The Maryland Court of Appeals has reversed the Court of Special Appeals in a decision that found exculpatory agreements allowing a business to avoid liability for its acts of negligence as to minors unenforceable.

In BJ’s Wholesale Club, Inc. v. Rosen, et al., (No. 99, Sept. Term 2012), the Court discussed an exculpatory clause contained in an agreement between BJ’s Wholesale Club and its members, with respect to a free, supervised play area of the Club provided for members’ minor children.

Part of the agreement between the member and the Club was that the member agreed to release the Club from any liability for injury to the member’s child caused by the club’s negligence. In addition, the agreement also contained an indemnity agreement running from the member to the Club.

When the Rosens’ son sustained a traumatic brain injury when he fell from one of the pieces of play equipment in the Incredible Kids’ Club, they sued BJ’s for damages arising from his injuries.  BJ’s filed a motion for summary judgment, relying on the agreement and the Rosens opposed it, claiming that the exculpatory portions of the agreement were unenforceable as against Maryland’s public policy of protecting children’s interests.

The Baltimore Couty Circuit Court granted BJ’s motion, and the Rosens appealed. After the Court of Special Appeals reversed the trial court’s decision, Rosen v. BJ’s Wholesale Club, Inc., 206 Md. App. 708, 716, 51 A.3d 100 (2012), the Court of Appeals issued a writ of certiorari, BJ’s Wholesale Club v. Rosen, 429 Md. 528, 56 A.3d 1241 (2012).

Although the Court of Special Appeals’ opinion (relying with approval on the analyses employed by a number of sister jurisdictions), held that such agreements are unenforceable when benefitting commercial enterprises, as being against the public interest, the Court of Appeals rejected that conclusion.

While admitting that it had not defined the “public interest” exception to the validity of exculpatory clauses in the seminal case of Wolf v. Ford, 335 Md. 525, 644 A.2d 522 (1994), other than stating that any such determination “must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations,” the Court expressed the general rule that “[t]here are… clear societal expectations … that parents[‘]… decisions pertaining to their children’s welfare…are generally in the child’s best interest.”

For the full text of the opinion, click here.