exculpatory clause in Maryland

2013Thereafter, BJ’s filed a motion for summary judgment under Rule 2-501 5 alleging 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 unen forceable, because they violated Maryland’s public policy interest of protecting children.

2013Thereafter, BJ’s filed a motion for summary judgment under Rule 2-501 5 alleging 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 unen forceable, because they violated Maryland’s public policy interest of protecting children.

2012Brown Real Estate, Inc., 344 Md. 254, 257 , 686 A.2d 298 (1996), by “denying] an injured party the right to recover damages from the person negligently causing the injury,” Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 491 , 834 P.2d 6 (1992), while an indemnification clause “attempts to shift responsibility for the payment of damages to someone other than the negligent party, usually back to the injured party,” thereby “producing the same result as an exculpatory clause.” Id.

2012Brown Real Estate, Inc., 344 Md. 254, 257 , 686 A.2d 298 (1996), by “denying] an injured party the right to recover damages from the person negligently causing the injury,” Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 491 , 834 P.2d 6 (1992), while an indemnification clause “attempts to shift responsibility for the payment of damages to someone other than the negligent party, usually back to the injured party,” thereby “producing the same result as an exculpatory clause.” Id.

2000An exculpatory clause “is sufficient to insulate the party from his or her own negligence ‘as long as [its] language ... clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence____’ ” Adloo, 344 Md. at 266 , 686 A.2d 298 (quoting Barnes v. New Hampshire Karting Assn., 128 N.H. 102 , 509 A.2d 151, 154 (1986)).

2000An exculpatory clause “is sufficient to insulate the party from his or her own negligence ‘as long as [its] language ... clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence____’ ” Adloo, 344 Md. at 266 , 686 A.2d 298 (quoting Barnes v. New Hampshire Karting Assn., 128 N.H. 102 , 509 A.2d 151, 154 (1986)).

2000Powell, 694 N.E.2d at 761-62 ; see also Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. *280 1996) ; Rickey v. Houston Health Club, 863 S.W.2d 148, 150 (Tex.App.1993).

1996To be sure, as the weight of authority makes clear, Hardage Enterprises, Inc. v. Fidesys Corporation, 570 So.2d 436, 437 (Fla.App.1990), the exculpatory clause need not contain or use the word “negligence” or any other “magic words.” Id.; Audley, 640 A.2d at 778 ; Alack, 923 S.W.2d at 335-36 .

2013Judge Bollinger, rather, relied upon a final 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 of the public interest exception by dissecting Winterstein , in which the Court of Special Appeals

2013Judge Bollinger, rather, relied upon a final 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 of the public interest exception by dissecting Winterstein , in which the Court of Special Appeals

2013P. & 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).

2013In 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).

2013Thus, 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 The Rosens contend, alternatively, that Section 6-405 is without relevance, arguing that a prospective waiver of a negligence claim as exculpation is “fundamentally 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 li

2013Co., 204 N.C. 320 , 168 S.E. 500, 504 (1933) (invalidating 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 (1919) (invalidating an exculpatory clause between a customer and a telegraph-service provider); Reeder v. W.

2013Co., 204 N.C. 320 , 168 S.E. 500, 504 (1933) (invalidating 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 (1919) (invalidating an exculpatory clause between a customer and a telegraph-service provider); Reeder v. W.

2013We, however, refrained from addressing liability, opining that, “[a] judgment by default, while it may require extension by way of proof of damages, Rule 648, is still final in respect of the question of the liability of the party against whom it is obtained,” and accordingly we could not “go behind the judgment by default to examine into and determine upon the validity of the cause of action upon which suit is instituted!.]” Id. at 328 , 277 A.2d at 584 (citations omitted).

2013We, however, refrained from addressing liability, opining that, “[a] judgment by default, while it may require extension by way of proof of damages, Rule 648, is still final in respect of the question of the liability of the party against whom it is obtained,” and accordingly we could not “go behind the judgment by default to examine into and determine upon the validity of the cause of action upon which suit is instituted!.]” Id. at 328 , 277 A.2d at 584 (citations omitted).

2013I 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)).

2013P. & 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).

2013P. & 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).

2013Co., 204 N.C. 320 , 168 S.E. 500, 504 (1933) (invalidating 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 (1919) (invalidating an exculpatory clause between a customer and a telegraph-service provider); Reeder v. W.

2013Co., 204 N.C. 320 , 168 S.E. 500, 504 (1933) (invalidating 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 (1919) (invalidating an exculpatory clause between a customer and a telegraph-service provider); Reeder v. W.

2013Gas & Power Co., 42 Wash.2d 542 , 256 P.2d 825 (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 e

2013Gas & Power Co., 42 Wash.2d 542 , 256 P.2d 825 (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 e

2000See, e.g., Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581 , 147 Ill.Dec. 187 , 559 N.E.2d 187, 190 (1990)(en-forcing exculpatory clause “that could not have been more clear or specific” in releasing health club from liability); My Fair Lady of Georgia, Inc. v. Harris, 185 Ga.App. 459, 460 , 364 S.E.2d 580 (1987)(an exculpatory clause that released the fitness club “from liability for injury caused by any negligence” was valid and enforceable and that the member contractually assumed the risk of injury); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn.1982)(no ambiguity in ex

2000See, e.g., Garrison v. Combined Fitness Centre, Ltd., 201 Ill.App.3d 581 , 147 Ill.Dec. 187 , 559 N.E.2d 187, 190 (1990)(en-forcing exculpatory clause “that could not have been more clear or specific” in releasing health club from liability); My Fair Lady of Georgia, Inc. v. Harris, 185 Ga.App. 459, 460 , 364 S.E.2d 580 (1987)(an exculpatory clause that released the fitness club “from liability for injury caused by any negligence” was valid and enforceable and that the member contractually assumed the risk of injury); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn.1982)(no ambiguity in ex

2000Powell, 694 N.E.2d at 761-62 ; see also Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. *280 1996) ; Rickey v. Houston Health Club, 863 S.W.2d 148, 150 (Tex.App.1993).

2000Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996); see also Sanchez v. Bally’s Total Fitness Corp., 68 Cal.App.4th 62 , 79 Cal.Rptr.2d 902, 905 (1998)(same).

2000Brown Real Estate, Inc., 344 Md. 254, 266 , 686 A.2d 298 (1996); see also Sanchez v. Bally’s Total Fitness Corp., 68 Cal.App.4th 62 , 79 Cal.Rptr.2d 902, 905 (1998)(same).

2000Id. at 799.