 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
St. Margaret Mercy Healthcare Centers5/31/2005
erators. Therefore, if you find. . . that the defendant complied with the statute, you must return a verdict for the defendant. If you find that the defendant did not comply with the statute, then you must assess the relative fault between the parties and the non-party, Brian Stewart.
If you decide the defendant violated its statutory duty, which I have just described to you, then you must decide this case according to the Indiana law of comparative fault. The term fault refers to conduct that makes a person responsible, in some degree, for an injury . The type of fault at issue in this case is negligence.
You are required to apportion the fault on a percentage basis between the plaintiff, Barbara Poland, the defendant, St. Margaret Mercy Healthcare Centers, and the non-party, Brian Stewart, to determine whether the plaintiff is entitled to recover damages, and if so, the amount of such recovery.
(App. 13-14).
Over the objection of St. Margaret, the trial court verbatim gave Indiana's Pattern Jury Instruction on incurred risk, designated as Final Instruction No. 5, as follows:
The Plaintiff incurs the risk of injury if she actually knew of a specific danger, understood the risk involved, and voluntarily exposed herself to that danger. Incurred risk requires much more than the general awareness of a potential for mishap. Determining whether the plaintiff has incurred the risk of injury requires a subjective analysis focusing upon:
1. The Plaintiff's actual knowledge and appreciation of the specific risk, and
2. The Plaintiff's voluntary acceptance of that risk. If you find for the plaintiff, Poland, on the issue of liability, then you must determine the amount of money which will fairly compensate plaintiff for those elements of damages which are proved by the evidence to have resulted in the negligence of the defendant.
(App. 15-16).
Specifically, St. Margaret's challenge to Final Instruction No. 5 was as follows:
. . . Ind. Code [ยง] 34-31-6-3 talks about assumption of risk, and it says roller skaters are considered to have knowledge of and assume the risk of roller skating. It's our position that we don't have a burden of proof on incurred risk. That the statute sets forth that it is there already. And it goes on in the next section of the chapter to say that that assumption of risk is a complete defense if the operator complied with their duties.
If they didn't comply with their duties, then it goes to comparative fault. But there is nothing that says that assumption of risk for the skater goes away. The statute that sets forth the assumption of risk for the skater isn't based upon only in the event that the rink operator complied with all their statute. It just says you are just considered to have assumed the risk if you put wheels on your feet and you go out and skate essentially.
(Tr. 223-224).
Counsel for Poland retorted that if "it is shown that they [St. Margaret] didn't meet their statutory obligation, one of which, is . . . mak sure everybody is skating safely. . . the complete defense does not apply and comparative fault does apply. This incurred risk [instruction] is part of comparative fault." (Tr. 225).
"Our foremost objective in construing a statute is to determine and give effect to the intent of the legislature." Pedraza Ex Rel. Pedraza v. Grande, 712 N.E.2d 1007, 1010 (Ind. Ct. App. 1999). Words and phrases in statutes are to be given their plain and ordinary meaning, unless the legislators intend a different meaning to be applied. Stansberry v. Howard, 758 N.E.2d 540, 546 (Ind. Ct. App. 2001). Statutes mus
Page 1 2 3 4 5 6 7 8 9 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|