Doherty v. Diving Unlimited International, Inc.

Gregg O’Brien was a scuba diver who participated in a promotional diving-equipment event held by Diving Unlimited International, Inc. (DUI) (defendant), during which O’Brien and others wore DUI-manufactured suits while diving. Before the event, O’Brien signed a liability release that contained subsections including “effect of agreement,” “full release,” and “covenant not to sue,” which were set forth in capital letters and underlined. The “effect of release” section provided that by signing the release, the diver was giving up the right to sue for injuries or death. The section also advised the signing diver to read the agreement carefully and not sign the agreement unless the diver understood its provisions. The “full release” section stated that the signing diver fully released DUI from liability resulting from diving or other associated activities. The “covenant not to sue” section provided that the signing diver would not sue DUI for personal injury arising from diving or other associated activities and that the signing diver’s heirs or executors could not sue DUI for death arising from diving or other associated activities. In addition to the liability release, O’Brien signed an equipment-rental agreement, which provided that O’Brien released his rights to sue for injuries or death resulting from the rental or use of DUI’s equipment. During the event, O’Brien became separated from his diving group and suffered a fatal accident. Margaret Doherty (plaintiff), the personal representative of O’Brien’s estate, brought an action in Massachusetts state court against parties including DUI and John Golbranson (defendant), the leader of O’Brien’s dive group. Doherty brought the action for the benefit of O’Brien’s statutory beneficiaries under G.L. c. 229, §§ 1-2, Massachusetts’s wrongful-death statute. The action alleged, among other things, that Golbranson’s negligence had caused O’Brien’s wrongful death. Doherty subsequently settled with everyone except Golbranson. The trial court granted summary judgment in Golbranson’s favor, finding that the liability release and covenant not to sue that O’Brien signed before his death were valid and covered Golbranson, who had acted as DUI’s agent during the dive. The court found that Massachusetts’s wrongful-death statute created no independent right to recovery in a decedent’s statutory beneficiaries and that any right to recovery was derivative of the decedent’s own cause of action. Therefore, the court concluded that O’Brien’s waivers precluded O’Brien’s statutory beneficiaries from recovering. Doherty appealed.