Valentino, M. v. Philadelphia Triathlon

J. A11016/15
2015 PA Super 273MICHELE VALENTINO, AS : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
DEREK VALENTINO, DECEASED, AND :
MICHELE VALENTINO, IN HER OWN :
RIGHT, :
:
Appellant :
:
v. : No. 3049 EDA 2013
:
PHILADELPHIA TRIATHLON, LLC :
Appeal from the Order Entered September 30, 2013,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. April Term, 2012 No. 1417
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2015
Appellant, Michele Valentino (in her own right and as administratrix of
the estate of Derek Valentino), appeals from an order entered on
September 30, 2013, in the Civil Division of the Court of Common Pleas of
Philadelphia County granting summary judgment on behalf of Philadelphia
Triathlon, LLC (appellee). After careful consideration, we affirm in part,
reverse in part, and remand for further proceedings.
In 2010, appellee organized an event known as the Philadelphia
Insurance Triathlon Sprint (the Triathlon). Three events comprised the
Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a 3.1 mile
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run. (Trial court opinion, 8/14/14 at 2.) The swimming portion of the
competition occurred in the Schuylkill River in Philadelphia, Pennsylvania.
To compete in the Triathlon, each participant was required to register
for the event. As part of the registration process, participants paid a fee and
executed a waiver and release form. Each participant had to complete and
submit a registration form in order to obtain a number and bib that would be
worn on the day of the race. Derek Valentino registered as a participant in
the Triathlon on January 24, 2010.
On June 26, 2010, at approximately 8:30 a.m., Derek Valentino
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. Tragically, the following day, on June 27, 2010, his body was retrieved
from the Schuylkill River.
Appellant (Derek Valentino’s widow) filed her original complaint on
April 12, 2012, asserting wrongful death and survival claims against various
defendants, including appellee. Thereafter, she amended her complaint on
June 22, 2012. All of the defendants filed preliminary objections on June 22,
2012. On July 27, 2012, the trial court sustained the defendants’
preliminary objections and struck all references in appellant’s amended
complaint that referred to outrageous acts, gross negligence, recklessness,
and punitive damages. The court concluded that these allegations were
legally insufficient since the alleged facts showed only ordinary negligence.
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In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the
amended complaint on grounds that those averments lacked sufficient
specificity. The defendants answered the amended complaint and raised
new matter on August 9, 2012.
Shortly after discovery commenced, the defendants moved for
summary judgment in December 2012. The trial court denied that motion
on January 29, 2013. Eventually, appellant stipulated to the dismissal of all
defendants except appellee. At the completion of discovery, appellee again
moved for summary judgment on August 5, 2013. The trial court granted
appellee’s motion on September 30, 2013. Appellant sought reconsideration
but the trial court denied her request. Appellant filed a timely notice of
appeal on October 23, 2013. Pursuant to an order of court, appellant filed a
concise statement of errors complained of on appeal in accordance with
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Subsequently, the trial court
explained its reasons for sustaining the preliminary objections in an opinion
issued on March 18, 2014. In a separate opinion issued on August 14, 2014,
the trial court set forth its rationale for granting appellee’s motion for
summary judgment.
Appellant’s brief raises the following questions for our review:
1. Whether the [trial c]ourt erred in sustaining
the [p]reliminary [o]bjections [] where, when
the material facts set forth in the [a]mended
[c]omplaint, as well as all reasonable
inferences deducible therefrom, are accepted
as true, it cannot be said with certainty that
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[appellee’s] actions were not sufficiently
reckless, outrageous and/or egregious to
warrant an award of punitive damages?
2. Whether the [trial c]ourt erred in sustaining
the [p]reliminary [o]bjections [] and striking
paragraph 22(a), (c), (e), and (m) of the
[a]mended [c]omplaint where these
averments, and the [a]mended [c]omplaint in
general, were sufficiently specific to enable
[appellee] to respond and prepare a defense?
3. Whether the [trial c]ourt erred in granting
[appellee’s] second [m]otion for [s]ummary
[j]udgment where the issue of waiver and
release was previously decided in the [o]rder
of January 29, 2013 that denied its first
[m]otion for [s]ummary [j]udgment, and the
[c]ourt was precluded by the coordinate
jurisdiction rule from revisiting the question?
4. Whether the [trial c]ourt erred in granting
[appellee’s] [m]otion for [s]ummary
[j]udgment where, when the record is viewed
in the light most favorable to [appellant],
questions of fact remain as to whether the
purported release in question was effectively
executed by the decedent and, if it was,
whether it was enforceable?
5. Whether the [trial c]ourt erred in granting
[appellee’s] [m]otion for [s]ummary
[j]udgment where the report issued by
Mark Mico fully and adequately addressed the
questions of duty, breach of duty and
causation and, in addition, he was fully
qualified to render opinions in these regards?
Appellant’s brief at 7-8.
Appellant’s first claim asserts that the trial court erred in sustaining
the preliminary objections and striking all references to outrageous acts,
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gross negligence, and reckless conduct. Appellant also asserts that the trial
court erred in dismissing her claims for punitive damages. The basis for
these contentions is that, when the allegations set forth in the amended
complaint are taken as true, the pleading asserts a claim that, “[Appellee]
intentionally created a situation where swimmers [went] into a river with
inadequate supervision and no reasonable means of rescue if they got into
trouble.” (Appellant’s brief at 22 (emphasis in original).)
The standard of review we apply when considering a trial court’s order
sustaining preliminary objections is well settled:
[O]ur standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
HRANEC Sheet Metel, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,
118 (Pa.Super. 2014).
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In Pennsylvania, “[p]unitive damages may be awarded for conduct
that is outrageous, because of the defendant’s evil motive or his reckless
indifference to the rights of others.” Hutchison v. Luddy, 870 A.2d 766,
770 (Pa. 2005), quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984).
“As the name suggests, punitive damages are penal in nature and are proper
only in cases where the defendant’s actions are so outrageous as to
demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at
770. To support a claim for punitive damages, the plaintiff must show that
the defendant had a subjective appreciation of the risk of harm to which the
plaintiff was exposed and that the defendant acted, or failed to act, in
conscious disregard of that risk. Id. at 772. “Ordinary negligence, involving
inadvertence, mistake or error of judgment will not support an award of
punitive damages.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d
978, 983-984 (Pa.Super. 2005), affirmed, 922 A.2d 890 (Pa. 2007).
Appellant’s amended complaint alleges that Derek Valentino died while
swimming in the Schuylkill River during the Triathlon. The amended
complaint alleges further that appellee was inattentive to the needs of the
contestants, failed to inspect or maintain the event course, failed to warn of
or remove dangerous conditions, failed to properly plan or organize the
event, failed to follow safety standards, and failed to properly train and
supervise its employees. These allegations, however, averred nothing more
than ordinary negligence arising from inadvertence, mistake, or error in
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judgment; they do not support a claim involving outrageous behavior or a
conscious disregard for risks confronted by Triathlon participants. Hence,
the trial court correctly dismissed appellant’s allegations of outrageous
conduct and properly struck her punitive damage claims.
Appellant next asserts that the trial court erred in sustaining the
preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from
her amended complaint. Appellant maintains that these averments are
sufficiently specific to enable appellee to respond to appellant’s allegations
and to formulate a defense in this case.
Contrary to appellant’s argument, we agree with the trial court’s
assessment that the challenged portions of the amended complaint are too
vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019.
Under Rule 1019, “[t]he material facts on which a cause of action or defense
is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019.
“Pennsylvania is a fact-pleading state; a complaint must not only give the
defendant notice of what the plaintiff’s claim is and the grounds upon which
it rests, but the complaint must also formulate the issues by summarizing
those facts essential to support the claim.” Feingold v. Hendrzak, 15 A.3d
937, 942 (Pa.Super. 2011).
The challenged provisions of appellant’s amended complaint referred
only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to
reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and
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“failures to employ adequate policies, procedures, and protocols in
conducting the event” (¶ 22(m)) as the basis for her claim. Upon review, we
concur in the trial court’s determination that this boilerplate language was
too indefinite to supply appellee with adequate information to formulate a
defense.
Appellant cites the decision of the Pennsylvania Commonwealth Court
in Banfield v. Cortes, 922 A.2d 36 (Pa.Cmwlth. 2007), as supportive of her
contention that the amended complaint set forth material facts with
sufficient specificity. Banfield is, however, distinguishable. In that case, a
group of electors filed suit alleging that the Secretary of the Commonwealth,
in certifying the use of certain electronic systems in elections, failed to adopt
uniform testing procedures that addressed the security, reliability, and
accuracy of voting systems. The Secretary requested an order directing the
plaintiffs to re-plead their allegations with greater specificity. In rejecting
this request, the Commonwealth Court explained that in challenging the
adequacy of the testing features inherent in the newly adopted electronic
voting systems, the plaintiffs provided sufficient facts to enable the
Secretary to prepare a defense. Id. at 50.
Here, in contrast, appellant referred vaguely, and without elaboration,
to unspecified dangerous conditions, indefinite warnings, and generic failures
to reasonably plan and employ adequate policies in carrying out the
Triathlon. Moreover, even if appellee possessed some knowledge of the
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facts around which appellant’s allegations centered, this alone would not
relieve appellant of her duty to allege material facts upon which she based
her claims. See Gross v. United Engineers & Constructors, Inc., 302
A.2d 370, 372 (Pa.Super. 1973). Thus, appellant’s reliance on Banfield is
unavailing, and she is not entitled to relief on her second claim.
Appellant’s final three claims challenge the entry of summary
judgment in favor of appellee. Our standard of review over such claims is
well settled.
Th[e] scope of review of an order granting summary
judgment is plenary. Our standard of review is
clear: the trial court’s order will be reversed only
where it is established that the court committed an
error of law or clearly abused its discretion.
Summary judgment is appropriate only in those
cases where the record clearly demonstrates that
there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter
of law. The reviewing court must view the record in
the light most favorable to the nonmoving party,
resolving all doubts as to the existence of a genuine
issue of material fact against the moving party.
When the facts are so clear that reasonable minds
cannot differ, a trial court may properly enter
summary judgment.
Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222
(Pa. 2002).
Appellant advances several arguments in support of her contention
that the trial court erred in granting summary judgment. First, appellant
asserts that the coordinate jurisdiction rule precluded the trial court from
addressing appellee’s motion since a prior summary judgment motion was
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denied. Second, appellant contends that genuine issues of material fact
regarding whether Derek Valentino actually executed a waiver form barred
the entry of summary judgment in appellee’s favor. Appellant next
maintains that a plaintiff cannot contractually waive liability for reckless or
intentional conduct and that, as a result, any waiver executed in this case is
invalid. Appellant also asserts that, pursuant to our prior decision in Pisano
v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), appeal
denied, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890, U.S.
(2014), a decedent’s waiver is ineffective as to third-party wrongful
death claims. Lastly, appellant claims that the trial court erred in granting
summary judgment because she offered the testimony of a qualified expert
to address lingering questions of appellee’s duty, breach of duty, and injury
causation.
Upon review, we agree with the trial court that the completion of
discovery and the development of a more complete record defeated
application of the coordinate jurisdiction rule and eliminated any factual
issues surrounding Derek Valentino’s execution of a waiver prior to his
registration for the Triathlon. (See trial court opinion, 8/14/14 at 4 (“In the
second motion for summary judgment, it is undisputed that a waiver was
among the decedent’s possessions, prior to being discovered in the
Schuylkill River.”).) Moreover, since we determined that appellant did not
state claims involving reckless or intentional conduct, supra, this contention
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cannot serve as a basis for disturbing the trial court’s ruling. However, we
find appellant’s argument regarding Pisano to be dispositive. As discussed
below, we determine that appellant can maintain a wrongful death cause of
action and is not bound by Derek Valentino’s release, of which she was not a
signatory.1
In Pisano, we addressed a similar issue in the context of an
arbitration agreement. In that case, at the time of his admission to a
long-term care nursing facility operated by Extendicare, the decedent,
Vincent Pisano, executed an agreement providing that any dispute would be
resolved by binding arbitration. Id. at 653. Extendicare sought to dismiss
the subsequent wrongful death suit based on lack of jurisdiction. The
agreement stated that “any and all disputes arising out of or in any way
relating to this Agreement or to the Resident’s stay at the center [including]
. . . death or wrongful death” are subject to arbitration. Id. at 655.
The trial court denied Extendicare’s preliminary objection seeking to
have the case dismissed for lack of subject matter jurisdiction, finding that a
1
We note that the trial court agrees it erred in dismissing appellant’s
complaint in light of this court’s holding in Pisano. (Trial court opinion,
8/14/14 at 1, 5-6.) In addition, appellee argues the matter is waived for
failure to raise it in appellant’s Rule 1925(b) statement; however, we find
that the issue is subsumed within appellant’s fourth issue, raising the
enforceability of Derek Valentino’s release. See Pa.R.A.P. 1925(b)(4)(v)
(“Each error identified in the Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court”).
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wrongful death action is a creature of statute and is independent of the
decedent estate’s right of action. Id. at 654.
The trial court explained that a wrongful death action
is derivative in only a very limited way: “[T]he right
to the wrongful death action . . . does not depend
upon the decedent’s estate’s rights to a survival
action, but depends only upon the occurrence of the
tortious act upon which it is based.”
Id., quoting trial court opinion, 7/9/12 at 3. Extendicare appealed, and this
court affirmed, finding that the agreement was not binding on appellee, the
son and administrator of Pisano’s estate, as wrongful death claims are not
derivative of decedents’ rights under Pennsylvania law.
In so holding, this court noted that in 1911, Pennsylvania’s Wrongful
Death Act, 42 Pa.C.S.A. § 8301, was amended and a wrongful death action
is no longer derivative of the decedent’s claim; rather, the right of action
belongs to the statutory claimants, not the decedent:
Unlike its nineteenth century predecessors,
Pennsylvania’s wrongful death statute, as of 1911,
distinguished a wrongful death action from a survival
action, currently providing that “the right of action
created by this section shall exist only for the benefit
of the spouse, children or parents of the deceased.”
42 Pa.C.S.A. § 8301 (1978); Kaczorowski v.
Kalkosinski, 321 Pa. 438, 184 A. 663, 665 (1936)
(distinguishing the actions based on the 1911
version of Pennsylvania’s wrongful death statute, Act
of June 7, 1911, P.L. 678). Pennsylvania courts
have consistently interpreted this language to mean
that two separate and distinct causes of action arise
from a single injury, one dependent “on the rights of
action which the decedent possessed at the time of
her death,” and the other dependent on “the rights
of action that the [claimants], as named by statute,
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possess.” Holmes v. Lado, 412 Pa.Super. 218, 602
A.2d 1389, 1391 n. 2 (1992); see also
Kaczorowski, 184 A. at 665 (“By the statute there
is given an explicit and independent right of action to
recover the damages peculiarly suffered by the
parties named therein.”); Matharu v. Muir, 29 A.3d
375, 383 (Pa.Super. 2011) (“[A] cause of action for
wrongful death is not the deceased’s cause of
action.”).
Id. at 656-657.
The Pisano court explained that in Pennsylvania, survival and
wrongful death actions are separate and distinct, and that wrongful death
suits are not merely derivative of the rights of the decedent:
The current distinction between these two claims, as
explained by this Court previously, 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
contrast, wrongful death is not the
deceased’s cause of action. An action for
wrongful death may be brought only by
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 deal with
the economic effect of the decedent’s
death upon the specified family
members.
Id. at 658-659, quoting Moyer v. Rubright, 651 A.2d 1139, 1141
(Pa.Super. 1994) (in turn quoting Frey v. Pennsylvania Electric
Company, 607 A.2d 796, 798 (Pa.Super. 1992)). See also Amato v. Bell
& Gossett, 116 A.3d 607, 625 (Pa.Super. 2015) (“The purpose of the
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Wrongful Death Statute . . . is to compensate the decedent’s survivors for
the pecuniary losses they have sustained as a result of the decedent’s death.
This includes the value of the services the victim would have rendered to his
family if he had lived. 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.” (citations omitted)).
The Pisano court explained that a wrongful death action is
“derivative” of the original tort in the same way that a loss of consortium
claim is derivative, in that both arise from an injury to another person. Id.
at 659. However, unlike, e.g., a stockholder’s derivative lawsuit or a
subrogation action, loss of consortium and wrongful death claims are
separate and distinct causes of action:
We conclude that wrongful death actions are
derivative of decedents’ injuries but are not
derivative of decedents’ rights. This conclusion
aligns with the proper use of the term “derivative
action” and is consistent with the Supreme Court’s
pronouncement in Kaczorowski, which explained:
We have announced the principle that
the statutory action is derivative because
it has as its basis the same tortious act
which would have supported the injured
party’s own cause of action. Its
derivation, however, is from the tortious
act, and not from the person of the
deceased, so that it comes to the parties
named in the statute free from personal
disabilities arising from the relationship
of the injured party and tort-feasor.
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Id. at 660, quoting Kaczorowski, 184 A. at 664. Ultimately, this court in
Pisano determined that Extendicare’s arbitration agreement was only
between it and the decedent. Id. at 661. The appellee was not a party to
the agreement, and Pennsylvania’s wrongful death statute does not
characterize the appellee and other wrongful death claimants as third-party
beneficiaries. Id. Therefore, the trial court properly refused to compel
arbitration. Id.2
Among other cases, this court in Pisano cited as supporting authority
our supreme court’s decision in Buttermore v. Aliquippa Hospital, 561
A.2d 733 (Pa. 1989). Pisano, 77 A.3d at 658. We likewise find
Buttermore to be instructive. In that case, James Buttermore was involved
in an automobile accident, sustaining injuries. Buttermore, 561 A.2d at
734. He signed a release in settlement of his claim against the tortfeasor for
the sum of $25,000, agreeing to release from liability any and all persons,
known or unknown. Id. Subsequently, Buttermore and his wife instituted
suit against Aliquippa Hospital and the treating physicians alleging that the
treatment he received aggravated the injuries he sustained in the accident,
2
Following Pisano, in Taylor v. Extendicare Health Facilities, Inc., 113
A.3d 317 (Pa.Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015),
this court held that an arbitration agreement signed by the decedent or his
or her authorized representative is not binding upon non-signatory wrongful
death beneficiaries. Id. at 320-321. The Taylor court further held that
Pa.R.C.P. 213(e) required consolidation of the wrongful death and survival
actions, and since the wrongful death beneficiaries cannot be compelled to
arbitrate the wrongful death actions, both must remain in court.
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worsening his condition. Id. at 734-735. The defendants moved for
summary judgment on the basis of Buttermore’s release. Id. at 735.
After first holding that the release applied to all tortfeasors, including
the defendants, whether specifically named or not, the court in Buttermore
turned to the matter of Buttermore’s wife’s loss of consortium claim: “That
is not to say, however, that parties may bargain away the rights of others
not a party to their agreement. That question rises here because a spouse
not a party to the agreement seeks to sue in her own right for loss of
consortium.” Id. at 735. The Buttermore court held that the wife had an
independent cause of action for loss of consortium regardless of her
husband’s settlement agreement: “The question is, does the wife, not a
signatory to the agreement, have an independent right to sue for the injury
done her. We answer that she does.” Id. at 736. See also Pisano, 77
A.3d at 658, citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315,
317 (1866) (“This suit is brought by the widow, and her right of action
cannot be affected by any discharge or release of [husband] in his
lifetime.”).
Similarly, in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert.
denied, 355 U.S. 882 (1957), the plaintiff, the widow and executrix of
George Brown, brought a cause of action under the Wrongful Death Act for
the benefit of herself and her three minor children, as well as a Survival Act
claim. Id. at 714. Brown, a neurotic, was admitted to a sanitarium for
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treatment including electrical shock therapy, following which he fell down a
flight of stairs. Id. at 715. After the fall, Brown was picked up by his
extremities, with his head hanging down, resulting in paralysis. Id. Brown
had signed a release agreeing to release the sanitarium and its employees
from liability for any injury resulting from his treatment as a neurotic while
at the sanitarium, including electro-shock therapy or treatment of a similar
nature. Id. at 722. After concluding that Brown’s treatment following his
fall down the stairs was unrelated to his treatment as a neurotic by
electro-shock therapy or other similar therapeutic means, the Brown court
stated,
[W]e point out that even if the release were deemed
sufficient to relieve the defendants of liability under
the Pennsylvania Survival Act is [sic] could scarcely
relieve them of liability under the Pennsylvania
Wrongful Death Act for that Act provides benefits not
only for the widow of a deceased person but also for
his children. Even assuming that the release was
effective as to the plaintiff, who executed it as did
Brown, nonetheless Brown’s children would be
entitled to a recovery.
Id.3
3
Brown was disapproved of by Grbac v. Reading Fair Co., 688 F.2d 215(3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:
In Grbac, the court of appeals held that a liability
release executed by decedent was binding on the
widow’s wrongful death claim. Id. at 217-218.
Erroneously following the Pennsylvania Supreme
Court’s holding in [Hill v. Pennsylvania Railroad
Company, 35 A. 997 (Pa. 1896)], the court of
appeals misinterpreted Pennsylvania law in holding
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Relying on California law, appellee argues that even if appellant can
bring the wrongful death action, appellee had no duty to the decedent
because of his complete waiver. (Appellee’s brief at 38-39.) Appellee
argues that the decedent agreed to waive liability and assume all risks
inherent to the dangerous activity of sprint triathlon; therefore, appellee
owed the decedent no duty to protect him from injury. (Id. at 40.)
According to appellee, even assuming appellant can sue for wrongful death,
she cannot possibly recover where appellee has a complete defense. (Id. at
40-41.)
California state law in this area was recently summarized by the
California court of appeals in Eriksson v. Nunnink, 233 Cal.App.4th 708,
(Cal.App. 4 Dist. 2015):
Because a wrongful death claim is not derivative of
the decedent’s claims, an agreement by the
decedent to release or waive liability for her death
does not necessarily bar a subsequent wrongful
death cause of action by her heirs. (6 Witkin,
Summary of Cal. Law (10th ed. 2005) Torts, § 1402,
p. 825.) As explained in Madison v. Superior
Court (1988) 203 Cal.App.3d 589, 250 Cal.Rptr.
299, in which the decedent signed an agreement
purporting to release, discharge, and waive any
that a “wrongful death action is purely derivative” in
Pennsylvania. Id. at 217. The Grbac Court cites no
further cases in support of its holding, and no
binding Pennsylvania authority exists with a similar
holding. In fact, the limited authority on this subject
indicates the opposite conclusion of Grbac.
Pisano, 77 A.3d at 658.
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cause of action for wrongful death, “it is clear that
[decedent] had no power or right to waive that cause
of action on behalf of his heirs. [Citation.] This is a
right which belongs not to [decedent] but to his
heirs. ‘The longstanding rule is that a wrongful
death action is a separate and distinct right
belonging to the heirs, and it does not arise until the
death of the decedent.’ [Citation.]” (Id. at p. 596,
250 Cal.Rptr. 299.)
Id. at 248.
Although Mia could not release or waive her parents’
subsequent wrongful death claims, it is well-settled
that a release of future liability or express
assumption of the risk by the decedent may be
asserted as a defense to such claims. (See, e.g.,
Horwich v. Superior Court, supra, 21 Cal.4th at
p. 285, 87 Cal.Rptr.2d 222, 980 P.2d 927; Paralift,
Inc. v. Superior Court (1993) 23 Cal.App.4th 748,
755, 29 Cal.Rptr.2d 177; Saenz v. Whitewater
Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–
764, 276 Cal.Rptr. 672.) As the Madison court
explained: “[A] distinction must be made between
the legal ineffectiveness of a decedent’s preinjury
release of his heirs’s subsequent wrongful death
action and the legal effectiveness of an express
release of negligence by a decedent which provides a
defendant with ‘a complete defense.’ [Citation.]”
(Madison v. Superior Court, supra, 203
Cal.App.3d at p. 597, 250 Cal.Rptr. 299; see also
Ruiz v. Podolsky, supra, 50 Cal.4th [838] at pp.
851–852, 114 Cal.Rptr.3d 263, 237 P.3d 584[(2010)] [“although an individual involved in a
dangerous activity cannot by signing a release
extinguish his heirs’ wrongful death claim, the heirs
will be bound by the decedent’s agreement to waive
a defendant’s negligence and assume all risk.”].)
Id. at 249 (emphasis in Madison). Appellee in the case sub judice urges
this court to adopt a similar approach. However, we view the Madison line
of cases as creating a distinction without a difference, i.e., a wrongful death
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claimant can bring suit but will inevitably lose on summary judgment
because of the decedent’s waiver of liability, to which the wrongful death
claimant was not a party. Such a holding 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. We believe the better approach is outlined by the New Jersey
Superior Court in Gershon v. Regency Diving Center, Inc., 845 A.2d 720(N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly
describing Madison’s holding as “internally inconsistent.” Id. at 725.4 In
Gershon, the decedent was a scuba diver and signed up for advanced diving
training. Id. at 723. As a condition of his participation, he executed a
release agreement. Id. The decedent expressly waived liability, including
for wrongful death, and assumed all risk. Id. The lower court held that
while the exculpatory release signed by the decedent barred any
survivorship claim which could have been asserted by his estate, it did not
preclude an independent wrongful death action where the decedent’s heirs
had not signed the agreement. Id. at 724. Relying on Madison, supra,
the defendant, Regency Diving Center, argued that the release operated as a
complete bar to all claims. Id. On appeal, the Superior Court of
4
“Although we acknowledge that the pronouncements of sister states are
not binding authority on our courts, such decisions may be considered as
persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 88 A.3d 228,
233 n.3 (Pa.Super. 2014), appeal granted on other grounds, 97 A.3d
741 (Pa. 2014) (citation omitted).
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New Jersey, Appellate Division, rejected the Madison line of cases as
against the public interest intended to be protected by the Wrongful Death
Act:
[T]he intended beneficiaries of the Act are deprived
of their statutorily authorized remedy merely to
provide defendants with an environment from which
to operate their business, apparently free from the
risk of litigation. Such a prospect would directly
undermine the remedial purpose of the Act. Stated
differently, 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.
Id. at 728.5 The Gershon court also noted that until a decedent has died,
there are no heirs; therefore, their rights cannot be extinguished by an
agreement that predates their existence:
It is well settled that a person’s heirs are not defined
until the time of his or her death. Reese v. Stires,
87 N.J. Eq. 32, 35, 103 A. 679 (N.J.Ch.1917); In re
Bartles, 33 N.J. Eq. 46 (1880). This fundamental
tenet of the law of wills and estates is best
expressed by the ancient maxim nemo est haeres
viventis, “[n]o one can be heir during the life of his
ancestor.” Black’s Law Dictionary 936 (5th ed.
1979). See also 4 Page on Wills § 34.6
(Bowe-Parker rev.3d ed.1961). It is therefore legally
impossible for an exculpatory agreement to bar the
legal claims of a class of litigants that were not
legally in existence at the time of its execution.
5
As in New Jersey, in Pennsylvania, exculpatory agreements are not favored
by the law and must not contravene public policy. Id. at 726-727; Tayar v.
Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012).
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Id. Appellee argues that allowing third-party claims including loss of
consortium and wrongful death where the decedent expressly assumed the
risk of injury would expose insurers to increased liability. (Appellee’s brief at
35-36.) The court in Gershon addressed those concerns as follows:
We recognize that our decision today may prevent
insurance carriers from obtaining complete releases
from all possible wrongful death claims, except
perhaps by the inclusion in any such agreement of all
persons who subsequently are determined to be
wrongful death beneficiaries under N.J.S.A. 2A:31-4.
The policy favoring settlement and finality of claims,
cannot defeat statutory rights created for the
protection of survivors of one wrongfully killed.
Id. at 728-729, quoting Alfone v. Sarno, 432 A.2d 857 (N.J. 1981)
(citations omitted).
Following Pisano, we conclude that Derek Valentino’s release
agreement did not bind appellant and did not preclude her from bringing a
wrongful death action. 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 time of death. Furthermore, we reject appellee’s
argument that the decedent’s waiver of liability and assumption of the risk
can be used as a complete defense to appellant’s claims. The release
agreement was only between the decedent and appellee and has no effect
on the decedent’s non-signatory heirs including appellant.
Finally, we turn to appellant’s issue regarding the expert report of
Mark Mico (“Mico”). Mico is an experienced triathlete, race director, and
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race management consultant. (Appellant’s brief at 50.) In his report, Mico
stated that, inter alia, appellee did not have enough lifeguards and allowed
too many swimmers in each wave. (Id. at 51.) Contestants were not
permitted to wear buoyant wetsuits and there was no safety instruction
provided. (Id. at 51-52.) Swimmers were given black swimming caps
which were a poor choice for visibility in the open water. (Id. at 51.)
Lifeguards were mostly swimming pool lifeguards and were not trained in
open water safety. (Id. at 52.) Mico concluded that appellee’s negligent
conduct caused Derek Valentino’s drowning. (Id. at 53.)
Appellee argues that Mico’s opinion was unsupported by any applicable
industry standard. (Appellee’s brief at 45.) According to appellee, Mico’s
report is based on his own personal and retrospective views on how the
event should have been organized. (Id. at 47.) Appellee also argues that
Mico failed to explain how appellee’s alleged breach of duty proximately
caused the decedent’s death. (Id. at 48.) Appellee contends that Mico’s
expert report represents a post-hoc, personal opinion and is insufficient to
establish a prima facie case of negligence. (Id. at 49.)
The trial court granted summary judgment for appellee based on
waiver. As such, the trial court did not consider the issue of Mico’s expert
report, nor is it discussed in the trial court’s Rule 1925(a) opinion. As there
is no ruling on the matter, we decline to address it for the first time on
appeal. The trial court may consider this issue on remand.
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Affirmed in part and reversed in part. Case remanded for further
proceedings consistent with this Opinion. Jurisdiction relinquished.
Wecht, J. joins the Opinion.
Olson, J. files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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