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. Before the Court is Skirmish's Motion for Summary Judgment. For the reasons that follow, the Motion is granted in part and denied in part.
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, paintball goggles and a camouflage suit and purchased paintballs from Skirmish. (Id. at 30, 35, 43-46; Pl. Product Liability Identification ¶ 1.) While he was in the building renting equipment and purchasing paintballs, Martinez signed a Waiver & Release (Skirmish Ex. N) that his friends told him he had to sign in order to play. (Martinez Dep. at 47-48.) Martinez's English was not very good in 2006 and he was not able understand more than a few words of the Waiver & Release. (Id. at 48-49.) He did, however, fill out name and address information and sign and dated the Waiver & Release with the assistance of his friends. (Id. at 50-51.) He did not, however, ask any of his friends or any Skirmish employees to interpret the entire document for him. (Id. at 49.) Signed Waivers & Releases were collected from the players in Martinez's group before they got on a bus that took them from the rental building to the field where they would play paintball. (Id. at 55.) A referee provided by Skirmish rode the bus with Martinez's group and reviewed the rules of play. (Id. at 55-56.) Martinez does not presently remember any of those rules, but he does remember that he was not supposed to take his goggles off during paintball games. (Id. at 56-64, 68-69.)
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, and they became foggy while he was playing. (Id. at 60-61, 69.) No one from Skirmish showed the players how to tighten the goggles and Martinez's goggles were loose for all five of the games that he played on March 19, 2006. (Id. at 69, 113.) He continued to play even though his goggles were loose and he believed that they should have fit more tightly. (Id. at 113-15.) He tried to inform a referee that his goggles were loose during the second game, but the referee just waved him back to the game and did not listen to his concerns. (Id. at 115-16.)
During the fifth game Martinez played on March 19, 2006, Martinez's group was divided into two teams for a capture-the-flag game. (Id. at 175, 180-81.) Martinez was 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, thereby leaving his eyes unprotected. (Id. at 119, 180, 183, 187.) He was shot in the right eye with a paintball immediately after his goggles slipped. (Id. at 183-84, 187.) Martinez was permanently blinded in his right eye. (Id. 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. (12/8/08 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 . . . branches, 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 . . . [in paintball activities] . . . 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 reported that "a fogged lens is evidence of a poorly fitted mask, such as one where the head strap cannot be adjusted to hold the facemask in place." (Id. at 4.) He has concluded that the fact that Martinez's goggles became foggy "is evidence that the mask was not seating properly and was unacceptably loose on [his] face." (Id. at 7 ¶ b.) Dr. Bissell has also opined that the goggles Skirmish rented to Martinez 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.) Finally, Dr. Bissell has opined that alternative goggle designs that would have cured the vertical restraint defects of the VForce Armor Rental Field Black Goggles existed, and were being manufactured and sold, at the time of Martinez's injury. (Id. at 8 ¶ j.) Skirmish purchased goggles using these alternative design goggles prior to Martinez's injury. (Pl. Ex. H.)
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 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, 408 (E.D. Pa. 2000) (citations omitted). Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable of being admissible at trial. See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993).
Skirmish argues that it is entitled to summary judgment on all of Martinez's claims because he signed the Waiver & Release. Skirmish also argues that it is entitled to summary judgment on Martinez's claims for negligence and gross negligence because it did not owe a duty to Martinez, who knowingly engaged in an obvious risk while playing paintball, and because he assumed the risk of injury while playing paintball. Skirmish also contends that it is entitled to summary judgment on Plaintiff's strict liability claims because the goggles Martinez used were not unreasonably dangerous. Finally, Skirmish argues that it was not the proximate cause of Martinez's injuries.
On March 19, 2006, before he began playing paintball, Martinez signed a Waiver & Release of Liability. The Waiver & Release states that it "must be read & signed before the participant is allowed to take part in any paintball event." (Skirmish Ex. N.) The Waiver & Release further provides as follows:
IN CONSIDERATION of SKIRMISH, U.S.A., Inc. furnishing services and/or equipment to enable me to participate in paintball games, I agree as follows:
I fully understand and acknowledge that; (a) risks and dangers exist in my use of Paintball equipment and my participation in Paintball activities, (b) my participation in such activities and/or use of such equipment may result in my illness including but not limited to bodily injury, disease strains, fractures, partial and/or total paralysis, eye injury, blindness, heat stroke, heart attack, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of SKIRMISH U.S.A.; the negligence of the participants, the negligence of others, accidents, breeches [sic] of contract, the forces of nature or other causes. These risks and dangers may arise from foreseeable or unforeseeable causes, and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, employees of SKIRMISH U.S.A., or by any other person.
I, on behalf of myself, my personal representatives and my heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify its owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of my use of Paintball equipment or my participation in Paintball activities, I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the owners, agents, officers or employees of SKIRMISH U.S.A. Said release shall further assign to SKIRMISH U.S.A. all right to use photographs of me taken relative to playing the game.
I HAVE READ THE ABOVE WAIVER AND RELEASE AND BY SIGNING IT AGREE IT IS MY INTENTION TO EXEMPT AND RELIEVE SKIRMISH U.S.A. FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGES OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE. (Skirmish Ex. N.)
Skirmish argues that the Waiver & Release is valid and enforceable. As we have diversity jurisdiction over this case, "we must apply Pennsylvania's law to the facts of this case." Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n.11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). In Pennsylvania, exculpatory contracts, such as the Waiver & Release in this case, "are not favorites of the law and will be construed strictly." Valeo v. Pocono Int'l Raceway, Inc., 500 A.2d 492, 493 (Pa. Super. Ct.1985) (citing Employers Liab. Assurance Corp. v. Greenville Bus. Men's Ass'n, 224 A.2d 620, 623 (Pa. 1966)). Exculpatory contracts are, however, valid and enforceable if the following conditions are met:
The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. . . . However, to be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.
Zimmer v. Mitchell & Ness, 385 A.2d 437, 439 (Pa. Super. Ct. 1978) (en banc), aff'd, 416 A.2d 1010 (Pa. 1980) (per curiam) (citing Employers Liab., 224 A.2d at 620). We are required to "use common sense in interpreting this agreement." Id.
1. Public Policy/Regulation of Private Affairs
An exculpatory contract does not contravene public policy "'if it is not a matter of interest to the public or State.'" Leidy v. Deseret Enters. Inc., 381 A.2d 164, 167 (Pa. Super. Ct. 1977) (quoting Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963)). "[M]atters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals." Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1382-83 (Pa. Super. Ct. 1990) (citing Leidy, 381 A.2d at 167). We find that the Waiver & Release in this case, which pertains solely to Martinez's voluntary participation in recreational activity, does not contravene public policy as it is "'a contract between individuals pertaining to their private affairs and does not impair generally the rights of members of the public.'" Id. (quoting Valeo, 500 A.2d 492).
2. The Parties' Relative Bargaining Power
Martinez argues that the Waiver & Release should not be enforced against him because he was not a free bargaining agent. He contends that he was unable to read the Waiver & Release prior to signing it and did not understand its contents. He also argues that the Waiver & Release is an unenforceable contract of adhesion.
It is the law in Pennsylvania that failure to read a contract is not an excuse and does not nullify a contract. See Standard Venetian Blind Co. v. Amer. Empire Ins. Co., 469 A.2d 563, 566 (Pa. 1983) ("'[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.'" (quoting In re Olson's Estate, 291 A.2d 95, 98 (Pa. 1972))). See also T. W. Phillips Gas & Oil Co. v. Kline, 84 A.2d 301, 302 (Pa. 1951) ("Where there is no allegation and proof of fraud or where there is no legal justification for failure to read a written contract on which suit is brought, failure to read is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof[.]" (citing Berardini v. Kay, 192 A. 882 (Pa. 1937), Schoble v. Schoble, 37 A.2d 604 (Pa. 1944) and Silberman v. Crane, 44 A.2d 598 (Pa. Super. Ct. 1945))). Moreover, an otherwise enforceable release will be enforced even if the signor did not know that it was a release when he signed it. In Seaton, the Superior Court affirmed an order granting summary judgment against Seaton and in favor of the owner of the racetrack where Seaton was injured, because Seaton had signed an agreement releasing all claims against the racetrack. The Superior Court determined that the release signed by Seaton was enforceable, even though Seaton claimed that he had not read it, did not know he was signing a release, and did not have time to read the document. Seaton, 582 A.2d at 1383 (internal quotations omitted). ("Appellant . . . argues that, due to the long line of people behind him, he did not have time to read the Release. 'His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.'" (quoting Talbert v. Lincoln Speedway, 33 Pa. D.&C. 3d111, 114 (C.P. Adams Co. 1984))).
The fact that Martinez could not have read and understood the written release also does not affect its enforceability. In Arce v. U-Pull-It Auto Parts, Inc., Civ. A. No. 06-5593, 2008 WL 375159 (E.D. Pa. Feb. 11, 2008), the court found enforceable the terms of a release signed by Arce when he entered the U-Pull-It Auto Parts junkyard, waiving his negligence claims against the junkyard, where he was injured when a car collapsed on him, even though Arce spoke and read only Spanish and could not read the release. Id. at *7 ("Plaintiff's alternative argument -- that the release cannot be enforced against him since he does not speak or read English -- is also unavailing."). Under Pennsylvania law, "'[a] person of age is presumed to know the meaning of words in a contract, and if, relying upon his own ability, he enters into an agreement not to his best interests he cannot later be heard to complain that he was not acquainted with its contents and did not understand the meaning of the words used in the instrument which he signed.'" Id. (quoting Schoble v. Schoble, 37 A.2d 604, 605 (Pa. 1944)). The Arce court found that the release was enforcable against Arce, even though he could not read it himself, and that the junkyard had no obligation to ensure that Arce could read the release:
In this case, Plaintiff cannot claim ignorance to avoid the ramifications of his signed release. Although Plaintiff could not read the release himself, he could have either asked Pedro Rosado, who read both English and Spanish, to translate the writing on the sheet or inquired as to whether a Spanish-speaking employee of the junkyard was available to explain the document. Nonetheless, he admitted that he exercised neither option. (Arce Dep. 49:7-20, 55:8-13.) Rosado's misrepresentation that the release was nothing more than a sign-in sheet likewise does not act to nullify the contractual relationship. See Seaton v. East Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1383 (Pa. Super Ct. 1990) ("[A] releasor can ordinarily not avoid the effect of a release upon the ground that at the time he signed the paper he did not read it or know its contents, but relied on what another said about it." (quoting 66 Am. Jur. 2d Release § 15 (1973))). Nor did Defendant have an obligation to verify that Plaintiff had read and fully understood the terms of the document before he signed his name to it. [Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1175 (E.D. Pa. 1990)] (imposing a duty to inform effectively would abrogate Pennsylvania's legal duty to read).
Id. at *8 (footnote omitted) (emphasis added). See also Morales v. Sun Constructors, Inc., 541 F.3d 218, 222 (3d Cir. 2008) (holding that Morales was bound by the arbitration clause in his employment contract, even though he knew only Spanish and the contract was written in English, because, "[i]n the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable").
We find that Martinez, like Arce, was accompanied to Skirmish by friends who were able to read and understand English and who could have explained the Waiver & Release to him, if he had asked them to do so. He did not. There is no evidence of fraud in connection with Martinez's execution of the Wavier & Release in this case. Consequently, Martinez's failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release. See Standard Venetian Blind Co., 469 A.2d at 566.
Martinez also argues that the Waiver & Release he signed is an unenforceable contract of adhesion because he had no choice but to sign it, since he had pre-paid for the paintball activity and had ridden a bus from New York for the experience. He is wrong. He signed the Waiver & Release so that he could voluntarily participate in a recreational activity. An agreement in which each party is free to participate, or not participate, is not a contract of adhesion under Pennsylvania law. Valeo, 500 A.2d at 493 (finding that exculpatory agreement between racecar driver and racetrack owner was not a contract of adhesion because "[e]ach party is free to participate or not to participate; a race driver is under no compulsion, economic or otherwise, to engage in automobile racing . . ."). See also Kotovsky v. Ski Liberty Operating Corp., 603 A.2d 663, 665 (Pa. Super. Ct. 1992) ("The agreement in the instant case was not one of adhesion. Appellant was not required to enter the contract, but did so voluntarily in order to participate in a downhill ski race. This activity was not essential to appellant's personal or economic well-being; it was purely a recreational activity." (citing Valeo, 500 A.2d 492)); Mandell v. Ski Shawnee, Inc., Civ. A. No. 3:05-1503, 2007 WL 121847, at *2 (M.D. Pa. Jan. 11, 2007) (determining that a ski resort's form release was not "a contract of adhesion as each party is free to participate or to choose not to[,] that is, the plaintiff was under no compulsion, economic or otherwise to engage in snowtubing" (citing Valeo, 500 A.2d at 493)); Nicholson v. Mount Airy Lodge, Inc., Civ. A. No. 96-5381, ...