dissenting.
The majority opinion omits a fair amount of undisputed evidence about what Carol Wiegand knew when she decided on December 2, 1987, to engage in judo with Tim Jordan. Much of this evidence was Carol Wiegand's own testimony. I recite it here to give the reader a fuller picture of Wie-gand's decision.
I begin where Justice Dickson begins. Carol Wiegand was not a mathematics student enrolled in a compulsory physical education class. She was a competitive athlete of considerable experience. She played varsity volleyball, varsity softball, and reserve basketball in high school. Moving on to Vincennes University, Wiegand earned an athletic scholarship for her volleyball prowess. She played varsity volleyball for Vincennes and took weight training there, as she had in high school. In short, Wie-gand was an experienced athlete, both by academic training and regular competitive participation.
This history suggests another dimension omitted from the majority opinion, which does recite that Jordan was a 260-pound member of the ISU football team. The reader should not be left to suspect that Wiegand was a violet among mammoths. Her years of weight-lifting training led her to describe her ability as "fairly high." Record at 441-42. Wiegand told the jury about her participation in a body-building competition, record at 440, and said that at the time she was taking judo she could lift 150 pounds of free weights. Record at 442.
There is moreover little ambiguity about Wiegand's knowledge that energetic athletic activity could lead to injury. The Court's opinion declares that whether "under these circumstances a knee ligament injury was within plaintiff's actual knowledge, appreciation, and voluntary acceptance is a factual matter," op. at 919, but it does not reveal that Wiegand had already experienced an athletic injury before she ever made the decision to enroll in judo. During Wie-gand's second year at Vincennes University, about twelve months or so before being injured at judo, Wiegand fell while playing volleyball and injured her right knee. This injury was sufficiently serious that it required arthroscopic surgery. Record at 888, 442.
Case law cited with apparent acceptance in the Court's opinion, Forrest, 570 N.E.2d 934, and Mauller, 552 N.E.2d 500, rejects the notion that incurred risk requires that the venturer "had prescience that the particular accident and injury which in fact occurred was going to occur." Forrest, 570 N.E.2d at 986. The tightness with which such a rule need be applied is of little moment in this case. The Court expresses open-mindedness about whether Wiegand appreciated the possibility of incurring a knee injury while engaged in judo. I say that a university junior, a fitness major who experienced a knee injury playing a ballgame in which people sometimes fall while jumping, should be thought of as a person who appreciates the possibility of knee injuries (and a good deal else) in playing a game in which the object is to pick up your partner's body and throw it on the floor.
But did Wiegand appreciate the possibility of being injured while practicing judo with Tim Jordan? The Court's opinion mentions that Wiegand had endured several "very aggressive" experiences with Jordan and that these caused her to fear practicing with him. It omits, however, Wie-gand's testimony at trial acknowledging that these experiences caused her to fear the possibility of being injured while practicing with Jordan:
*921Had you had the wind knocked out of you a couple of times in class ... $
Yes, sir. p
... before the day that we're talking about? $
Yes, sir. >
$ And so, as of the beginning of December, 1987, you knew that an injury like getting the wind knocked out of you or perhaps another kind of injury was a possibility?
A. He did not explain that to us, sir, at the beginning of class, no.
Q. Did you know it?
A. Not until I was ... not until I had the wind knocked out of me.
Q. But after you had the wind knocked out of you, you knew it, is that right?
A. Yes, sir.
Record at 447-48.
Finally, the Court concludes that whether Wiegand voluntarily accepted the risk was an open question, citing the fact that she was enrolled in the judo course to earn graduation credit and her instructor's statement that being paired with Jordan was something to "learn to live with." This should not be taken as an indication that judo was required for graduation. The record shows that judo was an elective among others available to fitness majors. Wiegand testified at trial that taking judo was a personal choice: "I could take judo, if I wanted to take it and I did want to take it." Record at 892. As for whether the instructor assigned Wiegand and Jordan as partners on December 2, 1987, the record is equally direct. Wiegand testified at trial that after any initial pairing by the instructor at the beginning of class, "He would just say, 'switch partners' And then somebody would just grab somebody." Record at 396. Wiegand testified that on December 2nd, she had practiced with about four partners before she joined up with Jordan. We may not know whether this pairing was Wiegand's choice or Jordan's choice, or both. I think we can say that the record contains nothing demonstrating that it was a choice made by the instructor or the university trustees.
It has long been the rule that one may obtain judgment on the evidence where the evidence is not conflicting and is susceptible to only one inference, supporting judgment for the movant. To my mind, Carol Wiegand's own version of the events, recited above, required judgment for the defendants as a matter of law. The abundance of the evidence on this point might lead alarmists to conclude that the Supreme Court has abolished Trial Rule 50 by today's decision.
I neither discern such a purpose nor harbor such fear. Decisions on points like the one presented here are among the most fact-bound decisions judges make. The tri al judge concluded the facts did not constitute assumption of risk as a matter of law. Three members of the Court of Appeals concluded they did. Four members of this Court now say they did not.
No new law here, just an exercise in error-correcting by the court of last resort, error being in the eye of the beholder, who says here there was none. So let it be.