Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

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. 17 EAP 2017

Supreme Court of Pennsylvania

June 18, 2019

Argued: May 15, 2018

Appeal from the Judgment of Superior Court entered on November 15, 2016 at No. 3049 EDA 2013 affirming the Order entered on September 30, 2013 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1417 April Term, 2012. Jacqueline F. Allen, Judge

Craig A. Falcone, Esq., Sacchetta & Falcone, for Appellant Michele Valentino, as Admin. of the Estate of Derek Valentino, etc.

Barbara Axelrod, Esq., The Beasley Firm, L.L.C., for Appellant Amicus Curiae Pennsylvania Association for Justice.

Heather M. Eichenbaum, Esq., Spector Gadon & Rosen, P.C., for Appellee Philadelphia Triathlon, LLC.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ORDER

PER CURIAM

AND NOW, this 18th day of June, 2019, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Justice Wecht did not participate in the consideration or decision of this matter.

OPINION IN SUPPORT OF AFFIRMANCE

BAER, JUSTICE.

This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedent’s heir (“Appellant”), who was not a signatory to the agreement.[1] The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis.

Preliminarily and as explained in more detail infra, we respectfully note that the Opinions in Support of Reversal (both hereinafter collectively referred to as “OISR”) ignore the issue for which we granted allocatur and, instead, attempt to reverse the judgment of the Superior Court on grounds not encompassed by this appeal. Specifically, the OISR would sua sponte hold that express assumption of the risk agreements are void and unenforceable in violation of public policy in cases involving claims brought pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. The OISR reaches this conclusion notwithstanding that no party to this appeal challenges the validity of the agreement on public policy grounds or otherwise. We decline to engage in this judicial overreaching and proceed to address the merits of the issue before us.

We begin with a brief recitation of the facts. In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.

The executed Agreement stated that Decedent understood “the physical and mental rigors associated with triathlon,” and “that running, bicycling, [and] swimming

… are inherently dangerous and represent an extreme test of a person’s physical and mental limits.” Appellee’s Motion for Summary Judgment Ex. G, dated Aug. 5, 2013. The Agreement further acknowledged Decedent’s understanding that “participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death … and other undefined harm or damage which may not be readily foreseeable[.]” Id. The Agreement provided that Decedent was aware “that these Risks may be caused in whole or in part by [his] own actions or inactions, the actions or inactions of others participating in the Event, or the acts, inaction or negligence of [the Triathlon].” Id.

Germane to this appeal, the Agreement stated that Decedent “expressly assume[d] all such Risks and responsibility for any damages, liabilities, losses or expenses” resulting from his participation in the event. Id. (emphasis added). The Agreement also included a provision stating that Decedent further agreed that if he or anyone on his behalf “makes a claim of Liability against any of the Released Parties, [Decedent] will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.” Id. [2]

The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon. On April 12, 2012, Decedent’s widow, Michele Valentino, both in her own right and as administratrix of her husband’s estate (referred to as “Appellant” herein), asserted wrongful death and survival claims against various defendants, including Triathlon. Only the wrongful death claim is at issue in this appeal. Appellant subsequently amended her complaint and the defendants filed preliminary objections. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in the complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages, holding that these averments were legally insufficient as the facts alleged demonstrated only ordinary negligence. The trial court further struck particular paragraphs of the amended complaint on grounds that they lacked specificity.

In December of 2012, following the various defendants’ filing of an answer and new matter, the defendants moved for summary judgment, asserting the Agreement as an affirmative defense. The trial court denied summary judgment, finding that questions of material fact remained regarding the existence of the Agreement. Appellant thereafter stipulated to the dismissal of all defendants except Triathlon. Once discovery was completed, Triathlon again moved for summary judgment. Concluding that the evidence at that point in the proceedings demonstrated that the Agreement was among Decedent’s possessions and was valid and enforceable, the trial court granted summary judgment in favor of Triathlon.

Prior to the trial court issuing its Pa.R.A.P. 1925(a) opinion explaining its rationale for granting summary judgment in favor of Triathlon, the Superior Court, in an unrelated matter, decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), which held that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent.[3] Id. at 663. On April 14, 2012, shortly after Pisano was decided, the trial court issued its Pa.R.A.P. 1925(a) opinion in this matter and urged the Superior Court to vacate its order granting summary judgment in favor of Triathlon based on that decision.

Relying upon Pisano, Appellant argued to the Superior Court that Decedent’s Agreement with Triathlon does not apply to her as a non-signatory and, thus, has no preclusive effect upon her wrongful death claims asserted against Triathlon. In response, Triathlon contended that Decedent’s assumption of the risks inherent in participation in the event relieved its duty of care, thereby rendering Triathlon’s conduct non-tortious as a matter of law. The Triathlon maintained that, absent tortious activity, a wrongful death claim could not succeed because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301.

Initially, on December 30, 2015, a divided panel of the Superior Court reversed the trial court’s order in part, holding that under Pisano, Decedent’s Agreement was not applicable to Appellant because she was not a signatory to the contract. The Superior Court thereafter granted en banc argument and withdrew its panel decision.

On November 15, 2016, an en banc Superior Court affirmed the trial court’s order granting Triathlon summary judgment in a published decision. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016). Preliminarily, the Superior Court acknowledged that because a wrongful death claim is not derivative of a decedent’s cause of action, “a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent.” Id. at 493. Nevertheless, the Superior Court went on to hold that “a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious.” Id.

The Superior Court found that the available substantive defense here was Decedent’s contractual assumption of the risks inherent in participation in the triathlon.

The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.” Id.

Pennsylvania case law illustrates that one’s assumption of the risks inherent in a particular activity eliminates the defendant’s duty of care. SeeHughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assumption of the risk doctrine is a function of the duty analysis required in all negligence actions).

Relying on this substantive tort law, the Superior Court in the instant case held that by knowingly and voluntarily executing a valid agreement expressly assuming the risks inherent in participating in the sporting event, Decedent extinguished Triathlon’s duty of care, thereby rendering its conduct not tortious. Valentino, 150 A.3d at 493.[4] As noted, the intermediate appellate court concluded that absent tortious conduct, Appellant’s wrongful death claim could not survive as a matter of law; thus, the trial court did not err in granting summary judgment in favor of Triathlon. Id.

The Superior Court in the instant case readily distinguished Pisano on the ground that it did not involve an agreement to assume all risks inherent in a particular activity, which would serve to eliminate the duty element of the wrongful death action against the alleged tortfeasor. Acknowledging Pisano’s principle that a third party’s right of action in a wrongful death claim is an independent statutory claim of a decedent’s heirs and is not derivative of a decedent’s right of action, the Superior Court emphasized that “a wrongful death claim still requires a tortious injury to succeed.” Valentino, 150 A.3d at 493. The Superior Court cogently explained that Pisano does not undermine the fundamental principle that a statutory claimant in a wrongful death action has the burden of proving that the defendant’s tortious conduct caused the decedent’s death. It opined that this cannot occur where the

decedent assumed all risks inherent in participating in the activity and thereby abrogated any duty the putative tortfeasor may have had. Id.

Similarly, the Superior Court distinguished this Court’s decision in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), upon which Appellant had relied. Valentino, 150 A.3d at 495. In that case, James Buttermore was injured in an automobile accident and signed a release in settlement of his claim against the tortfeasors for the sum of $25,000, agreeing to release all persons from liability. Buttermore, 561 A.2d at 734. The issue on appeal to this Court was whether Buttermore’s wife, who was not a signatory to the settlement agreement, had an independent right to sue the tortfeasors for loss of consortium. Id. at 735. Acknowledging that the release applied to all tortfeasors, including the defendants, this Court held that one could not bargain away the rights of others who were not a party to the contract. Id. Because Buttermore’s wife was not a party to her husband’s settlement agreement and because she sought to sue in her own right for loss of consortium, we held that she had an independent cause of action, unaffected by her husband’s settlement agreement. Id. at 736.

The Superior Court below distinguished Buttermore, finding that unlike the express assumption of the risk agreement here, the settlement agreement in Buttermore did not extinguish a requisite element of the wife’s loss of consortium claim. Valentino, 150 A.3d at 496. Stated differently, unlike the express assumption of the risk agreement in the instant case, nothing in the settlement agreement in Buttermore precluded the finding that the defendants acted tortiously.

We agree with the Superior Court’s application of well-settled tort law and its conclusion that the assumption of the risk agreement entered into between Decedent and the Triathlon operates much differently than the settlement agreement in Buttermore and the arbitration agreement in Pisano, as the latter agreements do not preclude a finding that the defendant acted tortiously. We further agree with the intermediate appellate court that a decedent’s valid assumption of the risk agreement does not negate his heir’s right to commence a wrongful death lawsuit, but it “can support a defense asserting that the alleged tortfeasor owed no duty to the decedent.” Valentino, 150 A.3d at 494.

Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).

As noted, regarding the OISR’s sua sponte public policy declaration, our primary objection is that the issue of whether the express assumption of the risk agreement violates public policy is not properly before the Court; thus, the grant of relief on this claim cannot serve as a means to disturb the judgment of the Superior Court.

SeeSteiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (holding that an appellate court may not reverse a judgment on a basis that was not properly raised and preserved by the parties).

Additionally, we observe that the OISR declares the express assumption of the risk agreement violative of the public policy set forth in the Wrongful Death Act, i.e., to compensate family members of victims of tortious conduct, without any explanation as to how tortious conduct can exist in the absence of a duty of care. Further, the OISR seeks to invalidate not all express assumption of the risk contracts, but only those relating to wrongful death claims, based upon the public policy set forth in the Wrongful Death Act. Accordingly, under the OISR’s reasoning, express assumption of the risk agreements would generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity, but would be invalid where a participant’s injuries were fatal and his heirs sought recovery for wrongful death. Thus, a participant who suffered grievous non-fatal injury would have no redress, but his family would have redress if the participant succumbed to his injuries.

This result is untenable as there is no evidence to suggest that it is the public policy of the Commonwealth of Pennsylvania to elevate the rights of victims’ heirs over those of the victims themselves or to immunize wrongful death claims from ordinary and readily available defenses. In fact, not only did the General Assembly premise recovery in wrongful death on the precise tortious conduct that caused the decedent’s fatal injuries, but directed expressly that a wrongful death action “may be brought, under procedures prescribed by general rules.” 42 Pa.C.S. § 8301(a). There is simply no provision in the Wrongful Death Act that renders an heir’s entitlement to relief absolute. Had the Legislature intended that mandate, it would have so directed.

Moreover, it is not the role of this Court to create the public policy of this Commonwealth. Instead, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998)). We have held that “only dominant public policy” justifies the invalidation of a contract and in the “absence of a plain indication of that policy through long governmental practice or statutory enactments, or violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy.” Burstein, 809 A.2d at 207. Significantly, we have acknowledged that in such circumstances, “courts must be content to await legislative action.” Id.

The OISR fails to heed this warning. By declaring the public policy of this Commonwealth, untethered to legislative fiat and in a case where the issue is not before us, the OISR comes dangerously close to displacing the legislative process with judicial will. Accordingly, we would affirm the judgment of the Superior Court, which affirmed the order granting summary judgment in favor of the Triathlon. While the facts of this case are most tragic, this Court may not afford relief where the law does not so provide.

Chief Justice Saylor and Justice Todd join this opinion in support of affirmance.

OPINION IN SUPPORT OF REVERSAL

DOUGHERTY, JUSTICE.

The question before the Court is whether the Superior Court erred when it determined

a pre-injury exculpatory waiver signed by a triathlon participant provides a complete defense to claims brought by the participant’s non-signatory heirs pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. We would find the waiver is unenforceable against the heirs and does not preclude their wrongful death action. We would therefore reverse the Superior Court’s decision and remand to the trial court for further proceedings.

In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a 0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania. As a participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his electronic signature to an online registration form.

On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for the swim portion of the Triathlon, but he did not complete the swim and, on the following day, his body was recovered from the Schuylkill River. There is no dispute Decedent drowned in the river while participating in the Triathlon. SeeValentino v. Phila. Ins. Co., No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).

Appellant Michele Valentino filed a lawsuit in her individual capacity and as Administratrix of the Estate of Derek Valentino, against several defendants, including appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on her own behalf and that of her children.[1] See Amended Complaint at ¶¶ 26-28, 34-36, citing 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant …”); Amended Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. § 8301(a), (b) (Wrongful Death Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”).[2] In response to preliminary objections, the trial court entered orders striking from the complaint all references to outrageous acts, gross negligence and recklessness. The trial court also struck appellant’s claim for punitive damages. Remaining in the case were several allegations of ordinary negligence, specifically, that appellee failed to: make a

reasonable inspection of the premises and event course; remove or take measures to prevent dangerous conditions; follow rules, regulations, policies and procedures governing safety standards; properly train the Triathlon’s agents, servants and employees with respect to safety rules, regulations, policies and procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonable and safe manner; properly construct or design a safe event route to avoid dangerous conditions; regulate or control the number of individuals participating in each phase of the race simultaneously; have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue; and have adequate safety personnel on hand for each aspect of the event. Seeid. at ¶ 22(b), (d) & (f) – (l).

Thereafter, appellee filed an answer with new matter, claiming Decedent was sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to reduce appellant’s recovery in accordance with the amount of comparative negligence attributed to Decedent. See Answer with New Matter at ¶43, citing Comparative Negligence Act, 42 Pa.C.S. § 7102. In addition, appellee asserted the complete defense of assumption of risk, claiming it owed no duty to Decedent or his survivors based on Decedent’s execution of the Waiver. Id. at ¶¶44, 46.

a. Summary Judgment

On September 30, 2013, the trial court granted appellee’s motion for summary judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s motion for reconsideration, the court opined summary judgment on the survival action was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed itself regarding appellant’s wrongful death action, and opined that claim should be remanded for further proceedings based on the Superior Court’s decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In recommending the wrongful death action be remanded, the trial court observed “a decedent can contract away his own right to recover in court under a survival action, [but] he cannot similarly alienate the rights of third parties to recover in their own wrongful death actions.” Id.

b. Superior Court

A divided en banc panel of the Superior Court subsequently affirmed summary judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016).[3] The majority reasoned that, for a decedent’s heirs to recover damages in a wrongful death action, there must be an underlying tortious act by the defendant. See id. at 492-93, quotingKaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (1936) (“… a right to recover must exist in the party injured when he died in order to entitle[ ] those named in the act to sue…. [W]here the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death are likewise barred.”) (internal citations omitted). The majority further held its own decision in Pisano, which allowed non-signatory wrongful death claimants to file a court action despite their decedent’s execution of an arbitration

agreement, is limited to the facts of that case. Id. at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death is dependent upon the existence of a tortious act that caused the death, stating “while a third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en banc majority’s analysis was its position that arbitration and settlement agreements “bind[ ] only the parties to the agreement while the [liability waiver] extends to non-signatory third-parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express assumption of all risks which eliminated any legal duty otherwise owed to anyone by appellee, creating a complete bar to tort liability.[4] Id.

Appellant filed a petition for allowance of appeal and this Court granted review of two questions:

Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?

Whether the defense of assumption of risk should be abolished except in those situations where it is specifically permitted by the Comparative Negligence Act?[5]

Valentino v. Phila. Triathlon, LLC, 641 Pa. 515, 168 A.3d 1283 (2017) (per curiam ).

Our standard and scope of review on appeal from summary judgment are well-established. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (2003), citingPappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001). In determining whether the lower court erred in granting summary judgment, the standard of review is de novo and the scope of review is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009), citingLJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009). We consider the parties’ arguments with these standards in mind.

II.

Appellant argues the Superior Court erred in determining the Waiver, which

was executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes wrongful death actions are statutorily authorized in Pennsylvania:

(a) General rule.–An action may be brought, 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. § 8301(a). Relying on Pennsylvania jurisprudence, appellant argues a wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.” Appellant’s Brief at 13-15, quotingFrey v. Pa. Elec. Comp., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992), and citingTulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992), Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its basis the same tortious act which would have supported the injured party’s own cause of action”).

Appellant relies on Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), where the tort-victim husband executed a general release and settlement agreement after a car accident which purported to waive recovery by “any and all other persons associations and/or corporations[.]” Appellant’s Brief at 15-16, quotingButtermore, 561 A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a suit against medical professionals who treated him after the accident, including a claim brought by wife for loss of consortium. Seeid. at 16. On appeal from summary judgment, this Court ruled husband’s claim was barred by the release he executed, but wife’s claim was not because she herself had not signed it. Id., citingButtermore, 561 A.2d at 736. Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore . Id. at 17-18, citingButtermore, 561 A.2d at 735.

In response, appellee contends summary judgment was properly entered and dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a wrongful death action is derivative of, and dependent upon, a tortious act that results in decedent’s death. Appellee’s Brief at 13, citingCentofanti v. Pa. R. Co., 244 Pa. 255, 90 A. 558, 561 (1914) (additional citations omitted). Appellee insists the Superior Court correctly determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered non-tortious in all respects because appellee no longer owed Decedent any duty of care. Id. at 16-17, citingMontagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff knowingly and voluntarily encountering an obvious and dangerous risk relieves those “who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa. Super. 2000) (en banc ) (“Our [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis ….”) (additional citations omitted). Appellee also argues Pisano is not applicable here. Appellee contends Pisano determined only the narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement which she did not sign, and is not relevant to questions regarding

the exculpatory Waiver signed by Decedent. Seeid. at 24.

III.

The Wrongful Death Act (the Act), provides an independent statutory cause of action that belongs to specific claimants, i.e. the surviving spouse, children or parents of the deceased. 42 Pa.C.S. § 8301 (Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”). SeeKaczorowski, 184 A. at 665 (“By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein.”). This statutory claim for wrongful death “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.” Id. at 664 (internal citations omitted). Accordingly, Pennsylvania courts recognize that while wrongful death actions seek damages for losses to heirs arising from their relative’s wrongful death, the claims are not derivative of — or limited by — the decedent’s own rights. SeePisano, 77 A.3d at 660.

It is clear the General Assembly intended the Act to compensate the decedent’s surviving heirs, not the decedent himself, whose own losses are encompassed in a survival action. Compare 42 Pa.C.S. § 8301(wrongful death) with 42 Pa.C.S. § 8302 (survival); see alsoAmato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quotingHatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“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…. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”) (additional citations omitted). The Act is thus designed to assure a decedent’s heirs may seek compensation “for the loss of pecuniary benefits which [they] would have received from the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a remedial statute, and as such it must be liberally interpreted to effect its purpose and promote justice. 1 Pa.C.S. § 1928(c); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1087 (1985) (wrongful death statute is “remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act”); see alsoO’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1203 (2001) (noting remedial statutes are to be liberally construed to effect objectives).

With these principles and the legislative purpose of the Act in mind, we must determine whether the Waiver provides a complete defense to a wrongful death claim brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be construed and interpreted in the same manner as other contracts — such as arbitration clauses or settlement agreements and releases — when determining whether it is effective against a non-signatory third party. The Waiver purports to be an exculpatory contract, and such contracts are generally disfavored by the law. SeeEmployers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966) (“contracts providing for immunity from liability for negligence must be construed strictly since

they are not favorites of the law”); see alsoSoxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826, 828 (1988) (“the law … recognized that lying behind [exculpatory] contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection”), quotingPhillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 843 (1974). Accordingly, a pre-injury exculpatory agreement is valid only when “it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1177 (2010), citingTopp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993). This Court has consistently recognized the exculpatory contract is an agreement that is “intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction … [which must be] construed strictly against the party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963), quotingMorton v. Ambridge Borough, 375 Pa. 630, 101 A.2d 661, 663 (1954).

Thus, in determining whether the Waiver provides a defense to appellant’s wrongful death action, we must liberally apply the remedial Act while we simultaneously construe the Waiver strictly against appellee as the party seeking protection from the contract. We would hold the Superior Court did the opposite in its decision below: the court erroneously gave the Waiver the broadest application possible while disregarding the remedial nature of the Act and the public policy considerations underpinning it.[6]

First, we note the Waiver is a contract between Decedent and appellee involving their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad language barring Triathlon participants from filing suit to recover damages for injuries or death “which may arise out of, result from, or relate to my participation in the [Triathlon], including claims for Liability caused in whole or in part by the negligence of” appellees. See Waiver attached as Exhibit A to appellee’s Answer and New Matter. However, the Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs and appellee. We emphasize a wrongful death action belongs solely to a decedent’s heirs, is intended to compensate them, and does not accrue to the decedent. SeeHatwood, 55 A.3d at 1235, quotingMachado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super. 2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made …”). Thus, while a pre-injury exculpatory

waiver might indeed be effective to bar a survival claim by a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts as a complete defense to statutory claims that are specifically available to his non-signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s wrongful death claim, but in our considered view, allowing the Waiver to have this effect would require us to ignore the purpose of the Act and the public policy concerns it was specifically enacted to protect.[7]

Our conclusion is consistent with prior Pennsylvania case law arising from wrongful death actions. As this Court has stated, such lawsuits are meant to compensate the statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the pecuniary losses they sustained as a result of their relative’s death. SeeTulewicz, 606 A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims and have declined to enforce a decedent’s own agreements and obligations against his heirs. SeeButtermore, 561 A.2d at 736 (release signed by husband barred his own action against hospital but not the independent action of wife, who did not sign release); Pisano, 77 A.3d at 660, citingKaczorowski, 184 A. at 664 (wrongful death claim is derived from injury to decedent but it is independent and distinct cause of action; decedent’s agreement to arbitrate not binding on non-signatory heirs); see alsoRickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept insurance benefits in exchange for allowing subrogation by insurer not binding on non-signatory heirs who recovered damages in subsequent wrongful death action against tortfeasor). The Waiver in this regard is analogous to the settlement and release agreement at issue in Buttermore, or the arbitration agreement in Pisano .

We observe that the undisputed purpose of the Act is “to provide a cause of action against one whose tortious conduct caused the death of another.” Amadio, 501 A.2d at 1087. And, as we have stated, exculpatory contracts must be read narrowly. SeeDilks, 192 A.2d at 687; see alsoTayar v. Camelback Ski Corp. Inc., 616 Pa. 385, 47 A.3d 1190, 1196 (2012) (for exculpatory clause to be enforceable “contract language must be construed strictly”), quotingTopp Copy, 626 A.2d at 99. Allowing the Waiver to have a broad exculpatory effect with respect to non-signatory wrongful death claimants would essentially make the right the General Assembly created for certain heirs through the Act an illusory one. Abrogation of an express statutory right to recovery in this way violates public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid and unenforceable. Chepkevich, 2 A.3d at 1177. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). Moreover, our recognition of relevant public policy concerns in this regard does not constitute “creation” of public policy. See OISA at 947. Our law is clear that determination of whether contract terms may be avoided on public policy grounds “requires a showing of overriding public policy from legal precedents [or] governmental practice ….” Tayar, 47 A.3d at 1199. The public policy

we recognize here is well-established in both judicial precedents and statutory enactment. This Court has declined to enforce exculpatory contracts “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, [because] that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953) (exculpatory waiver of liability unenforceable on public policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte blanche automatic defense to wrongful death actions comports with the remedial purpose and protection expressed in the Act. A contrary holding elevates a private contract above public policy embodied in a statutory enactment, and overrides our jurisprudence directing a narrow and strict construction of exculpatory waivers.

Accordingly, we would hold the Waiver is void and unenforceable with respect to appellant’s wrongful death claims and, as such, the Waiver should not be available to appellee as a defense in the underlying wrongful death litigation.[8] We would hold the Superior Court erred in affirming summary judgment in favor of appellee on that basis, and reverse and remand to the trial court for further proceedings on appellant’s wrongful death claim.

Justice Donohue and Justice Mundy join this opinion in support of reversal.

OPINION IN SUPPORT OF REVERSAL

DONOHUE, JUSTICE.

I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. I write separately to express my view that, in light of the derivative nature of wrongful death actions, the Superior Court was technically correct in its analysis of the mechanical operation of the liability waiver in reaching its conclusion. However, when the mechanical operation of the law works to defeat the purpose of a remedial statute like the Wrongful Death Act, by way of the broad enforcement of a legally disfavored exculpatory agreement, the mechanical operation must yield.

As Justice Dougherty explains, this Court has repeatedly affirmed a requirement that exculpatory agreements must be narrowly and strictly construed because exculpatory language, which purports to relieve a person of liability even when he has negligently caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 952-53, 954-55 (citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (2010); Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993);

Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963)). Here, Appellant does not challenge the validity or the enforceability of the contractual assumption of risk in the survival action she brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this appeal, the liability waiver is valid and enforceable as a complete defense to the survival action. As between the Triathlon and Decedent, there is a knowing and voluntary agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.

I believe that we must, however, decline to allow the liability waiver to defeat a wrongful death action brought by heirs who never agreed, expressly or otherwise, to eliminate their statutory right to recover for their pecuniary loss resulting from the death of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the liability waiver to defeat the wrongful death action, as the Superior Court did, gives the waiver the broadest possible reading, contrary to our mandate to narrowly construe such provisions. The tenet of strict construction requires that we limit this liability waiver to its narrowest effect: a bar to recovery under the survival action.

Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it must meet three conditions: it must not contravene public policy, the contract must be between persons relating entirely to their own private affairs, and each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. OISR (Dougherty, J.) at 952-53 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs, this Court’s decision in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), is instructive. In Boyd, an agreement between a property owner and a tenant relieved the property owner from liability for any injury occasioned by the property owner’s negligence in the maintenance of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building … shall be used for human habitation unless it is equipped with a fire escape or fire escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was not equipped with fire escapes. The building caught fire and, unable to escape the building by fire escape, the tenant sustained serious injuries and sued. The property owner attempted to rely on the exculpatory agreement in the lease to avoid liability.

We declined to find the waiver enforceable, explaining:

Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state but merely an agreement between persons relating entirely to their private affairs. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.

Id. at 46. We further held, “where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id.

We are tasked here with determining the legal effect of a liability waiver upon a third party, not the signatory – a far more extreme reach of the waiver of liability than in Boyd . However, as in Boyd, the fullest enforcement of the liability waiver would contravene an unequivocal policy determination by the General Assembly,

namely that wrongful death heirs are entitled to recover pecuniary losses from the party responsible for their provider’s death. See OISR (Dougherty, J.) at 952-53, 954.

The Wrongful Death Act, which is remedial in nature and must be construed liberally, assures that surviving heirs do not need to go without financial support nor look to public welfare agencies to shoulder the economic burden of the loss of a provider. SeeKaczorowski, 184 A. at 665; see alsoGershon v. Regency Diving Center, 368 N.J.Super. 237, 845 A.2d 720, 728 (2004) (observing that, “in many wrongful death cases the decedent was the ‘breadwinner’ and the heirs are children, incompetents or those otherwise economically dependent on the decedent”). Notably, in the case at bar, Decedent was a forty-year-old husband and father of two who worked full-time for United Parcel Service and part-time as a licensed realtor. See Appellant’s Response to Triathlon’s Motion for Summary Judgment at 2.

Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful death claim would require us to ignore clear public policy embedded in the wrongful death statute and our laws governing decedents more generally. Analogously, the General Assembly has for centuries prohibited spousal disinheritance by will in order to ensure the surviving spouse’s financial security after the decedent’s death. SeeIn re Houston’s Estate, 371 Pa. 396, 89 A.2d 525, 526 (1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving spouse to take against the will an elective share of one-third of the deceased’s property, subject to certain exceptions, thereby ensuring the surviving spouse’s right to some inheritance). Thus, a married individual cannot eliminate his spouse’s statutory entitlement, even through an attempted disinheritance in a last will and testament. In my view, it is impossible to reconcile allowing a sporting event participant to eradicate a statutory claim for wrongful death damages when he could not accomplish a disinheritance by virtue of a will. For this reason, and because liability waivers are disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is enforceable only in the survival action brought on behalf of Decedent’s estate, where it was not challenged. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). So construed, it has no effect on the wrongful death action. Like Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver of the Triathlon’s duty of care in the wrongful death action because doing so would implicate public, not merely private, affairs and would contravene the policy set forth by our legislature in the Wrongful Death Act which we must liberally construe. OISR (Dougherty, J.) at 954-55; see alsoChepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.

———

Notes:

[1] We also granted allowance of appeal to determine whether to abolish the assumption of the risk doctrine under circumstances where the Comparative Negligence Act does not expressly permit its application. Appellant, however, waived this issue by not challenging the overall viability of the assumption of the risk doctrine in the lower tribunals. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

[2] In block capital lettering above the signature line, the Agreement stated that Decedent’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 Decedent signed the agreement freely and voluntarily. Id. This final paragraph went on to state that acceptance of the Agreement constituted “a complete and unconditional release of all liability to the greatest extent allowed by law.” Id.

[3] In Pisano, the decedent had executed an agreement at the time of his admission to a long-term care nursing facility (“Extendicare”), providing that any dispute arising from the agreement would be resolved by binding arbitration. Id. at 653. The decedent’s son subsequently commenced a wrongful death action against Extendicare in the trial court. Extendicare filed preliminary objections, seeking to have the case dismissed for lack of subject matter jurisdiction. The trial court overruled Extendicare’s preliminary objections, holding that a wrongful death action is a creature of statute and is independent of the right of action of the decedent’s estate. Id. at 654. Thus, the trial court concluded, the decedent’s agreement to arbitrate disputes did not preclude the wrongful death claim brought by the decedent’s son. Id.

The Superior Court affirmed. The court reasoned that pursuant to 42 Pa.C.S. § 8301, a wrongful death action is not derivative of the decedent’s claim, but is a separate and distinct right of action belonging to statutory claimants to compensate them for damages they sustained as a result of the decedent’s death. Id. at 656-8. The Pisano court concluded that the arbitration agreement was not binding on the decedent’s son because he was not a party to that agreement; thus, the trial court was correct in refusing to compel arbitration.

[4] Notably, the Superior Court presumed the validity of the Agreement as Appellant presented no claim to the contrary. See id. at 492 n.6 (explaining that Appellant “does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions in the context of this case.”). By declaring the Agreement void as against public policy, the OISR ignores this clear waiver of any challenge to the Agreement on those grounds.

[1] Appellant stipulated to the dismissal of all defendants other than appellee on January 29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without Prejudice.

[2] In Pennsylvania, wrongful death claims are separate and distinct from survival claims, although both involve allegations of negligence against the defendant. SeeDubose v. Quinlan, 643 Pa. 244, 173 A.3d 634, 637 (2017); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992); (“the two actions are designed to compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa . 2014) (“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims”). The survival claim is the “continuation of a cause of action that accrued to the plaintiff’s decedent while the decedent was alive …. On the other hand, a wrongful death action accrues to the decedent’s heirs when the decedent dies of such an injury ….” Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an independent action which belongs to the decedent’s heirs for damages aimed to compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.

[3] Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and Judges Bowes, Shogun and Ott.

[4] In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E. Ford Elliott determined Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989) was instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it. Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory heir in that case had an independent right to sue for the injury she suffered as a result of her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s own assumption of risk created a complete defense to his heirs’ wrongful death action would “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.” Id. at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary judgment. Id. at 504.

[5] This Court granted review of this second issue and ordered supplemental briefing via a per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it applied to Decedent, she never questioned the overall viability of the doctrine of assumption of the risk below, and the issue is therefore waived. See OISA at 942, n.1.

[6] The OISA suggests our view of the case ignores the question before the Court. See OISA at 942-43. Respectfully, the OISA’s position reveals an overly narrow reading of the issue on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory heirs in a claim made pursuant to the Wrongful Death Act. Seesupra at 950-51. In answering that question, we examine the terms of the Waiver within the context in which it is to be enforced. We cannot disregard the nature of the underlying suit and our jurisprudence guiding our interpretation of exculpatory contracts, which specifically includes a consideration of public policy. SeeChepkevich, 2 A.3d at 1177 (exculpatory agreement is valid only when “it does not contravene public policy …”). Although the question granted on appeal did not include the term “public policy,” we must surely consider public policy when determining whether an exculpatory agreement is valid and enforceable under the given circumstances.

[7] The OISA accurately observes an exculpatory agreement would “generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity,” but nevertheless rejects our view that the same waiver could be ineffective as a defense in a wrongful death claim while providing a viable defense in a survival action. See OISA at 947. We consider the disparate treatment of the Waiver in the two causes of action to be the direct result of the different goals and purposes served by the relevant statutes. Seesupra at 942, n.2.

[8] Importantly, our holding would not render appellee defenseless in that litigation, despite the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA at 947. We recognize a wrongful death action is a tort claim arising from the alleged “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Appellant must still prove the elements of her case, including causation, before any recovery would be assured. See, e.g.,Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003) (to maintain negligence action, plaintiff must show defendant had duty to conform to standard of conduct, breach of duty, the breach caused the injury, and the injury resulted in damages).

———


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Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

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Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

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Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

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Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

97 N.Y.S.3d 825

63 Misc.3d 843

Richard E. Scotti and Joseph Russo, Plaintiffs,

v.

Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, Defendants.

No. 2019-29098

522905/17

Supreme Court of New York, Kings

March 29, 2019

[97 N.Y.S.3d 828] Plaintiffs were represented by Brandon Michael Cruz THE BONGIORNO LAW FIRM, PLLC. Address

Defendants were represented by Joshua Cash WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Address

Opinion

Debra Silber, J.

Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated move for an order, pursuant to CPLR 7501 and 7503(a), to compel arbitration and to stay this action pending resolution of the arbitration proceeding. For the reasons which follow, the motion is denied.

Background and Procedural History

This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti (Scotti) and Joseph Russo (Russo) (collectively, plaintiffs) participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter, the TM Event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, “Tough Mudder”) are the business entities that organized the TM Event. Plaintiffs commenced the within action on or about November 17, 2017 against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a Verified Answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.

Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this Court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM Event when they completed an on-line internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the Manager of Customer Relations for Tough Mudder Incorporated (Affirmation of Joshua Cash, Exhibit C). Best avers that she is fully familiar with the TM Event on-line registration process as it existed in 2016 when the plaintiffs registered for the TM Event at issue.[1] Tough Mudder has submitted copies of the on-line registration forms that the plaintiffs allegedly completed for the TM Event (Cash Affirmation, Exhibit D). Best states that, during the on-line registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter, PWCR), a document version of which has been submitted herein (Cash Affirmation, Exhibit F). She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down, read as follows:

“Participant Waiver: Tough Mudder Incorporated

ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS. (Cash Affirmation, Exhibit E).

Best claims the PWCR contained the following “Mediation and Arbitration” provision:

Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the TM event shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The costs of such action shall be shared equally by the parties.

I further acknowledge and agree that any question, issue or dispute as to the arbitrability of any dispute, controversy, or claim arising out of my participation in the TM event, will be submitted to an arbitrator in accordance with the applicable rules of the American Arbitration Association then in effect. The Arbitration Rules of the American Arbitration Association are available on-line at http://www.adr.org (Cash Affirmation, Exhibit F).

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR (Cash Affirmation, Exhibit D at ¶ 5). She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event (id at ¶ 6). Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action. In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the web page where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text (Exhibit F to Cash Affirmation). Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.

Plaintiffs additionally argue that the arbitration clause in the PWCR is unenforceable because it contains a conflicting provision regarding disputes. Plaintiffs point out that the PWCR contains a clause entitled “Venue and Jurisdiction” located several paragraphs before the “Mediation and Arbitration” clause, which states [Exhibit F, Page 3]:

I understand that if legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.

Plaintiffs argue that this provision clearly conflicts with the arbitration clause located many lines of type below it, thereby rendering it void and unenforceable.

Finally, plaintiffs argue that the entire PWCR agreement, including the purported arbitration provision, is unenforceable because the “Waiver of Liability for Ordinary Negligence” clause (on page three of the PWCR as Exhibit F) violates General Obligations Law (GOL) § 5-326, which prohibits contracts between the owner or operator of any “place of amusement or recreation” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment.” In this regard, plaintiffs contend that Tough Mudder’s operation of the TM Event obstacle course was clearly operated as “a place of amusement or recreation” within the meaning of GOL § 5-326. Since the plaintiffs paid a fee to use the obstacle course and were injured while engaged in that activity, they argue that GOL § 5-326 renders the entire waiver of liability clause, and all remaining provisions of the PWCR, including the arbitration clause, void and unenforceable.

In reply, Tough Mudder points out that the plaintiffs do not dispute that they each did in fact register for the TM Event. In addition, Tough Mudder argues that GOL § 5-326 is not applicable herein and, therefore, does not invalidate the waiver or any other PWCR provision. In this regard, Tough Mudder maintains that the TM Event is distinguishable from the “recreational” activities intended to be covered under the statute, such as horseback riding, auto racing, cycling and skiing, which Tough Mudder characterizes as being “relaxed and undemanding” activities, which “do not necessitate any research or physical preparation.” Tough Mudder argues that the TM Event is distinguishable from the foregoing activities in that it is “a rigorous and grueling athletic competition that requires proper training and dedication” (Cash Reply Affirmation, at ¶ 8). Tough Mudder further argues that TM Events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely distinct from the recreational activities engaged in by the “general public” as contemplated by GOL § 5-326.

In addition, Tough Mudder points out that the PWCR contains a “Severability” provision which states, in relevant part, as follows:

“I understand and agree that this … Waiver of Liability … is intended to be as broad and inclusive as is permitted by the state in which the TM Event is held and that if any provision shall be found to be … void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.”

[97 N.Y.S.3d 831] In light of the foregoing provision, Tough Mudder argues that, in the event a clause is deemed unenforceable, it does not invalidate any of the remaining provisions of the PWCR, including the arbitration clause at issue.

Tough Mudder also argues that the “Venue and Jurisdiction” clause is not contradicted by the “Mediation and Arbitration” clause, as the latter clause only mandates arbitration regarding disputes “arising out of [one’s] participation in the TM event …” Therefore, Tough Mudder contends that there are clearly certain circumstances when a state or federal trial court would be the appropriate venue for claims that do not arise out of one’s participation in the TM Event. However, since plaintiffs’ claims do arise out of their participation, Tough Mudder maintains that arbitration of this matter is required.

Discussion

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” (God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] [internal quotation marks omitted]; seeMatter of Robert Stigwood Org. [Atlantic Recording Corp.], 83 A.D.2d 123, 126, 443 N.Y.S.2d 726 [1981] ). When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement (seeHarriman Group v. Napolitano, 213 A.D.2d 159, 162, 623 N.Y.S.2d 224 [1995] ). The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists (seeSeneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d 211, 212, 741 N.Y.S.2d 690 [2002]; Matter of Allstate Ins. Co. v. Roseboro, 247 A.D.2d 379, 380, 667 N.Y.S.2d 914 [1998] ). The court must draw all inferences in favor of the non-moving party. (Nicosia v. Amazon.com Inc., 834 F.3d 220, 229 [2d Cir. 2016] ).

“The creation of online contracts ‘has not fundamentally changed the principles of contract’ ” (Resorb Networks, Inc. v. YouNow.com, 51 Misc.3d 975, 981, 30 N.Y.S.3d 506 [Sup.Ct. N.Y. County 2016] quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 [2d Cir. 2004] ). The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website (seeSchnabel v. Trilegiant Corp., 697 F.3d 110, 120 [2d Cir. 2012] ). Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 833, 835 [S.D.N.Y. 2012]; Starke v. Gilt Groupe, Inc., 2014 WL 1652225, *2, *3, 2014 U.S. Dist. LEXIS 58006, *6-7 [S.D.N.Y. 2014]; Jerez v. JD Closeouts, LLC, 36 Misc.3d 161, 168, 943 N.Y.S.2d 392 [Nassau Dist. Ct. 2012] ). In Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” (id. at 35; seeStarke v. Squaretrade, Inc., No. 16-CV-7036 [NGG], 2017 WL 3328236, at *5 [E.D.N.Y. Aug. 3, 2017], affd 913 F.3d 279 [2d Cir. 2019] ).

In Berkson v. Gogo LLC, 97 F.Supp.3d 359, 394-403 (E.D.N.Y. 2015), the four “general types of online consumer contracts

are identified as (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” As explained by Judge Weinstein in Berkson:

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services…. (Id. at 394-95). (seeApplebaum v. Lyft, Inc., 263 F.Supp.3d 454, 465 [S.D.N.Y. 2017] [applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff] ).

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.[2]

A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.” (Serrano v. Cablevision Sys. Corp., 863 F.Supp.2d 157, 164 [E.D.N.Y. 2012]; see alsoWhitt v. Prosper Funding LLC, 15— CV— 136, 2015 WL 4254062, at *4 [S.D.N.Y. July 14, 2015]; Kai Peng v. Uber Techs., Inc., 237 F.Supp.3d 36, 47-48 [E.D.N.Y. 2017]; Berkson, 97 F.Supp.3d at 397). However, as stated by Judge Koeltl in Applebaum v. Lyft, Inc., 263 F.Supp.3d at 466,

“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (internal citations omitted)

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation [97 N.Y.S.3d 833] of assent is unambiguous as a matter of law (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d 17, 28 [2d Cir. 2002] ). Therefore, issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue (seeApplebaum, 263 F.Supp.3d at 465). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry (id. ; seeMeyer v. Uber Techs., Inc., 868 F.3d 66, 76 [2d Cir. 2017], citing Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 [2d Cir. 2012] ).

Here, plaintiffs did not have actual notice of the arbitration provision at issue in this case. However, plaintiffs can still be bound by the contractual terms if there is inquiry notice of the terms and plaintiffs “assent[ed] to [the terms] through the conduct that a reasonable person would understand to constitute assent” (Plazza v. Airbnb, Inc., 289 F.Supp.3d 537, 548 [S.D.N.Y. 2018]; see alsoNicosia, 834 F.3d at 233). A person is on inquiry notice if a “reasonably prudent offeree would be on notice of the terms at issue” (Schnabel, 697 F.3d at 120 [” ‘[I]nquiry notice’ is ‘actual notice of circumstances sufficient to put a prudent man upon inquiry’ “] quoting Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 27 n.14 [2d Cir. 2002] ).

As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ” (Specht v. Netscape Communications Corp., 306 F.3d 17, 32 [2d Cir. 2002] [Sotomayor, J.] ). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways (Meyer v. Kalanick, 200 F.Supp.3d 408, 420 [S.D.N.Y. 2016] ). In Meyer, a putative class action claiming price-fixing, the district court found that adequate notice was not given to plaintiff of mandatory arbitration when he registered to use Uber. The screen had a hyperlink to the agreement, but plaintiff did not need to click on it to register as a user. Then, after clicking on it, you needed to click further to read the Terms of Service and the arbitration provision was at the bottom of page seven. This was determined to be a “browsewrap” agreement. The Second Circuit, on appeal,[3] determined that the issue was whether the plaintiff was on inquiry notice of the arbitration provision by virtue of the hyperlink on the screen, under California Law, and determined that adequate notice was given. The panel reversed the district court, finding the motion to compel arbitration should have been granted.

The court further notes that on-line agreements may be revised from time to time, so not only must the court determine whether the party seeking to enforce such an agreement has provided the version seen by the other party at the time the contract was made, but whether the court in any seemingly on point case cited actually rendered its decision based on the same version of the agreement (seePlazza v. Airbnb, 289 F.Supp.3d 537 [S.D.N.Y. 2018] [archived computer code for 2009 sign-up screen provided to court, along with screen shots of Terms of Service] ).

In Berkson, supra, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide a court’s inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement (Berkson, 97 F.Supp.3d at 401 [citingNguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] ). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.” Special attention should be paid to whether the site design brings the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. “When contractual terms as significant as … the right to sue in court are accessible only via a small and distant hyperlink … with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent” (Meyer v. Kalanick, 200 F.Supp.3d at 421-22 [internal quotation marks and citation omitted] ). A broad exculpatory clause waiving liability for negligence would also certainly qualify as a material term and one that alters a contracting party’s commonly-understood rights.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period. In this regard, the court finds that the affidavit by Ms. Best holds little evidentiary value, as she does not set forth the basis of her personal knowledge of Tough Mudder’s on-line registration process at the time the plaintiffs registered, or of her familiarity with the applicable computer generated documents (seeGogos v. Modell’s Sporting Goods, Inc., 87 A.D.3d 248, 253-254, 926 N.Y.S.2d 53 [2011] ). Additionally, absent from her affidavit is any indication that she was even employed by Tough Mudder at the relevant time period.

In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screen shot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms. In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screen shots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms” (Starke v. Squaretrade, Inc., 913 F.3d 279, 289-90 [2d Cir. 2019] citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] and Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 23 [2d Cir. 2002] [where court refused to enforce terms of use that “would have become visible to plaintiffs only if they had scrolled to the next screen”] ). Here, Tough Mudder’s submissions with respect to the “design and content” of its website and the relevant terms of the PWCR, especially the arbitration clause, are woefully inadequate.

The court further notes that the initially visible portion of the on-line text box containing the scrollable PWCR has an all-caps header stating: “ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.” However, while this header specifically draws the user’s attention to certain specified provisions (i.e., Assumption of Risk, Waiver of Liability and Indemnity) which appear at the beginning of the document (on pages one and three), it makes no reference to the arbitration provision, which appears on page four of the seven-page PWCR document.

Additionally, the court notes that the “Venue and Jurisdiction” clause, which appears on page three of the PWCR states that if “legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction….” This provision clearly conflicts with the arbitration clause at issue, which mandates that all claims “arising out of [one’s] participation in the TM Event shall be submitted to binding arbitration….” Given that the plaintiffs would have viewed (in the scrollable text box) the “Venue and Jurisdiction” provision first, the court finds it highly unlikely that they would have been placed on inquiry notice of the arbitration provision, which appeared on a subsequent page in the agreement. As noted above, the party seeking to compel arbitration bears the burden of establishing that an agreement to arbitrate exists (see Seneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d at 212, 741 N.Y.S.2d 690), which Tough Mudder has failed to do. Under the circumstances presented here, the court finds that the arbitration provision was not sufficiently conspicuous to place the plaintiffs on inquiry or constructive notice and, therefore, is not enforceable (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d at 32; Applebaum, 263 F.Supp.3d at 465). Further, due to the conflicting provisions regarding litigation and arbitration, the arbitration provision is void due to ambiguity. Accordingly, Tough Mudder’s motion to stay the action and compel arbitration is denied.

General Obligations Law § 5-326

As to plaintiffs’ argument that the waiver and release provision set forth in the PWCR [Exhibit F Page 3] is invalid pursuant to GOL § 5-326, the court agrees. That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid (GOL § 5-326; seeRogowicki v. Troser Mgt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 [1995]; Blanc v. Windham Mtn. Club, 115 Misc.2d 404, 454 N.Y.S.2d 383 [1982], affd 92 A.D.2d 529, 459 N.Y.S.2d 447 [1983] ). The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation (seeLeftow v. Kutsher’s Country Club Corp., 270 A.D.2d 233, 234, 705 N.Y.S.2d 380 [2000] ). Indeed, the nature of the TM Event as described by Tough Mudder — a rigorous, athletic competition requiring proper training — is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by GOL § 5-326. Furthermore, Tough Mudder’s assertion that, unlike the TM Event, such activities are “relaxed and undemanding” and “do not necessitate any research or physical preparation” is an inaccurate and absurd distinction. Thus, the PWCR’s waiver provision, waiving defendants’ liability for “ordinary negligence” violates GOL § 5-236 and is therefore void (seeGarnett v. Strike Holdings LLC, 64 A.D.3d 419, 882 N.Y.S.2d 115 [2009] [applying § 5— 326 where plaintiff paid a fee to use the recreational facility]; Alibey v. Tough Mudder Inc., 2018 WL 5298473, at *2 [Sup.Ct., Kings County, Oct. 24, 2018]; Hansen v. Tough Mudder, Inc., [Sup Ct Kings Co. 2018, Ind. 515072/15] ).

However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, “the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.” (Mark Hotel LLC v. Madison Seventy-Seventh LLC, 61 A.D.3d 140, 143, 872 N.Y.S.2d 111 [2009] ). “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being.” (Matter of Wilson’s Estate, 50 N.Y.2d 59, 65, 427 N.Y.S.2d 977, 405 N.E.2d 220 [1980] ).

Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.

Conclusion

For the reasons state above, Tough Mudder’s motion to compel arbitration and stay the action is denied.

The parties are directed to appear on May 1, 2019 in the Intake Part for a Preliminary Conference.

The foregoing constitutes the decision and order of the court.

Notes:

[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.

[2] In any event, as the court states in Meyer v. Uber Tech., Inc., 868 F.3d 66, 76 (2d Cir. 2017).: Classification of web-based contracts alone, however, does not resolve the notice inquiry. See Juliet M. Moringiello and William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L.Rev. 452, 466 (2013) (“Whether terms are classified as clickwrap says little about whether the offeree had notice of them.”). Insofar as it turns on the reasonableness of notice, the enforceability of a web based agreement is clearly a fact-intensive inquiry. SeeSchnabel, 697 F.3d at 124.

[3] Meyer v. Uber Techs., Inc., 868 F.3d 66 (2017)


Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Barth v. Blue Diamond, LLC (d/b/a Blue Diamond MX Park),

Scott Barth, Plaintiff,

v.

Blue Diamond, LLC (d/b/a Blue Diamond MX Park), a Delaware corporation, The East Coast Enduro Association, Inc., a New Jersey corporation, and Delaware Enduro Riders, Inc., a Delaware corporation, Defendants.

C.A. No. N15C-01-197MMJ

Superior Court of Delaware

November 29, 2017

Submitted: November 17, 2017

Motions for Summary Judgment on the Issue of Primary Assumption of Risk

Batholomew J. Dalton, Esq., Laura J. Simon, Esq., Dalton & Associates, Larry E. Coben, Esq. (Argued), Gregory S. Spizer, Esq., Anapol Weiss, Attorneys for Plaintiff Scott Barth

Michael J. Logullo, Esq. (Argued), Rawle & Henderson LLP Attorney for Defendants The East Coast Enduro Association, Inc. and Delaware Enduro Riders, Inc.

George T. Lees III, Esq., Logan & Petrone, LLC Attorney for Defendant Blue Diamond, LLC

OPINION

The Honorable Mary M. Johnston.

FACTUAL AND PROCEDURAL CONTEXT

In this Opinion, the Court considers an apparent issue of first impression in Delaware. The question is whether the doctrine of primary assumption of risk applies in certain risky or dangerous sports-related activities in the absence of an express waiver of liability. This is a personal injury case. The plaintiff, Scott Barth, suffered serious injuries during an off-road dirt-bike race. Barth alleges that the race’s course was owned by Defendant Blue Diamond, LLC (“Blue Diamond”), co-sponsored by Defendant Delaware Enduro Riders (“DER”), and overseen by Defendant East Coast Enduro Association, Inc. (“ECEA”). Barth alleges that the Defendants’ negligent and reckless failure to properly mark the race’s course caused his injuries. Prior to the race, Barth signed a release of liability form.

DER and ECEA filed a Motion for Partial Summary Judgment as to Barth’s allegations of recklessness, which Blue Diamond adopted. DER and ECEA also jointly filed a Motion for Summary Judgment, while Blue Diamond separately filed its own. At the hearing on the motions, this Court denied the Motion for Partial Summary Judgment, holding that genuine issues of material fact exist regarding recklessness, particularly as to, among others things, “the adequacy of signage” and “the adequacy of warnings on the course.”[1] The Court declined to rule from the bench as to the Motions for Summary Judgment, instead instructing the parties to make additional submissions limited to the issue of the doctrine of primary assumption of risk, the central grounds for the three defendants’ motions.

DER and ECEA argue they are entitled to summary judgment for two reasons. First, Barth signed a waiver releasing them from liability. Second, Barth assumed the risk inherent in an off-road dirt-bike race. In its separate motion, Blue Diamond makes the same two arguments and adds a third-Barth was a member of the Blue Diamond Riding Club, and Blue Diamond did not owe Barth the same duty it would owe a common law business invitee, MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[2] All facts are viewed in a light most favorable to the non-moving party.[3] Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances.[4] When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law.[5] If the non- moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, ” then summary judgment may be granted against that party.[6]

ANALYSIS

Defendants argue that they are entitled to summary judgment because Barth signed a release of liability and, separately, because Barth assumed the risk of participating in the race. Both of these arguments are properly analyzed within the framework of the doctrine of primary assumption of risk.

In Delaware, “primary assumption of the risk is implicated when the plaintiff expressly consents ‘to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.'”[7] When primary assumption of risk exists, “the defendant is relieved of legal duty to the plaintiff; and being under no legal duty, he or she cannot be charged with negligence.”[8]

The Waiver Form Released the Defendants from Liability for Negligence, not Recklessness

Defendants argue they are entitled to summary judgment under a theory of express primary assumption of risk. Before participating in the race, Barth signed a release titled, “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” It states that Barth:

HEREBY RELEASES, WAIVES, DISCHARGES, AND COVENANTS NOT TO SUE . . . racing associations, sanctioning organizations … track operators, track owners … herein referred to as “Releasees, ” FROM ALL LIABILITY TO THE UNDERSIGNED . . . FOR ANY AND ALL LOSS OR DAMAGE . . . ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

Barth asserts that the entire waiver agreement is unenforceable as an invalid contract due to lack of consideration. He further contends that even if the agreement is enforceable, it does not release Defendants from liability for recklessness.

To be enforceable under Delaware law, releases of liability “must be crystal clear and unequivocal” and “unambiguous, not unconscionable, and not against public policy.”[9] Barth does not (and cannot) argue that the waiver form at issue does not meet this standard. In Lynam v. Blue Diamond LLC, this Court found a virtually identical release form valid.[10]

Barth instead argues that the form is unenforceable due to lack of consideration. Barth bases his argument on this Court’s finding in Devecchio v. Delaware Enduro Riders, Inc.[11] In Devecchio, this Court deemed a waiver of liability unenforceable due to lack of consideration when the form stated that riders agreed to inspect the course, but the defendants admitted that, under the race’s sanctioning body’s rules, the riders were not allowed to inspect the course before the race. [12]

As in Devecchio, the release here contains an agreement that the race participants “have or will immediately upon entering any of such RESTRICTED AREAS, and will continuously thereafter, inspect the RESTRICTED AREAS . . ., “[13] Unlike in Devecchio, however, no sanctioning body’s rule barred Defendants from performing an inspection of the course.

Instead, the rule in this case stated: “Participants are allowed to walk or bicycle the course prior to the event-with the club’s permission.” Barth argues that, despite this distinction, Devecchio should apply because Barth was never given permission or made aware of his responsibility to inspect the course. Notably, however, Barth never asked for permission to inspect the course. That Barth hypothetically may not have received permission to perform the inspection is not dispositive. Barth cannot claim he was denied permission if he never asked for it. Additionally, the “failure to apprise himself of, or otherwise understand the language of a release that he is asked to sign is insufficient as a matter of law to invalidate the release.”[14] The Court finds that Barth’s own failure to perform a permissive part of the agreement does not make the waiver invalid.

Pursuant to Lynam, however, the form exculpates the Defendants’ negligence, not recklessness. As in Lynam, the form here provides for a release of liability caused by “THE NEGLIGENCE OF THE ‘RELEASEES’ OR OTHERWISE.” As this Court determined in Lynam, “such [exculpatory] agreements [that expressly exempt defendants from liability for their negligent conduct] generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross, and to any conduct which constitutes an intentional tort.”[15]

The Court finds that the waiver form releases the defendants from their liability for negligence, but not for recklessness.

Implied Primary Assumption of Risk Does Not Bar a Claim of Recklessness

It is undisputed that primary assumption of risk applies when the plaintiff signs a valid release of liability form.[16] But because Defendants argue that primary assumption of risk exists in addition to and independent of the waiver form, the Court must determine whether-and if so, how-to apply the defense beyond an express written agreement to waive liability.

Delaware courts have noted, paradoxically, that “depending upon the situation at hand, express consent may be manifested by circumstantial words or conduct.”[17]The illogic of “express consent” being “manifested by circumstantial words or conduct” can be resolved with the conclusion that Delaware recognizes an implied primary assumption of risk doctrine.[18]

Case law suggests that courts should find an implied primary assumption of risk only with respect to certain activities. Delaware cases have noted that primary assumption of risk commonly applies to “sports-related activities that ‘involv[e] physical skill and challenges posing significant risk of injury to participants in such activities, and as to which the absence of such a defense would chill vigorous participation in the sporting activity and have a deleterious effect on the nature of the sport as a whole.'”[19] Examples of such sports-related activities include:

(1) being a spectator at a sporting event such as a baseball or hockey game or tennis match where projectiles may be launched into the audience; (2) participating in a contact sporting event; (3) bungee jumping or bungee bouncing; (4) operating a jet-ski, or engaging in other noncompetitive water sports such as water-skiing, tubing, or white-water rafting; (5) drag racing; and (6) skydiving.[20]

The nature of the activity is pertinent to an analysis of primary assumption of risk. Otherwise, in the absence of a waiver of liability, the dangerousness of the activity would be irrelevant. The case law therefore suggests that the doctrine of primary assumption of risk applies to certain sports-related activities, even in the absence of an express waiver form. However, though Delaware seems to allow for the application of implied assumption of risk in certain sporting events, no Delaware case has provided a framework for applying the doctrine. This precise issue appears to be one of first impression.

The California case Peart v. Ferro, [21] which this Court cited in support of its observations on the prevalence of primary assumption of risk in dangerous sporting events, [22] provides a means of analysis. Under the Peart framework, courts must examine two things to determine whether an implied primary assumption of risk exists: the nature of the activity and the relationship between the parties.[23]

When examining the nature of the activity, courts consider:

what conditions, conduct or risks that might be viewed as dangerous in other contexts are so integral to or inherent in the activity itself that imposing a duty of care would either require that an essential aspect of the sport be abandoned, or else discourage vigorous participation therein. In such cases, defendants generally do not have a duty to protect a plaintiff from the inherent risks of the sport, or to eliminate all risk from the sport.[24]

In examining the relationship of the parties, the court bears in mind that “the general duty of due care to avoid injury to others does not apply to coparticipants in sporting activities with respect to conditions and conduct that might otherwise be viewed as dangerous but upon examination are seen to be an integral part of the sport itself.”[25]

When analyzed within this framework, implied primary assumption of risk remains distinct from secondary assumption of risk. Secondary assumption of risk has been subsumed by Delaware’s contributory negligence statute.[26] It is therefore no longer available as a complete defense. Secondary assumption of risk exists when “the plaintiffs conduct in encountering a known risk may itself be unreasonable, because the danger is out of proportion to the advantage which he is seeking to obtain.”[27] In contrast, the focus for implied primary assumption of risk remains on the nature of the activity the plaintiff has consented to participate in and the actions of the defendants-not how the conduct of the plaintiff may have contributed to his injuries. Commentators also have noted that implied primary assumption of risk is distinct from secondary assumption of risk.[28]

The Court finds that implied primary assumption of risk is a valid affirmative defense to negligence. Because Barth signed a valid release of liability for Defendants’ negligence, the remaining issue in this case is whether implied primary assumption of risk is a valid affirmative defense to allegations of recklessness as well.

Though defendants do not owe a duty to protect a plaintiff from the risks inherent in an activity to which the doctrine of implied primary assumption of risk applies, “defendants do have a duty not to increase the risk of harm beyond what is inherent in the sport through intentional or reckless behavior that is completely outside the range of the ordinary activity in the sport.”[29]

Here, the Court has ruled as a matter of law that a genuine issue of material fact exists as to whether Defendants recklessly marked the course with inadequate signage. The Court finds there is a genuine issue of material fact as to whether the Defendants committed reckless conduct which increased the race’s risk of harm.[30] Further, the Court holds that the doctrine of implied primary assumption of risk does not insulate a tortfeasor from liability for intentional or reckless conduct. The Defendants’ Motions for Summary Judgment on this issue are denied.

Barth was a Business Invitee for the Race Despite his Blue Diamond Membership

Because Barth’s primary express and implied assumption of risk bar his claims of negligence, the Court need not reach this issue. However, for the sake of completeness, the Court finds that because Barth paid a fee to participate in the race, his relationship with Blue Diamond for the purposes of that event was that of a business invitee. His membership with the Blue Diamond Riding Club had no bearing on his participation in the race.

This fact distinguishes this case from Ketler v. PFPA, LLC, [31] upon which Blue Diamond relies. There, the plaintiff was a member of a fitness center and was injured while using a rowing machine. Because the fitness center was a “private-membership based business, ” the Court found the fitness center did not owe the plaintiff the same duty it “would owe to a common law business invitee or to the public at large.”[32]

In this case, participation in the race was not restricted to members of the Blue Diamond Riding Club. The race was open to any “American Motorcyclist Association Member.” Unlike the fitness center, Blue Diamond invited non-members to the race, and therefore owed participants the duties owed to business invitees.

CONCLUSION

The doctrine of implied primary assumption of risk does not insulate tortfeasors from liability for intentional or reckless conduct.

DER and ECEA’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against these defendants are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against these defendants, Blue Diamond’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART. The Court finds that the allegations of negligence against this defendant are barred under the doctrine of primary assumption of risk. There remains a genuine issue of material fact as to the allegations of recklessness against this defendant. With the dismissal of the negligence allegations, the question of Blue Diamond’s status as a business invitee is moot.

IT IS SO ORDERED.

Notes:

[1] October 3, 2017 Tr. of Motions, 71:12-16.

[2] Super. Ct. Civ. R. 56(c).

[3] Burkhart v. Davies, 602 A.2d 56, 58-59 (Del. 1991).

[4] Super. Ct. Civ. R. 56(c).

[5] Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

[6] Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

[7] Helm v. 206 Massachusetts Avenue, LLC, 107 A.3d 1074, 1080 (Del. 2014) (quoting Fell v. Zimath, 575 A.2d 267, 267-68 (Del. Super. 1989)).

[8] Id.

[9] Lynam v. Blue Diamond LLC, 2016 WL 5793725, at *3 (Del. Super.).

[10] See id. The release in Lynam read:

I HEREBY RELEASE, DISCHARGE AND COVENANT NOT TO SUE the . . . track owners, [and] owners and lessees of premises used to conduct the Event(s). . . all for the purposes herein referred to as “Releasees, ” FROM ALL LIABILITY TO ME, THE MINOR, [and] my and the minor’s personal representatives . .. FOR ANY AND ALL CLAIMS, DEMANDS, LOSSES, OR DAMAGES ON ACCOUNT OF INJRY, including, but not limited to, death or damage to property, CAUSED… BY THE NEGLIGENCE OF THE “RELEASEES” OR OTHERWISE.

[11] 2004 LEXIS 444 (Del. Super.).

[12] Id.

[13] The corresponding clause in Devecchio read:

EACH OF THE UNDERSIGNED . . . acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he come in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgment that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use ….

[14] Id. This principle also dispenses with the argument that Barth did not have sufficient time to understand the release that he chose to sign.

[15] Id. (quoting W. Page Keeton, et al., Prosser and Keeton on Torts, § 68 at 483-84 (5th ed. 1984)).

[16] See Lafate v. New Castle Cty., 1999 WL 1241074 (Del. Super.) (analyzing whether a signed waiver constitutes primary assumption of risk).

[17] Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 882 (Del. Super. 2005) (citing Croom v. Pressley, 1994 WL 466013, at *5 (Del. Super. 1994)).

[18] See id. at 882 n.30 (‘”Primary assumption of risk is akin to express or implied consent… .'” (quoting 57B Am. Jur. 2d. Negligence § 1010)). Storm also quoted the Restatement (Second) of Torts at length to explain assumption of risk generally. Id. at 881. That passage described a form of assumption of risk “closely related to” that acquired through “express consent” as one in which:

the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.

Id.; see also McCormick v. Hoddinott, 865 A.2d 523, 529 (Del. Super. 2004) (“In the instant case there appears to be no evidence to support a claim that minor Plaintiff expressly or impliedly assumed any risk; therefore, an affirmative defense of assumption of risk based on primary assumption of risk cannot stand.”) (emphasis added).

[19] Helm, 107 A.3d at 1080 (quoting Storm, 898 A.2d at 883).

[20] Storm, 898 A.2d at 883 (citations omitted). Storm noted, however, that a “common theme” of these activities is that they frequently involve the signing of consent forms, suggesting the Court may have only meant to invoke them as another example of where express consent may apply. Id. However, a “common theme” is not a “common requirement”-spectators at sporting events do not sign releases of liability to view an event. Moreover, courts have found waiver of liability forms enforceable in contexts dissimilar to those listed above. See, e.g., Ketler v. PFPA, LLC, 2015 WL 3540187, at *2 (Del. Super. 2015) (finding a waiver form sufficient to invoke primary assumption of risk when the plaintiff snapped a cable on a rowing machine at the defendant’s gym). The Storm Court would have had no occasion to comment on the nature of the activity if it were not independently meaningful in the analysis.

[21] 13 Cal.Rptr.3d 885, 894 (Cal.App. 4 Dist. 2004).

[22] See Storm, 898 A.2d at 883 (citing Peart to define the sort of sports-related activities that typically raise the issue of primary assumption of risk).

[23] Peart, 13 Cal.Rptr.3d at 894 (citations omitted).

[24] Id.

[25] Id. at 894-95.

[26] Helm, 107 A.3d at 1080 (“[I]t is now accepted in Delaware that the concept of secondary assumption of risk is completely subsumed by the principles of comparative negligence.”).

[27] Fell v. Zimath, 575 A.2d 267, 268 (Del. Super. 1989).

[28] See Restatement (Second) of Torts § 496A (1979) (distinguishing a description of implied primary assumption of risk from a secondary assumption of risk, “in which the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence”); 57B Am. Jur. 2d Negligence § 1010 (“Primary assumption of risk is akin to express or implied consent, and relieves the defendant of any obligation to exercise care for the injured person’s protection, including situations where an injured person, having knowledge of a hazard, continued voluntarily to encounter it. Secondary assumption of risk is akin to contributory negligence . . . .”).

[29] Peart, 13 Cal.Rptr.3d at 894.

[30] This conclusion is in line with Delaware decisions that applied similar logic under framework of a different name. See Farrell v. University of Delaware, 2009 WL 3309288, at *3 (Del. Super.) (finding persuasive the New York Supreme Court’s rationale that “[a]lthough [a] rink could not be liable for harms caused by the inherent dangers of skating or by unpreventable events, the court considered assumption of risk inapplicable to injuries resulting from ‘the reckless actions of another skater which the defendant, by adequate supervision, could have prevented.'”(quoting Shorten v. City of White Plains, 637 N.Y.S.2d 791, 796 (N.Y.App.Div.1996)); Lafate v. New Castle Cty., 1999 WL 1241074, at *4 (Del. Super. 1999) (denying summary judgment, in part because “it would not be within the normal expectation of the health risk of playing basketball that a supervising employee would place a metal bar within normal head range between two basketball courts” in spite of an express release of liability).

[31] 2015 WL 3540187 (Del. Super 2015).

[32] Id. at*l.


Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

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                                              Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Artwork by Don Long donaldoelong@earthlink.net