States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

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Plaintiff failed to prove her injuries were due to the construction of the water park slide, and she also assumed the risk.

An injury is not enough; you must be able to relate your injury to the exact cause, and that cause must be based on a failure to do or not do a duty by the defendant.

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

State: Maryland, United States District Court for the District of Maryland

Plaintiff: Beth Stolting, et al.

Defendant: Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: Defendant

Year: 2001

The plaintiff and a boyfriend, who eventually became her husband, went to the defendant’s water park. She had been to water parks 15-20 times over the years, and ridden water slides hundreds of times. However, she had never visited this park.

At the entrance of the park was a sign which warned of the risks of the park.

The attractions contained within the Splash Mountain Waterpark are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

The plaintiff admitted that she read the sign when she entered the park. After entering the park the plaintiff went on several water slides before going down the slide that injured her. Before riding that slide, she watched others go down the slide.

There were no warning signs posted at the slide. Nor were there instructions on how to ride the slide. As the plaintiff prepared to go down the slide, she placed herself in the positions; she had seen other riders with her knees bent about 40 degrees.

After exiting the slide, she hit the bottom of the pool. The plaintiff was assisted out of the pool by a lifeguard who suggested she go to a hospital. The plaintiff transported herself to the hospital. Eventually, she was diagnosed with several broke vertebrae, which required several months of recovery.

The plaintiff sued for her injuries.

Analysis: making sense of the law based on these facts.

Under Maryland law, to prove negligence the plaintiff must prove:

Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty and the harm suffered; and 4) that damages were sustained.

The plaintiff argued that the defendant had notice of the dangerous condition because two prior claims had been filed for similar injuries on the same water slide. The plaintiff then claimed that notice of those injuries created a duty on the part of the defendant to post warning signs.

The next issue was the standard of care owed by the defendant to the plaintiff. The rule in Maryland is a water park owes business invitees a duty to use ordinary care.

The general rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.”

The plaintiff then argued the defendant breached its duty to provide ordinary and diligent care by not posting warning signs informing patrons of the danger of the slide.

The plaintiff failed on this claim because she presented no admissible evidence that the angle of the slide was too steep. The plaintiff relied upon the opinion of the other injured patrons on the same slide. “The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.”

The park had the slide evaluated after the prior injuries by a licensed professional from the state. Since the plaintiff could not present any evidence of the dangerousness of the slide, the review by the professional was sufficient to defeat this claim. “There is no evidence adequate to establish that a pertinent standard of care required additional warnings.”

On top of that, the plaintiff had read the warnings at the entrance of the park which placed the plaintiff on notice of the dangerous condition, required by the duty owed to business-invitees.

The plaintiff hired an expert witness to assist in her case; however, the expert’s opinion was ruled inadmissible in a prior motion. Consequently, she could not provide any evidence to support here claim that the defendant breached its duty by not posting instructions on how to ride the slide.

Even if her expert’s opinion had been admissible, there was no evidence posted that the way the plaintiff rode the slide was the cause of her injury. There was no connection between riding the slide and riding the slide a specific way that might have caused or would not have caused her injuries.

The final issue was the depth of the pool at the bottom of the slide. Again, she could offer not expert testimony to support that claim. The engineer from the state had inspected the pool and found that its depth was adequate. “There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently pro-vided too shallow an exit pool.”

The court then found the plaintiff assumed the risk of her injuries. In Maryland, assumption of the risk is a complete bar to a negligence claim. To prove assumption of the risk the defendant must prove:

To establish an assumption of risk defense, the Defendants have the burden of demonstrating that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger.

To determine if the plaintiff knew, appreciated and voluntarily confronted the risk, the court used an objective standard.

An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.”

The defendant met this standard based on the plaintiff’s experience in riding other water slides and watching people ride this slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .

Additionally, the plaintiff’s a person of normal intelligence would have understood the risks of this slide. “In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.”

Finally, the plaintiff voluntarily confronted the risk.

After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court found that any reasonable jury would find the plaintiff assumed the risk.

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

In a rare issue in a decision, the court found two complete and valid defenses to the plaintiff’s claims. Normally, courts only find one reason to support or over throw a decision and stop there.

So Now What?

A lot of this win for the defendant was based on three things. The plaintiff admitted having gone to water parks and down water slides before, she admitted reading the warning sign at the entrance, and she watched other riders before going down the slide herself. That proved she has knowledge and appreciation of the risk and voluntarily assumed the risk.

The second issue was the defendant hired an expert after just a few incidents to check out its slide. Again, acting prior to the lawsuit was better and probably a lot cheaper in the long run to see if the problem was real or isolated incidents.

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Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Stolting, et al., v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26572

Beth Stolting, et al., Plaintiffs vs. Jolly Roger Amusement Park, Inc. d/b/a Splash Mountain Water Park et al, Defendants

CIVIL ACTION NO. MJG-00-299

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2001 U.S. Dist. LEXIS 26572

August 24, 2001, Decided

August 24, 2001, Filed

SUBSEQUENT HISTORY: Motion granted by Stolting v. Jolly Roger Amusement Park, Inc., 2001 U.S. Dist. LEXIS 26573 (D. Md., Aug. 24, 2001)

Affirmed by Stolting v. Jolly Roger Amusement Park, Inc., 37 Fed. Appx. 80, 2002 U.S. App. LEXIS 11925 (4th Cir. Md., 2002)

CORE TERMS: slide, pool, exit, patrons, ride, riding, water slides, warning, bottom, summary judgment, amusement park, feet, legs, intelligence, splash, depth, posted, notice, bent, risk of injury, moving party, reasonable jury, appreciated, disclaimer, non-moving, shallow, warned, owed, dangerousness, negligently

COUNSEL: [*1] For Beth Stolting, Plaintiff: Paul D Bekman, LEAD ATTORNEY, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD; Andrew M. Moskowitz, William D. Sanders, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Rohan Cassells, Plaintiff: Andrew M. Moskowitz, LEAD ATTORNEY, Alpert Butler and Sanders, P.C., West Orange, NJ.

For Jollyroger Amusement Park, Inc., doing business as Splash Mountain Water Park, Defendant: J Paul Mullen, LEAD ATTORNEY, Phoenix, MD; Kathleen M Bustraan, Ward and Bustraan LLC, Towson, MD.

JUDGES: Marvin J. Garbis, United States District Judge.

OPINION BY: Marvin J. Garbis

OPINION

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

The Court has before it Defendants’ Motion for Summary Judgment and the materials submitted by the parties relating thereto. The Court finds that a hearing is unnecessary.

I. BACKGROUND

A. Plaintiff’s Injury on the Shotgun Slide

On June 2, 1999, Plaintiffs Beth Stolting (hereinafter “Stolting”) and Rohan Cassells 1 (hereinafter “Cassells”), went to the Jolly Roger Amusement Park/Splash Mountain Park (hereinafter the “Park”) in Ocean City, Maryland. Stolting had been to water parks on “fifteen to twenty ” separate occasions and had been on water slides “hundreds of times,” [*2] but had never visited the Park. Stolting Dep. 29.

1 Now her husband and a plaintiff in the case.

At the entrance of the amusement park, a prominent disclaimer was posted. The sign read as follows:

The attractions contained within the Splash Mountain Water[]park are of a participatory nature and, as such, carry with them an inherent risk of injury. All guests agree, as a condition of admission, to use these facilities at their own risk.

Stolting read the sign upon entering the amusement park. She went on several water slides before arriving at the “Shotgun” 2 water slide (hereinafter “slide” or “ride”), which is the slide at issue in the instant case. Stolting Dep. 37. There were no posted instructions on how to ride the slide or any signs warning of the possible dangers posed by the slide. However, there were signs containing height restrictions, signs banning the use of inner tubes, and depth markers displaying the depth of the entry pool 3. Prior to riding the slide, Stolting watched others go down it. As Stolting prepared to go down the slide, she imitated the body positioning of those people who had previously been on the slide. With her knees bent at a “forty degree angle,” Stolting [*3] descended down the slide, hitting the bottom of the exit pool with her feet. Stolting Dep. 39- 40. Stolting does not remember how she landed or the positioning of her legs as she hit the water. Stolting Dep. 40- 41. However, she does allege that she felt her feet “hit the bottom of the pool . . . immediately” upon entering the exit pool. Stolting Dep. 44.

2 Also known as “the Cannonball Slide.”

3 The pool of water at the bottom of the slide is also referred to as the “entry” or “splash” pool.

At that point, Stolting lost her breath. She went to the side of the exit pool and was helped out of the pool and into a chair by lifeguards. At that time, Stolting complained of pain in her back, feet, and legs. The lifeguards gave Stolting ice and suggested that she should go to a hospital.

After resting for ten minutes, Stolting asked Cassells to take her to the Atlantic General Hospital in Ocean City, Maryland. 4 Stolting told the attending physician at the hospital that she was experiencing back and heal pain. The doctor took x-rays of Stolting’s heals, and then “told [her that] if [she] could walk out on crutches that [she] could leave.” 5 [*4] Stolting Dep. 50. Stolting was not given any medication.

4 Stolting never requested an ambulance.

5 No diagnosis was given.

During the next few days, she continued to rest and take Advil. Approximately one week later, Stolting was still experiencing pain and so, she decided to see Dr. Fischer (hereinafter “Fischer”). Fischer diagnosed Stolting with three fractured vertebrae. Stolting was told to remain on Advil and to continue bed rest. Fischer stated that it would take at least six months for her back to heal.

B. Prior Injuries on the Shotgun Slide

In recent years, several other patrons have complained of injuries allegedly sustained while riding the Shotgun slide. In 1997, Myron Custer (hereinafter “Custer”) reported a bruised heel from contacting the bottom of the exit pool of the Shotgun slide. Custer accused the Park of maintaining an unsafe ride.

In 1998, Michael Agnello Jr.(hereinafter “Agnello”), reported receiving injuries from riding the slide. Agnello Affi. After contacting the bottom of the exit pool, Michael complained of bruised legs and walking with a limp for a few days. The Park responded to complaints by stating that a licensed inspector from the Department of Labor Safety [*5] Inspection had investigated the slide and concluded that the slide met all of Maryland’s standards of safety.

C. Procedural Posture

In the Amended Complaint, Plaintiffs sue Defendants, Jolly Roger Amusement Park, Inc., Splash Mountain Water Park, and Bayshore Development Corporation. Plaintiffs allege that the Defendants’ negligence caused Stolting’s injuries. The Defendants deny negligence and assert an affirmative defense of the assumption of risk doctrine. By the instant motion, Defendants seek summary judgment on all claims.

II LEGAL STANDARD

In order for the Court to grant a motion for summary judgment, the evidence submitted to the Court must “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact is one which might affect the outcome of the lawsuit under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The burden of proof weighs heavily on the moving party to establish that there is a lack of evidence in support of the non-moving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party [*6] must demonstrate to the Court that, viewing all of the evidence in the light most favorable to the non-moving party, a reasonable jury could not find in favor of the non-moving party. Anderson, 477 U.S. at 248. If the moving party has carried its burden of proof, then the non-moving party must produce more than a “mere scintilla of evidence in support of an essential element” in order to prevent the court from granting summary judgment. Id. at 251.

III DISCUSSION

A. Negligence claim

The Plaintiffs’ claim is based on three purported acts of negligence:

1) After being put on notice that patrons had been injured on the Shotgun slide, Defendants negligently failed to post signs warning of the dangerousness of the ride;

2) Defendants negligently failed to post instructions on how patrons should position their bodies when riding the slide; and,

3) Defendants negligently provided too shallow an exit pool at the bottom of the slide.

Under Maryland 6 law, Plaintiffs must establish four elements in order to prevail on a negligence claim: 1) that a duty was owed to the Plaintiffs by the Defendants; 2) a breach of that duty owed by the Defendants; 3) a causal relationship between the breach of that duty [*7] and the harm suffered; and 4) that damages were sustained. Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527, 536-36, 568 A.2d 1134 (1990).

6 This case is a diversity action. Since Stolting’s cause of action took place in Maryland, that state’s substantive law applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

1) Failure to Warn of Dangerousness

The Plaintiffs contend that the Park was on notice of the dangerousness of the Shotgun slide and should have posted signs warning of the dangers because other patrons had been injured on the slide. In support of their claim, Plaintiffs rely on prior injuries received by Custer and Agnello while they were on the Shotgun slide. The Plaintiffs maintain that notice of such injuries imposed a duty on the Park to post warning signs next to the ride.

The Plaintiffs argue that, as patrons of the Park, they were owed the highest standard of care. Tennant v. Shoppers Food Warehouse MD Corp., 115 Md.App. 381, 388, 693 A.2d 370 (1997), (citing Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 457, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989)). According to Casper, however, reasonable or ordinary care is the highest standard of care owed to a business invitee. 71 Md. App. at 457. “The general [*8] rule is that the operator of a place of amusement owes to business invitees a non-delegable duty to use ordinary care and caution to keep the premises in a reasonably safe condition.” Hawkins v. Southern Maryland Agricultural Fair Ass’n, 237 Md. 90, 94 (1964), 205 A.2d 286. An amusement park is not an insurer of the safety of persons using devices at the place of amusement, but only a proprietor bound to use ordinary care for the safety and protection of its patrons. See Carlin v. Krout, 142 Md. 140, 147, 120 A. 232 (1923). Hence, the Park’s duty towards its patrons is only to provide “ordinary and diligent care” in keeping the Shotgun slide in a “reasonabl[y] safe condition.” Id. at 146.

At issue is whether the Park breached this duty to provide “ordinary and diligent care” by not posting signs warning of the dangerousness of the Shotgun slide. The Plaintiffs contend that reports of injuries sustained from former patrons who used the ride put the Park on notice that the slide was dangerous. The Plaintiffs base their claim particularly on the testimony of Custer, who was allegedly injured from riding the Shotgun slide in 1997.

When Custer reported his injuries to the Park, he insisted that the slide [*9] was dangerous because the angle of slope was too steep. Custer’s claim is unsubstantiated. Indeed, a licensed inspector from Maryland investigated the ride and found that the Shotgun slide met the safety standards set out by Maryland law. In any event, Custer is by no means qualified to provide admissible opinion testimony that the angle of the slide was “too steep.” Moreover, his opinion is not based on any scientific principles and is no more than his grossly unqualified ipse dixit.

Although the Plaintiffs correctly state that “Maryland has gone almost as far as any state in holding that meager evidence of negligence is sufficient to submit the case to a jury,” the opinion offered by Custer is not enough to take the issue to a jury. State v. Thurston, 128 Md. App. 656, 662, 739 A.2d 940 (1999). The Plaintiffs have not presented evidence sufficient to establish that the Defendants had reason to believe the slide was so dangerous as to require a special warning next to it.

The Park did all it need have done by having the slide evaluated and vouched for by a licensed professional. Moreover, even if the Park were on notice of a dangerous condition posed by the Shotgun slide, the Park adequately warned [*10] patrons of the dangers of water slides by posting a disclaimer at the entrance of the amusement park. Stolting admitted in her deposition that she saw the disclaimer and that although she did not remember what it said, she read it. Stolting Dep. 90. The sign posted at the entrance of the Park expressly warned patrons that all rides within the Water park “carr[ied] with them an inherent risk of injury.” There is no evidence adequate to establish that a pertinent standard of care required additional warnings. Defs.’ Reply to Pls.’ Mot. for Summ. J. at 4.

2) No Posted Instructions

The Plaintiffs argue that the Park had an obligation to post instructions on how to ride the Shotgun slide. They offered Hanst’s purported “expert” opinion in support of this contention that patrons should have been told to keep their knees bent when riding down the slide 7. For the reasons stated in its Memorandum and Order re: Motion In Limine, issued this date, Hanst’s “expert” opinion has been held inadmissible.

7 Plaintiffs claim that riding with straight legs as opposed to bent knees caused the accident.

Moreover, even if Hanst’s opinion were considered, and there has been a duty to warn Plaintiff to keep her [*11] legs bent, the “negligent” failure to give the advice would be irrelevant. Stolting cannot establish causation. Stolting testified that her legs were bent at a “forty-degree angle” as she slid down the slide. Stolting Dep. 39-40. Thus, even if Plaintiffs had established a duty to instruct a breach of that duty, Plaintiffs cannot establish that the failure to instruct was a proximate cause of her injuries.

3) Depth of the Exit Pool

The Plaintiffs argue that the Defendants were negligent because the exit pool at the bottom of the Shotgun slide was too shallow. Plaintiffs base this claim on the opinion of Hanst who asserted that the exit pool should have been eight to ten feet. 8 As held in the Memorandum and Order re: Motion in Limine issued this date, Hanst’s expert opinion is inadmissible.

8 The exit pool is four to five feet deep. Hanst opined that it should have been four to five feet deeper than it was.

Additionally, both Olsen, the engineer, and the inspector from the Department of Inspection and Safety verified that the slide met the safety standards enforced by the state of Maryland. Even Hanst verified in his deposition that there was nothing in the inspector’s or the engineer’s [*12] reports with which he disagreed. In fact, Hanst’s own investigation of the slide, which consisted of riding the slide himself and watching others on the slide, did not produce any findings contradictory to those of the Defendants. Neither Hanst nor any of the people he watched on the slide were injured after making contact with the bottom of the exit pool.

There is no evidence sufficient to prove to a reasonable fact finder that Defendants negligently provided too shallow an exit pool. No reasonable jury could find that the Park was negligent by virtue of having an exit pool with a depth of “only” between four and five feet. 9

9 Indeed, a reasonable jury might even find that an eight to ten foot deep exit pool, as suggested by Hanst, could create a danger of drowning.

B, Assumption of Risk

The Court notes that even if Plaintiffs were able to establish that some negligence by Defendants caused the accident at issue, Defendants would still be entitled to summary judgment.

In Maryland, assumption of risk is an affirmative defense to a claim of negligence. ADM P’ship v. Martin, 348 Md. 84, 91, 702 A.2d 730 (1997). To establish an assumption of risk defense, the Defendants have the burden of demonstrating [*13] that the Plaintiffs: 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily confronted the risk of danger. Id. at 90-91. An objective standard must be used in deciding “whether a plaintiff had knowledge and appreciation of the risk, . . . and a plaintiff . . . [cannot] say that he did not comprehend a risk which must have been obvious to him.” Id. (quoting Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967)). Overall, the question of whether the plaintiff assumed the risk is usually a question for the jury, however, when it is clear that by using an objective test, “a person of normal intelligence in the position of the plaintiff must have understood the danger, the issue is for the court.” Schroyer v. McNeal, 323 Md. 275, 283-84, 592 A.2d 1119 (1991).

1) Knowledge of the Risk of Danger

Stolting’s experience riding water slides establishes that Stolting had knowledge of the risks she faced when she chose to ride the Shotgun slide. “Those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs, [or] hockey pucks . . . .” Prosser and Keeton on the Law of Torts, § 68, at 485-86 (5th ed. 1984). [*14] Moreover, Stolting in fact read the sign warning of the danger.

2) Appreciation of the Risk

If any person of normal intelligence in [one’s same] position would have understood the danger one faced, then one has appreciated the risk. Leakas v. Columbia Country Club, 831 F.Supp. 1231, 1236 (D. Md. 1993). The Court determined in Leakas that a “twenty-six year old, experienced swimmer,” had the “knowledge and appreciation of the risk of diving into shallow water because any person of normal intelligence in Leakas’ position must have understood the danger.” Leakas, 831 F.Supp. at 1236. Moreover in Casper, the court held that a stream covered over by a sheet of ice was an “open and obvious danger,” which every child could understand and appreciate. Casper v. Chas F. Smith & Son, Inc., 71 Md.App. 445, 458, 526 A.2d 87 (1987), aff’d, 316 Md. 573, 578, 560 A.2d 1130 (1989).

In the case at Bar, Stolting’s age, education and experience on water slides clearly establishes that she was able to appreciate the risk.

Plaintiffs, relying on Maryland State Fair and Agricultural Society, Inc., argue that even though Stolting might have had knowledge of a risk based on her experience, she did not appreciate the risk posed by the Shotgun [*15] slide. Md. State Fair and Agric. Soc’y, Inc. v. Lee, 29 Md.App. 374, 380-81, 348 A.2d 44 (1964) (holding that racetrack owners’ negligence in leaving track sandy created a hidden and unforeseeable danger, which caused plaintiff’s injuries). The facts of Maryland State Fair and Agricultural Society, Inc., however, are distinguishable from those in the instant case.

In Maryland State Fair and Agricultural Society, Inc., the Court held that the dangers posed by the negligent conditions (in particular a sandy track) would not necessarily have been comprehended by “any person of normal intelligence in [the plaintiff’s] position.” 29 Md.App. at 381. In the instant case, there is no danger that a person of ordinary intelligence could not have fully appreciated. There is no evidence of any hidden or unforeseeable dangerous condition that caused Stolting’s injuries. In fact, the evidence establishes that the risk posed by the water slide was an open and obvious risk of which Plaintiff (and all other park patrons) was expressly warned. The risk could be, and should have been, appreciated by Stolting and any other reasonable person.

3) Voluntarily Confronted the Risk of Danger

Finally, the Defendants argue that [*16] in addition to knowing and appreciating the risk, Stolting voluntarily confronted the risk. The Defendants rely on the decision in Leakas in which the Court determined that Leakas assumed the risk when he chose to dive into a pool “of unknown depth.” 831 F.Supp. at 1237. Like the plaintiff in Leakas, Stolting “voluntarily encounter[ed] the danger.” Id. After reading the disclaimer at the front of the Park, watching other patrons maneuver themselves down the slide, and relying on her prior experiences on water slides, Stolting chose to ride the Shotgun slide. Of her own free will, Stolting voluntarily made the decision to go on the ride and take her chances even though, as she was specifically warned, the rides in the Park “carry with them an inherent risk of injury.”

The court concludes that any reasonable jury would have to find that Stolting assumed the risk of injury on the Shotgun slide by having knowledge of the risk, appreciating the risk, and voluntarily confronting the risk of danger. Hence, Stolting’s negligence claim, even if viable, would be barred by the assumption of risk doctrine.

IV. CONCLUSION

For the foregoing reasons:

1. [*17] Defendants’ Motion for Summary Judgment is GRANTED.

2. Judgment shall be entered by separate ORDER.

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge

JUDGMENT ORDER

By separate Order issued this date, the Court has granted summary judgment to the Defendants.

Accordingly:

1. Judgment shall be, and hereby is, entered in favor of Defendants JOLLY ROGER AMUSEMENT PARK, INC. d/b/a SPLASH MOUNTAIN WATER PARK and Bayshore Development Corporation against Plaintiffs Beth Stolting and Rohan Cassells dismissing all claims with prejudice with costs.

2. Any and all prior rulings disposing of any claims against any parties are incorporated by reference herein.

3. This Order shall be deemed to be a final judgment within the meaning of Rule 58 of the Federal Rules of Civil Procedure

SO ORDERED this 24th day of August, 2001.

/s/ Marvin J. Garbis

Marvin J. Garbis

United States District Judge


Spectators; they do not sign a release. They may not be able to assume the risk, what duty is owed to a spectator?

Organizers of a rugby tournament owed no duty to spectators at the tournament who were free to do at any time from the dangers and risks of lighting.

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

State: Maryland, Court of Appeals for Maryland

Plaintiff: Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter).

Defendant: United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), Kevin Eager, n2 and Steven Quigg,

Plaintiff Claims: liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes

Defendant Defenses: No duty, Maryland Recreational Use Statute and release signed by the survivor plaintiff/rugby player

Holding:

Year: 2004

This case is a little different for this site; it concerns a rugby game. However, the instrumentality causing the injury was a lighting strike to a player and a spectator.

The plaintiff’s father and son attended a rugby match for the son to play and the father to cheer. A game commenced which the son was playing. The father was on the sidelines watching the game. During the game, a thunderstorm developed and lightning struck in the area. The rugby match was continued even though several other games in the tournament had been ended because of the weather.

Eventually, the match ended. The two plaintiffs’ then ran to some trees where they had left their belongings and took off for their car. On the way, lightning struck killing the father and severely injuring the son.

The plaintiffs were the surviving player and the relatives of the deceased. The defendants were the sponsoring organization, the local organization, the referee association and individual defendants. The plaintiff’s claimed the defendants should have:

(a) Have and implement proper policies and procedures regarding the protection of players and spectators from adverse weather conditions and lightning;

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

Several motions to dismiss were filed and the complaint was amended to defeat the motions. Eventually, the court dismissed the plaintiff’s complaint, and the appellate court stepped in after the dismissal and issued a writ of certiorari removing it from the Court of Special Appeals to the Appellate Court. The Appellate Court is the top court in Maryland, similar to the Supreme Court in other states.

A supreme court rarely issues a writ to remove a case before the intermediary appellate court has had a chance to review the case.

Analysis: making sense of the law based on these facts.

Under Maryland law, the plaintiffs have to prove one or more of the defendants were negligent. That means:

“(1) that the defendant was under a duty to protect the plaintiff from injury,

(2) that the defendant breached that duty,

(3) that the plaintiff suffered actual injury or loss, and

(4) that the loss or injury proximately resulted from the defendant’s breach of the duty

The requirements to prove negligence in Maryland are similar or identical to most other states.

The issue thought court stated was whether a legal duty was owed in this case.

As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.

The first and most important step in determining whether a duty exists is to asses several issues in the relationship between the plaintiff(s) and the defendant(s) to determine if a legal duty is owed.

In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Of these, the major test is one of foreseeability. “The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.”” At the same time, a legal duty does not necessarily exist because of a moral duty.

Even if the foreseeability test is passed by the plaintiff that alone does not prove the existence of a duty.

Duty can be created by ““(1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.”

Whether a duty exists is also based on policy reasons; whether a type of behavior should be encouraged or discouraged for the benefit of all.

The plaintiffs argued that a special relationship existed between the defendants and the injured, the third way a duty is created set forth above. The plaintiff’s argued this based on their idea that a special relationship exists as spectators at sporting events.

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Honestly, I would suspect that most spectators at most sporting events would believe the above to be true.

Here the court did not agree with the idea that a special relationship had been created or existed with spectators.

…the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.”

The court stated that generally, for a duty to exist, there must be an element of dependence, which is lacking in this case. The court raised another case that failed to find a special duty. IN that case a woman died of hypothermia because the emergency telephone operator gave an incorrect address to the policeman looking for the woman.

..“for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing specific reliance by an individual on the telephone operator’s conduct.

There must be an element of ceding self-control by the injured party to the defendant to create a duty which is lacking in the present case.

In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

The court then looked at the risk presented by thunderstorms and found that there was less liability owed by a defendant to the risk created by lightning. The court, quoting another state court found “…risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.”

The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.”

The court agreed with the trial court and found the defendants did not owe a duty to the plaintiffs based on their relationship and because the risks of thunderstorms were known to all.

So Now What?

Would this case have had a different outcome of the plaintiff had paid to attend the event and was at a specific location because the defendant told the spectator they paid to be at that location, or they were only allowed at a particular location?

In this case, the plaintiffs were free to leave the tournament at any time.

Spectators create a very different risk for event organizers. Do spectators at ski races understand a skier can leave the course and hit them? Do spectators at any match with a ball understand the ball always leaves the field of play and can cause injury to them?

Bicycle races are famous for spectators being allowed on the track where they commonly interfere with racers, but do they understand that they may also receive an injury by being there.

However, once the event organizer attempts to provide additional safeguards or warnings for the spectators, they may change the relationship between themselves and the spectators crating liability. You can protect the participants in the event, match or race and at the same time provide protection to spectators, but providing protection for spectators may increase your liability and in some cases increase the risk to players of the game.

Spectators for a risk manager are a difficult risk to understand and deal with.

What do you think? Leave a comment.

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Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

Judith Edwards Patton, Individually, and as the surViving Spouse of Donald Lee Patton, and as Personal Representative and Executor for the Estate of Donald Lee pattOn, et al. V. United States of America Rugby Football, Union, ltd. D/b/a USA Rugby, et al.

No. 113, September Term, 2003

Court of Appeals of Maryland

381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308

June 10, 2004, Filed

Prior History: [***1] Appeal from the Circuit Court for Anne Arundel County pursuant to certiorari to the Court of Special Appeals. Rodney C. Warren, JUDGE.

Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339, 2004 Md. LEXIS 61 (2004)

Disposition: Affirmed.

Headnotes: Torts – Negligence – Duty – Special Relationship

An amateur rugby player and his father, who was a spectator, were struck by lightning at a rugby tournament. The player was injured and the spectator killed. Various members of the family filed suit alleging negligence against the rugby tournament organizers, the game referee, and related organizations for not taking precautions to avert the incident.

Held: The element of dependence and ceding of control by the injured party that is needed to find a “special relationship” is absent in this case. Our decision is consistent with our view of narrowly construing the “special relationship” exception so as not to impose broad liability for every group activity. The rugby player and spectator were free to leave the voluntary, amateur tournament at any time and their movements were not restricted by the tournament organizers. An amateur sporting event is a voluntary affair, and the participants are capable of leaving the field under their own volition if they feel their lives are in danger. The changing weather conditions were visible to all competent adults. The spectators and participants could have sought shelter at any time they deemed it appropriate to do so. It is unreasonable to impose a duty on the organizers of amateur outdoor events to warn spectators or adult participants of a weather condition that everyone present is fully able to observe and react to on his or her own. The approach of a thunderstorm is readily apparent to reasonably prudent adults and, therefore, it is every adult ‘s responsibility to protect himself or herself from the weather. There was no “special relationship” and, therefore, no legal duty to protect spectators and participants from the storm.

Counsel: Argued by W. David Allen of Crofton, MD. for Appellants.

Argued BY Kristine A. Crosswhite (Crosswhite, McKenna, Limbrick & Sinclair, LLP of Baltimore, MD) on brief for Appellees.

Judges: Bell, C.J., Raker, Wilner, Cathell, Harrell, Battaglia, Greene, JJ.

Opinion by Harrell, J. Bell, C.J., joins in judgment only.

Opinion by: Harrell

Opinion:

[*630] [**567] Opinion by Harrell, J.

On 17 June 2000, Robert Carson Patton, II, and his father, Donald Lee Patton, while at an amateur rugby tournament in Annapolis, were struck by lightning. Robert, a player in the tournament, was seriously injured, but survived. Donald, a spectator watching his son play, died. Robert and various other members of the Patton family filed suit in the Circuit Court for Anne Arundel County alleging negligence against the rugby tournament organizers, referee, and related organizations with regard to the episode.

Defendants filed Motions to Dismiss arguing they owed no legal duty to Robert and Donald Patton. A hearing was held and, on 10 July 2003, the Circuit Court dismissed the action. The Patton family appealed. This Court, on its own initiative and before the appeal could be decided in the Court of Special Appeals, issued a writ of certiorari to determine whether any of the defendants, under the circumstances alleged in the complaint, owed a legal duty [***2] to Robert and Donald Patton. Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339 (2004).

I.

A. The Lightning Strike

Based on Appellants’ amended complaint, we assume the [*631] truth of the following factual allegations: n1

[**568] Sometime during the early morning of 17 June 2000, Robert and Donald Patton arrived at playing fields adjacent to the Annapolis Middle School in Anne Arundel County, Maryland. Robert was to play rugby for the Norfolk Blues Rugby Club. Donald intended to support his son as a spectator. Robert and Donald, along with other participants and spectators, placed their equipment and belongings under a row of trees adjacent to the playing fields.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 See Valentine v. On Target, Inc., 353 Md. 544, 548, 727 A.2d 947, 949 (1999) (“as the result of the trial court’s granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well- pleaded facts and any reasonable inferences that can be properly drawn therefrom”) (citations omitted).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***3]

The rugby tournament was coordinated by Steven Quigg and was sanctioned by the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby, and Mid-Atlantic Rugby Football Union, Inc. Rugby matches involving over two dozen teams began at approximately 9:00 a.m. and were planned to continue throughout the day. It was a warm, muggy day. The weather forecast for Annapolis was for possible thunderstorms. At some point prior to the start of the twenty minute match between the Norfolk Blues and the Washington Rugby Football Club (“the match”), a thunderstorm passed through the area surrounding the Annapolis Middle School. At the start of the match, rain commenced; lightning could be seen and thunder could be heard proximate to the lightning flashes. By this time, the National Weather Service had issued a thunderstorm “warning” for the Annapolis area.

Kevin Eager, a member of the Potomac Society of Rugby Football Referees, Inc., was the volunteer referee for the afternoon match in which Robert Patton was a participant. Under the direction of Eager, the match continued as the rain increased in intensity, the weather conditions deteriorated, and the lighting flashed directly overhead. [***4] Other matches at [*632] the tournament ended. Robert Patton continued to play the match through the rain and lightning and his father continued to observe as a spectator until the match was stopped just prior to its normal conclusion.

Upon the termination of the match, Robert and Donald fled the playing fields to the area under the trees where they left their possessions. As they began to make their exit from under the trees to seek the safety of their car, each was struck by lightning. Donald died. Robert Patton sustained personal injuries and was hospitalized, but recovered.

B. Circuit Court Proceedings

Appellants here and Plaintiffs below are Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter). They sued the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), [***5] Kevin Eager, n2 and Steven Quigg, alleging that Defendants were liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 Kevin Eager never was served with process.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Appellants alleged that Appellees each had a duty to, but failed to, do one or more of the following acts:

“(a) Have and implement proper policies and procedures regarding the protection [**569] of players and spectators from adverse weather conditions and lightning; [*633]

“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;

“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;

“(d) Terminate the rugby match and tournament when lightning is present;

“(e) Monitor and detect dangerous conditions [***6] associated with its matches; and

“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”

On 26 August 2002, the Referees’ Society filed a Motion to Dismiss all claims pending against it on the ground that the Referees’ Society owed no tort duty to Robert or Donald Patton as a matter of law. Thereafter, on 16 September 2002, USA Rugby, MARFU, and Steven Quigg filed a joint Motion to Dismiss in which they adopted the arguments of the Referees’ Society and advanced the additional argument that Maryland’s Recreational Land Use Statute, found in Maryland Code (1974, 2000 Repl. Vol., 2003 Supp.), § 5-1101, et seq. of the Natural Resources Article, conferred tort immunity on them for injuries arising from recreational use of premises, i.e., playing rugby on the Annapolis Middle School fields. n3

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 PRU was not served with process at the time that USA Rugby, MARFU, and Mr. Quigg filed their Motion to Dismiss and, consequently, PRU was not included in that motion as a moving party. PRU timely filed an Answer to Appellants’ original Complaint on 15 October 2002, and thereafter, was included as a moving party on all pending defense motions.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***7]

Appellants, on 30 December 2002, filed an amended complaint. On 9 January 2003, USA Rugby, MARFU, PRU, and Mr. Quigg filed a second Motion to Dismiss, or in the alternative, for Summary Judgment. The Motion to Dismiss argued that: (1) Appellees owed the Pattons no legally cognizable tort duty as a matter of law; (2) Appellees are immune from tort liability under Maryland’s Recreational Land Use Statute; [*634] and (3) the claims of Robert were barred by waiver. On 13 January 2002, the Referees’ Society also filed a Motion to Dismiss the amended complaint.

The pending motions were heard on 5 February 2003. The Circuit Court, subsequently, issued an order granting the pending motions to dismiss and, on 17 November 2003, issued a Memorandum Opinion explaining the reasons for the dismissal.

Based on Maryland precedents and caselaw from other jurisdictions, the Circuit Court concluded that Appellees did not owe a duty of care to Robert or Donald Patton. The Circuit Court noted generally that courts in other jurisdictions have found that “landowners” or their equivalent do not have a duty to warn invitees of the risk of lightning. As regards Donald Patton, the Circuit Court stated:

“Decedent [***8] Donald Patton was a nonpaying spectator at a rugby match organized and overseen by [Appellees]. There is no indication from the record that Decedent had entrusted himself to the control and protection of [Appellees], indeed he was free to leave the tournament at any time. Additionally, there is no indication that he had lost the ability to monitor changing weather conditions and act accordingly. While [Appellants] allege the storm began near the beginning of the match, it was not until the conclusion of the game, that Decedent and plaintiff Robert Patton, attempted to escape the storm by running towards [**570] the tree line adjacent to the open field to retrieve their belongings. It was here that both were struck by lightning.

“The inherently unpredictable nature of weather and the patent dangerousness of lightning make it unreasonable to impose a duty upon [Appellees] to protect spectators from the type [of] injury that occurred here.”

As regards Robert Patton, the Circuit Court stated that “while it is arguable that [Appellees] had a greater duty to protect plaintiff Robert Patton, a player/participant from injury, they were under no duty to protect and warn him of [***9] lightening strikes and other acts of nature.” The hearing [*635] judge relied on cases from other jurisdictions involving lightning strikes on golf courses to conclude that “lightning is a universally known danger created by the elements” and, in the absence of evidence that Appellants created a greater hazard than brought about by natural causes, there is no duty to warn and protect. The Circuit Court expressly rejected as grounds for its grant of Appellees’ motions to dismiss both Maryland’s Recreational Land Use Statute, and waiver argument based on language contained in Robert Patton’s alleged execution of a USA Rugby Participant Enrollment Form. This appeal follows, therefore, from a dismissal of the amended complaint based solely on the ground that there was no legal duty owed to Robert or Donald Patton. Appellants present the following question for our consideration:

Did the trial court err, when it found that Appellees had no duty to protect Appellants from lightning injuries and granted Appellees’ motions to dismiss for failure to state a claim upon which relief can be granted?

II.

Maryland Rule 2-322(b)(2) provides for the filing of a motion to dismiss for failure to state a [***10] claim upon which relief can be granted. We have stated that:

The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted. . . . It will be affirmed if the record reveals any legally sound reason for the decision.

Valentine v. On Target, Inc., 353 Md. 544, 548-49, 727 A.2d 947, 949 (1999) (citations omitted).

III.

A.

For a plaintiff to state a prima facie claim in negligence, he or she must prove the existence of four elements by [*636] alleging facts demonstrating

“(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montgomery Co., 370 Md. 447, 486, 805 A.2d 372, 395 (2002), and cases cited therein). Generally, whether there is adequate proof of the required [***11] elements to succeed in a negligence action is a question of fact to be determined by the fact-finder. The existence of a legal duty, however, is a question of law to be decided by the court. Valentine, 353 Md. at 549, 727 A.2d at 949. As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person [**571] owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. . . . As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (1997) (quoting West Virginia Cent. & P.R. v. State ex rel. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). [***12] “Our analysis of a negligence cause of action usually begins with the question of whether a legally cognizable duty existed.” Remsburg , 376 Md. at 582, 831 A.2d at 26.

When assessing whether a tort duty may exist, we often have recourse to the definition in W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 (5th ed. 1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular [*637] standard of conduct toward another.” Id. In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.

Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) [***13] (citation omitted). Where the failure to exercise due care creates risks of personal injury, “the principal determinant of duty becomes foreseeability.” Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 535, 515 A.2d 756, 760 (1986) (citations omitted). The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.” Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 348, 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George’s County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986)).

In determining whether a duty exists, “it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party.” Valentine, 353 Md. at 550, 727 A.2d at 950. “While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law.” Remsburg, 376 Md. at 583, 831 A.2d at 26. As we clarified [***14] in Ashburn: the fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a “special relationship” exists either between [*638] the actor and the third person or between the actor and the person injured. Ashburn, 306 Md. at 628, 510 A.2d at 1083 (citations omitted). In addition, “a tort [**572] duty does not always coexist with a moral duty.” Jacques, 307 Md. at 534, 515 A.2d at 759 (citing W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 56 (5th ed. 1984)). We have held that such a “special duty” to protect another may be established “(1) by statute or rule; (2) by contractural or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.” Bobo, 346 Md. at 715, 697 A.2d at 1376 (internal citations omitted).

B.

Appellants allege that a “special relationship” existed between Appellees (USA Rugby, MARFU, [***15] PRU, the Referees’ Society, and Steven Quigg) and Robert and Donald Patton sufficient to recognize the existence of a duty to protect the latter, the breach of which gave rise to an action for negligence.

Appellants argue that:

A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as []long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .

Appellants essentially contend that the tournament organizers had a duty to protect Robert and Donald, and to extricate them, from the dangers of playing in and viewing, respectively, a sanctioned rugby match during a thunderstorm. [*639] Appellees counter that [***16] “there is no ‘special relationship’ between Mr. Patton, Sr., Mr. Patton and the Appellees which would require the Appellees to protect and warn these individuals of the dangers associated with lightning.” Appellees argue that they “had no ability to control the activities of players or spectators at any time,” and “there is no evidence in the record that Mr. Patton, Sr. and Mr. Patton were dependent upon or relied upon the Appellees in any way, shape or form.”

We said in Remsburg that “the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.” Remsburg, 376 Md. at 589-90, 831 A.2d at 30. We conclude that Appellants here did not establish by either of these methods a triable issue as to the existence of a “special relationship.” Id.

In Remsburg, among other issues, we focused on whether a “special relationship” was created because of an implied or indirect relationship between the parties. [***17] Id. We held that the leader of a hunting party was under no special duty to protect a property owner who was shot by a member of the leader’s hunting party. We found insufficient the relationship of dependence between the leader of the hunting party and the injured property owner. This meant there was no duty on the part of the leader to protect the property owner from being accidentally shot by a hunting party member. 376 Md. at 593, 831 A.2d at 33. In holding that the inherent nature of the relationship between the parties did not give rise to a “special relationship” and, hence, a tort duty, we again approved [**573] the traditional “special relationships” that consistently have been associated with the “special relationship” doctrine. 376 Md. at 593-94, 831 A.2d at 32-33. We adopted previously as Maryland common law § 314A of the Restatement, entitled “Special Relations Giving Rise to a Duty to Aid or Protect,” which provides that:

[*640] (1) [a] common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm . . . .

(2) An innkeeper is under a similar duty to his guests.

(3) [***18] A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Restatement (Second) of Torts § 314A (1965); see Southland Corp. v. Griffith, 332 Md. 704, 719, 633 A.2d 84, 91 (1993). Although the foregoing list is not exhaustive, our caselaw where we have found a duty arises consistently requires an element of dependence that is lacking in the present case. See, e.g., Todd v. Mass Transit Admin., 373 Md. 149, 165, 816 A.2d 930, 939 (2003) (finding that an employee of a common carrier has a legal duty to take affirmative action for the aid or protection of a passenger under attack by another passenger); Southland, 332 Md. at 720, 633 A.2d at 91 (finding that a convenience store, through its employee and by virtue of a special relationship between the business and its customers, owed a legal duty to a customer being [***19] assaulted in store parking lot to call the police for assistance when requested to do so).

As stated in Remsburg, “while we have permitted some flexibility in defining this limited exception, such as including the employer-to-employee relationship and also that of business owner-to-patron, we have been careful not to expand this class of ‘special relationships’ in such a manner as to impose broad liability for every group outing.” Remsburg, 376 Md. at 594, 831 A.2d at 33. Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002), we declined to recognize that a “special relationship” existed between two child victims of the sequelae of a domestic dispute and an emergency telephone operator. In Muthukumarana, the operator, [*641] a police services aide, received a frantic call from Ms. Muthukumarana reporting that her husband had assaulted her in their house and then run upstairs. 370 Md. at 468-70, 805 A.2d at 384-86. The police services aide talked with Ms. Muthukumarana on the phone for one minute and forty seconds until the husband returned downstairs and shot and killed the two children huddled at her side [***20] and then himself. Id. Ms. Muthukumarana sued the police services aide and her supervisors alleging that they had a tort duty of care to the decedent children and herself and that that duty was breached by, among other things, a failure to timely advise her to leave the premises. Id.

In Fried v. Archer, the companion case to Muthukumarana, we also declined to find that a “special relationship” existed between a woman who died of hypothermia due to exposure to the elements and an emergency telephone system operator who erroneously reported the location of the woman to police officers on patrol who therefore failed to discover the victim before her demise. In Fried, a communications officer employed by the Harford County Sheriff’s Office received an anonymous [**574] call n4 reporting a female laying semi- conscious in the woods behind a particular building. 370 Md. at 458, 805 A.2d at 379. The communications officer, however, provided police officers with the wrong location of the woman. 370 Md. at 460, 805 A.2d at 379. The responding officers were unable to locate the victim, who died of hypothermia. 370 Md. at 460, 805 A.2d at 380. [***21] The decedent’s mother sued the communications officer and her supervisors alleging that they had a tort duty of care to the decedent and that that duty was breached by the failure to provide the police officers with the decedent’s correct location. 370 Md. at 461, 805 A.2d at 380.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 The call, it turned out, was placed by one of the young men who caused the young woman to become unconscious and placed her in the vulnerable location outdoors on a cold, rainy night.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

We applied the “special relationship” doctrine to the circumstances surrounding the emergency telephone operators in both cases and held that no “special relationship” existed [*642] between them and the plaintiffs. 370 Md. at 486, 805 A.2d at 395. We reasoned that for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing [***22] specific reliance by an individual on the telephone operator’s conduct. 370 Md. at 496, 805 A.2d at 401.

The element of dependence and ceding of self-control by the injured party that is needed under Remsberg and Muthukumarana/Fried is absent in the present case. n5 There is no credible evidence that the two adults, Robert and Donald Patton, entrusted themselves to the control and protection of Appellees.

Accordingly, we follow our admonition in Remsburg to avoid expanding the “special relationship” exception in such a manner as to impose broad liability for every group activity. Remsburg, 376 Md. at 594, 831 A.2d at 33. Our decision here, in line with Remsberg and Muthukumarana/Fried, is consistent with our view of narrowly construing the “special relationship” exception.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n5 There may be a degree of dependency and ceding of control that could trigger a “special relationship” in, for example, a Little League game where children playing in the game are reliant on the adults supervising them.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***23]

Of the relevant cases from our sister states, we find Dykema v. Gus Macker Enters., Inc., 196 Mich. App. 6, 492 N.W.2d 472 (Mich. Ct. App. 1992) to be particularly persuasive in the present case. In Dykema, the Michigan Court of Appeals held that the sponsors of an outdoor basketball tournament had no duty to warn a tournament spectator of an approaching thunderstorm that ultimately caused his injury. Dykema, 492 N.W.2d at 474-75. A thunderstorm struck the area of the tournament. The plaintiff, while running for shelter, was struck by a falling tree limb and paralyzed. Dykema, 492 N.W.2d at 473.

Like Maryland, Michigan recognizes the general rule that there is no tort duty to aid or protect another in the absence [*643] of a generally recognized “special relationship.” Dykema, 492 N.W.2d at 474. The Michigan court stated that:

The rationale behind imposing a legal duty to act in these special relationships is based on the element of control. In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is [***24] imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular [**575] case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.

Id. (citations omitted). Like the situation of the plaintiff and tournament sponsors in Dykema, Appellants here cannot be said to have entrusted themselves to the control and protection of the rugby tournament organizers. Id. ( “Plaintiff was free to leave the tournament at anytime, and his movements were not restricted by Defendant.”). We do not agree that, as Appellants argue, “the participants in the tournament, in effect, cede control over their activities to those who are putting on the event.” Robert and Donald Patton were free to leave the voluntary, amateur tournament at any time and their ability to do so was not restricted in any meaningful way by the tournament organizers. An adult amateur sporting event is a voluntary affair, and the participants are capable of leaving the playing field on their [***25] own volition if they feel their lives or health are in jeopardy. The changing weather conditions in the present case presumably were observable to all competent adults. Robert and Donald Patton could have sought shelter at any time they deemed it appropriate to do so. n6

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n6 The Dykema court continued its reasoning by assuming that, “even if [Dykema] had succeeded in establishing that a special relationship existed . . . we are unable to find precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to warn a spectator of approaching severe weather.” Dykema, 492 N.W.2d at 475. Citing Hames v. State, 808 S.W.2d 41, 45 (Tenn. 1991), the Michigan Court of Appeals alternatively held that, because the “approach of a thunderstorm is readily apparent to reasonably prudent people . . . it would be unreasonable to impose a duty . . . to warn . . . of a condition that the spectator is fully able to observe and react to on his own.” Id.

There is a line of cases, not dependent on analysis of whether a special relationship existed, that rely on the ability of competent adults to perceive the approach of thunderstorms and to appreciate the natural risks of lightning associated with thunderstorms to justify finding no breach of an ordinary duty of care owed to a plaintiff, whether that duty is recognized by common law, undertaken by the conduct of a defendant, or implied from the conduct of a defendant. For example, in Hames, the Supreme Court of Tennessee held that the State’s failure to provide lightning proof shelters and lightning warning devices at a State-owned golf course was not actionable in negligence. Hames, 808 S.W.2d at 45. Like Robert and Donald Patton, the golfer in Hames began to play his sport of choice on an overcast day. On the day that the golfer was struck by lightning, no signs were posted informing patrons what to do in the event of a thunderstorm and no effort was made to clear the golf course by course employees. Hames, 808 S.W.2d at 42. Approximately 25 minutes after the golfer began to play golf, a thunderstorm moved through the area. He was struck and killed by lightning while seeking cover on a small hill underneath some trees.

The plaintiff in Hames argued that the U.S. Golf Association’s Rules and Regulations created a golf course standard of care that required posting of lightning warnings and precautions. Hames, 808 S.W.2d at 43. The plaintiff’s argument in Hames is analogous to Appellants’ argument in the present case, i.e., the National Collegiate Athletic Association guidelines constitute a lightning safety standard of care for outdoor sporting events.

As well as finding no proximate cause, the Tennessee Court found that the “risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.” Hames, 808 S.W.2d at 45. The Court noted that it would have taken the decedent golfer two minutes to reach the relative safety of the clubhouse, but instead he remained on the golf course. Id. The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.” Id. Accordingly, even though the State, as owner-operator of the golf course, owed Hames a general duty “to exercise reasonable care under all the attendant circumstances to make the premises safe . . . the defendant’s conduct did not fall below the applicable standard of care.” Hames, 808 S.W.2d at 44-46.

In Caldwell v. Let the Good Times Roll Festival, 717 So. 2d 1263, 1274 (La. Ct. App. 1998), the Louisiana Court of Appeals held that the City of Shreveport and two co-sponsors of an outdoor festival had neither a general nor specific duty to warn spectators of an approaching severe thunderstorm that caused injuries due to its high winds. The court in Caldwell observed that:

Most animals, especially we who are in the higher order, do not have to be told or warned about the vagaries of the weather, that wind and clouds may produce a rainstorm; that a rainstorm and wind and rain may suddenly escalate to become more severe and dangerous to lives and property. A thundershower may suddenly become a thunderstorm with destructive wind and lightning. A thunderstorm in progress may escalate to produce either or both tornadoes and hail, or even a rare and unexpected micro burst . . . all of which are extremely destructive to persons and property. Caldwell, 717 So. 2d at 1271. See also Seelbinder v. County of Volusia, 821 So. 2d 1095, 1097 (Fla. Dist. Ct. App. 2002) (“We begin by joining the almost universally agreed view that the County, in its capacity as “landowner” or the equivalent, did not have a duty to warn invitees, including beachgoers that there was a risk of being struck by lightning.”) (citations omitted); Grace v. City of Oklahoma City, 1997 OK CIV APP 90, 953 P.2d 69, 71 (Okla. Civ. Ct. App. 1997) (“Lightning is a universally known danger created by the elements. [The golf course owner] has no duty to warn its invitees of the patent danger of lightning or to reconstruct or alter its premises to protect against lightning[,]” and “all persons on the property are expected to assume the burden of protecting themselves from them.”); McAuliffe v. Town of New Windsor, 178 A.D.2d 905, 906, 577 N.Y.S.2d 942 (N.Y. App. Div. 1991) (upon the commencement of rain and thunder, the danger of lightning was admittedly apparent to plaintiff and there is no special duty to warn a specific swimmer against a condition that is readily observable by the reasonable use of one’s senses). The reasoning in the foregoing cases, although not explicated in terms of special relationship analysis as such, is consistent with the result reached in the present case.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [***26]

[*645] [**576] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

Chief Judge Bell joins in the judgment only.


States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

Parent’s signed a release to drop kids off at a “kids’ club” while they shopped in the defendant’s store (wholesale club). The release was in the agreement to use the club. Also included in the agreement was an indemnification clause which the court did not rule on.

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Date of the Decision: November 27, 2013

Plaintiff: (Original) Russell Rosen, et. al.

Defendant: (Original) BJ’s Wholesale Club, Inc.

Plaintiff Claims: Defendant had a duty to exercise reasonable care to protect its patrons in the play area from injury. Defendant agents and employees knew or should have known that placing an elevated play structure directly over carpet adhered to a concrete floor would pose a danger to children playing there. Defendant breached its duty of care by placing.

Defendant Defenses: Release and indemnification

Holding: For the defendant (plaintiff in the appeal)

In this Maryland Supreme Court decision, the party named first in the citation to the case is the party that appealed the lower-court opinion. So the original defendant is the party that appealed the decision in the last court and thus is listed as the plaintiff in the citation.

The defendant is a wholesale club. Generally, you pay a yearly fee to shop in the club which sells items for lower prices. As an incentive, this club had a play area called the BJ’s Incredible Kids’ Club. To be able to leave your kids at the club while you shopped you had to sign “BJ’s Incredible Kids’ Club Rules.”

The rules contained a release and indemnification clause.

In the kid’s club, there was an elevated plastic play apparatus called Harry the Hippo. Harry the Hippo was approximately 38” high at its peak. The injured plaintiff was a five-year-old boy who fell off the hippo landing on the floor. The floor was carpeted with no padding covering concrete. The young boy suffered a severe “acute epidural hematoma.” This required surgery to save his life.

The family sued. The trial court dismissed the plaintiff’s complaint based on the release. The next level of court in Maryland, the Court of Special Appeals, reversed the trial court. The case was appealed and accepted by the highest court, in this case the Court of Appeals of Maryland.

Summary of the case

The court first examined the club agreement which contained the release. The release language was just one paragraph long but did contain a clause which released the negligence of the club. The agreement also had rules, one of which was you could not leave your kid in the club for more than 90 minutes.

Right below the release, or exculpatory clause as it was called by the court, was an indemnification clause. The indemnification clause was in smaller font but printed in bold right above the signature line.

The court then worked through the requirements for releases to be valid in Maryland as reviewed by the lower courts in their decisions.

Generally, Maryland Courts will uphold exculpatory clauses that are executed by adults on their own behalf. “There are circumstances, however, under which the public interest will not permit an exculpatory clause in a contract.” “Public policy will not permit exculpatory agreements in transactions affecting the public interest.” “The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

The court then specifically reviewed exculpatory clauses under Maryland law.

An exculpatory clause is a “contractual provision relieving a party from liability resulting from a negligent or wrongful act.” By entering into an exculpatory agreement, “the parties expressly . . . agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.”

…”[i]n the absence of legislation to the contrary, exculpatory clauses are generally valid, and the public policy of freedom of contract is best served by enforcing the provisions of the clause.” We also have opined that exculpatory clauses are to be construed strictly, requiring that the language of any such clause “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

The court then reviewed when exculpatory clauses would not be upheld in Maryland. An exculpatory will not protect from liability from intentional harm or extreme forms of negligence. Extreme forms of negligence are generally referred to herein as greater than normal negligence and in Maryland include reckless, wanton or gross negligence.

Second an exculpatory clause cannot be part of a contract that was the product of grossly unequal bargaining power. That means when a party has no choice but to sign the agreement, because that person has no bargaining power so that he is at the mercy of the other’s negligence.

Remember, for the argument of unequal bargaining power to be a valid defense to a release, the agreement must be for something necessary for the health, welfare or safety of the person signing the agreement. Baby sitting or recreational activities are not such necessities that create a true unequal bargaining power that would void a release.

The final group that would void a release are transactions affecting the public interest. Transactions affecting the public interest seem to be very similar to the unequal bargaining power argument, but are viewed by the court from the context of why rather than who. Two were not at issue in this case; public service obligations such as an agreement between a consumer and an electric company and “other transactions “so important to the public good that an exculpatory clause would be patently offensive.”” The example the court gave to explain the second type of contract was in the reverse; an agreement between a health club and a consumer “of no great public importance or practical necessity.”

The court went into depth is reasoning on rejecting the public service obligation because it was the basis for the dissent in the case from two other justices.

The third category of public service exceptions to releases, the court and the dissent stated were not easily defined. In a prior Maryland case, this exception was developed by referring to the California decision in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963). However, the court found that Tunkl was not valid in defining this exception.

We declined, however, to adopt the Tunkl factors, determining that the “fluid nature of the public interest” renders strict reliance on “the presence or absence of six fixed factors” arbitrary and inappropriate. We recognized, instead, that while the factors may be persuasive to evaluate the public interest, “[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”

The best description the court could identify was “societal expectations.” These expectations are best found by looking at the statute and common law. Here the court examined the laws defining the relationship between the parent and the child. Under Maryland law, the parents are given almost absolute control over the acts, welfare, growth and raising of their child. The presumption in Maryland is the parents are going to act in the best interest of the child.

The societal expectation that parents should make significant decisions pertaining to a child’s welfare is manifest in statutes that enable parents to exercise their authority on behalf of their minor child in the most important aspects of a child’s life, including significant physical and mental health decisions. Parents are empowered, on behalf of their children to: consent to medical treatment, consent to having their children give blood, consent to the use of a tanning device by their child, and to authorize another family member to consent to the immunization of a minor child. Parents are also empowered to commit a child, under certain conditions, to: a public or private service that provides treatment for individuals with mental disorders, as well as a private therapeutic group home that provides access to a range of diagnostic and therapeutic mental health services.

Parents also are empowered to permit a fifteen to seventeen-year old child to marry.” Based on the court’s review of these and other statutes, the court found parents in Maryland were empowered to make significant decisions on behalf of children. The next argument was then whether the courts had a duty or obligation to step in and replace the decision making of a parent and when.

The major argument to support this argument is courts in Maryland approve settlements affecting children who were injured as plaintiffs in lawsuits. This is normal in most states and has been developed for many reasons; the main one is to prevent a negligent defendant from taking advantage of a naïve or unknowing parent. However, in Maryland there were exceptions to this law, which allowed parents to settle some claims without judicial review. Based on that exception the court found this argument was not controlling.

We conclude, therefore, that Mr. Rosen’s execution of an exculpatory agreement on behalf of Ephraim to allow him to use the Kids’ Club was not a transaction affecting the public interest within the meaning of Wolf, which otherwise would have impugned the effect of the agreement.

The next argument presented by the injured parties was a commercial entity was better able to bear the risk of loss by purchasing insurance than these parents. The court found several flaws with this argument. Basically, was who was going to determine what a commercial enterprise was. The court used this example to make its point.

For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied?

The final argument was that the state had a parens patriae obligation to the children of the state. Parens patriae is the legal power of the state to protect those who do not have the legal authority to protect themselves. Minor’s incapacitated adults or adults who mental status is not at the state’s minimum level.

However, under Maryland law the obligation of the state under parens patriae only arises if the parental rights have been abrogated pursuant to a statute. No statute required the courts to intervene, and no statute had removed the injured minor from the legal authority of his parents. Finally, parens patriae is applied when a minor has been adjudicated or become involved in the juvenile delinquency system, which was not present in this case.

The court reversed the lower court’s ruling and sent the case back to the trial court for dismissal.

So Now What?

Maryland now joins the slowing growing ranks of states that allow a parent to sign a release and give up their minor child’s right to sue.

For a complete list see: States that allow a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

BJ’s Wholesale Club, Inc. v. Russell Rosen, Individually, etc., et al.

No. 99, September Term, 2012

COURT OF APPEALS OF MARYLAND

435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

November 27, 2013, Filed

PRIOR HISTORY: Certiorari to the Court of Special Appeals (Circuit Court for Baltimore County), Thomas). Bollinger JUDGE.

Rosen v. BJ’s Wholesale Club, Inc, 206 Md. App. 708, 51 A.3d 100, 2012 Md. App. LEXIS 100 (2012)

DISPOSITION: [***1] JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. RESPONDENT TO PAY COSTS.

COUNSEL: ARGUED BY Christopher R. Dunn (Jeffrey T. Brown, DeCaro, Doran, Siciliano Gallagher & DeBlasis, LLP of Bowie, MD) on brief FOR PETITIONER.

ARGUED BY Ari S. Casper (Denis C. Mitchell, Stein. Mitchell, Muse & Cipollone, LLP of Washington, DC) on brief FOR RESPONDENT.

Amicus Curiae brief of the Maryland Association for Justice, H. David Leibensperger, Esquire, Berman, Sobin, Gross, Feldman & Darby, LLP, Towson, MD 21204.

JUDGES: ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, and *Raker, Irma S. (Retired, Specially Assigned), JJ. Opinion by Battaglia, J. Adkins and McDonald, JJ., dissent.

OPINION BY: Battaglia

OPINION

[**346] [*716] Opinion by Battaglia, J.

This case requires us to consider the enforceability of a clause, which contained both an exculpatory provision and indemnification language, in an agreement executed by a parent on behalf of his minor son permitting his son’s use of a free supervised play area called the “Incredible Kids’ Club” (Kids’ Club) offered by BJ’s Wholesale Club, Inc. (BJ’s), a commercial wholesale retail center at its location in Owings Mills, Maryland. The Kids’ Club contained a number of different amusement items, including, for instance, a plastic apparatus called “Harry the Hippo” for children to use while their parents shopped.

To use the Kids’ Club, BJ’s requires parents to sign an agreement, entitled “BJ’s Incredible Kids’ Club Rules” mandating usage restrictions1 and, more pertinent to this matter, also contains an exculpatory [***2] clause that provides that:

I hereby acknowledge that the participation in BJ’s Incredible Kids Club (the “Play Center”) is a benefit offered to me [*717] as a part of my BJ’s Wholesale Club membership. I further acknowledge that I have read, understood and I voluntarily agree to abide by all of the rules appearing above and/or rules as posted in the Play Center and registration area. In consideration for this service, I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc.; its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or [**347] indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents, employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring [***3] any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns.

Immediately below in the same paragraph is found an indemnification clause:

I further agree to indemnify, defend and hold harmless BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns from any claims or causes of action of any kind arising from my or my child’s use of the Play Center. By placing my signature below, I acknowledge and agree that I have read this agreement, understood all of the terms and conditions contained herein, and that this agreement will be in full force and effect during each of my or my child’s visit to the Play Center. This agreement shall remain in full force and effect at all times whether my child is dropped off at the Play Center by me or any one else.

[*718] This language appears in smaller font than the remaining agreement, but is printed in bold letters just above the line for the parent or guardian’s signature.2

1 These rules included, inter alia, that the Kids’ Club was to [***4] be used only by toilet trained children, it was to be used for a maximum of ninety minutes, and that BJ’s reserved the right to exclude children from the Kids’ Club if it determined that the child had a contagious or communicable disease.

2 The Rosens have not argued that the Incredible Kids’ Club Rules agreement was unconscionable as was discussed in Walther v. Sovereign Bank, 386 Md. 412, 430, 872 A.2d 735, 746 (2005).

On July 17, 2005, Russell Rosen executed the “BJ’s Incredible Kids’ Club Rules,” inclusive of both the exculpation and indemnification clauses, on behalf of his three minor children, including his son, Ephraim Rosen. Approximately fifteen months later, Beily Rosen, his wife, went shopping at the BJ’s’ Owings Mills location and dropped off then five-year old Ephraim at the Kids’ Club where, according to the Rosens’ Complaint filed in the Circuit Court for Baltimore County, Ephraim was injured:

7. [T]he play area was under the control and supervision of BJ’s and its agents and employees, and BJ’s had actual or apparent control of the play area.

8. The play area consisted of a number of different amusement items for children. The entire play area is covered by carpet. In most [***5] of the play area, the carpet covers a thick layer of resilient foam padding. In other areas, the carpet was adhered directly to a concrete floor. There were no markings to delineate where the floor was padded and where it was not.

9. On October 22, 2006, Beily Rosen went shopping at BJ’s with Ephraim. She left Ephraim in the play area.

10. While in the play area, Ephraim was playing on an elevated plastic play apparatus known as Harry the Hippo.

11. The Hippo was approximately 38″ high at its peak and varied in height along the rest of the structure.

12. The Hippo was placed in such a manner that a child who fell forward would land directly on top of the concrete floor covered by only a thin layer of carpet.

[*719] 13. Ephraim fell off the front of the structure landing head first directly on [**348] the concrete floor covered only by a thin layer of carpet.

14. Ephraim was crying profusely after the fall. His mother was notified to retrieve Ephraim from the play area.

15. That day Ephraim was taken to Sinai Hospital in Baltimore, Maryland. A CT scan of his head revealed that Ephraim had suffered a large acute epidural hematoma in the right temporal, and parietal convexity with extensive mass effect.3

16. [***6] Ephraim was transferred to Johns Hopkins in Baltimore, Maryland. There he underwent an emergent, right frontal temporal parietal craniectomy for evacuation of the epidural hematoma. The surgery saved4 Ephraim’s life.

The Complaint plead a cause of action in negligence, asserting that:

17. BJ’s had a duty to exercise reasonable care to protect its patrons in the play area from injury.

18. BJ’s agents and employees knew or should have known that placing an elevated play structure directly over carpet adhered to a concrete floor would pose a danger to children playing there.

19. BJ’s breached its duty of care by placing The Hippo in an area without sufficient padding.

BJ’s filed an Answer containing a general denial; after the parties began discovery, BJ’s filed a counterclaim against the [*720] Rosens, alleging breach of contract for failing to indemnify, defend, and hold BJ’s harmless pursuant to the indemnification clause.

3 According to Stedman’s Medical Dictionary, a hematoma refers to a “localized mass of extravasated blood that is relatively or completely confined within an organ or tissue, a space, or a potential space; the blood is usually clotted (or partly clotted), and, depending on its [***7] duration, may manifest various degrees of organization and decolorization.” Stedman’s Medical Dictionary 863 (28th ed. 2006). The location of the hematoma, the “temporal” region, is defined as the “surface [region] of the head corresponding approximately to the outlines of the temporal bone.” Id. at 1667.

4 According to Stedman’s Medical Dictionary, a craniectomy is an “[e]xcission of a portion of the skull, without replacement of the bone.” Stedman’s Medical Dictionary 454 (28th ed. 2006).

Thereafter, BJ’s filed a motion for summary judgment under Rule 2-5015 alleging [**349] that no factual matters were in dispute and that, pursuant to our decision in Wolf v. Ford, 335 Md. 525, 644 A.2d 522 (1994), the exculpatory clause was valid and barred the Rosens’ claims as a matter of law.6 The Rosens filed an opposition, contending that, among other things, the exculpatory and indemnification clauses were unenforceable, [*721] because they violated Maryland’s public policy interest of protecting children.

5 Rule 2-501 provides in relevant part:

[HN1] a) Motion. Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that [***8] the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party’s initial pleading or motion is filed or (2) based on facts not contained in the record.

(b) Response. A response to a written motion for summary judgment shall be in writing and shall (1) identify with particularity each material fact as to which it is contended that there is a genuine dispute and (2) as to each such fact, identify and attach the relevant portion of the specific document, discovery response, transcript of testimony (by page and line), or other statement under oath that demonstrates the dispute. A response asserting the existence of a material fact or controverting any fact contained in the record shall be supported by an affidavit or other written statement under oath.

* * *

(f) Entry of Judgment. The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. By order pursuant to Rule 2-602 (b), the court may direct entry [***9] of judgment (1) for or against one or more but less than all of the parties to the action, (2) upon one or more but less than all of the claims presented by a party to the action, or (3) for some but less than all of the amount requested when the claim for relief is for money only and the court reserves disposition of the balance of the amount requested. If the judgment is entered against a party in default for failure to appear in the action, the clerk promptly shall send a copy of the judgment to that party at the party’s last known address appearing in the court file.

6 The parties agreed to stay discovery pending resolution of the enforceability of the exculpatory and indemnification provisions, which was ratified in a court order.

After holding a hearing, Judge Thomas J. Bollinger, Sr., of the Circuit Court for Baltimore County granted summary judgment for BJ’s:

The issue before the Court is one of first impression in Maryland. The question is the enforceability of an exculpatory clause signed by one or more of the parents on behalf of their minor child. The Plaintiffs argue that enforcement of such agreements should be void for being against public policy.

Since Maryland has yet to [***10] establish any alternative law for adults who sign exculpatory clauses for their children [the trial court] must use the general rule in determining the validity of [the] agreement. Generally, Maryland Courts will uphold exculpatory clauses that are executed by adults on their own behalf. Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994). “There are circumstances, however, under which the public interest will not permit an exculpatory clause in a contract[].” Id. at 531. “Public policy will not permit exculpatory agreements in transactions affecting the public interest.” Id. at 532. “The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Id. at 535.

While this Court recognizes that the Maryland Court of Appeals has intended to create a public interest exception, without further guidance, this Court is not capable of evaluating “the totality of the circumstances” against a “backdrop of current societal expectations.” Id. Consequently, this Court lacks any ability to pronounce public policy grounds to invalidate the clause that Mr. Rosen signed on behalf [***11] of his minor child.

(alteration in original).7 The Rosens filed a timely notice of [*722] appeal in the Court of Special Appeals, and in a reported opinion, the Court of Special Appeals reversed. Rosen v. BJ’s Wholesale Club, Inc., 206 Md. App. 708, 716, 51 A.3d 100 (2012).

7 The Rosens, thereafter, filed a motion to alter or amend judgment pursuant to Rule 2-534, which was denied.

In so doing, the Court of Special Appeals struck down the exculpation and indemnification clauses, acknowledging that while our decision in Wolf validated exculpatory clauses, “[t]here are circumstances . . . under which the public interest will not permit an exculpatory clause in a contract[.]” Id. at 716, 51 A.3d at 105, quoting Wolf, 335 Md. at 531, 644 A.2d 522 (alterations in original). Our intermediate appellate court explored authority from our sister states such as that from New Jersey, Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381 (N.J. 2006), and Florida, Kirton v. Fields, 997 So.2d 349 [**350] (Fla. 2008), to bolster its conclusion that an agreement entered into by a parent barring a future negligence claim asserted by a child against a commercial enterprise is unenforceable. Rosen, 206 Md. App. at 719-22, 51 A.3d at 107-10. [***12] The court further opined that the State has a “parens patrie interest in caring for those, such as minors, who cannot care for themselves [that] tilts the scales in favor of invalidating a parent’s agreement to release his or her child’s future tort claims against ‘commercial enterprise[s],'” id. at 727, 51 A.3d at 112, quoting In re Najasha B., 409 Md. 20, 33, 972 A.2d 845 (2009), which “‘derive economic benefit from’ the provision of their services, [so that] ‘they are better able to bear the costs associated with injuries than the children or their families,’ as they can ‘spread the costs of insurance among [their] customers.'” Id. at 728, 51 A.3d at 112, quoting Hojnowski, 901 A.2d at 388.

BJ’s petitioned this Court for a writ of certiorari, which we granted, to consider:

1. In limiting its analysis and holding to “commercial enterprises,” did the Court of Special Appeals incorrectly create a distinction not previously recognized in determining the validity of exculpatory agreements in Maryland?

[*723] 2. Did the Court of Special Appeals err in both disregarding and misinterpreting Maryland public policy in adopting what it described as the “majority view”?

3. Did the Court of Special Appeals [***13] err in applying the same flawed public policy rationale in holding the indemnification clause invalid?8

BJ’s Wholesale Club v. Rosen, 429 Md. 528, 56 A.3d 1241 (2012). All of these questions essentially ask us to review the trial court’s decision de novo, as only matters of law present themselves. See, e.g., Uninsured Employers’ Fund v. Danner, 388 Md. 649, 658, 882 A.2d 271, 277 (2005); Johnson v. Mayor & City Council of Baltimore City, 387 Md. 1, 6, 874 A.2d 439, 442 (2005). These questions, moreover, require us to consider the contours of our decision in Wolf, which held that [HN2] an exculpatory agreement will be permitted except in certain circumstances, including “in transactions affecting the public interest.” Wolf, 335 Md. at 531-32, 644 A.2d at 525-26.

8 Because we conclude that the exculpatory provision is enforceable, thereby precluding the Rosens’ claim as a matter of law, we do not reach BJ’s third question.

Initially, BJ’s argues that we should refrain from opining on the enforcement of an exculpatory clause against a minor child in the absence of any legislation prohibiting such clauses, arguing that “declaration of public policy [is] best left to the Legislature.” For this proposition, [***14] BJ’s counsel relied at oral argument on our recent decision in Warr v. JMGM Group, LLC, 433 Md. 170, 70 A.3d 347(2013), in which we declined to adopt dram shop liability.9 That case, however, is inapposite; in Warr the Legislature had previously considered, and declined [*724] to adopt on a number of occasions, the policy the Petitioners in Warr sought, while in the present case, as conceded by counsel at oral argument, the validity or lack thereof of exculpatory [**351] agreements executed by a parent on behalf of a minor child, has not been considered by the Legislature.

9 “The term ‘dram shop liability’ refers to ‘[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer.’ Blacks Law Dictionary 568 (9th ed. 2009). ‘Dram shop’ is an archaic term for a bar or tavern. Black’s Law Dictionary 567. The term ‘dram’ is an antiquated unit of fluid measurement, equivalent to one eighth of a liquid ounce, used by apothecaries; its use in the phrase ‘dram shop’ was a result of the fact that taverns often sold hard alcohol by the dram.” Warr v. JMGM Group, LLC, 433 Md. 170, 173 n.1, 70 A.3d 347, 349 n.1 (2013) (alteration in original).

[HN3] An exculpatory [***15] clause is a “contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Black’s Law Dictionary (9th ed. 2009). By entering into an exculpatory agreement, “the parties expressly . . . agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.” Wolf, 335 Md. at 531, 644 A.2d at 525, quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68, at 482 (5th ed. 1984) and citing Restatement (Second) of Contracts § 195 (1981). We have had occasion to address the validity of exculpatory clauses most recently in Wolf,10 determining that “[i]n the absence of legislation to the contrary, exculpatory clauses are generally valid, and the public policy of freedom of contract is best served by enforcing the provisions of the clause.” Id. at 531, 644 A.2d at 525. We also have opined that exculpatory clauses are to be construed [*725] strictly, requiring that the language of any such clause “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s [***16] negligence.” Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266, 686 A.2d 298, 304 (1996), quoting Barnes v. New Hampshire Karting Ass’n, 509 A.2d 151, 154, 128 N.H. 102 (N.H. 1986).

10 We first considered the enforceability of an exculpation agreement when executed by an adult on her own behalf in Eastern Avenue Corp. v. Hughes, 228 Md. 477, 180 A.2d 486 (1962), in which a tenant sued her landlord for injuries she sustained after tripping over a raised area in the parking lot adjacent to her building. Bertha Hughes had previously executed a lease agreement containing an exculpatory clause, which stated that the landlord would not be held liable for injuries arising from “failure to keep the demised premises in repair.” Id. at 480, 180 A.2d at 488. After suit was filed, the jury awarded the tenant damages and the trial court denied the landlord’s motion notwithstanding the verdict. We reversed, and in so doing, we noted that “[a]lmost all of the courts that have passed on the question have held exculpatory clauses valid,” and we were, therefore, “constrained to follow the great weight of authority.” Id. at 479, 180 A.2d at 488. The General Assembly has subsequently declared that, in the context [***17] of landlord-tenant agreements, such exculpatory clauses in leases as void as against public policy. Md. Code (1974, 2010 Repl. Vol.), § 8-105 of the Real Property Article.

In Wolf, after articulating the general acceptance of exculpatory clauses, we elucidated various exceptions to their validity. Persuaded by the rigor of Winterstein v. Wilcom, 16 Md. App. 130, 293 A.2d 821(1972), we recognized that [HN4] there were circumstances in which enforcement of an exculpatory clause could be precluded, the first two being:

First, a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross. Winterstein, 16 Md.App. at 136, 293 A.2d at 824; Restatement, Second, Contracts § 195(1); Keeton, supra. Second, the contract cannot be the product of grossly unequal bargaining power. “When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence, the agreement is void as against public policy.” Winterstein, 16 Md.App. at 135-36, 293 A.2d at 824; Keeton, supra.

Wolf, 335 Md. at 531, 644 A.2d at 526. The third circumstance precluding [***18] enforceability was when a transaction affects the public interest:

Third, [HN5] public policy will not permit exculpatory agreements in transactions affecting [**352] the public interest. Winterstein, 16 Md.App. at 136, 293 A.2d at 824. This last category includes the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that are so important to the public good that an exculpatory clause would be “patently offensive,” such that “‘the common sense of the entire community would . . . pronounce it’ [*726] invalid.” Md. Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 606, 386 A.2d 1216, 1228 (1978), quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879).

Id. at 531-32, 644 A.2d at 525-26.

“Transactions affecting public interest,” under Wolf encompasses three distinct categories, two of which are not relevant here, because they were not relied upon by Judge Bollinger in reaching his decision in this matter, those being: public service obligations, see, e.g., Collins v. Virginia Power & Elec. Co., 204 N.C. 320, 168 S.E. 500, 504 (N.C. 1933) (invalidating [***19] an exculpatory agreement between a customer and a telegraph company); Bowman & Bull Co. v. Postal Tel.-Cable Co., 290 Ill. 155, 124 N.E. 851, 852 (Ill. 1919) (invalidating an exculpatory clause between a customer and a telegraph-service provider); Reeder v. W. Gas & Power Co., 42 Wn.2d 542, 256 P.2d 825 (Wash. 1953) (invalidating an exculpatory clause between a customer and gas-service provider); and other transactions “so important to the public good that an exculpatory clause would be patently offensive.” Wolf, 335 Md. at 532, 644 A.2d at 526 (citation and quotations omitted); e.g., Wartsila NSD N. Am., Inc. v. Hill Int’l, Inc., 530 F.3d 269 (3d Cir. 2008) (applying Maryland law and holding that an exculpatory clause in an agreement between a construction consulting firm and an engineering firm was enforceable because construction consulting is not essential to the public good); Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 284, 752 A.2d 631, 637 (2000) (holding that an exculpatory agreement between a customer and a health club was enforceable because services provided by a health club are “not . . . of great public importance nor of practical necessity”).

Judge Bollinger, rather, relied upon a final [***20] catch-all category of the public interest exception to the validity of exculpatory clause, which he recognized was not easily defined, opining that: “While . . . the Maryland Court of Appeals has intended to create a public interest exception, without further guidance, [I am] not capable of evaluating ‘the totality of the circumstances’ against ‘a backdrop of current societal expectations.'” In Wolf, we attempted to define the contours of this category [*727] of the public interest exception by dissecting Winterstein, in which the Court of Special Appeals had adopted a six-factor test established by the Supreme Court of California in the case of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), which held that a transaction affects the public interest when:

[HN6] [T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out [***21] as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the [**353] essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation,\ and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Id. at 445-46 (footnotes omitted). We declined, however, to adopt the Tunkl factors, determining that [HN7] the “fluid nature of the public interest” renders strict reliance on “the presence or absence of six fixed factors” arbitrary and inappropriate. We recognized, instead, that while the factors may be persuasive to evaluate the public interest, “[t]he ultimate determination of [***22] what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of [*728] current societal expectations.” Wolf, 335 Md. at 535, 644 A.2d at 527.

The concept of “societal expectations,” then, was undefined in Wolf, as Judge Bollinger noted, as he grappled with its application in this case. Our decision in declining to offer a precise definition, however, was based on our recognition that [HN8] the “public interest” is an amorphous concept not easily defined. Nevertheless, we agree with the parties and the Court of Special Appeals that, in discerning societal expectations, we should look to relevant statutory and common law. See Porterfield v. Mascari II, Inc., 374 Md. 402, 427, 823 A.2d 590, 605 (2003); Maryland Nat. Bank v. Comptroller of Treasury, 264 Md. 536, 549, 287 A.2d 291, 298 (1972).

[HN9] Section 5-203(b) of the Family Law Article, Maryland Code (1974, 2012 Repl. Vol.) defines globally the role of a parent, providing that “the parents of a minor child . . . are . . . responsible for the child’s support, care, nurture, welfare, and education[.]” Closely associated with these obligations and duties is our long-standing recognition [***23] that “parents are presumed to act in their children’s best interests,” Boswell v. Boswell, 352 Md. 204, 240, 721 A.2d 662, 679 (1998), which is evinced throughout our cases, including those involving custody, visitation, and adoption disputes. There are, thus, clear societal expectations set forth in the law that parents should make decisions pertaining to their children’s welfare, and that those decisions are generally in the child’s best interest.

[HN10] The societal expectation that parents should make significant decisions pertaining to a child’s welfare is manifest in statutes that enable parents to exercise their authority on behalf of their minor child in the most important aspects of a child’s life, including significant physical and mental health decisions. Parents are empowered, on behalf of their children to: consent to medical treatment, see Section 20-102 of the Health-General Article, Maryland Code (2000, 2009 Repl. Vol., 2013 Supp.); consent to having their children give blood, Section 20-101(b) of the Health-General Article, Maryland Code (2000, 2009 Repl. Vol.); consent to the use of a tanning [*729] device by their child,11 Section 20-106(b) of the Health-General Article, Maryland [***24] Code (2000, 2009 Repl. Vol.); and to authorize [**354] another family member to consent to the immunization of a minor child, Section 18-4A-02(a) of the Health-General Article, Maryland Code (2000, 2009 Repl. Vol.). Parents are also empowered to commit a child, under certain conditions, to: a public or private service that provides treatment for individuals with mental disorders, see Section 10-610 of the Health-General Article, Maryland Code (2000, 2009 Repl. Vol.), as well as a private therapeutic group home that provides access to a range of diagnostic and therapeutic mental health services. See Section 10-923 of the Heath-General Article, Maryland Code (2000, 2009 Repl. Vol.).

11 A tanning device is defined by the statute as “any equipment that emits radiation used for tanning of the skin, including sunlamps, tanning booths, or tanning beds.” Md. Code (2000, 2009 Repl. Vol.), § 20-106 of the Health-General Article.

[HN11] In addition to empowering parents to make significant health decisions, the General Assembly also has directly enabled parents on behalf of a child to make the most significant decisions pertaining to a child’s education and employment. With respect to education, parents may: choose [***25] to home school their children, Section 7-301(a)(1) of the Education Article, Maryland Code (1978, 2008 Repl. Vol., 2013 Supp.); and choose to defer compulsory schooling for one year if a parent determines that the child is not mature enough to begin schooling. Section 7-301(a)(2) of the Education Article, Maryland Code (1978, 2008 Repl. Vol., 2013 Supp.). Additionally, Section 7-305(c) of the Education Article, Maryland Code (1978, 2008 Repl. Vol., 2013 Supp.) mandates that a parent meet with a school superintendent in the event that a child is suspended for more than ten days or expelled from school. With respect to a child’s employment, a child may not work more than is statutorily permitted without a parent giving written consent, Section 3-211(b)(1) of the Labor and Employment Article, Maryland Code (1999, 2008 Repl. Vol.); and if the minor child is working for the parent, the wage and hour restrictions are not applicable, thereby leaving it to the parent’s [*730] discretion as to how much the child should work. Maryland Code (1999, 2008 Repl. Vol.), Section 3-403(a)(7) of the Labor and Employment Article.

[HN12] Parents also are empowered to permit a fifteen to seventeen-year old child to marry, [***26] see Section 2-301 of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol., 2013 Supp.); to use corporal punishment to discipline their children, Section 4-501(b)(2) of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol.); to apply on behalf of a minor child to the “Address Confidentiality Program,” a program designed to ensure that domestic violence victims addresses are kept confidential and from their perpetrators, Section 4-522(a)(2) of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol.); to bring an action on behalf of their minor child parent for unpaid support payments under the Maryland Uniform Interstate Support Act, Section 10-314 of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol.); and to consent to a child obtaining a hunting license. Section 10-301(h) of the Natural Resources Article, Maryland Code (2000, 2012 Repl. Vol.).

From this brief survey of various pieces of legislation, it is clear that parents are empowered to make significant decisions on behalf of their children. The Rosens, though, have asserted that there are significant limitations on parental decision-making apparent in legislation, including [HN13] Section 5-502(b)(1) of the Family Law Article, [***27] Maryland Code (1999, 2012 Repl. Vol.), containing a statement that it is the State’s policy “to protect minor children whose care has been relinquished to others,” which appears as part of a large regulatory scheme applicable to child and foster care facilities. The policy statement, however, merely recognizes the obvious, that children are vulnerable and are entitled to protection. It does not suggest [**355] in any manner, however, that parents are incapable of or limited in contracting on their behalf.

The Rosens also have advanced a number of cases that they assert reflect limitations on parental decision-making, all of which, however, are inapposite to define societal expectations [*731] with respect to a parent’s role in contracting on behalf of her minor child. To support their argument, the Rosens assert first the ability of a minor to disaffirm a contract entered into with an adult, as determined in Schmidt v. Prince George’s Hospital, 366 Md. 535, 553, 784 A.2d 1112, 1122 (2001); the inability to defend on the basis of contributory negligence against children as young as five, as opined on in Taylor v. Armiger, 277 Md. 638, 648-49, 358 A.2d 883, 888 (1976); and the prohibition against a [***28] parent abdicating her parental responsibilities by contracting away her obligation to support her minor child, as discussed in Geramifar v. Geramifar, 113 Md. App. 495, 503, 688 A.2d 475, 478 (1997). None of these cases, however, involve a parent acting on behalf of a minor child, and we, therefore, glean no limitations on parental authority from these decisions.

The Rosens, likewise, posit McCormack v. Board of Education of Baltimore County, 158 Md. App. 292, 310, 857 A.2d 159, 169 (2004), as a limitation on parental exculpation, in which the Court of Special Appeals opined that a parent is permitted to assert or waive the psychologist-patient privilege on behalf of her child absent a substantial conflict of interest with the child. McCormack, too, has no bearing on this matter; it does not address a parent’s right to contract on behalf of her child. The Rosens also rely upon Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782 A.2d 807 (2001), a case in which we considered whether it was appropriate for children to be used in a potentially hazardous nontherapuetic research study; as we made clear in Grimes, though, “[t]he issue in these specific contested cases does not relate [***29] primarily to the authority of the parent, but to the procedures of [the researchers] and similar entities that may be involved in such health-related studies.” Id. at 104, 782 A.2d at 852. The Court of Special Appeals did not rely on these decisions in reaching its decision, nor de we find them persuasive; these decisions do not impose any limitations on a parent’s right to contract on behalf of her child.

With specific reference to a child’s cause of action and parental authority, [HN14] Section 6-405 of the Courts and Judicial Proceedings Article, [*732] Maryland Code (1974, 2013 Repl. Vol.),12 empowers parents to terminate litigation on behalf of their minor children; it provides that “[a]ny action . . . brought by a next friend for the benefit of a minor [**356] may be settled by the next friend,”13 which unequivocally affords parents the authority to settle or release negligence claims on behalf of their minor children. See, e.g., Clark v. Southern Can Co., 116 Md. 85, 81 A. 271, 273-74 (1911); Bernstein v. Kapneck, 290 Md. 452, 454, 430 A.2d 602, 603 (1981). Section 6-405(b) of the Courts and Judicial Proceedings Article, moreover, provides that “[i]f the next friend is not a parent or person in loco [***30] parentis of the child, the settlement is not effective unless approved by the parent or other person responsible for the child,” thereby empowering parents with the authority to prevent a settlement.

12 Section 6-405 of the Courts and Judicial Proceedings Article provides in full:

[HN15] (a) In general. — Any action, including one in the name of the State, brought by a next friend for the benefit of a minor may be settled by the next friend.

(b) Limitation. — If the next friend is not a parent or person in loco parentis of the child, the settlement is not effective unless approved by the parent or other person responsible for the child.

(c) Where no parent or other person responsible. — If both parents are dead, and there is no person responsible for the care and custody of the child, the settlement is not effective unless approved by the court in which the suit was brought. Approval may be granted only on the written application by the next friend, under oath, stating the facts of the case, and why the settlement is in the best interest of the child.

Md. Code (1974, 2013 Repl. Vol), § 6-405 of the Courts & Judicial Proceedings Article. All references to Section 6-405 of the Courts and Judicial Proceedings Article [***31] (“Section 6-405”) throughout are to Maryland Code (1974, 2013 Repl. Vol), unless otherwise noted.

13 The language of Section 6-405 originated in the Laws of 1898 and has remained the same over the years: “The next friend . . . who shall have brought any suit at law for the benefit of any infant or infants, shall have authority to compromise and settle said suit and the cause of action[.]” 1898 Md. Laws, Chap. 241.

[HN16] The language of Section 6-405(a) of the Courts and Judicial Proceedings Article, which permits a parent to settle a child’s existing claims without judicial interference, notably, is in stark contrast to other states’ statutes and rules that require [*733] judicial oversight to settle a child’s claim, which form the foundation for cases upon which the cases posited by the Rosens rely. See, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1233 (Col. 2002) (noting that pursuant to Colorado statutory law a child’s claim can be settled only by court approval or by a conservator,14 and concluding, therefore, because a parent generally could not release a minor child’s existing claim it “makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action [***32] prior to an injury”);15 Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994) (opining that pursuant to its statutory and common law a parent may not settle a minor child’s cause of action without court approval,16 [*734] and concluding, therefore, that ” [s]ince a parent generally may not release a minor child’s cause of action after an injury, there is no compelling reason to conclude [**357] that a parent has the authority to release a child’s cause of action prior to the injury”); Hojnowski, 901 A.2d at 387 (noting that pursuant to N.J. R. Super. Tax Surr. Cts. Civ. R. 4:44 a parent could not settle a minor child’s tort claim without court approval, and opining that the purposes underlying the prohibition against a parent settling a minor child’s tort claim after a cause of action accrues apply equally to a prospective waiver of negligence); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001) (noting that pursuant to Utah statutory law a child’s cause of action could only be settled if approved by the court or settled by a conservator,17 and concluding, therefore, that because a parent could not “unilaterally release a child’s claims after a child’s injury . . . a parent does not [***33] have the authority to release a child’s claims before an injury” (emphasis in original)); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992) (noting that a parent could not settle a minor child’s cause of action pursuant to Wash. Sup. Ct. Spec. P. R. 98.16W without court approval, and concluding that “[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury”). Thus, the cases upon which the Rosens rely are inapposite, because parents in Maryland, rather than the courts, are authorized to make decisions to terminate tort claims on behalf of their children pursuant to Section 6-405.18

14 The Colorado Supreme Court in Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1234 (Col. 2002) observed that a court could ratify a settlement pursuant to Section 15-14-412(1)(b) of the Colorado Revised Statutes Annotated (2001). A Colorado court could also appoint a conservator pursuant to Section 15-14-412(1)(b) of the Colorado Revised Statutes Annotated (2001), and pursuant to Section 15-14-413 of the Colorado Revised Statutes Annotated (2001) [***34] a parent was not a minor child’s conservator as a matter of right, but rather, only by appointment by the court.

15 Significantly, even though a parent’s right to terminate an existing claim on behalf of a child is limited in Colorado, its legislature has abrogated the holding in Cooper, 48 P.3d 1229 by providing that, “a parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Col. Rev. Stat. Ann. (2010), § 13-22-107. In so doing, the Legislature emphasized the significant role of the parent, declaring “[t]hese are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education . . . .” Col. Rev. Stat. Ann. (2010), § 13-22-107(1)(a)(v).

16 The Illinois court in Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994), cited its prior decision in Mastroianni v. Curtis, 78 Ill. App. 3d 97, 397 N.E.2d 56, 33 Ill. Dec. 723 (Ill. App. 1979), for the proposition that a parent may not settle a claim without court approval. The Mastrioianni court interpreted Ill. Rev. Stat. 1963, ch. [***35] 3, par. 215, now codified at 755 Ill. Comp. Stat. 5/19-8 (1992), which provided: “By leave of court * * * [a] guardian * * * may compound or compromise any claim or any interest of the ward * * * in any personal estate * * * upon such terms as the court directs.” Mastroianni, 397 N.E.2d at 58 (alterations in original).

17 The Utah Supreme Court observed in Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001) that a settlement must be approved by the court pursuant to Section 75-5-408 of the Utah Code Annotated (1993), or by a conservator pursuant to Section 75-5-410 of the Utah Code Annotated (1993), and that a parent may only be a conservator if appointed by the court pursuant to Section 75-5-410(1) of the Utah Code Annotated (1993).

18 This societal expectation is further elucidated in our cases applying Section 6-405, in which we have affirmed a parent’s decision to terminate a claim on behalf of her minor child, even when, as in the matter before the Court, the benefit of hindsight illustrates that the decision to release the child’s claim was not in the child’s best interest. In Bernstein v. Kapneck, 290 Md. 452, 430 A.2d 602 (1981), for example, a five-year-old child was injured in a [***36] two-car accident in Bethesda, Maryland and, acting under the authority of Section 6-405, the child’s mother settled a tort claim on behalf of the child arising out of the accident for $7,500. It was discovered, thereafter, that the child developed a seizure disorder resulting from a brain injury she had sustained in the accident, and accordingly, the mother sought to set aside the settlement, which had been enrolled as a consent judgment. We declined to set aside the judgment, opining that “society will be best served by adherence to the traditional methodology for interpreting contracts in general,” id. at 458, 430 A.2d at 606, and interpreted the release to conclude that it clearly and unambiguously released the parties from all injuries known and unknown, and therefore, barred the child’s claim. And, although we did not discuss specifically parental rights in Bernstein, our adherence to our societal expectation that parents should be able to make decisions to terminate their children’s litigation is implicit in our holding.

[*735] The Rosens contend, alternatively, that Section 6-405 is without relevance, arguing that a prospective waiver of a negligence claim as exculpation is “fundamentally [***37] different” from a release of an existing claim; our intermediate appellate court similarly opined that unlike a release of an existing claim, an exculpatory clause that prospectively releases a party from liability for negligence “may remove an important incentive to act with reasonable care.” Rosen, 206 Md. App. at 724, 51 A.3d at 110-11, quoting Hawkins, 37 P.3d at 1066. The intermediate appellate court also noted other differences between the two types of releases that, ostensibly, justified their limiting parental authority to prospectively waive a claim for negligence:

[**358] [Prospective exculpatory] clauses are “routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance,” unlike post-injury releases of liability, which “involve actual negotiations concerning ascertained rights and liabilities,” and that, “if anything, the policies relating to restrictions on a parent’s right to compromise an existing claim apply with even greater force in the preinjury, exculpatory clause scenario.”

[*736] Id. at 724-25, 51 A.3d at 110-11, quoting Hawkins, 37 P.3d at 1066.

The policy dichotomy proscribed, however, by the Rosens and the Court of Special Appeals [***38] has at its core stereotypes that warrant further exploration by the Legislature, rather than that which should be relied upon in judicial decision-making. The preconceptions utilized are pro hac differentiation19 not in conformity with any of the schemata delineated empowering a parent to act on behalf of a minor child. Section 6-405 reveals a societal expectation that parents, and not courts, should determine whether to release a child’s claim for negligence; superimposing a legislative purpose to exclude prospective exculpation is without foundation.

19 In fact, there are arguments counter to those proffered by the Rosens and the Court of Special Appeals, as identified in Judge LaVecchia’s dissenting opinion in Hojnowski v. Vans Skate Park:

There is an important difference between the present pre-injury waiver and [post-injury waivers] . . . . Because the pre-injury setting does not involve the specter of a potential monetary settlement that looms over post-injury settlements, conflicts are of little concern in the pre-injury setting.

Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 396 (N.J. 2006) (LaVecchia, J., dissenting). These differences, among others, may justify a more protective [***39] rule when a parent settles an existing claim, rather than when she executes a prospective waiver of negligence:

A parent dealing with an existing claim is simultaneously coping with an injured child; such a situation creates a potential for parental action contrary to that child’s ultimate best interests.

>A parent who signs a release before her child participates in recreational activity, however, faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release.

A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child’s best interest . . . seems unlikely . . . .

Moreover, parents are less vulnerable to coercion and fraud in a preinjury setting . . . . A parent signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue.

Angeline Purdy, Note, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental [***40] Releases of A Minor’s Future Claim, 68 Wash. L. Rev. 457, 474 (1993) (footnotes omitted).

[*737] The Rosens assert, however, that parental decision-making with respect to a minor child’s tort claim is limited by [HN17] Sections 13-401 et seq. of the Estates and Trusts Article, Maryland Code (2001, 2011 Repl. Vol.), requiring, inter alia, that tort awards recovered by a minor exceeding $5,000 be placed in trust, and moreover, limits access to those funds for limited reasons, such as educational or medical needs. Section 13-402 of the Estates and Trusts Article clearly states, in reference to Sections 13-401 et seq., that “judgment in tort should be preserved for the benefit of the minor,” limiting the parent’s use of the settlement or judgment money, but not the authority to terminate a claim.

The Rosens similarly advance Section 5-201 of the Courts and Judicial Proceedings Article, [**359] Maryland Code (1974, 2013 Repl. Vol.), as a limitation on parental decision-making with respect to a child’s tort claim. [HN18] Section 5-201 tolls the statute of limitations when a minor has been injured, providing that that a cause of action “accrues . . . within the lesser of three years or the applicable period of limitations [***41] after the date the disability is removed.” The statute serves to provide a child with an opportunity to pursue a claim upon attaining the age of majority only if the child’s parent did not pursue the claim on the child’s behalf during her minority. A parent continues to have the power to initiate and terminate a suit during infancy.20 We, therefore, glean no limitations on a parent’s right to terminate a minor child’s tort claim from these statutes.

20 The Rosens have similarly asserted [HN19] Section 10-910 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2013 Repl. Vol.), prohibiting the imputation of the negligence of a parent or a custodian to a minor child and argue that it acts to prevent parental decision-making from barring a minor child’s tort claim. This statute acts only to prevent the doctrine of contributory negligence from being asserted against a minor. See Caroline v. Reicher, 269 Md. 125, 130, 304 A.2d 831, 834 (1973). It does not, however, limit a parent’s decision to terminate a child’s claim, as authorized in Section 6-405.

Now that we have explored societal expectations as discerned by statutory and common law, we turn to the juxtaposition of the instant [***42] facts against those expectations. [*738] This case involves the decision made by Mr. Rosen to sign an exculpatory agreement on his behalf and that of his children. Our review of our statutes and cases reflect a societal expectation that a parent’s decision-making is not limited. The Court of Special Appeals, likewise, did not assert any limitation on a parent’s right to prospectively waive a minor child’s tort claim. We conclude, therefore, that Mr. Rosen’s execution of an exculpatory agreement on behalf of Ephraim to allow him to use the Kids’ Club was not a transaction affecting the public interest within the meaning of Wolf, which otherwise would have impugned the effect of the agreement.

The Court of Special Appeals’s decision, however, rested upon two other considerations aside from the Wolf decision. The intermediate appellate court rooted its opinion on a perceived distinction between commercial and non-commercial enterprises, opining that “because commercial enterprises ‘derive economic benefit from’ the provision of their services, ‘they are better able to bear the costs associated with injures than the children or their families,'” because they could better afford to insure against [***43] a risk of loss than a non-commercial entity. Rosen, 206 Md. App. at 728, 51 A.3d at 112, quoting Hojnowski, 901 A.2d at 381. The Rosens have likewise posited this argument, contending that “BJ’s, a profitable company, can insure against injuries at its Play Center.” The distinction between commercial and non-commercial entities, however, is without support in our jurisprudence; we have upheld the legitimacy of exculpatory agreements in commercial settings against adults and the policy arguments upon which we have validated or invalidated exculpatory clauses know no such distinction. The Court of Special Appeals opined, however, that “a minor child is far less capable of looking out for his own safety and welfare than an adult, a difference which, in [its] view, justifies a more protective rule for children.” Rosen, 206 Md. App. at 728, citing Kirton v. Fields, 997 So.2d 349, 359-60 (Fla. 2008) (Anstead, J., concurring).21 [**360] Whether a [*739] child’s judgment renders him less capable of looking out for his own welfare heeds true whether or not he or she is playing on a school playground or in a commercial setting. As we have explained, parents are charged with protecting the welfare of their [***44] children, and we will defer to a parent’s determination that the potential risks of an activity are outweighed by the perceived benefit to the child when she executes an exculpation agreement.

21 Subsequent to the Supreme Court of Florida’s decision in Kirton v. Fields, 997 So.2d 349 (Fla. 2008), the Florida legislature “limit[ed] [Kirton’s] holding by permitting parents to release a commercial activity provider for a child’s injuries occurring as a result of the inherent risk of the activity under certain circumstances.” Claire’s Boutiques, Inc. v. Locastro, 85 So. 3d 1192, 1199 (Fla. Dist. Ct. App. 2012), citing Fla. Stat. Ann. (2010), § 744.301.

Whether an agreement prospectively waiving a claim for negligence executed by a parent on behalf of a child should be invalidated because a commercial entity may better be able to bear the risk of loss than a non-commercial entity by purchasing insurance, moreover, is for a matter of legislative fact-finding as well as discussion of the relative balance sheets of a commercial entity and of a self-insurer, such as the State, or a religious organization, such as the Catholic Church, for example. The inherent difficultly of this line drawing was [***45] elucidated by Justice Charles Wells of the Supreme Court of Florida in his dissent in Kirton v. Fields:

For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied?

The importance of this issue cannot be overstated because it affects so many youth activities and involves so much monetary exposure. Bands, cheerleading squads, sports teams, church choirs, and other groups that often charge for their activities and performances will not know whether they are a commercial activity because of the fees and ticket sales. How can these groups carry on their activities that are so needed by youth if the groups face exposure to large damage claims either by paying defense costs or damages? [*740] Insuring against such claims is not a realistic answer for many activity providers because insurance costs deplete already very scarce resources.

Kirton, 997 So. 2d at 363 [***46] (Wells, J., dissenting). As a result, we do not adopt the commercial, non-commercial dichotomy posited by the Court of Special Appeals.22

22 The Rosens and the Court of Special Appeals place significant emphasis on decisions of our sister courts that have determined that a parentally-executed exculpatory agreement is unenforceable in the commercial setting. Rosen, 206 Md. App. at 719, 51 A.3d at 107. As we explained, supra, many of these decisions rely on a legal basis not present in Maryland, that being the inability of a parent to unilaterally settle a child’s tort claim. See, e.g., Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994). We have, moreover, explained that the commercial, non-commercial dichotomy also has no basis in Maryland law, and to the extent any policy basis may exist, it is more properly explored by the Legislature. We, therefore, find unpersuasive the decisions of our sister courts that have supported their conclusions based on the commercial nature of the contracting party. See, e.g., Hojnowski, 901 A.2d at 388-89. We note, finally, that some of them have enforced a parentally-executed exculpatory agreement in the non-commercial setting, and [***47] have supported their holdings on bases other than the non-commercial nature of the activity. See, e.g., Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 207 (Ohio 1998) (enforcing a parentally-signed exculpatory agreement against a minor child in favor of a non-profit soccer club, opining that the parent “did her best to protect [the injured child’s] interests and [the court] will not disturb her judgment”).

[**361] The decision of the Court of Special Appeals also rested on the exercise of the State’s parens patrie authority:

“The State of Maryland has a parens patriae interest in caring for those, such as minors, who cannot care for themselves and the child’s welfare is a consideration that is of transcendent importance when the child might . . . be in jeopardy.” In re Najasha B., 409 Md. 20, 33, 972 A.2d 845 (2009) (quotation omitted). Although this quote is drawn from a child-access case, the important public policy it proclaims is broad and certainly applies here, where adults may be jeopardizing the future welfare of their children by signing releases like the one at issue. It is this parens patriae interest which tilts the scales in favor of invalidating a parent’s agreement to release [***48] his or her child’s future tort [*741] claims against a “commercial enterprise,” even though such an agreement, if executed by the parent on his or her own behalf, may be enforceable.

Rosen, 206 Md. App. at 727, 51 A.3d at 112, citing Wolf, 335 Md. at 531, 644 A.2d 522. [HN20] The application of the parens patriae doctrine has generally been invoked only in proceedings where parental rights have been abrogated, pursuant to a statutory scheme, as in CINA cases.23 E.g., In re Najasha B., 409 Md. 20, 972 A.2d 845 (2009). The State only interjects itself in CINA cases, however, because it is alleged that the parents are unfit or incapable of performing the parenting function. Section 3-801(f) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2013 Repl. Vol.) (defining a CINA as a “child who requires court intervention because . . . [t]he child’s parents . . . are unable or unwilling to give proper care and attention to the child and the child’s needs”); Section 5-323(d) of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol.) (providing that factors to be considered when terminating parental rights include, among others, parental abuse, parental contact with the child, parental [***49] support of the child, and parental disability making her unable to care for the child’s needs); Section 5-323(b) of the Family Law Article, Maryland Code (1999, 2012 Repl. Vol.) (declaring that a guardianship petition may not be granted without parental consent unless the Juvenile Court “finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s best interests . . .”). By invoking the State’s parens patriae authority in the present [*742] matter, the Court of Special Appeals relied on our decision in In re Najasha B., 409 Md. 20, 972 A.2d 845. In re Najasha, however, only reflects the State’s intervention when a parent is unfit or incapable of performing the parenting function, which has not been alleged in the present case.

23 [HN21] “A ‘CINA’ means a child in need of assistance’ who requires court intervention because: “(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The [***50] child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.’ [Md. Code (1974, 2006 Repl. Vol., 2008 Supp.)], § 3-801(f) and (g) [of the Courts and Judicial Proceedings Article].'” In re Najasha B., 409 Md. 20, 21-22 n.1, 972 A.2d 845, 846 n.1 (2009).

We have also applied the parens patriae doctrine in cases in which we have observed that the juvenile delinquency systems [**362] is an “extension of the doctrine of parens patriae, [which] viewed juvenile offenders to be in need of protection and rehabilitation rather than punishment.” In re Victor B., 336 Md. 85, 90, 646 A.2d 1012, 1014 (1994); see also In re Johnson, 254 Md. 517, 529, 255 A.2d 419, 425 (1969); Ex Parte Cromwell, 232 Md. 305, 308 192 A.2d 775, 777 (1963). The application of parens patriae in the juvenile delinquency context has no relevance to the matter sub judice, because the child is not an offender.

We have, thus, never applied parens patriae to invalidate, undermine, or restrict a decision, such as the instant one, made by a parent on behalf of her child in the course of the parenting role. We conclude, therefore, that the Court of Special Appeals erred [***51] by invoking the State’s parens patriae authority to invalidate the exculpatory clause in the Kids’ Club Rules agreement.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. RESPONDENT TO PAY COSTS.

DISSENT BY: Adkins

DISSENT

The Majority holds that exculpatory agreements in which parents prospectively waive their child’s legal claims arising from a commercial entity’s negligence are valid. Relying on Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522, 527 (1994), the Majority bases its decision on a societal expectation, enunciated by Maryland statutes and common law, that parents have the authority to make decisions concerning their child’s welfare. [*743] In adopting a position held by a minority of states, the Majority has ignored the significant public policy interests in invalidating these prospective exculpatory agreements when a commercial entity contracts with a consumer. Such exculpatory agreements are directly adverse to the interests of minors, and ultimately shift the costs of commercial entities’ negligence to families and the State. For these reasons, I respectfully dissent.

In Wolf v. Ford, [***52] this Court hoped to promote freedom of contract by announcing that we would generally enforce exculpatory clauses. 335 Md. at 535, 644 A.2d at 527. Nevertheless, we recognized three exceptions to enforcement when exculpatory agreements: (1) covered extreme forms of negligence; (2) were a result of unequal bargaining power; or, (3) covered transactions that affected the public interest. Wolf, 335 Md. at 531-32, 644 A.2d at 525-26. Concerning the third exception, we declined to adopt the test followed by other states and the federal circuit for when a transaction involves the public interest. Wolf, 335 Md. at 535, 644 A.2d at 527. Instead, we announced a totality of the circumstances test based on societal expectations. Id. (“The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”).

We did not take the opportunity to define “societal expectations” in Wolf. Although the appropriate method for defining the legal concept of “societal expectations” is debatable, I do not quarrel with the Majority’s conclusion that “parents are empowered to make significant [***53] decisions on behalf of their children.” Maj. Slip Op. at 16.

Yet when dealing with children, we must keep in mind that circuit courts act as parens patriae, and parental authority is [**363] subject to judicial determinations of public policy affecting the welfare of minor children.1 In applying Wolf to decide whether [*744] the exculpatory and indemnification clauses required by BJ’s Wholesale Club, Inc. adversely affect the public interest, we bear in mind our parens patriae role with respect to minor children.

1 As this Court has explained,

The parens patriae jurisdiction of circuit courts in this State is well established. The words parens patriae, meaning, “father of the country,” refer to the State’s sovereign power of guardianship over minors and other persons under disability. It is a fundamental common law concept that the jurisdiction of courts of equity over such persons is plenary so as to afford whatever relief may be necessary to protect the individual’s best interests.

Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 702, 447 A.2d 1244, 1253 (1982) (citations omitted); see also In re Adoption/Guardianship of Victor A., 386 Md. 288, 300-01, 872 A.2d 662, 669 (2005) (“A parent’s right [***54] to raise his or her children, however, is not beyond limitation, and there may be countervailing considerations that the State, pursuant to its parens patriae authority, must protect.”).

Although Maryland has not considered the enforceability of exculpatory agreements such as these, many other jurisdictions have done so, and the majority have held them unenforceable. See Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010) (“Like a clear majority of other courts deciding such releases are unenforceable, we believe the strong policy in favor of protecting children must trump any competing interest of parents and tortfeasors in their freedom to contractually nullify a minor child’s personal injury claim before an injury occurs.”); see also Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2008) (“In holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions.”), superseded by statute, Fla. Stat. Ann. § 744.301 (West); Woodman v. Kera, LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 2010) (pre-injury waiver of liability of commercial children’s play facility unenforceable); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979) [***55] (parent or guardian cannot release college and directors of summer hockey clinic); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001) (parent’s release and indemnification of commercial trail guide service violates public policy), superseded by statute Utah Code Ann. 1953 § 78B-4-203 as recognized in Penunuri v. [*745] Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984, 990 n.43 (Utah 2013); see also 75 A.L.R. 6th 1 (originally published in 2012) (“The general rule has been stated throughout the years as follows: generally, a parent cannot compromise or release a minor child’s cause of action absent statutory authority.”). The Court of Special Appeals aptly describes such exculpatory clauses as promoting a “misalignment of incentives,” and points out that commercial enterprises are in a better position not only to control their premises and employees, but also to carry insurance against liability for negligence. Rosen v. BJ’s Wholesale Club, Inc., 206 Md. App. 708, 725-28, 51 A.3d 100, 111-12 (2012).

In rejecting this majority rule, the Majority places heavy weight on a Maryland statute that authorizes a parent to terminate litigation on behalf of their minor children. Section 6-405(a) of the Courts and Judicial Proceedings Article (“CJP”), [***56] provides: “[a]ny action . . . brought by a next friend for the benefit of a minor may be settled by the next friend.” Md. Code (1973, 2013 Repl. Vol.). The majority reasons that because Maryland legislation has given parents the power to settle lawsuits [**364] for their children, they should also be able to release their children’s claims of negligence before any injury occurs.2 But it fails to grapple with Petitioner’s claim that a pre-injury waiver of a negligence claim is “fundamentally different” from a release of a claim post-injury. I agree with Petitioner, and submit that the differences between a pre-injury and post-injury release cannot be overstated. With a preinjury release, the business that secures the release is immunized from the effects of future negligent conduct. This [*746] immunization has a natural tendency to foster negligent practices which are injurious to children. On the other hand, a post-injury release, or settlement of a litigation under CJP § 6-405(b) does not foster negligent practices because the negligent act has already occurred. Moreover, with a post-injury release, the parent is informed of the nature of the negligence, the extent of the child’s injury, and is [***57] in a position to negotiate. This pre-injury versus post-injury distinction is vitally important, and the Majority, in my view, glosses over it.

2 To be sure, some out-of-state cases rely on the absence of a right to settle pending litigation as one of the factors supporting their conclusion that such exculpatory clauses are not enforceable. See, e.g., Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001). Maryland by statute has granted parents the right to settle litigation on behalf of their children. See CJP § 6-405. But, as I explain in the text, I do not view this statutory authorization for parents to settle litigation on behalf of their children, as support for a decision to enforce a pre-injury exculpatory clause.

I would not extrapolate from CJP § 6-405, as the Majority does, that the General Assembly created a policy that means that a parent can release from all liability a business that promises to care for their children in return for their shopping dollars. Section 6-405 is legislation that promotes the settlement of lawsuits, a longstanding public policy goal. See Chertkof v. Harry C. Weiskittel Co., 251 Md. 544, 550, 248 A.2d 373, 377 (1968) [***58] (“Courts look with favor upon the compromise or settlement of law suits in the interest of efficient and economical administration of justice and the lessening of friction and acrimony.”). But unlike pre-injury exculpatory clauses, settlement of lawsuits resolves only past conduct, and has little to no impact on an organization’s incentive to maintain safe practices and safe premises. In objectively examining the terms of CJP § 6-405, we have no reason to think that the legislature also considered and rejected as unimportant the negative ramifications of parents handing over the care of their children, and giving the caretaker immunity from negligence. In deciding whether businesses who take responsibility for children can immunize themselves from liability for negligence, we should not rest on CJP § 6-405 to delineate policy. Rather, we should note the absence of any legislation authorizing parents to sign pre-injury releases for their children. In addition to their fundamental rights to raise their children, parents have been given various rights by statute, but never has the legislature authorized them to execute this type of release.

When the Wolf test is properly applied, we look [***59] to the totality of the public interests touched by exculpatory clauses. [*747] Wolf, 335 Md. at 535, 644 A.2d at 527. Parents are signing away their child’s legal right without knowing what injury will befall their child, without equal bargaining strength and without the opportunity to negotiate. Id. In cases like this, where the exculpatory clause is signed as part of a membership agreement at a shopping center, parents may not even be fully cognizant of the decision they are making. Hojnowski [**365] v. Vans Skate Park, 187 N.J. 323, 334, 901 A.2d 381 (N.J. 2006) (“[A]t the time a parent decides to release the potential tort claims of his or her child, the parent may not fully understand the consequences of that action[.]”) Indeed, at the time that this agreement was signed, one of the Petitioners’ children had not yet been born.

If the business entity’s negligence leads to injury of a child, the burden of dealing with the aftermath shifts from the responsible tortfeasor to the backs of young families in Maryland, and potentially, the State itself. The Majority does not address this concern, or identify it as a policy interest that should factor into its totality of the circumstances test. In this case, five-year-old [***60] Ephraim Rosen allegedly suffered serious injury when he fell off the “Hippo” play apparatus, onto a concrete floor covered only by thin carpet, without the thick foam padding located in most of the play area. As a result, he required emergency transportation and a craniectomy. Assuming the truth of the allegations, the burden for paying for this medical care has shifted from the negligent party, who is in the best position to insure against its negligence, to the victim, or perhaps the hospital, or a governmental entity.

The Majority worries that holding this exculpatory clause unenforceable would negatively impact non-profit entities who provide services for children, and that recognizing an exception for commercial entities would lead to inscrutable line-drawing issues. Maj. Slip Op. at 26-28. Relying on a dissenting opinion in Kirton, 997 So.2d at 363, the Majority posits that the line between commercial and non-commercial entities will be difficult to draw. Maj. Slip Op. at 27-28. I do not share these misgivings, [*748] because I believe we sit to draw such lines. I am confident that we could do so in a principled manner.

Finally, although the question is a closer one, I agree with the [***61] Court of Special Appeals that the same public policy interests that render such exculpatory clauses unenforceable apply with equal force to the indemnification clause. Undoubtedly, the same public policy interests concerning cost-shifting apply. Moreover, the parens patriae interest is meant to afford “protection in the law to the rights of those who are unable effectively to protect those rights themselves.” Childress v. Madison County, 777 S.W.2d 1, 7 (Tenn. Ct. App. 1989). And the same issues that prevent a parent from adequately protecting their children in signing the exculpatory clause–namely, the unequal bargaining position and inability to negotiate–are at play when signing the indemnification clause. I agree with our intermediate court that to hold otherwise “would be contradictory [and] . . . effectively undercut a minor’s rights to sue by allowing indemnity clauses that make such suits for all realistic purposes unlikely.” Rosen v. BJ’s Wholesale Club, Inc., 206 Md. App. 708, 732, 51 A.3d 100, 115 (citing Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002)).

Judge McDonald authorizes me to state that he shares the views set forth in this dissenting opinion.

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Plaintiff tried multiple ways to sue whitewater rafting company

Plaintiff premises claims do not apply to a whitewater rafting company.

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Plaintiff: James A. Sanders

Defendant: Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated

Plaintiff Claims: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner

Defendant Defenses: no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury

Holding: for the defendant

The plaintiff in this case went whitewater rafting previously with the defendant. During his second trip, he fell out of the raft injuring his knee. He later developed a staph infection from the injury. Cases where the plaintiff argues the first aid care was improper or negligent are extremely rare. However, the court rules on a technicality that throws out the plaintiff’s first aid claim and does not provide us with any direction in this area of the law.

During the trip, the plaintiff fell out of the raft and swam about 100 yards until he was rescued. During the swim, he was injured when he struck his knee on something. An employee of the defendant applied an ice bag and an elastic bandage on the trip. The Plaintiff eventually went to a hospital where he was diagnosed with a laceration and a fractured knee cap. The plaintiff later had surgery but developed a staph infection.

The plaintiff asserted the raft guide had the opportunity to rescue him but “the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water.”

The plaintiff filed suit claiming, “that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid, and this was the cause of his subsequent infection.”

Summary of the case

The Plaintiff was a citizen of Alabama. The defendant raft company was located in Pennsylvania. The river where the accident occurred is the upper Youghiogheny in Maryland. The plaintiff sued the defendant in Federal District Court. The parties agreed that a Maryland court, the state where the accident occurred was the proper site for the venue of the case.

This section of the Youghiogheny was described by the court as “most difficult of all categories of river runs.” The court made that determination by using a book that describes the rivers and ratings in the east. The court is silent on how this book was accepted by the court and introduced into evidence.

Most books like this are brought into the evidentiary change through the Federal Rule of Evidence (F.R.E.) 803(18) Learned Treatises. The rules of evidence control what evidence is introduced at trial both as documents or things and what witnesses may say. F.R.E. 803(18) states:

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Normally, the rules of evidence require a person to prove the document or book as what the evidence is, and that it is real. If you were trying to introduce the raft company brochure as a piece of evidence, you would have to have the owner or a corporate officer of the company on the stand and testify that the brochure was the brochure.

A Learned Treatise is different in two ways. The first is you do not need the author or the publisher to admit the treatise, the book into evidence. If the treatise is relied upon by an expert witness, testified as a reliable authority in the field or recognized as the authority by the court or the general public, the information in the treatise is accepted in the case. The second issue is everything in the treatise is accepted without additional testimony. Normally, it might take two or three experts to examine a river section and applying the American Whitewater Associations rating system determine the river rating. However, a book that is generally accepted in the whitewater community or by a recognized expert in the field is accepted by the court as a learned treatise under F.R.E. 803(18). Once the book is admitted, every page and statement in the book is admitted.

An important point in most recreational cases is what information the plaintiff had to assist him in his decision to engage in the sport. If the information is lacking the plaintiff introduces the evidence to prove the defendant was hiding things or did not give proper notice of the release or the dangers. If the brochure does a good job of pointing out the risks and the requirements, the defense introduces the brochure into trial. In this case, the plaintiff was mailed a brochure by the defendant. The brochure was reviewed by the court, and the Court pointed out three points in the brochure.

1) Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form.

2. Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels.

3. Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

The defendant also gave the trip participants a safety talk, oral warnings as the court described them at the meeting point and at the river put in. The plaintiff denies hearing the warnings. However, the court referenced the warnings in the opinion giving credibility to them. Finally, the plaintiff signed a release for this trip; the second release signed by the defendant, which the court quoted from:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for all claims of any nature whatsoever . . . .

Failure to Rescue

The Appellate court adopted the District Court’s analysis and finding regarding the claim that the defendant was not rescued quickly. Because the only testimony about whether the rescue was quick enough was the plaintiff’s there was no proof to validate the claim. The court stated an expert witnesses needed to testify that the plaintiff should have been rescued sooner. The plaintiff’s statements were insufficient under Maryland law to prove a claim of negligence.

This claim and the court’s review did not investigate the issue of keeping the majority safe at the expense of one. In a raft and in some cases on a mountain, the guide must evaluate the risk of the rescue to the entire boat, not to the swimming customer. If rescuing the one customer in the river will put the entire boat at risk, the customer will swim a while longer. This point must be made and explained to your guests both in writing and in any safety talk. It is important for the customer in the water to know that their rescue is up to them. It is important for the people in the boat to understand they have to get the boat to a safe area and then rescue so they do not risk themselves needlessly or just quit paddling believing they should grab the swimmer.

Negligent in failing to render first aid.

The claim of negligently failing to properly render first aid is an extremely rare claim. The court again looked at the evidence presented and ruled the evidence was insufficient to meet a claim of negligence; “that the medical evidence failed to show that the infection was caused by improper first aid.” By this court the court stated, there was nothing but the plaintiff’s allegations about how he was injured. Courts want expert testimony from people in the field to rule on scientific, technical or areas of information outside of the general knowledge of the public.

Failure to Warn

The plaintiff argued that the defendant failed to “warn Sanders [the plaintiff] of the extreme danger of the particular section of river they would be traversing.”

The court first examined whether there was a general duty to warn in a non-landowner liability case. The court found that a general duty to warn exists in numerous situations. The court used the example that a stable had a duty to warn a rider of a horse with dangerous propensities.

To establish a duty to warn, the court must look at the following factors: “foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability.” Looking at the factors the court determined that “A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons.”

The warnings that the defendant gave the plaintiff were adequate as a matter of law according to the court. Warnings only need to be reasonable, not the best warnings possible. The court also found the plaintiff had notice of the risks because he had taken a prior whitewater rafting trip and because the risks of whitewater rafting are obvious: “…the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip.”

Finally, the court determined that the plaintiff’s claim that whitewater rafting was a common carrier, and thus due to a higher standard of care was without merit. By this the court meant, there was no legal or factual basis to discuss the issue.

So Now What?

There is no real information you can take from this case that we have not previously discussed. However, it does show how far some plaintiffs will go to get around and sue for an injury. The defendant had done a good job of putting out to the public information on the risks of the activity which allowed the court to make the decisions to deny the plaintiff’s claims.

Other Common Carrier Cases

WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk            http://rec-law.us/L3IfG1

Electronic release upheld in Florida federal court for surfing on a cruise ship       http://rec-law.us/LPSLWS

New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident                       http://rec-law.us/XaQSpf

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Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)

James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.

No. 92-1060

United States Court of Appeals for the Fourth Circuit

1992 U.S. App. LEXIS 15094

May 5, 1992, Argued

June 29, 1992, Decided

Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.

Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122

Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)

Disposition: Affirmed

Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.

Howard J. Schulman, Baltimore, Maryland, for Appellee.

Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Opinion by: Per Curiam

Opinion

Opinion

Per Curiam:

James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.

Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.

I

Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).

Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:

1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).

2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).

3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.

Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:

As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).

Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.

Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.

The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.

Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.

The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.

First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.

Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.

The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.

Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.

Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.

II

Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.

[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).

Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.

For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).

In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.

In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. * The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.

There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.

Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).

Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).

III

With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.

AFFIRMED

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Maryland Sales Representative

Maryland Sales Representative

Annotated Code of Maryland

LABOR AND EMPLOYMENT

TITLE 3. EMPLOYMENT STANDARDS AND CONDITIONS

SUBTITLE 6. WHOLESALE SALES REPRESENTATIVES

GO TO MARYLAND STATUTES ARCHIVE DIRECTORY

Md. LABOR AND EMPLOYMENT Code Ann. § 3-601 (2012)

§ 3-601. Definitions

(a) In general. — In this subtitle the following words have the meanings indicated.

(b) Commission. — “Commission” means compensation that:

(1) is due to a sales representative from a principal; and

(2) accrues at:

(i) a specified amount for each order or sale; or

(ii) a rate expressed as a percentage of the dollar amount that a sales representative:

1. takes in orders for the principal;

2. makes in sales for the principal; or

3. earns in profits for the principal.

(c) Principal. — “Principal” means a sales corporation, partnership, proprietorship, or other business entity that:

(1) distributes, imports, manufactures, or produces a product for wholesale;

(2) enters into a contract with a sales representative to solicit a wholesale order for the product; and

(3) pays the sales representative wholly or partly by commission.

(d) Sales representative. —

(1) “Sales representative” means a person who:

(i) enters into a contract with a principal to solicit in the State a wholesale order; and

(ii) is paid wholly or partly by commission.

(2) “Sales representative” does not include a person who:

(i) buys a product or places an order for a product for resale by that person; or

(ii) sells or takes an order for the sale of a product to an ultimate buyer.

§ 3-602. Scope of subtitle

This subtitle does not apply to an individual who is considered under the Maryland Wage Payment and Collection Law to be employed by a principal.

§ 3-603. Void waivers

A provision of a contract that is made between a sales representative and a principal is void if the provision purports to waive any provision of this subtitle by:

(1) an express waiver; or

(2) a contract subject to the laws of another state.

§ 3-604. Payment of commission on termination of contract

Each principal shall pay to a sales representative all commissions that are due under a contract that is terminated, within 45 days after payment would have been due if the contract had not terminated.

§ 3-605. Action by sales representative

(a) Treble damages. —

(1) Subject to the requirement of paragraph (2) of this subsection, if a principal violates § 3-604 of this subtitle, a sales representative whom the violation affects is entitled to bring an action against the principal to recover up to 3 times the amount of all commissions that the principal owes to the sales representative.

(2) At least 10 days before an action is brought under this subsection, the sales representative shall give the principal written notice of intent to bring the action.

(b) Costs. — If a court determines that a sales representative is entitled to judgment in an action under this section, the court shall allow against the principal reasonable counsel fees and court costs.

§ 3-606. Personal jurisdiction

For purposes of personal jurisdiction under § 6-103 of the Courts Article, a principal who contracts with a sales representative to solicit wholesale orders for a product in the State is considered to be transacting business in the State.

§ 3-607. Revocable offer of commission

(a) Entitlement to commission. — If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed on if:

(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for the purpose of avoiding payment of the commission; or

(2) (i) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and

(ii) the principal’s product that is the subject of the order is shipped to and paid for by a customer.

(b) Construction of section. — This section may not be construed to:

(1) impair the application of § 2-201 or § 2-209 of the Commercial Law Article;

(2) abrogate any rule of agency law; or

(3) unconstitutionally impair the obligations of contracts.

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Maryland cycling product liability case shows why a good defense may wear down the plaintiff

 Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317

Pre-printed release allows most claims to proceed

Basically, a release you buy as a form or from a print shop is not valid and will not get you out of a lawsuit. Releases must be written by an attorney for your business as this bicycle retailer learns in with this decision.

The plaintiff was a 77-year-old man who purchased a bicycle from the retailer, the Sports Authority (TSA). The bicycle was made by Pacific Cycle, Inc., and Dorel Industries, Inc. The brakes on the bicycle were center pull brakes and after riding the bike a half-dozen times the plaintiff used the brakes and fell. He claimed center pull brakes were only for experts, and he was not an expert cyclist. The plaintiff claimed:

Count I that Defendants were negligent, careless, and reckless because TSA failed to provide proper training in the use of high-performance brakes at the point of sale and Pacific Cycle installed brakes designed for experienced riders on a bicycle meant for the general public’s use. In Count II, Plaintiff alleges that Defendants are strictly liable for his injuries because the bicycle was placed in the stream of commerce and sold in a defective and unreasonably dangerous condition.

At the time, the plaintiff bought the bike; he completed a “sales/repair ticket” which included release language and language that stated the plaintiff had been educated in the use of the bike and the brakes. “I have been shown the proper way to operate the shifting, braking and release mechanisms of this bicycle.” The sales/repair ticket was a form used by man bike shops.

The defendant retailer The Sports Authority filed a motion for summary judgment, which led to this appeal. The basis of the appeal was:

(1) the release agreement Plaintiff signed expressly releases TSA from liability, (2) TSA had no duty to train Plaintiff, (3) Maryland law provides a statutory defense to sellers in defective design cases such as this, and (4) Plaintiff’s disregard for the written warnings is an intervening cause of his injury and provides a defense to strict liability.

Summary of the case

Release written poorly

The first argument the court looked at was the issue of the release that was part of the Sales/Repair Ticket. The release only released the retailer and did not release the manufacturers. This allowed the plaintiff to argue the release should not allow the defendant retailer out of the case because their issues were no different from the two other defendants not protected by the release. The court agreed. Although there was nothing wrong with the release, because it did not protect all the defendants, it could not be used for just one defendant.

Arguments to void release under Maryland law

Under Maryland law, a court looks at a release or contract to determine the effect of the release based on the intentions of the parties. This requires a release to be written properly under Maryland law. Here the court did not find the release was written in a way to cover the interpretation the retailer was arguing. The major issue was the language did not protect the other defendants so those claims that were joint against the other defendants and TSA, kept TSA in the lawsuit. If the plaintiff had not named the other defendants, the release would have protected TSA.  Simply put the language of the release did not cover the claims of the plaintiff.

The court also looked at what it took to void a release under Maryland law.

(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and (3) when the transaction involves the public interest.

The issues that void a release are basically the same under Maryland law as in other states. The first one is the acts of the defendant intentionally harmed the plaintiff. No contract protects against intentional acts, and no insurance policy covers intentional acts. If you do something intentionally that injures someone you are going to write a check.  The next two issues are similar to public policy arguments. The first is the plaintiff has no choice but to contract with the defendant and no choice but to take the contract on the terms offered by the defendant. The second is a purer public policy argument where the item offered by the defendant is public interest such as utilities, food or public transportation. Under Maryland law, a public interest that cannot use a release is:

…the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that-are so important to the public good that an exculpatory clause would be “patently offensive,” such that “the common sense of the entire community would . . . pronounce it” invalid.

The court found that the sale of a bicycle did not fall within any of the categories in this case that would void the release.

Failure to name defendants specifically

The next argument is one that has been made several times in releases and bicycle shops. Many bicycle shops purchase pre-printed forms from bicycle companies that include a release. The forms cover rentals, repair checklists, inventory issues, etc. The release does not name the defendant, but just refers to the “bicycle shop.” This argument has been made several times in other cases and someday may succeed. Here it did not, because the court found it was clear enough to the parties that the term bicycle shop referred to TSA in the release. However, as stated above, the release kept the lawsuit going because it only referred to the bicycle shop, not the manufacturers.

Release stated the plaintiff had been educated in how to use the bicycle

The next argument the court reviewed was the statement in the release that said the plaintiff has been shown the “the proper way to operate the shifting, braking and release mechanisms of this bicycle….” The court quickly dismissed the argument that the plaintiff should not be held to this defense because the plaintiff signed the agreement, so he had been instructed.

The court then looked at the plaintiff’s argument that the bicycle shop had failed to train the plaintiff in how to ride the bike and operate the equipment. The court held that there can be no negligence where there is no duty. Bicycle shops have no requirement to train people in how to ride a bike. Remember negligence has for things that must be proven to win a lawsuit. The first is there must be a duty between the plaintiff and the defendant. Here, the shop had no duty to train a buyer in how to ride a bicycle.

Expert Witness not qualified

One interesting issue the court looked at was the plaintiff’s attempt to establish a duty on the part of the retailer to train a buyer using an expert witness. The expert witness testified that there was a duty to train a buyer on how to use and ride a bike. However, the court found the expert witness’s credentials did not show any retail experience that would allow the expert to give that opinion retailer issues. An expert can only provide an opinion on those things he has training, knowledge, education or experience in. Because the expert witness’s resume or CV did not show any retail experience, the court questioned his ability opining about those issues. The court did give the plaintiff two weeks to come back with an additional statement showing that expert did have retail experience.

Maryland “sealed container” defense

The next issue was an argument raised by the defendant retailer, TSA, based on a Maryland statute. The statute is called the “sealed container” defense. The statute says a retailer cannot be held liable under a product’s liability claim for a product that has not been changed by the retailer. The defense is effective if the product is sold in a sealed container not changed or altered by the retailer. Here, however, the court found the bike had been sold out of the box. For the statute to provide a defense the bike would have to have been sold by the store in the original box the bike came to the store in.

The defense also failed because the defendant retailer hired a third party to build the bike.

The basis for the theory behind the statute is a retailer could not have found any defect in the product if they never opened the box the product came in. Courts in product liability claims hold that any person in the chain of sale from the manufacturer to the final seller is liable for a product liability claim because anyone of them could have discovered the defect in the product and prevented the injury to the consumer.

The court withheld its ruling on this issue until a later time because TSA hired the third party to build the bikes as stated above which further confused the defense.

Strict Liability Claim

Strict liability is a claim in product’s liability cases that argues the manufacturer and others in the chain of commerce are liable for placing a dangerous product into the hands of a consumer. Strict liability claims have very few defenses other than the item was not defective and unreasonably dangerous. Under Maryland law, a product is defectively dangerous if:

…if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics….

A strict liability claim can be beaten if the manufacturer can prove that the consumer was warned of the risks. Here the court looked at the owner’s manual about the brakes and found the plaintiff’s strict liability argument did not apply. The manual informed the plaintiff of the risks.

It cannot be said enough, written about enough or argued enough, owner’s manuals are critical and must notify people of the issues, warn consumers of all risks of a product.

Here because the plaintiff failed to adhere to the warnings in the owner’s manual, the strict liability claim was dismissed.

So Now What?

This case was not over after the decision, and it had no other appeals to determine what happened with the case. Probably, the case settled sometime after this appeal was written. However, the case is very informative on the issues of Maryland law and product’s liability issues in general.

Specifically

1.      If you are going to use a release, have a release written that works in your state, for your business, for your legal issues. Make sure your release protects you and everyone else that should be protected. Here the release was written badly. The release escaped the claim of the defendant retailer not being identified but failed to protect the other people in the chain of sale, which allowed the case to continue. Ultimately, the release did not protect the retailer.

You, your suppliers, distributors, manufacturers, bike builders, other riders, and everyone else reasonable connected to the release, sale or event should be protected.

2.    Sell the right product to the right person. This case never would have happened if the plaintiff had purchased a bicycle he understood and knew how to use.

This does not mean you cannot upsell someone or move them into  better products. However moving someone who has not ridden a bike in a while from a coaster brake to hand brakes, requires a little more thinking. If you don’t have the right bike, is it worth the money you are going to make on the sale to make a customer this unhappy.

3.    If you are a manufacturer make sure if you are selling in the US (or North America, for that matter) that your release is written in English and contains are the necessary warnings. Written in English does not mean translated from a foreign language into English, but translated and written in English.

Warning labels have to cover everything. You may not consider them warnings; they may just be educational issues. However, the court will look at that education as a warning label.

Any warning label on the bike or product should also be repeated in the manual.

I strongly suggest that all owners’ manuals be available on your website also. Also in the owner’s manual make sure that the manual instructs the purchaser to refer to the website for changes, updates or new warnings.

4.    Always make sure that every manual, hangtag, sticker, or warning that comes in the box from the manufacturer goes out the door with the product when the bike is sold. The strict liability defense would have failed if the warning label had been left on the shop floor, and the sole issue of the case would have been how much, not if.

5.     If you are a manufacturer, tell your retailers to protect you or better, develop a program where retailers, and you work together from the beginning to beat lawsuits. Make sure the retailer has a good release that protects all parties. Make sure the retailer knows to tell purchases to read the owner’s manual and to go to your website to learn more about the product.

6.    If you are a manufacturer make your website more than just a sales site. It is a place where people can learn how to use your product. (And having a “community” site where other consumers using the product improperly tell your new customers how to use it improperly is not an answer.) Education and information are an effective way to keep customers happy and stop lawsuits.

This lawsuit would have ended if the release had been written properly. Buying a release from a form’s seller or a printing shop is buying trouble, not a defense. Nor is a release a stroke of luck. A well-written  release in 43 states stops lawsuits. (See States that do not Support the Use of a Releasefor the states that do not support a release.)

For more product liability articles see:

Combination of a Products Liability statute, an Expert Witness Report that was just not direct enough and odd facts holds a retailer liable as manufacture for product defect.

How not to respond to a product liability claim or How to turn a mess into a legal disaster.

How to fight a Bicycle Product Liability case in New York. One step at a time.

Jurisdiction in Massachusetts allows a plaintiff to bring in Salomon France to the local court.

PR Disaster should not be turned into bigger disasters

Sometimes your editorials come true: Even more so when they occurred in the past, and you found it later.

Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.

For additional articles on cycling legal issues see:

Connecticut court works hard to void a release for a cycling event

Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

PA court upholds release in bicycle race.

Release for training ride at Triathlon training camp stops lawsuit

What do you think? Leave a comment.

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Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317

Alexander v. The Sports Authority, Inc., et al., 2007 U.S. Dist. LEXIS 43317

HERBERT ALEXANDER v. THE SPORTS AUTHORITY, INC., et al.

Civil Action No. DKC 2007-0479

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

2007 U.S. Dist. LEXIS 43317

 

June 14, 2007, Decided

CORE TERMS: bicycle, brake, release agreement, summary judgment, container, sealed, seller, exculpatory clauses, retailer, front, shop, warning, high-performance, manufacturer’s, sport, retail, general contractor, design defect, written warnings, unreasonably, unaltered, training, consumer, public interest, entitled to judgment, linear-pull, bargaining, assemble, braking, grossly

COUNSEL: [*1] For Mr. Herbert Alexander, Plaintiff: Cassandra P Hicks, LEAD ATTORNEY, Hicks and Weintraub PC, Rockville, MD.

For The Sports Authority, Inc., Defendant: John S Vander Woude, LEAD ATTORNEY, Eccleston and Wolf PC, Baltimore, MD.

For Pacific Cycle, Inc., also known as Pacific Cycle LLC, Defendant: Daniel Scott Blynn, LEAD ATTORNEY, Kelley Drye and Warren LLP, Washington, DC.; Kenn Brotman, Kelley Drye and Warren LLP, Chicago, IL.

JUDGES: DEBORAH K. CHASANOW, United States District Judge.

OPINION BY: DEBORAH K. CHASANOW

OPINION

MEMORANDUM OPINION

Presently pending and ready for resolution in this product liability case is the motion of Defendant TSA Stores, Inc. to dismiss, or in the alternative, for summary judgment. 1 (Paper 7). Because the court will rely on materials outside the pleadings, the motion will be treated as one for summary judgment. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be granted in part and decision deferred in part. Plaintiff will be permitted to file a surreply on one issue.

1 Defendant TSA Stores, Inc., was incorrectly named The Sports Authority, Inc., in the complaint.

[*2] I. Background

The facts in this case are largely undisputed. On November 28, 2004, Plaintiff Herbert Alexander purchased a Schwinn Tornado M26 bicycle from the Sports Authority store located on Rockville Pike in. Rockville, Maryland.

From November 28 until January 1, Plaintiff rode the bicycle approximately six times, apparently without incident. (Paper 15, Ex. B, Alexander Aff. P 6). On January 1, 2005, when Plaintiff applied the brakes to avoid a car, he was thrown over the handlebars of his bicycle. (Paper 2 P 5). Plaintiff, 77 years old at the time, sustained multiple injuries from the fall.

Plaintiff alleges that his fall and the resulting injuries occurred because his bicycle was outfitted with high-performance, linear-pull brakes. Plaintiff alleges that these brakes were designed for experienced riders, were not meant for use by the general public, and required special training for their use. Plaintiff sued Defendants TSA Stores, Inc. (“TSA”), Pacific Cycle, Inc., and Dorel Industries, Inc., for negligence and product liability. 2 Plaintiff alleges that the bicycle’s design was defective because it included high-performance brakes on a bicycle intended [*3] for general use. Specifically, Plaintiff alleges in Count I that Defendants were negligent, careless, and reckless because TSA failed to provide proper training in the use of high performance brakes at the point of sale and Pacific Cycle installed brakes designed for experienced riders on a bicycle meant for the general public’s use. In Count II, Plaintiff alleges that Defendants are strictly liable for his injuries because the bicycle was placed in the stream of commerce and sold in a defective and unreasonably dangerous condition.

2 Dorel Industries, Inc., has been dismissed from the suit (paper 21) and Pacific Cycle has not moved for summary judgement at time.

At the time of purchase from TSA, Plaintiff executed a bicycle sales/repair ticket that included a release agreement (“release agreement”). As part of the release agreement, Plaintiff signed and dated the following statement: “I have been shown the proper way to operate the shifting, braking and release mechanisms of this bicycle. . ” (Paper 7, Ex. [*4] Al). Plaintiff also signed his initials next to each of the following paragraphs:

I understand and am aware that bicycling is a HAZARDOUS activity. I understand that the sport of bicycling and the use of this bicycle equipment involves a risk of personal injury to any and all parts of my body and that physical injury is a common occurrence of this sport. I freely and expressly assume and accept any and all risks of injury or death resulting from the use of this equipment.

I agree that I hereby release this bicycle shop, equipment manufacturer, and distributor, from any and all responsibility or liability for physical injuries to myself or others or property damage resulting from the use of this equipment. Except to the extent that such claim might be based on the sole and exclusive negligence of this bicycle shop, I agree NOT to make a claim against or sue this bicycle shop for injuries or damages relating to bicycling and/or the use of this equipment.

(Paper 7, Ex. Al) (emphasis in original). Finally, Plaintiff initialed and signed the following:

THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, [*5] WHICH EXTEND BEYOND THE DESCRIPTION OF THE BICYCLE EQUIPMENT LISTED ON THIS FORM.

I have carefully read this agreement and release and fully understand its contents. I am aware that this is a release of liability and a contract between myself and this shop and I sign it of my own free will. This agreement shall be effective and binding upon the parties hereto.

(Paper 7, Ex. Al) (emphasis in original).

TSA moves to dismiss, or in the alternative, for summary judgment. (Paper 7). TSA argues that it is entitled to judgment on all claims because (1) the release agreement Plaintiff signed expressly releases TSA from liability, (2) TSA had no duty to train Plaintiff, (3) Maryland law provides a statutory defense to sellers in defective design cases such as this, and (4) Plaintiff’s disregard for the written warnings is an intervening cause of his injury and provides a defense to strict liability. Plaintiff opposes the motion.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff’s complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). [*6] Accordingly, a 12(b)(6) motion ought not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Except in certain specified cases, a plaintiff’s complaint need only satisfy the “simplified pleading standard” of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

In its determination, the court must consider all well-pled allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). [*7] The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).

“In deciding a Rule 12(b)(6) motion, the court will consider the facts stated in the complaint and the documents attached to the complaint. The court may also consider documents referred to in the complaint and relied upon by plaintiff in bringing the action.” Abadian v. Lee, 117 F.Supp.2d 481, 485 (D.Md. 2000) (citing Biospherics, Inc., v. Forbes, Inc., 989 F.Supp. 748, 749 (D.Md. 1997), aff’d, 151 F.3d 180 (4th Cir. 1998)). When doing so, the court need not convert a Rule 12(b)(6) motion to dismiss to one for summary judgment so long as it does not consider matters “outside the pleading.” See Fed.R.Civ.P. 12(b) (“If [on a 12(b)(6) motion to dismiss,] matters outside [*8] the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .”); Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998).

It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1979). The moving party bears the burden of showing that there is no genuine issue as to [*9] any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1415, 122 L. Ed. 2d 785 (1993).

When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See United States v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element . . necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; [*10] Celotex Corp., 477 U.S. at 324. However, “[a] mere scintilla of evidence in support of the nonmovant’s position will not defeat a motion for summary judgment.” Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied, 522 U.S. 810, 118 S. Ct. 52, 139 L. Ed. 2d 17 (1997). There must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).

III. Release Agreement

TSA argues that the release agreement signed by Plaintiff at the point of sale was clear, and unambiguously releases it from liability. In particular, TSA cites the following paragraph, initialed by Plaintiff: “Except to the extent that such claim might be based on the sole and exclusive negligence of this bicycle shop, I agree NOT to make a claim against or sue this bicycle shop for injuries or damages relating to bicycling and/or the use of this equipment. . . .” (Paper 7, Ex. A1) (emphasis in original). TSA states that a plain reading of Plaintiff’s complaint illustrates [*11] that he has not made a claim based on the sole and exclusive negligence of TSA because he named two other Defendants in the suit and asserted that the manufacturer created the alleged defect in the bicycle. (Paper 7, at 6-7). Plaintiff counters that the release agreement is ambiguous because a reasonable person would not interpret the cited provision “to allow a lawsuit against the store if the store was negligent, but to exempt suits against the store if the store along with another entity were negligent.” (Paper 15, at 5).

“Maryland courts apply an objective standard when interpreting and construing contracts.” Coll. of Notre Dame of Md., Inc. v. Morabito Consultants, Inc., 132 Md.App. 158, 167, 752 A.2d 265 (2000) (citing Gen. Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306 (1985)). 3 The principal goal in the interpretation of contracts is to effect the intention of the parties. Kasten Constr. Co., Inc. v. Rod Enters., Inc., 268 Md. 318, 328, 301 A.2d 12 (1973). When a contract’s language contains clear and unambiguous terms, the court will not engage in construction, but will look solely to what was written as conclusive of the parties’ intent. [*12] Gen. Motors, 303 Md. at 261.

A court construing an agreement under this test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed.

Id.

3 The sale occurred in Maryland and the law of Maryland governs the substantive legal issues in this diversity action. Ramos v. S. Md. Elec. Co-op., 996 F.2d 52, 54 (4th Cir. 1993).

The release agreement is not ambiguous, but it does not have the meaning suggested by TSA. The release agreement does not categorically bar the entire lawsuit because Plaintiff has named other defendants. A plaintiff is always entitled to argue alternative theories of liability, something that would be ‘foreclosed by TSA’s suggested interpretation. No other court [*13] has interpreted “except to the extent that such claim might be based on the sole and exclusive negligence of . . .” to mean what TSA suggests, that a plaintiff may not sue one entity if another entity may also be at fault. Other courts have interpreted this, or similar provisions, to mean that a defendant’s liability is limited only to its own negligence. For example, a New York state court allowed injured construction workers to recover against both the general contractor and the subcontractor, even though a contract required the subcontractor to “indemnify the general contractor for all liabilities . . excluding only liability created by the [general contractors’s] sole and exclusive negligence“. Dutton v. Charles. Pankow Builders, Ltd., et al., 296 A.D.2d 321, 745 N.Y.S.2d 520 (N.Y. App. Div. 2002), app. denied, 99 N.Y.2d 511, 790 N.E.2d 276, 760 N.Y.S.2d 102 (2003). The court required the subcontractor to indemnify the general contractor, but excluded the portion of the joint liability attributable to the general contractor’s negligence. Id. Similarly, the release agreement in this case plainly allows claims that are based on TSA’s own negligence, such as Count I. The release agreement does [*14] bar claims that are based on anything other than TSA’s own negligence, such as Count II which alleges strict liability.

The next question is whether the release agreement is enforceable as to Count II. “In Maryland, unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary.” Seigneur v. Nat’l Fitness Inst., Inc., 132 Md.App. 271, 281, 752 A.2d 631 (2000). The Court of Appeals of Maryland stated:

It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent. There is in the ordinary case no public policy which prevents the parties from contracting as they see fit.

Wolf v. Ford, 335 Md. 525, 531, 644 A.2d 522 (1994) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68 (5th ed. 1984)). Three exceptions have been identified where the public interest will render an exculpatory clause unenforceable. They are: (1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, [*15] wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and (3) when the transaction involves the public interest. Wolf, 335 Md. at 531-32.

First, there is no evidence that TSA intentionally caused harm to Plaintiff or engaged in reckless, wanton, or grossly negligent conduct. Second, it is true that the release agreement is a contract of adhesion, but that fact alone does not demonstrate that TSA had grossly disparate bargaining power. 4 “To possess a decisive bargaining advantage over a customer, the service offered must usually be deemed essential in nature.” Seigneur, 132 Md.App. at 283. In Seigneur, the. Court of Special Appeals of Maryland held that gym club membership is “a good idea and no doubt contribute[s] to the health of the individual participants and the community at large. But ultimately, [it is] not essential to the state or its citizens.” Id. at 284. By the same token, purchasing a bicycle is not essential. Thus, the bargaining power of the parties was not “so grossly unequal” as to put Plaintiff [*16] at the mercy of TSA’s negligence. Third, and finally, the transaction did not involve the public interest. The Wolf court identified transactions that affect the public interest as those involving:

the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that-are so important to the public good that an exculpatory clause would be “patently offensive,” such that “the common sense of the entire community would . . . pronounce it” invalid.

Wolf, 335 Md. at 532 (internal quotation omitted). The sale of a bicycle plainly does not fall into one of these categories of transactions. Thus, none of the public interest exceptions render this exculpatory clause unenforceable as to Count II.

4 “A contract of adhesion, it is well settled, is one, usually prepared in printed form, ‘drafted unilaterally by the dominant party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to bargain about its terms.'” Holloman, 391 Md. at 602, 894 A.2d 547 (quoting Restatement (Second) of Conflict of Laws §§ 187, cmt. b).

[*17] Plaintiff argues that even if the release agreement would be enforceable otherwise, it is void in this case because it does not identify TSA or The Sports Authority by name, but rather refers to “the bicycle shop.” As support, Plaintiff cites to Signeur, 132 Md.App. 271, 752 A.2d 631, which cited with approval the determination of the Court of Appeals of Indiana in Powell v. American Health Fitness Center of Ft. Wayne, Inc., 694 N.E.2d 757 (Ind.Ct.App. 1998). In Powell, the court held that the exculpatory clause, signed by the plaintiff when he joined the gym, did not indemnify or release American Health Fitness Center of Fort Wayne (“American Health”) from claims, damages, or causes of action, where the injuries were caused by the negligence of American Health. 5 Plaintiff, however, misinterprets the holding in Powell. Plaintiff suggests that the holding in Powell requires that the party seeking release from liability be named formally in the contract. (Paper 15, at 6). This is incorrect. In Powell, the exculpatory clause was not void because it used the generic “Club” rather than the specific “American Health.” The exculpatory clause was void because it [*18] failed to “specifically and explicitly refer to the negligence of the party seeking release from liability.” Id. at 761 (emphasis added). Likewise, the exculpatory clause in this case is not void merely because it refers to the “bicycle shop” rather than “The Sports Authority” or “TSA.” Plaintiff cannot credibly claim that the identity of the other party to the contract was unclear at the time he signed the release agreement.

5 The exculpatory clause at issue in Powell is as follows:

17. DAMAGES: By signing this agreement and using the Club’s premises, facilities and equipment, Member expressly agrees that the Club will not be liable for any damages arising from personal injuries sustained by Member or his guest(s) in, on, or about the Club, or as a result of using the Club’s facilities and equipment. Member assumes full responsibility for any injuries, damages or losses which may occur to Member or their guest(s) in, on, or about the Club premises or as a result of using the Club’s facilities and equipment. Member agrees that the Club shall not ‘be liable for any loss or theft of personal property in or about the Club premises and does hereby fully and forever release and discharge the Club and all associated clubs, their owners, employees and agents from any and all claims, demands, damages, rights of action, or causes of action present or future, whether the same be known or unknown, anticipated or unanticipated, resulting from or arising out of Member’s or Member’s guest(s) use or intended use of said Club premises, facilities or equipment.

[*19] Finally, Plaintiff argues that his signature attesting to the fact that he was shown “the proper way to operate the shifting, braking and release mechanisms of this bicycle” should not be considered because there is no evidence that he, a non-expert bicyclist, knew the proper way to operate the brakes in question. (Paper 15, at 6). This argument fails because, as stated previously, “a party who signs a contract is presumed to have read and understood its terms and as such will be bound by its execution.” Holloman, 391 Md. at 595. The release agreement signed by Plaintiff at the point of sale is valid and releases TSA from liability for Count II.

IV. Count I – Negligence

Plaintiff alleges in Count I that TSA was negligent because it failed to provide proper training in the use of high-performance brakes at the point of sale. (Paper 2 P 6). To be liable for negligence, TSA must have breached a specific duty it owed to Plaintiff. “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.” Pendleton v. State,921 A.2d 196, 2007 WL 1097955, at *5 (Md. April 13, 2007) [*20] (quoting West Virginia C. & P. R. Co. v. State, 96 Md. 652, 666, 54 A. 669 (1903)).

Plaintiff has not identified any Maryland law that imposes a duty on bicycle retailers to train their customers in the use of high-performance brakes, or any other type of brakes. The authority to which Plaintiff cites, 16 C.F.R. § 1512.1 et seq. and 15 U.S.C. § 1261(s), respectively set forth bicycle manufacturing regulations and the definition of a “mechanical hazard,” as used in the commerce and trade title. Neither statute imposes a duty to train on bicycle retailers.

Plaintiff asserts that TSA’s duty to train arises from retail industry standards. Plaintiff has offered the expert opinion of James M. Green, an engineer retained by Plaintiff to investigate his accident, to establish that fact. (Paper 15, Ex. A). Mr. Green evaluated the bicycle involved in the accident and prepared a report of his findings, engineering conclusions and opinions with regard to the causal factor of the accident. (Paper 15, Ex. A P 4). As part of his findings, Mr. Green opined that TSA had a duty to instruct Plaintiff on the proper use of the [*21] brakes at the point of sale and that it is the generally accepted standard in the retail industry to provide instruction at the point of sale. (Paper 15, Ex. A PP 5-6). In its reply brief, TSA disputed Mr. Green’s qualifications to offer an expert opinion on the accepted industry standards of retailers. Plaintiff has not had an opportunity to respond to TSA’s challenge.

Federal Rule of Evidence 702 governs the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Mr. Green’s forensic engineering vitae indicates substantial educational and professional experience in the field of engineering, particularly with regard to bicycle safety. (Paper [*22] 15, Ex. A, Green Aff., Attachments). Therefore, Mr. Green may be qualified to offer an expert opinion on the technical and/or mechanical causes of the accident. From the evidence on the record, however, it does not appear that Mr. Green is qualified to offer an expert opinion on the standards or customs of the retail industry because he has not indicated any background in that area. Mr. Green’s vitae does not indicate that he has any particular knowledge, skill, experience, training, or education with regard to the retail industry, generally, or the bicycle retail industry, in particular. (Id.).

The court will defer ruling on Count I and Plaintiff will be invited to file a surreply, within fourteen days of the date of this Order, to establish Mr. Green’s qualifications as an expert in the retail industry. Defendants will have an opportunity to respond to any supplemental filing by Plaintiff.

V. Count II – Product Liability

Plaintiff alleges a design defect in the inclusion of high- performance, linear-pull brakes on a bicycle that was meant for use by the general public. TSA argues that, even in the absence of the release agreement, it would be entitled to judgment [*23] on Count II, the product liability claim, because (a) Maryland’s sealed container defense shields it from liability and (b) the numerous written warnings cure any design defect.

A. Statutory Defense

TSA argues that, as a retailer, it is shielded from the product liability claim by the sealed container defense found in the Maryland Code Ann., Cts & Jud. Proc. § 5-405. This statute provides:

(b) It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:

(1) The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form;

(2) The seller had no knowledge of the defect;

(3) The seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care;

(4) The seller did not manufacture, produce, design, or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant’s injury; and

(5) The seller did not [*24] alter, modify, assemble, or mishandle the product while in the seller’s possession in a manner which was the proximate and substantial cause of the claimant’s injury.

The sealed container defense “is not limited to products enclosed entirely in a box at the time of sale.” Quirk v. Home Depot U.S.A., 2005 U.S. Dist. LEXIS 33148, 2005 WL 3448039, at *1 (D.Md. Dec. 15, 2005). The sealed container defense covers any product that comes in a “box, container, package, wrapping, encasement, or housing of any nature that covers it . . . [and] unpackaged products that the retailer sold ‘in an unaltered form.'” Id. (citing Md. Code Ann., Cts & Jud. Proc. § 5-405).

The “fundamental purpose of the defense . . . is to limit the liability of retailers and distributors who could not have reasonably discovered defects that originated with manufacturers.” Reed v. Sears, Roebuck & Co., 934 F.Supp. 713, 718 n.4 (D.Md. 1996). Plaintiff contends, that the bicycle had a design defect because it was outfitted with high-performance, linear-pull brakes, which were not meant for use by the general public. Plaintiff further contends that TSA had knowledge of this [*25] defect, violating the second requirement of the sealed container defense. The intent of the Maryland legislature in enacting the sealed container defense was “to make the chickens of a poor design come home to roost with the manufacturer, not the retailer.” Reed, 934 F.Supp. at 718 n.4 (quoting Liesener v. Weslo, Inc., 775 F.Supp. 857 (D.Md. 1991)). Plaintiff’s claim is precisely the sort from which the Maryland legislature sought to insulate retailers when it enacted the sealed container defense.

Plaintiff further argues that the ‘sealed container defense does not apply because TSA did not sell the bicycle in unaltered form, rather it contracted with a company called Top Dog to assemble the bicycle in question. (Paper 15, at 7). Plaintiff goes on to argue that he needs time to conduct discovery to determine the details of the relationship between TSA and Top Dog and to determine whether Top Dog assembled the bicycle properly. TSA argues that Plaintiff’s admission that Top Dog assembled the bicycle supports its own argument that it sold the bicycle in unaltered form. If it is true that TSA hired Top Dog to assemble the bicycle, then Top Dog was TSA’s [*26] agent and TSA would be responsible for Top Dog’s actions under general principles of agency law. No case that has dealt with Maryland’s sealed container defense has addressed the issue of whether a retailer who hires a contractor to assemble the allegedly defective product, but sells it in unaltered form once it is received from the contractor, is entitled to the protection of the sealed container defense. Plaintiff’s plea for additional discovery on this point, however, will be denied. Plaintiff has not alleged that the bicycle was assembled improperly or that the brakes did not function as intended. In fact, by all accounts, the brakes functioned exactly as they were supposed to function. Accordingly, factual questions about the bicycle’s assembly are immaterial and discovery regarding those questions is unnecessary.

Because this is an open question of law and the court can grant judgment to TSA on Count II without deciding this question, the court will not decide whether TSA is entitled to the sealed container defense under these particular circumstances.

B. Strict Liability

In Count II, Plaintiff claims that TSA is strictly liable for placing the bicycle in the stream [*27] of commerce in a defective and unreasonably dangerous condition. TSA argues that, assuming arguendo that the inclusion of high-performance brakes made the bicycle defective, any such defect was cured by the numerous, explicit warnings contained in the owner’s manual for the bicycle.

Maryland applies the consumer expectation test in strict liability design defect cases. Simpson v. Standard Container Co., 72 Md.App. 199, 203, 527 A.2d 1337 (1987). “The consumer expectation test emanates from § 402A of the Restatement (Second) of Torts which, under certain circumstances, makes the seller of a product that is in a ‘defective condition unreasonably dangerous’ to the consumer liable for the physical harm caused to the consumer by that product.” Halliday v. Sturm, Ruger & Co., Inc., 368 Md. 186, 193, 792 A.2d 1145 (2002). A product is defectively dangerous “if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics.” Id. at 194 (quoting W. Page Keeton et al., Prosser and Keeton on the [*28] Law of Torts, § 99, at 698 (5th ed. 1984)). “[P]roof of misuse by a Plaintiff would negate an essential element of Plaintiff’s proof that a product was ‘unreasonably dangerous.'” Barnes v. Komori Am. Corp., 2005 U.S. Dist. LEXIS 41940, 2005 WL 5368331, at *2 (D.Md. Aug. 16, 2005), aff’d, 173 Fed. Appx. 302 (4th Cir. 2006). “If the Court can say as a matter of law that the plaintiff[‘s] manner of use of the product cut off the chain of proximate causation, the defendant is entitled to summary judgment. Misuse, which includes failure to follow a manufacturer’s warnings, bars recovery for a products liability claim.” Kline v. ABCO Eng’g Corp., 991 F.Supp. 747, 750 (D.Md. 1997) (quoting Higgins v. E.I. Dupont de Nemours & Co., Inc., 671 F.Supp. 1063, 1066 (D.Md. 1987)) (internal quotation marks and alterations omitted).

The owner’s manual that accompanied Plaintiff’s bicycle contained numerous warnings regarding the use of the brakes:

Do not lock up the brakes. When braking, always apply the rear brake first, then the front. The front brake is more powerful and if it is not correctly applied, you may lose control and fall. [p. 14].

[*29] Do not lock up brakes. Sudden or excessive application of the front brakes may pitch the rider over the handlebars, causing serious injury or death. When braking, always apply the rear brake first, then the front. [p. 35].

WARNING: Sudden or excessive application of the front brake may pitch the rider over the handlebars, causing serious injury or death. [p. 103].

WARNING: Some bicycle brakes, such as linear-pull and disc brakes, are extremely powerful. You should take extra care in becoming familiar with these brakes and exercise particular care when using them. Applying these brakes too hard or too suddenly can lock up a wheel, which could cause you to lose control and fall. [p. 104].

(Paper 15, Ex. B, Alexander Aff., Attachment) (emphasis in original). Plaintiff’s own expert determined that the “the causal factor of this accident appears to be the Cyclist applying the front brakes in an emergency situation.” (Paper 15, Ex. A, Green Aff., Attachment).

Plaintiff’s actions constituted misuse because he failed to adhere to the written warnings contained in the owner’s manual. A misuse is a use that is not reasonably foreseeable. See [*30] Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 595, 495 A.2d 348 (1985). It was not reasonably foreseeable to TSA that a bicyclist would apply the front brakes first, violating numerous, explicit, written warnings in the owner’s manual. See Kline, 991 F.Supp. at 750 (holding that it was not reasonably foreseeable that user would violate written warnings). “Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.” Simpson, 72 Md.App. at 206-07 (quoting Restatement (Second) of Torts 402A cmt. j). Plaintiff’s failure to obey the manufacturer’s cautions by applying the front brake first is an intervening cause of injury and relieves TSA of liability from any design defect that may have existed.

IV. Conclusion

For the foregoing reasons, the motion of TSA for summary judgment will be deferred as to Count I and granted as to Count II. Plaintiff will be invited to file a surreply on the question of Mr. Green’s qualifications as an expert [*31] witness. A separate Order will follow.

DEBORAH K. CHASANOW

United States District Judge


Sky Diving Release defeats claim by Naval Academy student

Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

Boucher v. Riner is a case that examines three issues under Maryland law that are important and to understand an appellate rule of civil procedure in one case. Those issues are: (1) the liability of a third party contractor to a military participant, (2) the validity of releases under Maryland law, and (3) how Maryland law defines Gross Negligence. The release in question also had a bargain component that allowed the signor to opt out of the release for the payment of additional fees. Finally, the appellate civil procedure rules are explained as to why appellate courts do not review issues not previously argued at the trial court level.

The Bargain component of releases is rarely seen now days. However, you can find it referenced in a few current cases. At one time, some states required the opportunity for a signor of a release to be able to bargain or pay more for the option of not signing a release. The normal trip was $100 and to do the trip without a release was $125.00. The $25 difference was not ever opted by enough people to justify the increased risk or cost to the company and their insurance company and has gradually fallen out of favor.

The plaintiff in this case was a student at the US Naval Academy. He signed up to become a member of the Naval Academy Parachuting Club (the Club), a voluntary extracurricular club at the Academy. The club was administered by upperclassman and had a faculty advisor. The plaintiff was trained by upperclassman in how to skydive. The club had a contractual relationship with Parachutes Are Fun, Inc. (Parachutes) a co-defendant in the suit. The club paid a reduced fee and used Parachutes facility and jumpmaster for skydiving. The club used its own equipment and training for club members.

On the day of the accident, the plaintiff jumped with two upper classmen, and a Parachutes jump master. A Parachutes employee was on the ground with a loud speaker directing skydivers as they neared the ground. The employee noticed the plaintiff was going to come close to some electrical lines but decided not to tell the plaintiff. The plaintiff hit the electrical lines suffering injury.

Prior to his jump, the plaintiff had signed a release. The release clause that is quoted in the case is the negligence clause and uses the word negligence. The release covers the defendant Parachutes and “its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees.”

The plaintiff filed a two count complaint alleging:

(1) Negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and

(2) Gross negligence on the part of the appellees in the performance of their duties.

The defendants filed a motion for summary judgment at the trial court level that was granted. The plaintiff then appealed the decision arguing three issues on appeal.

I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?

III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?

Under Maryland law, like the majority of states, a release does not protect a defendant from a claim of gross negligence. Gross negligence is defined by the Maryland Courts as conduct “of an extraordinary or outrageous character.” Another definition is looks at the care given to the plaintiff by the defendant: “which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Alternatively, defined as “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.

Here the acts of Parachutes employee did not rise to the definition of gross negligence. The court reviewed the actions of the employee and determined that the employee:

[W]as attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence….

We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost certain harm to others.

The second issue the court reviewed was whether the release was valid under Maryland law. Maryland has six factors that may invalidate a release.

[1] It concerns a business of a type generally thought suitable for public regulation.

[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court found that the defendants had not performed any of the six criteria that would invalidate the release. Parachutes was not performing a service important or a necessity to the public. The legislature of Maryland had not identified skydiving as important to control. Parachutes had no bargaining advantage, and the plaintiff was not under the control of Parachutes. Moreover, the plaintiff was under no requirement to jump.

The third issue was whether the individual defendant, the employee of the defendant Parachutes, who was directing the plaintiff from the ground was an employee covered under the release or an independent contractor who the plaintiff claimed would not be covered under the release. The court did not look at all issues because the court found the issue had not been argued at the lower court.

Appellate courts have always ruled that they will only review those issues that have already been reviewed at the court below. No new issues can be argued at the appellate court. All information and legal arguments must be brought up, at some point at the trial court level. Failing to do this, a party waives an issue if they do not raise it at the trial court level. For many, this seems like the court is just avoiding the issues but there are valid legal and common sense reasons for this policy, which this court enumerates.

The policy requires that the attorneys fully prepare for trial. If not, trails and appeals would go on forever because every case would be appealed and new evidence would be introduced at each appeal. Having this requirement limits the amount of appeals and forces everyone to be ready from the start. At one time, all important issues are litigated, and the jury has 100% of the information to make a fair and informed decision.

More importantly, because an appellate court cannot hear new evidence, the court would be making a judgment on issues that may not be fully explained or the court has not fully understood.

This brings up a litigation point, the references to the Rules of Civil Procedure. There are several sets of rules that an attorney must follow when litigating a case. These rules are created by the Supreme Court of each state and then modified occasionally by the court by edict and or by court decision. The Rules of Evidence control what the jury can see and hear so that the jury only hears the best evidence, and evidence does not prejudice the jury or one party. The Rules of Civil Procedure are the rules that dictate how you get to trial and appeal cases. Most of the rules define the time when things must occur or filed. However, there are several civil rules that dictate what your pleadings must contain, what size type and how those documents are conveyed to the court and the other parties in a case.

The case is a good case to read in understanding Maryland law, which is consistent with most other cases. Identifying the six areas where releases may not be valid is a major help to someone looking to a release to protect them from lawsuits.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

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Boucher v. Riner, et al. 68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

Daniel M. Boucher v. Gordon E. Riner, et al.

No. 1470, September Term, 1985

Court of Special Appeals of Maryland

68 Md. App. 539; 514 A.2d 485; 1986 Md. App. LEXIS 391

September 8, 1986

Prior History:     [***1] Appeal from the Circuit Court for Caroline County, George B. Rasin, Jr., Judge.

Disposition:    Judgment Affirmed; Costs to be Paid by the Appellant.

Counsel: Argued by David R. Thompson (Kurt D. Karsten and Franch, Earnest & Cowdrey, P.A. on the brief), Easton for appellant.

Argued by W. Michael Jacobs (Charles E. Iliff, Jr. and Semmes, Bowen & Semmes on the brief), Baltimore for appellees.

Judges: Weant, Karwacki and Wenner, JJ.

Opinion By: Karwacki

OPINION

[*540] [**486] Daniel M. Boucher, the appellant, wishing to learn how to parachute, joined the Naval Academy Parachuting Club (the Club) in September 1982. The Club is a voluntary extracurricular activity for students at the Naval Academy. The Academy, where Boucher was a midshipman, provided equipment, paid various fees, and made arrangements for the use of a drop zone for the club members. Although the Club was organized and operated by upperclass midshipmen, it had a faculty advisor, and the Club members were accompanied on field trips by naval officers.

The Club had an agreement with Parachutes Are Fun, Inc. (Parachutes), for the use of Parachutes’ drop zone as a training ground for Club members. That agreement provided that the [***2] Club would provide its own equipment and be able to use the drop zone at a reduced rate. Parachutes agreed to conform to all regulations as specified by the Academy.

Prior to Boucher’s first parachute jump, he received instructions in sport parachuting at the Academy from [*541] Midshipmen Byrne and Lastar, who were among the upper-classmen who ran the Club. The two were qualified by the U.S. Parachute Association (USPA), a civilian organization engaged in the promotion and self-regulation of the sport. Boucher’s training consisted of instruction in the hazards normally associated with parachuting, including the hazard posed by jumping in the vicinity of uninsulated electric power lines. Attention was given to the methods which should be employed by the parachutist to avoid or minimize contact with obstacles on the ground by controlling the direction of descent.

The appellees, in addition to Parachutes, are: the Pelicanland Corporation (Pelicanland), the owner of the airport where the drop area was located; Gordon E. Riner, the co-owner and vice-president of Parachutes, who is a certified jumpmaster, instructor, and parachutist; and Kenneth Dunker, a certified jumpmaster, [***3] instructor, and parachutist who worked at Parachutes.

On September 18, 1982, Boucher along with other midshipmen went to Pelicanland to make his first jump. Prior to Boucher’s boarding the airplane that day, he signed an exculpatory agreement with Parachutes, the relevant portion of which stated:

2 A. EXEMPTION FROM LIABILITY

The Participant exempts and releases the Corporation, its owners, officers, agents, servants, employees, and lessors and the County of Sussex, its officers, agents, servants and employees from any and all liability, claims, demands or [**487] actions or causes of action whatsoever arising out of any damage, loss or injury to the Participant or the Participant’s property while upon the premises or aircraft of the Corporation or while participating in any of the activities contemplated by this Agreement, whether such loss, damage, or injury results from the negligence of the Corporation, its officers, agents, servants, employees or lessors or from some other cause.

[*542] At about 5:30 p.m., a decision was made that wind conditions were such that the jump could be made. Boucher went up in the plane with two other midshipmen and with Riner, [***4] who was there to act as coach and jumpmaster. Dunker was on the ground, near the target area, and was manning the public address system to “talk down” the jumpers. Boucher was the last of the three to jump. After Boucher’s parachute opened, Dunker began calling out his instructions, telling Boucher to change from a “running” position where his back was to the wind, to a “holding” position, facing the wind. As Boucher neared the ground, Dunker instructed him to execute a 360o turn. At this point, Dunker realized that there was a danger that Boucher would fly right into nearby power lines. He gave no indication of that danger to Boucher, who continued his descent with his back to the lines. Seconds later, Boucher collided with the lines, sending 12,500 volts of electricity through his body.

Boucher filed a two count declaration against the appellees alleging (1) negligence on the part of the appellees as owners or occupiers of the drop zone, because of the location of the electric lines in relation to the drop zone, and (2) gross negligence on the part of the appellees in the performance of their duties. The appellees jointly moved for summary judgments. On July 24, 1985, [***5] following a hearing, the Circuit Court for Caroline County (Rasin, J.), in a well reasoned memorandum opinion, granted the appellees’ motion. Boucher, in his appeal from those judgments, presents the broad question of “whether the trial court improperly granted summary judgment to the defendants?”

Specifically, he raises the following issues:

I. Whether the evidence presented a genuine issue of fact as to the defendants’ gross negligence?

II. Whether the exculpatory agreement signed by the plaintiff shortly before the accident precluded all recovery against the defendants based on negligence?

[*543] III. Whether there exists a genuine issue of fact as to the defendant Dunker’s status as an independent contractor?

Preliminarily, since the hearing court resolved this controversy in favor of the appellees by summary judgment, we will review the evidence, including all permissible inferences therefrom, in the light most favorable to the appellant. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663 (1984); Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-18, 382 A.2d 555 (1978).

Summary judgment should be granted only upon a showing that there [***6] is no genuine issue as to any material fact. Fireman’s Fund Ins. Co. v. Rairigh, 59 Md.App. 305, 313, 475 A.2d 509, cert. denied, 301 Md. 176, 482 A.2d 502 (1984). If there is a conflict between the inferences which may be drawn from the evidence before the court, summary judgment is not proper. Coffey v. Derby Steel Co., 291 Md. 241, 246-47, 434 A.2d 564 (1981). Our review of all of the evidence in the light most favorable to the appellant convinces us that the hearing court was correct in finding, that there was no genuine dispute as to any material fact and that the appellees were entitled to judgments as a matter of law.

I.

Boucher contends that the appellees were guilty of gross negligence and that even if the exculpatory clause is held to be valid it does not shield the appellees from liability for gross negligence. As to the latter part of Boucher’s assertion—that the [**488] appellees are not shielded from liability for gross negligence—he is correct. A waiver of a right to sue, such as the one executed between Boucher and Parachutes, is ineffective to shift the risk of a party’s own willful, wanton, reckless, or gross conduct. Winterstein v. [***7] Wilcom, 16 Md.App. 130, 134-36, 293 A.2d 821, cert. denied, 266 Md. 744 (1972). Dean Prosser explains such a result on the alternative bases of common experience as to what is intended by the contracting parties or of public [*544] policy to discourage aggravated wrongs. Prosser and Keeton, The Law of Torts § 68 (5th ed. 1984).

Returning to the first part of Boucher’s contention—that the appellees were guilty of gross negligence—we find ourselves in agreement with the hearing court that Boucher fails in his reliance on essentially three facts to raise an inference of gross negligence. Boucher alleges that the appellee Dunker was on the ground giving instructions to Boucher as he was descending; that Boucher was unaware of the electric lines prior to colliding with them because, as Dunker had instructed, his back was to the lines; and that Dunker did not warn Boucher of the presence of the power lines. Boucher argues that an inference of gross negligence can be drawn from the above circumstances because Dunker was “controlling” Boucher’s movements and thus guided Boucher into the electric lines.

Gross negligence has been examined in a number of Maryland cases [***8] dealing with a variety of issues. These cases have addressed issues which include the circumstances under which gross negligence can support an award of exemplary damages, 1 civil liability for injuries to trespassers, 2 and criminal liability for manslaughter by automobile. 3 Our appellate courts have also dealt with the issue of gross negligence in the context of the type of conduct that would support an inference sufficient to overcome the bar of an [*545] automobile guest statute, 4 contributory negligence, 5 and, as in this case, a pre-injury release. 6

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1. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972); Bannon v. B. & O. R.R. Co., 24 Md. 108 (1866).

2. Murphy v. Baltimore Gas & Elec., 290 Md. 186, 428 A.2d 459 (1981); Mondshour v. Moore, 261 A.2d 482, 256 Md. 617 (1970); Mech v. Hearst Corp., 64 Md.App. 422, 496 A.2d 1099 (1985), cert. denied, 305 Md. 175 501 A.2d 1323 (1986); Medina v. Meilhammer, 62 Md.App. 239, 489 A.2d 35, cert. denied, 303 Md. 683, 496 A.2d 683 (1985).

3. Johnson v. State, 213 Md. 527, 132 A.2d 853 (1957). [***9]

4. Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968).

5. Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985).

6. Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 831, cert. denied, 266 Md. 744 (1972).

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In Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972), the Court of Appeals addressed the issue of gross negligence in the context of punitive damages. In that case, a boy was killed after he was struck by a truck owned by the defendant concrete company and driven by an inexperienced 18 year-old. In an action seeking compensatory and exemplary damages, the executor of the decedent’s estate sued Gray Concrete for negligent entrustment of the vehicle and the driver for negligent operation of the truck. The complaint stated that the corporate defendant had entrusted the truck to the driver knowing that the truck’s hood was improperly secured and that it could pop open at any time, that the driver was only 18 when the law required its drivers to be over 21 years of age, that the driver had no chauffeur’s license, and that the driver was [***10] untrained, unqualified, and incompetent to drive the truck on the highway. Id. at 169, 297 A.2d 721. The count against the driver alleged that he did not check the condition of the truck prior to operating it on the highway, that he did not respond properly when the hood flew up and blocked his vision—he stopped his truck in the center lane of the highway rather than pulling it off to the side—and that he knew or should have [**489] known that the truck was in violation of many requirements of the law. Id. at 170-71, 297 A.2d 721.

The Court concluded that punitive damages were recoverable in actions arising out of motor vehicle torts where there was a “’wanton or reckless disregard for human life’ in the operation of a motor vehicle, with all the known dangers and risks attendant to such conduct.” Id. at 168, 297 A.2d 721. The Court stated that the standard contemplated conduct which was of an “extraordinary or outrageous [*546] character,” but which stopped short of “wilful or intentional injury.” Id.

In Smith, the Court held that punitive damages were not recoverable against the driver of the truck because his conduct, “although constituting [***11] sufficient negligence to support a claim for compensatory damages, does not mount up to ‘a wanton or reckless disregard for human life.’” Id. at 171, 297 A.2d 721. In other words, although the driver may have exercised extremely poor judgment in his operation of the truck, his conduct was not of an extraordinary or outrageous character so as to constitute gross negligence.

On the other hand, the corporate defendant was found to be subject to possible exemplary damages. The conduct of Gray Concrete “did not occur under the pressures of a highway crisis, where what might superficially appear to be caused by ‘extraordinary or outrageous conduct’ could be merely the result of poor judgment exercised under such circumstances.” Id. at 172, 297 A.2d 721. The Court noted that Gray’s conduct reflected a premeditated decision by an employer in possession of facts which should have indicated almost certain harm to others. Id.

In another instructive case, Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838 (1985), the Court of Appeals had to determine whether there had been a showing of legally sufficient evidence of gross negligence to defeat the defendants’ motions [***12] for summary judgment. Liscombe involved the driver of a dump truck who was injured when the raised bed of his truck came into contact with high voltage lines that passed over the site. The driver alleged that the gross negligence of both the power company and the occupier of the premises led to his being injured. Id. The Court quoted from Bannon v. B. & O. R.R. Co., 24 Md. 108, 124 (1866), where it was said: “Gross negligence is a technical term, it is the omission of that care ‘which even inattentive and thoughtless men never fail to take of their own property,’ it is a violation of good faith.” Id., 303 Md. at 634-35, 495 A.2d 838. The Court then noted its decision in Romanesk v. Rose, 248 Md. 420, 237 A.2d 12 (1968) [*547] (applying Virginia law), in which it quoted with approval the definition of gross negligence from 4 Blashfield, Cyclopedia of Automobile Law and Practice § 2771 (1946 ed.) as:

an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. [***13] Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.

Id. at 423, 237 A.2d 12.

In concluding that the evidence of gross negligence before the hearing court was insufficient, the Court assumed without deciding that the “lesser standard” of Smith v. Gray Concrete Pipe Co., supra, was the appropriate test for determining whether legally sufficient evidence of gross negligence by either defendant had been shown. The Liscombe Court noted the defendants’ efforts to minimize exposure to the danger, that there was no evidence of indifference by the defendants to the safety of others, and that there was no indication to either that almost certain harm to others would result from the defendants’ action or their failure to act. The Court stated that, [**490] “[t]here was, in short, no showing of facts establishing extraordinary or outrageous conduct mounting up to a wanton or reckless disregard for human life on the part of either defendant.” Id.

We rely on the guidance of Liscombe [***14] and Smith in deciding whether the conduct of the appellee Dunker in this case amounted to gross negligence. In Smith, the Court of Appeals noted that “the conduct alleged here reflects a premeditated decision, deliberately arrived at, by an indifferent employer in possession of facts which should have indicated almost certain harm to others.” 267 Md. at 172, 297 A.2d 721. In the case sub judice, viewing all of the evidence in the light most favorable to the appellant, we [*548] cannot say that Dunker’s conduct amounted to a wanton or reckless disregard for Boucher’s life. The undisputed material facts of this case show that Dunker was attentive to Boucher’s descent, that he was stationed in the proper location, and that he was calling out instructions to Boucher as was expected of him. There was no showing of indifference on the part of Dunker. Rather, the conduct alleged here reflects, at worst, poor judgment on the part of Dunker that, while perhaps amounting to ordinary negligence, does not rise to the level of gross negligence. We see no evidence of a premeditated decision, deliberately arrived at, by an indifferent jumpmaster that should have indicated almost [***15] certain harm to others.

II.

The appellant next argues that the exculpatory agreement which he signed shortly before his jump is unenforceable. 7 We disagree.

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Whether this issue is even preserved for our review is questionable since it was not explicitly raised below. On the assumption that it was implicitly preserved for our review, however, we will address the issue.

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The Maryland law regarding exculpatory clauses can be stated quite succinctly. In the absence of legislation to the contrary, there is ordinarily no public policy which prevents the parties from contracting as they see fit. Winterstein v. Wilcom, 16 Md.App. at 135, 293 A.2d 821. “It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.” Id., quoting Prosser, The Law of Torts § 67 (3d ed. 1964). There are, of course, exceptions to the general [***16] rule, and the appellant would have us here find either of two exceptions applicable. The first is that such an agreement will be invalid if the relationship of the parties is such that one [*549] party is at an obvious disadvantage in bargaining at the time the contract is entered so that the effect of the contract is to put him at the mercy of the other’s negligence. Winterstein, 16 Md.App. at 135-36, 293 A.2d 821. The second exception invalidates exculpatory agreements if they are part of a transaction affected with a public interest. Id. at 136-37, 293 A.2d 821. We will examine the exculpatory agreement sub judice, in light of the evidence before the hearing court to determine the applicability of either exception.

Boucher joined the Club of his own volition sometime prior to September 18, 1982. His participation in the Club was not required by the Academy. Further, Boucher was not compelled by Parachutes to agree to the waiver of his right to sue. Had Boucher so wished, he could have chosen the option provided by Parachutes under Paragraph 2B 8 of the Agreement to pay an additional fee of $ 300 to nullify the [**491] waiver of paragraph 2A. Boucher [***17] chose not to pay the additional fee thereby waiving his right to sue in the event of an accident involving the negligence of the defendants.

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8. 2B ALTERNATIVE PROVISION:

In consideration of the deletion of the provisions, 2A, 3, 4 and 6 herein regarding EXEMPTION FROM LIABILITY COVENANT NOT TO SUE, INDEMNITY AGAINST THIRD PARTY CLAIMS, and CONTINUATION OF OBLIGATION the Participant has paid the additional sum of $ 300.00 upon execution of this agreement, receipt of which is hereby acknowledged by the Corporation.

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The case of Winterstein v. Wilcom, supra, involved an exculpatory contract with language similar to the instant Agreement. In Winterstein, the appellant had signed an exculpatory agreement in connection with his use of a drag strip operated by the defendant. The plaintiff was injured when his car struck an automobile cylinder head which had not been cleared from the track prior to the plaintiff’s use of the drag strip. Winterstein, 16 Md.App. at 133, 293 A.2d 821 . This Court held that [***18] the exculpatory agreement [*550] was not void as against public policy. We noted there that there was “not the slightest disadvantage in bargaining power between the parties.” Id. at 138, 293 A.2d 821.

We stated that the plaintiff “was under no compulsion, economic or otherwise, to race his car. He obviously participated . . . simply because he wanted to do so . . . . This put him in no bargaining disadvantage.” Id. We make a similar determination in the instant case. Boucher was under no compulsion to make a parachute jump, and he did so merely because he wanted to do so. He was not at a bargaining disadvantage.

This Court in Winterstein identified six factors to be considered in determining whether a transaction is so affected by public interest as to invalidate exculpatory provisions. Quoting from a decision by the Supreme Court of California, sitting en banc, we stated:

[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of [***19] great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser [*551] is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Winterstein, 16 Md.App. at 137, 293 A.2d 821.

Clearly, the transaction in which the appellant engaged on September 18, 1982, exhibited none of these characteristics. Parachutes is not performing a service of [***20] great importance or a matter of practical necessity for any member of the public. The Legislature has not thought sport parachuting suitable for public regulation. As the service is not of an essential nature, Parachutes had no decisive advantage of bargaining strength against any member of the public seeking to participate. Boucher was not “under the control” of Parachutes or its employees in such a way that he was subject to the risk of carelessness by Parachutes—Boucher had received training in obstacle avoidance. Finally, Boucher was under no obligation to make the jump. Cf. Winterstein, 16 Md.App. at 138, 293 A.2d 821. We therefore hold that the exculpatory clause signed by Boucher was not void as against public policy.

III.

Lastly, the appellant argues that summary judgment should not have been granted because “[t]here exists a genuine issue of [**492] fact as to whether defendant Dunker’s status at Parachutes Are Fun, Inc. was that of servant or independent contractor.” The short answer is that the appellant has not preserved this issue for our review. Rule 1085. In the summary judgment proceedings before the hearing court, the appellant did not attempt [***21] to contradict any of the affidavits, admissions, deposition excerpts, or any evidence presented by the appellees in support of their summary judgment motion.

Furthermore, the appellant did not argue at the hearing on the motion that Dunker was an independent contractor. By failing to make this argument before the hearing judge, the appellant did not show that court, with some precision, a genuine and material dispute. [*552] Sherman v. Am. Bankers Life Assur., 264 Md. 239, 242, 285 A.2d 652 (1972).

The appellant himself conceded in his brief to this Court that the only time that the status of the appellee Dunker was raised by the appellant, up to and including the summary judgment hearing, was in the complaint he filed in the Circuit Court. In paragraph six of the complaint, the appellant alleged:

Defendant Kenneth Dunker, on September 18, 1982, acted as an agent of both Parachutes Are Fun, Inc., and Pelicanland Corporation. He also acted independently in his capacity as a licensed parachute jump master. (Emphasis supplied).

To us, the above quoted paragraph appears to be an acknowledgement that the appellant recognized Dunker as an agent of Parachutes [***22] and of Pelicanland. Given that the exculpatory clause released from liability “the Corporation, its owners, officers, agents, servants, employees, and lessors . ..” (emphasis added), the appellant’s argument, without more, does not appear to have any merit. Surely the phrase “[h]e also acted independently,” read in the context of the rest of paragraph six of the appellant’s complaint, cannot be taken to mean that the appellant asserts that Dunker was an independent contractor. But therein lies the danger behind an appellate court attempting to review an issue that was not passed upon by the court below. In order to prevent such a situation, this Court ordinarily will not decide a question that has not been raised and decided by the lower court. Rule 1085; Washington Homes v. Baggett, 23 Md.App. 167, 326 A.2d 206 (1974), cert. denied, 273 Md. 723 (1975). The requirements of Rule 1085 are matters of basic fairness to the hearing court, and to opposing counsel, as well as being fundamental to the proper administration of justice. Medley v. State, 52 Md.App. 225, 448 A.2d 363 , [***23] cert. denied, 294 Md. 544 (1982).

JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANT.