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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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