So you thought the waiver would stand up in court.......

Survivors can sue despite a waiver
Court permits action in scuba diving death
Tuesday, April 13, 2004
BY KATHY BARRETT CARTER
Star-Ledger Staff
For years, companies that sponsor higher risk activities such as scuba diving
and skydiving have asked participants to sign waivers designed to absolve them
from lawsuits if injury or death results.

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

A three-judge panel made its decision 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 three years ago. It cleared the way for
Pietroluongo's 13-year-old daughter, his sole heir, to sue the Regency Diving
Center in Millburn.

The court said while Pietroluongo had the power to sign away his right to sue,
the law did not allow him to sign away the rights of his survivors to bring a
wrongful death lawsuit. It said such an agreement, "like any contract, can only
bind the individuals who signed it."

Attorneys said yesterday that the decision yesterday sets new rules and could
result in more lawsuits.

"This is the first reported case in New Jersey dealing with this particular
issue," said Michael J. Barrett, the Woodbridge lawyer representing
Pietroluongo's daughter. "Now that it is clear what the rules are, those
engaged in recreational activities know what they are dealing with."

Larry Zucker, who serves as counsel to the New Jersey Amusement Association,
said many companies require patrons to sign release forms. Zucker said he did
not think the fallout from the court decision would be far-reaching because
very few accidents are fatal.

"Thank God, death actions are very rare," said Zucker. "This is not your
typical situation. I don't think it'll have a big impact or create any
additional exposure or liability in the amusement industry."

Costas Prodromou, the owner of the Regency Diving Center, declined to comment
on the ruling. His attorney, Judith A. Wahrenberger, did not return calls
yesterday.

Pietroluongo went to the Regency Diving Center for advanced diving training. He
signed a waiver agreeing that the diving school would not be liable for "any
injury, death, or other damages to me or my family, heirs, or assigns that may
occur as a result of my participation in this diving class or as a result of
negligence of any party."

Pietroluongo died on July 17, 2001, while scuba diving along with Prodromou,
another instructor and a student. The dive took place at Dutch Springs Quarry,
an old cement quarry that was turned into a diving park in Bethlehem, Pa.

An experienced diver, Pietroluongo had been scuba diving since 1984. The other
student, who was less experienced, had some problems during the dive. When the
two instructors brought that diver to the surface, they lost sight of
Pietroluongo and were unable to find him. The next evening Pietroluongo's body
was found in 66 feet of water with an ample supply of air in his tank and
equipment in working order. The medical examiner ruled his death an accidental
drowning.

Bonnie Gershon, Pietroluongo's ex-wife, brought a lawsuit on behalf of the
couple's daughter.

"He was not married, but he had one child, and what the court held is that Mr.
Pietroluongo could not sign away her rights," said Barrett. "That would be
unfair and contrary to the wrongful death statute."

Barrett said the ruling would take effect after a person dies and family
members claim economic loss. Affirming the lower court, the appeals panel said
Pietroluongo's agreement with Regency is "unenforceable."

Noting that wrongful death lawsuits are often brought when "breadwinners" die,
the court said: "Our Legislature declared that a just society has both a moral
and economic responsibility to ensure that those who are found civilly liable
for the death of a person are required to compensate the heirs of that person."

The decision was written by Appellate Division Judge Jose L. Fuentes and joined
by Judges Dorothea Wefing and Donald G. Collester Jr.