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Gershon v. Regency Diving Center

April 12, 2004

BONNIE GERSHON, ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF EUGENE J. PIETROLUONGO, PLAINTIFF-RESPONDENT,
v.
REGENCY DIVING CENTER, INC. AND COSTAS PRODROMOU, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Number L-9949-02.

Before Judges Wefing, Collester and Fuentes.

The opinion of the court was delivered by: Fuentes, J.A.D

Argued February 2, 2004

In this appeal we are asked to decide whether an exculpatory release, executed by decedent as a condition of receiving scuba diving instructions from defendants, precludes decedent's heirs from bringing a wrongful death action pursuant to N.J.S.A. 2A:31-1 to -6. This is an issue of first impression in this State.

This issue was originally considered by the Law Division by way of cross-motions for partial summary judgment. The court granted plaintiff's motion striking defendants' affirmative defense based on the exculpatory release as it pertained to the wrongful death action, and granted defendants' cross-motion dismissing decedent's survivorship claim. We granted defendants' motion for leave to appeal.

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.

The core facts necessary to decide this matter are not in dispute.*fn1

I.

Decedent, Eugene Pietroluongo, died on July 17, 2001, while engaged in the recreational activity of scuba diving at the Dutch Springs Quarry located in Bethlehem, Pennsylvania. He was forty-four years old. Pietroluongo was an active scuba diver who participated in the sport since 1984. His diving pursuits increased as his marriage to Bonnie Sue Gershon ended in the late 1990s. The couple had one daughter who was nine years old at the time of his death.

Decedent was also an attorney, admitted to practice in this State since 1983. He worked as an assistant prosecutor in the Office of the Essex County Prosecutor. Three days before his death, decedent sought out Regency Diving Center (RDC), located in the Township of Millburn, for advanced diving training. He informed RDC president and owner Costas Prodromou that he was certified by the Professional Association of Diving Instructors (PADI) as an Advanced Open Water Diver. Prodromou*fn2 suggested that decedent study Nitrox and Advanced Nitrox diving, which involves using various mixtures of oxygen-enriched air while diving.

Decedent executed a release agreement in connection with the prospective dives. The agreement stated in pertinent part:

I understand and agree that neither my instructor(s) Costas Prodromou, the facility through which I received my instruction, Regency Diving Center, Inc., International Training, Inc. and Technical Diving International, nor the officers, directors, shareholders, affiliated companies, employees, agents, or assigns of the above listed entities and/or individuals, nor the authors of any materials including texts and tables expressly used for training and certification (hereinafter referred to as"Released Parties") may be held liable or responsible in any way 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 the negligence of any party, including the Released Parties, whether passive or active.....

IT IS THE INTENTION OF Eugene J. Pietroluongo BY THIS INSTRUMENT TO EXEMPT AND RELEASE MY INSTRUCTORS, Costas Prodromou (AND OTHERS, ,) THE FACILITY THROUGH WHICH I RECEIVED MY INSTRUCTION Regency Diving Center, THE TRAINING AGENCY Regency Diving Center AND INTERNATIONAL TRAINING, INC., AND TECHNICAL DIVING INTERNATIONAL, AND ALL OTHER RELATED ENTITIES AND RELEASED PARTIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH HOWEVER CAUSED, OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE. I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS LIABILITY RELEASE AND EXPRESS ASSUMPTION OF RISK BY READING IT BEFORE SIGNING IT ON BEHALF OF MYSELF AND MY HEIRS.

A separate medical history form indicated that decedent took medication for high blood pressure. He presented Prodromou with a physician-signed approval for diving.

On July 17, 2001, decedent, Prodromou, RDC scuba instructor John Berghoefer and student Paul Kulavis met in Pennsylvania for a preliminary dive intended to ascertain the student divers' skill levels. Berghoefer was to lead the group, with decedent and Kulavis positioned in the middle and Prodromou in the rear. The group swam along the surface of the water and then began their descent, exchanging thumbs up"okay" signals along the way. There was clear visibility and good weather conditions.

The group swam first to one submerged platform, and then to another, spaced about fifty feet apart. Prodromou waited for Kulavis to catch up with decedent and Berghoefer as they headed toward the third platform. As they proceeded, he noticed that Berghoefer had missed the platform. The other divers, including decedent, followed Berghoefer. Prodromou swam straight for the platform to redirect the group. Berghoefer, realizing ...


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