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St. Margaret Mercy Healthcare Centers5/31/2005
d questions and comments made by counsel would tend to give notice to a reasonable jury that St. Margaret was relying upon the defense of "assumption of risk" by the skater, as the capstone of its defense in this case.
Generally, incurred risk is a question of fact for the jury. Town of Highland, 659 N.E.2d at 1121. Apportionment of fault is also a question of fact for the jury to determine. City of Crawfordsville v. Price, 778 N.E.2d 459, 463 (Ind. Ct. App. 2002) (citing McKinney v. Pub. Serv. Co. of Ind., Inc., 597 N.E.2d 1001, 1008 (Ind. Ct. App. 1992)), trans. denied. "In determining whether a plaintiff incurred the risk of his or her injuries, a subjective analysis is required focusing on the plaintiff's actual knowledge and appreciation of the specific risk involved and voluntary acceptance of that risk." Town of Highland, 659 N.E.2d at 1121. It was therefore within the province of the jury to determine what percentage of fault, if any, should be apportioned among the parties. St. Margaret directs us to no authority which states a plaintiff must be apportioned some percentage of fault under comparative fault; neither have we found any such authority. Further, we do not find that the jury was somehow confused or misled by the language of the instruction into believing it was not to apportion any fault to Poland. The jury heard conflicting evidence regarding the behavior and conduct of the parties and nonparty, and apportioned fault as it believed the evidence dictated. We hold that the jury's verdict apportioning zero percentage of fault to Poland is supported by the evidence and the law.
We affirm.
FRIEDLANDER, J., concurs.
BAKER, J., concurs in result with separate opinion.
Baker, Judge, concurring in result.
I agree with the result reached by the majority, but I respectfully disagree with its analysis and conclusion as to the jury instruction on incurred risk. In particular, I disagree with the majority's conclusion that the trial court properly gave Final Instruction No. 5, which contained an element of subjectivity with respect to the issue of incurred risk.
Indiana Code section 34-31-6-3 establishes an objective standard for a roller skater's assumption of risk: "(a) Roller skaters are considered to: (1) have knowledge of; and (2) assume; the risks of roller skating." This statutory language clearly and unambiguously indicates that assumption of the risk is presumed, and nothing in the statute indicates that a roller skater must have "actual knowledge" of a specific risk to be found to have incurred that risk. Moreover, the legislature did not place a qualification on this provision limiting the assumption of risk to injuries that occurred as a result of only those collisions not otherwise attributable to the operator's breach of its duties. I believe, therefore, that in light of the statute's clear language, the trial court erred in giving Final Instruction No. 5 because it included an element of subjectivity and was, accordingly, a misstatement of the law.
Although I conclude that the trial court erred in giving this jury instruction, I believe it to be harmless error in light of the considerable evidence indicating that Mrs. Poland's injury was the fault of St. Margaret and Brian Stewart. Thus, while I disagree with the majority's analysis, I concur in the result.
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