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Triathlete's Signed Liability Waiver Dispositive in Wrongful Death Action

The full Pennsylvania Superior Court has halted an effort to hold Philadelphia Triathlon, LLC (the "Triathlon") liable for a competitor's death in the 2010 Philadelphia Insurance Triathlon Sprint. Michele Valentino, widow of 40-year-old Derek Valentino, filed a wrongful death lawsuit against the Triathlon after her husband disappeared during the swimming leg of the 2010 race. Sadly, divers found Mr. Valentino's body the day after the race in the Schuylkill River. Before the recent ruling dismissing the action, the lower courts had jogged in place for four years regarding Mrs. Valentino's ability to sue, given that her husband had signed a liability waiver before entering the race.

The race in question consists of a 15.7-mile bike race, a half-mile swim in the Schuylkill and a 3.1-mile run. In order to compete, each participant is required to register, pay a fee, and electronically execute a liability waiver form. Among other things, the form expressly states that the participant "understands and acknowledges the physical and mental rigors associated with triathlon," "realizes that running, bicycling, swimming and other portions of such events are inherently dangerous," and understands "participation involves risks and dangers which include … the potential for death [as well as] dangers arising from… inadequate safety measures." Additionally, the form states that the participant further agrees that if "he, or anyone on his behalf, makes a claim of liability against [the Triathlon], he will indemnify, defend, and hold harmless [the Triathlon] from any such liability which it may incur as a result of such claim." Mr. Valentino submitted this form and electronically registered as a participant in the Triathlon and entered the race as a first-time competitor on June 26, 2010.

Mrs. Valentino filed her wrongful death and survival claims against various defendants, claiming that the race organizers did not provide adequate supervision or train its employees, failed to inspect or maintain the course, or have appropriate safety measures in place to protect participants. Mrs. Valentino's claims were dismissed in the trial court; however, on appeal, a panel of the Pennsylvania Superior Court affirmed, in part, and reversed, in part, the lower court's rulings. The majority of the panel determined that Mr. Valentino's liability waiver did not bar his wife from bringing a wrongful death action as she was not a signatory to the agreement.

However, after an en banc hearing, the Superior Court ultimately ruled in favor of the Triathlon. (Valentino v. Philadelphia Triathlon, LLC, No. 3049-EDA-2013, 2016 PA Super 248 (Pa. Super. Nov. 15, 2016)). The Superior Court first determined that Mr. Valentino was aware of and executed the liability waiver when he registered for the event and thereafter obtained his competitor's bib. As to the crux of the dispute – whether the liability waiver was dispositive of the wrongful death action – the court held that while the waiver did not bar Mrs. Valentino from bringing the wrongful death action, such a claim was still subject to substantive defenses, such as the decedent's signing of the waiver that might prove that the Triathlon owed no duty or was not negligent. In short, the court ruled that even non-signatory wrongful death claimants remain subject to the legal consequences of a valid liability waiver. Thus, a majority of the Superior Court held that the liability waiver executed by Mr. Valentino supports the Triathlon's argument that Mr. Valentino "knowingly and voluntarily assumed the risk of taking part in the competition" and therefore, the Triathlon's actions were not tortious. Applying settled principles of Pennsylvania law, the wrongful death and survival claims were disqualified and the Superior Court affirmed the lower court's summary judgment order dismissing Mrs. Valentino's action. It remains to be seen whether the case will be appealed to the state supreme court, or if the state's highest court will consider granting an appeal.

© 2019 Proskauer Rose LLP.

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