[Teddymo]

FYI - A recent New York Decision upheld a paintball release in a lawsuit filed against a paintball facility where the player slipped and fell and broke their ankle while playing. The release was upheld and the case was dismissed at the motion stage without a trial. The case relied on the legal principle established in a New York Appeals Court which holds that the owner of a premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport - here the condition was a muddy field and that the player understands the assumption of risk which was also a factor. Also important to note is the language of the release which was quoted in the decision.

I have redacted the names of the parties as this is provided simply for information purposes and am not looking to create attention to one field over another and this post should not be considered legal advice but is posted for discussion purposes only.

On May 31, 2008, the plaintiff ------ was injured while playing paintball at defendant's facility located at ------, New York. The instant accident occurred when the plaintiff was running from one barrier to another and fell. Plaintiff sustained a broken ankle which required surgery. On or about April 30, 2009, plaintiffs commenced this negligence action against the defendants. Presently, issue has been joined and discovery is complete. The defendants ----, [hereinafter collectively known as "------"] has brought this motion for summary judgment on the ground that the plaintiff, -------, assumed the risk inherent in the activity of playing paintball.It is well settled that "a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'" and "this includes those risks associated with the construction of the play surface and any open and obvious condition on it" (Joseph v. NY Racing Assoc., 28 AD3d 105, 108 [2d Dept., 2006][emphasis in original]; DiGiose v. Bellmore-Merrick Central High School Dist., 50 AD3d 623, 623 [2d Dept., 2008]). In extending the doctrine to the playing surface, "[i]f an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport" (Cotty v. Town of Southhampton, 64 AD3d 251, 254 [2d Dept., 2009])."Moreover it is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which injury results'" (Joseph v. NY Racing Assoc., 28 AD3d at 108; DiGiose v. Bellmore-Merrick Central High School Dist., 50 AD3d at 623).Here, the defendant has established that the plaintiff, -------, voluntarily chose to engage in a game of a paintball, thereby assuming the risks associated with the [*2]activity (Joseph v. NY Racing Assoc., 28 AD3d 105 at 110 [granting summary judgment where an experienced jockey fell in mud, which was open and obvious]; Cotty v. Town of Southampton, 64 AD3d at 254 [granting summary judgment to defendant where plaintiff's bicycle was stuck in an alleged defect/"lip" in the road]; Mangan v. Engineer's Country Club, Inc., __ AD3d ___, 2010 NY Slip Op 9106 [2d Dept., Dec 7, 2010][applying the doctrine to a slip and fall down stairs on a golf course]). As evidenced by the plaintiff's examination before trial, she had played paintball several times before on outdoor courses and demonstrated her familiarity with tactics and objectives of the game. In addition, the plaintiff indicated she was aware it had rained the day of her accident and that the field was damp. Clearly, from the evidence presented the conditions were readily observable to the plaintiff and fully comprehended.

As a result, the defendant has established that paintball, a game which (as the plaintiff has characterized it herself) simulates "war", does include a muddy surface as a risk inherent in the activity and that this alleged defect is not above and beyond what the plaintiff knew or should have known to be a risk on the admittedly damp paintball field.

In opposition, plaintiffs have failed to raise triable issues of fact that the alleged muddy surface was so unique as to create a dangerous condition over and above the usual dangers inherent in playing paintball (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Morales v. Coram Materials Corp., 64 AD3d 756, 758-759 [2d Dept., 2009]; Morales v. Coram Materials Corp., 64 AD3d at 758-759 [holding the plaintiff assumed the risk of the terrain while engaging in riding an all-terrain vehicle]). Here, as in Morales, outdoor paintball is characterized by participation in the elements and on the land, simulating actual "war" and a muddy surface on the ground after it has rained is clearly a risk that is obvious and assumed in the activity.

The Court further notes that in this case the plaintiff acknowledged signing a "Waiver & Release of Liability" which states;

I fully understand and acknowledge that; (a) risks and dangers exist in my use of Paintball equipment and my participation in Paintball activities; (b) my participation in such activities and / or use of such equipment may result in my illness including but not limited to bodily injury, disease strains, fractures, partial and / or total paralysis, eye injury, blindness, heat stroke, heart attack, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of Operator, the negligence of the participants, the negligence of others, accidents, breaches of contract, the forces of nature or other causes. These risks and dangers may arise from foreseeable or unforeseeable causes; and (d) by my participation in these activities and / or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and / or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, employees or Operator, or by any other person.

I, on behalf of myself, my personal representatives and my heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify it's owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property [*3]damage, wrongful death, loss of services or otherwise which may arise out of my use of Paintball equipment or my participation in Paintball activities, I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the owners, agents, officers or employees of Operator.

Here, as the plaintiff has failed to demonstrate that the mud was a risk above and beyond the normal risks inherent in the activity of playing paintball and considering the waiver of liability, the defendant's motion for summary judgment is granted (Theile v. Oakland Valley, Inc., 72 AD3d 803, 803 [2d Dept., 2010][granting summary judgment to go-kart establishment where plaintiff signed release of liability].

Accordingly, it is

ORDERED that the defendant's ----- motion [002] for summary judgment is hereby granted and the complaint is dismissed as against them, and it is further

ORDERED that all other requests for relief are hereby denied, and it is further,

ORDERED that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

[TargetIndy]

Thanks for sharing that with us. Since that was a New York case, would that only set precedence in New York, or would it be useful in cases in other states?

[x420psykoticx]

Originally Posted by TargetIndy

Thanks for sharing that with us. Since that was a New York case, would that only set precedence in New York, or would it be useful in cases in other states?

It typically sets precedent in other states too.

[lamorte]

Originally Posted by x420psykoticx

It typically sets precedent in other states too.

i'm not certain because 1 judge excused 1 property owner from liability, that suddenly the whole country of field owners are exempt as well. if you mean that this case could be brought up as an example of a past judgement that could pertain to a similar case, i think you're right. i wonder how many cases already exist where the field owner(rather their insurance company) was found liable? those are examples of past judgements as well. sounds to me the field owner or insurance company had a convincing lawyer.

[raehl]

It is useful in cases in other states. It's not BINDING, but states often look to decisions rendered in other states for guidance. That said, breaking your ankle while willingly engaged in sport is well-settled "your own responsibility" case law in pretty much any state barring some unexpected hazard (and muddy ground after it rained isn't unexpected), so it's probably not very useful as I would expect pretty much any state would toss any similar case on summary judgment on the merits of that state's precedent alone, although some states still don't have precedent as to whether primarily responsibility extends to cover those not actually participating in the sport. (I.e. if you're injured because someone tackles you in football, the person who tackled you isn't liable unless they acted outside the context of normal play of the game. But whether the entity that organizes the football game is similarly shielded is not settled precedent in as many states as it is with other participants.)


For example, in Texas, if you lift your mask on the field, and get shot in the eye, you're unlikely to survive summary judgment if you sue the person who shot you. But if you sued the field, it would probably take a TX appeal's court ruling to end the case, since TX doesn't currently (well, at least as far as I know, I am not a lawyer) extend assumed risk protection to non-participants. Not that they don't either, it's just not an area where TX case law currently exists.

- Chris

[CrusaderPB]

For some reason, I feel like if it went to the State Supreme Court level, than there must have been something beyond the "well settled" breaking your ankle in a sport.

As such, even it it doesn't directly aid in other cases, bringing it up probably wouldn't hurt the defendant either.

+1 for waivers

[TheECP]

It seems to me like the waiver covers pretty much anything that could possibly happen, it's interesting that people even try to do this kind of thing.

[TargetIndy]

Originally Posted by TheECP

It seems to me like the waiver covers pretty much anything that could possibly happen, it's interesting that people even try to do this kind of thing.

Lawyers make careers out of this sort of stuff.

[WhiteRiverPaintball]

Originally Posted by TheECP

It seems to me like the waiver covers pretty much anything that could possibly happen, it's interesting that people even try to do this kind of thing.

We have a door at our pro-shop that says "authorized personnel only". It's a locked door, the sign says "no access" and there's an arrow pointing to the pro-shop.

But, every weekend, customers come up to the door and try to open it.

Just because it says "no entry", "do not enter" or whatever else, you still get people that try to go through it.

[Teddymo]

Originally Posted by TargetIndy

Thanks for sharing that with us. Since that was a New York case, would that only set precedence in New York, or would it be useful in cases in other states?

It depends on whether there are similar decisions in the state and if not then a judge may look to other jurisdictions. That being said one particular note to point out in the decision is the plaintiffs might have been successful if they could have "raise ... issues of fact that the alleged muddy surface was so unique as to create a dangerous condition over and above the usual dangers inherent in playing paintball"

so for example if the muddy condition was such that a player could drown in it like quicksand - obviously that would have created a unique and dangerous condition and the waiver might not have helped. If you have a obstacle on your field that is not constructed properly (ex: wooden bridge where the floor has rotted) or (brick wall that collapses on a player) (studs with nails sticking out) - common sense would dictate that the release would probably not protect you - so be forewarned to regularly inspect your field for unique dangers that are not "inherent in play"

[Dac152]

As a result, the defendant has established that paintball, a game which (as the plaintiff has characterized it herself) simulates "war", does include a muddy surface as a risk inherent in the activity and that this alleged defect is not above and beyond what the plaintiff knew or should have known to be a risk on the admittedly damp paintball field.

I really don't like how the case was won using the, "Paintball is a war simulation," idea.

[GatSplat]

Originally Posted by Dac152

I really don't like how the case was won using the, "Paintball is a war simulation," idea.

If it was you being sued, I'm sure you would not mind if it was "Paintball is a war", "Paintball is stupid", "Paintball is goofy", Paintball is.....

The important thing, is the field did not lose.

[Dac152]

Ok yes, if it were me...anything goes if you are out for yourself especially when looking to pay for medical costs associated with injury. But, now it will be always referenced as such in the court of law. GOD only knows we need more war references in this sport.

[lamorte]

Originally Posted by Dac152

Ok yes, if it were me...anything goes if you are out for yourself especially when looking to pay for medical costs associated with injury. But, now it will be always referenced as such in the court of law. GOD only knows we need more war references in this sport.

scuse meh, is there a time when it wasn't considered warlike? it's like trying to convince someone that boxing, wrestling and full contact karate isn't violent. since when is shooting markers/guns at each other not warlike? though some might like to hide it, the greater percentage of people have a thing called common sense and will put 2 & 2 together

[CrusaderPB]

My field is military themed.... we even used to drive customers back to the fields in modified school buses, complete with seats facing inwards, windows with netting....

[hollywood88]

Well good to see that someone who "probably" should not have been sued did not lose especially in a case where it "was a good possiblily" there should not have been a law suit to begin with.
I use the quotes due to the nature of not actually seeing it all first hand and can only sightly assume the parameters of the incident.
It's paintball and it is a physical sport where we all run the risk of being injured to some,or great, extent. A field should not be held responsible for injuries unless it was a preventable accident brought on by the gross negligence of the field, and or responsible parties.
Too many instances these days people will not take any sort of responsibilty for their actions, or a direct result therof. I want to point the finger somewhere else also but 99% of the time the blame is on me.

[raehl]

Originally Posted by CrusaderPB

For some reason, I feel like if it went to the State Supreme Court level, than there must have been something beyond the "well settled" breaking your ankle in a sport.

Not really. Anyone can appeal all the way to the State Supreme Court in most states.

- Chris

[lopez17]

Originally Posted by raehl

Not really. Anyone can appeal all the way to the State Supreme Court in most states.

- Chris

And it wouldn't surprise me if the litigant's lawyers encouraged an appeal as a way to rack up their billable hours.

[YohY]

Originally Posted by raehl

Not really. Anyone can appeal all the way to the State Supreme Court in most states.

- Chris

Yes really - to equate ones right to appeal all the way to the state supreme court to the state supreme court actually hearing the case is silly. There had to be validity to the case or the supreme court would not have heard the case.

[DSDM]

Originally Posted by CrusaderPB

For some reason, I feel like if it went to the State Supreme Court level, than there must have been something beyond the "well settled" breaking your ankle in a sport.

As such, even it it doesn't directly aid in other cases, bringing it up probably wouldn't hurt the defendant either.

+1 for waivers

In NY the higest court is not called the Supreme Court it is called the The Court of Appeals. The Supreme Court in NY is on same line as the County Courts.

http://www.nycourts.gov/courts/structure.shtml

But yeah score one for Waivers and personal responsibility.

[neverenuf]

everyone is always trying to come up...