## Facts

- Gregg O’Brien, a certified open-water scuba diver, attended a promotional event where participants could test Diving Unlimited International, Inc. (DUI) dry suits during a group dive.
- Before diving, O’Brien signed (1) a written release and waiver of liability and (2) an equipment-rental agreement, each releasing DUI and related parties from liability for injuries or death arising from the activity and equipment use.
- The release contained conspicuous, emphasized provisions labeled “EFFECT OF AGREEMENT,” “FULL RELEASE,” and “COVENANT NOT TO SUE,” stating the signer was giving up the right to sue for injuries or death and that the signer’s “heirs or executors” could not sue for death arising from the dive or related activities.
- During the dive, O’Brien became separated from his group and died.
- Margaret C. Doherty, as personal representative of O’Brien’s estate, brought a wrongful-death action for the benefit of statutory beneficiaries, alleging negligence, including negligence by dive leader John Golbranson, asserted to be an agent of DUI.
- All defendants except Golbranson settled; the case proceeded against Golbranson.

## Issues

1. Whether Massachusetts wrongful-death claims under G.L. c. 229, §§ 1–2 provide statutory beneficiaries an independent cause of action or a right derivative of the decedent’s underlying claim.
2. If the beneficiaries’ rights are derivative, whether the decedent’s valid preinjury release and covenant not to sue bars a wrongful-death action brought on the beneficiaries’ behalf.
3. Whether the waivers’ language and scope covered Golbranson as an agent of DUI.

## Decision

- The Supreme Judicial Court affirmed summary judgment for Golbranson.
- The court held that Massachusetts wrongful-death rights are derivative of the decedent’s claim, existing only to the extent the decedent could have recovered for the injury had he lived.
- Because O’Brien executed clear, enforceable waivers releasing DUI and its agents and expressly barring suits by his “heirs or executors” for death arising from the activity, the wrongful-death claims were barred.
- The court agreed that Golbranson fell within the class of released parties as an agent involved in conducting the dive.

## Legal Principles

- Under Massachusetts law, statutory beneficiaries’ wrongful-death recovery is derivative of the decedent’s underlying claim rather than an independent claim.
- A defense that would have barred the decedent’s recovery (including a valid preinjury release and covenant not to sue) also bars a wrongful-death action brought for beneficiaries’ benefit.
- Recreational preinjury liability waivers are enforceable when their terms are clear, unambiguous, and conspicuous, and when enforcement is not contrary to public policy.
- A release may extend to agents of the released entity when the agreement’s scope covers related parties and the claims arise from the covered activity.

## Conclusion

Massachusetts treats wrongful-death recovery as dependent on the decedent’s own right to sue; therefore, when a decedent executes a valid, conspicuous preinjury release and covenant not to sue that covers the activity and released parties (including agents), the personal representative cannot maintain a wrongful-death action for statutory beneficiaries based on the same injury.


Doherty v. Diving Unlimited Int'l, Inc., 484 Mass. 193, 140 N.E.3d 394 (2020)