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Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Raven Renee Ray, Plaintiff, v. Steve A. Lesniak, Defendant.

No.: 2:16-cv-1752-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION

2018 U.S. Dist. LEXIS 28301

February 22, 2018, Decided

February 22, 2018, Filed

CORE TERMS: sheet, boat, brain, crew members, traumatic, pain, sailboat, captain, gybe, admiralty, passenger, maneuver, sailing, vessel, medication, symptoms, present value, guest, experienced, emotional, headaches, safe, hit, suffering, lookout, sit, citation omitted, concussion, sitting, opined

COUNSEL: [*1] For Raven Renee Ray, Plaintiff: Benjamin Catlett Smoot, II, William P Early, LEAD ATTORNEY, Pierce Herns Sloan and McLeod, Charleston, SC; Theodore Augustus Consta Hargrove, II, Pierce Herns Sloan and Wilson LLC, Charleston, SC.

For Steve A Lesniak, Defendant: Joseph R Weston, Stephanie A Phillips, LEAD ATTORNEYS, Weston Law Firm, Mt Pleasant, SC.

JUDGES: DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

OPINION BY: DAVID C. NORTON

OPINION

Plaintiff Raven Renee Ray (“Ray”) brought this admiralty action against Defendant Steve A. Lesniak (“Lesniak”) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat “the Celadon.”

The court tried this case without a jury on September 18, 2017. Having considered the testimony and the exhibits admitted at trial, as well as the parties’ pre-trial briefs and post-trial proposed findings and conclusions, the court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). It finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence, and [*2] that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves–“just some justice, some recognition and help.” Tr. 135:24.

FINDINGS OF FACT1

1 These findings are based on the preponderance of the evidence presented to the court.

1. At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

2. At the time of the incident, 57-year-old Lesniak was the owner, operator, and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience–including 25 years of sailing experience in Charleston. Tr. 205:15-17. He has captained “several hundred, maybe a thousand” sailboat races. Tr. 205:18-20. He has been sailing with some of the crew members that were on the Celadon at the time of the incident for “15, 20 years.” Tr. 205:24-206:7.

3. The sailboat Celadon on which the incident occurred is a fifty-one foot, 1995 Beneteau Oceanis 510 registered in [*3] Charleston County, South Carolina. At the time of the incident, Lesniak had owned and operated the Celadon for approximately fifteen years.

4. Operation of the sailboat during a race requires several crewmembers. Thirteen crewmembers and a number of guests were aboard the sailboat on the day of the incident. Tr. 182:1-183:1.

A. The Accident:

1. The court now turns to the day of the incident, May 21, 2014. Ray was invited to a sailboat race by Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Tr. 106:14-20. Skinner was a crew member on the Celadon. Tr. 184:3-6. Skinner has been sailing with Lesniak for “[r]oughly five years.” Tr. 206:20-22. Lesniak allowed Skinner to invite a guest on the boat. Tr. 184:5-6.

2. The other crew members who were on the Celadon during the incident had years of sailing experience, many as crew members with Lesniak. Tr. 206:10-208:4. Of the crew members on the boat at the time of the incident, at least three had medical backgrounds, ranging from Emergency Room nurse to thoracic surgeon. Tr. 206:10-208:9. Lesniak testified that these crew members had previously taken action if anyone suffered an injury on the [*4] boat during sailing races and trips. Tr. 209:21-210:5.

3. Lesniak testified that all of his crew members “[knew] to look after new people.” Tr. 208:18-21.

4. Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race. Tr. 209:1-20.

5. Ray and Skinner arrived at the Carolina Yacht Club, the marina where the yacht was docked. Tr. 107:7-12. When she got to the boat, there were “many” people on the boat, including crew members and guests. Tr. 108:1-4. Ray testified that she did not know anyone on the boat other than Skinner. Tr. 108:5-6.

6. Before May 21st, 2014, Ray had never been on a sailboat. Tr. 106:21-107:1. She knew nothing about how a sailboat worked. Tr. 107:2-4.

7. Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. Tr. 184:12-17. He also did not give any written instructions to guests. Tr. 187:2-6. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. Tr. 187:16-21. At the time of the incident, there were no safety placards or visual displays on the Celadon stating [*5] that there were dangerous places to sit on the boat, such as “around any rope, boom.” Tr. 186:20-187:1. Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial. Tr. 14:16-185:6. Lesniak did not hear what safety talks were given to guests because he was at the helm of the boat. Tr. 185:5-9.

8. Ray was late to the start of the boat race and was given an abbreviated version of the “safety talk” by crew members, which involved an instruction on where not to sit on the boat. Tr. 192:10-18.

9. Upon arriving on the Celadon, Skinner placed Ray at the position where she was sitting when the main sheet hit her. Tr. 264:8-265:19. Ray was seated on the deck of the Celadon, near the main sheet. Ex. 13.

10. The crew was aware of where Ray was sitting. Tr. 204:4-6.

11. Within 5-10 minutes of Ray stepping on board the Celadon, the incident occurred. Tr. 194:2-5.

12. Before she was hit, Ray was given instructions by crew members to “get more neighborly, get closer together.” Tr. 114:2-3. Specifically, crew member Dawn Truog (“Truog”) asked Ray, who was sitting in front of the main sheet, to “move back from the [main] sheet.” Tr. 250:16-25. There [*6] was no evidence presented that Ray knew what a “main sheet” was. Crew member Mary Anne Becker (“Becker”) also testified, stating that she “told [Ray] specifically to move, move up front, move forward” multiple times, because Ray “was going to be brushed by the sheets” when the boat gybed. Tr. 257:6-12. Becker further testified that even after these verbal warnings to move, Ray “didn’t move,” and “the next thing” Becker knew was Ray “down on the gutter” of the boat. Tr. 257:17-20.

13. Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. Tr. 199:16-17. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat. Tr. 221:14-25.

14. Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. Tr. 213:22-214:5. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Tr. 254:25-255:3. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.” Tr. 251:9-18.

15. If Lesniak had waited to gybe or made sure [*7] that Ray was in a safe location, Ray would not have been hit by the main sheet. Tr. 202:9-13.

16. After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat. Tr. 115:14-20. The main sheet carries a significant amount of pressure, “absolutely” enough to cause a serious injury. Tr. 237:6-25. Lesniak saw the main sheet strike Ray. Tr. 198:25-199:6.

17. The court considered the testimony of various crew members who were on the Celadon during the incident. For example, Dr. Bill Lynch testified about the main sheet hitting Ray. Additionally, he testified that he did not give any safety instructions to Ray, and was not aware of any sailing experience that she had. Tr. 247:1-6.

18. Ray was left with an abrasion on her forehead as a result of the main sheet hitting her. Pl.’s Ex. 2.

19. After Ray was injured, Lesniak did not turn the boat around. Tr. 117:5-12. Lesniak continued with the boat race. Tr. 148:10-18.

B. Breach of Safety Protocol:

1. Ray testified about the instructions she was given when she got on the Celadon. Specifically, Ray stated that she was “told where the lines were” and where to sit. Tr. [*8] 109:18-23. She was given these instructions and told where to sit by a crew member, “Peggy.” Tr. 110:6-9. She was not warned that she “might get hit in the head with a boom or a rope or anything like that.” Tr. 110:10-17. There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. Tr. 110:18-24. There was also no formal verbal safety briefing. Tr. 111:4-7.

2. Ray did not hear, and “wouldn’t have understood” any instructions on whether the boom or main sheet were going to swing during the course of the race. Tr. 115:1-4.

3. The court also credits the testimony of Ray’s expert Captain Ken Wahl (“Wahl”), who the court qualified as a boating expert and marine safety consultant. Tr. 214:20-215:9. Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Ex. 1 at 8. Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his [*9] review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.” Tr. 220:1-9.

4. Wahl opined that Lesniak, who had captained hundreds of races, became “complacent” by delegating the “safety orientation” for guests to crew members. Tr. 225:9-226:3.

5. Wahl testified that when a boat race begins, “[t]here’s some very dangerous places to be on board the boat . . . [a]nd it’s certainly not a safe place to be right near the main sheet.” Tr. 221:10-13. Accordingly, Ray, who was seated on the deck of the boat near the main sheet, was in a dangerous position. Tr. 222:1-6.

6. Specifically, Wahl opined that “[m]oving isn’t quite enough” “when somebody doesn’t know anything about a sailboat, because they don’t know where to move to.” Tr. 223:23-25. The proper procedure for a crew member to ensure that Ray was moved safely to another area of the boat was for Lesniak or a crew member to physically ensure that she had been moved to a safer place. Tr. 226:14-227:16. Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient, and a breach of safety protocol. [*10] Tr. 227:9-21.

7. Wahl further opined that it was in contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet, as gybing the boat necessarily causes a movement of the main sheet. Tr. 223:14-19. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as “[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is.” Tr. 223:16-22. Lesniak did none of these things.

8. When a captain changes the position of the sails, such as the gybe maneuver that Lesniak performed, Wahl testified that the captain “typically” will call out to the crew and let the crew members know that he will be changing the position of the sails. Tr. 238:16-239:4.

C. Comparative Negligence:

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move. Tr. 257:17-20.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention. Tr. 210:6-23.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that [*11] “she was fine.” Tr. 210:24-25.

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Tr. 210:1-5. Ray declined. Tr. 210:1-5.

D. Causation of Traumatic Brain Injury:

1. Two days after the incident, Ray went to Nason Medical Center because she was experiencing “extreme body pain.” Tr. 119:17-24. Within seven days of the incident, Ray began experiencing different symptoms–namely, debilitating nausea and headaches. Tr. 120:11-21. Ray was “extremely” confused when she went to the Medical University of South Carolina (“MUSC”) the week after the incident as a result of her new symptoms. Tr. 121:1-6. At MUSC, Ray was referred to a neurologist who diagnosed Ray with a concussion and prescribed medications for a head injury. Tr. 121:7-25.

2. The only medical expert who testified during the trial was Dr. Marshall Allen White (“Dr. White”), a board-certified neurologist.2 Tr. 8:15-16. Dr. White treats patients with traumatic brain injuries as part of his practice on “nearly a daily basis,” and has done so since 1991. Dr. White has testified in the past as to both the diagnoses [*12] and causation of traumatic brain injuries. The court credits Dr. White as an expert in the field of traumatic brain injuries. Tr. 9:21-10:17. Dr. White examined Ray, and reviewed the following medical records: (1) Nason Medical Center; (2) MUSC; (3) Dr. Jeffrey Buncher, a pain management physician in Charleston, South Carolina; (4) physical therapy records; (5) acupuncture records; (6) neuropsychological testing performed by Dr. Randolph Waid; and (7) psychiatric records from Dr. Kurtzman. Tr. 11:1-21. Dr. White testified that, based on his examination of Ray, a review of her medical records, and consulting with peer-reviewed articles, Ray sustained a traumatic brain injury. Tr. 12:5-12. Specifically, Dr. White testified that Ray had the symptoms of a concussion immediately following the incident, in that she was “dazed, confused,” and the morning after the event she felt “that she was not going to be able to wake up,” which Dr. White testified indicated “a level of hypersomnolence, which is typical following a concussion.” Tr. 12:17-13:1. Dr. White further testified that compared to “baseline records” that were “pretty close in proximity” to the incident, he observed that Ray had [*13] “heightened levels of anxiety, trepidation, moodiness, difficulty sleeping after the period of hypersomnolence, difficulty focusing, poor memory, and anxiety levels which were dramatically increased from her baseline levels.” Tr. 13:2-10. All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident. Tr. 13:11-15.

3. According to Dr. White, Ray’s traumatic brain injury is “permanent.” Tr. 13:16-18. All three of these opinions–that Ray had a traumatic brain injury, that the brain injury was permanent, and that the brain injury was the result of the incident on the Celadon–Dr. White testified that he held to a “reasonable degree of medical certainty.” Tr. 13:19-22. Specifically, in his report, Dr. White states that:

It is my opinion to a reasonable degree of medical certainty that Ms. Ray experienced traumatic brain injury as a result of her sailing incident, which occurred in 2014. There is ample evidence of headache, nausea, vomiting, and worsening in her neuropsychiatric syndrome and cognitive abilities following the incident . . . It is further my opinion that Ms. Ray would clearly have academic, social [*14] and occupational difficulties throughout every facet of her life.

Pl.’s Ex. 4. Dr. White further testified that when he examined Ray, she was having emotional and concentration issues that he attributed to her “residual [traumatic brain injury] symptomology,” and that this was consistent with a patient with her level of brain injury. Tr. 28:13-23.

4. Dr. White also testified at length about Ray’s post-incident treatment in the week after the incident, based on his review of her medical records. At Nason, Dr. White testified that no diagnostic testing was performed, and instead Nason “basically gave her pain medicine and sent her home.” Tr. 17:9-11. Then, Ray went to the MUSC emergency room, where she was “evaluated and treated” for “neck and back pain.” Tr. 17:14-15. Ray then returned to MUSC with “complaints of pain,” and returned once again within five days of the injury “complaining of headaches” as well as nausea and vomiting. Tr. 17:19-23. These symptoms of headaches, nausea, and vomiting, were, Dr. White testified, symptoms of a concussion. Tr. 18:11-14. Based on his review of Ray’s medical records and after taking her medical history, Dr. White concluded that Ray had “a lot” of [*15] the symptoms of the postconcussive syndrome. Tr. 20:5-9.

5. Lesniak argued at various points during the bench trial that Ray did not immediately experience any symptoms of headaches, nausea, and vomiting while on the Celadon or the next day. However, Dr. White testified that there can be “delayed effects from concussion.” Tr. 35:24. Furthermore, Ray had consumed at least one beer immediately before the incident. Alcohol consumption, Dr. White testified, would impair Ray’s ability to recognize her symptoms. Tr. 36:6-11.

6. Dr. White testified that postconcussive headaches such as the ones that Ray experienced can be developed “within seven days of the concussion itself.” Tr. 18:22-24. Indeed, Dr. White testified on the types of symptoms during the “days and weeks” after a concussion, and stated that there can be “difficulty concentrating, moodiness, hypersomnolence . . . [a]nxiety . . . headaches, nausea, and vomiting.” Tr. 19:1-17.

7. Ray had a CT scan done at MUSC, which had normal results, but Dr. White testified that the normal CT scan did not disturb his opinion that Ray had a traumatic brain injury, as mild traumatic brain injury patients will have “under almost all circumstances [*16] . . . normal imaging.” Tr. 21:18-22:2. Indeed, Dr. White testified that a normal CT scan was “expected” for patients with mild traumatic brain injury. Tr. 22:3-6.

8. The court considered that Ray was not diagnosed with traumatic brain injury, or indeed any injury at all, by any emergency room physicians in her visits to Nason or the MUSC ER. But, according to Dr. White, the peer-reviewed literature in the field is clear that mild traumatic brain injuries “can be overlooked,” even by emergency room physicians. Tr. 36:2-5. Furthermore, in none of the medical visits that Ray had in the immediate aftermath of the incident did she have any cognitive testing done that would have detected such cases of traumatic brain injury. Tr. 52:11-60:4.

9. Dr. Kurtzman, a psychiatrist who examined Ray on May 1st before the incident, indicated that Ray was working on her graduate thesis and had no “uncontrolled anxiety or crying spells.” This psychiatric record is closest in proximity to the incident. Tr. 14:13-15:11. Dr. Kurtzman’s psychiatric record further indicates that as of May 1st, Ray was a “student, working doing marketing, volunteering, and doing research–all while supporting herself financially.” [*17] Tr. 15:12-20. In his treatment notes for Ray after the incident, Dr. Kurtzman stated that Ray had “suffered . . . emotionally and physically from an injury sustained from being hit by a sailboat boom . . . I’m concerned about her emotional prognosis and her emotional upset secondary to the accident.” Tr. 23:6-24:4. Dr. Kurtzman also prescribed Ray the medication Adderall, which Dr. White testified is an “amphetamine stimulant” that is “used for patients with [traumatic brain injury] who are having difficulty concentrating.” Tr. 24:5-15. Concentration and attention problems such as those treated with Adderall are consistent with the diagnosis of mild traumatic brain injury, Dr. White testified. Tr. 24:16. Dr. White further testified that during his examination and interview with Ray, she stated that she experienced those symptoms for the first time after the date of the incident. Tr. 24:19-22. Ray testified that she had never been prescribed Adderall or psychostimulants before the incident. Tr. 101:14-102:7. At the direction of her doctor, Ray has been taking Adderall in increasing doses since the incident. Tr. 126:22-11.

10. The court acknowledges that prior to the incident, Ray was [*18] on the medication Klonopin to treat anxiety. Tr. 16:2-9. However, Dr. Kurtzman was on a successful program to wean Ray off of Klonopin. Tr. 16:10-16. Ray testified that she was in the process of “taper[ing] off” the anti-anxiety medication. Tr. 102:16-103:4. The court also acknowledges that Ray suffered from general anxiety disorder, which can have symptoms similar to those found in someone with a concussion. Relatedly, the court has considered Ray’s testimony about the circumstances of her unfortunate upbringing, including her time in foster care and her intermittent history with prescribed antidepressants and anti-anxiety medication. Tr. 92:1-99:3. The court credits Dr. White’s opinion–that the temporal relationship between the incident and the onset of symptoms supports a finding that Ray was not suffering from her historical general anxiety disorder, but from the head trauma she received as a result of the incident. Tr. 48:4-20.

11. Ray was seen by Dr. Woodard, a neurologist at MUSC, “several months” after the incident. Dr. Woodard also diagnosed Ray as having postconcussion syndrome, and placed her on gabapentin and nortriptyline. Nortriptyline is used to treat headaches, while [*19] gabapentin is used to treat headaches, mood disturbances, and sleep. Tr. 20:12-21:14.

12. On July 28, 2015, Ray had neuropsychological testing, which discerns whether there are “cognitive or emotional deficits related to injury” performed by Dr. Randolph Waid. Tr. 25:1-14. Specifically, Dr. Waid employed the Conners Continuous Performance Test II to assess Ray’s “attentional abilities.” Tr. 25:14-24. Based on Ray’s pre-incident level of functioning, Dr. Waid felt that Ray’s concentration abilities, which were in the ninth percentile, were low. Tr. 26:2-5. Ray had a “very high GPA” in her college and graduate work before the incident. Tr. 26:11-12. Ray had a 3.7 GPA at the College of Charleston. Tr. 101:5-7. The cause of the decrease in Ray’s attention between college and the day that Dr. Waid performed his neurophysical testing was, in Dr. White’s opinion, the traumatic brain injury that she suffered as a result of the incident. Tr. 26:15-18.

13. Ray also saw Dr. Jeffrey Buncher for injuries related to the incident. Ray had pain management issues before the incident, specifically with chronic neck and back pain. Ex. 8. But Ray’s pain problems with her sacrum were, in Dr. White’s opinion, [*20] “exacerbated” by the incident. Tr. 27:1-21.

14. Dr. White offered a future treatment plan to treat Ray’s permanent condition and opined that “there are a number of interventions that ought to be taken in her care that are currently not being taken” and that Ray was not receiving treatment from any doctors who treated traumatic brain injuries. Tr. 30:1-32:2. Dr. White also testified about the cash prices of the drugs necessary for the future treatment plan. Tr. 32:14-33:15.

15. The court also considered the testimony of Chad Houfek (“Houfek”), an acupuncturist and the owner of Charleston Community Acupuncture. Tr. 81:11-23. Houfek knew Ray as a patient as well as a volunteer at Charleston Community Acupuncture. Tr. 82:2. In her capacity as a volunteer, Ray worked answering phones, scheduling appointments, and also helped with bookkeeping. Tr. 82:11-83:8. Houfek testified about how Ray was different after the incident, from a treatment perspective, explaining that she came in for acupuncture a week after the incident, and that “she had a big mark on her temple, and she was very upset, she was crying and very scared, didn’t really know what to do, and she had a lot of neck pain.” Tr. 83:9-19. [*21] When Ray had her acupuncture appointment on May 28th, approximately one week after the incident, Houfek recorded in his session notes that Ray was “postconcussion,” and that what she was experiencing included sensitivity to stimulus and headaches. Tr. 84:9-18. After the incident, Houfek continued to treat Ray, and stated that he was treating her mostly for neck pain and lower back pain, as well as insomnia, and “extreme emotional.” Tr. 87:4-9.

16. Houfek also testified about the changes in Ray as a volunteer after the incident. Before the incident, Houfek described Ray as “awesome,” as an employee who was “very friendly,” who “always showed up on time,” and “took initiative.” Tr. 85:7-15. But after the incident, Houfek testified that Ray was “always late,” “very very scattered,” and that “communicating with her was difficult.” Tr. 85:17-25. Houfek further testified that he had not experienced any of those problems with Ray before the incident. Tr. 86:2-4.

17. The court has considered the reports and treatments notes of the doctors, including pain management specialists and neurologists, that Ray has seen since the incident. Ex. 10. In conjunction with Dr. White’s testimony, these medical [*22] documents support the conclusion that Ray suffered a traumatic brain injury as a result of the injury she suffered on the Celadon.

18. Prior to the incident, Ray testified that “[l]ife was great,” and that she “was excited for finishing” her master’s thesis at the Citadel and continuing on for her Ph.D. Tr. 103:18-25. In addition to being in the master’s program at the Citadel, Ray was also working at the restaurant Oak Barrel four nights a week, Tr. 104:19-24, in the tasting room at the restaurant Freehouse two nights a week, Tr. 104:15-105:1. She was also volunteering with Charleston Community Acupuncture and doing research. Tr. 105:17-24. She testified that despite this busy schedule she never had any problems with attention before the incident. Tr. 106:1-11.

19. Since the incident, Ray has had suicidal ideations. Tr. 124:22-125:9. She has also been suffering from giggling issues and other inappropriate responses to stimuli, which never occurred before the incident. Tr. 127:19-25. As a result of these issues, as well as the problems in concentration and attention, her professors at the Citadel have expressed “legitimate concerns” about her ability to complete the graduate program. [*23] Tr. 127:19-25; 132:1-9. Furthermore, since the incident Ray has lost her jobs at the Oak Barrel and the Freehouse. Tr. 128:16-19. Ray attributes both of these job losses to the incident. For example, as a result of the injuries she sustained, Ray has had to ask her customers and friends to come and help her while she was at the bar. Tr. 129:1-10. Additionally, when there were stimuli such as music or “certain sounds,” Ray would run out of the bar and “leave the entire bar empty, and cry in the alley.” Tr. 129:4-11. Before the incident, Ray did not have these problems at work.

20. Since the incident, Ray has had physical and psychological problems. Physically, she has had trouble sleeping, has “nerve pain down the back of her leg,” and tension headaches. Tr. 130:13-131:21. She now also has communication issues, which have affected her interpersonal, professional, and educational goals. Tr. 136:21-137:13.

21. The court considered the medical bills that Ray has incurred, between the date of the incident and present. Pl.’s Ex. 10. Ray does not have health insurance. Tr. 123:4-7. The total medical bills for her injury totaled $20, 480.70. Pl.’s Ex. 10. By the time of trial, Ray had incurred [*24] the following expenses to treat her injuries:

a. Nason Medical Center $127.00
b. MUSC $4,654.00
c. MUSC Physicians $1,194.00
d. Dr. Waid $1,125.00
e. Dr. Kurtzman $2,050.00
f. Dr. Buncher $5,945.00
g. Charleston Community Acunpuncture $3,130.00
h. EnterpriseRx $74.82
i. Publix Pharmacy $228.36
j. Walgreens Pharmacy $1,952.52
Total: $20,480.70

2 Lesniak objects to allowing Dr. White to testify on the subject of future treatment. However, Ray disclosed Dr. White as one of her treating physicians and produced Dr. White’s medical evaluation of Ray, wherein Dr. White opined that Ray had sustained a permanent traumatic brain injury. The court is convinced that Dr. White’s written report and opinion of Ray’s permanent injury gave Lesniak adequate notice that Ray would need continued medical evaluation and treatment for her condition for the rest of her life. Ray disclosed Dr. White as an expert in neurological medicine and pain management in compliance with all relevant expert disclosure requirements and deadlines. Lesniak made the decision to decline to take Dr. White’s deposition, offer his own medical expert disputing the diagnosis of traumatic brain injury or offer an alternative future treatment plan, or to request any additional information from Dr. White regarding his evaluation of Ray. At the very least, Lesniak was on notice that as a result of the incident, Ray had already spent a significant amount of money on medical treatment including $2,255.70 on medication alone. Certainly, Ray’s medical bills were turned over during discovery. Therefore, the court overrules Lesniak’s objection.

III. CONCLUSIONS OF LAW

Based on the testimony of all of Lesniak’s crew members and all experts, including Ray’s expert Captain Wahl, Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver during the sailboat race, Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions, including telling Ray where to move and delaying the gybe maneuver until Ray had moved to a safe place, was [*25] a breach of Lesniak’s duty to Ray. The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

However, Lesniak has presented sufficient evidence to support the allegation in his Answer that Ray was comparatively negligent. Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

As a direct result of Lesniak’s failure to exercise the proper degree of skill required, Ray sustained injuries and damages, as discussed below. In making the above findings of fact, reference has been made to pertinent portions of the testimony and exhibits introduced into evidence; however, the court has taken [*26] into consideration all of the evidence presented. The court specifically finds the evidence, after considering the appearance, demeanor and qualifications of the witnesses and the testimony as a whole, supports each of its findings by a preponderance of the evidence.

A. Jurisdiction and Applicable Law

Federal admiralty jurisdiction exists where, as here, conditions of both (1) location and (2) a connection with maritime activity are satisfied. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, (1995). Admiralty jurisdiction extends to injuries involving recreational vessels such as the Celadon. See Oliver by Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984) (admiralty jurisdiction exists over a case involving a collision between a swimmer and a pleasure boat because the claim was based on an allegation of negligent navigation of the boat). The portion of the Charleston Harbor where the incident occurred constitutes navigable waters of the United States, and being struck by the main sheet of a racing sailboat has a connection to maritime activity. Accordingly, the court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1333. See Sisson v. Ruby, 497 U.S. 358, 364-65, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990).

Cases involving a tort committed on navigable waters are governed by federal admiralty law. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (citation omitted). However, if there is no admiralty rule for a particular [*27] issue, the court looks to state law to supply the rule of decision. Id. “This rule is especially true in negligence causes of action,” which is the cause of action that Ray asserts. Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citation omitted). Therefore, to the extent admiralty law is not directly on point, ordinary negligence law applies.

B. Lesniak’s Liability

To establish her claim, Ray must prove that Lesniak’s negligent operation of the Celadon harmed her. The elements of negligence are duty, a breach of that duty, proximate cause, and resulting injury. Schumacher, 850 F.Supp. at 447 (internal citations omitted).

a. Duty

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. See Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)). Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. Id. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will determine [*28] how high a degree is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983)). In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

A vessel operator also “has a duty to maintain a proper lookout by sight and by hearing” while the boat is travelling through navigable waters. Schumacher, 850 F.Supp. at 447. “This duty stems from general concepts of prudent seamanship as well as from the [regulations] governing the navigation of vessels.” Id. As a matter of prudent seamanship, “the performance of lookout duty is an inexorable requirement of prudent navigation.” Anthony v. Int’l Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). Rule 5 of the Inland Navigation Rules states that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 C.F.R. § 83.05. Rule 5 perpetuates the common-law duty discussed in Anthony. Schumacher, 850 F.Supp. at 448 (citation omitted). It imposes a duty of proper lookout upon the operator of a pleasure [*29] craft such as the Celadon. See Todd v. Schneider, 2003 U.S. Dist. LEXIS 25192, 2003 WL 23514560, at *11 (D.S.C. Dec. 8, 2003). Importantly, “[w]hoever is keeping a lookout must be able to give proper attention to that task and should not . . . undertake duties that would interfere with this function.” Schumacher, 850 F.Supp. at 448 (citation omitted).

“The duty to maintain a proper look-out, whether regulatory or customary, varies with the circumstances of each situation. When circumstances demand unusual care in navigation, such care should be used.” Id. at 449-50 (internal citations omitted). That higher level of care was required here, as Ray was an invited guest aboard a sailboat involved in a race in the Charleston harbor.

Lesniak was the owner, captain, and operator of the sailboat and was in control of its operation at all times. Ray was Lesniak’s passenger and guest. Although Lesniak designated his crewmembers to administer safety instructions to the passengers, as captain, Lesniak was ultimately responsible for the safety of the crewmembers and guests. Thus, Lesniak owed Ray a duty to maintain a proper lookout at all times during the Celadon’s outing.

b. Breach

Ray offered the testimony of Captain Wahl as her liability expert with regard to safe vessel operation. Captain Wahl has extensive knowledge about the safe [*30] operation of vessels. He obtained this knowledge from his many years of personally operating vessels, obtaining credentials, holding an array of maritime positions, authoring several books, and teaching well over 18,000 students in the subject. The court finds the testimony of Captain Wahl to be credible. Lesniak offered no liability expert at trial.

Captain Wahl testified that as the captain of the Celadon at the time of the incident, good seamanship practices required Lesniak to have the ultimate responsibility to look out for persons aboard his vessel–even if he delegated some of those responsibilities to crew members. Wahl testified that this ultimate responsibility includes providing adequate instructions, warnings, guidance, or lessons to all passengers, including late arriving ones, regarding the potential dangers of movement and position on his vessel and how to avoid those dangers. He also testified that looking out for passengers aboard a vessel includes refraining from performing a gybe maneuver until ensuring that all of the passengers are seated safely out of the path of the boom and its related parts such as the main sheet. Captain Wahl further testified that, even if [*31] a passenger is told verbally to move from a certain spot before a maneuver is performed, it would be a best practice to physically ensure that the person, especially if that person is a novice passenger with no sailing experience, has been moved to a safer place on the sailboat before proceeding to perform the maneuver. It is also Captain Wahl’s opinion that only highly experienced persons should be aboard for racing events, because inexperienced persons may not be able to handle the fast-paced activities normally observed during competitive sailing.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care [*32] under Admiralty and South Carolina law.

c. Causation

General tort principles require a plaintiff asserting a negligence claim to show that the defendant’s breach of duty proximately caused her injuries. Schumacher, 850 F.Supp. at 451. However, a finding that the defendant breached his duty to maintain a proper lookout imposes upon him the burden of showing by clear and convincing evidence that such failure did not contribute to the accident. Id. This burden shift occurs regardless of whether the breach is viewed as a violation of Rule 5 or as breach of the common-law lookout duty. Id.

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

d. Comparative Negligence

Since jurisdiction is premised upon admiralty, federal common law governs. As such, the doctrine of comparative negligence applies. See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, (1975)). Thus, in the context of an admiralty case, damages should “[b]e allocated [*33] among the parties proportionately to the comparative degree of their fault.” Reliable Transfer Co., Inc. 421 U.S. at 411, 95 S.Ct. 1708.

The court finds that Ray’s recovery should be reduced because Ray shares in the fault attributable as a result of the incident. Lesniak is required to prove the elements of duty, breach, causation, and injury as to Ray’s alleged negligence. Schumacher, 850 F. Supp. at 452 (citing Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610, 612 (S.C. 1973)). Namely, an individual has a “duty to exercise due care for one’s own safety.” Id. The court finds that Ray’s conduct contributed to her injuries, and reduces her damages by 25%.

The court finds that Ray was instructed by multiple crew members on multiple occasions on safety protocol, including where to sit. Ray admits that she was aware of potential dangers on the Celadon, and that she was told to “get closer together” and to “get more neighborly” in the moments immediately before the main sheet hit her. Lesniak and all four members of his crew who testified at trial indicated that there was a safety protocol, that Becker, an individual with sixty plus years of sailing experience, and her fellow crew member Truog, were delegated the duty of administering safety instructions and watching out for new, inexperienced passengers. Becker and Truog testified at trial [*34] that these were duties bestowed by their captain, Lesniak, and that they had a present-day recollection of communicating with Ray directly. The court further finds that Ray did not follow the instructions to move. Thus, Ray failed to take responsibility for herself, a duty which is imposed under the law. However, the court considers Ray’s inaction against the backdrop of Captain Wahl’s testimony that Ray as a novice passenger would not know what the safe places were on the boat without being physically guided to those places.

C. Damages

Substantive admiralty law governs all cases brought under federal admiralty jurisdiction; however, it does not automatically displace state law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). If there is no admiralty law on point, the court may look to the laws enacted by the state legislature or declared to be law by the state’s highest courts. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). Accordingly, the court may look to the law of the State of South Carolina in regard to the award of damages arising out of a negligence cause of action in admiralty. Id.

In a personal injury case such as this, the elements of damages potentially recoverable “include past and future medical expenses, past and future pain and suffering, past and future loss [*35] of income and earning power, disfigurement, loss of enjoyment of life, and loss of family services.” Schumacher, 850 F.Supp. at 453 (citing Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286, 291 (S.C. 1964)). Mathematical precision in ascertaining damages is not required. Brooks v. United States, 273 F.Supp. 619, 629 (D.S.C. 1967). Instead, the injured party must be awarded damages sufficiently proportionate to the injuries sustained. Drennan v. Southern Railway, 91 S.C. 507, 75 S.E. 45 (S.C. 1912).

The evidence in this case reveals Ray has suffered and will suffer such past and future damages, and she is entitled to recover for all of them.

a. Past Medical Expenses

Ray seeks to recover certain expenses for her prior medical care. At trial, she submitted a medical bill summary totaling $20,480.70 in prior care. Those expenses are recoverable, as they consist of services such as emergency medical treatment, imaging, physical therapy, psychiatric treatment, and pain management. Those expenses resulted from Lesniak’s negligence and were reasonably necessary. See Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87, 91 (S.C. 1964). Moreover, the court is satisfied that the invoiced amounts are reasonable. See Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003) (citation omitted). Therefore, the court awards Ray $20,480.70 in past medical expenses.

b. Future Medical Expenses

Ray seeks damages to cover her anticipated future medical expenses. “[R]ecovery of damages based on future consequences of an injury may be had only if [*36] such consequences are reasonably probable or reasonably certain.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986). “Reasonably certain” is “a consequence ‘which follows the original act complained of in the usual, ordinary, and experienced course of events.'” Rabb v. Orkin Exterminating Co., 677 F.Supp. 424, 426 (D.S.C. 1987) (quoting Ford v. AAA Highway Express, Inc., 204 S.C. 433, 29 S.E.2d 760, 762 (S.C. 1944)). In other words, damages can be recovered only if there is “[a] greater than 50% chance that a future consequence will occur.” Lohrmann, 782 F.2d at 1160.

Dr. White, the only medical expert offered in this case, testified at trial that Ray’s condition is permanent and will require ongoing future treatment and medication. The court concludes that Ray has established a reasonable certainty that her condition is permanent and will require ongoing future treatment, including seeing a psychiatrist and a neurologist quarterly, and medication, potentially including anti-inflammatories (anti-inflammatory patch), amphetamines or an amphetamine substitute (Nuvigil), a benzodiazepine (Klonopin), a sedative-hypnotic (Belsomra), an anxiolytic (Buspar), and a selective serotonin reuptake inhibitor (Cymbalta). Dr. White testified that Nuvigil costs approximately $800.00 per month, Cymbalta costs approximately $200.00-300.00 per month, and Belsomra costs approximately $400.00-500.00 per month.

Ray’s birthday [*37] is May 8, 1985. At the time of the incident she was 29 years old. Thus, at the time of the incident, Ray had a life expectancy of 52.53 years, or 630.36 months, under S.C. Code Ann. § 19-1-150.

Adjusted for present value,3 the future medications, frequency, current cost, duration, and present value are as follows:

Medication Frequency Current Cost Duration Present Value
Nuvigil annual $9,600/yr 2018-life $330,345
Cymbalta annual $2,400-$3,600/yr 2018-life $82,585-$123,870
Belsomra annual $4,800-$6,000/yr 2018-life $165,170-$206,465

3 Lesniak contends that Ray needs an expert economist on the issue of present value of future damages and needed to present evidence at trial on the calculation of present value discounts. However, he cites no caselaw–and the court is aware of none–that there is a requirement of obtaining expert testimony on the issue of present value of future damages. The court can find no clear requirement in relevant federal case law that plaintiff must present expert evidence of the present value of her claim for future damages. The court draws guidance from the Western District of North Carolina’s recent opinion in Talley v. City of Charlotte, 2016 U.S. Dist. LEXIS 17604, 2016 WL 1212369, at *2 (W.D.N.C. Feb. 12, 2016), appeal dismissed (Aug. 31, 2016), which observed:

[t]he courts are split on whether it is necessary to introduce expert testimony to explain the concept of discounting an award to present value or to supply suggested discount and inflation rates and/or mathematical calculations. While some courts have permitted, for example, a local banker to testify as to the fair return on a safe investment, or a mathematician an actuary, or an accountant to testify concerning the procedure by which the reduction to present value should be calculated, other courts have held that expert testimony is permitted but not required, and that the jury should generally be left to its own discretion as to what discount factors should be used.

Here, the court calculated the present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep’t, 527 F. Supp. 1021, 1036 (D.S.C. 1981), rev’d on other grounds, 721 F.2d 934 (4th Cir. 1983) (“I find that he is entitled to be properly compensated for his pain, suffering, damages and permanent partial disability, before and after trial, and taking into consideration future pain and suffering and discomfort, and reducing that amount to its present cash value by use of a discount rate of five (5%) percent, which this court feels is reasonable and fair.”).

Future [*38] medication costs are increased at an expected inflation rate for prescription drugs of 3.61 percent, compounded annually.4 The present value of the total future medications that Dr. White opined were reasonable and necessary for Ray’s treatment ranges in cost from $578,100 (using the low figures of the cost of medicine needed) to $660,689 (using the high figures of the cost of medicine needed).5 The court awards the average of the cost of medicine needed, and so awards $619,394.50 for future medical expenses associated with her injuries resulting from the May 21, 2014, incident.

4 This rate is based on inflation rates as reported by the Bureau of Labor Statistics for the period 1992-2016.

5 All future medication costs are discounted to present value at a rate of 5 percent, compounded annually. This is a rate that an ordinary person with average financial knowledge, with access to commonly available investment outlets, and facing the full range of financial risks might be expected to earn over a long period of time.

d. Pain and Suffering

Ray’s pain and suffering because of this incident is well documented through her deposition and trial testimony as well as her medical records. She endured months of frequent headaches, nausea, muscle pain, and back pain as a result of her physical injuries. Raven Ray seeks $75,000.00 for past and future pain and suffering. Based on the entire record, the court concludes that $50,000.00 is the appropriate amount of compensation for both past and future pain and suffering. See Schumacher, 850 F.Supp. at 453.

e. Past and Future Emotional Distress

Injured plaintiffs are entitled to recover for mental anguish and permanent emotional [*39] scarring. Steeves v. United States, 294 F. Supp. 446, 458 (D.S.C. 1968). Ray’s severe psychological and emotional injuries because of this incident are well-documented by Houfek. Testimony from Ray and Houfek, in addition to Dr. Kurtzman’s and Dr. Waid’s records, show the extent and severity of Ray’s psychological and emotional injuries proximately caused by Lesniak’s negligence. After a careful review of the entire record, the court finds $75,000.00 for her psychological and emotional injuries reasonable. Therefore, it awards judgment against Lesniak in the amount of $75,000.00 for Ray’s past and future psychological and emotional injuries.

f. Loss of Enjoyment of Life and Permanent Impairment

Next, Ray seeks $100,000.00 as compensation for losing her ability to enjoy the athletic and recreational activities in which she used to participate, as well as her loss of enjoyment of other normal activities of life. Based on the entire record, the court concludes that $100,000.00 is the appropriate amount of compensation for this loss.

Additionally, Ray is permanently impaired due to this traumatic brain injury and must be compensated for her permanent impairment. Ray’s birthday is May 8, 1985. At the time of the incident, she was 29 years old. Thus, [*40] at the time of the incident, Ray had a life expectancy of 52.53 years, or 19,173.45 days, under S.C. Code Ann. § 19-1-150. Finding a valuation of a traumatic brain injury at $20.00 per day to be reasonable, the court awards Ray $383,469.00 for her impairment. In sum, the Court awards Raven Ray $483,469.00 for her loss of enjoyment of life and permanent impairment.

g. Lost Wages/Inconvenience and Disruption of Normal Daily Life

At the time of the incident, Ray was working in the food and beverage industry and attending The Citadel to obtain a graduate degree. Because of her injuries resulting from Lesniak’s negligence, Ray was forced to miss work and experienced difficulty in completing her graduate coursework at The Citadel. The court finds $30,000.00 to be appropriate compensation for Ray’s lost wages and difficulties experienced in completing her graduate coursework at The Citadel. See Schumacher, 850 F.Supp. at 453.

D. Prejudgment Interest

Ray asks the court to add prejudgment interest to her damages. In maritime injury cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992) (citation omitted). The court may decline to award prejudgment interest when it finds that “peculiar [*41] circumstances” would make such relief inequitable. Id. This is an action instituted under the court’s admiralty jurisdiction and no peculiar or exceptional circumstances existed that would prevent Ray from recovering pre-judgment interest. This court, in its discretion, finds no such peculiar circumstances here and finds that Ray is entitled to pre-judgment interest in the amount of $22,952.44 from the date of the accident until the date of this order.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that judgment be entered for Ray against Lesniak in the sum of nine-hundred and fifty-eight, and seven-hundred and fifty-eight dollars and fifteen cents $958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

6 The tabulation of damages is $1,278,344.20 before the application of a 25% reduction in proportion to Ray’s comparative negligence. After applying the 25% reduction, the total damages award is $958, 758.15.

AND IT IS SO ORDERED.

/s/ David C. Norton

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

February 22, 2018

Charleston, South Carolina

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One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

What do you think? Leave a comment.

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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE


Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Robert David Hiett v. Lake Barcroft Community Association, Inc., et al.

Record No. 911395

Supreme Court of Virginia

244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

June 5, 1992

COUNSEL: Bernard S. Cohen (Sandra M. Rohrstaff; Cohen, Dunn & Sinclair, on brief), for appellant.

Joseph D. Roberts (Slenker, Brandt, Jennings & Johnson, on brief), for appellees.

JUDGES: Justice Keenan delivered the opinion of the Court.

OPINION BY: KEENAN

OPINION

[*192]   [**894]  The primary issue in this appeal is whether a pre-injury release from liability for negligence is void as being against public policy.

Robert D. Hiett sustained an injury which rendered him a quadriplegic while participating in the “Teflon Man Triathlon” (the triathlon) sponsored by the Lake Barcroft  [**895]  Community Association, Inc. (LABARCA).  The injury occurred at the start of the swimming event when Hiett waded into Lake Barcroft to a point where the water reachedhis [***2]  thighs, dove into the water, and struck his head on either the lake bottom or an object beneath the water surface.

Thomas M. Penland, Jr., a resident of Lake Barcroft, organized and directed the triathlon. He drafted the entry form which all participants were required to sign.  The first sentence of the form provided:

In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or  [*193]  m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.

Evelyn Novins, a homeowner in the Lake Barcroft subdivision, asked Hiett to participate in the swimming portion of the triathlon. She and Hiett were both teachers at a school for learning-disabled children.  Novins invited Hiett to participate as a member of one of two teams of fellow teachers she was organizing.  During a break between classes, Novins presented Hiett with the entry form and he signed it.

Hiett alleged inhis [***3]  third amended motion for judgment that LABARCA, Penland, and Novins had failed to ensure that the lake was reasonably safe, properly supervise the swimming event, advise the participants of the risk of injury, and train them how to avoid such injuries.  Hiett also alleged that Penland and Novins were agents of LABARCA and that Novins’s failure to direct his attention to the release clause in the entry form constituted constructive fraud and misrepresentation.

In a preliminary ruling, the trial court held that, absent fraud, misrepresentation, duress, illiteracy, or the denial of an opportunity to read the form, the entry form was a valid contract and that the pre-injury release language in the contract released the defendants from liability for negligence.  The trial court also ruled that such a release was prohibited as a matter of public policy only when it was included: (1) in a common carrier’s contract of carriage; (2) in the contract of a public utility under a duty to furnish telephone service; or (3) as a condition of employment set forth in an employment contract.

Pursuant to an agreement between the parties, the trial court conducted an evidentiary hearing in whichit determined [***4]  that there was sufficient evidence to present to a jury on the issue of constructive fraud and misrepresentation. Additionally, the trial court ruled that as a matter of law Novins was not an agent of LABARCA, and it dismissed her from the case.

The remaining parties proceeded to trial solely on the issue whether there was constructive fraud and misrepresentation by the defendants such as would invalidate the waiver-release language in the entry form.  After Hiett had rested his case, the trial court granted the defendants’ motion to strike the evidence.  This appeal followed.

[*194]  Hiett first argues that the trial court erred in ruling that the pre-injury release provision in the entry form did not violate public policy. He contends that since the decision of this Court in Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890), the law in Virginia has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy. Hiett asserts that the later cases of this Court have addressed only therelease of liability [***5]  from property damage or indemnification against liability to third parties. Thus, he contends that the holding in Johnson remains unchanged.  In response, LABARCA and Novins argue that the decisions of this Court since Johnson have established  [**896]  that pre-injury release agreements such as the one before us do not violate public policy. We disagree with LABARCA and Novins.

The case law in this Commonwealth over the past one hundred years has not altered the holding in Johnson.  In Johnson, this Court addressed the validity of a pre-injury release of liability for future negligent acts.  There, the decedent was a member of a firm of quarry workers which had entered into an agreement with a railroad company to remove a granite bluff located on the company’s right of way.  The agreement specified that the railroad would not be liable for any injuries or death sustained by any members of the firm, or its employees, occurring from any cause whatsoever.

The decedent was killed while attempting to warn one of his employees of a fast-approaching train. The evidence showed that the train was moving at a speed of not less than 25 miles per hour, notwithstanding the [***6]  railroad company’s agreement that all trains would pass by the work site at speeds not exceeding six miles per hour.

[1] In holding that the release language was invalid because it violated public policy, this Court stated:

[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.  Public policy forbids it, and contracts against public policy are void.

 [*195]  86 Va. at 978, 11 S.E. at 829. This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier.  Rather, this Court found that such  [HN1] provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited “universally.” 86 Va. at 978, 11 S.E. at 830.

[2] As noted by Hiett, the cases following Johnson have not eroded this principle.  Instead, this Court’s decisions after Johnson have been limited to upholding theright to contract for the release of liability for property damage, as well as indemnification from liability to [***7]  third parties for such damage.

[3] In C. & O. Ry. Co. v. Telephone Co., 216 Va. 858, 224 S.E.2d 317 (1976), this Court upheld a provision in an agreement entered into by the parties to allow the telephone company to place underground cables under a certain railway overpass.  In the agreement, the telephone company agreed to release the C & O Railway Company from any damage to the wire line crossing and appurtenances.  In upholding this property damage stipulation, this Court found that public policy considerations were not implicated.  216 Va. at 865-66, 224 S.E. at 322.

This Court upheld another property damage release provision in Nido v. Ocean Owners’ Council, 237 Va. 664, 378 S.E.2d 837 (1989). There, a condominium unit owner filed suit against the owners’ council of the condominium for property damage to his unit resulting from a defect in the common area of the condominium. This Court held that, under the applicable condominium by-laws, each unit owner had voluntarily waived his right to bring an action againstthe owners’ council for such property damage. 237 Va. at 667, 378 S.E.2d at 838. 1

1 Although the by-law at issue attempted to release the owners’ council for injury to both persons and property, the issue before the Court involved only the property damage portion of the clause.

 [***8]  [4] Other cases decided by this Court since Johnson have upheld provisions for indemnification against future property damage claims.  In none of these cases, however, did the Court address the issue whether an indemnification provision would be valid against a claim for personal injury.

In Richardson – Wayland v. VEPCO, 219 Va. 198, 247 S.E.2d 465 (1978), the disputed claim involved property damage only, although  [**897]  the contract provided that VEPCO would be indemnified against both property damage and personal injury claims.  This  [*196]  Court held that the provision for indemnification against property damage did not violate public policy. In so holding, this Court emphasizedthe fact that the contract was not between VEPCO and a consumer but, rather, that it was a contract made by VEPCO with a private company for certain repairs to its premises.  219 Va. at 202-03, 247 S.E.2d at 468.

This Court also addressed an indemnification clause covering liability for both personal injury and property damage in Appalachian Power Co. v. Sanders, 232 Va. 189, 349 S.E.2d 101 (1986). However, this Court was not required [***9]  to rule on the validity of the clause with respect to a claim for personal injury, based on its holding that the party asserting indemnification was not guilty of actionable negligence.  232 Va. at 196, 349 S.E. at 106.

Finally, in Kitchin v. Gary Steel Corp., 196 Va. 259, 83 S.E.2d 348 (1954), this Court found that an indemnification agreement between a prime contractor and its subcontractor was not predicated on negligence.  For this reason, this Court held that there was no merit in the subcontractor’s claim that the agreement violated public policy as set forth in Johnson.  196 Va. at 265, 83 S.E.2d at 351.

[5] We agree with Hiett that the above cases have notmodified or altered the holding in Johnson.  Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void. Johnson, 86 Va. at 978, 11 S.E. at 829.

[6] Since we have held that the pre-injury release agreement signed by Hiett is void, the issue whether Novins acted as LABARCA’s agent in procuring Hiett’s signature will not be before the trial court in [***10]  the retrial of this case.  Nevertheless, Hiett argues that, irrespective of any agency relationship, Novins had a common law duty to warn Hiett of the dangerous condition of the uneven lake bottom. We disagree.

[7] The record before us shows that Lake Barcroft is owned by Barcroft Beach, Incorporated, and it is operated and controlled by Barcroft Lake Management Association, Incorporated.  Further, it is undisputed that the individual landowners in the Lake Barcroft subdivision have no ownership interest in the Lake. Since Novins had no ownership interest in or control over the operation of Lake Barcroft, she had no duty to warn Hiett of any dangerous condition therein.  See Busch v. Gaglio, 207 Va. 343, 348, 150 S.E.2d 110, 114 (1966).Therefore, Hiett’s assertion that Novins had a duty to warn him of the condition of the lake bottom, fails as a matter of  [*197]  law, and we conclude that the trial court did not err in dismissing Novins from the case.

Accordingly, we will affirm in part and reverse in part the judgment of the trial court, and we will remand this case for further proceedings consistent with the principles expressed in this opinion. 2

2 Based on our decision here, we do not reach the questions raised by the remaining assignments of error.

[***11]  Affirmed in part, reversed in part, and remanded.

 


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

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

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

State: Pennsylvania, Superior Court of Pennsylvania

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

Defendant: Philadelphia Triathlon, LLC

Plaintiff Claims: inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees, outrageous acts, gross negligence, recklessness, and punitive damages.

Defendant Defenses: release

Holding: for the defendant

Year: 2016

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

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

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

On June 26, 2010, at approximately 8:30 a.m., Mr. Valentino entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.

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

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

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

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

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

…however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.

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

Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant’s wrongful death claims.5 Thereafter, both Appellant and Appellee requested reargument en banc. By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

1. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [] where, when the material facts set forth in the [a]mended [c]omplaint, as well as all reasonable inferences deducible therefrom, are accepted as true, it cannot be said with certainty that [Appellee’s] actions were not sufficiently reckless, outrageous and/or egregious to warrant an award of punitive damages?

2. Whether the [trial c]ourt erred [*8]  in sustaining the [p]reliminary [o]bjections [] and striking para-graph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting [Appellee’s] second [m]otion for [s]ummary [j]udgment where the issue of waiver and release was previously decided in the [o]rder of January 29, 2013 that denied [Appellee’s] first [m]otion for [s]ummary [j]udgment, and the [c]ourt was precluded by the coordinate jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where, when the record is viewed in the light most favorable to [Appellant], questions of fact remain as to whether the purported release in question was effectively executed by the decedent and, if it was, whether it was enforceable?

5. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where the report issued by Mark Mico fully and adequately addressed the questions of duty, breach of duty and causation and, in addition, he was fully qualified to render opinions in these regards?

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

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

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

In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.”

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

…inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees

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

These allegations, however, averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous behavior or a conscious disregard for risks confronted by Triathlon participants. Hence, the trial court correctly dismissed

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

Appellant next maintains that a plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, the liability waiver executed in this case is incapable of extinguishing such claims. Appellant also asserts that, pursuant to our prior decision in Pisano, a decedent’s liability waiver is ineffective as to non-signatory third-party wrongful death claimants. Lastly, Appellant claims that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation.

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

Appellant draws our attention to differences between the version of the liability waiver introduced in support of Appellee’s first motion for summary judgment and the version submitted in support of its second motion. Appellant notes that the second version was two and one-half pages in length while the first version was only two pages. Appellant also notes that the second version bore the date “2011” while the event occurred in 2010. Lastly, the second version included the words “Yes, I agree to the above waivers” above the signature line while the first version did not.

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

The record shows that Appellee retained the services of ACTIVE Network (ACTIVE) to implement the online registration process for the Triathlon. ACTIVE implemented the required specifications for online registration, including guidelines for specific waiver and assumption of the risk language, supplied by Appellee and USA Triathlon (USAT), the national governing body of the sport of triathlon. USAT sanctioned the Triathlon because Appellee followed USAT registration guidelines.

According to Mr. McCue’s affidavit, “ACTIVE’s computer system condenses older registration and waiver documents for storage purposes, making any printed version of the older retained registration and waiver documents appear smaller than when they were viewed online by the reader/registrant.”

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

Appellee also demonstrated that no one could participate in the Triathlon without registering online, a process that could not be completed without the execution of a liability waiver.

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

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

Here, Mr. Valentino, in registering online for the Triathlon, executed a detailed liability waiver under which he expressly assumed the risk of participating in the Triathlon and agreed to indemnify Appellee for liability stemming from his involvement in the event. The valid liability waiver executed by Mr. Valentino was available to support Appellee’s claim that Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and that, therefore, Appellee’s actions were not tortious. Since Appellant’s wrongful death claims required her to establish that Appellee’s conduct was tortious, the trial court did not err in granting summary judgment in favor of Appellee.

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

A liability waiver, however, operates quite differently from an arbitration clause. By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à-vis the decedent from tortious to non-tortious.

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

Our conclusion that Appellee may rely on a liability waiver signed only by the decedent to defeat Appellant’s wrongful death claims is undiminished by Pennsylvania case law holding that a settlement and release agreement does not bind non-signatories.

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

So Now What?

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

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

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

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

What do you think? Leave a comment.

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

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

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

No. 3049 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

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

November 15, 2016, Decided

November 15, 2016, Filed

PRIOR HISTORY:  [*1] Appeal from the Order Entered September 30, 2013. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): April Term, 2012 No. 1417.

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

JUDGES: BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON and OTT, JJ. OPINION BY OLSON, J. Gantman, P.J., Bender, P.J.E., Bowes, Shogan and Ott, JJ., join this Opinion. Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

OPINION BY: OLSON

OPINION

OPINION BY OLSON, J.:

Appellant, Michele Valentino (in her own right and as administratrix of the estate of Derek Valentino), appeals from an order entered on September 30, 2013 in the Civil Division of the Court of Common Pleas of Philadelphia County granting summary judgment on behalf of Philadelphia Triathlon, LLC (Appellee). After careful consideration, we affirm.

In 2010, Appellee organized an event known as the Philadelphia Insurance Triathlon Sprint (the Triathlon). Three events comprised the Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a three and one-tenth mile run. Trial Court Opinion, 8/14/14, at 2. The swimming portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania. [*2]

To compete in the Triathlon, each participant was required to register for the event. As part of the registration process, participants paid a fee and electronically executed a liability waiver form.1 Each participant also completed and submitted a registration form to obtain a number and a bib to wear on the day of the race. Mr. Valentino electronically registered as a participant in the Triathlon on January 24, 2010.

1 Among other things, the lengthy form stated that Mr. Valentino “underst[ood] and acknowledge[d] the physical and mental rigors associated with triathlon,” “realize[d] that running, bicycling, swimming and other portions of such [e]vents are inherently dangerous and represent[ed] an extreme test of a person’s physical and mental limits,” and, “underst[ood] that participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death [as well as] dangers arising from adverse weather conditions, imperfect course conditions, water, road and surface hazards, equipment failure, inadequate safety measures, participants of varying skill levels, situations beyond the immediate control of [Appellee], and other presently unknown risks and dangers[.]” Appellee’s Motion [*3]  for Summary Judgment Ex. G, 8/5/13. The form further provided that Mr. Valentino “underst[ood] that these [r]isks may be caused in whole or in part by [his] actions or inactions, the actions or inactions of others participating in the [e]vent, or the acts, inaction or negligence of [Appellee]” and that he “expressly assume[d] all such [r]isks and responsibility for any damages, liabilities, losses or expenses” that resulted from his participation in the event. Id. The liability waiver form also included a provision stating as follows: “[Mr. Valentino] further agree[s] that if, despite this [a]greement, he, or anyone on [his] behalf, makes a claim of [l]iability against [Appellee], [he] will indemnify, defend and hold harmless [Appellee] from any such [l]iability which [it] may [] incur[] as the result of such claim.” Id.

In block capital lettering above the signature line, the liability waiver provided that Mr. Valentino’s acceptance of the agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights (including the right to sue), and that he signed the agreement freely and voluntarily. Id. Lastly, the form states that acceptance of the agreement constituted “a complete and unconditional release of all liability [*4]  to the greatest extent allowed by law.” Id.

On June 26, 2010, at approximately 8:30 a.m., Mr. Valentino entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.

Appellant (Mr. Valentino’s widow) filed her original complaint on April 12, 2012, asserting wrongful death and survival claims against various defendants, including Appellee. Thereafter, she amended her complaint on June 22, 2012. All of the defendants filed preliminary objections on June 22, 2012. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in Appellant’s amended complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages. The court concluded that these allegations were legally insufficient since the alleged facts showed only ordinary negligence. In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the amended complaint on grounds that those averments lacked sufficient specificity. The defendants answered the amended complaint [*5]  and raised new matter on August 9, 2012.

Shortly after discovery commenced, the defendants moved for summary judgment in December 2012. The trial court denied that motion on January 29, 2013. Eventually, Appellant stipulated to the dismissal of all defendants except Appellee. At the completion of discovery, Appellee again moved for summary judgment on August 5, 2013. The trial court granted Appellee’s motion on September 30, 2013.2 Appellant sought reconsideration but the trial court denied her request. Appellant then filed a timely notice of appeal on October 23, 2013. Pursuant to an order of court, Appellant filed a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Subsequently, the trial court explained its reasons for sustaining Appellee’s preliminary objections in an opinion issued on March 18, 2014. In a separate opinion issued on August 14, 2014, the trial court set forth its rationale for granting Appellee’s motion for summary judgment.3

2 Because the trial court previously sustained preliminary objections to Appellant’s claims of outrageous acts, gross negligence, recklessness, and punitive damages, we read the trial court’s summary judgment order as dismissing [*6]  claims of ordinary negligence that comprised Appellant’s survival and wrongful death actions. In reaching this decision, the court relied upon the liability waiver executed by Mr. Valentino.

3 This Court filed its decision in Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890, 189 L. Ed. 2d 838 (2014) on August 12, 2013, holding that  [HN1] a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent. Owing to our decision in Pisano, the trial court in its Rule 1925(a) opinion urged this Court to vacate the order granting summary judgment as to Appellant’s wrongful death claims.

On December 30, 2015, a divided three-judge panel of this Court affirmed, in part, and reversed, in part, the rulings issued by the trial court. Specifically, the panel unanimously affirmed the trial court’s order sustaining Appellee’s preliminary objections. In addition, the panel unanimously agreed that: (1) the completion of discovery and the further development of the factual record defeated application of the coordinate jurisdiction rule and eliminated factual issues surrounding Mr. Valentino’s execution of the liability waiver; (2) Appellant’s failure to state viable claims involving recklessness, outrageousness, and intentional [*7]  misconduct on the part of Appellee mooted Appellant’s argument that a contractual waiver of such claims would be ineffective; and, (3) there was no basis to consider the sufficiency of the testimony of Appellant’s expert since the trial court did not address that issue. Citing Pisano, however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.4 Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant’s wrongful death claims.5 Thereafter, both Appellant and Appellee requested reargument en banc. By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

1. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [] where, when the material facts set forth in the [a]mended [c]omplaint, as well as all reasonable inferences deducible therefrom, are accepted as true, it cannot be said with certainty that [Appellee’s] actions were not sufficiently reckless, outrageous and/or egregious to warrant an award of punitive damages?

2. Whether the [trial c]ourt erred [*8]  in sustaining the [p]reliminary [o]bjections [] and striking paragraph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting [Appellee’s] second [m]otion for [s]ummary [j]udgment where the issue of waiver and release was previously decided in the [o]rder of January 29, 2013 that denied [Appellee’s] first [m]otion for [s]ummary [j]udgment, and the [c]ourt was precluded by the coordinate jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where, when the record is viewed in the light most favorable to [Appellant], questions of fact remain as to whether the purported release in question was effectively executed by the decedent and, if it was, whether it was enforceable?

5. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where the report issued by Mark Mico fully and adequately addressed the questions of duty, breach of duty and causation and, in addition, he was fully qualified to render opinions in these regards?

Appellant’s Substituted Brief at 7-8.

4 Distinguishing the arbitration clause at issue in Pisano, the dissent found that Appellant’s claims were subject [*9]  to the liability waiver under which Mr. Valentino expressly assumed the risk of participating in the Triathlon since Appellant’s wrongful death action required her to demonstrate that Mr. Valentino’s death resulted from tortious conduct on the part of Appellee.

5 Our ruling did not purport to alter the trial court’s reliance on the liability waiver as grounds for entering summary judgment as to Appellant’s survival claims.

In the first issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking all references to outrageous acts, gross negligence, and reckless conduct. Appellant also asserts that the trial court erred in dismissing her claims for punitive damages. The basis for these contentions is that, when the allegations set forth in the amended complaint are taken as true, the pleading asserts a claim that, “[Appellee] intentionally created a situation where swimmers [went] into a river with inadequate supervision and no reasonable means of rescue if they got into trouble.” Appellant’s Substituted Brief at 22 (emphasis in original).

The standard of review we apply when considering a trial court’s order sustaining preliminary objections is [*10]  well settled:

 [HN2] [O]ur standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

 [HN3] Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom.  [HN4] Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

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

[HN5] In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), quoting, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (Pa. 1984).  [HN6] “As the name suggests, [*11]  punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at 770.  [HN7] To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. Id. at 772.  [HN8] “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.” Hutchinson v. Penske Truck Leasing Co., 2005 PA Super 179, 876 A.2d 978, 983-984 (Pa. Super. 2005), aff’d, 592 Pa. 38, 922 A.2d 890 (Pa. 2007).

Appellant’s amended complaint alleges that Mr. Valentino died while swimming in the Schuylkill River during the Triathlon. The amended complaint alleges further that Appellee was inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees. These allegations, however, averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous [*12]  behavior or a conscious disregard for risks confronted by Triathlon participants. Hence, the trial court correctly dismissed Appellant’s allegations of outrageous and reckless conduct and properly struck her punitive damage claims.

In the second issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from her amended complaint. Appellant maintains that these averments are sufficiently specific to enable Appellee to respond to Appellant’s allegations and to formulate a defense in this case.

Contrary to Appellant’s argument, we agree with the trial court’s assessment that the challenged portions of the amended complaint are too vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019. [HN9]  Under Rule 1019, “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019.  [HN10] “Pennsylvania is a fact-pleading state; a complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also formulate the issues by summarizing those facts essential to support the claim.” Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d 937, 942 (Pa. Super. 2011).

The challenged provisions of [*13]  Appellant’s amended complaint referred only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and “failures to employ adequate policies, procedures, and protocols in conducting the event” (¶ 22(m)) as the basis for her claims. Upon review, we concur in the trial court’s determination that this boilerplate language was too indefinite to supply Appellee with adequate information to formulate a defense.

Appellant cites the decision of the Commonwealth Court in Banfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) as supportive of her contention that the amended complaint set forth material facts with sufficient specificity. Banfield, however, is distinguishable. In that case, a group of electors filed suit alleging that the Secretary of the Commonwealth, in certifying the use of certain electronic systems in elections, failed to adopt uniform testing procedures that addressed the security, reliability, and accuracy of voting systems. The Secretary requested an order directing the plaintiffs to re-plead their allegations with greater specificity. In rejecting this request, the Commonwealth Court explained that in challenging the adequacy of the testing [*14]  features inherent in the newly adopted electronic voting systems, the plaintiffs provided sufficient facts to enable the Secretary to prepare a defense. Id. at 50.

Here, in contrast, Appellant referred vaguely, and without elaboration, to unspecified dangerous conditions, indefinite warnings, and generic failures to reasonably plan and employ adequate policies in carrying out the Triathlon. Moreover, even if Appellee possessed some knowledge of the facts around which Appellant’s allegations centered, this alone would not relieve Appellant of her duty to allege material facts upon which she based her claims. See Gross v. United Engineers & Constructors, Inc., 224 Pa. Super. 233, 302 A.2d 370, 372 (Pa. Super. 1973). Thus, Appellant’s reliance on Banfield is unavailing and we conclude that the trial court committed no error in striking paragraphs 22(a), (c), (e), and (m) from the amended complaint.

The final three claims challenge the entry of summary judgment in favor of Appellee. Our standard of review over such claims is well settled.

 [HN11] Th[e] scope of review of an order granting summary judgment is plenary. Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion.  [HN12] Summary judgment is [*15]  appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221-1222 (Pa. 2002).

Appellant advances several arguments in support of her contention that the trial court erred in granting summary judgment. First, Appellant asserts that the coordinate jurisdiction rule precluded the trial court from addressing Appellee’s motion since a prior summary judgment motion was denied. Second, Appellant contends that genuine issues of material fact regarding whether Mr. Valentino actually executed a liability waiver form barred the entry of summary judgment in Appellee’s favor. Appellant next maintains that a plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, the liability waiver executed in this case is incapable of extinguishing [*16]  such claims. Appellant also asserts that, pursuant to our prior decision in Pisano, a decedent’s liability waiver is ineffective as to non-signatory third-party wrongful death claimants. Lastly, Appellant claims that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. We address these contentions in turn.

We begin with Appellant’s claim alleging that the coordinate jurisdiction rule precluded consideration of Appellee’s motion for summary judgment since the trial court denied a prior summary judgment motion.  [HN13] The coordinate jurisdiction rule holds that, “upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25, 29 (Pa. 2003). An exception to this rule applies, however, “when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.” Id. We agree with the trial court that the completion of discovery and the development of a more complete record defeated application of [*17]  the coordinate jurisdiction rule in this case. Hence, this contention merits no relief.

Appellant next advances a claim asserting that genuine issues of fact surrounding Mr. Valentino’s execution of the liability waiver preclude summary judgment in favor of Appellee. In developing this contention, Appellant draws our attention to differences between the version of the liability waiver introduced in support of Appellee’s first motion for summary judgment and the version submitted in support of its second motion. Appellant’s Substituted Brief at 37-41. Appellant notes that the second version was two and one-half pages in length while the first version was only two pages. Appellant also notes that the second version bore the date “2011” while the event occurred in 2010. Lastly, the second version included the words “Yes, I agree to the above waivers” above the signature line while the first version did not.

There is ample support for the trial court’s finding that Mr. Valentino executed the liability waiver when he electronically registered for the Triathlon. See Trial Court Opinion, 8/14/14, at 4 (“In the second motion for summary judgment, it is undisputed that a waiver was among the [*18]  decedent’s possessions, prior to being discovered in the Schuykill River.”). The record shows that Appellee retained the services of ACTIVE Network (ACTIVE) to implement the online registration process for the Triathlon. ACTIVE implemented the required specifications for online registration, including guidelines for specific waiver and assumption of the risk language, supplied by Appellee and USA Triathlon (USAT), the national governing body of the sport of triathlon. USAT sanctioned the Triathlon because Appellee followed USAT registration guidelines.

Appellee also demonstrated that no one could participate in the Triathlon without registering online, a process that could not be completed without the execution of a liability waiver. It is not disputed that Mr. Valentino registered online by completing the required process. He paid his registration fee with a credit card issued in his name and for which he retained exclusive possession.

Appellee also offered the affidavit of Eric McCue, the general manager of ACTIVE, to explain why the appearance of the liability waiver varied between the submission of the first and second motions for summary judgment. According to Mr. McCue’s affidavit, [*19]  “ACTIVE’s computer system condenses older registration and waiver documents for storage purposes, making any printed version of the older retained registration and waiver documents appear smaller than when they were viewed online by the reader/registrant.” Appellee’s Motion for Summary Judgment Ex. L at ¶ 9, 8/5/13. Mr. McCue also stated that “the reader/registrant would view the online registration for the subject event exactly as it appears on Exhibit B [of Appellee’s August 5, 2013 motion for summary judgment] on his or her computer screen.” Id. at ¶ 10. Appellant offered no evidence to dispute Mr. McCue’s affidavit testimony.

Lastly, Appellee relied upon the deposition testimony of witnesses to demonstrate that Mr. Valentino executed the liability waiver during the electronic registration process. At her deposition, Appellant admitted she had no reason to believe that Mr. Valentino did not read and understand the liability waiver or that he did not sign it during the registration process. In addition, Appellee pointed to the deposition testimony of Andrea Pontani, Mr. Valentino’s friend. Ms. Pontani testified that Appellant and Mr. Valentino were aware of the liability waiver because [*20]  they spoke with her about it before the competition, stating that Mr. Valentino signed the form and presented it in order to obtain his competitor’s bib during the registration process on the day of the event. Based upon the forgoing, we agree with the trial court that Appellant presented no evidence raising a genuine issue of fact as to whether Mr. Valentino executed the liability waiver at issue in this case.

We turn next to Appellant’s position that, even if Mr. Valentino executed the liability waiver, the agreement is unenforceable with regard to claims asserting reckless or intentional conduct. Here, however, we have previously affirmed the trial court’s determination that Appellant did not state viable claims involving reckless or intentional conduct. See infra. As such, Appellant’s contention cannot serve as a basis for disturbing the trial court’s summary judgment order, which dismissed allegations of ordinary negligence comprising Appellant’s wrongful death and survival actions.6

6 Appellant does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions [*21]  in the context of this case.

Appellant forwards a claim that our decision in Pisano bars Appellee’s reliance on a liability waiver to defend wrongful death claims asserted by a non-signatory statutory claimant. See Appellant’s Substituted Brief at 45-47; see also Trial Court Opinion, 8/14/14, at 5. In Pisano, a nursing home resident signed a contract agreeing to submit all claims against the home to binding arbitration. When the resident died, the administrator of the resident’s estate asserted wrongful death claims against the home and the home invoked the arbitration clause. The trial court denied the home’s petition to compel arbitration. On appeal, this Court affirmed, concluding that the arbitration clause was not binding against wrongful death claimants who did not sign the agreement because they possessed a separate and distinct right of action. Pursuant to this holding, Appellant maintains that since she did not sign the liability waiver executed by her late husband, the contractual waiver cannot be asserted as a bar to her wrongful death claims. We disagree.

The statute authorizing wrongful death claims in Pennsylvania provides as follows:

§ 8301. Death action

(a)General rule.– An [*22]  action may be brought [for the benefit of the spouse, children or parents of the deceased], under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S.A. § 8301 (emphasis added) (sometimes referred to as “Wrongful Death Act”). Eight decades ago, our Supreme Court interpreted a prior, but similar, version of the statute. The Court made clear that the statute contemplated that a claimant’s recovery required a tortious act on the part of the defendant:

[W]e have held that  [HN14] a right to recover must exist in the party injured when he died in order to entitle[] those named in the act to sue. We have therefore held, in order that the death action impose no new and unjust burden on the defendant, that where the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death [*23]  are likewise barred. We have announced the principle that the statutory action is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act, and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.

Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (Pa. 1936) (internal citations omitted; emphasis added).

Our decision in Pisano limited a decedent’s authority to diminish or alter a non-signatory third-party claimant’s procedural election to pursue a claim in the forum of his or her choice. That decision, however, did not purport to undermine the fundamental principle that  [HN15] both an estate in a survival action, and a statutory claimant in a wrongful death action, shoulder the same burden of proving that tortious conduct on the part of the defendant caused the decedent’s death. Under Pisano,  [HN16] “wrongful death actions are derivative of decedents’ injuries but are not derivative of decedents’ rights.” Pisano, 77 A.3d at 659-660. Thus, while a third party’s wrongful death claim is not derivative of the decedent’s right of action, [*24]  a wrongful death claim still requires a tortious injury to succeed.

As suggested above,  [HN17] Pennsylvania case law has long held that a wrongful death claimant’s substantive right to recover is derivative of and dependent upon a tortious act that resulted in the decedent’s death. Our reasoning in Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16, 791 A.2d 384 (Pa. Super. 2002), aff’d, 576 Pa. 22, 838 A.2d 662 (Pa. 2003) illustrates this point:

 [HN18] A wrongful death action is derivative of the injury which would have supported the decedent’s own cause of action and is dependent upon the decedent’s cause of action being viable at the time of death. [Moyer v. Rubright, 438 Pa. Super. 154, 651 A.2d 1139, 1143 (Pa. Super. 1994)].  [HN19] “As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained.” Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 633 A.2d 1172, 1176 (Pa. Super. 1993). Thus, although death is the necessary final event in a wrongful death claim, the cause of action is derivative of the underlying tortious acts that caused the fatal injury. Id.

Sunderland, 791 A.2d at 390-391 (emphasis added; parallel citations omitted).

Applying these settled principles in the present case, we conclude that  [HN20] a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent. Nevertheless, a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s [*25]  actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious. Here, Mr. Valentino, in registering online for the Triathlon, executed a detailed liability waiver under which he expressly assumed the risk of participating in the Triathlon and agreed to indemnify Appellee for liability stemming from his involvement in the event. The valid liability waiver executed by Mr. Valentino was available to support Appellee’s claim that Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and that, therefore, Appellee’s actions were not tortious. Since Appellant’s wrongful death claims required her to establish that Appellee’s conduct was tortious, the trial court did not err in granting summary judgment in favor of Appellee.

Appellant construes Pisano as holding that a wrongful death claimant’s rights are wholly separate, in all contexts and for all purposes, from not just the “rights” of a decedent but also the injuries sustained by a decedent. This reading of Pisano conflates the concept of a right of action under Pennsylvania’s Wrongful Death Act, referring [*26]  to the non-derivative right of a statutory claimant to seek compensation, with the principle that a claimant’s substantive right to obtain a recovery always remains, even in the wake of Pisano, “depend[ant] upon the occurrence of a tortious act.” Pisano, 77 A.3d at 654 (emphasis added). The issue in Pisano was whether a wrongful death claimant should be bound by an arbitration clause that he did not sign. This is a uniquely procedural issue that differs greatly from the enforcement of a valid liability waiver such as the one at issue in the present case. An arbitration clause dictates the forum where a litigant may present his claim. The terms of such a clause do not fix substantive legal standards by which we measure a right to recovery. Because the decedent signatory agreed to submit his claim to arbitration, his claim is subject to the compulsory provisions of the agreement.  [HN21] A non-signatory wrongful death claimant, on the other hand, cannot be compelled to present his claim to an arbitrator since he has not consented to arbitration and since he possesses an independent, non-derivative right to air his claim in the forum of his choice.

A liability waiver, however, operates quite differently from an arbitration clause. [*27]  By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à-vis the decedent from tortious to non-tortious. Since Pisano retains the requirement that the decedent’s death result from a tortious act, even non-signatory wrongful death claimants remain subject to the legal consequences of a valid liability waiver.

Appellant also overinflates the importance of the presence of a wrongful death claimant’s signature when evaluating the enforceability of a liability waiver. Under Pisano, a wrongful death claimant possesses an independent, non-derivative right of action that cannot be subject to compulsory arbitration in the absence of consent. Thus, to enforce an arbitration clause in the wrongful death context, the claimant’s signature is necessary [*28]  to demonstrate that she agreed to submit her claim to binding arbitration. The same is not true for a liability waiver, however. As explained above,  [HN22] a valid waiver signed only by the decedent transfers the risk of harm from the defendant to the decedent, effectively rendering the defendant’s conduct non-tortious. Since the wrongful death claimant’s substantive right of recovery presupposes tortious conduct on the part of the defendant, the claimant’s signature on the waiver is unnecessary.

Although we have uncovered no recent Pennsylvania case law that discusses the application of a valid waiver in a subsequent wrongful death action, several decisions from California are instructive on this point. These cases illustrate that,  [HN23] while a valid waiver does not bar a wrongful death claim, it can support a defense asserting that the alleged tortfeasor owed no duty to the decedent:

 [HN24] Although a wrongful death claim is an independent action, wrongful death plaintiffs may be bound by agreements entered into by decedent that limit the scope of the wrongful death action. Thus, for example, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful [*29]  death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk.

Ruiz v. Podolsky, 50 Cal. 4th 838, 114 Cal. Rptr. 3d 263, 237 P.3d 584, 593 (Cal. 4th 2010). Hence,  [HN25]

where a decedent executes a valid waiver:

the express contractual assumption of the risk, combined with the express waiver of defendants’ negligence, constitute[s] a complete defense to the surviving heirs’ wrongful death action. This is different than holding th[at the wrongful death] action is barred.

Scroggs v. Coast Community College Dist., 193 Cal.App.3d 1399, 1402, 239 Cal. Rptr. 916 (Cal. App. 4th Dist. 1987); Eriksson v. Nunnink, 233 Cal. App. 4th 708, 183 Cal. Rptr. 3d 234 (Cal. App. 4th Dist. 2015); Madison v. Superior Court 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 2nd Dist. 1988).

These cases align with Pennsylvania law in a way that the decisional law of other states does not. For example, in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J. Super. 2004), the Appellate Division of the New Jersey Superior Court rejected the rationale in Madison and the other California cases, noting that the California approach was “internally inconsistent” since it allowed claimants to file a lawsuit that ultimately would not succeed. This reasoning constitutes a one-dimensional view of the issue. Take, for example, a case in which the decedent executes a valid liability waiver, as here. Thereafter, the defendant raises a successful assumption of the risk defense against the decedent’s estate in a survival action. Under the holding in Gershon, the defendant cannot raise the defense in a companion wrongful death action. [*30]  Gershon thus trades one “inconsistency” for another since it allows a wrongful death action to proceed in the face of a valid waiver that precludes a related survival action. Since the same underlying conduct by the defendant is the focus of scrutiny in this hypothetical situation, it is entirely consistent to reject a wrongful death claim where a valid waiver precludes recovery in a related survival action.7

7 This Court recently required consolidation of related wrongful death and survival actions since wrongful death beneficiaries cannot be compelled to arbitrate wrongful death claims. Taylor v. Extendicare Health Facilities, Inc., 2015 PA Super 64, 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015). However, our Supreme Court overruled our decision in Taylor, concluding that the Federal Arbitration Act, 9 U.S.C. § 2, preempted application of Pa.R.C.P. 213(e) (requiring consolidation of survival and wrongful death actions at trial) and required arbitration of survival claims where a valid and enforceable arbitration clause exists. Taylor v. Extendicare Health Facilities, Inc., 2016 Pa. LEXIS 2166, 2016 WL 5630669 (Pa. 2016).

Our conclusion that Appellee may rely on a liability waiver signed only by the decedent to defeat Appellant’s wrongful death claims is undiminished by Pennsylvania case law holding that a settlement and release agreement does not bind non-signatories. See, e.g., Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989). In Buttermore [*31] , James Buttermore sustained injuries in an automobile accident. Eventually, he resolved his claims against the tortfeasor in exchange for the sum of $25,000.00 and executed a release and settlement agreement in which he agreed to release any and all persons from liability, whether known or unknown. Later, Buttermore and his wife initiated an action against Aliquippa Hospital and certain physicians claiming that treatment he received aggravated the injuries he sustained in the accident. The defendants moved for summary judgment on the strength of the release. Our Supreme Court held that the release barred Buttermore’s claims against all tortfeasors, including those who were unnamed. The Court further held, however, that Buttermore’s wife had an independent cause of action for loss of consortium, which was not barred by the release since she did not sign the agreement.

A pair of examples illustrates the distinction between the situation in Buttermore and the situation presently before us. In the first example, the driver of car A operates his vehicle on a public highway. He is injured after a rear-end collision caused by the driver of car B. Litigation ensues between the two drivers and, [*32]  eventually, the driver of car A resolves his claims against the driver of car B for the sum of $30,000.00. At that time, the driver of car A executes a release and settlement agreement, releasing all persons from liability — whether known or unknown — for claims stemming from injuries and losses he sustained in the accident. His spouse does not sign the release. As in Buttermore, the release signed by the driver of car A bars all claims he initiates in the future but does not bar loss of consortium claims or wrongful death claims (should he succumb to his injuries) brought by his spouse, who possesses independent causes of action. In this scenario, the execution of the release manifests the driver of car A’s agreement to forgo all future claims but does not establish his assumption of the risk of operating his vehicle. Nothing in the release suggests that the driver of car A intended to shift the risk of loss away from the driver of car B and onto himself. Indeed, the execution of the release after the injury-causing accident leaves no room for the inference that he assumed this risk of negligence on the part of the driver of car B. Since nothing in the release precludes a finding [*33]  that the driver of car B acted tortiously, the release has no preclusive effect on the spouse’s right to seek damages in the context of a subsequent loss of consortium or wrongful death action.

In the second example, the driver of car A decides to participate in a demolition derby. As a condition of entry, he voluntarily executes a liability waiver under which he assumes the risk of participation in the event and waives all potential claims against other participants and event organizers. Again, the spouse of the driver of car A does not sign the liability waiver. During the demolition derby, the driver of car A sustains injuries and eventually dies as a result of a collision with another participant. In this scenario, loss of consortium and wrongful death claims asserted by the spouse of the driver of car A are subject to the liability waiver. This is because the driver of car A expressly manifested his intent to assume the risk of participating in the demolition derby, thereby shifting the risk of loss or injury away from other participants and event organizers. Unlike the release and settlement agreement in the first example that said nothing about assumption of the risk or any other [*34]  substantive basis to oppose tort liability, the liability waiver in this hypothetical supports a complete bar to financial responsibility for injury and losses and bears directly on the formula by which we assess whether a defendant acted tortiously in causing damages. Because even non-signatory wrongful death claimants bear the burden of proving that tortious conduct caused the decedent’s death, their claims are subject to liability waivers under which the deceased assumed the risk of engaging in a particular activity.8 As the circumstances before us more closely reflect this second example, the instant appeal calls for application of the principles alluded to in prior Pennsylvania cases and specifically articulated in the California line of authority. See infra. Thus, we are not persuaded that Pennsylvania case law construing the applicable scope of release and settlement agreements undermines our conclusion that Appellant’s wrongful death claims are subject to the liability waiver signed by Mr. Valentino.

8  [HN26] Although strictly construed, Pennsylvania law recognizes the enforceability of valid liability waivers, particularly in cases where the injured party elects to engage in activities [*35]  that entail an obvious risk of injury or loss. See, e.g., Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738 (Pa. Super. 2016) (en banc) (gym membership), appeal denied, 2016 Pa. LEXIS 1407, 2016 WL 3910827 (Pa. 2016). We would substantially reduce the utility of liability waivers if we were to hold that they are enforceable only against signatories, but not against non-signatory wrongful death claimants. Moreover, it would be extremely impractical to expect defendants to acquire signatures from all such potential plaintiffs. Indeed, it should almost go without saying that event organizers and hosts of activities that entail a risk of injury would likely cease operations if valid liability waivers could not be enforced against non-signatory statutory claimants such as Appellant.

For related reasons, we conclude that the decision in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957) is also unpersuasive. In that case, Brown, a neurotic, entered a sanitarium for treatment which included electrical shock therapy. While in the sanitarium, Brown fell down a flight of stairs. After the fall, sanitarium employees picked Brown up by his extremities, causing paralysis. Upon entry into the sanitarium, Brown and his wife signed a release relieving the sanitarium and its employees from liability for injuries resulting from his mental health [*36]  treatment, including electro-shock therapy or similar treatments. As Brown’s widow and the executrix of his estate, Brown’s wife brought claims under the Wrongful Death Act on behalf of herself and her three minor children, as well as a Survival Act claim. The court’s opinion in Brown suggested that the release was sufficient to alleviate the defendants’ liability under the Survival Act and to defeat Brown’s widow’s claims under the Wrongful Death Act since the decedent and Brown’s wife signed the agreement. Nevertheless, the court opined that Brown’s children could recover on their wrongful death claims since they were non-signatories. We find it significant, however, that immediately before reaching this conclusion, the court concluded that Brown’s treatment following his fall down the stairs was unrelated to his treatment for his mental health issues, which was the subject of his release. In essence, then, the court held that while Brown may have assumed the risk of electro-shock therapy or similar treatments, he did not assume the risk of faulty medical treatment for injuries sustained during his fall. Accordingly, Brown does little to support Appellant’s claim before us.9

9 As our [*37]  analysis suggests,  [HN27] courts must exercise great care and caution to differentiate between an agreement that addresses only the procedural rights of a signatory (i.e., an arbitration agreement) or a signatory’s right to pursue further claims (i.e., a release and settlement agreement) from an agreement that goes further and unambiguously manifests a signatory’s intent to assume the risk of involvement in a particular event or activity (i.e., a liability waiver). This is because the former binds only the parties to the agreement while the latter extends to non-signatory third-parties. We accord broader reach to liability waivers under which the signatory assumes a particular risk because, where valid, such agreements support a complete bar to tort liability and therefore form an important part of the assessment of whether tortious conduct brought about injury, loss, or death. A court’s examination of this issue necessarily will involve the nature and purpose of the agreement, as expressed in the exculpatory language of the instrument, together with the circumstances under which the parties entered the contract. The analysis should not be limited simply to the label applied to the agreement [*38]  and, occasionally, will ask whether the signatory expressly assumed the precise risk that resulted in his injury. In Brown, for example, we doubt whether the release should have been given preclusive effect at all since the precise injury sustained in that case fell outside the scope of the exculpatory waiver.

The learned Dissent rejects the conclusion that assumption of the risk and the liability waiver support the trial court’s entry of summary judgment in favor of Appellee. The Dissent instead argues that, “Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at the time of death.” Dissenting Opinion at 8. This position overlooks settled Supreme Court precedent and over eight decades of Pennsylvania case law holding that wrongful death actions are derivative of “the same tortious act which would have supported the injured party’s own cause of action.” Kaczorowski, 184 A. at 664 (noting that wrongful death action would be barred by affirmative defenses such as contributory negligence or statute of limitations); see also Sunderland, 791 A.2d at 390-391; Moyer, 651 A.2d at 1143; Ingenito, 633 A.2d at 1176. Not only does the Dissent ignore binding Pennsylvania precedent, the premise of the Dissent’s [*39]  conclusion is unavailing.

Citing Pisano, the Dissent asserts that Appellant is not “bound” by the liability waiver executed by Mr. Valentino and, therefore, the agreement does not bar her from bringing a wrongful death action. Respectfully, these contentions miss the point. First, Appellant filed a wrongful death action in the venue of her choosing and no one asserts that the liability waiver precluded her from doing so. Second, since it is undisputed that Mr. Valentino knowingly and voluntarily executed the liability waiver, the issue of whether Appellant was “bound” by the waiver agreement is irrelevant to whether Appellee was entitled to an order granting summary judgment as to the negligence claims asserted in Appellant’s wrongful death action. We explain.

The record undeniably contains a valid waiver agreement. As such, the agreement itself constitutes tangible and, indeed, overwhelming proof that Mr. Valentino intelligently and willingly assumed the risk of participating in the Triathlon. This is so regardless of whether Appellant was “bound” by the agreement. The law is clear that a wrongful death claimant’s recovery must derive from a tortious actious act. Sunderland, 791 A.2d at 390-391. As even the Dissent [*40]  concedes, “[a] wrongful death claimant [must] prove negligence.” Dissenting Opinion at 8, fn.6. The law is also clear that [HN28]  the doctrine of assumption of the risk is a function of the duty analysis required in any negligence action and that summary judgment may be entered where the record discloses an absence of general issues of material fact. Thompson v. Ginkel, 2014 PA Super 125, 95 A.3d 900, 906-907 (Pa. Super. 2014), appeal denied, 630 Pa. 745, 108 A.3d 36 (Pa. 2015). Since assumption of the risk serves as a complete bar to tort recovery, Pa.R.C.P. 1035.2(2) permitted Appellee to seek summary judgment based upon Mr. Valentino’s voluntary and knowing assumption of the hazards attendant to triathlon participation. See Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 527 (Pa. Super. 2000).10

10 In Staub, this Court explained:

 [HN29] For summary judgment purposes, affirmative defenses are generally decided under Pa.R.Civ.P. 1035.2(1), where it is the moving party’s burden to establish the defense as a matter of law. Under [Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (Pa. 1993) and Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (Pa. Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (Pa. 1994)], however, assumption of risk is now considered part of a “no-duty” analysis. As such, the doctrine now falls under the second type of summary judgment motion, described in Pa.R.Civ.P. 1035.2(2). Under Rule 1035.2(2), a party may obtain summary judgment by pointing to the adverse party’s lack of evidence on an essential element of the claim. . . .  [HN30] One of the essential elements of a negligence claim is that [*41]  the defendant owes the plaintiff a duty of care. Under Rule 1035.2(2), the defendant’s method for pointing to a lack of evidence on the duty issue is to show that the plaintiff assumed the risk as a matter of law. This process will entail gathering and presenting evidence on the plaintiff’s behavior, and attempting to convince the court that the plaintiff knew the risk and proceeded to encounter it in a manner showing a willingness to accept the risk. Thus, for all practical purposes, the process for showing “no-duty” assumption of the risk under Rule 1035.2(2) is indistinguishable from showing assumption of the risk as an affirmative defense under Rule 1035.2(1).

Staub, 749 A.2d at 527. For purposes of proving negligence, the only legal duty referred to in this case is the one allegedly owed by Appellee to Mr. Valentino. The Dissent identifies no source and no proof of a separate and independent legal duty owed by Appellee to Appellant.

More broadly, we note that the Dissent places great weight on its contention that Appellant’s wrongful death action is not derivative of Mr. Valentino’s injuries. Notwithstanding, even a brief review of Appellant’s amended complaint and the submissions of the parties reveals that all of the allegations of negligence [*42]  underpinning Appellant’s wrongful death claims involve legal duties, alleged breaches, proximate causation, and harms that focus exclusively upon Mr. Valentino. Thus, in substantive terms, the conclusion that Appellant’s wrongful death claims are derivative of the injuries sustained by Mr. Valentino is inescapable.

In this case, Appellant does not dispute that the liability waiver constituted an express assumption of the risk by Mr. Valentino. This confirms that Appellee owed no legal duty to Mr. Valentino and, therefore, Appellee cannot be found to be negligent. It follows, then, that the waiver agreement not only defeated the negligence claims asserted in the context of Appellant’s survival action, but also the negligence claims asserted in the context of Appellant’s wrongful death action. Appellee’s right to summary judgment simply did not depend upon Appellant’s execution of the agreement.11

11 The Dissent also makes the point that wrongful death claims are intended to compensate for the loss of the decedent. Wrongful death claims, however, were not intended to place new and unjust burdens on defendants and compensation is due only when tortious conduct results in death. In the present [*43]  case, the trial court properly entered summary judgment because Appellant cannot demonstrate that Appellee was negligent, as Appellee owed no duty to Mr. Valentino. Thus, the goal of compensation does not support reversal of the trial court’s order. This holding does not “eviscerate” but wholly aligns with our Wrongful Death Statute, which imposes liability only where the defendant’s tortious conduct causes death. Compare Dissenting Opinion at 5.

We turn now to Appellant’s claim that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. Here, Appellant relies on Mark Mico, an experienced triathlete, race director, and race management consultant. Mr. Mico concluded that Appellee’s negligence caused Mr. Valentino to drown in the Schuylkill River. Among other things, Mr. Mico stated in his report that Appellee failed to provide a sufficient number of lifeguards and allowed too many swimmers into the water during wave launches. He also stated that contestants were not permitted to wear buoyant wetsuits and that Appellee failed to provide to lifeguards [*44]  appropriate instruction and training in open water safety. Mr. Mico opined that swimmers were given black swimming caps that offered poor visibility in open water. Finally, Mr. Mico stated that most lifeguards were familiar only with conditions in swimming pools, not open water.

In this case, the trial court granted summary judgment in favor of Appellee based upon the liability waiver executed by Mr. Valentino. The trial court did not consider the contents of Mr. Mico’s report and did not discuss the issue in its Rule 1925(a) opinion. Nonetheless, since our scope of review is plenary, we may and must examine Mr. Mico’s report to determine if it precludes the entry of summary judgment based on the liability waiver. We conclude that it does not.

Assuming for purposes of argument that Mr. Mico’s expert report establishes a prima facie case of negligence, the liability waiver operated to release Appellee from liability for negligence, and Appellant does not challenge the validity of the release on that basis. Furthermore, Mr. Mico’s conclusory opinion that Appellee’s “conduct was to such a degree of carelessness that it amounts to reckless disregard for the safety of its participants[,]” does not permit [*45]  Appellant to avoid the liability waiver. Report of Michael Mico, 6/30/13, at unnumbered 7. As we previously determined, the trial court properly held that the facts alleged in the amended complaint did not support claims that Appellee acted outrageously, recklessly, or intentionally, and dismissed such claims with prejudice. Expert opinion to the contrary cannot alter that legal assessment. In particular, Mr. Mico’s report did not identify specific actions or omissions that rose to the level of reckless disregard.  [HN31] Reckless disregard requires a different state of mind and a substantially greater knowledge of impending risks than ordinary negligence, not simply a higher degree of carelessness, a distinction the expert failed to appreciate.12 See Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012) ( [HN32] “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”) Consequently, nothing in Mr. Mico’s expert report alters our determination that the liability waiver is dispositive of Appellant’s wrongful death and survival claims.

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

 [HN33] The actor’s [*46]  conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500.

In sum,  [HN34] Pennsylvania law distinguishes a wrongful death claimant’s non-derivative right to bring an action from her derivative right to recover damages based upon a defendant’s tortious conduct. This distinction allows a defendant, like Appellee, to assert an express, contractual assumption of risk based upon a valid liability waiver against a wrongful death claimant, even where the claimant does not sign the liability waiver agreement. Applying these settled principles to the case at hand, the order granting summary judgment in favor of Appellee fully comports with prevailing Pennsylvania law. Thus, we affirm the court’s summary judgment order dismissing Appellant’s wrongful death and survival claims.

Order affirmed.

Gantman, P.J., Bender, P.J.E., Bowes, Shogan [*47]  and Ott, JJ., join this Opinion.

Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

Judgment Entered.

Date: 11/15/2016

Because I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action, I must respectfully dissent from that part of the Majority’s Opinion. I join the Opinion in all other respects.

While the Majority attempts to distinguish Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989), and Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957), I find those cases to be instructive. In Buttermore, James Buttermore was involved in an automobile accident, sustaining injuries. Buttermore, 561 A.2d at 734. He signed a release in settlement of his claim against the tortfeasor for the sum of $25,000, agreeing to release from liability any and all persons, known or unknown. Id. Subsequently, Buttermore and his wife instituted suit against Aliquippa Hospital and the treating physicians alleging that the treatment he received aggravated the injuries he sustained in the accident, worsening his condition. Id. at 734-735. The defendants moved for summary judgment on the basis of Buttermore’s release. Id. at 735.

After first holding that the release applied to all tortfeasors, including the defendants, [*48]  whether specifically named or not, the court in Buttermore turned to the matter of Buttermore’s wife’s loss of consortium claim: “That is not to say, however, that parties may bargain away the rights of others not a party to their agreement. That question rises here because a spouse not a party to the agreement seeks to sue in her own right for loss of consortium.” Id. at 735. The Buttermore court held that the wife had an independent cause of action for loss of consortium regardless of her husband’s release and settlement agreement: “The question is, does the wife, not a signatory to the agreement, have an independent right to sue for the injury done her. We answer that she does.” Id. at 736. See also Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651, 658 (Pa.Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890,     U.S.    , 189 L. Ed. 2d 838 (2014), citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315, 317, 23 Legal Int. 284, 13 Pitts. Leg. J. 561 (1866) (“This suit is brought by the widow, and her right of action cannot be affected by any discharge or release of [husband] in his lifetime.”).

Similarly, in Brown v. Moore, the plaintiff, the widow and executrix of George Brown, brought a cause of action under the Wrongful Death Act for the benefit of herself and her three minor children, as well as a Survival Act claim. Id. at 714. Brown, a neurotic, was admitted to a sanitarium for treatment including electrical shock therapy, [*49]  following which he fell down a flight of stairs. Id. at 715. After the fall, Brown was picked up by his extremities, with his head hanging down, resulting in paralysis. Id. Brown had signed a release agreeing to release the sanitarium and its employees from liability for any injury resulting from his treatment as a neurotic while at the sanitarium, including electro-shock therapy or treatment of a similar nature. Id. at 722. After concluding that Brown’s treatment following his fall down the stairs was unrelated to his treatment as a neurotic by electro-shock therapy or other similar therapeutic means, the Brown court stated,

[S]ince this case may well come before the reviewing Court we point out that even if the release were deemed sufficient to relieve the defendants of liability under the Pennsylvania Survival Act is [sic] could scarcely relieve them of liability under the Pennsylvania Wrongful Death Act for that Act provides benefits not only for the widow of a deceased person but also for his children. Even assuming that the release was effective as to the plaintiff, who executed it as did Brown, nonetheless Brown’s children would be entitled to a recovery.

Id. (emphasis added).1

1 Brown was disapproved of by [*50]  Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:

In Grbac, the court of appeals held that a liability release executed by decedent was binding on the widow’s wrongful death claim. Id. at 217-218. Erroneously following the Pennsylvania Supreme Court’s holding in [Hill v. Pennsylvania Railroad Company, 178 Pa. 223, 35 A. 997, 39 Week. Notes Cas. 221 (Pa. 1896)], the court of appeals misinterpreted Pennsylvania law in holding that a “wrongful death action is purely derivative” in Pennsylvania. Id. at 217. The Grbac Court cites no further cases in support of its holding, and no binding Pennsylvania authority exists with a similar holding. In fact, the limited authority on this subject indicates the opposite conclusion of Grbac.

Pisano, 77 A.3d at 658.

Relying on California law, including Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal.App. 2 Dist. 1988), the Majority concludes that even if appellant can bring the wrongful death action, appellee had no duty to the decedent because of his complete waiver. According to the Majority, the decedent agreed to waive liability and assume all risks inherent to the dangerous activity of sprint triathlon; therefore, appellee owed the decedent no duty to protect him from injury. Therefore, even assuming appellant can sue for wrongful death, she cannot possibly recover where appellee has a complete defense based on the decedent’s assumption of the risk. [*51]

I view the Madison line of cases as creating a distinction without a difference, i.e., a wrongful death claimant can bring suit but will inevitably lose on summary judgment because of the decedent’s waiver of liability, to which the wrongful death claimant was not a party. Such a holding would effectively eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.2 I believe the better approach is outlined by the New Jersey Superior Court in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly describing Madison’s holding as “paradoxical” and “internally inconsistent.” Id. at 725.3

2 The Pisano court explained that a wrongful death action is “derivative” of the original tort in the same way that a loss of consortium claim is derivative, in that both arise from an injury to another person. Pisano, 77 A.3d at 659. However, unlike, e.g., a stockholder’s derivative lawsuit or a subrogation action, loss of consortium and wrongful death claims are separate and distinct causes of action. Id. at 660.

3 “Although we acknowledge that the pronouncements of sister states are not binding authority on our courts, such decisions may be [*52]  considered as persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 2014 PA Super 53, 88 A.3d 228, 233 n.3 (Pa.Super. 2014), affirmed, 136 A.3d 485 (Pa. 2016).

In Gershon, the decedent was a scuba diver and signed up for advanced diving training. Id. at 723. As a condition of his participation, he executed a release agreement. Id. The decedent expressly waived liability, including for wrongful death, and assumed all risk. Id. The lower court held that while the exculpatory release signed by the decedent barred any survivorship claim which could have been asserted by his estate, it did not preclude an independent wrongful death action where the decedent’s heirs had not signed the agreement. Id. at 724. Relying on Madison, supra, the defendant, Regency Diving Center, argued that the release operated as a complete bar to all claims. Id.

On appeal, the Superior Court of New Jersey, Appellate Division, affirmed, holding that the decedent did not have the legal authority to bargain away his heirs’ statutory right to bring a wrongful death action:

The release agreement here was signed by decedent and defendants. It can therefore only bind these parties. On its face the release only manifests decedent’s intention to waive defendants’ duty of care pertaining to his personal safety. In order for such a waiver to also apply to decedent’s [*53]  heirs, the agreement must manifest the unequivocal intention of such heirs to be so bound. The public policy underpinning the Wrongful Death Act requires that we narrowly construe any attempt to contractually limit or, as in this case, outright preclude recovery. Decedent’s unilateral decision to contractually waive his right of recovery does not preclude his heirs, who were not parties to the agreement and received no benefit in exchange for such a waiver, from instituting and prosecuting a wrongful death action.

Id. at 727.

The Gershon court also rejected the Madison line of cases as against the public interest4 intended to be protected by the Wrongful Death Act:

[T]he intended beneficiaries of the Act are deprived of their statutorily authorized remedy merely to provide defendants with an environment from which to operate their business, apparently free from the risk of litigation. Such a prospect would directly undermine the remedial purpose of the Act. Stated differently, even if decedent had the legal authority to bargain away the statutory right of his potential heirs, society’s interest in assuring that a decedent’s dependents may seek economic compensation in a wrongful death action outweighs [*54]  decedent’s freedom to contract.

Id. at 728.5

4 As in New Jersey, in Pennsylvania, exculpatory agreements are not favored by the law and must not contravene public policy. Id. at 726-727; Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190 (Pa. 2012).

5 As in New Jersey, in Pennsylvania, the purpose of the wrongful death statute is to create a right of recovery for economic loss caused by the death of a family member, including children who were dependent upon the decedent for economic support. See Pisano, 77 A.3d at 658-659 (“In contrast [to a survival action], wrongful death is not the deceased’s cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the estate. . . . This action is designed only to deal with the economic effect of the decedent’s death upon the specified family members.”) (citations omitted); see also Amato v. Bell & Gossett, 2015 PA Super 83, 116 A.3d 607, 625 (Pa.Super. 2015), appeal granted in part on other grounds, 130 A.3d 1283 (Pa. 2016) (“The purpose of the Wrongful Death Statute . . . is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. This includes the value of the services the victim would have rendered to his family if he had lived. A wrongful death action does not compensate the decedent; [*55]  it compensates the survivors for damages which they have sustained as a result of the decedent’s death.” (citations omitted)).

The Majority contends that allowing third-party claims including wrongful death where the decedent expressly assumed the risk of injury would expose insurers to increased liability, and that it is impractical to expect defendants to obtain releases from all potential plaintiffs. The court in Gershon addressed those concerns as follows:

We recognize that our decision today may prevent insurance carriers from obtaining complete releases from all possible wrongful death claims, except perhaps by the inclusion in any such agreement of all persons who subsequently are determined to be wrongful death beneficiaries under N.J.S.A. 2A:31-4. The policy favoring settlement and finality of claims, cannot defeat statutory rights created for the protection of survivors of one wrongfully killed.

Id. at 728-729, quoting Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J. 1981) (citations omitted).6

6 Presumably, there are still triathlons, road races, and similar events held in the State of New Jersey, despite the decision in Gershon. A wrongful death claimant would still have to prove negligence. I would also note that these liability waivers are contracts of adhesion, [*56]  and a participant cannot compete without executing the waiver and agreeing to assume all risk.

Following Pisano, I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action. Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at time of death. Furthermore, I reject the Majority’s position that the decedent’s waiver of liability and assumption of the risk can be used as a complete defense to appellant’s claims. The release agreement was only between the decedent and appellee and has no effect on the decedent’s non-signatory heirs including appellant.

For these reasons, I would remand the matter for further proceedings, including for the trial court to consider the issue of Mr. Mico’s expert report. As such, I am compelled to respectfully dissent.

Panella and Lazarus, JJ. join this Concurring and Dissenting Opinion.

 


Montreat College Virtuoso Series 2 Day Outdoor Recreation Management, Insurance & Law Program

2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.get_outside_12066-2

Whatever type of Program you have, you’ll find information and answers to your risk management, insurance and legal questions.

CoverYou’ll also receive a copy of my new book Outdoor Recreation Insurance, Risk Management, and Law

Get these Questions Answered

What has changed in the law Concerning Releases? What states still allow releases and which ones do not. What changes have been made in how releases are written? How can you make sure your release is not as affected by these changes?

Everyone is excited about Certificates of Insurance. Why this excitement is not valid and why most of them don’t work. What must you do to make a certificate of insurance work for your program?

What is an assumption of risk document and why are they important. How can your website be used to prove assumption of the risk.

How should you write a risk management plan that does not end up being used against you in court?

How do you handle an accident so it does not become a claim or a lawsuit.

Put February 24 & 25th on your Calendar Now.

Course Curriculum

1.    Assumption of the Risk

1.1. Still a valid defense in all states

1.2. Defense for claims by minors in all states

1.3. Proof of your guests assuming the risk is the tough part.

1.3.1.   Paperwork proves what they know

1.3.1.1.       Applications

1.3.1.2.       Releases

1.3.1.3.       Brochures

1.3.2.   The best education is from your website

1.3.2.1.       Words

1.3.2.2.       Pictures

1.3.2.3.       Videos

2.    Releases

2.1. Where they work

2.1.1.   Where they work for kids

2.2. Why they work

2.2.1.   Contract

2.2.2.   Exculpatory Clause

2.2.3.   Necessary Language

2.2.4.   What kills Releases

2.2.4.1.       Jurisdiction & Venue

2.2.4.2.       Assumption of the Risk

2.2.4.3.       Negligence Per Se

2.2.4.4.        

3.    Risk Management Plans

3.1. Why yours won’t work

3.2. Why they come back and prove your negligence in court

3.2.1.   Or at least make you look incompetent

3.3. What is needed in a risk management plan

3.3.1.   How do you structure and create a plan

3.3.2.   Top down writing or bottom up.

3.3.2.1.       Goal is what the front line employee knows and can do

4.    Dealing with an Incident

4.1. Why people sue

4.2. What you can do to control this

4.2.1.   Integration of pre-trip education

4.2.2.   Post Incident help

4.2.3.   Post Incident communication

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For more information contact Jim Moss rec.law@recreation.law.com

To register contact John Rogers , Montreat College Team and Leadership Center Director, jrogers@montreat.edu (828) 669- 8012 ext. 2761