Stearns County District Court File No. C2005158
Considered and decided by Stoneburner , Presiding Judge, Kalitowski ,
Judge, and Halbrooks , Judge.
A participant in a game of paintball primarily assumes the risk of injury inherent in the game when that participant appreciates the risk of not wearing protective eye gear and chooses not to do so and the other players do not enhance or enlarge the risk of injury.
The opinion of the court was delivered by: Halbrooks, Judge
On appeal from summary judgment dismissing his negligence claim, appellant argues that the district court erred by (1) ruling that appellant primarily assumed the risk of being hit in the eye with a paintball when he played paintball without eye protection, and (2) granting summary judgment when genuine issues of material fact remain. Because we conclude that appellant primarily assumed the risk of being hit in the eye with a paintball by playing paintball without eye protection and that no genuine issues of material fact remain for trial, we affirm.
On October 6, 2000, appellant Stephen Schneider, age 17, respondent Jake Erickson, age 16, and Mark Skaalerud, age 16, decided to play their own version of the game of paintball. In preparation for their game, they went to a Wal-Mart store and purchased a paintball gun for appellant and paintballs and carbon-dioxide cartridges for the three of them to share. Appellant and the other boys knew that the local stores had policies prohibiting sales of paintball equipment to anyone under 18. They chose a specific cashier in a specific store whom they believed would be less likely to check identification, and they succeeded in purchasing a paintball gun and supplies.
Appellant had seen paintball played on television, and he was aware that players on television always wore head and eye protection. Appellant testified that he had seen language in advertisements for paintball equipment warning that eye protection was required at all times while playing paintball. He also testified that his parents told him that he could not purchase a paintball gun because they looked dangerous. Before buying the paintball gun, appellant knew in general that the guns could cause serious injury, that getting hit in the eye with a paintball could cause an eye injury, and that people using paintball guns should wear eye protection.
Appellant and his friends played the paintball game on the 60-80 acres of land on which appellant's parents' house is located. Before the game started, appellant got three motocross-type helmets and three sets of ski goggles from his parents' garage. The three players agreed on a few ground rules. They agreed that there would be no shots to the head or groin and that, if a person ran out of paintballs and notified the others that he was out of paintballs, he would not be shot.
Appellant, respondent, and Skaalerud started their game of paintball between 5:00 and 6:00 p.m. All three wore helmets and goggles. At about 6:45 p.m. they took a break. During the break, appellant and Skaalerud took off their eye protection because it was starting to get dark and more difficult to see. Respondent was aware that appellant and Skaalerud had taken off their eye protection. After the break, all three continued shooting paintballs at each other. At one point, respondent and appellant were about 20-50 feet apart, separated by some small trees, shooting paintballs at each other. Appellant shot and hit respondent, stopped to reload his gun,*fn1 and was then hit in the left eye by a paintball shot by respondent. As a result of respondent's errant shot, appellant sustained a permanent injury to his left eye.
Respondent testified that he was not aiming for appellant's head, but was aiming at his shoulder and chest. Appellant testified that he knew that respondent was going to shoot at him and that respondent did not appear to be aiming for his head. Appellant stated that, if he thought respondent was aiming for his head, he would have said something.
Appellant testified that the paintball guns were "pretty accurate" from 20-30 feet, but that there were times when he missed his target. He also acknowledged that, even though they had the rule prohibiting head-shots, from a distance of 30 feet it was possible that someone could accidentally get hit in the head. Additionally, appellant acknowledged that when the carbon-dioxide cartridge that powers the paintball gun is not fresh, the paintball gun may not be as accurate. Skaalerud testified that at one point prior to appellant's injury, he accidentally shot respondent in the head. Respondent testified that he was hit in the head several times during the game. Each player was hit with a paintball approximately 15-20 times.
Appellant brought this personal-injury action against respondent and Wal-Mart, claiming that respondent negligently and recklessly shot him in the eye with a paintball and that Wal-Mart negligently, and in violation of its own store policy, sold paintball equipment to minors. Respondent and Wal-Mart moved for summary judgment. The district court denied Wal-Mart's motion, but granted respondent's ...