Family Protection: Exculpatory Clauses To Be Void As Against Public Policy

It’s so awkward: you bring your child to a birthday party at a trampoline park, rock-climbing gym or other recreational facility and are required to sign a waiver of liability for him or her to participate in the birthday party. Don’t sign the waiver, and your kid cannot be a part of the birthday party. Sign the waiver, and you agree that the facility is not liable for its own negligence.

We don’t know about you, but it always made us uncomfortable to sign these agreements. Of course, we wanted our children to have fun at the birthday party. As lawyers, however, we felt it was not fair to be waiving any entity’s liability for injuries or death caused by its own negligence. Were we confident that the entity’s employees were adequately trained, that the equipment was properly maintained, or that the employees would follow all the safety rules? Not really – which caused me to watch my kids’ participation with a nervous stomach, ensuring that safety harnesses were put on properly and that employees were paying attention.

In a case from 2013, Maryland’s highest court affirmed that a parent who signed an agreement containing an exculpatory clause on behalf of his minor child could not prevail in his suit against BJ’s Wholesale Club for the child’s injury while playing on the “Harry the Hippo” apparatus in a supervised play area. In that case, a 5-year-old child fell off the hippo three feet in the air and headfirst onto the floor, which resulted in massive bleeding between his brain and skull. The child was taken to Sinai Hospital and transferred to The Johns Hopkins Hospital, where he had to have emergency brain surgery. Fortunately, the surgery saved his life. The Maryland Supreme Court’s decision was based on, and constrained by, prior case and statutory law, and thus, the parents were without redress.

This office had a case in which an 8-year-old child sustained severe fractures to her leg and ankle because of a 40-foot fall from the top of a climbing wall as a result of improper safety precautions. Fortunately, we were able to obtain a substantial settlement for our client despite a signed waiver of liability by persuasively arguing that the release should not have applied in that situation, where the employees of the facility knew about the heightened dangers at the “speed wall” and failed to warn parents.

Marylanders finally have some relief. During the 2024 legislative session, the legislature passed and the governor signed a bill declaring that such agreements or contracts purporting to waive liability for negligence of recreational facilities are void and unenforceable as against public policy. The law will become effective on October 1. As of that date, commercial recreational facilities, commercial athletic facilities and amusement attractions, including gymnasiums and swimming pools, will no longer be able to require customers to sign their rights away before using the facility.

Per the law, “recreational facility” does not include hotel workout rooms or facilities leased by state or local government. The law also does not apply to health club services rendered to an adult under an agreement for personal or family use for at least three months and for which three months of payment was collected in advance.

This new law will hold recreational facilities to the same standard that other businesses and professionals must meet: a duty of reasonable care. Consumers, especially children, will be safer because facilities will not be able to hide behind lax standards while knowing that they cannot be held responsible for their own failures to take reasonable care.

If you find yourself or your child injured by a recreational facility’s negligence, you will have questions about what redress is available to you and other issues. You should consult with an attorney who is familiar with this area of the law and who will assist you in making informed decisions. David Diggs is an experienced tort lawyer. If you need further information regarding this subject, contact the Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 302, in Millersville, by calling 410-244-1189 or by emailing david@diggslaw.com.