The following post by Steve Silver, Esq. originally appeared on the renowned Wake Forest Law School’s Journal of Business & Intellectual Property Law blog on February 29, 2016.
Between mud runs, charity 5Ks, obstacles course races, and marathons, there is no shortage of events today testing a weekend warrior’s fitness or, often, their pain tolerance.
These amateur athletic competitions are not just fun and games, though. They are also major revenue generators. For example, according to the Sports Business Daily, the obstacle course racing industry saw its revenues spike from about $16 million in 2009 to nearly $400 million by 2015. In addition, more than 18 million Americans competed in marathons in 2014.
However, even the most profitable athletic events such as CrossFit Games, Tough Mudder competitions, or marathons represent substantial liability hazards for their organizers and insurers. This is why anyone who has ever participated in an event involving physical activity has likely encountered a general liability waiver form. Typically, a participant receives a piece of paper with a lot of fine print that they blindly sign minutes before the competition begins waiving all future legal claims for any injuries that may arise while crawling through a freezing mud pit with exposed electrical wires.
When injuries, or even fatalities occur, the waiver form is often the strongest defense for the event organizers.
Now, however, thanks to a recent decision by the Pennsylvania Superior Court, insuring an event in the Northeast just became a lot more costly.
This significant decision in Valentino v. Philadelphia Triathlon, LLC, 2015 PA Super 273 (2015), arose out of the death of 40-year-old amateur triathlete, Derek Valentino, during the 2010 Philadelphia Insurance Triathlon Sprint. The triathlon consisted of a half-mile swim, 15.7 miles bicycle race, and a 3.1 mile run. Mr. Valentino began the race in the Schuykill River and never surfaced. Officials discovered his body the next day.
Mr. Valentino’s widow, Michele Valentino, filed suit nearly two years late asserting wrongful death and survival claims. Early on in the case, the trial court granted the Defendant’s Preliminary Objections as to allegations of recklessness for punitive damages. The case proceeded on a general negligence theory of liability with the Plaintiff claiming that the race did not create a safe swimming area with proper staffing and equipment.
After discovery, the trial judge granted summary judgment for the Defendant based upon the waiver form signed by Mr. Valentino prior to the race. The trial judge agreed with Defendant’s argument that the waiver form barred any future legal action for negligence, including a wrongful death claim by the decedent’s survivors.
Plaintiff appealed to the Superior Court, and in a 2-1 decision, the Court held that Mrs. Valentino, “can maintain a wrongful death cause of action and is not bound by Derek Valentino’s release, of which she was not a signatory.”
The Court relied on Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013) appeal denied 86 A.3d 233 (Pa. 2014) in which the Superior Court had previously ruled in a dispute involving an arbitration clause in a nursing home contract that wrongful death claims are not derivative of decedents’ rights.
In the majority opinion, President Judge Emeritus Kate Ford Elliott explained that Pennsylvania’s Wrongful Death Statute, 42 Pa.C.S.A. § 8301 creates a separate right of action for a decedent’s spouse, children, or parents. The Court further illuminated that a survival action is distinct from a wrongful death action. So while a liability release form can waive claims for a survival action, it cannot bind a decedent’s heirs for a wrongful death claim. The distinction is as follows:
“The survival action has its genesis in the decedent’s injury, not his death. The recovery of damages stems from the rights of action possessed by the decedent at the time of death . . . In contract, wrongful death is not the deceased’s cause of action. An action for wrongful death may be brought only be specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the estate. . . This action is designed only to death with the economic effect of the decedent’s death upon the specified family members. . . A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.” Valentino, 2015 Pa. Super. LEXIS 862 at *16-17 (internal citations omitted).
Accordingly, the Court determined that liability release waivers can never bar a wrongful death claim.
The Defendant attempted to argue that Pennsylvania should adopt California’s law that would allow a waiver to preclude wrongful death lawsuits by surviving heirs. However, the Valentino Court remarked that doing so would “effectively eviscerate the Pennsylvania Wrongful Death Statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id. at *23.
Instead, the Court stated that the proper approach is the one used in New Jersey where waivers only apply to survival actions, not wrongful death actions. This is because, “it is well settled that a person’s heirs are not defined until the time of his or her death.” Reese v. Stires, 103 A. 679 (N.J. Ch. 1917). Furthermore, “even if decedent had the legal authority to bargain away the statutory right of his potential heirs, society’s interest in assuring that a decedent’s dependents may seek economic compensation in a wrongful death action outweighs decedent’s freedom to contract.” Gershon v. Regency Diving Center, Inc., 845 A.2d 720, 728 (N.J. Super 2004). Similar to New Jersey, in Pennsylvania, exculpatory agreements may not contravene public policy. Taya v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012).
Ultimately, the Court concluded that a waiver of liability form cannot be used as a complete defense to a wrongful death claim as a waiver cannot bind non-signing parties such as Mrs. Valentino. Judge Ford then reversed the trial court’s summary judgment decision and remanded the matter for trial as to the wrongful death claim.
Now, thanks to Valentino there is a seemingly bright line rule that exculpatory releases can never bar future wrongful death claims by a decedent’s heirs. This means that no matter how skillfully a waiver form is drafted, the event can never avoid future lawsuits, nor can it rely upon the waiver as a defense at trial.
Although a seemingly innocuous decision regarding a motion for summary judgment, the Valentino opinion should frighten athletic event organizers and insurers, particularly in Pennsylvania and New Jersey.