Maryland High Court Sides Against Parents, Upholds Liability Waiver, in Case involving 5 Year Old Seriously Injured in Store’s Play Area

The Court of Appeals of Maryland, Maryland’s Highest Court, recently handed down a landmark decision in the field of liability waivers and negligence lawsuits concerning injured minors.play_structure.jpg

The case, BJ’S WHOLESALE CLUB, INC. v. Rosen, Md. Ct. App. (2013), dealt with a scenario every parent dreads. In the case, plaintiff had signed a consent form/liability waiver, waiving any potential future negligence claims and indemnifying the store, on behalf of his minor children, which allowed them to play in the free supervised area of a BJ’s store, while their parents shopped.

Some 15 months after the waiver was initially signed, plaintiff’s five year old son fell off of a play structure animal, and hit his head on the floor, which was concrete covered with a thin layer of carpeting. As a result, he suffered a head injury, which ultimately required a craniectomy for evacuation of the epidural hematoma that developed.

His parents sued BJ’s for negligence, alleging the defendant owed a duty to exercise reasonable care to its patrons, that it should have known better than to have a climbing structure with concrete below (rather than foam as in other areas of the play place), and as a result that it breached the duty of care the store owed.

Surprisingly, prior to this case, Maryland did not have an established rule regarding liability waivers for future negligence claims on behalf of children. The plaintiffs argued that the court should hold the agreement invalid as void against public policy.The lower court stated that it could not invalidate the clause, as it did not have guidance as to how to interpret the potential public policy test enumerated in other cases.

Following an appeal, the Court of Special Appeals in Maryland struck the clause as unenforceable and void against public policy. It found specifically that an agreement entered into by a parent barring a future negligence claim asserted by a child against a commercial enterprise is unenforceable. It also found that the state has a parens patrie interest in invalidating such agreements, on behalf of the minor children.

BJ’s argued that, because the court failed to adopt dram shop liability, instead deferring to the legislature in reaching a decision of public policy, the court should do the same here. However, the court pointed out that dram shop liability was distinguishable, as the legislature had actually considered making changes, but then declined to do so.

The Court of Appeals decided to reverse the Court of Special Appeals opinion. It found that due to the extensive rights of parents to make decisions on behalf of their children, the contracted agreement was proper. Additionally, they were unpersuaded by the parens patrie argument, finding there wasn’t a state interest in this situation. Therefore, the waiver was upheld, meaning BJ’s could not be held liable.

This was a disappointing and somewhat surprising outcome. The plaintiffs in the case demonstrated that certain parts of the play area had foam under the carpet, whereas others had concrete, such as where the boy was injured. However, there was no clear delineation or indication of where the foam ended, and no real explanation as to why there wasn’t foam everywhere.

Granted, the parents made an informed decision regarding what they were doing when they signed the waiver, they probably expected that the play area was reasonably safe, which includes measures such as soft padding where children are more likely to fall. For concerned parents, because this decision was handed down by the state’s highest court, the state legislature would have to enact a law to change the relevant standard for these types of cases going forward if any change in outcomes of future cases can be expected.

Please contact the personal injury law firm of Lebowitz & Mzhen, LLC if your child has been injured due to someone else’s negligence. You can contact us through this website, or by calling toll-free at 1-800-654-1949 to schedule your free, no obligation consultation.

More Blog Posts:

D.C. Court Dismisses Consumer Product Lawsuit for Lack of Standing, Washington DC Injury Lawyer Blog, published November 27, 2013
D.C. Circuit Court Refuses Motion for Summary Judgment Against Whole Foods in Slip and Fall Case, Washington DC Injury Lawyer Blog, published November 21, 2013

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