"You'll Shoot your Eye Out" Defogging Premises Liability for Hosts of "Dangerous" Sporting Events
Jason Berry took part in a paintball game hosted by his adult friend Joseph Dvorak. The event took place on property owned by Joseph’s parents. Prior to the commencement of the game, Joseph did not provide any instructions or warnings to the participants about how to properly defog a paintball mask. Shortly after the game began, Mr. Berry’s mask began to fog up and in an effort to defog the mask he removed it from his face. While his mask was raised, Mr. Berry was hit in the face by a paintball, causing injury to his right eye.
Mr. Berry subsequently filed suit against the Dvoraks and their son Joseph in the case Berry v. Lynch alleging that the Dvoraks and Joseph negligently failed to ensure that the proper safety procedures, inspections, and equipment were in place to guarantee that the paintball game was conducted in a reasonably safe manner. In response, the Dvoraks and Joseph filed motions to have the case dismissed. The Dvoraks contended that they were not liable because Mr. Berry failed to show that their conduct met the heightened standard of “recklessness,” as opposed to “simple negligence.” Joseph argued that he had no duty to warn Mr. Berry about how to properly use his safety mask because Mr. Berry, by his admission, knew that the mask was necessary for his protection. In his deposition, Mr. Berry admitted that he knew he needed eye protection to participate in a paintball game.
The trial court granted the Dvorak’s motion for summary judgment because Mr. Berry was unable to factually support his allegation that the Dvoraks had acted recklessly. The court, however, denied Joseph’s motion on the grounds that he had a greater duty to Mr. Berry because the game was his idea. At trial, the jury entered a verdict in favor of Joseph.
On appeal, Mr. Berry argued that the trial court erred in requiring him to prove that the Dvoraks’ conduct was reckless, rather than negligent, because the relevant case law requiring reckless conduct only applied to situations where defendants were co-participants with the plaintiff in an informal recreational sport and there was no dispute that the Dvoraks did not participate in the game. The appellate court agreed that the standard of negligence, not the heightened standard of reckless conduct, applied.
The court then addressed the issue of whether under the negligence standard the defendants owed a duty to Mr. Berry to provide him with instructions on how to properly defog his paintball mask. Under the general rule for premises liability, landowners are only liable to social guests for foreseeable injuries if: “the dangerous condition is unknown to the guest and the guest could not have discovered the danger himself; the host fails to exercise reasonable care to make the premises safe, or to warn the social guest of the danger; and the guest has no reason to know of the risk involved.” Parks v. Rogers. The court noted that Mr. Berry knew the risks of participating in paintball, was aware of the purposes of the mask, and knew that he would risk harm by taking it off. In light of these facts, the court found that the Dvoraks did not owe Mr. Berry a duty to instruct him on how to properly defog his mask and provide an explanation of the dangers of improper defogging. The court then affirmed the lower court’s grant of summary judgment in favor of the Dvoraks.
Take-Away: Under New Jersey law, a landowner’s status as a participant in a recreational activity can determine the standard of care owed to his social guests who take part in that activity. In addition, a landowner does not owe a duty to his guests to warn them of risks of which they are aware and which are inherent in the involved activity. The comparable Louisiana State laws that protect landowners from recreational use of their property are LA R.S 9:2791 (pdf) and LA R.S. 2795 (pdf).
This article was co-authored by Jonathan Phelps, a 2011 summer associate at Irwin Fritchie Urquhart & Moore LLC.
