Berry v. Lynch, Docket No. A-3141-08T3 (N.J. Super. 5/27/2010), Docket No. A-3141-08T3.
| Decision Date | 27 May 2010 |
| Docket Number | Docket No. A-3141-08T3. |
| Parties | JASON BERRY, Plaintiff-Appellant/Cross-Respondent, v. LINDA LYNCH, a/k/a LINDA LYNCH DVORAK, and GARY DVORAK, Defendants-Respondents/Cross-Respondents, and ESTATE OF JOSEPH DVORAK, Defendant-Respondent/Cross-Appellant, and LINDA LYNCH, a/k/a LINDA LYNCH DVORAK, GARY DVORAK, Third-Party Plaintiffs, v. JACOB GILLESPIE, SHEILA RIBECCA and NICHOLAS RIBECCA, Third-Party Defendants. |
| Court | New Jersey Superior Court |
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-35-07.
D'Arcy 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).
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.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 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 goggles2 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?
A. No.
Q. You didn't 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 plaintiff's injuries. They also filed a crossclaim against Joseph's estate and a third party complaint against the parents of the juvenile who fired the paintball into plaintiff's 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 plaintiff's allegations raised a genuine issue of material fact about defendants' reckless conduct, defendants were not entitled to dismissal of plaintiff's 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 Linda's 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 Joseph's motion because, as the organizer of the game, his duty was greater. The judge denied plaintiff's 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 plaintiff's complaint with prejudice.
On appeal, plaintiff argues:
I. THE TRIAL COURT ERRED IN HOLDING THAT THE PLAINTIFF WAS REQUIRED TO PROVE THE HEIGHTENED STANDARD OF RECKLESS CONDUCT OF THE DEFENDANTS BECAUSE DEFENDANTS WERE NOT SUED IN THEIR CAPACITY AS CO-PARTICIPANTS.
II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO GARY DVORAK AND LINDA DVORAK RELYING ON THE IMPROPER RECKLESS CONDUCT STANDARD.
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...
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