Valentino v. Philadelphia Triathlon, LLC

J-E02008-16

2016 PA Super 248

MICHELE 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.

PHILADELPHIA TRIATHLON, LLC,

Appellee No. 3049 EDA 2013

Appeal from the Order Entered September 30, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 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.

OPINION BY OLSON, J.: FILED NOVEMBER 15, 2016

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 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 three and

one-tenth mile run. Trial Court Opinion, 8/14/14, at 2. The swimming
J-E02008-16

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

electronically executed a liability waiver form.1 Each participant also
____________________________________________

1
Among other things, the lengthy form stated that Mr. Valentino
“underst[ood] and acknowledge[d] the physical and mental rigors associated
with triathlon,” “realize[d] that running, bicycling, swimming and other
portions of such [e]vents are inherently dangerous and represent[ed] an
extreme test of a person’s physical and mental limits,” and, “underst[ood]
that participation involves risks and dangers which include, without
limitation, the potential for serious bodily injury, permanent disability,
paralysis and death [as well as] dangers arising from adverse weather
conditions, imperfect course conditions, water, road and surface hazards,
equipment failure, inadequate safety measures, participants of varying skill
levels, situations beyond the immediate control of [Appellee], and other
presently unknown risks and dangers[.]” Appellee’s Motion for Summary
Judgment Ex. G, 8/5/13. The form further provided that Mr. Valentino
“underst[ood] that these [r]isks may be caused in whole or in part by [his]
actions or inactions, the actions or inactions of others participating in the
[e]vent, or the acts, inaction or negligence of [Appellee]” and that he
“expressly assume[d] all such [r]isks and responsibility for any damages,
liabilities, losses or expenses” that resulted from his participation in the
event. Id. The liability waiver form also included a provision stating as
follows: “[Mr. Valentino] further agree[s] that if, despite this [a]greement,
he, or anyone on [his] behalf, makes a claim of [l]iability against [Appellee],
[he] will indemnify, defend and hold harmless [Appellee] from any such
[l]iability which [it] may [] incur[] as the result of such claim.” Id.

In block capital lettering above the signature line, the liability waiver
provided that Mr. Valentino’s acceptance of the agreement confirmed that he
read and understood its terms, that he understood that he would surrender
substantial rights (including the right to sue), and that he signed the
agreement freely and voluntarily. Id. Lastly, the form states that
acceptance of the agreement constituted “a complete and unconditional
release of all liability to the greatest extent allowed by law.” Id.

-2-
J-E02008-16

completed and submitted a registration form to obtain a number and a bib to

wear on the day of the race. Mr. Valentino electronically registered as a

participant in the Triathlon on January 24, 2010.

On June 26, 2010, at approximately 8:30 a.m., Mr. 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. The following day, on June 27, 2010, divers retrieved his body from

the Schuylkill River.

Appellant (Mr. 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.

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

-3-
J-E02008-16

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, 2013.2 Appellant sought

reconsideration but the trial court denied her request. Appellant then 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. 1925(b). Subsequently, the trial court explained

its reasons for sustaining Appellee’s 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.3

On December 30, 2015, a divided three-judge panel of this Court

affirmed, in part, and reversed, in part, the rulings issued by the trial court.
____________________________________________

2
Because the trial court previously sustained preliminary objections to
Appellant’s claims of outrageous acts, gross negligence, recklessness, and
punitive damages, we read the trial court’s summary judgment order as
dismissing claims of ordinary negligence that comprised Appellant’s survival
and wrongful death actions. In reaching this decision, the court relied upon
the liability waiver executed by Mr. Valentino.
3
This Court filed its 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 (2014) on August 12, 2013, holding that a
non-signatory wrongful death claimant was not bound by an arbitration
agreement signed by a decedent. Owing to our decision in Pisano, the trial
court in its Rule 1925(a) opinion urged this Court to vacate the order
granting summary judgment as to Appellant’s wrongful death claims.

-4-
J-E02008-16

Specifically, the panel unanimously affirmed the trial court’s order sustaining

Appellee’s preliminary objections. In addition, the panel unanimously

agreed that: (1) the completion of discovery and the further development of

the factual record defeated application of the coordinate jurisdiction rule and

eliminated factual issues surrounding Mr. Valentino’s execution of the

liability waiver; (2) Appellant’s failure to state viable claims involving

recklessness, outrageousness, and intentional misconduct on the part of

Appellee mooted Appellant’s argument that a contractual waiver of such

claims would be ineffective; and, (3) there was no basis to consider the

sufficiency of the testimony of Appellant’s expert since the trial court did not

address that issue. Citing Pisano, however, two of the three members of

the petite panel concluded that the liability waiver executed by Mr. Valentino

did not apply to Appellant because she was not a signatory to the

agreement.4 Consequently, this Court vacated summary judgment in favor

of Appellee as to Appellant’s wrongful death claims. 5 Thereafter, both

Appellant and Appellee requested reargument en banc. By order filed on

____________________________________________

4
Distinguishing the arbitration clause at issue in Pisano, the dissent found
that Appellant’s claims were subject to the liability waiver under which Mr.
Valentino expressly assumed the risk of participating in the Triathlon since
Appellant’s wrongful death action required her to demonstrate that Mr.
Valentino’s death resulted from tortious conduct on the part of Appellee.
5
Our ruling did not purport to alter the trial court’s reliance on the liability
waiver as grounds for entering summary judgment as to Appellant’s survival
claims.

-5-
J-E02008-16

March 11, 2016, this Court granted en banc reargument and withdrew our

opinions of December 30, 2015. We now address the following questions:

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 [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[s] 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 [Appellee’s] 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 Substituted Brief at 7-8.

-6-
J-E02008-16

In the first issue, Appellant asserts that the trial court erred in

sustaining the preliminary objections and striking all references to

outrageous acts, 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 Substituted 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 [sustaining] 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.

-7-
J-E02008-16

HRANEC Sheet Metel, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,

118 (Pa. Super. 2014).

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), aff’d, 922 A.2d 890 (Pa. 2007).

Appellant’s amended complaint alleges that Mr. 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

-8-
J-E02008-16

supervise its employees. These allegations, however, averred nothing more

than ordinary negligence arising from inadvertence, mistake, or error in

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 and

reckless conduct and properly struck her punitive damage claims.

In the second issue, Appellant 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).

-9-
J-E02008-16

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

“failures to employ adequate policies, procedures, and protocols in

conducting the event” (¶ 22(m)) as the basis for her claims. 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 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, however, is 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.

- 10 -
J-E02008-16

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

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 we conclude that the trial court committed no error in striking

paragraphs 22(a), (c), (e), and (m) from the amended complaint.

The 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).

- 11 -
J-E02008-16

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

denied. Second, Appellant contends that genuine issues of material fact

regarding whether Mr. Valentino actually executed a liability 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, the liability waiver executed in this

case is incapable of extinguishing such claims. Appellant also asserts that,

pursuant to our prior decision in Pisano, a decedent’s liability waiver is

ineffective as to non-signatory third-party wrongful death claimants. 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. We

address these contentions in turn.

We begin with Appellant’s claim alleging that the coordinate

jurisdiction rule precluded consideration of Appellee’s motion for summary

judgment since the trial court denied a prior summary judgment motion.

The coordinate jurisdiction rule holds that, “upon transfer of a matter

between trial judges of coordinate jurisdiction, a transferee trial judge may

not alter resolution of a legal question previously decided by a transferor

- 12 -
J-E02008-16

trial judge.” Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003). An

exception to this rule applies, however, “when there has been a change in

the controlling law or where there was a substantial change in the facts or

evidence.” Id. 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 in this case. Hence, this

contention merits no relief.

Appellant next advances a claim asserting that genuine issues of fact

surrounding Mr. Valentino’s execution of the liability waiver preclude

summary judgment in favor of Appellee. In developing this contention,

Appellant draws our attention to differences between the version of the

liability waiver introduced in support of Appellee’s first motion for summary

judgment and the version submitted in support of its second motion.

Appellant’s Substituted Brief at 37-41. Appellant notes that the second

version was two and one-half pages in length while the first version was only

two pages. Appellant also notes that the second version bore the date

“2011” while the event occurred in 2010. Lastly, the second version

included the words “Yes, I agree to the above waivers” above the signature

line while the first version did not.

There is ample support for the trial court’s finding that Mr. Valentino

executed the liability waiver when he electronically registered for the

Triathlon. See Trial Court Opinion, 8/14/14, at 4 (“In the second motion for

- 13 -
J-E02008-16

summary judgment, it is undisputed that a waiver was among the

decedent’s possessions, prior to being discovered in the Schuykill River.”).

The record shows that Appellee retained the services of ACTIVE Network

(ACTIVE) to implement the online registration process for the Triathlon.

ACTIVE implemented the required specifications for online registration,

including guidelines for specific waiver and assumption of the risk language,

supplied by Appellee and USA Triathlon (USAT), the national governing body

of the sport of triathlon. USAT sanctioned the Triathlon because Appellee

followed USAT registration guidelines.

Appellee also demonstrated that no one could participate in the

Triathlon without registering online, a process that could not be completed

without the execution of a liability waiver. It is not disputed that Mr.

Valentino registered online by completing the required process. He paid his

registration fee with a credit card issued in his name and for which he

retained exclusive possession.

Appellee also offered the affidavit of Eric McCue, the general manager

of ACTIVE, to explain why the appearance of the liability waiver varied

between the submission of the first and second motions for summary

judgment. According to Mr. McCue’s affidavit, “ACTIVE’s computer system

condenses older registration and waiver documents for storage purposes,

making any printed version of the older retained registration and waiver

documents appear smaller than when they were viewed online by the

- 14 -
J-E02008-16

reader/registrant.” Appellee’s Motion for Summary Judgment Ex. L at ¶ 9,

8/5/13. Mr. McCue also stated that “the reader/registrant would view the

online registration for the subject event exactly as it appears on Exhibit B [of

Appellee’s August 5, 2013 motion for summary judgment] on his or her

computer screen.” Id. at ¶ 10. Appellant offered no evidence to dispute Mr.

McCue’s affidavit testimony.

Lastly, Appellee relied upon the deposition testimony of witnesses to

demonstrate that Mr. Valentino executed the liability waiver during the

electronic registration process. At her deposition, Appellant admitted she

had no reason to believe that Mr. Valentino did not read and understand the

liability waiver or that he did not sign it during the registration process. In

addition, Appellee pointed to the deposition testimony of Andrea Pontani, Mr.

Valentino’s friend. Ms. Pontani testified that Appellant and Mr. Valentino

were aware of the liability waiver because they spoke with her about it

before the competition, stating that Mr. Valentino signed the form and

presented it in order to obtain his competitor’s bib during the registration

process on the day of the event. Based upon the forgoing, we agree with

the trial court that Appellant presented no evidence raising a genuine issue

of fact as to whether Mr. Valentino executed the liability waiver at issue in

this case.

We turn next to Appellant’s position that, even if Mr. Valentino

executed the liability waiver, the agreement is unenforceable with regard to

- 15 -
J-E02008-16

claims asserting reckless or intentional conduct. Here, however, we have

previously affirmed the trial court’s determination that Appellant did not

state viable claims involving reckless or intentional conduct. See infra. As

such, Appellant’s contention cannot serve as a basis for disturbing the trial

court’s summary judgment order, which dismissed allegations of ordinary

negligence comprising Appellant’s wrongful death and survival actions.6

Appellant forwards a claim that our decision in Pisano bars Appellee’s

reliance on a liability waiver to defend wrongful death claims asserted by a

non-signatory statutory claimant. See Appellant’s Substituted Brief at

45-47; see also Trial Court Opinion, 8/14/14, at 5. In Pisano, a nursing

home resident signed a contract agreeing to submit all claims against the

home to binding arbitration. When the resident died, the administrator of

the resident’s estate asserted wrongful death claims against the home and

the home invoked the arbitration clause. The trial court denied the home’s

petition to compel arbitration. On appeal, this Court affirmed, concluding

that the arbitration clause was not binding against wrongful death claimants

who did not sign the agreement because they possessed a separate and

distinct right of action. Pursuant to this holding, Appellant maintains that

since she did not sign the liability waiver executed by her late husband, the
____________________________________________

6
Appellant does not challenge the substantive validity of the liability waiver
as a bar to her claims of ordinary negligence. Consequently, we need not
address the validity of the exculpatory provisions in the context of this case.

- 16 -
J-E02008-16

contractual waiver cannot be asserted as a bar to her wrongful death claims.

We disagree.

The statute authorizing wrongful death claims in Pennsylvania provides

as follows:

§ 8301. Death action

(a)General rule.-- An action may be brought [for the benefit of
the spouse, children or parents of the deceased], under
procedures prescribed by general rules, to recover damages
for the death of an individual caused by the wrongful act
or neglect or unlawful violence or negligence of another if
no recovery for the same damages claimed in the wrongful death
action was obtained by the injured individual during his lifetime
and any prior actions for the same injuries are consolidated with
the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S.A. § 8301 (emphasis added) (sometimes referred to as “Wrongful

Death Act”). Eight decades ago, our Supreme Court interpreted a prior, but

similar, version of the statute. The Court made clear that the statute

contemplated that a claimant’s recovery required a tortious act on the part

of the defendant:

[W]e have held that a right to recover must exist in the party
injured when he died in order to entitle[] those named in the act
to sue. We have therefore held, in order that the death
action impose no new and unjust burden on the
defendant, that where the deceased would have been
barred by contributory negligence, or by the statute of
limitations, the parties suing for his death are likewise
barred. 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

- 17 -
J-E02008-16

free from personal disabilities arising from the relationship of the
injured party and tort-feasor.

Kaczorowski v. Kalkosinski, 184 A. 663, 664 (Pa. 1936) (internal citations

omitted; emphasis added).

Our decision in Pisano limited a decedent’s authority to diminish or

alter a non-signatory third-party claimant’s procedural election to pursue a

claim in the forum of his or her choice. That decision, however, did not

purport to undermine the fundamental principle that both an estate in a

survival action, and a statutory claimant in a wrongful death action, shoulder

the same burden of proving that tortious conduct on the part of the

defendant caused the decedent’s death. Under Pisano, “wrongful death

actions are derivative of decedents' injuries but are not derivative of

decedents' rights.” Pisano, 77 A.3d at 659-660. Thus, while a third party’s

wrongful death claim is not derivative of the decedent’s right of action, a

wrongful death claim still requires a tortious injury to succeed.

As suggested above, Pennsylvania case law has long held that a

wrongful death claimant’s substantive right to recover is derivative of and

dependent upon a tortious act that resulted in the decedent’s death. Our

reasoning in Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384

(Pa. Super. 2002), aff’d, 838 A.2d 662 (Pa. 2003) illustrates this point:

A wrongful death action is derivative of the injury which would
have supported the decedent's own cause of action and is
dependent upon the decedent's cause of action being viable at
the time of death. [Moyer v. Rubright, 651 A.2d 1139, 1143
(Pa. Super. 1994)]. “As a general rule, no action for wrongful

- 18 -
J-E02008-16

death can be maintained where the decedent, had he lived,
could not himself have recovered for the injuries sustained.”
Ingenito v. AC & S, Inc., 633 A.2d 1172, 1176 (Pa. Super.
1993). Thus, although death is the necessary final event in a
wrongful death claim, the cause of action is derivative of the
underlying tortious acts that caused the fatal injury. Id.

Sunderland, 791 A.2d at 390-391 (emphasis added; parallel citations

omitted).

Applying these settled principles in the present case, we conclude that

a decedent may not compromise or diminish a wrongful death claimant’s

right of action without consent. Nevertheless, a third-party wrongful death

claimant is subject to substantive defenses supported by the decedent’s

actions or agreements where offered to relieve the defendant, either wholly

or partially, from liability by showing that the defendant’s actions were not

tortious. Here, Mr. Valentino, in registering online for the Triathlon,

executed a detailed liability waiver under which he expressly assumed the

risk of participating in the Triathlon and agreed to indemnify Appellee for

liability stemming from his involvement in the event. The valid liability

waiver executed by Mr. Valentino was available to support Appellee’s claim

that Mr. Valentino knowingly and voluntarily assumed the risk of taking part

in the competition and that, therefore, Appellee’s actions were not tortious.

Since Appellant’s wrongful death claims required her to establish that

Appellee’s conduct was tortious, the trial court did not err in granting

summary judgment in favor of Appellee.

- 19 -
J-E02008-16

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. Because the

decedent signatory agreed to submit his claim to arbitration, his claim is

subject to the compulsory provisions of the agreement. A non-signatory

wrongful death claimant, on the other hand, cannot be compelled to present

his claim to an arbitrator since he has not consented to arbitration and since

he possesses an independent, non-derivative right to air his claim in the

forum of his choice.

- 20 -
J-E02008-16

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.

Appellant also overinflates the importance of the presence of a

wrongful death claimant’s signature when evaluating the enforceability of a

liability waiver. Under Pisano, a wrongful death claimant possesses an

independent, non-derivative right of action that cannot be subject to

compulsory arbitration in the absence of consent. Thus, to enforce an

arbitration clause in the wrongful death context, the claimant’s signature is

necessary to demonstrate that she agreed to submit her claim to binding

arbitration. The same is not true for a liability waiver, however. As

explained above, a valid waiver signed only by the decedent transfers the

risk of harm from the defendant to the decedent, effectively rendering the

- 21 -
J-E02008-16

defendant’s conduct non-tortious. Since the wrongful death claimant’s

substantive right of recovery presupposes tortious conduct on the part of the

defendant, the claimant’s signature on the waiver is unnecessary.

Although we have uncovered no recent Pennsylvania case law that

discusses the application of a valid waiver in a subsequent wrongful death

action, several decisions from California are instructive on this point. These

cases illustrate that, while a valid waiver does not bar a wrongful death

claim, it can support a defense asserting that the alleged tortfeasor owed no

duty to the decedent:

Although a wrongful death claim is an independent action,
wrongful death plaintiffs may be bound by agreements entered
into by decedent that limit the scope of the wrongful death
action. Thus, for example, 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.

Ruiz v. Podolsky, 237 P.3d 584, 593 (Cal. 4th 2010). Hence, where a

decedent executes a valid waiver:

the express contractual assumption of the risk, combined with
the express waiver of defendants' negligence, constitute[s] a
complete defense to the surviving heirs' wrongful death action.
This is different than holding th[at the wrongful death] action is
barred.

Scroggs v. Coast Community College Dist., 193 Cal.App.3d 1399, 1402

(Cal. App. 4th Dist. 1987); Eriksson v. Nunnick, 233 Cal.App.4th 708 (Cal.

App. 4th Dist. 2015); Madison v. Superior Court 203 Cal.App.3d 589 (Cal.

App. 2nd Dist. 1988).

- 22 -
J-E02008-16

These cases align with Pennsylvania law in a way that the decisional

law of other states does not. For example, in Gershon v. Regency Diving

Center, Inc., 845 A.2d 720 (N.J. Super. 2004), the Appellate Division of the

New Jersey Superior Court rejected the rationale in Madison and the other

California cases, noting that the California approach was “internally

inconsistent” since it allowed claimants to file a lawsuit that ultimately would

not succeed. This reasoning constitutes a one-dimensional view of the issue.

Take, for example, a case in which the decedent executes a valid liability

waiver, as here. Thereafter, the defendant raises a successful assumption of

the risk defense against the decedent’s estate in a survival action. Under

the holding in Gershon, the defendant cannot raise the defense in a

companion wrongful death action. Gershon thus trades one “inconsistency”

for another since it allows a wrongful death action to proceed in the face of a

valid waiver that precludes a related survival action. Since the same

underlying conduct by the defendant is the focus of scrutiny in this

hypothetical situation, it is entirely consistent to reject a wrongful death

claim where a valid waiver precludes recovery in a related survival action.7

____________________________________________

7
This Court recently required consolidation of related wrongful death and
survival actions since wrongful death beneficiaries cannot be compelled to
arbitrate wrongful death claims. Taylor v. Extendicare Health Facilities,
Inc., 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa.
2015). However, our Supreme Court overruled our decision in Taylor,
concluding that the Federal Arbitration Act, 9 U.S.C. § 2, preempted
application of Pa.R.C.P. 213(e) (requiring consolidation of survival and
(Footnote Continued Next Page)

- 23 -
J-E02008-16

Our conclusion that Appellee may rely on a liability waiver signed only

by the decedent to defeat Appellant’s wrongful death claims is undiminished

by Pennsylvania case law holding that a settlement and release agreement

does not bind non-signatories. See, e.g., Buttermore v. Aliquippa

Hospital, 561 A.2d 733 (Pa. 1989). In Buttermore, James Buttermore

sustained injuries in an automobile accident. Eventually, he resolved his

claims against the tortfeasor in exchange for the sum of $25,000.00 and

executed a release and settlement agreement in which he agreed to release

any and all persons from liability, whether known or unknown. Later,

Buttermore and his wife initiated an action against Aliquippa Hospital and

certain physicians claiming that treatment he received aggravated the

injuries he sustained in the accident. The defendants moved for summary

judgment on the strength of the release. Our Supreme Court held that the

release barred Buttermore’s claims against all tortfeasors, including those

who were unnamed. The Court further held, however, that Buttermore’s

wife had an independent cause of action for loss of consortium, which was

not barred by the release since she did not sign the agreement.

A pair of examples illustrates the distinction between the situation in

Buttermore and the situation presently before us. In the first example, the

_______________________
(Footnote Continued)

wrongful death actions at trial) and required arbitration of survival claims
where a valid and enforceable arbitration clause exists. Taylor v.
Extendicare Health Facilities, Inc., 2016 WL 5630669 (Pa. 2016).

- 24 -
J-E02008-16

driver of car A operates his vehicle on a public highway. He is injured after a

rear-end collision caused by the driver of car B. Litigation ensues between

the two drivers and, eventually, the driver of car A resolves his claims

against the driver of car B for the sum of $30,000.00. At that time, the

driver of car A executes a release and settlement agreement, releasing all

persons from liability – whether known or unknown – for claims stemming

from injuries and losses he sustained in the accident. His spouse does not

sign the release. As in Buttermore, the release signed by the driver of car

A bars all claims he initiates in the future but does not bar loss of consortium

claims or wrongful death claims (should he succumb to his injuries) brought

by his spouse, who possesses independent causes of action. In this

scenario, the execution of the release manifests the driver of car A’s

agreement to forgo all future claims but does not establish his assumption of

the risk of operating his vehicle. Nothing in the release suggests that the

driver of car A intended to shift the risk of loss away from the driver of car B

and onto himself. Indeed, the execution of the release after the

injury-causing accident leaves no room for the inference that he assumed

this risk of negligence on the part of the driver of car B. Since nothing in the

release precludes a finding that the driver of car B acted tortiously, the

release has no preclusive effect on the spouse’s right to seek damages in the

context of a subsequent loss of consortium or wrongful death action.

- 25 -
J-E02008-16

In the second example, the driver of car A decides to participate in a

demolition derby. As a condition of entry, he voluntarily executes a liability

waiver under which he assumes the risk of participation in the event and

waives all potential claims against other participants and event organizers.

Again, the spouse of the driver of car A does not sign the liability waiver.

During the demolition derby, the driver of car A sustains injuries and

eventually dies as a result of a collision with another participant. In this

scenario, loss of consortium and wrongful death claims asserted by the

spouse of the driver of car A are subject to the liability waiver. This is

because the driver of car A expressly manifested his intent to assume the

risk of participating in the demolition derby, thereby shifting the risk of loss

or injury away from other participants and event organizers. Unlike the

release and settlement agreement in the first example that said nothing

about assumption of the risk or any other substantive basis to oppose tort

liability, the liability waiver in this hypothetical supports a complete bar to

financial responsibility for injury and losses and bears directly on the formula

by which we assess whether a defendant acted tortiously in causing

damages. Because even non-signatory wrongful death claimants bear the

burden of proving that tortious conduct caused the decedent’s death, their

claims are subject to liability waivers under which the deceased assumed the

- 26 -
J-E02008-16

risk of engaging in a particular activity.8 As the circumstances before us

more closely reflect this second example, the instant appeal calls for

application of the principles alluded to in prior Pennsylvania cases and

specifically articulated in the California line of authority. See infra. Thus,

we are not persuaded that Pennsylvania case law construing the applicable

scope of release and settlement agreements undermines our conclusion that

Appellant’s wrongful death claims are subject to the liability waiver signed by

Mr. Valentino.

For related reasons, we conclude that the decision in Brown v.

Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882 (1957) is

also unpersuasive. In that case, Brown, a neurotic, entered a sanitarium for

treatment which included electrical shock therapy. While in the sanitarium,

Brown fell down a flight of stairs. After the fall, sanitarium employees

picked Brown up by his extremities, causing paralysis. Upon entry into the

____________________________________________

8
Although strictly construed, Pennsylvania law recognizes the enforceability
of valid liability waivers, particularly in cases where the injured party elects
to engage in activities that entail an obvious risk of injury or loss. See,
e.g., Hinkal v. Pardoe, 133 A.3d 738 (Pa. Super. 2016) (en banc) (gym
membership), appeal denied, 2016 WL 3910827 (Pa. 2016). We would
substantially reduce the utility of liability waivers if we were to hold that they
are enforceable only against signatories, but not against non-signatory
wrongful death claimants. Moreover, it would be extremely impractical to
expect defendants to acquire signatures from all such potential plaintiffs.
Indeed, it should almost go without saying that event organizers and hosts
of activities that entail a risk of injury would likely cease operations if valid
liability waivers could not be enforced against non-signatory statutory
claimants such as Appellant.

- 27 -
J-E02008-16

sanitarium, Brown and his wife signed a release relieving the sanitarium and

its employees from liability for injuries resulting from his mental health

treatment, including electro-shock therapy or similar treatments. As

Brown’s widow and the executrix of his estate, Brown’s wife brought claims

under the Wrongful Death Act on behalf of herself and her three minor

children, as well as a Survival Act claim. The court’s opinion in Brown

suggested that the release was sufficient to alleviate the defendants’ liability

under the Survival Act and to defeat Brown’s widow’s claims under the

Wrongful Death Act since the decedent and Brown’s wife signed the

agreement. Nevertheless, the court opined that Brown’s children could

recover on their wrongful death claims since they were non-signatories. We

find it significant, however, that immediately before reaching this conclusion,

the court concluded that Brown’s treatment following his fall down the stairs

was unrelated to his treatment for his mental health issues, which was the

subject of his release. In essence, then, the court held that while Brown

may have assumed the risk of electro-shock therapy or similar treatments,

he did not assume the risk of faulty medical treatment for injuries sustained

during his fall. Accordingly, Brown does little to support Appellant’s claim

before us.9

____________________________________________

9
As our analysis suggests, courts must exercise great care and caution to
differentiate between an agreement that addresses only the procedural
(Footnote Continued Next Page)

- 28 -
J-E02008-16

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 8. 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
_______________________
(Footnote Continued)

rights of a signatory (i.e., an arbitration agreement) or a signatory’s right to
pursue further claims (i.e., a release and settlement agreement) from an
agreement that goes further and unambiguously manifests a signatory’s
intent to assume the risk of involvement in a particular event or activity
(i.e., a liability waiver). This is because the former binds only the parties to
the agreement while the latter extends to non-signatory third-parties. We
accord broader reach to liability waivers under which the signatory assumes
a particular risk because, where valid, such agreements support a complete
bar to tort liability and therefore form an important part of the assessment
of whether tortious conduct brought about injury, loss, or death. A court’s
examination of this issue necessarily will involve the nature and purpose of
the agreement, as expressed in the exculpatory language of the instrument,
together with the circumstances under which the parties entered the
contract. The analysis should not be limited simply to the label applied to
the agreement and, occasionally, will ask whether the signatory expressly
assumed the precise risk that resulted in his injury. In Brown, for example,
we doubt whether the release should have been given preclusive effect at all
since the precise injury sustained in that case fell outside the scope of the
exculpatory waiver.

- 29 -
J-E02008-16

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.

Citing Pisano, the Dissent asserts that Appellant is not “bound” by the

liability waiver executed by Mr. Valentino and, therefore, the agreement

does not bar her from bringing a wrongful death action. Respectfully, these

contentions miss the point. First, Appellant filed a wrongful death action in

the venue of her choosing and no one asserts that the liability waiver

precluded her from doing so. Second, since it is undisputed that Mr.

Valentino knowingly and voluntarily executed the liability waiver, the issue of

whether Appellant was “bound” by the waiver agreement is irrelevant to

whether Appellee was entitled to an order granting summary judgment as to

the negligence claims asserted in Appellant’s wrongful death action. We

explain.

The record undeniably contains a valid waiver agreement. As such,

the agreement itself constitutes tangible and, indeed, overwhelming proof

that Mr. Valentino intelligently and willingly assumed the risk of participating

in the Triathlon. This is so regardless of whether Appellant was “bound” by

the agreement. The law is clear that a wrongful death claimant’s recovery

must derive from a tortious actious act. Sunderland, 791 A.2d at 390-391.

As even the Dissent concedes, “[a] wrongful death claimant [must] prove

- 30 -
J-E02008-16

negligence.” Dissenting Opinion at 8, fn.6. The law is also clear that the

doctrine of assumption of the risk is a function of the duty analysis required

in any negligence action and that summary judgment may be entered where

the record discloses an absence of general issues of material fact.

Thompson v. Ginkel, 95 A.3d 900, 906-907 (Pa. Super. 2014), appeal

denied, 108 A.3d 36 (Pa. 2015). Since assumption of the risk serves as a

complete bar to tort recovery, Pa.R.C.P. 1035.2(2) permitted Appellee to

seek summary judgment based upon Mr. Valentino’s voluntary and knowing

assumption of the hazards attendant to triathlon participation. See Staub

v. Toy Factory, Inc., 749 A.2d 522, 527 (Pa. Super. 2000).10

____________________________________________

10
In Staub, this Court explained:

For summary judgment purposes, affirmative defenses are
generally decided under Pa.R.Civ.P. 1035.2(1), where it is the
moving party's burden to establish the defense as a matter of
law. Under [Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) and
Hardy v. Southland Corp., 645 A.2d 839 (Pa. Super. 1994),
appeal denied, 652 A.2d 1324 (Pa. 1994)], however, assumption
of risk is now considered part of a “no-duty” analysis. As such,
the doctrine now falls under the second type of summary
judgment motion, described in Pa.R.Civ.P. 1035.2(2). Under
Rule 1035.2(2), a party may obtain summary judgment by
pointing to the adverse party's lack of evidence on an essential
element of the claim. . . . One of the essential elements of a
negligence claim is that the defendant owes the plaintiff a duty
of care. Under Rule 1035.2(2), the defendant's method for
pointing to a lack of evidence on the duty issue is to show that
the plaintiff assumed the risk as a matter of law. This process
will entail gathering and presenting evidence on the plaintiff's
behavior, and attempting to convince the court that the plaintiff
knew the risk and proceeded to encounter it in a manner
(Footnote Continued Next Page)

- 31 -
J-E02008-16

In this case, Appellant does not dispute that the liability waiver

constituted an express assumption of the risk by Mr. Valentino. This

confirms that Appellee owed no legal duty to Mr. Valentino and, therefore,

Appellee cannot be found to be negligent. It follows, then, that the waiver

agreement not only defeated the negligence claims asserted in the context

of Appellant’s survival action, but also the negligence claims asserted in the

context of Appellant’s wrongful death action. Appellee’s right to summary

judgment simply did not depend upon Appellant’s execution of the

agreement.11

_______________________
(Footnote Continued)

showing a willingness to accept the risk. Thus, for all practical
purposes, the process for showing “no-duty” assumption of the
risk under Rule 1035.2(2) is indistinguishable from showing
assumption of the risk as an affirmative defense under Rule
1035.2(1).

Staub, 749 A.2d at 527. For purposes of proving negligence, the only legal
duty referred to in this case is the one allegedly owed by Appellee to Mr.
Valentino. The Dissent identifies no source and no proof of a separate and
independent legal duty owed by Appellee to Appellant.

More broadly, we note that the Dissent places great weight on its contention
that Appellant’s wrongful death action is not derivative of Mr. Valentino’s
injuries. Notwithstanding, even a brief review of Appellant’s amended
complaint and the submissions of the parties reveals that all of the
allegations of negligence underpinning Appellant’s wrongful death claims
involve legal duties, alleged breaches, proximate causation, and harms that
focus exclusively upon Mr. Valentino. Thus, in substantive terms, the
conclusion that Appellant’s wrongful death claims are derivative of the
injuries sustained by Mr. Valentino is inescapable.
11
The Dissent also makes the point that wrongful death claims are intended
to compensate for the loss of the decedent. Wrongful death claims,
(Footnote Continued Next Page)

- 32 -
J-E02008-16

We turn now to Appellant’s claim 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. Here, Appellant relies on Mark Mico, an experienced triathlete,

race director, and race management consultant. Mr. Mico concluded that

Appellee’s negligence caused Mr. Valentino to drown in the Schuylkill River.

Among other things, Mr. Mico stated in his report that Appellee failed to

provide a sufficient number of lifeguards and allowed too many swimmers

into the water during wave launches. He also stated that contestants were

not permitted to wear buoyant wetsuits and that Appellee failed to provide

to lifeguards appropriate instruction and training in open water safety. Mr.

Mico opined that swimmers were given black swimming caps that offered

poor visibility in open water. Finally, Mr. Mico stated that most lifeguards

were familiar only with conditions in swimming pools, not open water.

In this case, the trial court granted summary judgment in favor of

Appellee based upon the liability waiver executed by Mr. Valentino. The trial

_______________________
(Footnote Continued)

however, were not intended to place new and unjust burdens on defendants
and compensation is due only when tortious conduct results in death. In the
present case, the trial court properly entered summary judgment because
Appellant cannot demonstrate that Appellee was negligent, as Appellee owed
no duty to Mr. Valentino. Thus, the goal of compensation does not support
reversal of the trial court’s order. This holding does not “eviscerate” but
wholly aligns with our Wrongful Death Statute, which imposes liability only
where the defendant’s tortious conduct causes death. Compare Dissenting
Opinion at 5.

- 33 -
J-E02008-16

court did not consider the contents of Mr. Mico’s report and did not discuss

the issue in its Rule 1925(a) opinion. Nonetheless, since our scope of review

is plenary, we may and must examine Mr. Mico’s report to determine if it

precludes the entry of summary judgment based on the liability waiver. We

conclude that it does not.

Assuming for purposes of argument that Mr. Mico’s expert report

establishes a prima facie case of negligence, the liability waiver operated to

release Appellee from liability for negligence, and Appellant does not

challenge the validity of the release on that basis. Furthermore, Mr. Mico’s

conclusory opinion that Appellee’s “conduct was to such a degree of

carelessness that it amounts to reckless disregard for the safety of its

participants[,]” does not permit Appellant to avoid the liability waiver.

Report of Michael Mico, 6/30/13, at unnumbered 7. As we previously

determined, the trial court properly held that the facts alleged in the

amended complaint did not support claims that Appellee acted outrageously,

recklessly, or intentionally, and dismissed such claims with prejudice.

Expert opinion to the contrary cannot alter that legal assessment. In

particular, Mr. Mico’s report did not identify specific actions or omissions that

rose to the level of reckless disregard. Reckless disregard requires a

different state of mind and a substantially greater knowledge of impending

risks than ordinary negligence, not simply a higher degree of carelessness, a

- 34 -
J-E02008-16

distinction the expert failed to appreciate.12 See Tayar v. Camelback Ski

Corp., 47 A.3d 1190, 1200 (Pa. 2012) (“Recklessness is distinguishable

from negligence on the basis that recklessness requires conscious action or

inaction which creates a substantial risk of harm to others, whereas

negligence suggests unconscious inadvertence.”) Consequently, nothing in

Mr. Mico’s expert report alters our determination that the liability waiver is

dispositive of Appellant’s wrongful death and survival claims.

In sum, Pennsylvania law distinguishes a wrongful death claimant’s

non-derivative right to bring an action from her derivative right to recover

damages based upon a defendant’s tortious conduct. This distinction allows

a defendant, like Appellee, to assert an express, contractual assumption of

risk based upon a valid liability waiver against a wrongful death claimant,

even where the claimant does not sign the liability waiver agreement.

Applying these settled principles to the case at hand, the order granting

summary judgment in favor of Appellee fully comports with prevailing
____________________________________________

12
Section 500 of the Restatement (Second) of Torts defines reckless
disregard of safety as follows:

The actor's conduct is in reckless disregard of the safety of
another if he does an act or intentionally fails to do an act which
it is his duty to the other to do, knowing or having reason to
know of facts which would lead a reasonable man to realize, not
only that his conduct creates an unreasonable risk of physical
harm to another, but also that such risk is substantially greater
than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500.

- 35 -
J-E02008-16

Pennsylvania law. Thus, we affirm the court’s summary judgment order

dismissing Appellant’s wrongful death and survival claims.

Order affirmed.

Gantman, P.J., Bender, P.J.E., Bowes, Shogan and Ott, JJ., join this

Opinion.

Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which

Panella and Lazarus, JJ. join.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016

- 36 -