Appeals court rejects teen's paintball injury claims

Boy filed lawsuit alleging friend’s family was negligent and reckless in eye shooting

By Todd Richmond
Associated Press

MADISON, Wis. (AP) — A boy who shot his best friend in the eye during a paintball game isn’t liable for the injury, a state appeals court ruled Tuesday.

Alex Freese, 13, Jett Houston, 14, and other members of their baseball team spent a day in July 2008 playing paintball in the woods on teammate Jacob Stelter’s parents’ land in Polk County, according to court documents.

Stelter’s 20-year-old brother, Kyle, was the only adult home during the games, according to a brief filed by Freese’s attorneys. He warned the players not to take off their protective facemasks.

Houston, though, removed his mask during a time-out to let another player leave the game. Freese, who was hiding about 45 yards away, shot Houston in the eye. Freese said later he didn’t realize anyone had called a time-out.

Houston suffered a detached retina and still has cloudy vision in that eye, said his attorney, Jim Lindell.

The boy filed a lawsuit alleging Freese was negligent and reckless. The lawsuit also accused the Stelter family of negligence, contending Kyle Stelter set up the games but wasn’t in the woods supervising when the shooting happened.

Polk County Circuit Judge Molly E. Galewyrick dismissed the claims against Freese. The judge pointed to a section of state law that declares participants in team contact sports are liable for injuries only if they hurt someone on purpose or acted recklessly. Freese wasn’t reckless and is therefore immune from liability, the judge ruled.

Houston’s attorneys argued on appeal those statutes don’t apply. Paintball isn’t a contact sport because players don’t touch each other and the boys’ games didn’t involve organized teams. They also contended Freese should have known a time-out had been called and realized Houston had removed his mask.

The 3rd District Court of Appeals agreed with the circuit judge. Physical contact in paintball comes when players shoot each other with pellets and a group of players doesn’t need a coach, uniforms or a schedule to qualify as a team under the law, the court said.

Nothing indicates Freese was reckless, the court said. The players weren’t supposed to remove their masks, Freese testified he never heard anyone call time-out and one of Houston’s teammates testified Freese was so far away he very well may not have heard the time-out call, the court   noted.

Freese’s attorney, Pat Heaney, praised the decision, saying it reinforces the statutes that ensure people can play contact sports without being sued.

Lindell called the appeals ruling “unfortunate.” He said he hadn’t had a chance yet to speak with Houston’s family about possibly appealing to the state Supreme Court.

The portion of Houston’s lawsuit against the Stelter family is still pending. Lindell said Kyle Stelter allowed the outing to become a “free-for-all,” and he might seek up to $250,000 in damages.

“I still think we have a solid case,” he said.

 James Robert Johnson, the family’s attorney, maintained that Kyle Stelter told the boys not to remove their masks and watched the game from near the family’s house. There’s no vantage point that affords a full view of the playing area, Johnson said.

“Kyle went above and beyond exercising care in this situation,” he said.

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