Philadelphia City Hall. Photo: Diego M. Radzinschi/ALM

The intersection of contract and tort law took center stage Tuesday during the Pennsylvania Supreme Court's oral argument session involving a surviving spouse's efforts to bring a wrongful death suit after her husband drowned during the 2010 Philadelphia Triathlon.

Attorney Craig Falcone of Sacchetta & Falcone, who represented the widow, told the justices that because the wrongful death statute allows a decedent's heirs to bring their own “separate and independent” claims, the fact that the triathlete signed a waiver releasing the organization from liability before the event does not extinguish the widow's claims.

However, several justices questioned whether the husband's assumption of risk through the contract nixed any duty that the event organizer had to both the husband and the widow.

“Your argument is clever, but … your problem is that the wrongful death statute says you need negligence,” Justice Max Baer said. “Implicit to negligence is a duty. The contract abrogates a duty.”

Holding otherwise, Baer said, could end the assumption of risk as a defense, which would lead to “thousands of lawsuits against any charitable organization” holding any event.

According to court records, the Philadelphia Triathlon consisted of a half-mile swim, a 15.7-mile bicycle race, and a 3.1-mile run. As part of the registration, each participant needed to pay a fee and sign a waiver and release form. Derek Valentino registered for the event in January 2010.

Valentino, court records said, entered the water for the swimming portion of the event at 8:30 a.m. June 26, 2010, but he did not complete the race, and his body was found in the Schuylkill River the following day.

Michele Valentino, acting as the administrator of Derek Valentino's estate, filed suit asserting wrongful death and survival claims.

The trial court initially sustained some preliminary objections and struck all references to gross negligence, recklessness and punitive damages, finding the allegations showed only ordinary negligence. After some discovery was completed, Philadelphia Triathlon LLC moved for summary judgment, and the court dismissed the plaintiff's claims.

During arguments Tuesday, Falcone contended that, under the Comparative Negligence Act, the defendants were unable to use the contract to completely bar the decedent's negligence claims, and therefore, Valentino's widow still had the ability to bring a wrongful death suit.

Spector Gadon & Rosen attorney Heather Eichenbaum, who represented the Philadelphia Triathlon, contended that the state government has not abolished the assumption of risk defense in circumstances like the one at issue, and therefore Valentino's claims, and any derivative claims sought by his widow, could not be brought.

Chief Justice Thomas Saylor, however, noted that the wrongful death statute clearly says that an heir's claims are not derivative of the decedent's claims, and therefore contracts cannot extinguish an heir's ability to cover.

Eichenbaum, circling back to Baer's comments, contended that, given the waiver, the triathlon did not owe Valentino any duty that his widow could sue over.

“The legislature has not abolished assumption of risk as a defense,” Eichenbaum said.

Early during the question-packed argument session argument session Justice Christine Donohue summed up her estimation of the case.

“I think this is a hard case,” Donohue said. “Factually and legally.”