Leon Overom, et al., Appellants, vs. State Farm Mutual Automobile Insurance Company, Respondent.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C7-99-235

Mark Kaltenbach,
Respondent,

vs.

Splatball, Inc.,
Appellant.

 Filed September 7, 1999
 Reversed
Harten, Judge

Hennepin County District Court
File No. 97015804

Bruce L. McLellan, Plunkett, Schwartz, Peterson, P.A., 10 Second Street NE, Suite 114, Minneapolis, MN 55413 (for respondent)

Robert G. Haugen, Jenell M. Matthews, Johnson & Lindberg, P.A., 8500 Tower, Suite 1610, 8500 Normandale Lake Blvd., Minneapolis, MN 55437-3828 (for appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.[*]

U N P U B L I S H E D   O P I N I O N

 HARTEN, Judge

When appellant, the owner of a paintball recreational facility, was sued by respondent, an injured paintball player, appellant moved the district court for summary judgment on the ground that the release respondent signed precluded appellant's liability for his injury. Summary judgment was denied; the matter was tried to a jury, which found appellant liable. Because we hold that the release precluded appellant's liability as a matter of law, we reverse.

 FACTS

Respondent Mark Kaltenbach went to play paintball at the facility owned and operated by appellant Splatball, Inc. Kaltenbach, like all Splatball players, was required to sign a release before playing. The release directs players to read before signing and provides in relevant part:

4. I, for myself and on behalf of my heirs, assigns, personal representatives and next of kin, HEREBY RELEASE AND HOLD HARMLESS THE AMERICAN PAINTBALL LEAGUE (APL), SPLATBALL INC., the owners and lessors of premises used to conduct the paintball activities, their officers, officials, agents and/or employees ("Releasees"), 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.

5. I understand and agree that this Release of Liability Agreement covers each and every paintball activity and event in which I participate hereafter.

I HAVE READ THIS RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND SIGN IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.

Prior to the beginning of his third paintball game, Kaltenbach shot a colleague, Peter Rivard, in the back. Later, when Kaltenbach was eliminated from the third game, he fired practice shots on the practice range for a few minutes, then returned to the safe zone and removed his goggles. Rivard, who was about 30 feet away, noticed Kaltenbach, and fired at him. The shot hit Kaltenbach in the eye, causing him to lose his sight in that eye.

Kaltenbach settled with Rivard and brought this action against Splatball, alleging negligence. Splatball moved for summary judgment, arguing that the release Kaltenbach signed precluded Splatball's liability. The district court denied the motion. Following trial, a jury found Splatball negligent; Splatball's motions for a new trial or judgment notwithstanding the verdict were denied.

Splatball seeks review of the determination that the release is ambiguous and unenforceable.[1]

 D E C I S I O N

Whether an agreement is ambiguous is a question of law in the first instance. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982). We therefore review de novo the district court's determination that the release is ambiguous and therefore unenforceable. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982) established a test for the enforceability of releases for recreational activities. The release in that case provided that members

expressly forever release and discharge the said Spa Petite from all such claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees.

 Id. at 922. The release was upheld, first because it unambiguously released Spa Petite only from negligence claims, and second because its enforcement did not contravene public policy, i.e. there was no disparity of bargaining power between the parties, and the service being provided was not a public or essential service. Id. at 923-25.

The same is true of the release here. It is unambiguous in releasing appellant only from negligence claims; in fact, it specifically excludes claims resulting from "gross negligence and/or wanton misconduct." There was no disparity between the parties because appellant is not the only provider of paintball facilities, and providing paintball facilities is not a public or essential service. Splatball's release passes the Schlobohm test.

This court previously applied the test in Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). Malecha involved a release stating a skydiving club would not be

held responsible or liable for any negligence implied or otherwise, or personal injury, or death, or property loss, or damage suffered or sustained by [a skydiver] in connection with or arising out of or resulting from any or all parachuting or skydiving engaged in by [the skydiver] * * *.

Id. at 728. The release was upheld, in part because it was

limited to releasing the Skydiving Club from liability for acts of negligence. While we recognize that some of the language in the agreement could be construed to extend beyond acts of negligence, the clause considered in Schlobohm also included broad language. There, the supreme court determined that the clause specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only. The agreement here is susceptible to that same interpretation. Further, as in Schlobohm, Malecha alleged only that the Skydiving Club had been negligent. He did not allege any damage from intentional or willful acts of the Skydiving Club.

 Id. at 729-30 (citations and quotation omitted). The same is true here. There has been no allegation of an intentional or willful act on the part of Splatball, and in any event, the release here, like those in Schlobohm and Malecha, "exonerate[s Splatball] from liability for acts of negligence and negligence only." Id. Moreover, the Splatball release specifically excludes damage "which is the result of gross negligence and/or wanton misconduct."[2]

In applying the second part of the Schlobohm test, the Malecha court rejected the argument that because skydiving is regulated it is a public or essential service and held that "parachute jumping is not an activity of great importance to the public and it is not a practical necessity to anyone." Id. at 731. The same would apply to paintball. Malecha, like Schlobohm, compels the conclusion that the release precludes Splatball's liability.

Because Kaltenbach unambiguously released Splatball from liability for "any and all injury" from "each and every paintball activity and event," we hold that as a matter of law Splatball is not liable for Kaltenbach's injury.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Splatball also challenges the denial of its posttrial motions, and Kaltenbach challenges the district court's determination that ambiguities in the release presented fact issues for the jury. Because our holding that the release precluded Splatball's liability renders these issues moot, we will not address them.

[2] This language is also the basis for distinguishing Nimis v. St. Paul Turners, 521 N.W.2d 54, 58 (Minn. App. 1994) in which a release without such an exclusion but including the phrase "or otherwise" was found ambiguous.