De Novo Review for Rule 59(J) “Clearly Erroneous” Motions and Limits on Using Video/Intoxication to Prove Contributory Negligence as a Matter of Law

Introduction

In Indianapolis Public Transportation Corporation d/b/a IndyGo v. Bush, the Indiana Supreme Court confronted two consequential issues: (1) the correct appellate standard of review when a party, via a Trial Rule 59(J) motion to correct error, challenges a civil jury’s verdict as “clearly erroneous as contrary to or not supported by the evidence,” and (2) whether video footage and evidence of intoxication compel a single inference that a decedent was contributorily negligent as a matter of law in a wrongful-death action against a governmental defendant.

The case arises from a tragic 2018 incident in which Michael Fergerson, a 63-year-old IndyGo rider with sciatica and a long history of alcohol-use disorder, fell from the curb as a bus departed and was fatally injured. His mother, Norma Jean Bush, as personal representative of his estate, sued IndyGo for negligence. IndyGo asserted contributory negligence—a complete bar to recovery against governmental entities—and twice sought judgment as a matter of law, first during trial under Rule 50(A), and again post-verdict via a motion to correct error under Rule 59(J).

Chief Justice Rush, writing for the Court, affirms the trial court’s denial of IndyGo’s post-verdict motion. The Court announces a clear procedural rule: when a Rule 59(J) motion alleges a verdict is “clearly erroneous as contrary to or not supported by the evidence,” appellate courts review the denial de novo—aligning that posture with de novo review of Rule 50(A) rulings. Substantively, the Court holds the record—including multi-angle bus video and proof of a high BAC—does not compel the sole inference that Fergerson was contributorily negligent, nor that he committed negligence per se under the pedestrian-safety and public-intoxication statutes urged by IndyGo.

Justice Slaughter, joined by Justice Massa, dissents, emphasizing the “exceedingly low bar” for contributory negligence in suits against governmental entities and arguing that only one inference can be drawn from the record: the decedent bore at least slight fault, which would bar recovery.

Summary of the Opinion

Standard of Review: When a party uses Trial Rule 59(J) to argue that a non-advisory jury’s verdict is “clearly erroneous as contrary to or not supported by the evidence,” the denial of that motion is reviewed de novo on appeal. This mirrors de novo review for Rule 50(A) judgments on the evidence. The Court distinguishes this from a Rule 59(J) “weight of the evidence” challenge, where the trial court acts as a “thirteenth juror.”
Application to Evidence: Viewing the evidence in the light most favorable to the Estate, the bus videos and intoxication proof do not compel a single inference that Fergerson was contributorily negligent as a matter of law. The videos did not capture the critical positioning of Fergerson’s legs/feet at the moment of the fall and reasonably permit multiple inferences, including non-negligent loss of balance or an involuntary reaction to the bus’s departure.
Intoxication and Proximate Cause: While evidence of intoxication can support contributory negligence, intoxication alone does not establish it; there must be evidence that intoxication proximately caused the injury. Given testimony about alcohol tolerance and Fergerson’s history of riding while intoxicated, the jury could reasonably find intoxication did not proximately cause the fall.
Negligence Per Se: The record does not compel the conclusion that Fergerson violated Indiana Code § 9-21-17-5 (prohibiting “suddenly leaving” a place of safety into the path of a close vehicle) or § 7.1-5-1-6 (public intoxication on public transportation requiring endangerment caused by the intoxicated person’s conduct). Thus, negligence per se is not established as a matter of law.
Disposition: The Court affirms the trial court’s denial of IndyGo’s motion to correct error and reinstates the jury’s verdict for the Estate (as reduced to the statutory cap).

Analysis

Precedents and Authorities Cited

Jury’s fact-finding prerogative: Rannells v. State, 18 Ind. 255 (1862); Novak v. Chicago & Calumet Dist. Transit Co., 135 N.E.2d 1 (Ind. 1956); Cosme v. Clark, 232 N.E.3d 1141 (Ind. 2024).
Standards for Rule 50(A) and Rule 59(J): Cosme, 232 N.E.3d at 1150–52 (de novo review of Rule 50(A) and trial court’s limited role during trial); Weida v. Kegarise, 849 N.E.2d 1147 (Ind. 2006) (trial court as “thirteenth juror” on “weight” challenges under Rule 59(J)); Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309 (Ind. 2024) (general abuse-of-discretion review for motions to correct error). The Court harmonizes these by holding de novo review applies when the Rule 59(J) motion claims the verdict is “clearly erroneous as contrary to or not supported by the evidence.”
Insufficiency under Rule 50(A) and Rule 59(J): Huff v. Travelers Indem. Co., 363 N.E.2d 985 (Ind. 1977); School City of Hammond Dist. v. Rueth, 71 N.E.3d 33 (Ind. Ct. App. 2017), trans. denied.
Contributory negligence and governmental defendants: Funston v. School Town of Munster, 849 N.E.2d 595 (Ind. 2006) (contributory negligence bars recovery against governmental defendants; becomes a question of law only if facts permit a single inference); Jones v. Gleim, 468 N.E.2d 205 (Ind. 1984).
Intoxication and proximate cause: Nesvig v. Town of Porter, 668 N.E.2d 1276 (Ind. Ct. App. 1996); Restatement (Second) of Torts § 283C cmt. d (1965).
Physical incapacity and standard of care: Memorial Hospital of South Bend, Inc. v. Scott, 300 N.E.2d 50 (Ind. 1973).
Video evidence: Love v. State, 73 N.E.3d 693 (Ind. 2017) (deference to factfinder unless video clearly admits of only one conclusion).
Public intoxication endangerment element: Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014), trans. denied.
Argument preservation: PSI Energy, Inc. v. Roberts, 834 N.E.2d 665 (Ind. 2005) (appellate courts will not consider new legal theories not presented to the jury or trial court).
No presumption of negligence from accident alone: Isgrig v. Trustees of Indiana University, 256 N.E.3d 1238 (Ind. 2025).
Jury presumed to follow instructions: Weisheit v. State, 26 N.E.3d 3 (Ind. 2015).
Statutes: I.C. § 34-51-2-2 (comparative fault act retaining contributory negligence for governmental defendants), I.C. §§ 34-23-1-2, 34-13-3-4 (wrongful-death damages cap and Tort Claims Act cap), I.C. § 9-21-17-5 (pedestrians must not suddenly leave a place of safety into the path of a vehicle), I.C. § 7.1-5-1-6 (public intoxication on public transportation with endangerment).

Legal Reasoning

1) The standard of review: de novo for Rule 59(J) “clearly erroneous” challenges

The Court resolves an open question in Indiana practice: how appellate courts review a trial court’s denial of a Rule 59(J) motion asserting that a verdict is “clearly erroneous as contrary to or not supported by the evidence.” Harmonizing the structure and function of Rule 50(A) and Rule 59(J), the Court holds that when a party’s Rule 59(J) motion claims legal insufficiency (as opposed to “weight” of the evidence), the trial court is not acting as a factfinder and does not weigh credibility. In that posture, the appellate court, like the trial court, simply assesses whether the evidence supports any reasonable inference for the non-movant. Because “the paper record alone is enough” for that analysis, the standard of review is de novo, just as it is for a Rule 50(A) motion during trial.

By contrast, when a Rule 59(J) motion argues the verdict is “against the weight of the evidence,” the trial court becomes a “thirteenth juror,” weighing evidence and credibility and, if warranted, granting a new trial with findings under Rule 59(J)(7). Appellate review of that discretionary “weight” determination remains distinct.

2) Contributory negligence: multiple reasonable inferences defeat judgment as a matter of law

On the merits, the Court reaffirms that contributory negligence becomes a question of law only when the undisputed facts yield a single reasonable inference of plaintiff fault that proximately contributed to the injury. The bus videos—eight internal angles—were played repeatedly for the jury. Crucially, the videos did not capture the decedent’s legs/feet at the pivotal moment. Applying the Love framework, the Court defers to the jury’s view of that ambiguous, partially obstructed footage unless no reasonable juror could see it differently.

The videos support at least three plausible inferences:

Negligent lunge/reach for a moving bus.
Non-negligent stumble with an involuntary brace as he fell.
Loss of balance caused by the bus’s unanticipated momentum as he cautiously approached, with an involuntary reach to prevent falling.

Given those competing reasonable inferences, the Court declines to collapse them into a single negligence inference. That conclusion is reinforced by evidence about Fergerson’s sciatica (relevant to judging his conduct against similarly situated persons, see Memorial Hospital) and his established, incident-free bus use, including while intoxicated.

3) Intoxication, tolerance, and proximate cause

The Court carefully separates evidence of intoxication from proximate cause. Although the toxicologist opined that a 0.261 BAC typically produces visible impairment and contributed to the event, the Estate’s physician testified that chronic alcohol users can function with high BACs and that deficits may not be apparent unless balance is “really challenge[d].” The decedent’s mother could not say he “sounded drunk” shortly before the incident. The jury heard all of this—and asked probing questions—and could reasonably find that intoxication was not a proximate cause of the fall.

Under Nesvig and Restatement § 283C cmt. d, intoxication alone is insufficient to establish negligence; there must be a causal connection. Because the record supports a non-intoxication inference as to proximate cause, the Court refuses to deem contributory negligence established as a matter of law.

4) Negligence per se under the two statutes

I.C. § 9-21-17-5 (pedestrians): The video does not compel the conclusion that Fergerson “suddenly left” a place of safety by walking or running into the path of the bus. The footage can equally be read as a stumble or involuntary loss of balance as the bus moved.
I.C. § 7.1-5-1-6 (public intoxication on public transportation): The statute requires endangerment caused by the intoxicated person’s conduct. Consistent with Sesay, the Court requires proof that intoxication-driven conduct endangered the person. Given the competing inferences and tolerance evidence, the record does not solely support that intoxication proximately caused the injury or that the decedent’s conduct, by virtue of intoxication, endangered his life as a matter of law.

The Court also declines to consider a third statute (I.C. § 7.1-5-1-3) because IndyGo did not present it to the jury or rely on it in the motion to correct error, invoking PSI Energy’s preservation principle.

The Dissent’s Counter-Analysis

Justice Slaughter’s dissent underscores the unforgiving nature of contributory negligence in suits against governmental entities (retained by I.C. § 34-51-2-2), arguing that even “slightly causal” negligence is a complete bar. He would hold that the only reasonable inference from the video and intoxication evidence is that Fergerson bore at least some fault. He advances several doctrinal points:

Persons with known physical limitations must take the precautions a reasonable person with those limitations would take; this can entail greater care (citing Memorial Hospital and treatise sources). On this record, he finds no evidence of extra precautions.
Negligence is about conduct, not mental state; an “accidental” or “involuntary” stumble is not a defense to failing to exercise reasonable care.
Proximate cause exists if injury is the foreseeable, natural, and probable consequence of the conduct. Given the BAC and balance issues, he deems the injury foreseeable and at least minimally caused by intoxication or mobility limitations—sufficient for contributory negligence.
Because the low threshold for contributory negligence was met, he would grant judgment for IndyGo or leave in place the Court of Appeals’ reversal.

Impact

1) Procedural and appellate practice

Clear rule: Denials of Rule 59(J) motions asserting “clearly erroneous as contrary to/not supported by the evidence” are reviewed de novo. This aligns post-verdict “insufficiency” motions with in-trial Rule 50(A) motions.
Strategic filing: Litigants should be precise in framing Rule 59(J) arguments. A “weight of the evidence” argument invokes the trial court’s thirteenth-juror function (and different appellate review), whereas an “insufficiency” argument preserves de novo review.
Record orientation: Because the appellate court will rely on the paper (and video) record for de novo review of insufficiency, parties should ensure clean preservation of exhibits (e.g., multi-angle videos, playback logs) and pertinent instructions.

2) Substantive tort law against governmental defendants

Contributory negligence remains stringent, but the bar to withdrawing the issue from a jury is equally stringent: unless the evidence compels only one inference of plaintiff fault, the issue goes to the jury.
Video evidence rarely “stands alone.” If critical angles are missing, lighting is imperfect, or sequences admit multiple plausible narratives, deference to the jury will prevail under Love.
Intoxication is not self-proving of contributory negligence. Parties must connect intoxication to proximate cause; evidence of tolerance, functional behavior, and countervailing expert testimony can defeat “as a matter of law” arguments.
Negligence per se requires careful statutory fit. For public intoxication on public transportation, proof of “endangerment” must be traceable to the intoxicated person’s conduct; for pedestrian statutes, “sudden” movement into a vehicle’s path is a fact question unless clearly established.

3) Practical implications for transit agencies and common carriers

Training and policy compliance (e.g., mirror alignment, approach distances to the curb) will continue to be scrutinized by juries. A driver’s uncertainty about compliance can sustain alternative inferences favoring plaintiffs.
Video-system configuration matters. Camera placement and angles determining whether a pedestrian’s feet/legs and curb-line are visible at key moments can be outcome-determinative for dispositive motions.

Complex Concepts Simplified

Contributory negligence versus comparative fault: Indiana’s comparative fault act generally apportions fault, but for claims against governmental entities, the old contributory-negligence rule persists: any plaintiff negligence that proximately contributes, even slightly, bars recovery.
Rule 50(A) vs. Rule 59(J): Rule 50(A) allows judgment on the evidence during trial (no weighing). Rule 59(J) is a post-verdict motion. If a party claims the verdict is “against the weight of the evidence,” the judge can reweigh (thirteenth juror). If the claim is “clearly erroneous as contrary to/not supported by the evidence,” the judge does not weigh, and both the trial and appellate courts ask whether any reasonable inference supports the verdict.
De novo review: A non-deferential standard in which the appellate court independently applies the law to the record without deferring to the trial court’s legal conclusions. Here, that applies to Rule 59(J) “clearly erroneous” denials—just like Rule 50(A).
Negligence per se: A statutory violation that establishes the breach element of negligence. It still requires causation: the violation must proximately cause the injury. And the facts must demonstrate the violation actually occurred as the statute defines it (e.g., “suddenly leaving” into a vehicle’s path; endangerment caused by intoxicated conduct).
Proximate cause: An injury is proximately caused by conduct if it is the natural, probable, and foreseeable result of that conduct. Mere presence of intoxication is not enough; there must be a causal link between the intoxication and the injury.
Video-evidence sufficiency: Courts defer to the factfinder’s view unless the video is so clear that no reasonable person could see it differently. Ambiguities in angle, lighting, or coverage usually preclude dispositive rulings based on video alone.
“Thirteenth juror”: When a trial court grants a new trial on the ground that the verdict is against the weight of the evidence, it acts as a “thirteenth juror,” independently weighing evidence and credibility under Rule 59(J)(7).

Practice Notes and Takeaways

Be precise in post-trial motions: If seeking a new trial via “weight-of-the-evidence,” say so and expect the court to make Rule 59(J)(7) findings. If arguing “clearly erroneous” (insufficiency), know that appellate review will be de novo and no weighing occurs.
Preserve every theory at trial: As PSI Energy reiterates, appellate courts will not consider statutes or theories not presented to the jury or trial court.
Build causation on intoxication: Pair BAC evidence with testimony linking intoxication to the conduct causing injury (e.g., gait, balance, reaction time). Anticipate tolerance testimony and address it with robust expert analysis.
Curate the video record: Identify and explain blind spots, angles, and timing. If arguing single-inference sufficiency from video, ensure critical moments (feet/curbline, vehicle motion) are clearly captured.
Instructions matter: The Court presumes juries follow instructions. Where statutory negligence-per-se theories are advanced, ensure the jury is properly instructed on the elements (including endangerment and sudden movement).

Unresolved Questions and Future Directions

Boundaries of “clearly erroneous” vs. “weight” in mixed motions: Parties often combine arguments. Trial courts should parse which grounds are asserted and apply the correct standard; appellate courts should mirror that parsing on review.
The civil application of Love v. State: Although criminal in origin, Love’s video-deference principle now plainly informs civil sufficiency disputes. Expect further development as more civil cases hinge on dash-cams, bodycams, and surveillance footage.
“Suddenly leaving” under § 9-21-17-5: The Court avoids a bright-line definition; future cases may refine what qualifies as “sudden” movement from a place of safety, especially where vehicles are stopped at curbs and then depart.
Public intoxication endangerment: The opinion underscores that it is the intoxicated person’s conduct that must cause endangerment. The scope of “endangerment” and the proof required in civil negligence-per-se contexts will likely be further litigated.

Conclusion

IndyGo v. Bush does two important things. First, it establishes that denials of Rule 59(J) motions asserting a jury’s verdict is “clearly erroneous as contrary to or not supported by the evidence” are reviewed de novo—bringing doctrinal clarity to post-verdict appellate practice and aligning legal-insufficiency challenges with Rule 50(A). Second, it reinforces the limits of dispositive motions based on video and intoxication in contributory-negligence cases against governmental defendants: unless the record compels a single inference of plaintiff fault and proximate causation, these fact-intensive questions remain for the jury.

The case thus both elevates procedural precision in framing post-trial and appellate challenges and reaffirms a core structural principle of civil adjudication: juries are the exclusive judges of disputed facts and the weight of evidence. Where, as here, the record leaves room for more than one reasonable view—especially in the presence of partial video coverage and contested causation—a jury’s verdict stands.