Waiver Releases Defendant from Negligence, But Not Gross Negligence

Sep 11, 2009

A plaintiff, who was injured during a paintball competition, scored a solid victory in federal court against the entity that staged the competition.
While the court agreed with the corporate defendant that the waiver and release it uses, and the plaintiff signed, is enforceable with regard to the plaintiff’s negligence claim, the document “did not waive or release any of plaintiff’s claims for gross negligence, strict liability, or breach of the implied warranties of merchantability and fitness for a particular purpose.”
Noted the court, “the evidence created a genuine issue of material fact for the jury as to whether defendant’s behavior grossly deviated from the ordinary standard of care.”
In addition, the court found that “defects in design of the goggles outweighed its social utility and, accordingly, the goggles defendant rented to plaintiff were unreasonably dangerous.” It reasoned that “the defective design of the goggles could cause them to loosen and slip during common paintball activities, even after they had been tightened.” As such, “an ordinary user could not avoid injury simply by tightening his or her goggles.”
On March 19, 2006, Jorge Martinez played paintball at a facility owned and operated by Skirmish, U.S.A., INC. in Jim Thorpe, Pennsylvania. The court noted that in paintball, participants shoot their opponents with gelatin-encased balls of dye that are propelled from paintball guns by the use of carbon dioxide gas or compressed air.
Skirmish sells and rents paintball equipment to participants, who do not have their own, including paintball guns, goggles and paintballs. Martinez did not own his own paintball equipment. Consequently, when Martinez arrived at Skirmish’s Jim Thorpe paintball facility, he rented a paintball gun, paintball goggles and a camouflage suit and purchased paintballs from Skirmish.
The goggles that Martinez rented from Skirmish were allegedly “old and were not in very good condition.” During one of the games that he played in, Martinez was running across the playing field, trying to capture the other team’s flag, when his goggles slipped down his face until the top of the goggles rested on the tip of his nose. This left his eyes unprotected. He was shot in the right eye with a paintball immediately after his goggles slipped. Martinez was permanently blinded in his right eye.
Martinez sued, and the defendants moved for summary judgment, citing the Waiver & Release that the plaintiff signed.
The examining the argument, the court found that the Waiver & Release is valid and enforceable against Martinez, leading to the next step – “which of Martinez’s claims are waived and released by that exculpatory contract.”
The court identified one recent case where a release that contained similar specific and general exculpatory language released only negligent conduct. See Tayar v. Camelback Ski Corp., 2008 PA Super 204, 957 A.2d 281, 287 (Pa. Super. Ct. 2008).
The similarities between that case and the present one led to the court to conclude that “the Waiver & Release that Martinez signed before beginning his participation in paintball activities on March 19, 2006, is enforceable and acts as a waiver of Martinez’s negligence claim. Skirmish’s Motion for Summary Judgment is, accordingly, granted as to Count One of Martinez’s First Amended Civil Action Complaint against Skirmish and that Count is dismissed. We further conclude, however, that the Waiver & Release did not waive or release any of Martinez’s claims for gross negligence, strict liability, or breach of the implied warranties of merchantability and fitness for a particular purpose.”
The court was also hesitant to extend any assumption of risk protections to the defendant.
“Martinez argues that the no-duty rule and doctrine of assumption of risk do not apply in this case because he did not assume the risk that he would be issued defective goggles that would slip off his face, exposing him to eye injury. We agree. The risk of being hit by a paintball is inherent in the activity. Indeed, Martinez was aware of that risk and was also aware, prior to the time of his injury, that he risked being hit in the eye with a paintball. (Martinez Dep. at 51-53, 75, 77-78, 86, 92-93.) Martinez’s awareness of that risk was, however, modified by the knowledge that he was wearing protective eyewear issued to him by Skirmish. There is no evidence on the record before us that the risk that rented goggles might slip off a participant’s face while that participant was running was a common, frequent and expected risk in paintball. We thus find that such a risk was not an inherent risk of the game of paintball that would bar a finding that Skirmish was grossly negligent. See Jones 394 A.2d at 551. Consequently, we conclude that the evidence of record does not establish the applicability of the no-duty rule to Martinez’s gross negligence claim against Skirmish. Skirmish’s Motion for Summary Judgment is, accordingly, denied as to the no-duty rule defense.”
The court then turned to Skirmish’s separate argument that the plaintiff’s “negligence claim is barred by assumption of the risk. While Martinez “believed that his goggles were loose,” he did not “consciously appreciate the risk that his goggles would slip off and fail to protect his eyes.” It concluded that the “evidence creates a genuine issue of material fact for the jury as to whether Skirmish’s behavior grossly deviated from the ordinary standard of care,” in siding with Martinez.
Jorge Martinez v. Skirmish, U.S.A., INC., et al.; E.D. Pa.; CIVIL ACTION NO. 07-5003, 2009 U.S. Dist. LEXIS 51628; 6/16/09
Attorneys of Record: (for plaintiff) David L. Pennington, Lead Attorney, Harvey Pennington Cabot Griffith & Renneisen, LTD, Philadelphia, PA; John P. Hartley, Lead Attorney, Harvey Pennington Ltd., Philadelphia, PA. (for defendant Skirmish) B. Hopson, Ralph P. Bocchino, Lead Attorneys, Joanna D. Buchanico, Marshall, Dennehey, Warner, Coleman, & Goggin, Philadelphia, PA. (for defendant, Counter Claimant Procaps Direct USA): William C. Foster, Lead Attorney, Marshall Dennehy Warner Coleman & Goggin, Philadelphia, PA.


Articles in Current Issue