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St. Margaret Mercy Healthcare Centers5/31/2005
particular theory of the case." Wilkinson v. Swafford, 811 N.E.2d 374, 380 (Ind. Ct. App. 2004). Even though the record on appeal does not contain all of the jury instructions, we note that St. Margaret does not argue that: 1) the definition of incurred risk is an incorrect statement of the law; 2) there was insufficient evidence to support the giving of the instruction; or that 3) the instruction was covered by any other instruction. See Lashbrooks, 793 N.E.2d at 1213. If we were to accept St. Margaret's position that the trial court erred in giving an instruction on incurred risk, the jury would have been without a definition of incurred risk or a basis of reference from which the jury would have been able to assess the conduct of the parties herein, upon apportioning fault. Thus, we are not persuaded by St. Margaret's argument that the giving of Final Instruction 5, eliminated from consideration by the jury the defense of "assumption of the risk" by skaters, as a complete defense in favor of the rink operators, pursuant to Section 3. To the contrary, we find that the instruction merely informed the jury of Indiana's definition of incurred risk to aid or assist the jury in arriving at its verdict regarding fault.
Upon the jury reaching its verdict that St. Margaret failed to exercise reasonable care in supervising skaters on the floor, which was the proximate cause of Poland's injury , the jury was compelled to proceed to I.C. § 34-51-2-6 for a comparative fault analysis regarding damages, if any. See I.C. § 34-31-6-4(b)(1)(2). Indiana's Comparative Fault Statute requires that fault be apportioned among the parties; thus, the jury had the responsibility of apportioning fault between Poland, St. Margaret, and Brian Stewart, the nonparty. I. C. § 34-51-2-6 et. seq. See Scott v. Prudential Property & Cas. Ins., 561 N.E.2d 812, 814 (Ind. Ct. App. 1990). We find the evidence sufficiently probative to support the reasonable finding by the jury that St. Margaret breached a duty to use reasonable care to properly supervise skaters on the floor. Therefore, we do not find that the trial court abused its discretion in giving to the jury Final Instruction No. 5 on incurred risk.
2. Zero Percent of Fault Apportioned to Poland
St. Margaret's second contention is that pursuant to Indiana's Limited Liability for Operators for Roller Skating Rinks Act, the verdict of the jury was flawed because the jury failed to apportion a percentage of fault to Poland in its verdict. St. Margaret asserts that the flaw in the verdict is directly attributed to the subjective analysis language contained in Final Instruction 5 on incurred risk; and, that pursuant to Section 3, assumption of risks by skater is presumed, and is an "element to be factored into the apportionment of fault among the parties and non-party" herein. St. Margaret's Br. 11. It further argues that the statutory provisions of Section 4, do not wipe out the legislatively imposed assumption of risk by skaters, and replace it with a subjective analysis for skaters. St. Margaret also contends that if Final Instruction 5 on incurred risk had not been given, then "the jury instructions would have been clear that [Poland] did assume some risk of injury from collisions." St. Margaret's Br. 12. Lastly, it argues that even if the jury had found St. Margaret had breached its duty as an operator, the jury should have been instructed that some risk had to be assessed to Poland, nevertheless.
St. Margaret first raised an objection at the trial court level, arguing that it would be reversible error to give Final Instruction 5 on incurred risk, because: 1) the instruction was laden with subjective analysis language, creating a "burden of proof" t
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