NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-12707
MARGARET C. DOHERTY, personal representative,1 vs. DIVING UNLIMITED INTERNATIONAL, INC., & others.2
Essex. October 4, 2019. - February 27, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Wrongful Death. Negligence, Wrongful death. Waiver.
Civil action commenced in the Superior Court Department on May 5, 2015.
The case was heard by Janice W. Howe, J., on a motion for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Neil Rossman for the plaintiff. Martin K. DeMagistris for John Golbranson. Jennifer A. Creedon, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.
1 Of the estate of Gregg C. O'Brien.
2 Nicholas Fazah, EC Divers, Inc., and John Golbranson. 2
LOWY, J. Following a fatal scuba diving accident involving
the plaintiff's decedent in May 2014, the plaintiff, as personal
representative of the decedent's estate, brought a wrongful
death action under G. L. c. 229, § 2 against the manufacturer of
the "dry suit" that the decedent used on his dive, the
individual who supplied the decedent his diving equipment and
outfitted him, the company that owned and rented that equipment,
and the dive leader, John Golbranson. After the plaintiff had
settled with all defendants other than Golbranson, a judge of
the Superior Court granted summary judgment in his favor based
on the release from liability and covenant not to sue that the
decedent signed just before his death. The plaintiff appealed,
claiming that the statutory beneficiaries have an independent
right to a wrongful death action that the decedent could not
have waived. We transferred this case from the Appeals Court on
our own motion.
As explained in our opinion in GGNSC Admin. Servs., LLC v.
Schrader, 484 Mass. , (2020) (GGNSC), released today, we
conclude that the beneficiaries of a wrongful death action have
rights that are derivative of, rather than independent from, any
claim the decedent could have brought for the injuries causing
his death. Therefore, the waivers the decedent signed control
all claims for his wrongful death. Accordingly, we affirm the
grant of summary judgment. 3
1. Background. a. Facts. "In reviewing a motion for
summary judgment, we view the evidence in the record in the
light most favorable to the nonmoving party." Meyer v. Veolia
Energy N. Am., 482 Mass. 208, 209 (2019). Here, where the
plaintiff does not contest on appeal the judge's determination
that the waivers were valid, or that Golbranson was acting as an
agent for Diving Unlimited International, Inc. (DUI), the
manufacturer of the dry suit that the decedent wore on his dive,
we present only the essential facts.
The decedent, who was a certified open-water scuba diver,
drowned while participating in a promotional diving equipment
event that was sponsored by DUI and held in Gloucester. At this
event, where local divers tested DUI's dry suit, Golbranson was
the leader of the dive, overseeing some of the participants.
Prior to participating in the event, the decedent signed
two documents. The first was a release from liability which had
several subsections that were set forth in all capital letters
and underlined, including "effect of agreement," "assumption of
risk," "full release," "covenant not to sue," "indemnity
agreement," and "arbitration." In capital letters under the
subsection titled "effect of agreement," it said, "Diver gives
up valuable rights, including the right to sue for injuries or
death." It also told the decedent to read the agreement
carefully and not to sign it "unless or until you understand." 4
The subsection titled "full release" stated that the decedent
"fully release[d] DUI from any liability whatsoever resulting
from diving or associated activities," and the subsection titled
"covenant not to sue" stated that the decedent agreed "not to
sue DUI for personal injury arising from scuba diving or its
associated activities," and that the decedent's "heirs or
executors may not sue DUI for death arising from scuba diving or
its associated activities."
The decedent also signed an equipment rental agreement
which stated, "This agreement is a release of the [decedent's]
rights to sue for injuries or death resulting from the rental
and/or use of this equipment. The [decedent] expressly assumes
all risks of skin and/or scuba diving related in any way to the
rental and/or use of this equipment."
Golbranson led a group comprised of the decedent and two
other divers. During their dive, one of the divers experienced
a depleted air supply. Golbranson signaled for the group to
surface and to swim back to shore on the surface. Only the
decedent resisted, emphasizing his desire to keep diving, thus
separating himself from the group that was returning to shore.
Shortly thereafter, the decedent surfaced and called for help.
The decedent died at the hospital from "scuba drowning after
unequal weight belt distribution." 5
b. Procedural history. In her capacity as the decedent's
personal representative, the plaintiff sued for the benefit of
the decedent's statutory beneficiaries. The second amended
complaint alleged two counts against Golbranson resulting from
his negligence: (1) conscious pain and suffering; and (2) the
decedent's wrongful death under G. L. c. 229, § 2. Golbranson
moved for summary judgment, claiming that the release from
liability and the equipment rental agreement (collectively
waivers) protected him, as an agent of DUI, against any
negligence suit or liability. The plaintiff opposed summary
judgment, asserting that the waivers did not apply to Golbranson
when he was negligent in his individual capacity and that
neither waiver would prevent the decedent's statutory
beneficiaries from recovering damages for wrongful death.
The judge determined, and the plaintiff does not contest on
appeal, that Golbranson acted as DUI's agent during the dive.
The judge also concluded that the two waivers that the decedent
signed prohibited the plaintiff from bringing an action for
negligence against Golbranson.3
3 As to the conscious pain and suffering claim, the judge found that the waivers negated the plaintiff's ability to recover, because the decedent clearly had the authority to waive those rights. 6
As to the wrongful death claim, the judge concluded that
G. L. c. 229, § 2, created a right to recovery that is
derivative of the decedent's own cause of action.4 In addition,
she concluded that the agreements were valid and, thus,
precluded any recovery on behalf of the decedent's statutory
beneficiaries, who had no rights independent of the decedent's
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-12707
MARGARET C. DOHERTY, personal representative,1 vs. DIVING UNLIMITED INTERNATIONAL, INC., & others.2
Essex. October 4, 2019. - February 27, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Wrongful Death. Negligence, Wrongful death. Waiver.
Civil action commenced in the Superior Court Department on May 5, 2015.
The case was heard by Janice W. Howe, J., on a motion for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Neil Rossman for the plaintiff. Martin K. DeMagistris for John Golbranson. Jennifer A. Creedon, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.
1 Of the estate of Gregg C. O'Brien.
2 Nicholas Fazah, EC Divers, Inc., and John Golbranson. 2
LOWY, J. Following a fatal scuba diving accident involving
the plaintiff's decedent in May 2014, the plaintiff, as personal
representative of the decedent's estate, brought a wrongful
death action under G. L. c. 229, § 2 against the manufacturer of
the "dry suit" that the decedent used on his dive, the
individual who supplied the decedent his diving equipment and
outfitted him, the company that owned and rented that equipment,
and the dive leader, John Golbranson. After the plaintiff had
settled with all defendants other than Golbranson, a judge of
the Superior Court granted summary judgment in his favor based
on the release from liability and covenant not to sue that the
decedent signed just before his death. The plaintiff appealed,
claiming that the statutory beneficiaries have an independent
right to a wrongful death action that the decedent could not
have waived. We transferred this case from the Appeals Court on
our own motion.
As explained in our opinion in GGNSC Admin. Servs., LLC v.
Schrader, 484 Mass. , (2020) (GGNSC), released today, we
conclude that the beneficiaries of a wrongful death action have
rights that are derivative of, rather than independent from, any
claim the decedent could have brought for the injuries causing
his death. Therefore, the waivers the decedent signed control
all claims for his wrongful death. Accordingly, we affirm the
grant of summary judgment. 3
1. Background. a. Facts. "In reviewing a motion for
summary judgment, we view the evidence in the record in the
light most favorable to the nonmoving party." Meyer v. Veolia
Energy N. Am., 482 Mass. 208, 209 (2019). Here, where the
plaintiff does not contest on appeal the judge's determination
that the waivers were valid, or that Golbranson was acting as an
agent for Diving Unlimited International, Inc. (DUI), the
manufacturer of the dry suit that the decedent wore on his dive,
we present only the essential facts.
The decedent, who was a certified open-water scuba diver,
drowned while participating in a promotional diving equipment
event that was sponsored by DUI and held in Gloucester. At this
event, where local divers tested DUI's dry suit, Golbranson was
the leader of the dive, overseeing some of the participants.
Prior to participating in the event, the decedent signed
two documents. The first was a release from liability which had
several subsections that were set forth in all capital letters
and underlined, including "effect of agreement," "assumption of
risk," "full release," "covenant not to sue," "indemnity
agreement," and "arbitration." In capital letters under the
subsection titled "effect of agreement," it said, "Diver gives
up valuable rights, including the right to sue for injuries or
death." It also told the decedent to read the agreement
carefully and not to sign it "unless or until you understand." 4
The subsection titled "full release" stated that the decedent
"fully release[d] DUI from any liability whatsoever resulting
from diving or associated activities," and the subsection titled
"covenant not to sue" stated that the decedent agreed "not to
sue DUI for personal injury arising from scuba diving or its
associated activities," and that the decedent's "heirs or
executors may not sue DUI for death arising from scuba diving or
its associated activities."
The decedent also signed an equipment rental agreement
which stated, "This agreement is a release of the [decedent's]
rights to sue for injuries or death resulting from the rental
and/or use of this equipment. The [decedent] expressly assumes
all risks of skin and/or scuba diving related in any way to the
rental and/or use of this equipment."
Golbranson led a group comprised of the decedent and two
other divers. During their dive, one of the divers experienced
a depleted air supply. Golbranson signaled for the group to
surface and to swim back to shore on the surface. Only the
decedent resisted, emphasizing his desire to keep diving, thus
separating himself from the group that was returning to shore.
Shortly thereafter, the decedent surfaced and called for help.
The decedent died at the hospital from "scuba drowning after
unequal weight belt distribution." 5
b. Procedural history. In her capacity as the decedent's
personal representative, the plaintiff sued for the benefit of
the decedent's statutory beneficiaries. The second amended
complaint alleged two counts against Golbranson resulting from
his negligence: (1) conscious pain and suffering; and (2) the
decedent's wrongful death under G. L. c. 229, § 2. Golbranson
moved for summary judgment, claiming that the release from
liability and the equipment rental agreement (collectively
waivers) protected him, as an agent of DUI, against any
negligence suit or liability. The plaintiff opposed summary
judgment, asserting that the waivers did not apply to Golbranson
when he was negligent in his individual capacity and that
neither waiver would prevent the decedent's statutory
beneficiaries from recovering damages for wrongful death.
The judge determined, and the plaintiff does not contest on
appeal, that Golbranson acted as DUI's agent during the dive.
The judge also concluded that the two waivers that the decedent
signed prohibited the plaintiff from bringing an action for
negligence against Golbranson.3
3 As to the conscious pain and suffering claim, the judge found that the waivers negated the plaintiff's ability to recover, because the decedent clearly had the authority to waive those rights. 6
As to the wrongful death claim, the judge concluded that
G. L. c. 229, § 2, created a right to recovery that is
derivative of the decedent's own cause of action.4 In addition,
she concluded that the agreements were valid and, thus,
precluded any recovery on behalf of the decedent's statutory
beneficiaries, who had no rights independent of the decedent's
cause of action, which was waived.
2. Discussion. We review "a grant of summary judgment de
novo . . . to determine whether . . . all material facts have
been established and the moving party is entitled to judgment as
a matter of law" (quotation and citation omitted). Boston Globe
Media Partners, LLC v. Dep't of Pub. Health, 482 Mass. 427, 431
(2019).
Given that the plaintiff does not contest the judge's
determinations that the release from liability and the equipment
rental agreement are valid and that those waivers covered
Golbranson as an agent of DUI, the only issue before the court
is whether the statutory beneficiaries in the action for
wrongful death have a right to recover damages that is
independent of the decedent's own cause of action. See G. L.
c. 229, §§ 1, 2. In GGNSC, 484 Mass. at , we have resolved
4 In her analysis, the judge relied on a decision by a judge of the United States District Court for the District of Massachusetts that underlay our opinion in GGNSC. See GGNSC, 484 Mass. at . 7
that issue: our wrongful death statute creates a derivative
right of recovery for the statutory beneficiaries listed in
G. L. c. 229, § 1. Therefore, we hold that here, the valid
waivers signed by the decedent preclude the plaintiff, as his
"executor or personal representative," from bringing a lawsuit
under G. L. c. 229, § 2, for the benefit of the statutory
beneficiaries.5
3. Conclusion. We affirm the judgment of the Superior
Court granting Golbranson's motion for summary judgment.
So ordered.
5 Golbranson devotes much time arguing that the release from liability and the equipment rental agreement negate any duty he may have had to the decedent. We note that the release from liability was limited to "claims concern[ing] ordinary negligence," Sharon v. Newton, 437 Mass. 99, 110 n.12 (2002), and Golbranson does not contend that the waivers would have applied to other forms of malfeasance, such as gross negligence, or willful, wanton, or reckless acts. We have "consistently recognized that there is a certain core duty -- a certain irreducible minimum duty of care, owed to all persons -- that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others." Rafferty v. Merck & Co., 479 Mass. 141, 155 (2018). Specifically, "'while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence' or, for that matter, its reckless or intentional conduct." Id., quoting Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422 (2015). Nonetheless, only the decedent's executor or administrator has the right to bring a cause of action for gross negligence, not the statutory beneficiaries.