I badly injured my eye during a paintball weekend battle. A paintball had knocked loose my goggles and paint went into my eye. Do I have a claim?
You may or may not, depending on two issues. One issue is the standard of care for paint ball parks. The second issue is assumption of risk.
Standard of Care
The standard of care is the measuring stick a jury must weigh the conduct of the paintball park. I think most people understand what paintball is. But I do not think most people understand what type of safety measures paintball parks follow. Thus, you probably would need to hire a safety expert who knows what is standard for the industry.
Although not conclusive, violation of customary safety standards in a business is evidence to prove negligence. Trimarco v Klein, 56 NY2d 98, 451 NYS2d 52 (1982); Vasquez v Nassau, 91 AD3d 855, 938 NYS2d 109 (2d Dept 2012). Thus, your expert would have to testify about his or her experience and training in the industry. Then the expert would have to render an opinion whether the safety procedures your paintball park followed fell below industry standards. You can then argue to a jury that the paintball park was negligent.
Of course industry standards can work against you as well. For example, did you follow all the safety rules while you were playing paintball or did you put yourself at risk? At the very least, the paintball park may be able to argue that you too were also negligent not following safety rules.
Assumption of Risk
In its modern form, assumption of risk is a doctrine which mandates a jury consider the injured party’s knowledge (either actual or knowledge the person should have had when participating in a dangerous activity) contributed to the injury. Custodi v Amherst, 20 NY3d 83, 957 NYS2d 268 (2012); Trupia v Lake George Central School Dist., 14 NY3d 392, 901 NYS2d 127 (2010).
Thus, if you knowingly put yourself in harm’s way, a jury might find you at least are partially responsible for the injury.
Finally, you should consider if you signed any kind of agreement before you began playing paintball. As discussed in a prior post, if the agreement prohibits you from suing the paintball park, it is unenforceable. NY General Obligations Law 5-326. However, the agreement may spell out certain safety rules that you should follow. If you signed that agreement acknowledging those rules, then it would be difficult for you to argue that you had no idea about any safety rules. Thus, even though a jury would never hear or see the agreement itself, the paintball park can point to any safety rules that you did not follow that lead to your injury.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.