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2016 PA Super 248
MICHELE VALENTINO, : IN THE SUPERIOR COURT OF
AS ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA
OF 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: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES,
PANELLA, SHOGAN, LAZARUS, OLSON, AND OTT, JJ.
CONCURRING AND DISSENTING OPINION BY FORD ELLIOTT, P.J.E.:
FILED NOVEMBER 15, 2016
Because I conclude that Derek Valentino’s release agreement did not
bind appellant and did not preclude her from bringing a wrongful death
action, I must respectfully dissent from that part of the Majority’s Opinion. I
join the Opinion in all other respects.
While the Majority attempts to distinguish Buttermore v. Aliquippa
Hospital, 561 A.2d 733 (Pa. 1989), and Brown v. Moore, 247 F.2d 711
(3rd Cir. 1957), cert. denied, 355 U.S. 882 (1957), I find those cases to be
instructive. In Buttermore, James Buttermore was involved in an
automobile accident, sustaining injuries. Buttermore, 561 A.2d at 734. He
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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, 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 release and 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 v. Extendicare Homes, Inc., 77 A.3d 651, 658 (Pa.Super. 2013),
appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890,
U.S. (2014), citing Pennsylvania Railroad Co. v. Henderson, 51 Pa.
315, 317 (1866) (“This suit is brought by the widow, and her right of action
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cannot be affected by any discharge or release of [husband] in his
lifetime.”).
Similarly, in Brown v. Moore, 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
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,
[S]ince this case may well come before the reviewing
Court we 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.
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Id. (emphasis added).1
Relying on California law, including Madison v. Superior Court, 203
Cal.App.3d 589 (Cal.App. 2 Dist. 1988), the Majority concludes that even if
appellant can bring the wrongful death action, appellee had no duty to the
decedent because of his complete waiver. According to the Majority, 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. Therefore, even assuming appellant can
sue for wrongful death, she cannot possibly recover where appellee has a
complete defense based on the decedent’s assumption of the risk.
I view the Madison line of cases as creating a distinction without a
difference, i.e., a wrongful death claimant can bring suit but will inevitably
1
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
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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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.2 I 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 “paradoxical” and “internally
inconsistent.” Id. at 725.3
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
2
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. Pisano, 77
A.3d 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. Id. at 660.
3
“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), affirmed, 136 A.3d 485 (Pa. 2016).
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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 New Jersey, Appellate Division,
affirmed, holding that the decedent did not have the legal authority to
bargain away his heirs’ statutory right to bring a wrongful death action:
The release agreement here was signed by decedent
and defendants. It can therefore only bind these
parties. On its face the release only manifests
decedent’s intention to waive defendants’ duty of
care pertaining to his personal safety. In order for
such a waiver to also apply to decedent’s heirs, the
agreement must manifest the unequivocal intention
of such heirs to be so bound. The public policy
underpinning the Wrongful Death Act requires that
we narrowly construe any attempt to contractually
limit or, as in this case, outright preclude recovery.
Decedent’s unilateral decision to contractually waive
his right of recovery does not preclude his heirs, who
were not parties to the agreement and received no
benefit in exchange for such a waiver, from
instituting and prosecuting a wrongful death action.
Id. at 727.
The Gershon court also rejected the Madison line of cases as against
the public interest4 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
4
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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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 Majority contends that allowing third-party claims including
wrongful death where the decedent expressly assumed the risk of injury
would expose insurers to increased liability, and that it is impractical to
expect defendants to obtain releases from all potential plaintiffs. 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
5
As in New Jersey, in Pennsylvania, the purpose of the wrongful death
statute is to create a right of recovery for economic loss caused by the death
of a family member, including children who were dependent upon the
decedent for economic support. See Pisano, 77 A.3d at 658-659 (“In
contrast [to a survival action], 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.”) (citations omitted); see also Amato v. Bell & Gossett, 116
A.3d 607, 625 (Pa.Super. 2015), appeal granted in part on other
grounds, 130 A.3d 1283 (Pa. 2016) (“The purpose of the 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)).
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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).6
Following Pisano, I 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, I reject the Majority’s position 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.
For these reasons, I would remand the matter for further proceedings,
including for the trial court to consider the issue of Mr. Mico’s expert report.
As such, I am compelled to respectfully dissent.
Panella and Lazarus, JJ. join this Concurring and Dissenting Opinion.
6
Presumably, there are still triathlons, road races, and similar events held in
the State of New Jersey, despite the decision in Gershon. A wrongful death
claimant would still have to prove negligence. I would also note that these
liability waivers are contracts of adhesion, and a participant cannot compete
without executing the waiver and agreeing to assume all risk.
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