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St. Margaret Mercy Healthcare Centers5/31/2005
ral and as a practice, neither he nor other roller skating rink guards would be involved in horseplay with skaters. He also testified that guards would never leave a skater's misbehavior unchecked. He further asserted that if skaters were as rowdy as Poland claims, he believes he would have recalled the evening, and he and the other guards would have instituted St. Margaret's discipline policy. He explained that St. Margaret's disciplinary policy used a three-tiered approach. First, a rule breaking skater would be warned to stop the behavior by a guard blowing a whistle. Second, if the conduct continued, the skater would be made to sit out for a time and then allowed to return. And, third, if the conduct continued, the skater would be made to leave the facility.
Next, Brian Wiersbe (Wiersbe), a roller rink guard on duty on the night in question, testified that he had a vague memory of someone being injured that night. He testified that he had no memory of skaters being out of control and denied he participated in any horseplay with skaters.
Brian Stewart testified that while skating someone bumped him, causing him to lose his balance and he accidentally kicked Poland's skates from under her. He also testified that he was skating at a normal rate of speed, although his speed was faster than Poland's speed. Further, he testified that he was skating alone and denied chasing or playing tag with any other skater when he knocked Poland down.
In summary, the jury heard evidence regarding St. Margaret's floor guards playing "crack the whip" with skaters; skaters violating St. Margaret's announced safety rules; how Brian Stewart and other skaters were permitted to skate aggressively and very fast; and, the overall lack of supervision of skaters by St. Margaret.
The evidence was conflicting; however, it was within the province of the jury to judge the credibility of witnesses and to weigh the evidence. City of Carmel v. Leeper Elec. Services, Inc., 805 N.E.2d 389, 392 (Ind. Ct. App. 2004). Whether St. Margaret breached a duty of care is a question of fact to be resolved by the jury. This court cannot engage in the reweighing of the evidence. Id.
"The well-settled standard by which we review the challenge to jury instructions affords great deference to the trial court. The manner of instructing the jury lies within the sound discretion of the trial court, whose ruling will not be reversed unless an instruction error is such that, taken as a whole, the charge to the jury misstates the law or otherwise misleads the jury." Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind. Ct. App. 1999) (citing Town of Highland v. Zerkel, 659 N.E.2d 1113, 1122 (Ind. Ct. App. 1995)). Thus, the trial court has the responsibility to inform the jury of the applicable law in order for the jury to comprehend the case and come to a judgment that is correct, just and fair. See Centennial Mortgage, 745 N.E.2d at 278. As previously noted, Poland's claim for relief was founded in negligence and was based upon St. Margaret's breach of a duty owed to her as a roller skater. In its pleadings, and during its presentation of evidence and argument to the jury, St. Margaret denied that it was negligent in its supervision of skaters and asserted the affirmative defenses of: comparative fault, fault of the nonparty, and assumption of the risk by the plaintiff. "The incurred risk defense involves a mental state of venturousness on the part of the actor and demands a subjective analysis into the actor's actual knowledge and voluntary acceptance of the risk." Smock Materials Handling Co., Inc., 719 N.E.2d at 402. "Each party to an action is entitled to have the jury instructed upon [their]
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