By Doyice Cotten
In a recent case (Rosen v. BJ’s Wholesale Club, Inc., 2012 Md. App. LEXIS 100), Rosen was a member of BJ’s Wholesale Club. In becoming a member, Rosen signed a waiver releasing the store from liability for negligence.
The waiver stated:
I . . . on behalf of my child, do hereby waive . . . any and all claims . . . related to the use of Play Center . . . including such claims . . . caused . . . by the negligence of BJ’s Wholesale Club, Inc.
Rosen left his 5-year-old son in the store play center for children while shopping. The boy fell from an elevated plastic play apparatus and suffered a brain injury. Rosen sued and the store relied on the waiver.
The court said this presents a question of first impression in Maryland as to whether a parental waiver used by a commercial enterprise is enforceable against the minor. The court quoted state law specifying that waivers that are not in the public interest are unenforceable. It went on to say that there is a substantial public interest in protecting children and their rights for redress for negligence. The court also looked at rulings in other states and concluded that parental waivers in Maryland are unenforceable.
The waiver also included language by which Rosen agreed to indemnify, defend, and hold harmless the club. In addressing this issue, the court said that the same public policy relied upon in dealing with the waiver of liability holds for indemnification involving a minor. It stated that a parental indemnification agreement creates an unacceptable conflict of interest and is unacceptable.