*1 judicial system's obtaining interest in state would not offend notions of fairness the most efficient resolution of controver- reasonableness. sies; and the shared interest sum, In two-prong we find that the test furthering several in fundamental States jurisdiction-Indiana Trial personal Brockman, policies. substantive social T79 44(A) process Rule and the federal due at N.E.2d 1257. analysis-has Consequent been satisfied. First, argu- LinkAmerica has made no ly, may an properly Indiana court exercise defending in ment lawsuit Indiana jurisdiction personal over LinkAmerica.
would be burdensome. further note We denying The trial court did not err in in "with advancements travel and LinkAmerica's for Lack Motion Dismiss technology, defending communication one- of Personal Jurisdiction. in another than self state where one re- sides is not as severe a burden as it once Affirmed. Irick,
was." Saler v. Second, (Ind.Ct.App.2003). as to Indiana's SHARPNACK, J., MAY, J., concur. lawsuit, adjudicating interest our supreme explained, court has "Indiana has
an in seeing pro- interest its residents ... Anthem,
tected from fraud." Indiana has a related interest in
seeing protected employ- its residents disputes.
ment-related contractual
Third, Coxes, Indiana as residents and suit, plaintiffs in this have an interest ST. MARGARET MERCY HEALTH- in obtaining convenient and effective relief CENTERS, INC., Appel- CARE Indiana, because while Cox was em- lant, ployed company, an out-of-state he employment arrangements made such Fourth, from his home state of Indiana. POLAND, Appellee. Barbara provide Indiana would efficient resolu- controversy tion of the not a this is No. 45A03-0402-CV-92. litigation already situation where has Seq, started on this case in another state. Appeals Court of of Indiana. Felts, eg., Am. Econ. Ins. Co. v. May (Ind.Ct.App.2001) (holding
that Indiana provide would not the most
efficient controversy resolution of the be- already
cause an Illinois court was ad-
dressing precise sought issue to be Indiana).
litigated Finally, LinkAmeri- proffered
ca has no fundamental social
policies at issue in this case. Lin- See id.
kAmerica present compel- has failed to
ling case that it would be unfair un- for an
reasonable Indiana court to exercise
jurisdiction Overall, over it. we find
exercising jurisdiction over LinkAmerica *3 Anderson, A.
Robert Julie A. Rosen- winkel, Galvin, Hammond, Krieg DeVault IN, Attorneys Appellant. for Babcock, Hess, Michael D. Sachs & P.C., Hammond, IN, Attorney Appel- lee.
OPINION
Judge. DARDEN, STATEMENT THE OF CASE Centers, Mercy Healthcare (St. Margaret) appeals Inc. verdict partially which it was found at fault for personal injury suffered Barbara Po (Poland) skating land while she was roller rink 1, facility the Blade N Skate's Although legal facility Skate, name of the facility Blade N we will refer to the by Margaret.2 skating" times. Poland testified operated "couples' owned skating differed from the couples' that the affirm. We (the everyone skating" "all times when was floor), skating as there were "less: ISSUES floor," skating and the people on the committed the trial court 1. Whether (Tr. At the end of pace. at a slower Pat- giving Indiana's error reversible there was no an- couples' skating, on in- No. 5.41 Jury tern Instruction the music pause between nouncement action involv- negligence in a curred risk switching couples' skating from the rink. a roller ing a fall at time. testified that as skating" "all She jury verdict flawed Whether floor, attempted she leave no percentage there was because skating very fast she saw Brian Stewart *4 to Poland. attributed chasing another skater. toward her while into Poland and Brian Stewart ran
FACTS to the floor. He admitted at knocked her 14, 1998, floor; and her February Poland trial that he knocked Poland to the 'On son however, with their husband Mark went he denied that he was teenage chasing that another very fast or he was at the arriving Margaret. to St. After fall, Poland skater. As 'a result of the rink, Many learned it was teen she night. wrist, required suffered a shattered which skating "out of to be appeared skaters > surgery. supervis- to be nobody seemed control and ' 115). (Tr. and Mark also She ing them." 1999, 1, February Poland filed an On Margaret alleging action guards rink was St. that one of the observed ' failing properly super- in negligence with skaters. its playing"crack whip" Id. floor, proxi- was the vise skaters on the whip" "érack the to 'the described Mark injuries. February mate cause of her On whereby up lined game as a 16, 1999, filed an answer Margaret St. a guards forming the rink one of behind asserted the affirmative defens- denial and each and while other, human chain with fault, fault of the non- "comparative of es tail, "swoop holding his shirt he would onto Stewart, assumption party, Brian go the kids [sic] around [the corner] 30). 29, by (App. the risk" Poland. (Tr. 174). She off his shirt tail." flying 2004, jury trial was January On 20-21, night that other throughout noticed in favor jury returned verdict held. being rink also violated. rules of the were The verdict form indicated of Poland. The violation was "four example An of one such fifty percent found to be Margaret St. line, girls skating in a and accord- or five fifty Brian was found to be at fault and they rules that Margaret] to ... ing [St. assigned fault was percent at fault. No they beginning, announced at the weren't Margaret appealed. from which St. Poland, (Tr. to do that." She supposed stayed they the rink because did Mark DECISION their son. Howev- disappoint not want to No. 5 Jury Instruction Final er, aggressive the more order to avoid skaters, that the trial skating by Margaret argues some of the she only during skate Markdecided error when court committed reversible prepared presentations before the well Margaret, is the owner. as St. court. argument and we want oral beard An spirited exchange to thank counsel for their 400
gave
Jury
purpose
Indiana's Pattern
of an
Instruction
instruction is to inform the
of the
applicable
risk, designated
law
the facts
No. 5.41 on incurred
as
Final Instruction No. 5.
It contends that
misleading
without
and to enable
subjective
the instruction is
in nature and
comprehend
it to
clearly
the case
and ar-
fair,
just,
law,
rive at a
and correct verdict."
amounts to misstatement
applied
in a roller
fall case. St.
Mortgage,
Centennial
It has been held that After presen trial court has discretion in both sides had concluded broad conduct *5 ing instructions, a trial and the giving of evidence, tation of the trial court and coun sel met to discuss final give and the decision to an instruction instructions. will The trial "only be reversed on a court ruled that it was showing going of abuse of to give an regarding that discretion." Centennial instruction Mortgage, Indiana's Blumenfeld, Inc. Liability Operators v. 745 N.B.2d 278 Limited for for Roller '4; Skating Rinks State, had no ob (Ind.Ct.App.2001) (citing Young (Ind.1998)). jection. "The The instruction reads as follows: 34-31-6-3(a) (1) § I.C. Roller skaters con- the: are Post (A) skaters; duties of roller and sidered to: (B) duties, obligations, and of; liabilities (1) knowledge have and operator; prescribed chap- in this assume; (2) skating. the risks of roller (3) conspicuous ter in at least three (b) loca- purposes chapter, For of this risks of skating tions in the roller rink. skating following: roller include the (2) stability legibility Maintain the and (1) Injuries that result from collisions signs, symbols, posted all and notices re- incidental contact with other roller ska- quired by chapter. this ters or Incidental contact with other roll- (3) skating open When the roller rink is for er skaters or other individuals who are session, (1) have at least one floor su- properly skating on the surface. pervisor every for one hundred (2) Injuries that result from falls caused (175) seventy-five roller skaters who: by loss of balance. (A) appropriate training has received (3) Injuries objects that involve or artifi- duties; carry supervisor's out the floor cial structures that: (A) properly path are within the intended (B) carrying uses reasonable care in out skater; of travel of the roller supervisor's the floor duties. (B) are not otherwise attributable to an (4) skating proper Maintain the surface in operator's operator's breach of the duties reasonably safe condition. under Section chap- of this [34-31-6-1] (5) inspect skating Clean and surface ter. skating before each session. (hereinafter 1"): (6) TI.C. 34-31-6-1 "Section good Maintain in and safe condition the operator-An operator ''Duties of shall do all kickboards, risers, floors, railings, areas following skaters, respect of the open with to a roller skat- to roller and walls sur- ing rounding rink: surface. ... roller skaters are considered to have an operators, Section ... Duties knowledge of and assume the risks of following do all of the shall operator including inju- the risk of skating, skating rink: to a roller respect with from ries that result collisions or inci- supervising care in reasonable Use dental contact with other roller skaters with the re- comply roller skaters properly who are on the surface. chapter. 2 of this of section quirements plaintiff's assumption of The risk is skaters, Duties of roller See. 34-31-6-2 in this if complete defense case the de- 2") (hereinafter A roller ska- "Section complied fendant with the statute that I following: all of the ter must do you relating have described to (1) control of the Maintain reasonable Therefore, operators. you duties of at all speed and course roller skater's ... complied find the defendant times. statute, you with the must return a ver- (2) warnings. posted signs Heed all you dict for the defendant. If find that (3) oth- proper Maintain a view avoid comply not defendant did objects. er roller skaters statute, you must then assess the rela- fol- responsibility for the Accept the the parties tive between and the lowing: non-party, Brian Stewart.
(A) of the roller Knowing range you If decide the defendant violated the in- ability negotiate
skater's statutory duty, just which I its have of travel while on tended direction you you, described to then must decide roller skates. according this case to the Indiana law of comparative fault. The term fault re- (B) Skating within the limits person to conduct that makes a fers ability. roller skater's inju- responsible, degree, some *6 (5) acting in a manner Refrain from ry. type The of fault at issue in this may injury or contribute to the cause negligence. case is any person. other the roller skater required apportion You are the you preponderance If find from percentage basis between the fault on any party violated these evidence defendant, Poland, the plaintiff, Barbara question and on the occasion statutes Centers, Margaret Mercy Healthcare justi- exeuse or the violation was without Stewart, non-party, the Brian fication, such conduct would constitute is enti- plaintiff determine whether the negligence to be assessed so, if damages, to recover tled party. recovery. amount of such objection from St. (App.12-13). Without (App.183-14). trial court instructed the Margaret, objection Margaret, of St. of roller skaters Over jury regarding the duties Indiana's Pattern gave trial court verbatim assumption of risk while roller and their risk, desig incurred Jury Instruction on skating, follows: (9) (7) supervising roll- good Use reasonable care in skates in mechani- Maintain rental require- comply er skaters to cal condition. [Ind.Code 34-31-6-2] of Section 2 ments applicable state and Comply with all chapter. of this codes, codes, building safety local fire safety applicable to a and other codes Jury Instruction No. 5. See Indiana's Pattern roller rink. 5.41. nated as Final Instruction operator complied No. as fol with all their statute. lows: just says you just It are considered to have you put assumed the risk if injury
The Plaintiff incurs the risk of wheels actually your you go she on feet and specific danger, knew of a out and skate essentially. involved, understood the risk and volun- tarily exposed herself to danger. (Tr. 228-224). Incurred requires risk much more than general potential awareness of a for Counsel for Poland retorted that if "it is mishap. Determining whether: they shown that Margaret] [St. didn't meet plaintiff has incurred the injury risk of statutory which, their obligation, one of is requires analysis focusing . mak{ing] sure everybody is upon: safely ... defense does not apply The Plaintiff's actual knowledge comparative fault does apply. risk,
and appreciation of the specific This incurred risk part [instruction] (Tr. 225). comparative fault." 2. The Plaintiffs voluntary accep- objective
tance of that risk. "Our foremost in con struing a statute is to give determine and you Poland, If plaintiff, find for the effect to the intent of legislature." liability, you the issue of then must de- Grande, Pedraza Ex Rel. Pedraza v. termine the amount money which will (Ind.Ct.App.1999). fairly compensate plaintiff for those ele- phrases Words and in statutes are to be ments of damages proved which are given plain their ordinary meaning, the evidence to have resulted legislators unless the intend different negligence of the defendant. meaning applied. to be Stansberry v. 15-16). (App. Howard, 546 (Ind.Ct.App. Specifically, Margaret's challenge to Statutes must be pari read in Final Instruction No. 5 was as follows: materia and in harmony with related stat ... Ind.Code [§ ] 34-81-6-8 talks about utes. Id. If language and the words risk, assumption of says and it and phrases in the statute are clear and skaters are considered to have knowl- unambiguous, then we need not interpret edge of and assume the risk of roller *7 the statute but simply apply it as the skating. position It's our that we don't legislators Carlin, Shepherd intended. v. have a burden proof on incurred risk. 1200, 813 N.E.2d 1203 (Ind.Ct.App.2004). That the statute sets forth that it is already. there goes And it on in the Due to the nature of roller skating, the next section of the chapter say that Indiana Legislature imposed specific that assumption of complete risk is a duties responsibilities and upon roller operator defense if the complied with rink skating operators pursuant to Section their duties. 1. Correspondingly, as outlined in Section
If they duties, 2, didn't comply with their Legislature Indiana also imposed goes then it to comparative fault. But certain upon duties roller skaters. Fur nothing says there is that thermore, that assump- the Indiana Legislature pro has tion of risk for the goes away. that, skater vided if a skating rink operator The statute that sets forth the assump- is in compliance with specified duties tion of risk for the skater isn't responsibilities based 1, in outlined Section upon only in the event that the rink pursuant then § to Indiana Code 34-31-6-4.
403 duty highly Breach contested complete de of risk as [Assumption 6 (hereinafter argued Marga- this case. Poland that St. fense; "Section exception.] duty ret breached a owed to her as a complete 4"), is entitled to operator it failed to when use liability from roller against defense skaters reasonable skater in supervising care skaters on the floor. to collisions and experience falls due who that it agreed night Both sides was teen skaters while contact with other incidental pace a mixture of slow and fast skat- However, if the skating rink floor. on the ing. throughout Poland testified that skating that a roller establishes evidence night skating she observed Brian Stewart non-compliant with the operator is rink and, very aggressively; fast and that some responsibili statutorily imposed duties appeared of the other skaters to be out of 1, as found Section operator, ties of an supervision. with no She and longer is entitled operator no control they a rink guard Mark testified saw 4(a) defense under Section complete whip crack the playing with skaters. She injury an who sustains against a skater four to testified she witnessed five but, non-compliance; pursu related to its holding skating, hands which while 4(b)(1)(2), the shifts ant matter Section Margaret's a clear violation of St. analysis under I.C. comparative safety announced rule. Poland skated § 34-51-2-6.7 during couples' skating times only complaint alleged Poland her pace peo- when the was slower and fewer failure to Margaret's negligent ple were on the floor. She testified that that St. the floor was supervise skaters pause there was no between the end of the injury. The tort cause of her proximate skating beginning slow and the of the all negligence has three elements: claim of skating. Poland testified she was "(1) to the owed the defendant leaving prevented from floor 83) 2) duty; a breach of that plaintiff; jammed through one exit because was resulting from the injury plaintiff rushing who were onto the with skaters Wright, v. participate defendant's breach." Rhodes floor to in the all skat- (Ind.2004) (citing attempted E's ing. through 385 As she to leave Stoffer, tate Heck v. exit, the next she saw Brian Stewart chas- ing boy, another both of whom were skat- Irvin, (Ind.20083); Douglass (Ind.1990)). aggressively toward her. very fast ing 34-51-2-6.(a) 34-31-6-4.(a) § In an action based on Except provided § 7. 1C. IC. against: brought (b) notwithstanding fault that is LC. 34- subsection fault, concerning comparative the as- 51-2-6 defendant, (1) one chap- sumption this of risk under Section of (2) may two deferidants who be or more an action ter is a defense to single party; the claimant is treated as a injuries and operator a roller skater for recovery if the claimant's barred from property damage resulting the assumed from *8 contributory greater fault is than the fault risks. persons proximately of all whose fault (b) following operator applies if an has The damages contributed to the claimant's (1) operator's any duties or violated one of the (b) brought on that is an action based fault In responsibilities under section 1 34-31-6- [L.C. defendants, (2) against two or more the claim- chapter: of this 1] recovery if the claimant's ant is barred from (1) against The defense an action greater contributory is than the fault of fault (a) operator under subsection an proximately persons contribut- all whose apply., does not ap- provisions 34-5 1—2—6 The of I.C. damages. ed to the claimant's ply. chasing playing tag any She was unable to make the exit before with other ska- ter when he knocked Poland down. skating by floor Bri- being knocked breaking an her wrist. Stewart summary, jury In heard evidence regarding Margaret's guards St. floor testimony countered with St. skaters; "crack playing whip" from its and Brian employees Stewart. violating Margaret's St. announced (Eyermann), Eyermann Charles a former rules; safety how Brian other Stewart and supervisor, though testified that he floor permitted aggres- skaters were to skate night injury, worked the of Poland's he fast; and, sively very the overall lack independent had no recollection of the supervision by Margaret. of of skaters St. However, night question. in he testified conflicting; The evidence was in general practice, and as neither however, it was within province of the guards he nor other rink judge credibility of witnesses in horseplay would be involved with ska- weigh and to City the evidence. Carmel that guards ters. He also testified would Services, Inc., Leeper Elec. 805 N.E.2d never leave a skater's misbehavior un- (Ind.Ct.App.2004). Whether St. checked. He further asserted that if ska- duty breached a of care ais claims, rowdy ters were as as Poland he question by jury. of fact to be resolved believes he would have recalled the eve- engage This court cannot reweigh ning, guards and he and the other would ing of the evidence. Id. Margaret's have St. discipline instituted policy. explained He Margaret's "The well-settled standard disciplinary policy used a ap- three-tiered which we review challenge First, proach. breaking a rule skater great instructions affords deference to the stop would be warned to the behavior trial instructing court. The manner of Second, guard blowing a whistle. if the jury lies within the sound discretion continued, conduct the skater would be court, trial ruling whose not be re will made to sit out for a time and then allowed versed unless instruction error is such And, third, to return. if the conduct con- that, whole, taken as a the charge to the tinued, the skater would be made to leave jury misstates the law or otherwise mis facility. jury." leads the Smock Hon- Materials Co., Kerr, dling Inc. v. Next, (Wiersbe), Brian Wiersbe a roller (Ind.Ct.App.1999) (citing High Town of rink guard on the night ques- (Ind. Zerkel, land v. tion, vague memory testified that he had a Thus, Ct.App.1995)). the trial court has being injured of someone night. He responsibility to inform memory testified that he no had of skaters applicable law order for the being out of control partici- and denied he comprehend the case and a judg come to pated any horseplay with skaters. correct, just ment that fair. See Brian Stewart testified that while skat- Mortgage, Centenmial TAL him, ing bumped someone him causing noted, previously As Poland's claim for lose his and he accidentally balance kicked relief was founded in negligence and was Poland's from skates under her. He also upon Margaret's based breach of a testified that he was at a normal duty owed to her as a roller skater. In its speed, although rate of speed his was fast- pleadings, during presentation its *9 Further, speed. er than Poland's he testi- argument evidence and jury, to the St. fied that he was Margaret alone and denied denied negligent that it was comparative § for a the to 1.C. 34-51-2-6 of skaters asserted supervision its fault, comparative regarding damages, any. See analysis of: affirmative defenses 34-31-6-4(b)(1)(@). assumption of nonparty, § fault of the 1.C. Indiana's Com- incurred by plaintiff. risk the "The parative requires the Fault Statute that fault thus, apportioned among parties; the a mental of be risk defense involves state actor and part on the venturousness jury responsibility appor- the had the of the ac- subjective analysis into a demands Poland, tioning Marga- fault between St. voluntary ac- knowledge actual tor's Stewart, ret, nonparty. and Brian the I.C. Materials the risk." Smock ceptance of seq. et. See v. Pruden- 34-51-2-6 Scott Co., Inc., at 402. 719 NE2d Handling Ins., Property tial & Cas. an action is entitled party "Each to have to (Ind.Ct.App.1990). find the evi- We upon particular jury [their] the instructed sufficiently probative support to dence the. theory of the case." Swaf- finding by jury the that reasonable St. Wilkinson 374, 380 ford, 811 N.E.2d (Ind.Ct.App. to reason- Margaret breached use appeal though the on Even record to properly supervise able care jury all of the instrue- does not contain Therefore, not we do find that floor. tions, does not Margaret we note that St. giv- the trial court abused its discretion in 1) the definition of incurred argue that: ing jury Final Instruction No. 5 on law; an incorrect statement of the risk is incurred risk. 2) sup- evidence to there was insufficient Apportioned 2. Zero Percent Fault to of instruction; or that giving of the port the Poland 3) by any oth- instruction was covered second contention Margaret's St. Lashbrooks, er instruction. See Lia pursuant is that to Indiana's Limited accept If to St. N.E.2d at 1218. we were Skating for bility Operators Roller trial court position that Margaret's Act, jury Rinks the verdict of the incurred giving an instruction on erred jury apportion flawed because the failed risk, jury have been without would fault to in its ver percentage Poland incurred risk or a basis of definition of that flaw in jury would have dict. St. asserts from which the reference directly the conduct of the attributed to the been able to assess the verdict is herein, apportioning fault. parties upon subjective analysis language contained Thus, by Marga- persuaded we are not St. risk; and, Final Instruction 5 on incurred Final giving that argument ret's assumption of pursuant that to Section 5, eliminated from consider- Instruction by presumed, and is an risks skater "assump- the defense of apportion by factored into the ation "element be skaters, risk" as a tion of the and non- among parties of fault ment operators, in favor of the rink defense Br. 11. It Margaret's herein. St. party" contrary, 3. To the we pursuant Section statutory provi argues further that merely informed find that the instruction wipe do not out the sions of Section definition incurred of Indiana's assumption of risk legislatively imposed arriving risk to aid or assist skaters, replace regarding fault. its verdict Margaret also analysis for skaters. St. 5 on if Final Instruction jury reaching its Upon verdiet contends then "the given, had not been incurred risk to exercise failed reasonable have clear floor, jury instructions would been supervising skaters on the care in cause of Poland's risk of proximate which was the did assume some [Poland] Br. Margaret's injury from compelled proceed collisions." injury, the *10 406 Lastly, argues
12. it unambiguous even clear and on its face. Barker, Margaret 224, had found St. had breached its Sightes v. 684 NE2d 227 operator, as an should have (Ind.Ct.App.1997), trans. denied. Like- been instructed that had to some risk be wise, when a statute is clear and unambig- Poland, uous, to any there is no to apply assessed nevertheless. need rules of requiring construction other than words objection an Margaret St. first raised at phrases plain, to be taken their level, trial court arguing that it would ordinary and usual sense. Benham v. give be reversible error to Final Instruc- State, (Ind.1994). 133, 637 N.E.2d 186 1) risk, tion on5 incurred because: However, statutes are to be examined and instruction was laden anal- with Invs., whole, interpreted as a MDM 740 ysis language, creating proof" "burden of Further, N.E.2d at 984. no we owe defer- have; 2) they did not the instruction would ence to the trial interpretation court's of a contradict Section 8 and eviscerate St. statute, Margaret's pure question as such is a affirmative defense of "as- law 3) skaters;" sumption by by of risk" the in- reviewed de novo this court. Ka- Barker, (Ind.Ct. jury] 930, struction "invited to [the attribute ser v. percent zero of the fault to ... plaintiff App.2004), trans. denied. statute;" in clear contradiction of the Upon reviewing the relevant statutes 4) giving the instruction was not "an accu- herein, we find that the Legisla- Indiana rate statement of the respect law with clearly spoken. ture has Pursuant to Sec- 5, this Margaret's case." St. Br. 1, legislature tion imposed specific Unfortunately, there are no responsibilities upon duties and Indiana cases to interpreting be found Further, rink operators. pursuant and, therefore, roller skating statutes we 1(8)(1)(B)(9), operator Section is re- However, writing are on a blank slate. quired provide supervisors floor who are statute, construing when attempt we responsible to "use reasonable care in car- give ascertain and legislative effect to the rying duties," supervisor's out the floor intent. Becker v. Four Points Investment including the "use reasonable care in Corp., 708 N.E.2d 31 (Ind.Ct.App. supervising roller comply skaters" to so, And in doing we consider the Margaret Section 2. St. advances that if goals of the statute and the reasons and operator should find that the has policy underlying its enactment. MDM complied statutorily imposed with the Carmel, City Invs. v. duties, assumption by of the risks (Ind.Ct.App.2000). "Where statute complete is a operator defense favor of previously construed, has not been the in by injuries an action a skater for terpretation express controlled resulting from the assumed risks. On the Becker, language of the statute." hand, other concedes that Also, N.E.2d when interpreting a pursuant 4(b)(1)(2), to Section the statute statute, important it is recognize that we provides that if the should find that
what say, the statute does not as well as operator comply did not with the statu- say, what does and are careful not to torily imposed duties and responsibilities, opinion substitute our for that of Leg operator longer is no entitled to a Duckworth, islature. Blackmon defense, parties but that the pro- 352 (Ind.Ct.App.1996). comparative ceed to fault. long however, We have held that argues, this compara- even may interpret court not a statute that is analysis, assumption tive fault of risks *11 consent, risk, incurred express to be forceable an element presumed the skater injury failure to avoid an of fault and unreasonable percentage as a determined § the 34-6- skater, mitigate damages." factored into See I.C. the among parties the of fault 2-45(b). noted, apportionment Margaret asserted As St. In conclu- case. 8 assumption in this defense of of non-party, the affirmative statuto- that the sion, Margaret asserts St. the skater. The record reflects risks 4(b), does not dire, found Section ry provision counsel asked during that voir its as- established "legislatively the negate jurors following series of potential it with replace of risk sumption questions: skater, but, analysis" for the might that there you recognize 1. Do that merely provides language
that skating? involved in roller be some risks entitled to a longer no operator is collision may 2. be some risks of There from the resulting to an action defense at a roller other skaters when with [] of the skater. risks assumed you rink for instance? Do rec- asser- Margaret's disagree with St. We as risks of roller skat- ognize those also 5 would tend Final Instruction tion that ing? from consideration or remove
wipe out you that the judge If the instructs 3. defense of "as- affirmative its assumes the says law roller skater Al- by the skater. sumption of risk" skating, do either one of risks of roller conflicting often the evidence was though, any difficulty applying you have contest- vigorously of was and breach law? jury to ed, province within the was in its Subsequently, Br. 18. Poland's credibility of witnesses assess for jury, to the counsel opening statement matters, evidentiary re- weighing disputed following com- made the Margaret conflict, and, ultimately, issues of solving ments: See among parties. fault to determine assumption of risk This is a case about 392; Carmel, at U- City of involved there were risks . she knew International, Mike Madrid Inc. v. Haul knew that she skating. She in roller Co., (Ind.Ct.App. injured herself could have fallen pursuant find that Section We knew that skating. She while roller 4(b)(1)(2), a verdict reached onee with other a risk of collision there was a statuto- Margaret had breached that St. skating rink you are at a when care, duty to use reasonable rily imposed skating and people of with a bunch to the compelled proceed injure herself. to fall and could cause her 34-51-2-6, Code of Indiana provisions anyway. went She among par- fault of apportionment ties. Br. 18. Poland's jury, counsel closing argument In its fault, purposes comparative For following com- made the for St. any act or omis fault "includes the term ments: per negligent ... toward that is sion is on the evidence Let's look what unreasonable also includes
son. The term
testified
plaintiff
The
incurred risk.
an en-
constituting
not
assumption of risk
apparent
that the
would be
because it
During
argument,
assert-
oral
assumption
risks as a defense
jury apportioned even nomi-
ed that had the
considered
percentage
among
parties.
to Poland in their
of fault
apportioning
nal
verdict,
appealed that issue
it would not have
voluntary
risk
specific
for three to three and
involved
that she watched
High
of that risk." Town
acceptance
this incident oc-
a half hours before
kids
land,
curred and she looked and watched
It
there
659 N.E.2d at
*12
province
jury
That
noticed
the
of the
to
skating out of control.
she
fore within
fault,
doing any-
any,
of
guards
percentage
that the
weren't
determine what
skate
among
It
the
apportioned
parties.
had all of this awareness.
should
thing. She
be
authority
in her head. Her and her
directs us to no
was all there
plaintiff
appor
went
a
must be
husband talked about
before she
which states
hap-
percentage
rink
of fault under
out on the
when this
tioned some
fault;
found
comparative
neither have we
pened.
Further,
authority.
do not
any such
we
that,
knowing all of
she went out
So with
jury
confused
find that the
was somehow
anyway
rink
and she skated out
the
by
language
or misled
of the instruc
anyway.
voluntarily accepting
that's
So
believing
apportion
tion
it was not to
into
if that
convince
that risk. Even
doesn't
any
fault to Poland. The
heard con
there,
get you
you
then
you, that doesn't
flicting
regarding
evidence
the behavior
testimony yesterday
have her own
parties
nonparty,
of
and
and conduct
that
ever
where she said
before this
fault as it believed the
apportioned
and
hus-
happened she commented to her
jury's
that
evidence dictated. We hold
band,
hurt
going
get
is
to
"Someone
apportioning
percentage
zero
of
verdict
tonight."
you
evidence can
What better
by
supported
fault to Poland is
the evi
knowledge
appre-
have that she had
dence and
law.
that
there?
ciation of the risk
She
specifically
mentioned it
and then she
affirm.
We
went out on the rink and she skated
anyway.
FRIEDLANDER,
J.,
concurs.
Br.
are inclined to
Poland's
18-19. We
J.,
BAKER,
concurs in result with
agree with Poland that the aforementioned
separate opinion.
questions
by
and comments made
counsel
BAKER, Judge, concurring in result.
give
would tend to
notice to a reasonable
relying upon
agree
that St.
I
with the result reached
"assumption
majority,
respectfully disagree
the defense of
of risk"
but I
with
skater,
capstone
analysis
as the
of its defense in its
and conclusion as to the
In particular,
this case.
instruction on incurred risk.
disagree
majority's
I
with the
conclusion
Generally,
incurred
risk is a
properly gave
trial court
Final
question
jury.
of fact for the
Town of
Instruction No. which contained
ele-
Highland,
Apportion
er skater found to have incurred specific risk be Moreover, legislature did
that risk. provision on this place qualification
not injuries assumption of risk
limiting only those
that occurred as a result otherwise attributable
collisions not believe, I breach of its duties.
operator's
therefore, statute's light *13 trial court erred language,
clear No. 5 because it
giving Final Instruction subjectivity
included an element
was, accordingly, a misstatement of the
law, I conclude that the trial court
Although instruction, I be- giving
erred in this light it to be harmless error
lieve indicating that Mrs. evidence
considerable Marga- fault of injury
Poland's was the Thus, I dis- and Brian Stewart. while
ret majority's analysis, I con-
agree with the
cur in the result. Joy LEISURE,
Stephanie
Appellant-Petitioner, WHEELER, Thomas
William
Appellee-Respondent.
No. 49A02-0411-CV-918. Appeals of Indiana.
Court 1, 2005.
June