Your child wants to do something fun – like enjoy a water park, or learn how to ski – but before she can, you, the parent, have to sign a waiver agreeing that the water park or resort is not responsible if your child gets hurt as a result of the business’s negligence. You sign the document (or sometimes agree to it just by paying money) and hope for the best.
Then the unthinkable happens – your child is badly injured as a result of an employee’s screw-up. You have $1 million in unpaid medical bills and the business, although responsible for the injury, relies on the waiver and essentially says “Not my problem.”
Until now, that has been the law in many states. But a recent Maryland appeals court decision says: “NO FAIR.” In a case called Rosen v. BJ’s Wholesale Club, the appellate court found that the waiver is invalid.
The Rosens brought their 5 year-old son to BJs, one of these giant warehouse clubs. In order to induce parents to shop longer, the Club offered an inside-playground area for children, monitored by Club employees. Before leaving their child in the playground, the Rosens were required to sign one of these long forms that, in tiny print, said they were letting the club off the hook for negligence.
Sadly, the little Rosen boy fell head first off a slide onto a concrete floor, suffering life-threatening brain injuries. The Rosens sued, arguing that the Club should have had rubber mats or other soft material below the slide. The Club argued that it could not be sued because of waiver that the Rosen’s signed. The trial court agreed and threw out the case.
The appellate court joined the “majority of states” that hold that a parent cannot prospectively waive a child’s injury claim. The court noted that while adults can waive their own negligence claims, waiving their child’s claim is quite different. The court noted that to rule otherwise would provide businesses with no incentive to keep children safe or take steps to protect them. The court noted that commercial enterprises are in a better position than minor children to evaluate and eliminate hazards on their property, and to insure themselves against risks that cannot be altogether eliminated.