By Doyice Cotten
In a recent Maryland case, Rachel Burke took her child to an entertainment center and was injured while in a ball pit with the child. She had on a previous visit signed an extensive waiver (Burke v. Kidz Jungle World, Apr. 2023). The waiver provides in part:
Waiver
- I, for myself and the participant(s) undersigned, acknowledge and understand that all equipment at Kidz Jungle World, LLC, including slides, stairs, climbing structures, obstacles, interactive panels, soft play structures with moving parts, games, trampolines, and other toys can be hazardous and dangerous. Activities require various degrees of skill and experience. I understand that these activities can result in serious injury, death, illness, and loss of any kind. I understand that such risk cannot be eliminated without jeopardizing the essential qualities of the Activity. I promise to accept and assume all of the risk and responsibilities for loss of any kind, injury, death, and illness to myself and the participant(s) undersigned on the Kidz Jungle World, LLC premises, including those that may arise out of negligence of other participants. I also hereby agree to indemnify, hold harmless and defend Kidz Jungle World, LLC, their employees and agents from any and all claims resulting from injuries, including death, damages and loss sustained by anyone, which arise out of or are in any way associated with my conduct or the conduct of those individuals participating under my supervision and/or the activities of the facility, I acknowledge that myself and the participant(s) undersigned may require medical assistance, which I acknowledge will be at my own expense or the expense of my personal insurers. I represent and affirm that I have adequate and appropriate insurance to provide coverage for such medical expenses.
4. I am aware that there are age and weight limits of certain activities for the safety of different age groups of children at Kidz Jungle World, LLC.
- In consideration of Kidz Jungle World, LLC allowing my participation and the participation of the undersigned, I, for myself and the participant(s) undersigned and/or legal ward, heirs, administrators, personal representatives, or assigns hereby voluntarily release, waive, and forever discharge and covenant not to sue Kidz Jungle World, LLC and its owners, agents, employees, officers, and all other persons or entities acting on its behalf.
- I understand the effect of this waiverand acceptance of risk on my legal rights. By signing this releaseof liability agreement and participating at Kidz Jungle World, LLC, it is my intention to assume all risk of injury and I for myself and the participant(s) undersigned. I hereby fully and forever release and discharge indemnify and hold harmless Kidz Jungle World, LLC, its owners, employees, agents, the property owner and/or all other persons or entities acting on its behalf from any and all liabilities, claims, demands, damages, rights of action, suits or causes of action present or future, whether they be known or unknown, anticipated or unanticipated, resulting from or arising in any way out of my use or intended use of said premises, facilities or equipment to the fullest extent permitted by law. I fully and forever release and discharge the released parties and their employees and agents from any and all negligent acts and omissions [bold added.] in the same, and intend to be legally bound by this release to the fullest extent permitted by law….
I HAVE READ THE ABOVE MEDICAL PERMISSION AUTHORIZATION AND BY SIGNING IT AGREE THAT IT IS MY INTENTION TO EXEPMT (sic) AND RELIEVE KIDZ JUNGLE WORLD, LLC FROM ALL LIABILITY ARISING AS THE RESULT OF THIS MEDICAL AUTHORIZATION….
NOTE: ALL EQUIPMENT IS EXCLUSIVELY DESIGNED FOR CHILDREN ONLY. YOU, AS A PARENT OR GUARDIAN, ARE NOT ALLOWED TO TRY ANY EQUIPMENT OTHER THAN THE LARGE PLAYGROUND STRUCTURE WHICH YOU CAN PLAY WITH YOUR OWN CHILDREN ONLY, NOT WITH OTHER ADULTS.
YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM AND KIDZ JUNGLE WORLD, LLC HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.
The trial court had granted summary judgment to Kidz Jungle World based on the language of the waiver. Note the bold sentence in item 6.
Maryland Waiver Law
An exculpatory clause is a clause in a contract that relieves a party from liability for harm caused by his or her own negligence. “Exculpatory clauses are generally valid, but they must be unequivocal and clear, not merely unambiguous.” Id. Appellant asserts that the provisions do not clearly exculpate Appellee from claims arising out of its own negligence. Appellant alleges that the “paragraphs do not use the word ‘negligence’ or other unequivocal terms” and instead use “broadly worded[,] but imprecise language” that is unpermitted in Maryland courts since Abdolrahman M. Adloo et al., v. H.T. Brown Real Estate, Inc., 344 Md. 254 (1996).
Burke claims that she signed the waiver on a previous visit and she was not informed that it applied on subsequent visits. The court pointed out the bold sentence in the waiver. The court stated that “An exculpatory clause “is sufficient to insulate the party from his or her own negligence ‘as long as [its] language … clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence ….’ ” The court went on to say that the waiver was clear and unambiguous; hence, with no dispute as to facts, the defendant was entitled to summary judgment as granted by the trial court.
Risk Management Take-away
It obviously pays to have a well-written waiver. The waiver in this case had very clear language and the writer was careful to include specific reference to the word “negligence” and made it clear that the waiver applied to future visits. Click HERE to read the entire case.
Photo Credit: Thanks to the Seattle Parks and Recreation via Flickr.