The Pennsylvania Supreme Court will hear an appeal from the dismissal of a wrongful death lawsuit brought by the widow of Derek Valentino, a triathlete who drowned in a 2010 event organized by Philadelphia Triathlete LLC. The Court will determine whether the wrongful death claims brought by Mr. Valentino’s widow against Philadelphia Triathlete are barred by the liability waiver signed by him.

As part of the registration process for the triathlon, Mr. Valentino paid a fee and electronically executed the liability waiver assuming all risks of participating in the event. The swimming portion of the competition occurred in the Schuylkill River. Mr. Valentino entered the river on the morning of the event; his body was discovered in the river the following day.

In her wrongful death suit, Mr. Valentino’s widow claimed that Philadelphia Triathlete was grossly negligent and reckless. She maintained that the event organizers “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 employees.”

A Pennsylvania trial court dismissed the case, based upon the liability waiver signed by Valentino, and finding only ordinary negligence on the part of the event organizer.

Ultimately, the Superior Court affirmed the trial court decision granting summary judgment for Philadelphia Triathlete, holding that the waiver of liability form signed by Valentino precluded a wrongful death action by his family. The Superior Court found that a decedent “may not compromise or diminish a wrongful death claimant’s right of action without consent.”

Nevertheless, Mr. Valentino, in registering online for the Triathlon, executed a liability waiver expressly assuming the risk of participating in the event. The Superior Court found that through the waiver, Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and therefore the defendant’s actions were not tortious. Because the wrongful death claims required plaintiff to establish defendant’s conduct was tortious, the trial court appropriately dismissed her claims.

Stark & Stark Shareholder Jeffrey Krawitz encountered a similar waiver of liability in a New Jersey case involving a triathlete who drowned during the swimming portion of a New Jersey State Triathlon. Mr. Krawitz prevailed in the New Jersey courts with regard to the legal invalidity of a Waiver and Release Agreement signed by the triathlete, defeating a motion for summary judgment brought by the defendants.

In the New Jersey action arising out of that drowning death, defendants asserted, in part, that plaintiff’s claims were barred by the Waiver and Release of Liability Form electronically signed by the participant when he registered for the race. Mr. Krawitz successfully argued on plaintiff’s behalf that the release was void as a matter of public policy. The release could not, as a matter of law, bar the plaintiff’s beneficiaries’ claims for wrongful death or for actions or inactions of the defendants that were anything more than ordinary negligence. Mr. Krawtiz asserted that defendants knowingly misrepresented material facts in relation to the safety measures that were in existence during the subject Triathlon. As asserted in plaintiff’s complaint, defendants’ actions were negligent, careless, and reckless. A genuine issue of material fact existed as to whether defendants’ acts or omissions, resulting in the drowning death, went beyond simple or ordinary negligence.

Mr. Krawitz also successfully argued that, under the prevailing case law, plaintiff’s wrongful death claims on behalf of the beneficiaries could not be barred by any waiver or release that the athlete/participant executed. In Gershon v. Regency Diving Center, Inc.,, the New Jersey Appellate Division held that a “[d]ecedent’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.” That means an exculpatory release agreement can only bind the individuals who signed it, under the prevailing law in New Jersey, which is not only logical, but patently fair.