HARRISBURG, Pa. (CN) - The widow of a man who drowned during the 2010 Philadelphia Triathlon cannot advance her lawsuit against the event organizers, a divided en banc Pennsylvania Superior Court ruled.
The majority affirmed a trial court decision to grant summary judgment for the defendant Philadelphia Triathlon LLC. Last year, a three-judge panel of the superior court had reversed that decision, holding that because the widow did not sign the waiver, she was not bound by the release of claims.
Superior Court Judge Judith Ference Olson, writing for the majority, saidDerek Valentino's decision to transfer liability to himself by signing the waiver eliminated any possibility of tortious conduct on the part of the defendant.
As recounted in a ruling, Valentino registered to participate in the annual Philadelphia Triathlon on Jan. 24, 2010.
As part of the registration process, he paid a registration fee and electronically executed a liability waiver form.
The ruling states that the waiver explicitly said, "participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis, and death."
Valentino's signature on the liability form, "acknowledges and assumes identified risks and pledges that [Triathlon] will not be held liable for resulting harms," the complaint states.
On June 26, 2010, Valentino was among the hundreds of people who turned out to participate in the Philadelphia Insurance Triathlon Sprint, an event consisting of a half-mile swim, a 15.7-mile bicycle race, and a three-and-one-tenth-mile run.
The swimming portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania.
Valentino entered the river at about 8:30 a.m. the morning of the event; his body was pulled from the river the following day, Olson writes.
Valentino's widow filed a wrongful death action, blaming her husband's demise on the "outrageous acts," "gross negligence," and "recklessness" of the defendant event organizers.
Michele Valentino said the 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."
However, Judge Olson from the Superior Court of Pennsylvania upheld the lower court's summary judgment findings. Confirming only "ordinary negligence" and explaining there was "no conscious disregard for the risks of participants."
The trial court dismissed her claims, finding that the defendant Philadelphia Triathlon LLC had been no more than ordinarily negligent.
When the case moved on to the superior court, attorneys for Michele Valentino said the judges should be guided by the case Pisano v. Extendicare Homes, in which the court held that a waiver does not extinguish third-party rights.
The three-judge superior court panel agreed, ruling that the release signed by Derek Valentino bound only himself and the race organizers.
In her Nov. 15 opinion for the majority of the en banc court, Olson noted that the "appellant does not dispute that the liability waiver constituted an express assumption of the risk by Mr. [Derek] Valentino.
"This confirms that appellee owed no legal duty to Mr. Valentino and, therefore, appellee cannot be found to be negligent," Olson wrote. "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."
But Judge Kate Ford Elliot, who had written the opinion the three-judge panel handed down in December 2015, stuck to her original opinion, writing in an opinion that concurred in part and dissented in part from the majority, that the release Valentino signed bound only him and the organizers.
But Olson and her colleagues in the majority said 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."
In the end, she said, "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."