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BJ’s can enforce play-area waiver, Md. top court holds

Retailers can enforce the waiver agreements they make parents sign before allowing their children to enter a play area, the state’s highest court has held.

The decision is an immediate win for BJ’s Wholesale Club Inc., and reverses a lower appellate court that found such agreements were contrary to public policy.

On Wednesday, the Court of Appeals held that parents are responsible for their children’s welfare and capable of deciding whether the risks outweighed the benefits of signing an exculpatory agreement.

The top court’s decision ultimately will have a “great deal” of positive impact on retailers in Maryland, said Patrick Donoho, president of the Maryland Retailers Association.

“In my opinion, what it will do is it confirms what the practice has been, which has been to ensure that people have informed consent when they put their kids in something like that,” Donoho said.

Russell and Beily Rosen, whose 5-year-old son was injured in an Owings Mills BJ’s play area, argued that the waiver offended public policy by allowing the wholesale club to escape accountability. The Court of Special Appeals agreed in August 2012, clearing the Rosens’ lawsuit against BJ’s for trial.

The Court of Appeals, however, held 5-2 that the BJ’s agreement was not “a transaction affecting public interest” and that the public-policy determination would be better left to the legislature.

“I think this opinion preserves the sanctity of the parent-child relationship and it credits the fact that parents are better situated to make significant decisions for their own children,” said an attorney for BJ’s, Christopher R. Dunn of Decaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie.

The Rosens’ attorney, Ari S. Casper of Stein, Mitchell, Muse & Cipollone LLP in Washington, D.C., declined to comment on the opinion.

BJ’s has a play area called the “Incredible Kids’ Club” at its stores. Before a child can enter for the first time, parents have to sign a waiver.

Under the agreement, those who sign agree to waive all claims against BJ’s and its employees related to the play center in any way.

The Rosens signed an agreement in July 2005 for all three of their children. Fifteen months later, they dropped their son Ephraim off at the play center.

The boy was playing on a three-foot-tall plastic figure, “Harry the Hippo,” when he fell head-first onto the concrete floor. The place where Ephraim fell was covered only covered by a thin layer of carpet.

Ephraim suffered a large acute epidural hematoma in the right temporal region. He was taken to Sinai Hospital in Baltimore and then to the Johns Hopkins Hospital for a craniectomy.

His parents sued BJ’s, seeking $5 million.

The Rosens claimed BJ’s had a duty to exercise reasonable care, which it breached by placing a toy designed for children to climb on in an area surrounded by an unpadded concrete floor.

The wholesaler answered with a counterclaim based on the waiver. The Rosens, however, argued the waiver could not be enforced because it violated Maryland’s public policy interest of protecting children.

Baltimore County Circuit Judge Thomas J. Bollinger Sr. ruled in favor of BJ’s, upholding the waiver. Bollinger also said the circuit court had no power to rule on the Rosens’ public policy claim.

The Court of Special Appeals, however, reversed the decision, holding last year that an agreement preventing parents from filing future negligence claims is unenforceable. It also insisted that the state has a parens patriae interest in protecting minors who can’t take care of themselves.

BJ’s sought review by the Court of Appeals, which heard the case in September.

Parents’ role, not state’s

The court has traditionally upheld exculpatory clauses unless there are circumstances “affecting the public interest,” Wednesday’s opinion notes.

After examining “societal expectations as discerned by statutory and common law,” Judge Lynne A. Battaglia wrote for the majority, the court found that the “societal expectation that parents should make significant decisions pertaining to a child’s welfare is manifest in statutes that enable parents to exercise their authority on behalf of their minor child in the most important aspects of a child’s life, including significant physical and mental health decisions.”

Thus, the majority held that “Mr. Rosen’s execution of an exculpatory agreement on behalf of Ephraim to allow him to use the Kids’ Club was not a transaction affecting the public interest.”

The Rosens also argued that the state’s interest in protecting children limits a parent’s ability to make decisions that adversely affect their child’s well-being.

The Court of Special Appeals agreed last year, saying the state has “a parens patriae interest in caring for those, such as minors, who cannot care for themselves [that] tilts the scales in favor of invalidating a parent’s agreement to release his or her child’s future tort claims against ‘commercial enterprise’.”

The intermediate court based its opinion in part on the top court’s decision in a 2009 case. But that case, In re Najasha B., involved parents who had been deemed unfit or incapable of parenting. The parens patriae doctrine also is used to support the state’s detention and control of minors who have been adjudicated delinquent.

However, those factors were not present here, the Court of Appeals noted Wednesday.

“We have … never applied parens patriae to invalidate, undermine, or restrict a decision, such as the instant one, made by a parent on behalf of her child in the course of the parenting role,” Battaglia wrote.


Judge Sally D. Adkins dissented, joined by Judge Robert N. McDonald. Agreements like the one at BJ’s are “directly adverse to the interests of minors, and ultimately shift the costs of commercial entities’ negligence to families and the State,” the dissenters said.



BJ’s Wholesale Club Inc. v. Russell Rosen et al., No. 99, September Term 2012, Argued Sept. 10, 2013. Decided Nov. 27, 2013. Opinion by Battaglia, J. Dissenting Opinion by Adkins, J.


Is a retailer’s waiver agreement that bars parents from bringing negligence claims against them related to a kids play area valid?


The Court of Appeals held that it is valid and that parents are responsible for their children’s welfare and weighing the risks of signing an exculpatory agreement.


Christopher R. Dunn of Decaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie, for petitioner; Ari S. Casper and Denis C. Mitchell of Stein, Mitchell, Muse & Cipollone LLP in Washington, D.C., for respondent.

RecordFax 13-1127-20 (41pages).