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Schneider v. Erickson12/17/2002
of their game. In Rusciano, we held that, although the plaintiff assumed the risk of injury when he stepped out in front of an oncoming automobile, he did not assume the enlarged risk of the driver's improper conduct and failure to brake. Id. at 272-73. Appellant argues that, as in Rusciano, respondent in this case failed to take the necessary steps to avoid breaking the rules and injuring appellant. But clarifying Rusciano in a later case, we noted that the driver in Rusciano had actually accelerated before hitting the plaintiff and stated that in order for there to be an enlargement of the risk there must be a "new risk" and "only a limited time to react." Jussila, 556 N.W.2d at 237.
Here, respondent created no additional risks to appellant that were not in existence prior to appellant taking off his eye protection. It is undisputed that respondent did not aim for appellant's head or intentionally try to hit appellant in the head. There is no evidence in the record demonstrating that respondent's actions in shooting appellant in the eye were analogous to the defendant's actions in Rusciano when he presented a new and enlarged risk to the plaintiff by accelerating his automobile. The district court correctly determined that respondent did not enlarge the risk to appellant.
Because the district court correctly concluded as a matter of law that respondent did not enlarge the risk to appellant, the district court correctly concluded as a matter of law that appellant primarily assumed the risk of being hit in the eye with a paintball.
II.
Appellant asserts that the district court improperly granted summary judgment for respondent because there are genuine issues of material fact regarding whether appellant primarily assumed the risk of being hit in the eye with a paintball.
here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions. DLH, 566 N.W.2d at 71.
No genuine issue of material fact exists " here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. at 69.
Appellant argues that there are many genuine issues of material fact in this case. He points to fact issues such as the accuracy of the paintball guns, how well respondent could see through his goggles, how much experience and knowledge appellant actually received from watching games of paintball on television and reading promotional literature. While appellant points to some fact issues, he is unable to identify any issues of fact that are material to the issue of primary assumption of the risk. When the material facts are undisputed, as they are here, and reasonable people can draw only one conclusion, assumption of the risk is a question of law for the court. Schroeder v. Jesco, Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973). The district court correctly determined that there are no genuine issues of material fact and properly granted respondent's motion for summary judgment.
DECISION
The district court properly granted respondent's motion for summary judgment based on primary assumption of the risk.
Affirmed.
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