In BJ’s Wholesale Club Inc. v.
Russell Rosen et al., No. 99, September Term 2012, argued Sept. 10, 2013,
the Court of Appeals addressed the enforceability of a waiver agreement that a
retailer required parents to sign prior to their children being allowed to
enter a play area. Pursuant to that
agreement, all claims against the retailer involving the play area were
waived.
In July 2005, Russell Rosen (Mr.
Rosen) signed a waiver on behalf of his three minor children so that they could
enter the play area at BJ’s Wholesale Club.
Approximately fifteen months after the waiver agreement was signed Beily
Rosen (Mrs. Rosen), took the Rosens’ five-year-old son to the play area at BJ’s
Wholesale Club. While using the play
area, the Rosens’ son suffered a large acute epidural hematoma in the right
temporal region as a result of falling head-first onto concrete floor covered
only by a thin layer of carpet from a three-foot tall plastic figure, “Harry
the Hippo.”
The Rosens’ filed suit against BJ’s
Wholesale Club, claiming that BJ’s Wholesale Club had a duty to exercise
reasonable care which it breached by placing a toy designed for children to
climb in an area surrounded by concrete floor with only a thin layer of carpet
over it. BJ’s Wholesale Club denied the
Rosens’ allegation of negligence and filed a counterclaim against the Rosens in
which it alleged breach of contract for failing to indemnify, defend, and hold
it harmless pursuant to the indemnification clause in the waiver agreement.
The Circuit Court for Baltimore
County granted BJ’s Wholesale Club’s Motion for Summary Judgment. The Court of Special Appeals reversed and
struck down the waiver agreement. BJ’s
Wholesale Club sought review, and, the Court of Appeals held that the waiver
agreement was enforceable.
In its opinion the Court of Appeals
stated that exculpatory clauses, like the waiver agreement at issue, are
generally valid and enforcing them is consistent with the policy of freedom to
contract. However, traditionally, as the
Court noted such clauses are not upheld “in transactions affecting the public
interest.” The Court examined societal
expectations under both statutory and common law and discussed different pieces
of legislation that empower parents “to make significant decisions on behalf of
their children.”
In addition, the Rosens argued that
the state’s interest in protecting children limits the ability of parents to
make decisions that adversely affect the well-being of their children. This argument was unsuccessful, and the Court
asserted that it has “never applied parens patriae to invalidate, undermine, or
restrict decision, such as the instant one, made by a parent on behalf of her
child in the course of the parenting role.”
Ultimately, the Court of Appeals
determined that Mr. Rosen’s execution of the exculpatory agreement on behalf of
his son did not violate public interest.
Thus, parent’s by signing such an agreement are responsible for weighing
their child’s welfare against the risks associated with signing such an
agreement.