In Maryland, a similar rule is in the same state of uncertainty. Last summer, the Court of Special Appeals (our intermediate appellate court) decided Rosen v. B.J.’s Wholesale Club, and found that an exculpatory clause has no effect on the claim of a person under age 18. When signing up for the B.J.’s wholesale membership, one of the parents signed an agreement stating that:
I hereby acknowledge that the participation in BJ’s Incredible Kid’s Club (the “Play Center”) is a benefit offered to me as a part of my BJ’s Wholesale Club membership. I further acknowledge that I have read, understood and I voluntarily agree to abide by all of the rules appearing above and/or rules as posted in the Play Center and registration area. In consideration for this service, I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents, employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns. I further agree to indemnify, defend and hold harmless BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns from any claims or causes of action of any kind arising from my or my child’s use of the Play Center.
By placing my signature below, I acknowledge and agree that I have read this agreement, understood all of the terms and conditions contained herein, and that this agreement will be in full force and effect during each of my or my child’s visit to the Play Center. This agreement shall remain in full force and effect at all times whether my child is dropped off at the Play Center by me or any one else.
Basically, this is an agreement not to sue in case of injury. Over a year later, the plaintiff’s 5-year old child was playing in the playland on a Hippo, when he fell about 3 feet, landing on the one spot of concrete that was not covered up. Rushed to the hospital, he had to have part of his skull removed because of serious brain bleeding. At trial, the judge decided that B.J.’s was the winner, and that the agreement controlled.
Maryland’s middle-court decided in favor of the child, however. Adults are allowed to waive their own rights, but the state has an obligation to protect children, even from the waivers that their parents sign. The court decided that B.J.s was in the best place to inspect for defects, train employees, and supervise the children. Also, if there was no liability, the business would have no incentive to take reasonable precautions.
The Court of Appeals, our highest court, has recently taken the case up. On December 14, 2012, a petition for writ of Certiorari was granted. We’re expecting oral arguments and a final ruling sometime this year. We’re hoping that the high court sticks with the ruling of the Court of Special Appeals. This is important to protect children in Maryland and to preserve their rights to a Maryland personal injury claim.