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Martinez v. Skirmish

May 21, 2009


The opinion of the court was delivered by: Padova, J.


This action was initiated by Jorge Martinez, who has brought claims for negligence, strict liability, breach of the implied warranties of merchantability and fitness for a particular purpose, and gross negligence against Defendant Skirmish, U.S.A., Inc. ("Skirmish"), arising from the injury he suffered when he was hit in the eye with a paintball at Skirmish's Jim Thorpe, Pennsylvania facility on March 19, 2006. Skirmish has filed third-party complaints for contribution and indemnity against Tippmann Sports, LLC ("Tippmann"), a manufacturer of paintball guns, and Procaps Direct, Inc. and Procaps L.P., which companies manufacture and/or distribute paintballs and goggles.*fn1 Before the Court are a Motion for Summary Judgment filed by Tippmann and a Motion for Partial Summary Judgment filed by Skirmish. For the reasons that follow, both Motions are granted.


On March 19, 2006, Martinez played paintball at Skirmish's facility in Jim Thorpe, Pennsylvania, as part of a group that had traveled to Jim Thorpe from New York. (1st Am. Compl. ¶ 12; Skirmish Ans. ¶ 12; Martinez Dep. at 21-22.). Paintball is an activity in which two or more teams, or separate individuals, engage in mock war games. (1st Am. Compl. ¶ 6; Skirmish Ans. ¶ 6.) Participants shoot their opponents with paintballs, which are gelatin encased balls of dye, that are propelled from paintball guns by the use of carbon dioxide gas or compressed air. (1st Am. Compl. ¶ 6; Skirmish Ans. ¶ 6.)

Martinez was permanently blinded in his right eye during the fifth game he played on March 19, 2006. (Martinez Dep. at 145-46, 175.) The group of people he had traveled with from New York had been divided into two teams who were playing a capture-the-flag game against each other. (Id. at 175, 180-81.) Martinez had been running across the playing field, trying to capture the other team's flag, when his goggles slipped down his face until the top of the goggles rested on the tip of his nose. (Id. at 119, 180, 183, 187.) He was shot in the right eye with a paintball immediately after his goggles slipped, thereby leaving his eyes unprotected. (Id. at 183-84, 187.) Martinez did not see the person who shot him in the right eye and does not know who it was. (Id. at 185; Martinez Aff. ¶ 2.) He also does not know what kind of paintball gun was used to shoot him. (Martinez Dep. at185.) No one else has identified the person who shot Martinez or the type of paintball gun that was used to shoot him. (Lukasevich Dep. at 70-71, Crespo Dep. at 39-42, 52; Reyes Dep. at 89; Fink Dep. at 45.)

Skirmish sells and rents paintball equipment, including paintball guns, goggles and paintballs, for participants who do not have their own equipment. (Martinez Dep. at 35, 43, 45-46; Lukasevich Dep. at 13, 17; Crespo Dep. at 46.) At the time Plaintiff was injured, Skirmish only rented Tippmann guns. (Paul Fogel Dep. at 88.)

Elvis Crespo organized the March 19, 2006 paintball trip from New York, bringing 45 people to Skirmish's Jim Thorpe facility. (Martinez Dep. at 22-23, 32-33; Crespo Dep. at 45.) Crespo brought his own paintball gun, a Tippmann A5, to Skirmish's facility that day. (Crespo Dep. at 45.)

Ten or 15 people from Crespo's 45-person group brought their own paintball guns. (Id. at 45-46.) Most of those guns were manufactured by Tippmann. (Id. at 46.) Two or three of the paintball participants from Crespo's New York group brought paintball guns that were not manufactured by Tippmann. (Id. at 46.)

Martinez has asserted strict liability and breach of implied warranty claims against Skirmish with respect to the paintball gun used to shoot him. The relevant paragraphs of the First Amended Complaint allege as follows:

40. The paintball gun or guns rented out by Skirmish or sold by Skirmish to others and used to shoot Plaintiff in the eye were in a defective condition and unreasonably dangerous to Plaintiff.

41. The parties who rented or purchased such paintball guns did not make any substantial changes to the condition of the paintball guns before shooting plaintiff. (1st Am. Compl. ¶¶ 40-41.) Tippmann seeks the entry of summary judgment in its favor on the ground that no product that it designed, manufactured, sold or distributed has been identified as being the cause of Plaintiff's injury. Skirmish has moved for the entry of partial summary judgment in its favor, striking Martinez's claims with respect to the paintball gun, in the event that we grant Tippmann's Motion.


Summary judgment is appropriate "if the pleadings, discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court --that there is an absence of evidence to support the nonmoving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response "must -- by affidavits or otherwise as provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). That is, summary judgment is appropriate if the non-moving party fails to rebut the motion by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 407 (E.D. Pa. ...

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