Opinion
101112/2009.
Decided January 13, 2011.
On May 31, 2008, the plaintiff Tasha Sojka was injured while playing paintball at defendant's facility located at 2727 Arthur Kill Road, Staten Island, 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 Cousins Paintball Staten Island LLC and The Golf Center of S.I., Inc., [hereinafter collectively known as "Cousins"] has brought this motion for summary judgment on the ground that the plaintiff, Tasha Sojka, 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, Tasha Sojka, voluntarily chose to engage in a game of a paintball, thereby assuming the risks associated with the 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; 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 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 Cousins Paintball Staten Island LLC and The Golf Center of S.I., Inc.'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.