[J-14-2018] [OISA: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
MICHELE VALENTINO, AS : No. 17 EAP 2017
ADMINISTRATRIX OF THE ESTATE OF :
DEREK VALENTINO, DECEASED, AND : Appeal from the Judgment of Superior
MICHELE VALENTINO, IN HER OWN : Court entered on November 15, 2016
RIGHT, : at No. 3049 EDA 2013 affirming the
: Order entered on September 30, 2013
Appellant : in the Court of Common Pleas,
: Philadelphia County, Civil Division at
: No. 1417 April Term, 2012
v. :
: ARGUED: May 15, 2018
:
PHILADELPHIA TRIATHLON, LLC, :
:
Appellee :
OPINION IN SUPPORT OF REVERSAL
JUSTICE DONOHUE DECIDED: June 18, 2019
I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too
disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement
may serve as a complete defense to the wrongful death heir’s claim against the Triathlon.
I write separately to express my view that, in light of the derivative nature of wrongful
death actions, the Superior Court was technically correct in its analysis of the mechanical
operation of the liability waiver in reaching its conclusion. However, when the mechanical
operation of the law works to defeat the purpose of a remedial statute like the Wrongful
Death Act, by way of the broad enforcement of a legally disfavored exculpatory
agreement, the mechanical operation must yield.
As Justice Dougherty explains, this Court has repeatedly affirmed a requirement
that exculpatory agreements must be narrowly and strictly construed because exculpatory
language, which purports to relieve a person of liability even when he has negligently
caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 10, 13-14
(citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 224 A.2d
620, 623 (Pa. 1966); Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa.
2010); Topp Copy Prods. Inc. v. Singletary, 626 A.2d 98 (Pa. 1993); Dilks v. Flohr
Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963)). Here, Appellant does not challenge the
validity or the enforceability of the contractual assumption of risk in the survival action she
brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this
appeal, the liability waiver is valid and enforceable as a complete defense to the survival
action. As between the Triathlon and Decedent, there is a knowing and voluntary
agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.
I believe that we must, however, decline to allow the liability waiver to defeat a
wrongful death action brought by heirs who never agreed, expressly or otherwise, to
eliminate their statutory right to recover for their pecuniary loss resulting from the death
of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the
liability waiver to defeat the wrongful death action, as the Superior Court did, gives the
waiver the broadest possible reading, contrary to our mandate to narrowly construe such
provisions. The tenet of strict construction requires that we limit this liability waiver to its
narrowest effect: a bar to recovery under the survival action.
Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it
must meet three conditions: it must not contravene public policy, the contract must be
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between persons relating entirely to their own private affairs, and each party must be a
free bargaining agent to the agreement so that the contract is not one of adhesion. OISR
(Dougherty, J.) at 10-11 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs,
this Court’s decision in Boyd v. Smith, 94 A.2d 44 (Pa. 1953), is instructive. In Boyd, an
agreement between a property owner and a tenant relieved the property owner from
liability for any injury occasioned by the property owner’s negligence in the maintenance
of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building
… shall be used for human habitation unless it is equipped with a fire escape or fire
escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was
not equipped with fire escapes. The building caught fire and, unable to escape the
building by fire escape, the tenant sustained serious injuries and sued. The property
owner attempted to rely on the exculpatory agreement in the lease to avoid liability.
We declined to find the waiver enforceable, explaining:
Such a protective clause is undoubtedly valid and enforceable
if it does not contravene any policy of the law, that is, if it is
not a matter of interest to the public or the state but merely an
agreement between persons relating entirely to their private
affairs. The situation becomes an entirely different one in the
eye of the law when the legislation in question is, as here, a
police measure obviously intended for the protection of
human life; in such event public policy does not permit an
individual to waive the protection which the statute is designed
to afford him.
Id. at 46. We further held, “where the legislature has, by definite and unequivocal
language, determined the public policy of this Commonwealth with regard to a particular
subject, that pronouncement cannot be set aside and rendered unenforceable by a
contract between individuals.” Id.
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We are tasked here with determining the legal effect of a liability waiver upon a
third party, not the signatory - a far more extreme reach of the waiver of liability than in
Boyd. However, as in Boyd, the fullest enforcement of the liability waiver would
contravene an unequivocal policy determination by the General Assembly, namely that
wrongful death heirs are entitled to recover pecuniary losses from the party responsible
for their provider’s death. See OISR (Dougherty, J.) at 9-10, 13.
The Wrongful Death Act, which is remedial in nature and must be construed
liberally, assures that surviving heirs do not need to go without financial support nor look
to public welfare agencies to shoulder the economic burden of the loss of a provider. See
Kaczorowski, 184 A. at 665; see also Gershon v. Regency Diving Center, 845 A.2d 720,
728 (N.J. Super. App. Div. 2004) (observing that, “in many wrongful death cases the
decedent was the ‘breadwinner’ and the heirs are children, incompetents or those
otherwise economically dependent on the decedent”). Notably, in the case at bar,
Decedent was a forty-year-old husband and father of two who worked full-time for United
Parcel Service and part-time as a licensed realtor. See Appellant’s Response to
Triathlon’s Motion for Summary Judgment at 2.
Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful
death claim would require us to ignore clear public policy embedded in the wrongful death
statute and our laws governing decedents more generally. Analogously, the General
Assembly has for centuries prohibited spousal disinheritance by will in order to ensure
the surviving spouse’s financial security after the decedent’s death. See In re Houston's
Estate, 89 A.2d 525, 526 (Pa. 1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving
spouse to take against the will an elective share of one-third of the deceased’s property,
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subject to certain exceptions, thereby ensuring the surviving spouse’s right to some
inheritance). Thus, a married individual cannot eliminate his spouse’s statutory
entitlement, even through an attempted disinheritance in a last will and testament. In my
view, it is impossible to reconcile allowing a sporting event participant to eradicate a
statutory claim for wrongful death damages when he could not accomplish a
disinheritance by virtue of a will. For this reason, and because liability waivers are
disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is
enforceable only in the survival action brought on behalf of Decedent’s estate, where it
was not challenged. Cf. Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on
public policy grounds). So construed, it has no effect on the wrongful death action. Like
Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver
of the Triathlon’s duty of care in the wrongful death action because doing so would
implicate public, not merely private, affairs and would contravene the policy set forth by
our legislature in the Wrongful Death Act which we must liberally construe. OISR
(Dougherty, J.) at 14; see also Chepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.
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