The Pennsylvania Superior Court granted summary judgment based upon a waiver of liability in the case of Valentino v. Philadelphia Triathlon, LLC No. 3049 EDA 2013 (PA. Super. Nov. 15 2016)(enbanc).  In Valentino, the Estate of Dereck Valentino brought a wrongful death action and a survival action against Defendant resulting from Mr. Valentino's involvement in the Philadelphia Insurance Sprint Triathlon.  This event involved swimming, biking and running.

Prior to the start of the triathlon, Mr. Valentino executed an electronic liability waiver form.  The waiver form included a statement that he understood and acknowledged the physical and mental demands associated with participating in a triathlon.  Mr. Valentino also acknowledged that swimming, biking, and running are inherently dangerous activities and that the risks and dangers include serious bodily injury and death.  The liability waiver form also included language that he would indemnify, defend and hold harmless Defendant from liability.  He acknowledged that he read and understood the terms of the waiver and was waiving his right to sue and released Defendant from all liability.  Mr. Valentino died during the swimming portion of the triathlon.

In granting the summary judgment, the Pennsylvania Superior Court reviewed the standard applied to liability waivers.  Specifically, the Court held that "Pennsylvania law recognizes the enforceability of valid liability waivers, particularly in cases where the injured party elects to engage in activities that entail an obvious risk of injury or loss."  The Court went on to hold that by signing a liability waiver, Mr. Valentino knew and assumed the risks and released Defendant from any harm.  By signing the waiver, Mr. Valentino shifted the loss from Defendant unto himself.  Thus, the tortious conduct was transformed into non-tortious conduct.

The Court went on to hold that the liability waiver executed by Mr. Valentino not only applied to the survival action, but also to the wrongful death action even though his wife had not signed the waiver.  In summary, the Pennsylvania Superior Court held that the waiver agreement not only defeated the negligence claims asserted in the survival action, but also the negligence claims asserted in the context of the wrongful death action.

CALL TO ACTION:

When faced with a claim that involves a waiver of liability, the facts and events surrounding the incident should be thoroughly investigated and a detailed record of the events established.  Understanding and confirming the facts early on will not only assist defense counsel with asserting the defense of waiver and release, but it will significantly increase the probability that a motion for summary judgment will be successful.  Upon notice of a claim, a copy of the waiver should be preserved along with all the other signed documents.  If the waiver was done electronically, a copy of the electronic file should also be preserved.  The cause of the injury should be compared to the known risks and the dangers outlined in the waiver.  A well drafted waiver will increase the probability that the Court will find the alleged tortious conduct to be transformed into a non-tortious event extinguishing the alleged duty of care owed to the injured person.