. Funston v. voluntary. risk must be Richardson (Ind.2006), ster, plain 849 N.E.2d 595 (Ind. Inc., 485, 487 Marrell’s injured tiff was when he leaned backwards Concerning the voluntari Ct.App.1989). a top fell from the row of set of risk, this court has incurring ness of watching while a basketball bleachers said: gymnasium. in a Our game high school very essence of incurred risk is the slight court noted that “even a supreme conscious, deliberate, and intentional operate ... will as a degree upon the course of conduct embarkation damages action or plaintiffs total bar” to a circumstances. It knowledge

with of the a against governmental defendant. requires general much more than the school, gov sued the a plaintiff potential mishap. In- awareness of a court entity. supreme ernmental And our contemplates acceptance curred risk of a agreed plain with the trial court that the specific plaintiff risk of which the has contributorily negligent “to some tiff was knowledge actual ... law, barring his degree” as a matter of (emphasis original). in Id. claims the school. Id. at 600. The that rejected plaintiffs argument court the trial court determined that distracted spectator “a reasonable could be injuries the risk of his Whitmore incurred inadvertently by game and lean back by looking only at a fraction of the circum- Mr. Funston did.” Id. The court just as injury. stances that lead to Whitmore’s that, certainly is un observed while “[i]t particularly, More did fact that Funston would be derstandable Mr. off the help assailant engaged he his attention distracted as only already after he had been assaulted un game[,] being basketball court determined his son’s once. Id. While the trial equate being does not “certainly recognized the derstandable that Whitmore

999 ’ negligence.” Hobby Shops, act.” Id. completely (quoting free of all Inc. [his] 699, undisputed Drudy, Ind.App. And the court found from N.E.2d (1974)). inference can rea- as our “only single supreme that And facts Funston, sonably negli- Funston was stated in there can be be drawn: Mr. mul enough proximate resulting this is causes degree, tiple to some event. gent proximate defense of con- 849 N.E.2d at 600. Proof of the common law establish requires a matter tributory negligence only plaintiffs negli of law.” cause that cause, is, be “a” gence proximate one proximate causes. Id. The court’s Funston dic- reasoning Here, again, that Whitmore was Whitmore had assessed tates down designat- here. The situation before he sat on the bus perceived evidence shows that Whitmore know- and had ed be a a man “tough guy” sat down next to whom he and a Yet ingly “bully.” and, bully to be a and taunted him chose to sit down to him next after the man Whitmore that the man had conveyed after had warned clear threat “ * * * Whitmore, wrong was with the one.” Whitmore told the man that he Funston, Following evidence “not proves, Appellant’s scared” of App. him. law, as matter of that Whitmore was While did not throw the punch, “negligent degree.” to some See id. The first pugnacious, and his majority duty directly fight mischaracterizes Whitmore’s verbal taunt led to the of reasonable care under the circum- provocation ensued. Whitmore’s easily *6 not ag- stances. While he was the first meets the “slight degree negligence” of Funston, duty reasonably he had a to act in followed gressor, test in 849 N.E.2d at Thus, of what light recognized a tense I would hold I reasonably situation. would not hold that Whitmore should foreseen have that his duty away” a to “meekly already agitated had walk but that taunt directed at the duty had a to take reasonable care the bus precursor to on was an invitation aggravating bully. physical avoid further the altercation ensued as a designated evidence shows that Whitmore and probable consequence natural of his duty breached that when he the behavior. countered own threatening

man’s remark his own sure, To be had sued pri- bravado. entity, question vate of his contributo- Next, negligence act omission ry ques- or would be obvious injury if the of proximate injury precluding summary judgment. cause of is a tion fact which, probable consequence natural and suing governmental But is circumstances, light of entity. should rea Our in supreme court Funston sonably anticipated. have been foreseen or a plaintiffs held that conduct need only Peavler v. Bd. Comm’rs Monroe demonstrate “some of degree” of Cnty., (Ind.Ct.App. bar his claim against governmental ‘ 1990). However, “[floreseeability entity, does and we are to follow bound sequence mean that precise precedent. of clear See N.E.2d at or exact consequences Again, events were Funston the held that lean- anticipated. encountered should have been backwards ing from a set bleachers and question falling enough Rather is whether down is to bar a suit [actor] abstract, government should foreseen in in a grounds contributo- so, general way, injurious consequences ry Id. If that then there is like- claim that Whitmore’s is no doubt

wise barred. the ADOPTION

In the Matter of OF B.C.H., a Minor. No. 41A04-1308-AD-388. of Indiana. Appeals Court 22, 2014. April