Whether Decedent’s Execution of Waiver of Liability Form That Includes Assumption of Risk Binds His Heirs and Precludes Wrongful Death Action
Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016)(en banc) 17 EAP 2017 (Majority) (Dissent)
Issue
Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?
Background
Philadelphia Triathlon, LLC organized the Philadelphia Insurance Triathlon Sprint Triathlon in 2010. It consisted of a one-half mile swim, a 15.7 mile bicycle race, and a three and one-tenth mile run. The swimming portion of the competition occurred in the Schuylkill River. To compete in the Triathlon, each participant was required to register for the event, pay a fee and electronically execute a liability waiver form. Each participant also completed and submitted a registration form to obtain a number and a bib to wear on the day of the race. Derek Valentino electronically registered as a participant in the Triathlon on January 24, 2010. On June 26, 2010, at approximately 8:30 a.m., he entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.
The release Mr. Valentino signed provided, among other things, that Mr. Valentino “expressly assume[d] all such [r]isks and responsibility for any damages, liabilities, losses or expenses” that resulted from his participation in the event. Slip Op., at 2.
Mr. Valentino’s widow sued for wrongful death. The trial court granted summary judgment for Philadelphia Triathalon, LLC based on the release. Superior Court in an en banc opinion affirmed.
In reaching its decision the Superior Court majority distinguished various precedents that could be interpreted to mean that a release by a decedent cannot bind non-signatories. Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (2014), cert. denied, ––– U.S. ––––, 134 S.Ct. 2890, 189 L.Ed.2d 838 (2014), for example, holds that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent. The key difference with a release, the court explained, is that it extinguishes the tortious act that underlies the wrongful death claim by transforming the defendant’s conduct from tortious to non-tortious, because of the signatory’s express assumption of risk:
Appellant construes Pisano as holding that a wrongful death claimant’s rights are wholly separate, in all contexts and for all purposes, from not just the “rights” of a decedent but also the injuries sustained by a decedent. This reading of Pisano conflates the concept of a right of action under Pennsylvania’s Wrongful Death Act, referring to the non-derivative right of a statutory claimant to seek compensation, with the principle that a claimant’s substantive right to obtain a recovery always remains, even in the wake of Pisano, “depend[ant] upon the occurrence of a tortious act.” Pisano, 77 A.3d at 654 (emphasis added). The issue in Pisano was whether a wrongful death claimant should be bound by an arbitration clause that he did not sign. This is a uniquely procedural issue that differs greatly from the enforcement of a valid liability waiver such as the one at issue in the present case. An arbitration clause dictates the forum where a litigant may present his claim. The terms of such a clause do not fix substantive legal standards by which we measure a right to recovery. …
A liability waiver, however, operates quite differently from an arbitration clause. By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à -vis the decedent from tortious to non-tortious.
….
Since Pisano retains the requirement that the decedent’s death result from a tortious act, even non-signatory wrongful death claimants remain subject to the legal consequences of a valid liability waiver.
Slip Op., at 20-21.
The majority also distinguished cases holding that a settlement and release agreement does not bind non-signatories.
Confronting arguments raised by the dissent, the majority again addressed Pisano and explained:
The learned Dissent rejects the conclusion that assumption of the risk and the liability waiver support the trial court’s entry of summary judgment in favor of Appellee. The Dissent instead argues that, “Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at the time of death.” Dissenting Opinion at 504. This position overlooks settled Supreme Court precedent and over eight decades of Pennsylvania case law holding that wrongful death actions are derivative of “the same tortious act which would have supported the injured party’s own cause of action.” Kaczorowski, 184 A. at 664 (noting that wrongful death action would be barred by affirmative defenses such as contributory negligence or statute of limitations); see also Sunderland, 791 A.2d at 390–391; Moyer, 651 A.2d at 1143; Ingenito, 633 A.2d at 1176. Not only does the Dissent ignore binding Pennsylvania precedent, the premise of the Dissent’s conclusion is unavailing.
Slip Op., at 29-30.
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