The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, v. Epley’s Inc., 2017 U.S. Dist. LEXIS 48179

The Estate of Joseph R. Kane, deceased; Stacie Kane, individually, and as guardian of Joseph P. Kane; and Thomas Kane, individually, Plaintiffs, vs. Epley’s Inc., an Idaho corporation, Defendant.

Case No.: 3:15-cv-00105-EJL-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

2017 U.S. Dist. LEXIS 48179

March 28, 2017, Decided

March 28, 2017, Filed

PRIOR HISTORY: Estate of Kane v. Epley’s Inc., 2016 U.S. Dist. LEXIS 170316 (D. Idaho, Dec. 5, 2016)

COUNSEL:  [*1] For Estate of Joseph R Kane, deceased, Stacie Kane, individually, and as guardian of Joseph P Kane, Joseph P Kane, Thomas Kane, individually, Plaintiffs: Theron A Buck, LEAD ATTORNEY, Frey Buck, P.S., Seattle, WA; Thomas Daniel Frey, LEAD ATTORNEY, PRO HAC VICE, Frey Buck, P.S., Seattle, WA.

For Epley’s, Inc., an Idaho corporation, Defendant: Caitlin Elizabeth O’Brien, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Coeur d’Alene, ID; Patrick J Cronin, LEAD ATTORNEY, Winston & Cashatt, Lawyers, Spokane, WA.

JUDGES: Honorable Ronald E. Bush, Chief United States Magistrate Judge.

OPINION BY: Ronald E. Bush

OPINION

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ASSERT PUNITIVE DAMAGE CLAIM

(Docket No. 17)

 

PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S “SUR REPLY” TO PLAINTIFFS’ MOTION TO AMEND COMPLAINT TO ADD PUNITIVE DAMAGES

(Docket No. 39)

Now pending before the Court is Plaintiffs’ (1) Motion to Amend Complaint to Assert Punitive Damage Claim (Docket No. 17), and (2) Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the [*2]  following Memorandum Decision and Order:

I. BACKGROUND

Joseph R. Kane died after being ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Mr. Kane was part of a Boy Scouts of America (“BSA”) group, composed of minors and other adults — the majority of whom had no “whitewater” experience whatsoever. The group booked their trip with Defendant Epley’s Inc. (“Epley’s”), a licensed outfitter in the state of Idaho that offers guided rafting tours on the Salmon River and Snake River.

Through this action, Plaintiffs (to include the estate of Mr. Kane, his wife Stacie Kane, and sons Thomas and Joseph P. Kane) claim that Epley’s conduct — in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (“cfs”) — breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate result of Mr. Kane’s death. See generally Pls.’ Compl., ¶¶ 4.1-4.12 (Docket No. 1). Plaintiffs specifically allege:

Defendant’s conduct was wrongful and otherwise breached its standard of care by taking Joseph R. and Thomas down the river and through the Slide when they knew or [*3]  should have known that the river’s flow was in excess of 23,500 cfs, and knowing that these extreme conditions would produce incredibly dangerous Class V or Class VI rapids. Defendant’s guides’ decision to run these rapids not only ignored the rafter’s inexperience, it was also contrary to the express written recommendations of the BLM’s published handbook for rafting the Lower Salmon River. Defendant’s actions were wrongful in the face of a known, significant risk that was unknown to the Plaintiffs.

Id. at ¶ 4.5. Since the action’s inception, the above-referenced breach-of-the-standard-of-care allegations have further evolved into the bases for Plaintiff’s at-issue Motion to Amend Complaint to Assert Punitive Damage Claim.1

1 Even so, these allegations were preliminarily tested in the context of Defendant’s intervening Motion for Summary Judgment. See MSJ (Docket No. 16). U.S. District Judge Edward J. Lodge denied that Motion, concluding that questions of fact populated the interwoven issues of (1) the proper standard of care involved, (2) whether Defendant breached such standard of care, and (3) whether Defendant’s conduct proximately caused Plaintiffs’ injury and/or any actual loss or damage. See generally 12/6/16 MDO, pp. 16-30 (Docket No. 44).

According to Plaintiffs, Epley’s not only ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance), its later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,500 cfs represented an extreme deviation from industry standards. See generally Mem. in [*4]  Supp. of Mot. to Am., pp. 5-17 (Docket No. 17, Att. 1). Plaintiffs argue:

Despite the dangerous conditions produced by the high flow levels, Defendant authorized the trip to commence as planned on June 24, 2014. Defendant’s manager [(Blackner)] admits that he told the group that the river level would slacken by the time they reached the Slide on the fourth day of the trip, a fact admitted by Blackner and reflected in pre-trip emails by group members. Notably, Blackner told the group he expected the river would be down to 17,000 cfs by the time they hit the Slide. Blackner asserts he was relying on on-line river forecasts by the National Weather Service (“NWS”) vis-a-vis [National Oceanic and Atmospheric Administration] (“NOAA”) and [U.S. Geological Survey] (“USGS”), in making this claim.

In fact, however, the water level forecasted by the NWS model as of the morning of the trip launch (June 24) for June 27 — the day the group was scheduled to hit the Slide — was not 17,000; it was approximately 21,000 cfs, Class V-VI water. Moreover, while earlier forecast modeling had predicted that the flow levels might recede below 20,000 cfs, the actual flow measurements taken by the . . . USGS show [*5]  that the river had remained steadily above 23,000 cfs for the four days before launch date, flatly belying the earlier forecast models. Defendant’s manager and guides were aware of this flow before the trip began. Moreover, rain was forecast for the area during the trip. In short, there was no earthly reason to believe the water level would decrease significantly from the 23,400 cfs level on launch date by the time the Boy Scouts hit the Slide; all extant evidence and forecasts unequivocally established the Slide would be Class V water on June 27. Notwithstanding the extreme water level, the inexperienced, unfit passengers and the want of cause to believe the river volume would drop, Defendant launched the excursion.

Prior to launch, the Defendant prepared no plan whatsoever to avoid or safely transit the Slid should the water level remain at ClassV level. There were several options available. Defendant could have arranged to take the group off the river at Eagle Creek, the last overnight stop before the Slide. It could have arranged for a larger, motorized raft to transit the group. It could have arranged for jet boat transit at the Slide. Defendant took none of these prudent steps. [*6]

On June 26,2014, the scout group landed and took out at Eagle Creek to spend the night. This was the group’s last overnight location before reaching the Slide. Eagle Creek was also the last place where the group could have readily exited the river on land. The guides were aware that the river had not changed appreciably since the launch level of 23,400 cfs. Indeed, on the morning of June 27, after spending the night at Eagle Creek, Epley’s guides could see with the naked eye that the river flow had actually increased overnight. Defendant’s guides knew that these extreme flows would produce Class V or VI rapids at the Slide. Despite this knowledge, prior to and after reaching Eagle Creek, the Defendant’s agents made no plan to avoid the Slide in the event the water level did not recede, no plan to remove the group at Eagle Creek, and no plan to bring extra assets to the area of the Slide to relieve the obvious risk posed by the rapid. The guides had access to a satellite phone, but they opted to not use it to verify water levels or explore options for avoiding the Slide, notwithstanding that it had “constantly” rained following the June 24 launch. . . . .

Id. at pp. 5-6 (internal citations omitted, [*7]  italics in original, underlining added); see also id. at pp. 14, 16 (“Based on the evidence presented here, it can be inferred that Blackner intentionally or with gross negligence misled the group (and possibly his lead guide) to believe the Slide would be safely navigable by June 27. . . . . There [was] no rational justification for allowing this group to launch on June 24, other than for financial gain.”); id. at p. 16 (“Simply put, once the group left on June 24, Epley’s plan was to send the group through the Slide regardless of conditions, risk of injury or death to riders, or industry standards. . . . . The decision by the guides to authorize the trip to continue through the Slide after reaching Eagle Creek on June 26 also constitutes an extreme deviation from industry standards. The trip should have unquestionably been terminated when the guides recognized that the flows had not dropped since June 24.”).2

2 Plaintiffs also claims that Epley’s use of inexperienced and inadequately trained guides contributes to the milieu of conduct auguring in favor of a punitive damages claim against Epley’s. See Mem. in Supp. of Mot. to Am., pp. 14, 16 (Docket No. 17, Att. 1) (“There is no dispute that the guides selected by lead boatman Mike Cornforth for the trip had never transited the Slide at levels near 23,000 cfs. Accordingly, they lacked any training or experience whatsoever to manage the extreme conditions presented by the Slide at that level. . . . . Epley’s decision to permit commencement of the trip on June 24, with minors as young as 14 and unfit 50-year-olds, at flows in excess of 23,000 cfs, under the supervision of inexperienced and unqualified guides, with no alternative safety plan in place, constituted an extreme deviation from the standard of care.”).

Epley’s disputes these claims outright, but alternatively argues that, even if true, they operate only to support claims that it was grossly negligent or reckless. See generally Opp. to Mot. to Am., pp. 12-19 (Docket No. 22). In short, attacking the quantum of Plaintiffs’ proffered evidence, Epley’s argues [*8]  that, “[t]he mere fact of a tragic death during a high risk recreational activity does not create the necessary fraud, malice, outrage, or oppression” to warrant a claim for punitive damages. Id. at p. 12; see also id. at p. 15 (“Ultimately, even Plaintiffs’ evidence regarding the water levels do not rise to any necessary level of proof that Epley’s acted maliciously, outrageously, fraudulently, or oppressively.”); id. at p. 17 (“The Plaintiffs’ evidence fails to rise to the level of reasonable likelihood of proving fraud, oppression, malice, or outrage.”); id. at p. 19 (“[Plaintiffs’] evidence in this motion at best claims that [Epley’s] was grossly negligent or reckless, but nowhere explains or establishes fraud, oppression, malice, or outrage necessary to amend to add punitives.”).

II. DISCUSSION

A. Punitive Damages: Legal Standard

Claims for punitive damages are governed by Idaho Code § 6-1604, which provides:

In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted.

I.C. § 6-1604(1).

Whether to allow a claim of punitive damages is a substantive question controlled by Idaho law. See Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630, 633 (D. Idaho 1988). Ultimately, [*9]  an award of punitive damages requires a bad act and a bad state of mind. See Todd v. Sullivan Const. LLC, 146 Idaho 118, 191 P.3d 196, 201 (Idaho 2008). The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, or outrageousness. See Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977, 983 (Idaho 2004); see also I.C. § 6-1604.3

3 The Idaho Supreme Court has recognized that, since the enactment of Idaho Code § 6-1604 in 1987, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages. See Cummings v. Stephens, 157 Idaho 348, 336 P.3d 281, 296, n.5 (Idaho 2014) (“Since the enactment of the statute, gross negligence or deliberate or willful conduct is not sufficient for an award of punitive damages.”). Accordingly, the undersigned disagrees with Plaintiffs’ to the extent they ask the Court to infer that a harmful state of mind can be satisfied by a defendant’s gross negligence. See, e.g., Mem. in Supp. of Mot. to Am., p. 10 (Docket no. 17, Att. 1); compare with Opp. to Mot. to Am., p. 10 (Docket No. 22) (“A party seeking punitive damages must prove defendant’s action constituted an extreme deviation from reasonable standards of conduct, which was done with knowledge of the likely consequences, and an ‘extremely harmful state of mind.’ However, that ‘extremely harmful state’ can no longer be termed gross negligence or recklessness.”) (internal citations omitted, emphasis in original).

At trial, the party alleging punitive damages must satisfy this standard by clear and convincing evidence. See I.C. § 6-1604(1). However, for purposes of a motion to amend, the party seeking to add a claim for punitive damages does not need to meet this high burden; rather, the party need only show “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See I.C. § 6-1604(2). Therefore, although FRCP 15(a) encourages the trial court to liberally grant motions to amend pleadings, this policy is substantially tempered by the requirements under Idaho law. That is, plaintiff may add a claim for punitive damages only if they establish a reasonable likelihood of proving, by clear and convincing evidence, that the defendant’s conduct was oppressive, fraudulent, [*10]  malicious, or outrageous.

Since plaintiffs are only required to demonstrate a “reasonable likelihood” of establishing their entitlement to punitive damages, on motions to amend to assert a claim for punitive damages under Idaho Code § 6-1604(2), courts apply the same standard it would apply in resolving an FRCP 50 motion at the close of plaintiffs’ case. See Bryant v. Colonial Sur. Co., 2016 U.S. Dist. LEXIS 22414, 2016 WL 707339, *3 (D. Idaho 2016). That is, evidence is viewed in the light most favorable to plaintiffs, with the benefit of all legitimate inferences without assessing credibility. See id. (citing E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)).

It is in the trial court’s discretion to decide whether to submit the punitive damages issue to the jury. See Manning v. Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185, 1190 (Idaho 1992). As a matter of substantive law, it is well established in Idaho that punitive damages are not favored and should be awarded only in the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. See id. at 1185; see also Jones v. Panhandle Distribs., Inc., 117 Idaho 750, 792 P.2d 315 (Idaho 1990); Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (Idaho 1986); Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (Idaho 1983); Linscott v. Rainier Nat’l Life Ins. Co., 100 Idaho 854, 606 P.2d 958 (Idaho 1980).

B. Plaintiffs May Assert a Claim for Punitive Damages Against Epley’s

This lawsuit and the instant Motion to Amend are focused on the decisions surrounding the events leading up to June 27, 2014 — the day Mr. Kane, his son, and the rest of the rafters in their group encountered Slide Rapid. The evidentiary record about such decisions [*11]  (viewed in light most favorable to Plaintiffs), gives rise to a reasonable likelihood of proving, by clear and convincing evidence, that Epley’s engaged in a bad act, with a bad state of mind, so as to warrant a claim for punitive damages.

1. Bad Act: Extreme Deviation From Reasonable Standards of Conduct

Plaintiffs point out that, in the days leading up to, and including, the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs. See Mem. in Supp. of Mot. to Am., pp. 2-6, 11, 14 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 96) to Frey Decl. (Docket No. 17, Att. 3); Ex. F (Cornforth Dep. at p. 21) to Frey Decl. (Docket No. 17, Att. 3); Ex. L (USGS Discharge Data), to Frey Decl. (Docket No. 17, Att. 4); Ex. M (Northwest River Forecast Center (“NWRFC”) River Flow Forecast), to Frey Decl. (Docket No. 24)).4 Still, Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with “no plan whatsoever” to address the [*12]  anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high. See Mem. in Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at pp. 107-08) to Frey Decl. (Docket No. 17, Att. 3)).5

4 It is undisputed that, at levels over 20,000 cfs, Slide Rapid represents either Class V (expert) or Class VI (extreme and exploratory) waters. See Mem. in Supp. of Mot. to Am., pp. 4, 7, 14 (Docket No. 17, Att. 1) (citing Ex. B (BLM Guide) to Frey Decl. (Docket No. 17, Att. 3); Ex. D (Blackner Dep. at p. 86) to Frey Decl. (Docket No. 17, Att. 3); Ex. Q (Ranck Dep. at pp. 16-17) to Frey Decl. (Docket No. 17, Att. 6); Ex. E (Estes Dep. at pp. 18-19) to Frey Decl. (Docket No. 17, Att. 3)).

5 According to Defendant’s lead guide, Mr. Cornforth, “regardless of the height of the river when [the party] got to Slide [Rapid],” his only plan was “to try to stay river left and go through it.” Ex. F (Cornforth Dep. at p. 22) to Frey Decl. (Docket No. 17, Att. 3).

Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Defendant’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek (the last overnight location before reaching Slide Rapid). See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. F (Cornforth Dep. at pp. 59-60) to Frey Decl. (Docket No. 17, Att. 3); Ex. G (Sharp Dep. at pp. 34-36) to Frey Decl. (Docket No. 17, Att. 4); Ex. P (Sharp Witness Statement) to Frey Decl. (Docket No. 17, Att. 6)). Still, Defendant decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the relatively inexperienced group, portage around Slide Rapid,6 or altogether exit the river on land at Eagle Creek (the last place where the group could have readily done so). See Mem. in [*13]  Supp. of Mot. to Am., pp. 6-7, 15-16 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3; Ex. F (Cornforth Dep. at pp. 22, 29-30) to Frey Decl. (Docket No. 17, Att. 3); Ex. O (Sears Expert Report, p. 6) to Frey Decl. (Docket No. 17, Att. 6); Ex. W (Nicolazzo Report, p. 3), to Frey Decl. (Docket No. 17, Att. ).

6 Plaintiffs claim that another outfitter, Exodus River Adventures, ran the Lower Salmon River during the same time frame and, on June 26, 2014, portaged around Slide Rapid rather than running it at similar flows. See Mem. in Supp. of Mot. to Am., p. 7 (Docket No. 17, Att. 1) (citing Ex. D (Blackner Dep. at p. 154) to Frey Decl. (Docket No. 17, Att. 3)); but see Ex. Q (Ranck Dep. at p. 30) to Frey Decl. (Docket No. 17, Att. 6) (testifying that portaging Slide Rapid was not a viable option: “It is a steep slope with sharp rocks. Lots of ledges. Loose rocks. Having middle-aged parents. Some of which were overweight. They would have been more than capable to do so on maybe a beach or a smaller rock outcropping. But they wouldn’t have been able to get safely over that rock slide by themselves. Especially carrying gear.”).

For its part, Epley’s disputes Plaintiffs’ contentions about forecasted flows for Slide Rapid in the days leading up to June 27, 2014, believing them to be lower. See Opp. to Mot. to Am., pp. 4-5, 14 (Docket No. 22) (“Despite Plaintiffs’ incorrect assertions, the Northwest River Forecast website continued to predict that the Lower Salmon River water level would drop to below 20,000 cfs by the time the group was to reach the Slide.”) (citing Ex. L (National Oceanic and Atmospheric Administration’s National Weather Service, Northwest River Forecast Center River Flow and Stage Forecasts) to Cronin Decl. (Docket No. 22, Att. 3). Consistent with this, the BLM officials present at the launch site on June 24, 2014, neither warned the group not to go, nor stated any concern about the water levels whatsoever. See Opp. to Mot. to Am., [*14]  p. 6 (Docket No. 22) (citing Ex. A (Blackner Dep. at p. 113) to Cronin Decl. (Docket No. 22, Att. 2). And, as to precautions taken before hitting Slide Rapid itself, Epley’s notes that its guides (who it contends were state-licensed and experienced) conducted a safety talk on the morning of June 27, 2014 and, before reaching the rapids, pulled the group’s rafts to shore to scout and pick the safest line to run — the “Sneak” down the left bank, with identified spots to “eddy out” at the bottom of the run “in case any individuals fell out during the rapid and they needed to perform a rescue.” Opp. to Mot. to Am., pp. 6, 15-17 (Docket No. 22) (citing Ex. P (Ranck Dep. at pp. 29-31) to Cronin Decl. (Docket No. 22, Att. 3)).

The extent to which the parties’ above-referenced arguments define the standard of care orbiting Defendant’s actions leading up to Mr. Kane’s death is clearly disputed. Judge Lodge stated as much when considering Defendant’s Motion for Summary Judgment, discussing the relevant standard of care as follows:

A question of fact exists, however, concerning what the standard of care is in this case; i.e., what ordinary care Epley’s, as an outfitter, owed to Plaintiffs, as its [*15]  customers/participants. The parties dispute the testimony of the expert witnesses offered to opine regarding the standards of the profession and the use/relevance of certain public information and industry publications to define the standard of care — in particular the standard of care in the profession for outfitters running the Slide Rapid above 20,000 cfs.

Each sides’ expert witnesses offer differing opinions concerning the standard of care applicable to the circumstances presented in this case. In his report, the Defendant’s expert, Gary Lane, states that he used a 25,000 cfs cut-off for running commercial trips at the Slide Rapid but that “it has long been the standard practice and is the practice today for commercial outfitters on the Lower Salmon River to take commercial trips down the Lower Salmon, including the Slide Rapid, at flows up to and exceeding 25,000 cfs” and concludes that Epley’s conformed to the standard of care expected of outfitters and guides rafter the Lower Salmon at the Slide Rapid with this group, gear, and at water levels higher than 20,000 cfs. Plaintiffs’ expert, on the other hand, conclude the Defendant violated the standard of care with regard to running [*16]  the Slide Rapid above 20,000 cfs under the circumstances of this case. Resolving the disputed questions presented by the experts’ testimonies requires the weighing of evidence and credibility determinations which must be done at trial.

12/6/16 MDO, pp. 19-20 (Docket No. 44) (internal citations omitted).7 And, whether these same arguments reflect Defendant’s breach of any duty owed to Plaintiffs is also disputed, with Judge Lodge similarly ruling:

For the same reasons discussed above with regard to duty, the Court finds a genuine issue of material fact exists as to whether Defendant breached the standard of care applicable in this case. This case presents the classic example of a battle of experts where both sides have presented contradicting testimony from experts concerning whether the Defendant breached a duty of care owed to Plaintiffs. Further, the facts surrounding events in question relevant to the breach issue are in dispute. For instance, the conditions presented on the day in question; what the guides knew regarding the water flow level of the Slide Rapid; whether there was a rescue plan and if that plan was followed; and any safety procedures in place and used by the guides. [*17]  The jury, as the finder of fact, must consider all of the disputed facts, the credibility of the witnesses, and the weight of the evidence in order to determine whether Defendant breached its duty. Therefore, summary judgment is denied on this question.

Id. at p. 23.

7 Judge Lodge also considered the “public information and industry publications” for the purposes of determining the appropriate standard of care for Idaho outfitters running commercial trips on the Lower Salmon River generally, and when Slide Rapid experiences high flows. See 12/6/16 MDO, pp. 20-22 (Docket No. 44). This examination included the BLM’s Lower Salmon River Boater’s Guide, the American Whitewater Safety Code, outfitter websites, and industry blogs (including one by Defendant’s expert, Gary Lane). However, they also didn’t highlight the standard of care as a matter of law. See id. at p. 22 (“While these materials do not, in and of themselves, define the standard of care, and their admissibility and/or use at trial is not decided here, the materials do show a genuine issue of material fact is present in this case concerning the applicable standard of care.”).

Viewing the evidence in the light most favorable to Plaintiffs, and giving Plaintiff the benefit of all legitimate inferences without assessing credibility, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Defendant acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding (as an experienced outfitter) of — or disregard for — the likely consequences of those actions. See, e.g., Morningstar Holding Corp. v. G2, LLC, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517, at *14 (D. Idaho 2012) (“It is true that ‘[w]here evidence is conflicting, and where it can be said that if one theory of the case is correct there may be ground for the imposition of exemplary damages, the matter is properly submitted to the jury’ to determine the correct theory.”) (quoting Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 813 (Idaho 1953)). As already indicated by Judge Lodge, it will be for the jury to resolve the issue of the actual standard of care involved and, relatedly, whether Epley’s breached [*18]  that same standard in the days and moments leading up to Mr. Kane’s death. See supra.

2. Bad State of Mind: Acting With An Extremely Harmful State of Mind

Plaintiffs assert that Epley’s, through its manager, Mr. Blackner, told Marelene Schaefer, who organized the event for the BSA, that (1) Defendant followed “BLM criteria” in determining whether to launch on the Lower Salmon Rive, and (2) they would not launch if the water was above 20,000 cfs. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 25-28, 30) to Buck Decl. (Docket No. 21, Att. 3)). Plaintiffs also contend that Mr. Blackner assured Ms. Schaefer that he was monitoring river flows, even expressing concern that they might not be able to launch on the date planned and that they may have to “take an alternative trip if the water was over 20,000 cfs.” See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at pp. 27-29) to Buck Decl. (Docket No. 21, Att. 3)).

But, according to Plaintiffs, at the June 24, 2014 launch Mr. Blackner did not tell Ms. Schaefer (who was also present with the inspection team at the launch) that the water level was above 23,000 cfs, but [*19]  did say that the water levels would be dropping to 17,000 cfs at Slide Rapid and, if they did not drop in time, they could alter the plan and take out at Eagle Creek or run a different route. See Reply in Supp. of Mot. to Am., p. 2 (Docket No. 27) (citing Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3);8 Ex. D (Blackner Dep. at pp. 91- 93) to Frey Decl. (Docket No. 17, Att. 3)). Mr. Blackner allegedly made these representations despite the fact that river level forecasts for June 27, 2014 (the day the group was scheduled to reach Slide Rapid) was, in reality, approximately 21,000 cfs. See Reply in Supp. of Mot. to Am., pp. 2-3 (Docket No. 27) (“Blackner admitted that he checked the USGS website that provided actual and forecasted river levels; consequently, he knew his statement that the river would be at 17,000 cfs by June 27 was false.”) (citing Ex. D (Blackner Dep. at pp. 91-93) to Frey Decl. (Docket No. 17, Att. 3); Ex. M (NWRFC River Flow Forecast), to Frey Decl. (Docket No. 24)). In other words, Plaintiffs argue that Mr. Blackner purposely misled Ms. Schaefer and, thus, the group by failing to inform them of actual (as of the June 24, 2014 launch date) and [*20]  projected (for the anticipated encounter with Slide Rapid on June 27, 2014) river flows — that is, it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher.

8 Whether Ms. Schaefer actually understood if Defendant would either take out at Eagle Creek or cancel the as-planned trip altogether is unclear, with Ms. Schaefer testifying:

Q: Okay. And that if [the river levels did not drop], according to what you’ve testified earlier, they could alter the plan and take out before they got to the Slide?

A: Yes.

Q: Okay.

A: Well, their alternate plan was to run a different route, not to pull out before the Slide. There’s a place to pull out I think.

Ex. B (Schaefer Dep. at p. 46) to Buck Decl. (Docket No. 21, Att. 3). Even so, the gist of this testimony is that Ms. Schaefer understood that, at certain flows, there would be no launch. See id. at p. 63 (“Well, I’m saying you saw where [Mr. Blackner] had an alternative if they could not launch and run the river the way that we had planned.”). The Court understands that the alternative trip was from Vinegar Creek to Pine Bar. See Ex. D (Blackner Dep. at pp. 92-93) to Frey Decl. (Docket No. 17, Att. 3).

Again, Epley’s takes issue with Plaintiffs’ representation of what was actually forecasted for Slide Rapid as of June 24, 2014. See supra. Epley’s does acknowledge the dueling factual accounts of what was said between Mr. Blackner and Ms. Schaefer surrounding the circumstances in which the group would (or would not) proceed with the as-planned trip, in the face of dangerous high river flow levels. See Reply in Supp. of MSJ, p. 3 (Docket No. 25) (“While it is disputed what Roger Blackner may have told Marlene Schaefer regarding what level he would run the Slide Rapid at prior to the June 24, 2014 trip, nothing [*21]  that the Plaintiffs cite establishes that Roger, or any other Epley’s personnel, testified the water was over the Epley’s limit, or the industry standard.”).

And, as before, such evidence and inferences must be viewed to Plaintiffs’ benefit when considering Plaintiffs’ efforts to amend their Complaint to assert a claim for punitive damages. When doing so, Plaintiffs have established a reasonable likelihood of proving by clear and convincing evidence that Epley’s not only acted in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — the likely consequences of those actions (see supra), but also did so with a harmful state of mind when viewing Mr. Blackner’s statements to Ms. Schaefer as fraudulent and/or outrageous. See Morningstar, 2012 U.S. Dist. LEXIS 12355, 2012 WL 287517 at *14 (discussing role of jury to resolve conflicting evidence in context of exemplary damages). Whether Epley’s actually acted with such a harmful state of to support an award of punitive damages is therefore a question for the jury, and not the subject of this Memorandum Decision and Order.9

9 To be clear, the undersigned is granting Plaintiffs’ Motion to Amend Complaint to Assert Punitive Damages Claim. However, the fact of doing so does not guarantee the claim will go to the jury. Judge Lodge will preside over the trial of the case and it will be within Judge Lodge’s province to decide, after hearing the evidence, whether the jury should decide the issue of punitive damages at trial. See, e.g., Clark v. Podesta, 2016 U.S. Dist. LEXIS 103637, 2016 WL 4179851, at *8 (D. Idaho 2016) (Judge Lodge stating on that facts of that case: “It is premature for the Court to make a binding decision on punitive damages until the close of evidence. Only then can the Court determine if evidence has been presented that Podesta acted with the requisite state of mind to allow punitive damages to be considered by the jury. Accordingly, the Court will allow the motion to amend the Complaint but will reserve ruling on whether such claim will be decided by the jury. . . .”).

III. ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ Motion to Amend Complaint to [*22]  Assert Punitive Damage Claim (Docket No. 17) is GRANTED; and

2. Plaintiffs’ Motion to Strike Defendant’s “Sur Reply” to Plaintiffs’ Motion to Amend Complaint to Add Punitive Damages (Docket No. 39) is DENIED as moot.

DATED: March 28, 2017

/s/ Ronald E. Bush

Honorable Ronald E. Bush

Chief U. S. Magistrate Judge

 

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Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.

Plaintiff argued that because she did not sign the release, the release did not apply to her. However, the court found that the release was written broadly enough that it covered the plaintiff’s suit as well as finding that the release included enough assumption of risk language that the deceased knowingly assume the risk.

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in her Own Right,

Defendant: Philadelphia Triathlon, LLC

Plaintiff Claims: 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 supervise its employees, outrageous acts, gross negligence, recklessness, and punitive damages.

Defendant Defenses: release

Holding: for the defendant

Year: 2016

This is an interesting case, because the Pennsylvania, wrongful death statute is written in a way that almost prevented a release from stopping a claim by a widow. The decision was also in front of the entire court of appeals and was a split decision.

This case centers on the Philadelphia triathlon. The deceased signed up for the triathlon electronically in January. While signing up for the triathlon, he signed a release to enter the race electronically.

At the start of the triathlon the deceased entered the water and never finished the swim part of the race. His body was found the following day by divers.

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.

The widow of the deceased, the plaintiff, filed a complaint under the Pennsylvania wrongful death statute. Most states have a wrongful-death  statute. The wrongful-death  statute is the specific ways that the survivors can sue the person who caused the death of a loved one.

After filing the original complaint the plaintiff then filed an amended complaint. The defendant filed objections which the trial court upheld arguing that the complaint failed to state facts, which would allow the court or jury to reach a claim of outrageous acts, gross negligence or recklessness and thus award punitive damages.

The defendant filed an additional motion for summary judgment which the court granted dismissing all the claims of the plaintiff. The plaintiff then appealed the dismissal of her claims.

Most appellate courts may have anywhere from 3 to 15 or more judges sitting on the appellate court. When appeals are filed, judges are then assigned to these cases. Not all judges are assigned to every case. The majority the time a case is heard by three Appellate Ct. judges.

The decision in this case was split. Three judges affirmed the trial court’s order concerning some motions. However, two of the members of the appellate court concluded that the release executed by the deceased did not apply to his widow, the plaintiff, because she was not a sign release.

…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.

The defendant then petitioned the court for hearing en banc. En banc means in front of the entire panel of the appellate court. The entire panel agreed to hear the case again specifically looking at five specific issues set forth below. In this case en banc meant in front of nine judges.

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 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 [*8]  in sustaining the [p]reliminary [o]bjections [] and striking para-graph[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?

Only the fourth and fifth issues that the court identified, are relevant to us. The first is whether or not the decedent effectively executed an electric agreement and whether not the case should be dismissed because of the release.

Analysis: making sense of the law based on these facts.

The court first looked at the issue punitive damages and defined punitive damages were under Pennsylvania law. Pennsylvania like most of the states, defines punitive damages for acts that are outrageous because of an evil motive or recklessness or an indifference towards the rights of others.

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.” 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.” 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. “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.”

The plaintiff argued in her amended complaint that the defendant was inattentive to the needs of the contestants, failed to inspect and maintain the course, failed to warn or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards and failed to properly train and supervise its employees.

…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 supervise its employees

The court looked at these allegations and held that they simply argued simple negligence, and none of the allegations rose to the level to be outrageous, evil or showing an indifference the welfare of others. The court sustained, upheld, dismissal of the gross negligence claims against the defendant.

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

The next issue important to us, is whether or not the plaintiff can contractually waive liability for reckless or intentional conduct.

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.

The first major argument made by the plaintiff was there were two different releases presented to the court in different motions filed by the defendant. One was two pages long I will was 2 ½ pages long.

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 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.

However, the court found that this was not an issue, and both pieces of evidence were the same release. The defendant hired  a third-party firm to administer the sign up for the event and the execution of the release by the participants. The principle of the third-party firm testified that once the release is signed it is stored electronically and in storing the document it is shrunk so that when it is presented a second time it is actually a different size but the identical document.

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.

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 reader/registrant.”

The third-party also demonstrated that there was no way the participant could’ve entered the race without a bib. The only way to get a bib was to sign the release.

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.

The plaintiff next argued that the release is unenforceable against claims of reckless or intentional conduct. However, the court quickly dismissed this, by referring to its earlier ruling that the complaint did not allege facts to support a claim of reckless or intentional conduct.

The next issue centered on the definition and wording of the Pennsylvania wrongful death statute. To be successful in the plaintiff’s Pennsylvania wrongful death claim, the plaintiff must show that the actions of the defendant were tortious. Because the release was validly executed by the deceased, and it showed that he knowingly and voluntarily assume the risk of taking part in the competition, the deceased assumed of the risk and eliminated the tortuous act of the defendant.

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.

The plaintiff argued that a prior decision by the court had invalidated releases for wrongful-death  claims. The court distinguished that prior decision from this one because the prior decision required arbitration of the claims and that the decedent in that case had not signed the actual agreement. In that case the husband of the deceased when putting her in a nursing home signed  all the paperwork. The deceased did not sign a release or arbitration agreement.

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.

The court held that a release stops a claim under the Pennsylvania wrongful death statute when it is signed by the deceased.

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.

Consequently, the court upheld the trial court’s dismissal of the claims against the plaintiff based upon the release.

So Now What?

Wrongful-death  statutes are quite specific in how they must operate and how they are to be interpreted by the courts. You should look at your wrongful-death  statute or have your attorney look at the wrongful-death  statute for the state where your release will be argued to make sure that it passes or succeeds in stopping a wrongful-death  claim. It would be extremely rare to find a release that did not stop the claims, absent proof of misrepresentation or fraud.

The second thing you need to do you always make sure you that your release covers not only all the defendants if you want to protect from any lawsuit but also includes all the possible plaintiffs who might sue you. This includes the deceased obviously but also a spouse and any children of the deceased. If the deceased is single, you want to make sure it includes any siblings or parents who may have a legal claim upon the deceased death.

The outcome would be pretty forgone in most states. However, nothing is ever set in stone in the law.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in her Own Right, Appellant v. Philadelphia Triathlon, LLC, Appellee

No. 3049 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2016 PA Super 248; 2016 Pa. Super. LEXIS 663

November 15, 2016, Decided

November 15, 2016, Filed

PRIOR HISTORY:  [*1] 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.

Valentino v. Phila. Triathlon, LLC, 2015 PA Super 273, 2015 Pa. Super. LEXIS 862 (Pa. Super. Ct., 2015)

JUDGES: 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. 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.

OPINION BY: OLSON

OPINION

OPINION BY OLSON, J.:

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 portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania. [*2]

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 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.

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 [*3]  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 [*4]  to the greatest extent allowed by law.” Id.

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 [*5]  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 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

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 [*6]  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., 2013 PA Super 232, 77 A.3d 651 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890, 189 L. Ed. 2d 838 (2014) on August 12, 2013, holding that  [HN1] 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.

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. 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 [*7]  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 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 [*8]  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.

4 Distinguishing the arbitration clause at issue in Pisano, the dissent found that Appellant’s claims were subject [*9]  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.

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 [*10]  well settled:

 [HN2] [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.

 [HN3] 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.  [HN4] 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.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 2014 PA Super 278, 107 A.3d 114, 118 (Pa. Super. 2014).

[HN5] 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, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), quoting, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (Pa. 1984).  [HN6] “As the name suggests, [*11]  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.  [HN7] 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.  [HN8] “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.” Hutchinson v. Penske Truck Leasing Co., 2005 PA Super 179, 876 A.2d 978, 983-984 (Pa. Super. 2005), aff’d, 592 Pa. 38, 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 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 [*12]  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. [HN9]  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.  [HN10] “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, 2011 PA Super 34, 15 A.3d 937, 942 (Pa. Super. 2011).

The challenged provisions of [*13]  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 [*14]  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.

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., 224 Pa. Super. 233, 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.

 [HN11] 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.  [HN12] Summary judgment is [*15]  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., 571 Pa. 580, 812 A.2d 1218, 1221-1222 (Pa. 2002).

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 [*16]  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.  [HN13] 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 trial judge.” Zane v. Friends Hospital, 575 Pa. 236, 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 [*17]  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 summary judgment, it is undisputed that a waiver was among the [*18]  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, [*19]  “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 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 [*20]  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 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

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 [*21]  in the context of this case.

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 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 [*22]  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  [HN14] 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 [*23]  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 free from personal disabilities arising from the relationship of the injured party and tort-feasor.

Kaczorowski v. Kalkosinski, 321 Pa. 438, 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  [HN15] 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,  [HN16] “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, [*24]  a wrongful death claim still requires a tortious injury to succeed.

As suggested above,  [HN17] 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, 2002 PA Super 16, 791 A.2d 384 (Pa. Super. 2002), aff’d, 576 Pa. 22, 838 A.2d 662 (Pa. 2003) illustrates this point:

 [HN18] 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, 438 Pa. Super. 154, 651 A.2d 1139, 1143 (Pa. Super. 1994)].  [HN19] “As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained.” Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 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  [HN20] 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 [*25]  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.

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 [*26]  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.  [HN21] 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.

A liability waiver, however, operates quite differently from an arbitration clause. [*27]  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 [*28]  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,  [HN22] a valid waiver signed only by the decedent transfers the risk of harm from the defendant to the decedent, effectively rendering the 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,  [HN23] 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:

 [HN24] 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 [*29]  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, 50 Cal. 4th 838, 114 Cal. Rptr. 3d 263, 237 P.3d 584, 593 (Cal. 4th 2010). Hence,  [HN25]

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, 239 Cal. Rptr. 916 (Cal. App. 4th Dist. 1987); Eriksson v. Nunnink, 233 Cal. App. 4th 708, 183 Cal. Rptr. 3d 234 (Cal. App. 4th Dist. 2015); Madison v. Superior Court 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 2nd Dist. 1988).

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., 368 N.J. Super. 237, 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. [*30]  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., 2015 PA Super 64, 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 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 Pa. LEXIS 2166, 2016 WL 5630669 (Pa. 2016).

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, 522 Pa. 325, 561 A.2d 733 (Pa. 1989). In Buttermore [*31] , 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 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, [*32]  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 [*33]  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.

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 [*34]  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 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.

8  [HN26] Although strictly construed, Pennsylvania law recognizes the enforceability of valid liability waivers, particularly in cases where the injured party elects to engage in activities [*35]  that entail an obvious risk of injury or loss. See, e.g., Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738 (Pa. Super. 2016) (en banc) (gym membership), appeal denied, 2016 Pa. LEXIS 1407, 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.

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, 78 S. Ct. 148, 2 L. Ed. 2d 112 (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 sanitarium, Brown and his wife signed a release relieving the sanitarium and its employees from liability for injuries resulting from his mental health [*36]  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 [*37]  analysis suggests,  [HN27] courts must exercise great care and caution to differentiate between an agreement that addresses only the procedural 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 [*38]  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.

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 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 [*39]  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 [*40]  concedes, “[a] wrongful death claimant [must] prove negligence.” Dissenting Opinion at 8, fn.6. The law is also clear that [HN28]  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, 2014 PA Super 125, 95 A.3d 900, 906-907 (Pa. Super. 2014), appeal denied, 630 Pa. 745, 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., 2000 PA Super 87, 749 A.2d 522, 527 (Pa. Super. 2000).10

10 In Staub, this Court explained:

 [HN29] 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, 533 Pa. 151, 620 A.2d 1107 (Pa. 1993) and Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (Pa. Super. 1994), appeal denied, 539 Pa. 679, 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. . . .  [HN30] One of the essential elements of a negligence claim is that [*41]  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 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 [*42]  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.

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

11 The Dissent also makes the point that wrongful death claims are intended to compensate for the loss of the decedent. Wrongful death claims, 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 [*43]  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.

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 [*44]  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 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 [*45]  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.  [HN31] 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 distinction the expert failed to appreciate.12 See Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012) ( [HN32] “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.

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

 [HN33] The actor’s [*46]  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.

In sum,  [HN34] 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 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 [*47]  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.

Date: 11/15/2016

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, 522 Pa. 325, 561 A.2d 733 (Pa. 1989), and Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (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 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, [*48]  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., 2013 PA Super 232, 77 A.3d 651, 658 (Pa.Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890,     U.S.    , 189 L. Ed. 2d 838 (2014), citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315, 317, 23 Legal Int. 284, 13 Pitts. Leg. J. 561 (1866) (“This suit is brought by the widow, and her right of action 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, [*49]  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.

Id. (emphasis added).1

1 Brown was disapproved of by [*50]  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, 178 Pa. 223, 35 A. 997, 39 Week. Notes Cas. 221 (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.

Relying on California law, including Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (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. [*51]

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 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., 368 N.J. Super. 237, 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

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 [*52]  considered as persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 2014 PA Super 53, 88 A.3d 228, 233 n.3 (Pa.Super. 2014), affirmed, 136 A.3d 485 (Pa. 2016).

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 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 [*53]  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 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 [*54]  decedent’s freedom to contract.

Id. at 728.5

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., 616 Pa. 385, 47 A.3d 1190 (Pa. 2012).

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, 2015 PA Super 83, 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; [*55]  it compensates the survivors for damages which they have sustained as a result of the decedent’s death.” (citations omitted)).

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 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, 87 N.J. 99, 432 A.2d 857 (N.J. 1981) (citations omitted).6

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, [*56]  and a participant cannot compete without executing the waiver and agreeing to assume all risk.

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.

 


2016-2017 In bound ski/board fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of March 30, 2017. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Red type is natural or medical conditions that occurred inbounds on the slopes

Green Type is Fatalities while sledding at the Resort

Blue Type is a Lift Accidents

Purple Type is Employee or Ski Patroller

 

# Date State Resort Where Trail Difficulty How Cause of death Ski/ Board Age Sex Home town Helmet Reference Ref # 2
1 11/26 CO Keystone Elk Run Intermediate Hit lift tower at high speed   Skier 18 M LA Y http://rec-law.us/2h2ul1Z http://rec-law.us/2gXbKA8
2 12/10 VT Killington Ski Area   Intermediate Found dead   Skier 65 M Lagrangeville, NY   http://rec-law.us/2hml9oW http://rec-law.us/2gHi01C
3 12/11 CA Northstar Village Run Expert (off duty ski instructor) hit several rocks and crashed into a creek avoiding other skier   Skier 35 M Incline Village, NV & Kings Beach Y http://rec-law.us/2hwJAAy http://rec-law.us/2gwnmJQ
4 12/11 NV Alpental Ski area     Tree Well death was asphyxia due to immersion in snow Skier 45 M     http://rec-law.us/2hqZSb9 http://rec-law.us/2hqZSb9
5 12/11 NV Mt. Rose The Chutes   Avalanche in closed run   Skier 60 M     http://rec-law.us/2gHp1iZ http://rec-law.us/2hAAxOP
6 12/12 VT Killington Ski Area         Skier 80 M Wappingers Falls, NY   http://rec-law.us/2hqD3UN  
7 12/19 CO Breckenridge Alpine Alley   Hit a tree accidental blunt force trauma   48 M Longmont CO Y http://rec-law.us/2hckGX4 http://rec-law.us/2ialr2Y
8 12/29 CO Ski Granby Ranch Quick Draw Express lift   Fell out of chair lift traumatic rupture of the aorta and blunt force trauma to the torso Skier 40 F San Antonio, TX   http://rec-law.us/2ixiwhN http://www.usatoday.com/story/news/nation-now/2016/12/29/mom-dies-daughters-hurt-chairlift/95988502/
9 12/31 UT Snowbasin     Hit tree   Skier 24 M Ogden, UT Y http://rec-law.us/2iV7Qg8 http://rec-law.us/2hQsaKC
10 1/1/17 MI Crystal Mountain Penny Lane Intermediate lost control and veered into a tree crash cracked Delaney’s helmet and caused a serious brain injury Skier 10 F La Grange, IL Y http://rec-law.us/2hSv1pC http://rec-law.us/2hSz19J
11 1/1 OR Mt. Baker     Found slumped over snowmobile     67 M     http://rec-law.us/2iIa5mA  
12 1/7 VT Killington Skyeship Gondola   Found on Floor Fall     M     http://rec-law.us/2iWImP5  
13 1/13 CO Breckenridge   Expert Found by ski patrol Skull Fracture   47 M Longmot, CO N http://rec-law.us/2jZgniK http://rec-law.us/2jkovaw
14 1/16 VT Sugar Bush Mount Ellen   Hit Tree Hampden Skier 39 M Hampden, MA N http://rec-law.us/2jqt6un http://rec-law.us/2jqt6un
15   PA Shawnee Mountain Ski Area     lost control and struck an orange safety fence     15 F Singapore   http://rec-law.us/2jSL1X9 http://rec-law.us/2j38nt0
16 1/14 UT Brighton Ski Resort     hit a tree   Boarder 35 M Millcreek, UT   http://rec-law.us/2jsJevi http://rec-law.us/2jGiFA6
17 1/14 NY Belleayre Mountain Ski Center Wanatuska Trail Expert     Boarding 25 M Centersport, NY   http://rec-law.us/2jDcHlZ http://rec-law.us/2jGKr1J
18 1/24 CA Squaw Valley Gold Coast Ridge   denotation of an explosive charge     42 M Olympic Valley, CA   http://rec-law.us/2jXfW7Y http://rec-law.us/2kqBruQ
19 1/26 WA Stevens Pass Mountain Resort Mill Valley side Expert found the man unresponsive and not breathing     55 M Woodinville, WA   http://rec-law.us/2kBlZQD  
20 1/26 PA Camelback Ski Resort Hump Expert he went off the trail   Boarding 21 M Stroudsburg N http://rec-law.us/2kvWmNF  
21 1/20 died 1/27 UT Snowbasin Resort Bluegrass Terrain Park   He fell hard suffered damage to his vertebrae that extended into the base of his brain Skier   M Ogden, UT   http://rec-law.us/2jD3onj  
22 2/4 WV Snowshoe Mountain     went off the trail   Skier 67 M     http://rec-law.us/2kznvzN http://rec-law.us/2kDUz9W
3 2/5   Cannon Mountain Taft Slalom   lost control     57 F Amherst   http://rec-law.us/2jZ34iW http://rec-law.us/2kvXumu
24 2/6 WA 49 Degrees North ski area     Tree Skiiing falling into a tree well Boarder   M     http://rec-law.us/2lyPijQ http://rec-law.us/2kx9IZY
25 2/8 NY Hunter Mountain Annapurna Trail Expert   lost control and slid about 200 feet before going off the trail and striking several trees Skier 58 M Orange County   http://rec-law.us/2lshaWj http://rec-law.us/2kYw5dN
26 2/10 CO Breckenridge Ski Area   Advanced   severe head trauma   26 M Mexico City, MX Y http://rec-law.us/2lvm4G6 http://rec-law.us/2lIhwJk
27 2/11 VT Killington     collided with a tree   Boarder 26 M Toms River, NJ N http://rec-law.us/2kkXYsm http://rec-law.us/2l41Hiz
28 2/11 CT Mohawk Mountain Ski Area     Collison with another skier   Skier   F     http://rec-law.us/2l5nXbM http://rec-law.us/2l5nXbM
29 2/13 VT Stowe Cliff Trail   trapped in deep snow in a tree well hypothermia Boarder 22 M Needham, M   http://rec-law.us/2lhaAW2 http://rec-law.us/2lhaAW2
30 2/15 CO Winter Park Resort Forget-Me-Not   trapped in deep snow in a tree well     17 F     http://rec-law.us/2llpNoO http://rec-law.us/2llpNoO
31           severe head injury     44 M KS   http://rec-law.us/2l7e906  
32 2/17 OH Snow Trails     tried to avoid a collision with a young girl and man in his path Hit a pole

 

  59 M Gahanna, OH   http://rec-law.us/2l7f29b http://rec-law.us/2lWb3xL
33 2/22 NH Cranmore Mountain Resort   Intermediate crashed into a tree.     13 M   Y http://rec-law.us/2mUPNWh http://rec-law.us/2n6261d
34 2/23 CA Northstar     Treewell     43 M New Canaan, CN   http://rec-law.us/2moN72Y http://rec-law.us/2mwrsoJ
35 2/25 CO Purgatory Resort Demon Intermediate struck a tree     34 F Farmington, NM Y http://rec-law.us/2lJqrw5 http://rec-law.us/2lK3mb3
36 2/26 ID Sun Valley Can-Can   Tree well     34 M Meridian   http://rec-law.us/2lc9awN http://rec-law.us/2lcoPMP
37 3/3 Me Sugarloaf Skidder trail Double Black Diamond       24 M Farmington N http://rec-law.us/2n3BYEe http://rec-law.us/2n3BYEe
38 3/3 CO Breckenridge Ski Resort     Broke her leg     15 F Wichita, KS N http://rec-law.us/2meE4C0 http://rec-law.us/2lDPKkK
39     Hunter Mountain Racer’s Edge Trail Double Black Diamond went off the trail and struck several trees     20 M Cream Ridge, NJ   http://rec-law.us/2mx7FZo  
40 3/7 CO Eldora Mountain Resort Mule Shoe black diamond crashing into a tree   Boarder 23 M Aurora, CO Y http://rec-law.us/2mlzcg2 http://rec-law.us/2mH5T8F
41 2/19 CO Buttermilk Mountain   Green hit a tree multiple skull fractures and other various serious injuries   20 M OK N http://rec-law.us/2lRwy34 http://rec-law.us/2n5lLSu
42 3/12 NH Mount Sunapee Skyway trail intermediate         M     http://rec-law.us/2ne4xCJ  
  3/7 OR Mt. Hood Meadows Jacks Woods extremely difficult Hit a tree, found in tree well     57 M Dallas TX   http://rec-law.us/2mWPL20 http://rec-law.us/2nzdvrw
  3/24 CO Loveland Ski Area Lift 8   skied directly into a tree   Ski 35 M Georgetown, CO Y http://rec-law.us/2ocO7Ic  
  3/21 CO Wolf Creek Ski Area Summer Days Intermediate lost a ski, and, as a result, began to “tomahawk” internal injuries, including broken ribs and a collapsed lung Ski 56 M FL Y http://rec-law.us/2oy9qDz http://rec-law.us/2oy9qDz

 

Download a PDF of this chart here. 2016 – 2017 Ski Season Deaths 3.30.17

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

If you cannot read the entire chart you can download it here.

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Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case.

This is not the first decision I’ve read where the United States Ski Association (USSA) had its release laughed out of court. The court found ZERO legal arguments for the jurisdiction and venue clause in the release used.

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

State: Vermont, United States District Court for the District of Vermont

Plaintiff: Brian J Tierney

Defendant: Okemo Limited Liability Company, d/b/a Okemo Mountain Resort, and The United States Ski and Snowboard Association,

Plaintiff Claims: alleging negligent installation of safety netting during a downhill alpine ski race

Defendant Defenses: Release

Holding: for the plaintiff

Year: 2016

The United States Ski Association (USSA) has members sign a release online before they can participate in any USSA as a ski race. Ski areas rely on this release when holding USSA sanctioned races. The USSA release, however, is a poorly written document and time after time the ski areas, and the USSA lose a lawsuit by a plaintiff because they relied on the USSA release.

The number-one  reason why the USSA as a release is thrown out by the courts is the jurisdiction and venue clause. Jurisdiction is the law that will be applied case and venue is the actual location of where the trial will be held. The USSA release says the jurisdiction for any case is Colorado. The problem is unless the accident occurred in Colorado; no other relationship exists between Colorado and the parties to the lawsuit.

The USSA is based, located, in Utah. In this case, the defendant ski area was located in Vermont. There were zero relationships between the USSA in Utah the ski area in Vermont and the injured plaintiff who was from New York, and the state of Colorado.

Consequently, the court throughout the jurisdiction and venue clause and found as 99% of most courts would that the location of the lawsuit should be Vermont, the place where the accident happened.

Vermont, however, does not recognize releases. (See States that do not Support the Use of a Release.).

The plaintiff argued the release was invalid because a copy with his signature could not be produced. The plaintiff signed and agreed to the documentation, including the release when he became a member of the USSA. The plaintiff argued in court that he did not remember signing or agreeing to the release. However, the USSA could  show through their IT expert the only way that the plaintiff could have become a member of the USSA was by signing the release. You either had to click on and accept the release, or you could go no further in signing up to be a member of the USSA.

The plaintiff was injured while competing in amateur downhill ski race at the defendant ski area at Okemo Mountain resort. The USSA sanctioned the race. To be eligible to participate in the race a person had to be a USSA member, had to have conducted a visual inspection of course, and had to have taken at least two official training runs prior to the race.

The defendant filed a motion for summary judgment based on the release. This ruling denied the motion for summary judgment.

Analysis: making sense of the law based on these facts.

The court first commented on the jurisdiction and venue issue.

The release also contained a choice-of-law provision, which stated that it would be “construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws.”

The court then went through the various arguments of the plaintiff and defendant concerning the motion to dismiss, first off, with the plaintiff’s argument that he never remembered signing the release could not have signed release. The court termed the online release as a clip wrap release. This means that the release could not have been rejected by the plaintiff because the website only allows you to go forward after clicking yes to the release.

Because the click-wrap technology does not permit the customer to continue to use the website, unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer’s agreement.

The court stated that generally clip wrap releases are upheld. The court went through several different decisions where clip-wrap releases had been decided. The court concluded that the plaintiff had to have signed the release because the plaintiff admitted that he had been charged for his USSA membership on his credit card and received an email about his membership from the USSA. “Plaintiff admits that he received a confirmation email from USSA and that his credit card statement reflects a payment for his USSA membership.

The court then went into the choice of law clause. That means the jurisdiction and venue clause. A choice of law clause is not a clause that is controlled strictly by the contract.

Whenever there is a decision based on what law shall apply the law where the accident happened or where the court is sitting is the law that is applied to determine what law will apply. In many cases, such as this one, the choice of law decision leans toward granting the choice of law to the place where the test is being determined.

“The validity of a contractual choice-of-law clause is a threshold question that must be decided not under the law specified in the clause, but under the relevant forum’s choice-of-law rules governing the effectiveness of such clauses.” As this is a diversity action, the court looks to Vermont’s choice-of-law rules to determine which law applies.

A jurisdiction and venue clause is also not solely determined based on the four corners of the document. Meaning, just because you have a jurisdiction and venue clause in the document does not mean that is what is going to be upheld by the court. Here the court applied the choice of laws test as set forth in Vermont to determine what law should apply in governing where the suit in the law to be applied is suit to take place.

Simply put the court found there was no relationship between the choice of law clause in the release and the parties or where the accident occurred. The test for what choice of law applies a substantial relationship test. That means that the law that should be applied should be the one that has the greatest relationship to the parties and or the location of the incident giving rise to the lawsuit. In this case the court found, there was no relationship to the parties of the transaction. Plaintiff was a resident of New York the USSA was a Utah corporation, and the defendant ski area was a defendant was a Vermont location.

The arguments made by the USSA as an aid to justify Colorado’s choice of law clause were just plain weak. They argued that the majority of their races occurred in Colorado and that there was a good chance that the plaintiff would race in Colorado. The court found neither of those arguments to be persuasive.

The chosen state of Colorado has no “substantial relationship” to the parties or the transaction. Plaintiff is a resident of New York. USSA is a Utah corporation and Okemo is a Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants have offered in sup-port of applying Colorado law to this case are: (1) Colorado is home to more USSA member clubs than any other state and hosts the majority of USSA’s major events, and (2) there was a possibility that Plaintiff could have competed in Colorado at some point during the relevant ski season. The court finds that such a tenuous and hypothetical connection does not vest in the state of Colorado a substantial relationship to the parties or specific transaction at issue in this case.

The court did find that Vermont had a substantial and significant interest in the transaction. The defendant was based in Vermont. The accident occurred in Vermont. The plaintiff was issued a lift ticket by the defendant ski area that required all disputes to be litigated in Vermont. The plaintiff participated in the inspection and training runs as well as the race in Vermont.

In contrast, Vermont’s relationship to the parties and transaction is significant. Okemo is a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and training runs in Vermont, and Plaintiff’s injury occurred in Vermont.

(Of note is the fact the court looked at the writing on the lift ticket as a quasi-contract. Rarely are lift tickets anything more than simple “signs” providing warnings rather than contracts or quasi contracts. See Lift tickets are not contracts and rarely work as a release in most states.)

The court then took apart the choice of law provision in the USSA release. It found no substantial relationship of the parties to the transaction in Colorado. The minimal facts offered by the USSA to support Colorado did not establish a reasonable basis for choosing Colorado.

The court also reasoned that finding Colorado as the applicable choice of law would violate a fundamental policy of Vermont law, which is releases for skiing or void under Vermont law.

First, applying Colorado law would undoubtedly produce a result contrary to a fundamental policy of Vermont. Whereas exculpatory clauses in ski contracts have been held to be enforceable under Colorado law, courts applying Vermont law consistently hold such re-leases to be void as contrary to important public policies of the state.

The court also found the Vermont had a materially greater interest in case then Colorado. Colorado’s interest in the case is minimal. Vermont had a great interest in applying Vermont law to issues, transactions and accidents that occur in Vermont. Skiing is a significant and important recreational activity in Vermont, and the Vermont Supreme Court has repeatedly stated that they have a significant interest in holding ski resorts responsible for skier safety in Vermont.

Second, Vermont has a “materially greater interest” than Colorado in the determination of this issue.4 Colorado’s interest in this case is minimal. The fact that Plaintiff may have competed there in the course of the relevant ski season and that USSA hosts many events in that state does not create a significant interest in a case concerning a Vermont ski race. Conversely, Vermont’s interest is plain. Vermont has a general interest in having its laws apply to contracts governing transactions taking place within the state. Vermont also has a significant interest in the conduct at issue here. Skiing is an important recreational activity for Vermonters and those visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski resorts responsible for skier safety.

The court then held the choice of law provision in the USSA release did not control, and the Vermont law would apply to this case.

Under Vermont law releases for skiing activities are unenforceable. (See Federal court voids release in Vermont based on Vermont’s unique view of release law). The Vermont Supreme Court had determined that it was a violation of public policy under Vermont law to allow ski area to use a release to avoid liability for its own negligence. The court used a totality of the circumstances test to make the determination that the ski areas had the greater responsibility and the greater ability to keep its patrons out of harm’s way.

The Court concluded that “ultimately the determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” It then went on to make its public policy determination largely on the basis of two factors derived from the seminal case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are open to the general public without regard to special training or ability, and (2) the longstanding rule that premises owners are in the best position to assure for the safety of their visitors.

(Using Tunkl to void a release seems to be an extremely odd reading of Tunkl. The Tunkl decision is a California case setting forth requirements for Assumption of the Risk.)

The court also looked at the difference between skiing in Vermont participating in a ski race. Here too though, the Vermont Supreme Court already ruled. The Vermont Supreme Court found that there was really no difference between ski racing and skiing in Vermont, and the releases would be void in both cases.

There had been Vermont decisions upholding release law based on restricted access to the race or because total control for the majority the control for the welfare of the racers was in the racer’s hands. These decisions concerned motorcycle racing.

The defendant argued that ski racing was much like motorcycle racing in Vermont. However, the court found that although membership in the motorcycle racing was restricted, it was not restricted in the ski racing case. Any person could become a member of the USSA, and any person could race, as long as they inspected the course and made two runs and. That effectively was not a bar to anyone participating in the race.

The Court saw “no salient distinctions between [its case] and making clear that, under Vermont law, ski areas and sport event organizers will not be absolved from liability by virtue of an exculpatory clause even in the context of amateur racing.

The court in evaluating the release law and ski areas in Vermont determined that the cases were based on a premise’s liability argument. Premise’s liability says that the owner of the land has a duty to inform guests of the risks on the land. This responsibility included eliminating any known risks or risk the by the landowner should discover. It did not find in the motorcycle cases that a premise’s liability relationship existed because the risk was largely in control of the racer on the motorcycle.

Consequently, the court ruled that the release was invalid under Vermont law, and dismissed the defendant’s motion for summary judgment.

So Now What?

I suspect that USSA wanted to take advantage of the Colorado Statute that allows a parent to sign away a minor’s right to sue: Colorado Revised Statutes 13-22-107. Colorado’s release law is clearer and there is no issue with a release stopping suits by ski areas. Utah has mixed issues with releases and ski areas. However, to use Colorado as the site of the lawsuit, there must be a nexus to the state of Colorado, not just one created on paper.

Not only must the language stating the jurisdiction and venue be correct; the clause must also contain the reasoning why the jurisdiction and venue should be in a location other than location where the accident happened. In this case that would mean that there was an agreement between the parties that outlined all the reasons why the lawsuit should be brought back to Utah would be the only state, based on the contractual law of Utah.

I doubt there is any way that you could really write a release based on the law of a state that had no relationship, no nexus, to the accident or the parties in the case.

Vermont was the obvious answer, and that is what the court found. They might’ve been able also argued New York law, which would’ve been better than Vermont law. However, that would require them to litigate a case wherever the people who are racing in their events are located.

To be effective the jurisdiction and venue claw must have a nexus to either the parties in the case of the place of the accident occurred. USSA could move to Colorado, and that would provide a much better argument that Colorado law could apply. The USSA could argue that since they’re facing litigation from across the United States that they need to have one law apply to their releases and lawsuits, and that law should be the law where the located.

Whenever you’re stretching the jurisdiction and venue clause, you need to make sure that you incorporate in the clause all the legal reasons for picking the venue where the clause says the accident or location will occur. You just can’t state venue, and jurisdiction will be here.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

Kearney, v. Okemo Limited Liability Company, 2016 U.S. Dist. LEXIS 106011

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Utah Court reaches to find a boat renter liable when a boat sinks on Lake Powell due to high winds

The Federal District Court found the boat rental operation was negligent to defeat damages defenses provided by admiralty law. Causation, the relationship between what the defendant did and the accident giving rise to the claim seems to be stretched in this case.

In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

State: Utah, United States District Court for the District of Utah, Central Division

Defendant: In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability

Plaintiff Claims: Negligence

Defendant Defenses: Limitation of Liability Act, 46 U.S.C. §§ 30501-30512

Holding: for the Plaintiff

Year: 2014

This case is a little out of the unusual for me because it concerns a powerboat. However, the legal issues could apply to any boat; whitewater raft, sea kayak, kayak or whatever. More importantly, it could affect canoe liveries or boat rentals if the decision is accepted by other courts.

One way of defending against claims due to boating accidents is by using federal law. If a river or body of water is determined to be navigable as defined under federal law, then a defendant can use a federal statute and admiralty law to limit any possible claims. The reason you would want to do this is the maximum that can be recovered against someone using this section of admiralty law, is the value of the vessel after the accident plus the value of the cargo. So most cases, when there has been a catastrophic loss the value of the raft zero, as the boat is destroyed or sunk. Even a raft that is recovered with all of its gear would still be limited to $10 to $20,000.00 in value.

The first issue you have to overcome when using admiralty law limits is to establish jurisdiction. The body of water or river has to qualify as being a navigable river under a specific section of the law. The problem is there are 17 different definitions of navigable under federal law, plus who knows how many more under state law. You must apply the correct definition of navigable to the case.

In this case, the accident occurred on Lake Powell. Because Lake Powell spans two states and is used for commercial traffic it was declared to be navigable under the law.

The basis for this claim is three couples rented a boat from the concessionaire at the marina. Eventually, the boat sank with four of them drowning. The winds picked up and exceeded the maximum wind speed the boat should have been operated at. The defendant filed this action in federal court claiming the value the vessel after the accident was zero and therefore, there was no recovery available to the plaintiffs. The court disagreed.

The boat that sunk was only rated to be workable at wind speeds of 31 miles an hour or less. At 31 miles an hour the boat manual stated the driver should have had a lot of boating skills. The boat was also not positively buoyant; meeting that if the boat filled with water, it would sink and would not stay on the surface. There was also no law or requirement that the boat be buoyant.

One of the main issues facing the defendant in this case was they normally handed out a weather report both at the time of the rental of the boat and the time the boat left the dock. The plaintiffs received a weather report when they completed the paperwork but not in the day they left. However, they did leave the docks a half-hour earlier than when the rental operations normally open.

One risk of using admiralty law to avoid liability in a boating accident is admiralty law does not allow the defendant to use a release. I suspect that a release might’ve been used in this case because the paperwork and renting a boat usually go hand in hand.

The plaintiffs were three couples from Florida, who came to Arizona to vacation. They rented a boat from the marina the intention of going up to see natural bridges and coming back on the same day. They rented the boat before the day they left on their trip. That day they received a weather forecast from the boat rental agent. The forecast changed in the middle of the night and when they picked up the boat, they did not receive a new forecast. On the way back from visiting the Natural Bridges Arch they had to stop at another marina to refill. After leaving that marina they went out into the Lake Powell and on the way back the boat sunk due to high winds.

Analysis: making sense of the law based on these facts.

One of the first main issues the court looked at was who could determine if boat rentals should stop because of the weather. Several employees of the defendant testified that wind speeds from 25 to 30 miles an hour, boat rentals were stopped. However, there was no written policy on when boat rentals were stopped and each employee answered with a slightly different answer. More importantly nothing in the transcript indicated that there is any reliable way to determine what the weather forecast was for the wind speed was at the rental operations.

A sub argument of this was not reviewed by the court or raised by the defendant was, whether or not there was a duty on the part of the rental operation to contact the other marina and warn the people not to go back out on the lake. No phone call was made by the rental operation to the other marina.

This argument was futile though because the only way to contact the boat drivers before, or after they left the second marina was by radio. The plaintiff’s never turned the radio turned on.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

The federal statute that the defendant relied upon was the Limitation of Liability Act, 40 6U. S. §§ 30501 – 30512. This statute provides exoneration of liability for the boat owner up to the value of the vessel and freight after the accident. There is an exception to the rule if there is knowledge or is in the law states privity with the owner of the vessel to the possibility of the damage.

The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.”

It is this knowledge or privity that allows the plaintiff to argue that the plaintiff defendant could have stopped them and save their lives.

Admiralty law was created for the transportation of goods and people across the oceans. It was adopted as uniform laws among countries with interests in shipping. As such, many parts of admiralty law make more sense when viewed in this light a boat on the high seas.

There’s a two-step inquiry to determine whether the act shall apply based on the privity or knowledge of the owner of the boat.

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity.

In this case, the court held that negligence on the land is similar to negligence in the water. The plaintiffs had to prove that there was a connection between the defendant’s conduct and the plaintiff’s injury.

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plain-tiff’s injury.”

The ship owner owes a duty of reasonable care to all passengers on his ship. Or, in this case, the court held the rental operation owes a duty of reasonable care to the people renting his boat.

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”

The court found that the defendant breached his duty of reasonable care when it allowed plaintiffs to leave the morning of the accident. “Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009.”

This conclusion was reached because the defendant had a duty to warn the renters of the weather issues. This is where this case takes on some concerns that exceed those of the normal rental situation. Hertz never gives your weather forecast when you leave its rental operation with their car.

I suspect that duty was created by the defendant normally providing all renters of its boats with a copy of the weather forecast because that was not done, then it created a duty.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. And “[s]pringtime is al-ways windy on the lake.”

The second issue the court found or had an issue with, was the boat owner’s manual cautioned that when the winds exceeded 31 miles an hour, the boat should not be driven. Aramark’s only requirement when renting a boat was to make sure that the person was 18 years or older and had a valid driver’s license. Again, the same requirements to rent a car as Hertz used. The court held that a person’s prior ability and experience were important.

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

All these facts allow the court to conclude that Aramark could possibly be negligent.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

The next issue is whether or not breach of the duty of the boat renter/defendant was the cause of the injury. Here the court found that by allowing the boating party to leave the other marina that was a factor in the sinking of the boat. “Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm.”

(Which begs the questions, how were you going to stop someone from leaving a marina when their car and lodging were at their destination?)

Both marinas were owned and operated by the same defendant.

The final issue the court was, whether or not there was privity between the defendant and what happened. Privity in admiralty law is a weird definition of the word. In this case, the defendant must prove that they did not have any knowledge of the negligence. Normally, this would make sense when the owner of the boat is sitting on shore thousands of miles away and the captain or a member of the crew does something that was negligent causing the sinking of the boat.

In this case because the boat was a rental and owned by a defendant Corporation the court held all the employees had a duty or had privity to the negligent acts. “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing agent, supervisor, or other high-level employee of the corporation.”

Because the general manager and several employees of the defendant could stop the rental, the court said the discretionary authority to close the boat rentals, was held to have been a negligent act.

Finding this the court held that Aramark could not exonerate or limit its liability in this case. The case would then proceed to trial for the full amount of damages claimed by the plaintiffs. This decision is not a finding of negligence against the defendant only that there was enough negligent for the court to conclude Aramark could be liable.

So Now What?

Here’s a situation whereby trying to be good and help people renting your boats you created your own liability.

The experience of the person running the boat also creates its own nightmares as you well know someone is going to lie to you when they fill out a form asking for experience. The will tell you they have plenty experience when want to rent a boat. The experience issue is a nightmare.  no way you can test someone’s experience or trust them. If they say they can rent a boat, and it sinks, the rental operation is liable for not testing them. If they don’t test now, they are liable.

All six people were from Florida, which is surrounded by water and has thousands of boat able canals, rivers and lakes, and only one person of the six had any boating experience.

The causation issue is another issue that is disturbing. Normally, causation is defined as a closer or more direct relationship between what the defendant does in creating the injury of the plaintiff. Here causation was found by allowing them to leave the marina.

However, that was not the cause of the sinking of the boat. The boat sunk because it was driven improperly in high winds. However, the court then came back and said earlier, that because they didn’t check the boating experience and didn’t hand out the weather report that was also part of the accident. The court created circuitous routes to get to the fact that they wanted the defendant liable in this case.

It is disturbing when it can quickly become a nightmare for any program or business in attempting to help the people coming to its business. Probably in the future the weather forecasts will be in a stack on the desk with a little sign that says weather forecasts take one if you want one. There will be a sign that says the boat should not be operated if the wind speed is above XX miles an hour and there will be a wind gauge nearby.

None of which will do anything save anyone’s life. Boats are rented for weeks and the weather changes. The wind in on a cove could be calm, and you hit the open part of the lake, and the wind is catastrophic. The information you obtained earlier, a day or a week will have no value where you are when trouble starts.

Besides, how many people can effectively guess the wind speed?

I think another issue here, but not written in the opinion is the boat operation’s manual had a specific wind speed where the boat should not be used. Consequently, since the manufacturer suggested the boat not be used at that speed, probably the court thought the rental operation should not rent boats when speeds exceeded the manufacturer’s recommendations.

I also suspect that some type of wind meter will be installed on the marina property so that the rental people can look at the wind and see if it should be rented. But again then who has the ability to make that call to the wind meter when the person rents the boat says the winds find, but by the time they go back to the car get their items they want to take with them and walk out the winds kicked up does the 18-year-old summer intern holding the boat for the people as they enter it have the ability to say hey it’s too windy can’t go. How’s he going to know at the end of the dock? In the future, more people may become injured because they didn’t pick up a weather forecast and didn’t understand what they’re getting into because nobody the defendant is going to stick their neck that is to tell them.

In the past rental, operations have had no liability once the equipment rented leaves the renter’s operation.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law           Rec-law@recreation-law.com     James H. Moss

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