Timothy Liam EPSTEIN'S Article Entitled, "Triathlon liability waivers found to have Ironman strength," was published by the Chicago Daily Law Bulletin

The Pennsylvania Superior Court has ruled that the widow of a man who drowned during the Philadelphia Triathlon in 2010 cannot advance her lawsuit against the event organizers.

The court ruled that the man, Derek Valentino, signed a waiver eliminating any liability on the part of the defendant prior to participating in the race.

This ruling from the Pennsylvania Superior Court sets a favorable precedent for event organizers and triathlons.

Triathlons like this, along with even more hard-core adventure races, and longer races such as marathons and half-marathons have become increasingly popular in the U.S. in recent years. Cases like Valentino demonstrate the necessity for participants to carefully read the liability waivers before signing and participating in the race or event.

Michele Valentino filed a wrongful death lawsuit against the Philadelphia Triathlon after her husband disappeared during the swimming leg of the race and was found in the Schuylkill River by divers the day after the race.

The complaint stated that the organizers “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 employees.”

Judge Judith Ference Olson of the Pennsylvania Superior Court explained in the court’s opinion that there was “no conscious disregard for the risks of the participants” and upheld the trial court’s dismissal of Valentino’s claims.

Prior to the most recent ruling in Valentino, the case was tied up in the lower courts for four years as the judiciary wrestled with a determination of whether Michelle Valentino’s suit was barred by her late husband’s submission of a liability waiver. The lower courts ultimately ruled that Valentino was not completely barred from bringing suit, but was still subject to the consequences of a valid liability waiver.

Olson found that Derek Valentino’s signing of the liability waiver provides “overwhelming proof that Mr. Valentino intelligently and willingly assumed the risk of participating in the triathlon.”

The ruling states that the waiver was explicit in language regarding the risks and dangers for serious bodily injury, disability and death. Therefore, Valentino’s signature on the liability form assumes risks and pledges that the triathlon organizers will not be held liable.

The Valentino case is not unique. Several wrongful death suits have been filed naming race organizers and triathlons as defendants. In Angelo v. USA Triathlon, 2016 WL 126248 (D. Mass. Jan. 12, 2016), Cheryl Angelo, whose husband died while participating in the USA Triathlon in Vermont, filed a $1 million lawsuit against the event’s organizers in 2013.

In the complaint, Angelo alleged the USA Triathlon was negligent in running and organizing the event, failed to provide adequate supervision at the swim, did not have enough trained staff and did not have adequate lifesaving equipment.

The Angelo court held that USA Triathlon’s waiver and indemnity contract would be enforced, and, further, the contract protected the defendant against ordinary negligence.

The court also held that the indemnity contract survived the decedent’s death and became an obligation of the estate. The Angelo court did, however, state in its opinion that it “would not enforce an indemnity agreement to the extent it provided for indemnification of a party’s own gross negligence.”

In Moore v. North American Sports Inc., 623 F.3d 1325 (11th Cir. 2010), the family of Bernard Rice, a triathlete, sued the 2006 Florida Ironman Triathlon and its main sponsor after Rice suffered a cardiac arrest during the swimming portion of the event.

The wrongful-death suit centered on an alleged lack of staffing at the event. The plaintiff argued the lack of staffing did not allow Rice to get the medical attention he needed, when he needed it.

Ironman asserted defenses of assumption of risk and contributory negligence. Ironman argued that the Rice estate was barred from recovery, because prior to entering the race, Rice had executed a waiver releasing Ironman and its sponsors of liability for potential injuries. A jury ruled in favor of the Ironman defendants finding no negligence on either defendant’s part.

In the largest study of fatalities in U.S. amateur triathlons, the Minneapolis Heart Institute Foundation found that in the years 2006 to 2015, coinciding with huge gains in triathlon popularity in the U.S., the incidence of death was 1.5 persons per 100,000 participants. Of the 109 reported deaths from 1985 to 2015 in events sanctioned by the USA Triathlon, 85 percent were men, with an average age of 47.

The swimming leg is particularly dangerous, with 70 percent of the total triathlon deaths occurring during the swimming phase of the race. Just over half of these deaths were also contributed to by the decedents’ pre-existing cardiovascular disease.

Researchers recommend that participants, especially middle-aged men, get medical exams before participating in these types of races. Fortunately, as a result of studies like the one conducted by the Minneapolis group, event organizers have instituted certain safety precautions including water temperature guidelines and abandoning “mass” starts in favor of a more controlled approach.

While increasing safety measures and medical exams may decrease the likelihood of death, these advances do not provide any remedies to those who do die or suffer injuries during the race so long as a signed liability waiver is a precondition of participation.

Looking at precedential cases, absent a finding of gross negligence on the part of race organizers, a signed liability waiver or indemnity contract will likely absolve triathlons of liability for deaths that occur during the race.

To be clear, as is articulated in both Valentino and Angelo, a validly executed liability waiver will also likely preclude the estate of the decedent from bringing a successful wrongful death lawsuit.

As triathlons and other adventure races become increasingly popular in the United States, event organizers would be well-served to craft their waivers and indemnity contracts to conform with the favorable rulings in cases like Valentino.

Triathlon and adventure race participants should similarly heed the deference that courts have given to waivers and indemnity contracts, understanding that absent some gross negligence on the part of the organizers, any injury or even death suffered during the race will not result in any recovery from the event organizers.

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