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With an Injured Tot, a Release is Naught

Posted by Joseph G. Cleaver
Joseph G. Cleaver
As a trial associate at Kramer & Connolly, Mr. Cleaver briefed and argued motions and tried cases throughout M...
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on September 24, 2012
in Litigation

Earlier this month, the Maryland Court of Special Appeals held that a parent may not legally bind his or her minor child to a pre-injury release of tort liability in favor of a commercial enterprise.

In Rosen v. BJ’s Wholesale Club, the Rosen family challenged a trial court’s entry of summary judgment in favor of BJ’s in a personal injury action brought by the Rosens on behalf of their five-year-old son.  The child suffered life-threatening brain injuries after falling off of an apparatus at a supervised child play center at BJ’s.  Alleging negligence, the Rosens sued BJ’s, which in turn filed a counterclaim against the Rosens.  In its counterclaim, BJ’s alleged that the Rosens had violated the terms of an exculpatory release that Mr. Rosen signed, which discharged BJ’s from any and all claims arising out injuries at the play center.  Mr. Rosen was required to sign the release in order for his son to use the play center.

The Court framed the issue as “whether a parent may waive any and all future tort claims his or her child may have against a commercial enterprise,” and described it as one of first impression in Maryland.  After acknowledging that exculpatory releases are generally valid in Maryland, the Court pointed out that there are circumstances where public policy will not permit exculpatory agreements in transactions affecting the public interest.  After examining various Maryland statutes and case law protecting the rights of children, the Court agreed with the Rosens’ position that there is “a substantial public interest in protecting children and their rights to seek redress for negligence.”

After examining other courts’ analysis of the issue, the Court of Special Appeals concluded that the public interest in protecting children “tilts the scales in favor of invalidating a parent’s agreement to release his or her child’s future tort claims against a commercial enterprise, even though such an agreement, if executed by the parent on his or her own behalf, may be enforceable.”

As a personal injury attorney, I applaud the Court’s decision.  A corporation should not be able to escape its liability to an injured child based on a parent’s (most likely unwitting) relinquishment of its child’s rights.  As the Court pointed out, its decision will likely lead to increased safety in commercial establishments, and to the purchase of adequate liability insurance to cover the risk of injury to minor patrons.  We should hope so.

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As a trial associate at Kramer & Connolly, Mr. Cleaver briefed and argued motions and tried cases throughout Maryland, establishing a winning track record with careful preparation, research and aggressive advocacy.