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Negligence - Berry v. Lynch (A-3141-08T3)

JASON BERRY,  Plaintiff-Appellant/Cross-Respondent,



DVORAK, and GARY DVORAK, Defendants-Respondents/ Cross-Respondents,



            Defendant-Respondent/ Cross-Appellant




            Third-Party Plaintiffs,




            Third-Party Defendants.


Submitted May 10, 2010 – Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-35-07.

DArcy Johnson Day, attorneys for appellant/cross-respondent (Richard J. Albuquerque, of counsel and on the brief).

Zeller & Wieliczko, LLP, attorneys for respondent/cross-appellant (Matthew B. Wieliczko, of counsel and on the brief).

Law Office of Debra Hart, attorneys for respondents/cross-respondents (Stephen M. Swain, of counsel and on the brief).


            Plaintiff Jason Berry was injured in a paintball game at the home of defendants Linda and Gary Dvorak that was organized by Garys adult son, defendant Joseph Dvorak.[1]  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 plaintiffs 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[2] 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, plaintiffs 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 dont remember receiving any instructions to wear a face mask.

Q.  That wasnt my question.  My question was, did you know that you had to wear eye protection to play the game?

A.  No.

Q.  You didnt know that?

A.  Other than common sense, no.

Q.  Okay.  Or -- well, did you have common sense? 

A.  Yes. 

Q.  So you knew that if you were to go out to the woods and somebody was gonna to shoot a paintball at you, then you should be wearing eyeglasses or eye protection?

A.  Yes.

Q.  Nobody had to tell you that?

A.  No.


            In January 2007, plaintiff filed a single count complaint against Linda, Gary and Joseph, which alleged in relevant part: 

            [T]he defendants had a duty to provide plaintiff with a reasonably safe premises and did negligently fail to take such actions to provide the plaintiff with a reasonably safe premises.

            At the aforesaid place and time, defendants . . . did negligently fail to provide such safety procedures, inspections and equipment which would have constituted the premises a reasonably safe place for the plaintiff to participate in the paintball game.

            Defendants were additionally reckless and negligent by failing to provide proper equipment and safety instructions to plaintiff to participate in paintball activities on the premises.

            As a result of the aforesaid conduct of the defendant[s], the plaintiff, Jason Berry, suffered serious personal injuries, would suffer severe physical and mental pain and suffering, was prevented from pursuing his usual activities, and has significant permanent disabilities that will similarly affect his life.

            Linda and Gary filed an answer denying any responsibility for plaintiffs injuries.  They also filed a crossclaim against Josephs estate and a third party complaint against the parents of the juvenile who fired the paintball into plaintiffs eye and against the juvenile himself.[3] 

            In August 2008, all three defendants moved for summary judgment.  Linda and Gary asserted that no act or omission on their part played any role in the happening of the incident as plaintiff was aware before he even stepped on their property that paintball was dangerous and it was necessary to wear eye protection at all times.  They also asserted that:  they were immune from liability under the provisions of the Landowners Liability Act, N.J.S.A. 2A:42A-3; pursuant to Crawn v. Campo, supra, they had no liability in the absence of reckless conduct; and plaintiff had failed to make such a showing.  Joseph, in turn, argued that regardless of whether his conduct was measured by a standard of recklessness or of negligence, he was entitled to dismissal of the claims plaintiff asserted because he had no duty to instruct plaintiff on the proper use of the mask as plaintiff was already aware that eye protection was necessary while competing.

            On September 26, 2008, the judge granted partial summary judgment.  After concluding that Crawn v. Campo was applicable, the judge required plaintiff to establish reckless conduct on the part of defendants in order to prevail at trial.  The judge also determined that because plaintiffs allegations raised a genuine issue of material fact about defendants reckless conduct, defendants were not entitled to dismissal of plaintiffs complaint. 

            A few months later, defendants again moved for summary judgment and plaintiff cross moved seeking reconsideration of the September 26, 2008 order that held him to the heightened reckless conduct standard.  After oral argument, the judge granted Gary and Lindas motion for summary judgment and dismissed all claims against them, holding that the facts could not support a jury finding that either of them acted in a reckless manner.  The judge denied Josephs motion because, as the organizer of the game, his duty was greater.  The judge denied plaintiffs cross motion for reconsideration. 

            At the conclusion of the trial, the jury entered a verdict of no cause for action against Joseph, who was the only remaining defendant.  On February 18, 2009, the judge entered a confirming order dismissing plaintiffs complaint with prejudice.

            On appeal, plaintiff argues:




When determining a motion for summary judgment, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).  Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."  R. 4:46-2(c).  When reviewing an order granting or denying summary judgment, we apply the same standard used by the trial court.  Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). 

Viewing the evidence in the light most favorable to plaintiff as Brill requires, supra, 142 N.J. at 540, the record establishes that neither Linda, Gary nor Joseph provided any instruction to plaintiff on the proper method for defogging his mask during the competition.  The undisputed facts also demonstrate that plaintiff was well aware of the need to wear the mask to protect his face, and in particular his eyes, from injury. 

We turn first to the trial judges conclusion that defendants were entitled to the benefit of the heightened standard articulated in Crawn.  There, the Court considered the extent of a sports participants duty to avoid inflicting physical injury on another player.  Crawn, supra, 136 N.J. at 497.  The appeal involved a catcher who suffered an injury when a base runner slid into home plate during an informal softball game.  Id. at 498.  The Court stated its holding broadly when it held that "the duty of care applicable to participants in informal recreational sports is to avoid the infliction of injury caused by reckless or intentional conduct."  Id. at 497.          In reaching the conclusion that a co-participant had no liability in the absence of reckless or intentional conduct, the Court relied on two important policy considerations that supported the decision to apply a standard of care that exceeded negligence:  the benefit to be derived from promoting vigorous participation in athletic activities and the need to avoid the "flood of litigation" that would be generated by participation in recreational sports if the standard were to be set at ordinary common law negligence.  Id. at 501.  The Court determined that those two policies outweighed the harm of immunizing conduct that would otherwise expose the responsible party to liability.  Id. at 502.  In determining that the recklessness standard should apply, rather than the common law standard of ordinary negligence, the Court observed that the "rough-and-tumble of sports" between two equally situated participants "should not be second-guessed in courtrooms."  Id. at 508.

As is evident from a reading of Crawn, its holding applies to injuries inflicted on one competitor by another during the course of the game.  Crawn did not apply the heightened recklessness standard to the sort of ancillary activity upon which plaintiff relies here, namely the failure to issue proper instructions at the commencement of the game. 

Indeed, in each of the opinions that have subsequently applied the Crawn reckless conduct standard, that standard was applied in circumstances where one player collided with, or somehow directly injured another player, in the course of the actual sporting activity.  See Schick v. Ferolito, 167 N.J. 7 (2001) (applying recklessness standard when a golfer hit an unannounced and unexpected second tee shot, or "mulligan," after all members of the foursome had already teed off); Obert v. Baratta, 321 N.J. Super. 356 (App. Div. 1999) (applying recklessness standard when softball player sued teammate for injuries sustained when the two collided while in pursuit of fly ball during informal intra-office game); Rosania v. Carmona, 308 N.J. Super. 365 (App. Div.) (applying recklessness standard where karate student brought action against a martial arts academy and instructor), certif. denied, 154 N.J. 609 (1998); Calhanas v. S. Amboy Roller Rink, 292 N.J. Super. 513 (App. Div. 1996) (applying recklessness standard where roller skater suffered broken leg from collision with another skater).

Nothing in the fact pattern presented here remotely resembles Crawn, Schick, Obert, Rosania or Calhanas.  All of those decisions apply the reckless conduct standard to two equally situated participants where one directly injured the other during the course of the sporting activity itself.  None applied Crawn to the factual circumstances presented here, where the claim is based upon a failure to provide proper pre-game instructions.  In our view, the trial judges reliance upon Crawn was therefore error.  We thus conclude that defendants were not entitled to the benefit of the heightened standard articulated in Crawn. 

Our conclusion that the trial judge erred by relying on Crawn is not the end of the matter, for we must determine the threshold question of whether these defendants had any duty at all.  In particular, we must decide whether Linda, Gary and Joseph were obliged under the principles of premises liability to provide plaintiff with an instruction on procedures for defogging a mask. 

Judges, not jurors, are responsible for determining the scope of tort liability.  Kelly v. Gwinnell, 96 N.J. 538, 552 (1984).  Thus, the issue of whether a defendant owes a legal duty, as well as the scope of the duty owed, are questions of law for the court to decide.  Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996); Kelly, supra, 96 N.J. at 552. 

Historically, the common law approach to landowner or occupier tort liability was based on the right of the person injured to be on the land.  Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993).  The duty of the owner or occupier was determined according to whether the victim was classified as a business invitee, a licensee, or a trespasser.  Ibid.  In Hopkins, the Court described the different standards, stating that

[a]n owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related.  A lesser degree of care is owed to a social guest or licensee, whose purposes for being on the land may be personal as well as for the owners benefit.  The owner owes a minimal degree of care to a trespasser, who has no privilege to be on the land.


            In Hopkins, the Court was faced with determining whether a real estate broker had a duty to warn customers of a dangerous condition on the property the broker was displaying to prospective buyers through an open house.  Id. at 431.  The Court rejected an approach that was based on the rigid common law classifications of invitee, licensee or trespasser.  Id. at 435-38.  Instead, the Court held that the inquiry should be "whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition . . . of a general duty to exercise reasonable care in preventing foreseeable harm . . . is fair and just."  Id. at 438.

            The holding in Hopkins introduced flexibility into premises liability, and ever since, "the traditional common law classifications have been applied with pliancy to avoid foreseeable harm to others."  Olivo v. Owens-Illinois, Inc.,  186 N.J. 394, 402 (2006) (quoting Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 508 (1996)).  Foreseeability has been determined to be relevant to the question of whether a duty of care is owed to another, and is considered "a crucial element in determining whether imposition of a duty on an alleged tortfeasor is appropriate."  Carvalho, supra, 143 N.J. at 572-73 (quoting Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194 (1994)); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502-03 (1997).  Once the foreseeability of harm has been shown, "considerations of fairness and policy govern whether the imposition of a duty is warranted."  Olivo, supra, 186 N.J. at 403 (citing Carter Lincoln-Mercury, supra, 135 N.J. at 194-95).

            In using the concept of foreseeability to determine the existence of a duty, a court should assess

"the knowledge of the risk of injury to be apprehended.  The risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care."

[Clohesy, supra, 149 N.J. at 503 (quoting Hill v. Yaskin, 75 N.J. 139, 144 (1997)).]

After foreseeability is established, the determination as to whether imposing a duty is fair "involves identifying, weighing, and balancing several factors - the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Carvalho, supra, 143 N.J. at 573 (quoting Hopkins, supra, 132 N.J. at 439).  Such determination is "fact-specific."  Hopkins, supra, 143 N.J. at 439.

            Generally, landowners are liable to their social guests for foreseeable injuries that occur on their premises, but only 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, 176 N.J. 491, 499 (2003) (citing Restatement (Second) of Torts § 342).  Indeed, the guests awareness of the risk was a significant factor in Tighe v. Peterson, 175 N.J. 240, 241-42 (2002), where the Court held that the defendant homeowners did not have a duty to warn the plaintiff of the danger of diving into the shallow end of their pool because the plaintiff knew or should have known of that danger from his many times using the pool. 

As Hopkins requires, before determining whether any of the defendants had a duty to advise plaintiff how to defog his mask, Hopkins, supra, 132 N.J. at 439, we must first consider the relationship of the parties.  In this context, the significant characteristics are that Gary, Linda and Joseph offered plaintiff the opportunity to voluntarily participate in an activity whose risks are well-known to an average person, specifically well-known to the plaintiff, and which involved the same risk that is always inherent in a game of paintball.  In considering the relationship of the parties, it is also important to recognize that none of the defendants were in a superior position to understand and appreciate any risks involved in this voluntary activity. 

This brings us to the next Hopkins factors, the nature of the attendant risk and the ability of the parties to exercise care.  Ibid.  As we have stated, the potential risks were as well-known to plaintiff as to defendants.  Plaintiff himself had an ample opportunity to exercise care in avoiding the risk.  He could have called for a time-out or turned his back to the approaching team.  It is true that Gary could have, as plaintiff argues, provided him with an instruction on procedures for defogging the mask, but it is equally true that plaintiff could have chosen to temporarily leave the field of play briefly once his mask became fogged.  Thus, plaintiffs own ability to exercise due care was equal to, or greater than, that of Linda, Gary or Joseph. 

In our view, the present case presents factors similar to those articulated in Tighe.  Any risk inherent in plaintiff removing his mask in the midst of the paintball scrimmage was not something known to the landowners and their son but unknown to plaintiff.  The record demonstrates that plaintiff knew a paintball pellet could cause severe injury, knew that the purpose of the mask was to protect him from that injury and knew that removing the mask would expose him to the very risk the mask is designed to avoid.   

It has long been the rule in this State that a defendant has no duty to eliminate a risk that is inherent in the sport itself.  Brett, supra, 144 N.J. at 499.  Under such circumstances, we conclude that plaintiff, who was well aware of the risks of removing the mask and was well aware of the purposes the mask was designed to serve, should not be permitted to impose upon his social hosts Gary and Linda, or the games organizer, Joseph, a duty to give him instruction in the use of his own mask.  Having applied the Hopkins factors, we conclude that simply because the paintball competition took place on Gary and Lindas land, and was organized by Joseph, is no reason to impose upon them a duty to provide the sort of instruction plaintiff asserts they owed.  Indeed, courts in the three states that have considered this issue have reached the same conclusion, namely that there is no duty on the part of a person who organizes a paintball game to instruct participants on methods for defogging the face mask.  See Leonard v. Behrens, 601 N.W.2d 76, 81 (Iowa 1999); Schneider v. Erickson, 654 N.W.2d 144, 151 (Minn. Ct. App. 2002); Taylor v. Hesser, 991 P.2d 35, 39 (Okla. Civ. App. 1998).



            Having determined that neither Gary, Linda nor Joseph owed plaintiff a duty to instruct him on the technique for defogging his mask, we now decide whether the orders under review should be affirmed, reversed or modified.  The grant of summary judgment to Linda and Gary in the order of September 26, 2008 has already resulted in a judgment in their favor.  Although we agree with that result, we do so for different reasons.  Nonetheless, we affirm judgments not reasons, Isko v. Planning Bd., 51 N.J. 162, 175 (1968), and therefore we affirm the September 26, 2008 order. 

            As to Joseph, we conclude that the judge erred by denying Josephs motion for summary judgment, as Joseph had no duty at all, and therefore it was error to subject him to a trial during which plaintiff was required to prove reckless conduct.  We thus agree with the claim Joseph advances in his cross-appeal.  However, because the jury rendered a verdict of no cause in favor of Joseph, the February 18, 2009 final judgment dismissing  plaintiffs complaint with prejudice resolves all issues in dispute between plaintiff and Joseph.   

            Affirmed on the appeal and reversed on the cross-appeal.

[1] Joseph Dvorak died during the pendency of the litigation in the Law Division.  His estate is named as the respondent and cross-appellant in this appeal.  We will, however, refer to him as Joseph rather than as "the estate."

[2] The device is described in the record variously as a "face shield," "face mask" and "goggles."  Plaintiff described it as "goggles with a full extended piece that covers the mouth."  There was no hinge separating the goggles from the portion that covered the mouth.

[3] Linda and Gary later dismissed their third party complaint against the juvenile and his parents.  That complaint has no bearing on the issues presented in this appeal.

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