McCune went to the Myrtle Beach Indoor Shooting Range to participate in a paintball game. Before being allowed to participate, McCune signed and dated a waiver that purported to release the Range from liability for all known or unknown dangers for any reason with the exception of gross negligence on the part of the Range. The language of the release provided in part:
I, for myself and on behalf of my heirs HEREBY RELEASE AND HOLD HARMLESS THE AMERICAN PAINTBALL LEAGUE (APL), THE APL CERTIFIED MEMBER FIELD, the owners and lessors of premises used to conduct the paintball activities, their Officers, officials, agents, and/or employees, WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, except that which is the result of gross negligence and/or wanton misconduct.
I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, FULLY UNDERSTANDING ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.
During her paintball session, McCune used a mask provided by the Range. During her play, the mask was loose and ill fitting. She tried to have the mask tightened or replaced several times and an employee of the Range attempted to properly fit the mask for McCune. While playing in a match, McCune caught the mask on the branch of a tree.
The tree was obscured from her field of vision by the top of the mask. The mask was raised off her face because it was loose, and provided no protection against an incoming paintball pellet. The pellet struck McCune in the eye, rendering her legally blind in the eye. McCune brought a negligence suit against the Range. The Range filed a motion for summary judgment, alleging the waiver barred liability.
Will the liability waiver be upheld?