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St. Margaret Mercy Healthcare Centers5/31/2005
FOR PUBLICATION
STATEMENT OF THE CASE
St. Margaret Mercy Healthcare Centers, Inc. (St. Margaret) appeals a jury verdict in which it was found partially at fault for a personal injury suffered by Barbara Poland (Poland) while she was roller skating at the Blade N Skate's rink , a facility owned and operated by St. Margaret.
We affirm.
ISSUES
1. Whether the trial court committed reversible error in giving Indiana's Pattern Jury Instruction No. 5.41 on incurred risk in a negligence action involving a fall at a roller skating rink.
1.Whether the jury verdict was flawed because there was no percentage of fault attributed to Poland.
FACTS
On February 14, 1998, Poland and her husband Mark went with their teenage son to St. Margaret. After arriving at the rink, she learned it was teen night. Many skaters appeared to be skating "out of control and nobody seemed to be supervising them." (Tr. 115). She and Mark also observed that one of the rink guards was playing "crack the whip" with skaters. Id. Mark described "crack the whip" to the jury as a game whereby skaters lined up behind one of the rink guards forming a human chain with each other, and while holding onto his shirt tail, he would "swoop around [the corner] and the kids go flying off his shirt tail." (Tr. 174). She noticed throughout the night that other rules of the rink were also being violated. An example of one such violation was "four or five girls skating in a line, and according to. . . [St. Margaret] rules that they announced at the beginning, they weren't supposed to do that." (Tr. 116). She and Mark stayed at the rink because they did not want to disappoint their son. However, in order to avoid the more aggressive skating by some of the skaters, she and Mark decided to only skate during the "couples' skating" times. Poland testified that the couples' skating differed from the "all skating" (the times when everyone was on the skating floor), as there were "less people on the floor," and the skating was at a slower pace. (Tr. 117). At the end of the couples' skating, there was no announcement or pause between the music switching from the couples' skating to the "all skating" time. She testified that as she attempted to leave the skating floor, she saw Brian Stewart skating very fast toward her while chasing another skater. Brian Stewart ran into Poland and knocked her to the floor. He admitted at trial that he knocked Poland to the floor; however, he denied that he was skating very fast or that he was chasing another skater. As a result of the fall, Poland suffered a shattered wrist, which required surgery.
On February 1, 1999, Poland filed an action against St. Margaret alleging that its negligence in failing to properly supervise skaters on the floor, was the proximate cause of her injuries. On February 16, 1999, St. Margaret filed an answer in denial and asserted the affirmative defenses of "comparative fault, fault of the non-party, Brian Stewart, and assumption of the risk" by Poland. (App. 29, 30).
On January 20-21, 2004, a jury trial was held. The jury returned a verdict in favor of Poland. The verdict form indicated that St. Margaret was found to be fifty percent at fault and Brian was found to be fifty percent at fault. No fault was assigned to Poland, from which St. Margaret appealed.
DECISION
1. Final Jury Instruction No. 5
St. Margaret argues that the trial court committed reversible error when it gave Indiana's Pattern Jury Instruction No. 5.41 on incurred risk, designated as Final Instruction No. 5. It contends that the instruction is subjective in nature and amo
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