                                                                   MAR 19 2014, 6:49 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DANIEL H. PFEIFER                            JAMIE C. WOODS
JEROME W. MCKEEVER                           JAMES R. BYRON
Pfeifer, Morgan & Stesiak                    Thorne Grodnik, LLP
South Bend, Indiana                          Mishawaka, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

JUSTIN WHITMORE,                             )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )      No. 71A03-1306-CT-242
                                             )
SOUTH BEND PUBLIC TRANSPORTATION             )
CORPORATION a/k/a TRANSPO,                   )
                                             )
      Appellee-Defendant.                    )


                   APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                        The Honorable Michael G. Gotsch, Judge
                            Cause No. 71C01-1203-CT-59



                                   March 19, 2014

                             OPINION–FOR PUBLICATION

BAKER, Judge
        In this case we consider an unprovoked tortious assault on an appellee-defendant

South Bend Public Transportation Corporation (TRANSPO) bus. Here, the trial court

granted summary judgment in favor of TRANSPO on appellant-plaintiff James

Whitmore’s negligence complaint, determining that Whitmore’s action on the bus

constituted contributory negligence. Whitmore now appeals, arguing that his actions

were not contributory negligence and that he could not foresee that the man he sat next to

on the bus would assault him. Under these circumstances, we find that there is a question

of material fact as to whether Whitmore was contributorily negligent or incurred the risk

of his assault. Therefore, we reverse and remand for further proceedings.

                                               FACTS

        TRANSPO is a public transportation corporation and is a government entity for

purposes of the Indiana Tort Claims Act.1 During the early morning hours of Saturday,

September 3, 2011, Whitmore, his friend Steven Colnitis, Colnitis’ sister, Kara, and

Kara’s fiancé, Justin Pudenz, boarded a TRANSPO bus on Wayne Street in South Bend.

Whitmore was a recent graduate of Notre Dame’s MBA program, and he was visiting

Notre Dame to attend a football game that weekend. Whitmore had consumed four or

five “vodka sodas” at a bar between the hours of 10:30 or 11:00 p.m. on September 2 and

2:00 or 2:15 on September 3, before getting on the TRANSPO bus. Appellant’s App. at

54. He “definitely had . . . a buzz from the alcohol.” Id.



1
 Ind. Statute § 34-13-3-1 et seq. The Indiana Tort Claims Act specifically includes public transportation
corporations.
                                                   2
         The bus was very crowded, with almost every seat occupied and several people

standing up. As Whitmore walked down the aisle, he tripped over something but did not

fall to the ground. Whitmore turned around and saw a man2 sitting down with his legs

stretched out in the aisle. Whitmore “saw him and he was immediately engaging with”

Whitmore, which led Whitmore to believe that he “was the person [who had] just made

contact with” Whitmore. Id. at 69-70. The man called Whitmore an “idiot or dumbass or

that kind of thing” and laughed. Id. at 71. Whitmore perceived that the man was a

“tough guy” or “macho.” Id. at 72-73. Whitmore also perceived that the man was a

bully.

         Whitmore sat down next to the man and also in the vicinity of Whitmore’s friends.

After Whitmore sat down next to him, “nearly shoulder to shoulder,” the man “kept

talking . . . to [the man’s] girlfriend” seated on the other side of him. Id. at 79-80.

Whitmore heard the man say, “This guy’s coming and sitting down next to me, you

know, I’m just like tired of this.” Id. at 80. Whitmore heard that and interpreted it to

refer to Whitmore “being in [the man’s] space.” Id. Whitmore thought that the man’s

behavior was “bizarre.” Id. Whitmore did not move from his seat. The man then turned

to Whitmore and said, “You’re f***ing with the wrong one.” Id. at 81. And Whitmore

responded, “I’m not scared of you.” Id. Whitmore “did not think of [the man] as a

credible threat to [him] physically.” Id. at 83. Colnitis heard what sounded like a “verbal

altercation” behind him between Whitmore and the man sitting next to him. Id. at 115.
2
  Whitmore’s assailant fled the scene before he could be apprehended, and he has not been identified to
date.
                                                  3
Colnitis heard the men “verbally kind of bashing each other and the situation escalat[ed]

very quickly.” Id. at 115-16.

      When Whitmore turned and began talking to his friends, the man stood up and

punched Whitmore in the face. Colnitis intervened, and the man placed Colnitis in a

choke hold. Whitmore attempted to pull the man away from Colnitis, but the man’s

girlfriend intervened and pushed Whitmore back into a seat. At some point, Colnitis and

Whitmore attempted to push the man off the bus, but they were unsuccessful. The man

then hit Whitmore again in the eye, breaking Whitmore’s orbital bones. The assailant

and his girlfriend fled the bus. Whitmore received emergency medical treatment for his

fractured orbital bone. At the hospital, a health care provider administered a blood

alcohol content test, which indicated that Whitmore’s blood alcohol content was .126.

That reading was taken at least one-half hour after Whitmore had last consumed an

alcoholic beverage that morning.

      Whitmore filed a complaint against TRANSPO alleging that it was “negligent for

failing to provide a safe environment for its invitees.” Id. at 3. TRANSPO moved for

summary judgment alleging that it was entitled to summary judgment because it is a

governmental entity and the doctrines of contributory negligence and incurred risk bar

Whitmore’s claims against it as a matter of law. Following a hearing, the trial court

entered summary judgment in favor of TRANSPO. This appeal ensued.




                                           4
                                 DISCUSSION AND DECISION

                                       I. Standard of Review

        When we review the grant or denial of a summary judgment motion, we apply the

same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010).

Summary judgment is appropriate only where the evidence shows that no genuine issue

of material fact exists and the moving party is entitled to judgment as a matter of law. Id.;

Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are

construed in favor of the non-moving party, and all doubts concerning the existence of a

material issue must be resolved against the non-moving party. Id. Nevertheless, the trial

court’s grant of summary judgment “enters appellate review clothed with a presumption

of validity,” and the appellant bears the burden of demonstrating that the trial court erred.

Trustcorp Mortg. Co. v. Metro Mortg. Co. Inc., 867 N.E.2d 203, 211 (Ind. Ct. App.

2007). Finally, if the trial court’s grant of summary judgment can be sustained on any

theory or basis in the record, we will affirm. Beck v. City of Evansville, 842 N.E.2d 856,

860 (Ind. Ct. App. 2006).3

                                    II. Contributory Negligence

        When a tort claim is brought against a governmental entity such as TRANSPO, the

common law defense of contributory negligence remains applicable under Indiana Code

section 34-51-2-2. Thus, if a plaintiff is negligent to even a small degree and that


3
  TRANSPO did not provide an argument as to its lack of negligence. While this court may affirm on any
theory or basis in the record, the parties have not designated any evidence to develop this argument thus
far.
                                                   5
negligence proximately contributes to his claimed damages, contributory negligence will

operate as a complete bar to his action; this is true even though as against non-

governmental entities, any fault of a plaintiff will only operate to reduce the damages he

might obtain. Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006).

The trial court determined that Whitmore’s actions, namely attempting to remove the

assailant from the bus, was contributory negligence as a matter of law. We disagree.

       A plaintiff is contributorily negligent when his conduct falls below the standard to

which he should conform for his own protection and safety. Negligence depends upon

the lack of reasonable care that an ordinary person would exercise in like or similar

circumstances. Id. at 598. Put another way, contributory negligence is the failure of a

person to exercise for his own safety that degree of care and caution which an ordinary,

reasonable, and prudent person in a similar situation would exercise. Id. Generally,

contributory negligence is a question of fact for the jury to decide. It will only be a

question of law appropriate for summary judgment if the facts are undisputed and only a

single inference can be drawn therefrom. Id. at 599.

       Here, the undisputed facts are as follows: Whitmore consumed four or five

alcoholic beverages before getting on the bus.         While boarding the bus, Whitmore

believes he may have accidentally tripped over his assailant. Whitmore sat in the seat

next to his assailant “nearly shoulder to shoulder,” and the man “kept talking . . . to [the

man’s] girlfriend” seated on the other side of him. Appellant’s App. p. 79-80. Whitmore

heard the man say, “This guy’s coming and sitting down next to me, you know, I’m just

                                             6
like tired of this.” Id. at 80. Whitmore did not move from his seat. The man turned to

Whitmore and said, “You’re f***ing with the wrong one.”           Id. at 81.   Whitmore

responded, “I’m not scared of you.” Id. Whitmore turned and began talking to his

friends. At that point, the man stood up and punched Whitmore in the face. Id. at 86.

Colnitis intervened, and the man placed Colnitis in a choke hold. Id. at 89. At some

point, Colnitis and Whitmore attempted to push the man off the bus, at which point the

man then hit Whitmore again in the eye, breaking Whitmore’s orbital bones. Id. at 96.

       More than one inference might be drawn from these facts. For instance, a fact-

finder might determine that a reasonably prudent person might have acted as Whitmore

did when he told this “bully” that he was not scared of him. Id. at 81. Accordingly, we

question the wisdom of determining as a matter of law that an individual is contributorily

negligent when he is not the first aggressor in an altercation, but simply fails to meekly

walk away from an individual that is violently disposed. Therefore, we find that a

question of material fact exists as to whether or not Whitmore’s actions constituted

contributory negligence.

                                  III. Incurrence of Risk

       The trial court also determined that Whitmore had incurred the risk of his injuries

as a matter of law. TRANSPO argues that Whitmore did indeed incur the risk of his

injuries because Whitmore knew or should have known that his words and actions risked

provoking a physical altercation and serious physical injury.



                                            7
       Incurred risk is a defense to a claim of negligence, separate and distinct from the

defense of contributory negligence. Power v. Bodie, 460 N.E.2d 1241, 1243 (Ind. Ct.

App. 1984). “By definition, the very essence of incurred risk is the conscious, deliberate

and intentional embarkation upon a course of conduct with knowledge of the

circumstances.” Id. An incurred risk must be voluntary. Richardson v. Marrell’s Inc.,

539 N.E.2d 485, 847 (Ind. Ct. App. 1989). Concerning the voluntariness of incurring this

risk, this court has said:

       The very essence of incurred risk is the conscious, deliberate, and
       intentional embarkation upon the course of conduct with knowledge of the
       circumstances. It requires much more than the general awareness of a
       potential for mishap. Incurred risk contemplates acceptance of a specific
       risk of which the plaintiff has actual knowledge. . .

Id. (emphasis in original).

       Here, the trial court determined that Whitmore incurred the risk of his injuries by

looking at only a fraction of the circumstances that lead to Whitmore’s injury. More

particularly, Whitmore did in fact help to push the assailant off the bus, but only after he

had already been assaulted once. Id. While the trial court determined that Whitmore

“certainly recognized the risk of retaliation when he engaged in the conscious and

deliberate course of conduct to attempt to throw the assailant off the bus,” we cannot

agree. Appellant’s App. p. 277. We cannot say that one, as a matter of law, incurs the

risk of assault when he defends himself. Therefore, we determine that there is a question

of material fact as to whether Whitmore incurred the risk of assault.



                                             8
       We reverse the judgment of the trial court and remand for proceedings consistent

with this opinion.

CRONE, J., concurs, and NAJAM, J., dissents with opinion.




                                           9
                             IN THE
                   COURT OF APPEALS OF INDIANA

JUSTIN WHITMORE,                               )
                                               )
      Appellant-Plaintiff,                     )
                                               )
             vs.                               )      No. 71A03-1306-CT-242
                                               )
SOUTH BEND PUBLIC TRANSPORTATION               )
CORPORATION a/k/a TRANSPO,                     )
                                               )
      Appellee-Defendant.                      )


                   APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                        The Honorable Michael G. Gotsch, Judge
                             Cause No. 71C01-1203-CT-59




NAJAM, Judge, dissenting.

      I respectfully dissent. I agree with the trial court and would hold that Whitmore

was contributorily negligent as a matter of law. In Funston v. School Town of Munster,

849 N.E.2d 595 (Ind. 2006), the plaintiff was injured when he leaned backwards and fell

from the top row of a set of bleachers while watching a basketball game in a high school

gymnasium. Our supreme court noted that “even a slight degree of negligence . . . will

operate as a total bar” to a plaintiff’s action or damages against a governmental


                                          10
defendant. Id. at 598. The plaintiff sued the school, a governmental entity. And our

supreme court agreed with the trial court that the plaintiff was contributorily negligent “to

some degree” as a matter of law, barring his claims against the school. Id. at 600. The

court rejected the plaintiff’s argument that “a reasonable spectator could be distracted by

the game and lean back inadvertently just as Mr. Funston did.” Id. The court observed

that, while “[i]t certainly is understandable that Mr. Funston would be distracted as he

engaged his attention on his son’s basketball game[,] . . . being understandable does not

equate with being completely free of all negligence.” Id. And the court found from the

undisputed facts that “only a single inference can reasonably be drawn: Mr. Funston was

negligent to some degree, and this is enough to establish the common law defense of

contributory negligence as a matter of law.” Id.

       The court’s reasoning in Funston dictates that Whitmore was contributorily

negligent here. The undisputed designated evidence shows that Whitmore knowingly sat

down next to a man whom he perceived to be a bully and taunted him after the man had

warned Whitmore that he was “****ing with the wrong one.” Following Funston, that

evidence proves, as a matter of law, that Whitmore was “negligent to some degree.” See

id.   The majority mischaracterizes Whitmore’s duty of reasonable care under the

circumstances. While he was not the first aggressor, he had a duty to act reasonably in

light of what he recognized was a tense situation. I would not hold that Whitmore had a

duty to “meekly walk away” but that he had a duty to take reasonable care to avoid



                                             11
further aggravating a bully. The designated evidence shows that Whitmore breached that

duty when he countered the man’s threatening remark with his own bravado.

      Next, a negligent act or omission is the proximate cause of injury if the injury is a

natural and probable consequence which, in light of the circumstances, should reasonably

have been foreseen or anticipated. Peavler v. Bd. of Comm’rs of Monroe Cnty., 557

N.E.2d 1077, 1080 (Ind. Ct. App. 1990). However, “‘[f]oreseeability does not mean that

the precise sequence of events or exact consequences which were encountered should

have been anticipated. Rather the question is whether the [actor] should have foreseen in

the abstract, in a general way, the injurious consequences of [his] act.’” Id. (quoting

Hobby Shops, Inc. v. Drudy, 161 Ind. App. 699, 317 N.E.2d 473, 478 (1974)). And as

our supreme court stated in Funston, there can be multiple proximate causes of a resulting

event. 849 N.E.2d at 600. Proof of proximate cause requires only that a plaintiff’s

negligence be “a” proximate cause, that is, one of the proximate causes. Id.

      Here, again, Whitmore had assessed the situation before he sat down on the bus

and had perceived his assailant to be a “tough guy” and a “bully.” Yet Whitmore chose

to sit down next to him and, after the man had conveyed a clear threat to Whitmore,

Whitmore told the man that he was “not scared” of him. Appellant’s App. at 81. While

Whitmore did not throw the first punch, he was pugnacious, and his verbal taunt led

directly to the fight that ensued. Whitmore’s provocation easily meets the “slight degree

of negligence” test followed in Funston. 849 N.E.2d at 598. Thus, I would hold that

Whitmore reasonably should have foreseen that his taunt directed at the already agitated

                                           12
man on the bus was an invitation and precursor to the physical altercation that ensued as a

natural and probable consequence of his own behavior.

       To be sure, had Whitmore sued a private entity, the question of his contributory

negligence would be an obvious question of fact precluding summary judgment. But

Whitmore is suing a governmental entity. Our supreme court in Funston held that a

plaintiff’s conduct need only demonstrate “some degree” of negligence to bar his claim

against a governmental entity, and we are bound to follow that clear precedent. See 849

N.E.2d at 600. Again, in Funston the court held that leaning backwards from a set of

bleachers and falling down is enough to bar a suit against the government on grounds of

contributory negligence. Id. If that is so, then there is no doubt that Whitmore’s claim is

likewise barred.




                                            13
