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New Jersey Court Holds No Duty to Advise Paintball Participant How to De-Fog Mask, Although Homeowners Held to Negligence (Not Recklessness) Standard

Blogs, Risk Management

In an unpublished decision on May 27, 2010, the New Jersey Superior Court, Appellate Division, upheld a trial court’s grant of summary judgment in favor of homeowners who allowed their property to be used for an informal paintball game, where the plaintiff alleged the defendants had negligently failed to advise him (before the pellets began flying) how to de-fog his mask. Berry v. Lynch, No. L-35-07, 2010 WL 2195750 (N.J.Super.A.D., May 27, 2010).

The plaintiff, a friend of the homeowners’ son, participated in an informal paintball game on the defendant-homeowners’ property. While the plaintiff had never before played live paintball, he had shot paintball rifles at the range, and admitted that he was well-aware of the risks of engaging in the activity. During the game, the plaintiff took up a position and waited patiently for his enemies to come to him. Figuring he was still out of range when the other team advanced to thirty or forty yards away, he decided to remove his mask to de-fog it, when a sniper on the opposing team achieved a near-perfect cold zero, striking him in the eye. The plaintiff sued the homeowners, as well as their adult son who had organized the event.

During his deposition, the plaintiff testified that the homeowners and their son had failed to instruct him on how to de-fog his mask during play. After the defendants filed motions for summary judgment, the trial court held that case of Crawn v. Campo was applicable, and that the plaintiff would have to prove the defendant-homeowners acted recklessly in failing to properly advise him how to use his equipment (as opposed to a standard of ordinary negligence). The trial judge dismissed the plaintiff’s claims against the defendant-homeowners on the grounds that there was no evidence they had acted recklessly, but allowed the claims against the homeowners’ son to go forward, holding that as the organizer of the event, his duty to the plaintiff was greater. After trial, the jury found entered a verdict for the defendant.

On appeal, the plaintiff argued that he should not have been held to a standard of recklessness, but ordinary negligence. The Appellate Division began its analysis by reviewing the Crawn v. Campo standard applied by the trial court, noting that the recklessness standard generally applied to cases involving sports participants because “’the rough-and-tumble of sports’ between two equally situated participants ‘should not be second-guessed in courtrooms.’” The Appellate Division, however, noted that the Crawn v. Camporecklessness standard had only been previously applied in cases where one participant either collided with or somehow directly injured another participant; it had never been applied to a claim of failure to provide proper pre-game instructions. Therefore, the Appellate Division held that the recklessness standard would not apply, and the plaintiff should have been held to a standard of showing ordinary negligence.

The Appellate Division, however, held that even under a standard of ordinary negligence, the homeowner-defendants had no duty to instruct the plaintiff how to de-fog his mask. The court noted that plaintiff admitted that rather attempting to de-fog his mask during the heat of battle, he could have simply turned his back upon the advancing team, or called for a time out The court noted that there is no duty to “eliminate a risk that is inherent in the sport itself,” and noted that the plaintiff’s own ability to exercise due care was at least equal to the other defendants’. Therefore, the Appellate Division affirmed the trial court’s grant of summary judgment in favor of the defendant-homeowners (albeit on different grounds), and let stand the jury verdict in the remaining defendant’s favor.