Question: What Is “Incurred Risk” In A Civil Case?
Answer: It Is A Conscious & Deliberate Course Of Conduct With Knowledge of Circumstances.
TRANSPO is a public transportation corporation and is a government entity for purposes of the Indiana Tort Claims Act. During the early morning hours of Saturday, September 3, 2011, Justin Whitmore and his friends boarded a TRANSPO bus 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. He “definitely had … a buzz from the alcohol. The bus was very crowded. As Whitmore walked down the aisle, he tripped over something but did not fall to the ground. Whitmore turned around and saw a man 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. The man called Whitmore an idiot or dumbass and laughed. Whitmore perceived that the man was a “tough guy” but he still sat down next to the man. 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. Whitmore heard the man say, “This guy’s coming and sitting down next to me, you know, I’m just like tired of this.” Whitmore heard that and interpreted it to refer to Whitmore “being in the man’s space.” Whitmore did not move from his seat. The man then turned to Whitmore and said, “You’re f* * *ing with the wrong one.” And Whitmore responded, “I’m not scared of you.” When Whitmore turned and began talking to his friends, the man stood up and punched Whitmore in the face. After a struggle, the man hit Whitmore again in the eye, breaking his orbital bones. The assailant and his girlfriend fled the bus. Whitmore received treatment for his fractured orbital bone. At the hospital, a blood alcohol test indicated that Whitmore’s blood alcohol content was .126. Thereafter, Whitmore filed a complaint against TRANSPO alleging that it was negligent for failing to provide a safe environment. 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 as a matter of law. Following a hearing, the trial court entered summary judgment in favor of TRANSPO and this appeal ensued.
On appeal, it was noted by the appellate court that the trial court found that Whitmore had incurred the risk of his injuries as a matter of law. TRANSPO argued 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. Incurred risk is a defense to a claim of negligence, separate and distinct from the defense of contributory negligence. 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. An incurred risk must be voluntary. 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. 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. 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. 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. We reverse the judgment of the trial court and remand for proceedings consistent with this opinion. 7 N.E.3d 994