Sometimes at Clark and Steinhorn we write about some topic that is clearly important and then look to place the information in a larger context than merely the law. I knew that the legal position of BJ's in BJ's V. Rosen, seemed patently unfair. When one of the world's largest and most profitable retailers can dispense with liability for catastophic injuries negligently inflicted on a five-year-old by having that child's parent sign a piece of paper, it presented the classic case of parties with grossly unequal positions negotiating.
A busy family appears at BJ"s and understandably both parent and child are thrilled that BJ's provides a play area and of course the retailer provides the play area with one goal in mind, increasing profits. BJ's bevy of lawyers has prepared a waiver of claims for the parent to sign on behalf of their toddler and everything is fine,except it's not...
The parent doesn't take the time to investigate and to realize that BJ's has negligently (perhaps grossly negligently) set up its play area so that a child could fall directly onto concrete and sustain a brain injury. It would never occur to such a parent (or toddler) that the world's largest retailer wouldn't safety proof its play area, but sure enough thats the case.
And in Maryland, a theoretically progressive state, the insurance and business forces rule the law (just look at contributory negligence) and the five-year-old and his parents, well they are out of luck. Lets hope the Court of Appeals proves more enlightened on this issue than they have on so many others..
The Daily Record Editorial of September 13, 2013 "Waiver not at the heart of BJ's case articulates this exceedingly well.