concurring.
While agreeing with the majority opinion, I would further find that the verdicts were not inconsistent.
In the plaintiffs' claim against Toby Parker, the jury verdict found that Parker and Dan Snyder were both "at fault," but that Snyder's fault was greater than 50% of the total "fault" involved in the incident. Record at 689-90, The verdict did not explain the nature of the "fault" that the jury attributed to Snyder. It was not necessarily that of contributory negligence. It could have been incurred risk.
This claim was presented under the Indiana Comparative Fault Act which defines "fault" to include various acts or omissions, expressly including negligence and assumed or incurred risk, among others. Ind.Code § 34-4-83-2(a). The jury was instructed that if it found Parker at fault, it must then determine whether Snyder was also at fault. Record at 81. They were told that the term "fault" includes various acts and omissions, including negligence and assumed or incurred risk. Record at 83. Furthermore, final instruction no. 17 stated:
When a person knows of a danger, understands the risks involved and voluntarily exposes himself to such danger, or when a guest voluntarily joins in or assents to wanton or willful misconduct by an operator of a motor vehicle, that person is said to have "incurred the risk" of injury.
Record at 89.
By its verdicts both finding Parker partially at fault and determining the State to be liable, the jury concluded that conduct both by Parker and by the State participated in causing Snyder's injuries. It was entirely possible that the jury verdict attributing "fault" to Snyder was based upon a determination that such fault consisted of Snyder's incurring the risk of Parker's driving while intoxicated, resulting in Parker's veering off the edge of the highway. However Snyder's incurred risk as to Parker's driving did not thereby necessarily also incur the risk of the State's negligent highway construction and maintenance *789causing a dangerously high "lip" preventing the vehicle's safe return. Such highway condition danger was not shown to be a risk known to the plaintiff and to which he voluntarily exposed himself.
Furthermore, as the jury was informed, the State's affirmative defense was that of contributory negligence, not incurred risk. Record at 79. Conduct amounting to incurred risk does not necessarily constitute contributory negligence. William Prosser, Handbook on the Law of Torts § 68, at 440-41 (4th ed. 1971).
In reviewing a claim of inconsistent verdicts, the reviewing appellate court indulges every reasonable presumption in favor of the legality of jury verdicts. Indianapolis Newspapers, Inc. v. Fields (1970), 254 Ind. 219, 259 N.E.2d 651.
It is logically and legally consistent here to interpret the jury verdicts as indicating that the Snyders were unsuccessful in their claim against Parker because Dan Snyder incurred the risk of Parker's driving, but that Snyder did not commit contributory negligence to bar his claim against the State. The jury verdict with respect to the Snyders' claim against Parker was not inconsistent with the verdict in their claim against the State.