The opinion of the court was delivered by: Padova, J.
Jorge Martinez has sued Procaps Direct, Inc. and Procaps L.P. (collectively "the Procaps Defendants"), which are companies that manufacture and/or distribute paintballs and goggles, asserting claims for strict liability and breach of the implied warranties of merchantability and fitness for a particular purpose arising out of an injury he suffered on March 19, 2006, when he was hit in the eye with a paintball at the Jim Thorpe, Pennsylvania paintball facility owned by Skirmish, U.S.A., Inc. ("Skirmish"). Martinez has also brought claims against Skirmish for negligence, strict liability, breach of the implied warranties of merchantability and fitness for a particular purpose, and gross negligence. In addition, Skirmish has filed third-party complaints for contribution and indemnity against Procaps Direct, Inc. and Procaps L.P.*fn1 Before the Court is the Motion for Summary Judgment filed by the Procaps Defendants, seeking the dismissal of all claims against them. For the reasons that follow, the Motion is 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.)
Skirmish sells and rents paintball equipment to participants who do not have their own, including paintball guns, goggles and paintballs,. (Martinez Dep. at 35, 43, 45-46; Lukasevich Dep. at 13, 17; Crespo Dep. at 46.) Martinez did not own his own paintball equipment. (Martinez Dep. at 23.) Consequently, when Martinez arrived at Skirmish's Jim Thorpe paintball facility, he rented a paintball gun and paintball goggles and purchased paintballs from Skirmish. (Id. at 35, 43-46; Pl. Product Liability Identification ¶ 1.)
The pair of goggles that Martinez rented from Skirmish on March 19, 2006 were returned to Skirmish's general inventory after his injury and have not been located. (Fink Dep. at 19.) Martinez has, however, identified the goggles he rented from Skirmish on March 19, 2006 as VForce Armor Rental Field Black Goggles. (Pl. Product Liability Identification ¶ 1.) The word "VForce" was printed on the top of the goggles. (Martinez Dep. at 45.) Those were the only kind of goggles that Skirmish rented at the time of Martinez's injury. (Paul Fogel Dep. at 49-50.)
Martinez reports that the goggles he rented from Skirmish appeared to be old and were not in very good condition. (Martinez Dep. at 198-99.) When Martinez put the goggles on before his first game, they did not fit tightly. (Id. at 69.) They continued to be loose for all five games that Martinez played on March 19, 2006. (Id. at 113.) He played with them, even though they were loose, and he believes that they should have fit more tightly. (Id. at 113-15.)
During the fifth game Martinez played on March 19, 2006, the group of people he had traveled with from New York were divided into two teams who played a capture-the-flag game against each other. (Id. at 175, 180-81.) Martinez ran 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 was permanently blinded in his right eye. (Martinez Dep. at 145-47.)
Martinez's expert, Dr. Allen M. Bissell of Trident Engineering Associates, Inc. ("Trident"), has opined that the VForce Armor Rental Field Black Goggles rented to Martinez by Skirmish were defectively designed in that they did not contain a vertical restraint that would prevent them from moving vertically on the wearer's face. (Trident Rpt. at 7 ¶ f.) The design thus allowed the goggles to slip during circumstances common to paintball, such as sweating, brushing against trees and shrubs, running, and stumbling. (Id.) Dr. Bissell further opined that the "rear strap on the VForce armor [goggles] rented to Mr. Martinez was defectively designed, in that it will loosen during circumstances that are commonly predictable . . . such as sweating, brushing against tree branches, running and stumbling . . . leading to mask slippage, which exposes the wearer's eyes to being struck by paintballs shot at ballistic speeds." (Id. at 8 ¶ g.) Dr. Bissell has also opined that the goggles were defectively maintained in that the rear strap was old and worn at the time it was used by Martinez, leading to slippage. (Id. at 7 ¶ e.)
Procaps Direct, Inc. began operations in 2005 and began selling VForce goggles and paintballs directly to Skirmish in November 2006. (Procaps Direct, Inc. Resp. to Skirmish's Req. for Produc. ¶ 10; Procaps Direct, Inc. Ans. to Skirmish's Third-Party Compl. ¶¶ 8, 10.) The Procaps Defendants have provided invoices showing that Procaps Direct, Inc. sold paintballs, VForce brand goggles, and parts for VForce Armor Rental Field Goggles, to Skirmish from November 7, 2006 through November 2007. (Procaps Defs. Ex. D.)
Procaps L.P. was formed in March 2005 and has been the owner of the "VForce" trademark since that time. (Procaps Defs. Reply Br. at 6, ¶ 15; Pl. Exs. F, G.) The original owner of the "VForce" trademark was Leader Industries, Inc.. (Pl. Ex. G.) The trademark was later owned by Airtech Innovations, Inc., a division of Procaps Encapsulation, Inc., which purchased the "VForce" trademark and molds from Leader Industries around 2001-02. (Id.; 5/14/09 Hr'g Tr. at 26; Procaps Defs. Reply Br. at 7-8, ¶ 20.) In March 2005, the assets of Airtech Innovations and Procaps Encapsulation, Inc. were purchased to form Procaps L.P. (Procaps Defs. Reply Br. at 3, ¶ 6; 5/14/09 Hr'g Tr. at 26.) The Procaps Defendants deny that Procaps L.P. agreed to assume any of the liabilities of Airtech Innovations. (5/14/09 Hr'g Tr. at 26.) The Procaps Defendants further deny that either Airtech Innovations or Procaps L.P. has ever manufactured VForce brand goggles. (Id. at 26-27.) The Procaps Defendants maintain that the VForce brand goggles distributed by Procaps L.P. and Procaps Direct, Inc. are manufactured by Vision 2 International, which company manufactures the following types of goggles: Armor by VForce, Shield by VForce, Vantage by VForce, Profiler by VForce, and Grill by VForce. (Procaps Defs. Ex. D, Procaps Direct, Inc.'s Ans. to Pl. Interrog. ¶ 2; 5/14/09 Hr'g Tr. at 30.)
Procaps L.P. manufactures DraXxus and XBall paintballs, and has supplied and/or sold paintballs to Skirmish. (Procaps L.P. Ans. to Skirmish's Third-Party Compl. ¶ 28.) Procaps L.P. also supplies VForce brand goggles, although it denies supplying VForce brand goggles directly to Skirmish. (Id. ¶ 10.) Prior to July 2005, Procaps L.P. distributed paintballs and VForce goggles through National Paintball Supply, pursuant to a distribution agreement. (Skirmish Ex. H, 8/30/05 Procaps L.P. press release; Procaps Defs. Reply Br. at 6, ¶ 12.) After that time, Procaps L.P. distributed these items through Procaps Direct, Inc., although it permitted National Paintball Supply to sell its remaining inventory of Procaps L.P.'s paintballs and VForce goggles after the distribution agreement was terminated. (Skirmish Ex. H, 8/30/05 Procaps L.P. press release.) Skirmish purchased VForce Armor Rental Field Black Goggles and paintballs from National Paintball Supply during 2004 and 2005, and in January 2006. (Skirmish Ex. I.)
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, ...