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Express assumption of the risk sounds in contract and occurs when the parties agree beforehand, either in writing or orally, that the plaintiff will relieve the defendant of his or her legal duty toward the plaintiff.
Before being allowed to participate in a paintball game at the range, appellant Christine McCune signed a general waiver of liability. Her mask was loose and ill fitting. Despite her own and the range's employees' failed attempts to tighten or replace the mask, she played the game. After the mask was caught on a branch, it lifted from the player's face and provided no protection against an incoming paintball pellet, which struck her eye. Appellant brought negligence and strict liability theories of recovery against the range that were based on the mask's failure to protect her. The range received summary judgment on arguments that the waiver and the player's own comparative negligence barred recovery. Appellant challenged the decision.
Could the range be held liable for the injuries sustained by the appellant in a paintball game at the range?
The court affirmed the summary judgment grant in the range's favor, holding that the waiver explicitly and unambiguously limited the range's negligence liability. The court held that the appellant released the range from all liability, including injuries due to the range's own negligence, and she expressly assumed both known and unknown risks that were related to the paintball game. Since appellant expressly assumed those risks in order to participate in the game, the waiver prevented recovery on her claims.