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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.
