Spring is here, and with it comes an increased time of physical activity, including outdoor sports, swimming, and other amusement.
Have you ever wondered what rights you are actually giving up when you sign a waiver as part of the process of joining a gym?
What about when you sign a waiver on behalf of your child so that he or she can attend a birthday party at a child’s recreational facility featuring trampolines, climbing, or laser tag?
What about when you sign your child up to participate in a sport?
What is an “Exculpatory Clause”?
An “exculpatory clause” is a clause within a written document–usually a waiver–which prospectively releases somebody from liability.
Exculpatory clauses were generally enforceable in Maryland, so long as:
- Language in the clause clearly stated that the releasing party was releasing the other party from the other party’s own negligence;
- The negligent conduct in question was not intentional, grossly negligent, or criminal.
- The contract to waive the liability of one party did not result from grossly unequal bargaining power and did not adversely affect the public interest.
The legal principles that allow and enforce these exculpatory clauses are the freedom of contract and the assumption of risk.
The Way It Was Prior to October 2024?
Prior to October 1, 2024, if you signed a document with an exculpatory clause, you were giving up the right to sue a negligent entity, even if that entity’s negligence or its employees’ negligence caused you or your child serious injury!
The Maryland Court of Appeals (now the Maryland Supreme Court) ruled in 2013 that an adult could sign an exculpatory clause that not only waived his/her right to sue, but also waived the right of a minor child to sue if the minor child was injured.
In a suit against BJ’s Wholesale Club, a child was badly injured in the play area at a BJ’s club after falling from play equipment onto a concrete floor. Prior to the child’s access to the play area, the parent had signed a waiver form containing an exculpatory clause on behalf of the child. The court ruled in favor of BJ’s, finding that the exculpatory clause in the waiver document validly released BJ’s Wholesale Club from liability.
Maryland Law Evolves in October 2024
Effective October 1, 2024, a new law went into effect.
A contract with an exculpatory clause is unenforceable if it seeks to reduce the liability of a commercial recreational facility (such as a gymnasium or swimming pool), a commercial athletic facility, or an amusement attraction for the negligence of the facility or its employees.
The new law does not apply to adults who sign health club service agreements, nor does it apply to state or local governments that lease land or facilities to a recreational facility. The new law also does not apply to hotel pools and fitness facilities.
So What Rights Do You Give Up When You Sign a Waiver?
So, what rights do you give up now when you sign a waiver or other document containing an exculpatory clause?
When you sign a waiver or exculpatory clause, you may be giving up the valuable right to sue certain parties and entities who injure you.
However, under Maryland’s relatively recent law, you can no longer contractually forfeit the right to sue a gymnasium, swimming pool, amusement park, or athletic facility for its negligence or the negligence of its employees, which results in injury.
Remember, however, that the individual circumstances of each case are different and must be closely and individually examined before a legal conclusion can be drawn as to one’s rights where one has signed a contract including an exculpatory clause.
If you are injured due to the negligence of others, please contact personal injury attorneys Dan Shaivitz or Phil Kuljurgis at Bulman Dunie Burke & Feld, Chtd., who can help you understand your legal rights. Call us at (301) 656-1177 or e-mail us at dshaivitz@bulmandunie.com or pkuljurgis@bulmandunie.com.
