The case of BJ's Wholesale  Club, Inc. v. Rosen was recently argued in Maryland's Court of Appeals and its importance in the pantheon of cases which serve to protect the public's interests is significant. In this case the public was a five-year-old boy who was permitted by his parents to play in a "play area" of the store. In order to do so his father was obliged to sign a waiver of claims against the store for negligence.

Thus, when the five year-old fell from a plastic hippo onto the concrete floor below and sustained brain injury, he and his parents were precluded from bringing a claim against BJs for the catastrophic injuries he sustained. At the trial court level BJs was let out of the law suit because of the waiver and thus began an extensive trip through Maryland's appellate courts for the Rosen family.

The intermediate court, the Court of Special Appeals found that parents cannot waive the rights of their children to pursue such a claim.

The state's highest court was then consulted and at oral argument, BJ's highly able attorney, argued that the waiver was a contractual matter and that courts had no business effectively engaging in legislating from the bench. Counsel for the Rosens argued that the Courts of Maryland have not allowed parental waivers of children's claims in other areas and that as a matter of public safety such a practice was unfair.

It will be fascinating to see what the Court of Appeals does, as the recently decided case of James Coleman v. Soccer Association of Columbia surprised many legal observers when the antiquated doctrine of contributory negliegence was upheld by the same court.

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