Now this is a bizarre potential tort case out of Britain. A 26-year-old woman’s gel breast implant exploded when hit by a paintball traveling at 190mph. The question is whether Paintzone Park near Croydon, or the paintball gun manufacturers, should be liable under a strict liability or negligence theory.

There does not appear to be a lawsuit in the works, but the case presents a novel question.

The woman initially thought she had a bad bruise but her doctor’s later informed her of the rupture.

UKPaintball runs the Paintzone Paintball Park near Croydon, South London and its spokesperson said “Part of the fun of paintball is that it hurts a bit when you get shot but in all the years we’ve been going we’ve never seen an incident like this.” The spokesperson added that women with implants will be given extra padding in the future.

I have occasionally played — and enjoyed — paintball and I can attest to the bruises left by the games. I have always been surprised by the also total lack of protection beyond headgear. It is a business clearly built around a robust view of assumption of the risk.

Regardless of whether the liability theory is negligence or strict liability, assumption of the risk remains a common defense. As the company notes, part of the fun of paintball is that it mimics combat. Yet, few people would assume that internal organs or prosthetics or implants could be affected — also indicated by the company itself. The question is how much of an impact people expect — particularly if this is their first time. I was very surprised how much these things hurt. On two occasions, the balls broke my skin and caused bleeding. I still enjoyed the games and returned, but it was a surprise. New players rely on the facility to warn them of the risks, though this seems an exceptionally rare injury.

There are obviously plenty of sports and recreations where there are obvious dangers for injury ranging from mechanical bulls to bungee jumping to football.

One of the oldest English cases on sports liability is still taught in most American torts classes: Stone v. Bolton, 1 K.B. 201 (C.A. 1950). In this case, Stone was hit on the head by a cricket ball that flew an unusual (but not unheard of distance) into her backyard. She used in both nuisance and negligence over the lack of a sufficiently high wall to protect her and other citizens. The lower court ruled for the defendant — and of course the national sport of cricket. However, the appellate court found a basis for negligence given the prior hits at that distance.

Of course, there could be a claim that this is an ultrahazardous activity warranting strict liability — though it does not appear that serious injuries are common. Strict liability is more promising against the manufacturer of the paintball gun for a device that fires at too high a velocity. However, the company has a good argument that individuals can wear as much or as little protection as they want. In that sense, the case reminds me of Linegar v. Armour of America, 909 F.2d 1150(10th Cir. 1990) where an officer was shot a bulletproof vest in an area under the arm without protection. However, the court found that the risk of this design was obvious and that consumers can pick the degree of protection that they want from such vests.

The most promising claim remains against the paintball facility and whether it has a duty to warn and make available protection for individuals — particularly new players.

Source: Sun

Jonathan Turley