On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-35-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Plaintiff Jason Berry was injured in a paintball game at the home of defendants Linda and Gary Dvorak that was organized by Gary's adult son, defendant Joseph Dvorak.*fn1 The injury occurred when plaintiff was struck in the face by a paintball pellet when he briefly lifted his face mask to defog it.
Prior to trial, the Law Division entered two orders that are the subject of this appeal: a September 26, 2008 order that granted partial summary judgment to Linda, Gary and Joseph by requiring plaintiff to meet the heightened standard of reckless conduct established by Crawn v. Campo, 136 N.J. 494, 508 (1994); and an order of December 19, 2008, which granted summary judgment to Linda and Gary and dismissed plaintiff's complaint against them because there was no evidence of the reckless conduct required by Crawn.
We affirm the grant of summary judgment to Linda and Gary, although we do not rely upon Crawn. Instead, we conclude that Linda and Gary owed no duty to plaintiff to instruct him on the methods for defogging the mask merely because he was a guest at their home. We likewise conclude that Joseph, as the organizer of the game, also owed plaintiff no such duty.
Linda is the owner of property located on Jones Road in Barnegat, where she resides with her husband Gary. A few days prior to January 16, 2005, Joseph asked Linda and Gary if he could use their rural, wooded property for a paintball game. After obtaining their permission, he invited plaintiff and fifteen other friends to participate in a paintball scrimmage on January 16, 2005. The game was purely recreational as plaintiff paid no money to participate and no prizes were offered.
Although plaintiff had never competed in a paintball game before the day in question, he had shot a paintball gun at a target on several occasions. He knew how to operate a paintball gun and knew that paintball games could be dangerous. He knew that when paintballs hit bare skin, "they could leave a welt."
After borrowing a paintball gun, camouflage pullover suit and goggles*fn2 from colleagues at work, he arrived at the Dvorak home. Gary divided the competitors into two teams and the teams entered the wooded area of the property to begin the competition. Neither Gary nor Joseph provided any instructions on how to defog a paintball mask.
After taking up a position in the woods, plaintiff saw members of the opposing team approaching and looking for him. While they were still thirty to forty yards away, plaintiff's mask became foggy. He crouched down and lifted his mask "to air it out" in "kind of [a] swishing motion." Plaintiff believed he was "out of range" and there was therefore no need to call a time-out or turn his back to the approaching opponents while he cleared his mask. While his mask was in that raised position, he was struck in the face by a paintball and sustained an injury to his right eye.
When asked at his deposition whether he knew that it was necessary to wear eye protection, plaintiff answered as follows:
Q: Did you know that you had to wear eye protection to play the game?
A: I don't remember receiving any instructions to wear a face mask.
Q: That wasn't my question. My question was, did you know that you had to wear eye protection to play the game?