| Marino v Bingler |
| 2009 NY Slip Op 01623 [60 AD3d 645] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 28—Michael P. Marino et al., Appellants, v FredBingler et al., Respondents. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (William S. Badura of counsel), forrespondents Fred Bingler and Jill Bingler. Hiscock & Barclay, LLP, Albany, N.Y. (David B. Cabaniss and Mark T. Whitford, Jr., ofcounsel), for respondents Timothy Peloso and Sharon Peloso.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Orange County (Alessandro, J.), dated December 19, 2007, which grantedthe motion of the defendants Fred Bingler and Jill Bingler, as parents and legal guardians ofFrank Bingler, and the separate motion of the defendants Timothy Peloso and Sharon Peloso,individually and as parents and legal guardians of Brittany Peloso, for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting themotion of the defendants Fred Bingler and Jill Bingler, as parents and legal guardians of FrankBingler, for summary judgment dismissing the complaint insofar as asserted against them, andsubstituting therefor a provision denying that motion; as so modified, the order is affirmed, withone bill of costs payable by the defendants Fred [*2]Bingler andJill Bingler to the plaintiffs, and one bill of costs payable by the plaintiffs to the defendantsTimothy Peloso and Sharon Peloso.
The plaintiff Michael P. Marino brought this action individually and on behalf of hisdaughter, the infant Nicole M. Marino (hereinafter together the plaintiffs). Nicole was injuredwhen she was struck in the eye by a paintball fired by Frank "Robbie" Bingler (hereinafterRobbie), the son of the defendants Fred Bingler and Jill Bingler. The incident occurred in a fieldlocated on the property of the defendants Timothy Peloso and Sharon Peloso. The plaintiffsalleged that Nicole's injury was caused by the negligent and reckless conduct of Robbie, and thenegligence of the Pelosos in permitting a dangerous condition to exist and allowing the use of adangerous instrumentality on their property. The defendants' separate motions for summaryjudgment dismissing the complaint insofar as asserted against them were granted by the SupremeCourt. We modify.
It is undisputed that Nicole fired at least one paintball at Robbie's buttocks while he wasurinating, apparently as a joke or prank. There was deposition testimony from severalparticipants that there was a cessation of all paintball activity for up to 10 minutes between thetime that Nicole shot Robbie and when the injurious shot was fired. According to Nicole, shewas standing in the field with her mask off when she was unexpectedly struck by a number ofpaintballs fired by Robbie. In contrast, Robbie testified that everyone had put on their masks, andas he was walking into the woods, Nicole began firing upon him, at which time he returned fire,striking Nicole in the eye.
On the issue of primary assumption of risk, the Binglers established, prima facie, theirentitlement to judgment as a matter of law by showing that Nicole was aware of and appreciatedthe risks of injury involved in paintball (see Cook v Komorowski, 300 AD2d 1040, 1041[2002]; see also Morgan v State of New York, 90 NY2d 471 [1997]). However, theplaintiffs raised a triable issue of fact regarding whether play had commenced when the injuryoccurred. A sports participant does not assume the risks inherent in that sport before play hasbegun (see Hawkes v Catatonk Golf Club, 288 AD2d 528, 529 [2001]; Vogel vVenetz, 278 AD2d 489 [2000]). However, the game need not have formally commenced tofind that a participant assumed the risk (see O'Neill v Daniels, 135 AD2d 1076 [1987]).Here, the Supreme Court incorrectly determined, as a matter of law, that Nicole initiated play byfiring the first shot. The participants' accounts differed as to events that transpired between thetime that Nicole fired a shot at Robbie's buttocks and the time she was injured; however, bothNicole and Robbie testified at their depositions that the players gathered and talked for severalminutes or more after this initial shot was fired. As to when Nicole was struck in [*3]the eye, there was conflicting testimony about whether the gamehad started, whether Nicole had put on her mask to begin play, and whether Nicole had beenexchanging fire with Robbie at the time she was injured. Under such circumstances, the SupremeCourt should have denied the Binglers' motion for summary judgment dismissing the complaintinsofar as asserted against them.
However, the Supreme Court properly awarded summary judgment to the Pelosos. Where aninjury results "not from any unsafe condition defendant left uncorrected on his [or her] land, butas a direct result of the course plaintiff and his companions decided to pursue . . .the law impose[s] no duty on defendant as landowner to protect plaintiff from the unfortunateconsequences of his [or her] own actions" (Macey v Truman, 70 NY2d 918, 919 [1987]).The Pelosos established their entitlement to judgment as a matter of law by demonstrating thatthe injury did not result from a physical defect of their property, and they neither provided any ofthe paintball equipment, nor exercised any control or supervision over the paintball game(see Jarvis v Eastman, 202 AD2d 826 [1994]). In opposition, the plaintiffs failed to raisea triable issue of fact (id.).
The plaintiffs' remaining contentions are without merit. Spolzino, J.P., Covello, Balkin andBelen, JJ., concur.