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St. Margaret Mercy Healthcare Centers5/31/2005
s no longer entitled to a complete defense to an action resulting from the assumed risks of the skater.
We disagree with St. Margaret's assertion that Final Instruction 5 would tend to wipe out or remove from consideration by the jury its affirmative defense of "assumption of risk" by the skater. Although, the evidence was often conflicting and breach of duty was vigorously contested, it was within the province of the jury to assess the credibility of witnesses in weighing disputed evidentiary matters, resolving issues of conflict, and, ultimately, to determine fault among the parties. See City of Carmel, 805 N.E.2d at 392; U-Haul International, Inc. v. Mike Madrid Co., 734 N.E.2d 1048, 1057 (Ind. Ct. App. 2000). We find that pursuant to Section 4(b)(1)(2), once the jury reached a verdict that St. Margaret had breached a statutorily imposed duty to use reasonable care, the jury was compelled to proceed to the provisions of Indiana Code § 34-51-2-6, for apportionment of fault among the parties.
For purposes of comparative fault, the term fault "includes any act or omission that is negligent . . . toward the person. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages." See I.C. § 34-6-2-45(b). As noted, St. Margaret asserted the affirmative defense of assumption of risks by the skater. The record reflects that during voir dire, its counsel asked potential jurors the following series of questions:
1. Do you recognize that there might be some risks involved in roller skating?
2. There may be some risks of collision with other skaters when at a roller skating rink for instance? Do you recognize those also as risks of roller skating?
3. If the judge instructs you that the law says that a roller skater assumes the risks of roller skating, do either one of you have any difficulty in applying that law?
Poland's Br. 18. Subsequently, in its opening statement to the jury, counsel for St. Margaret made the following comments:
This is a case about assumption of risk. . . she knew there were risks involved in roller skating. She knew that she could have fallen and injured herself while roller skating. She knew that there was a risk of collision with other skaters when you are at a skating rink with a bunch of people skating and that could cause her to fall and injure herself. She went anyway.
Poland's Br. 18.
In its closing argument to the jury, counsel for St. Margaret made the following comments:
Let's look at what the evidence is on incurred risk. The plaintiff testified that she watched for three to three and a half hours before this incident occurred and she looked and watched kids skating out of control. That she noticed that the skate guards weren't doing anything. She had all of this awareness. It was all there in her head. Her and her husband talked about it before she went out on the skating rink when this happened.
So with knowing all of that, she went out on the rink anyway and she skated out anyway. So that's voluntarily accepting that risk. Even if that doesn't convince you, that doesn't get you there, then you have her own testimony yesterday where she said that before this ever happened she commented to her husband, "Someone is going to get hurt tonight." What better evidence can you have that she had knowledge and appreciation of the risk that was there? She mentioned it specifically and then she went out on the rink and she skated anyway.
Poland's Br. 18-19. We are inclined to agree with Poland that the aforementione
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