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02/21/89 Richard Moran, v. George Lala Et Al.

February 21, 1989





534 N.E.2d 1319, 179 Ill. App. 3d 771, 128 Ill. Dec. 714 1989.IL.204

Appeal from the Circuit Court of Lake County; the Hon. Wallace B. Dunn, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.


Plaintiff, Richard Moran, appeals from a jury verdict in favor of the defendants, George Lala and Larry Castle, denying him recovery for personal injuries suffered when he was shot in the right eye while a business invitee on the premises of the defendants. On appeal, plaintiff raises the following issues: whether the trial court committed reversible error in refusing plaintiff's instructions on concurrent causation; and whether the jury verdict in favor of defendants is against the manifest weight of the evidence. We affirm.

Plaintiff was invited by Robert Boles, his daughter's boyfriend, to participate in war or survival games which were held on defendants' premises. The games are combat-type games played by two teams in a wooded area. Each team attempts to capture the other team's flag. Each player is armed with a paint pellet CO

Plaintiff testified that he was familiar with fire arms and hunted every day of the hunting season, but he had never participated in war games. On June 2, 1985, he, Boles, and two other men, later identified as Joe Twomey and Danny Ross, arrived at the site where the war games were to be played. After waiting for everyone to get there, either Lala or Castle requested that everyone sign a document which was captioned a "Rental Agreement." The rental agreement stated as follows:

"ALWAYS WEAR GOGGLES IN OR NEAR THE PLAYFIELD I am completely aware of all of the risks involved and that there is the possibility of additional risk if the GAME EQUIPMENT does not function properly. I also indemnify the lessor INTERNATIONAL GAMES AND SUPPLY against, and shall hold both harmless from, any and all claims, actions, suits, procedures, cost expenses, damages and liabilities, including attorneys fees arising out of or in connection with, or resulting from playing the GAME and/or the equipment. Including without limitation, the manufacture, selection, delivery, possession, use or operation of the equipment and the natural environment. I the under signed knowing these facts nevertheless wish to assume any and all risks. I hereby waive and release the lessor on behalf of my estate and all others who may play the GAME with me. I also undertake to always play the GAME only in accordance with the safety instructions, rules and suggestions presented to me. Knowing full well the intense physical/mental exertion required to play the GAME, I further warrant that I have no medical problems that this increase in physical/mental exertion would cause me or others harm. I have read and fully understand the terms of this lease agreement. THIS IS FULLY INTENDED TO BE A LEGALLY BINDING CONTRACT. IF YOU HAVE ANY DOUBTS CONCERNING ANY ASPECT OF ITS CONTENTS, CONSULT AN ATTORNEY BEFORE SIGNING IT !!! I STATE THAT I AM AT LEAST 18 YEARS OF AGE AND IN GOOD HEALTH.

Plaintiff glanced at the rental agreement for a few seconds before signing it. As the participants signed the document, their names were called off, and they were issued guns and pellets. According to plaintiff, no goggles were issued at that time. After plaintiff had done some target shooting, someone told him that he better wear goggles, so he went over to a table and picked up a pair from a big box. Plaintiff put on the goggles to make sure they fit. He had them on for less than a minute, then he put them up on his forehead like most of the other participants had done.

Plaintiff stated that at one point, he was told by either Lala or Castle that on the playing field goggles were to be worn at all times, and there was to be no smoking or drinking. Except for how to play the game, plaintiff did not recall any other orientation or other explanation regarding the rental agreement.

Plaintiff was standing in a large circle with the other participants. He lit a cigarette. He then felt pain in his right eye area. He covered his face with his hand. He felt that the area was wet, and he realized that he had been shot. Someone wiped his face off with a wet rag. While he was being cleaned up, the remains of part of a pellet were discovered near his right eye. He then was driven to the hospital where he stayed overnight.

On cross-examination, plaintiff admitted that he had not only signed the rental agreement but, as requested, had printed his name, address, and phone number on the document as well. Plaintiff did not remember being told that the rental agreement had to be signed before the participant would receive the equipment and could play. Plaintiff also stated that they were standing in the group while teams were being selected just prior to going out into the field.

Plaintiff did not know who fired the shot that struck him, nor did he know if the shot was intentional or an accident. The shot that struck him was not fired from the target practice area but from another group of individuals not included in target practice. Plaintiff did recall being advised that during the game, even with goggles on, the participant should not shoot at the face but only the body.

Robert Boles testified on behalf of plaintiff as follows. He had participated in war games four or five times prior to June 2, 1985, and was familiar with the rules for playing the game. Upon arriving at the defendants' premises, he and plaintiff and the other two men unloaded their coolers and stood around talking with the other participants, about 40 in all.

Castle and Lala then had everyone sign a document Boles referred to as a "release," saying that they were not responsible for personal injuries. The participants were told to read the release. After signing the release, the guns were given out after the fee was paid. The participants were given a tube of paint, and then someone handed out goggles. Boles got his goggles right after getting his other equipment.

After getting his gun, Boles walked back to the grassy area called the "free zone." He wore his goggles on top of his head, as were most of the participants. He showed plaintiff how to load the gun.

Defendants then advised the group that the goggles were to be worn at all times on the field, but they could be taken off when the participants came back in from the field. After the orientation, Boles was standing in the free area smoking a cigarette when plaintiff collapsed. At that time, Boles' goggles were on top of his head. Castle and Lala came over to the plaintiff; neither of them was wearing goggles.

On cross-examination, Boles testified that he had talked to plaintiff about the games and explained them to him.

According to Boles, prior to the pistols being issued, the defendants dry-fired each one. Then the CO

Boles admitted that at some point before the release was signed, it was explained that the defendants would not be responsible for injuries that occurred and that were reflected in the rental agreement. As far as Boles observed, everyone who paid the fee and received a gun also received eye goggles. After the guns had been passed out, the defendants provided instructions as to how to load the gun. Boles did not know who was holding the gun that discharged the pellet that struck plaintiff.

David Mayer testified for plaintiff as follows. He was a participant in the war games on defendants' premises on June 2, 1985. He had played such games four or five times before. After he arrived at the game site, he signed a document. Then the guns and ammunition were handed out. He did not receive goggles at that time, nor was an orientation presented at that time.

Mayer proceeded to get five to six people together to form a "little army." About 10 to 15 minutes later, he went over to a table and got a pair of goggles from a box. He then put them on. Mayer was walking towards the playing field, with his goggles on, talking to other people when plaintiff was struck. He saw plaintiff grab his face and go down. Mayer walked over to him and observed that plaintiff was covered with paint across his face and eye and was holding his eye. Plaintiff was in the free zone when he was struck.

After the incident, Mayer stayed on to play the game. If a player was hit during the game, he returned to the free zone. Once there, Mayer observed that the participants did not wear their goggles.

On cross-examination, Mayer admitted that because he had played the game before and knew that he would be signing such a document as the rental agreement, he did not pay any attention to any Discussion regarding that document. After the selection of the team, the next phase would be to "fight the war," more or less. Mayer did not know who shot plaintiff, or if it was accidental or intentional.

William J. Katoch, Jr., testified on behalf of plaintiff as follows. He also had had prior experience playing such games. He and some friends attended the games at defendants' site on June 2, 1985. He signed in on the sign-up sheet which he did not read, providing his name and address. The rules of the game were also explained. Katoch was one of the first to receive his gun. It was not until after a few people had gotten their guns that goggles were distributed. According to Katoch, everyone had to help themselves to the goggles. Katoch wore safety glasses rather than goggles, because safety glasses fogged up less. He wore them on top of his head.

Katoch was standing a few feet away from plaintiff when he was shot. He did not hear anything but observed plaintiff drop to his knees, holding his face. He did not notice where plaintiff's goggles were. Katoch did some target shooting and thought he probably was wearing his safety glasses while he was shooting.

On cross-examination, Katoch testified that as far as he could observe, everyone who was supposed to wear goggles had them on. The witness did not know whether ...

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