N.J. Court Allows Wrongful Death Suit Despite Waiver

April 14, 2004

A New Jersey Appeals Court has ruled that a waiver signed by participants in high risk sports activities does not prevent relatives from pursuing a wrongful death suit when the sports enthusiast is killed.

It is common for instructional facilities for scuba diving, skydiving and similar risky activities to ask participants to sign waivers shielding them from lawsuits if injury or death results.

A state appeals court has declared those release forms do not bar relatives from filing a wrongful death lawsuit.

Justice Jose L. Fuentes, writing for the three-judge panel, in the case of the late Assistant Essex County Prosecutor Eugene J. Pietroluongo, 44, of Orange, who died in a scuba diving accident in Pennsylvania in 2001, ruled that Pietroluongo’s 13-year-old daughter had the right to sue the Regency Diving Center in Millburn.

The court said that a waiver “like any contract, can only bind the individuals who signed it.” Thus it could not deprive his survivors of their rights to bring a wrongful death lawsuit.

“We now hold that a release signed by decedent with the express purpose of barring his potential heirs from instituting a wrongful death action in the event of his death in connection with his underwater diving activities did not legally extinguish the potential heirs’ rights to prosecute their statutorily authorized cause of action. Such exculpatory agreement is unenforceable and void as against public policy when it is invoked to preclude decedent’s heirs from prosecuting a wrongful death action,” Fuentes wrote.

After citing several statutory impediments to the defendant’s claims, the court noted that it is well settled that a person’s heirs are not defined until the time of his or her death. This fundamental tenet of the law of wills and estates is best expressed by the ancient maxim nemo est haeres viventis, “[n]o one can be heir during the life of his ancestor.” It is therefore legally impossible for an exculpatory agreement to bar the legal claims of a class of litigants that were not legally in existence at the time of its execution.

“From these legal principles we conclude that decedent did not have the legal authority to bargain away his heirs’ statutory rights to institute a wrongful death action in exchange for the privilege of having defendants provide him with scuba diving instructions. To hold otherwise would directly undermine the legislative policy established by the Wrongful Death Act.”

The case is Bonnie Gershon, et al. V. Regency Driving Center, Inc., et al.

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