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St. Margaret Mercy Healthcare Centers5/31/2005
unts to a misstatement of the law, as applied in a roller skating fall case. St. Margaret asserts that "assumption of risks" as found in Indiana Code ยง 34-31-6-3 [Assumption of Risks] (hereinafter "Section 3") is presumed, by roller skaters and, therefore the subjective analysis language of Final Instruction No. 5 is inappropriate because, in effect, it deletes or removes assumption of the risk from consideration by the jury as a complete defense.
It has long been held that the trial court has broad discretion in conducting a trial and the giving of instructions, and the decision to give an instruction will "only be reversed on a showing of abuse of that discretion." Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268, 278 (Ind. Ct. App. 2001) (citing Young v. State, 696 N.E.2d 386, 389 (Ind. 1998)). "The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Centennial Mortgage, 745 N.E.2d at 278 (citing Fox v. State, 497 N.E.2d 221, 225 (Ind. 1986)). "A trial court should give a tendered instruction if the instruction correctly states the law, the evidence supports the instruction, and the substance of the charge is not covered by other instructions." Lashbrooks v. Schultz, 793 N.E.2d 1211, 1213 (Ind. Ct. App. 2003), trans. dismissed, (quoting Sikora v. Fromm, 782 N.E.2d 355, 361 (Ind. Ct. App. 2002) (citations omitted), trans. denied (2003)).
After both sides had concluded presentation of evidence, the trial court and counsel met to discuss final jury instructions. The trial court ruled that it was going to give an instruction regarding Indiana's Limited Liability for Operators for Roller Skating Rinks ; St. Margaret had no objection. The instruction reads as follows:
. . . Duties of operators, Section 1, an operator shall do all of the following with respect to a roller skating rink: Use reasonable care in supervising roller skaters to comply with the requirements of section 2 of this chapter. 34-31-6-2 Duties of roller skaters, Sec. 2 (hereinafter "Section 2") A roller skater must do all of the following:
(1) Maintain reasonable control of the roller skater's speed and course at all times.
(2) Heed all posted signs and warnings.
(3) Maintain a proper view to avoid other roller skaters and objects.
(4) Accept the responsibility for the following:
(A) Knowing the range of the roller skater's ability to negotiate the intended direction of travel while on roller skates.
(B) Skating within the limits of the roller skater's ability.
(5) Refrain from acting in a manner that may cause or contribute to the injury of the roller skater or any other person.
If you find from a preponderance of the evidence that any party violated these statutes on the occasion in question and the violation was without excuse or justification, such conduct would constitute negligence to be assessed against the party.
(App. 12-13). Without objection from St. Margaret, the trial court instructed the jury regarding the duties of roller skaters and their assumption of risk while roller skating, as follows:
. . . roller skaters are considered to have knowledge of and assume the risks of roller skating, including the risk of injuries that result from collisions or incidental contact with other roller skaters who are properly on the skating surface. The plaintiff's assumption of risk is a complete defense in this case if the defendant complied with the statute that I have described to you relating to the duties of op
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