Exculpatory Agreements for Children Have Varied Enforcement in Maine

Agreements that extract a party from liability for negligence are handled with a heightened degree of judicial scrutiny in Maine courts.This is especially true when these exculpatory agreements involve release of negligence for harm to children.

The recent case of BJ’s Wholesale Club v. Rosen, reviewed by the Maryland Court of Appeals, illustrates how courts tend to wrestle with these matters.

Here, our Portland injury attorneys understand that a grocery store chain offered a supervised play area for the minor children of patrons, provided that the patrons sign a waiver that included an exculpatory provision and indemnification language. Parents were made to sign this contract before their children would be allowed to play in this area.

The play area offered a variety of different amusement items, and the waiver required that parents understood their child would have to abide by certain rules while in the play area and that they would hold the company harmless for negligence should their child suffer injury while playing.

Specifically, the contract stated, “I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against (the company)…”

In the summer of 2005, a father signed this waiver allowing his three young children to play while the parents shopped. For more than a year, the parents used this service while they shopped with no issue. But then in 2006, one of their son’s, age 5, was injured in the play area. He reportedly fell from a climbing play apparatus and onto concrete floor that was thinly covered with carpet. While some areas of the floor were covered with carpet and thick padding, this area had only concrete underneath the carpeting. However, there was no marking or delineation.

The fall was not a minor one. The child was transported to a nearby hospital, where it was learned he suffered a large hematoma on the right side of his head. He underwent brain surgery, which ultimately saved his life.

In considering the case, the circuit court granted a summary judgment to BJ’s, citing the exculpation and indemnification clauses. That ruling was later struck down by a special appeals court, but a higher appellate court found that decision was flawed and that the state had no right to invalidate the exculpatory clause. The case was remanded to the lower court for further consideration.

Here in Maine, exculpatory releases are enforceable, but it gets tricky where minors are concerned. Take the 2000 Maine case of Rice v. American Skiing Co. Here, the mother signed a similar liability release prior to her 9-year-old son’s enrollment in skiing lessons. The boy was subsequently injured when he skied off the side of a trail and struck a tree.

The mother subsequently filed an injury claim against the course provider.

The language contained in the release form would have clearly released the defendant from liability – had it been enforceable. However, the court held that a claim for negligent supervision would not barred when she signed the enrollment form on behalf of her son.

If you have been injured in Portland, Maine, contact us at 1-800-804-2004 or read more on our website.

Additional Resources:
BJ’s Wholesale Club v. Rosen, Nov. 27, 2013, Maryland Court of Appeals

More Blog Entries:
Dangerous Baby Products Could be in Your Child’s Nursery, Aug. 25, 2013, Portland, Maine Injury Lawyer Blog

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