Maryland Court of Appeals decision injures both parents and their children

Ahh the holidays, time to buoy the American economy, by shopping, shopping and more shopping. But what to do with those pesky kids?

I know take them  to BJ's, where bargains abound and the kids can safely recreate in the "play area". But of course BJ's attorneys want you to sign a waiver before entering the ironically named "Incredible Kid's Club", just in case it proves to be the "Catastrophic Injury Club".

Thus, the case of B.J.'s Wholesale Club v. Rosen, found its way to Maryland's Court of Appeals where that Court reversed The Court of Special Appeals and bounced a catastrophically injured five-year-old out of court.

The decision upholds such waivers finding they are not "a transaction affecting public interest" and kicking the can down the road to the Maryland legislature.

This is another absurd example of the Court of Appeals refusing to act responsibly in matters that have profound effects on the public interest. The Court upheld the ludicrous and outdated doctrine of contributory negligence earlier this year again deferring to the legislature. See;

Will the legislature do anything with either contributory negligence or such waivers? Of course not, the insurance industry and the Maryland Retailers Association wield great influence and won't permit it.

Contributory negligence and its rational counterpart, comparative negligence, have been in Annapolis halls for years and despite the fact that virtually every state has moved to comparative negligence, Maryland just isn't ready. Mississippi, Alaska, Utah, Kentucky, they are among the 45 states that have eliminated contributory negligence but I guess that Marylanders are stupid. It is embarrassing.

There is a disconnect between the Court of Appeals and reality. BJ's designed their play area to make money by bringing in parents with children. If the children are happily occupied they will want to go to BJ's. Their parents will spend more time shopping and more money.

But what incentive is there for BJ's and other entities with "play areas" to make things safe for the children they are entrusted with? Sign a waiver Mrs. Parent and if your kid gets catastrophically injured tough luck. Tough luck for you and the rest of your family. Tough luck for your child. If you are fortunate enough to have health insurance it is tough luck for them and if not, it is tough luck for the public, which will bear the cost of medical care.

Oh wait, the waiver doesn't affect public interest, so no worries. 

The decision also is preposterously unrealisitic. Hmm should I sign the waiver? Well BJ's, part of the worlds largest retailer, designed this play area just as it has in  many locations elsewhere. So an ordinary parent needs to inspect the entirety of the play area for safety hazards before signing a waiver, who does that? Nobody of course. What parent is qualified to perform such a safety inspection and who would presume that the world's largest retailer evidently hadn't?

So a child will never be the same and a family will never be the same and somebody (the family, the health insurer, the state, the U.S.) will bear the costs and BJ's and Walmart, they'll just make more and more money without bearing the responsibility.

The public, well they are unlikely to know about this court decision. They won't inspect potentially dangerous play areas. They'll sign the waiver, without inspecting the play area. Their kids rights will be bargained away for nothing.


Robert V. Clark
Maryland Car Accident and Personal Injury Lawyer