Top court hears BJ’s bid to stop suit over play-area injury

ANNAPOLIS — Attorneys for an injured boy’s parents and a national chain battled Tuesday at Maryland’s highest court over whether parents can sign away their children’s right to recover for injuries they might sustain in a store’s play area.

Upholding a waiver the boy’s father signed would offend public policy by permitting BJ’s Wholesale Club Inc. to escape accountability for its alleged negligence in placing climbing equipment over a concrete floor, attorney Ari S. Casper told the Court of Appeals.

“We’re talking about the safety of our children,” said Casper, of Stein, Mitchell, Muse & Cipollone LLP in Washington, D.C.

But BJ’s attorney, Christopher R. Dunn, said public policy decisions should be made by the legislature, not the courts. The boy’s father, Russell Rosen, had freely signed the waiver required to access the play area of the store in Owings Mills, Dunn added.

“This is a contractual issue,” said Dunn, of DeCaro, Doran, Siciliano, Gallagher & Deblasis LLP in Bowie.

Russell and Beily Rosen are seeking $5 million in their lawsuit against BJ’s on behalf of their son, Ephraim.

Russell Rosen signed the waiver allowing Ephraim to use the play area in July 2005.

The accident occurred on a trip to the store in October 2006.

While his mother shopped, the 5-year-old boy fell more than three feet from a plastic hippopotamus and struck his head on the concrete floor, sustaining a brain injury.

The parents sued, but a circuit court judge granted BJ’s motion for summary judgment based on the signed waiver.

In August 2012, the Court of Special Appeals overturned that ruling, saying parents cannot waive their children’s right to sue a commercial establishment if they become injured.

The intermediate appeals court cited public policy, saying such waiver provisions “may remove an important incentive [for the store] to act with reasonable care.”

BJ’s asked the Court of Appeals to hear the case.

Arguing for the store Tuesday at the high court, Dunn said the Court of Special Appeals engaged in “judicial activism” and “improperly assumed the role of the legislature” with its citation to public policy.

The waiver is a valid “contract between adults and the Court [of Special Appeals] struck it down because they didn’t like it,” Dunn said.

But Judge Lynne A. Battaglia took exception to Dunn’s characterization of the lower court’s decision.

“Judicial activism depends upon whose ox is being gored,” Battaglia said.

In response, Dunn said contractual waivers are valid unless prohibited by statute, and the Maryland legislature has not invalidated them.

The Rosens’ lawyer countered that Maryland courts have long held on public policy grounds that parents cannot waive potential claims of gross negligence. Likewise, companies should not be able to immunize themselves against simple negligence via a parental waiver, Casper added.

“That’s not how it should work,” he said. “We want commercial entities and other entities to exercise due care.”

Judge Irma S. Raker interjected that parents are obligated to sign the waiver only if they want their children to be in the play area while they shop.

“Parents make conscious decisions everyday on behalf of their children,” Raker said. As a parent, “you can take the child shopping with you,” she added.

Raker, a retired member of the court, was specially assigned to participate in this case in place of Judge Shirley M. Watts, who was a member of the Court of Special Appeals when it heard the case.

After his fall in 2006, Ephraim was taken to Sinai Hospital in Baltimore, where he was diagnosed with a bruise to his brain. He was transferred to the Johns Hopkins Hospital, where he underwent a craniectomy to relieve the fluid buildup.

The Rosens sued Westborough, Mass.-based BJ’s Wholesale Club two years later in Baltimore County Circuit Court. Judge Thomas J. Bollinger Sr. granted the discounter’s motion for summary judgment on Dec. 9, 2009, and the parents appealed. After the Court of Special Appeals’ decision in August 2012, the Court of Appeals granted BJ’s petition for certiorari in December.

The Court of Appeals is expected to render a decision in the case, BJ’s Wholesale Club Inc. v. Russell Rosen et al., No. 99, September Term 2012, by Aug. 31.