By Doyice Cotten

Court in one more state rules that parental waivers are enforceable — this brings the number to approximately 15.  This is an interesting case which includes well-explained reasoning of the two sides of the argument: Should a parent be allowed to waive the rights of a minor? The case is well worth reading (BJ’S Wholesale Club, Inc. v. Rosen, 2013 Md. LEXIS 897).

On October 23, 2012, Sportwaiver.com reported a 2012 Maryland Court of Special Appeals ruling in which the court ruled that “… state law specifying that waivers that are not in the public interest are unenforceable.” The court 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 child had been injured while using a free supervised play area designed for children to use while parents shopped.

On November 27, 2013, the Court of Appeals (Maryland’s highest court) reversed that ruling stating that “An exculpation agreement by a parent on behalf of his minor child releasing a commercial wholesale retail center from liability for negligence to allow the child to use a free supervised play area designed for children to use while their parents shopped was not a “transaction affecting the public interest” and, therefore, [the exculpation agreement] was enforceable and precluded the child’s claim for negligence arising out of injuries sustained while using the play area.”

The court stated that “[i]n the absence of legislation to the contrary, exculpatory clauses are generally valid, and the public policy of freedom of contract is best served by enforcing the provisions of the clause.” The court explained that Maryland law defines that the role of a parent includes responsibility for the child’s support, care, nurture, welfare, and education. Further, there is long held recognition that “parents are presumed to act in their children’s best interests.” There are, thus, clear societal expectations set forth in the law that parents should make decisions pertaining to their children’s welfare, and that those decisions are generally in the child’s best interest. The court went on to list many significant decisions that parents make on behalf of their children, including health, education, and religious decisions. The court also cited legislation and case law affording parents the authority to settle or release negligence claims on behalf of their minor children.

In addition, the court offered a lengthy critique of the reasoning of the Court of Special Appeals and a Florida court regarding a distinction between commercial and non-commercial enterprises. The court opined that it will defer to a parent’s determination as to whether the potential risks of an activity are outweighed by the perceived benefit to the child.