Are Liability Waivers Enforceable in Maryland?

A five year old fell from a plastic hippo in a supermarket play area, landed on carpet glued to concrete, and needed emergency surgery for a bleed on the brain. His father had signed the play area's rules fifteen months earlier, which included a release covering the store's own negligence and an indemnity on top. Maryland's highest court enforced it. This is the state that says a parent may sign away a child's future negligence claim against a commercial business, and it knows it is in the minority for saying so. For a guide taking families, that is the most consequential difference in this series. The liability and waivers hub holds the states that answer the other way. Background reading; Maryland counsel has to apply this to your operation.

What is the general Maryland rule?

Enforce them, subject to three exceptions.

Maryland's leading authority set out to promote freedom of contract by announcing that exculpatory clauses would generally be enforced.

It then recognised three exceptions: agreements covering extreme forms of negligence, agreements that are the result of unequal bargaining power, and agreements covering transactions that affect the public interest.

On that third exception the court declined to adopt the multi-factor test other states use.

Instead it held that what counts as the public interest is settled case by case, weighing the totality of the circumstances, and measuring the result against what the court called the backdrop of current societal expectations.

That phrase has travelled: other states have adopted it word for word, and it is the reason Maryland's answer on children turned out the way it did.

The waiver basics piece takes up what the document is for before any of these tests attach.

Outfishing Adventures, OR

What happened in the play area?

A short fall onto the wrong part of the floor.

In BJ's Wholesale Club, Inc. v. Rosen, 435 Md. 714, decided 27 November 2013, a warehouse club offered members a free supervised play area so parents could shop.

The complaint described a carpeted space where most of the floor sat over a thick layer of resilient foam padding, while in other areas the carpet was adhered directly to concrete, with no markings to show which was which.

A five year old was playing on an elevated plastic structure about thirty-eight inches high at its peak, placed so that a child falling forward would land on the concrete section.

He fell, was taken to hospital, and a scan showed a large acute epidural haematoma with extensive mass effect; emergency surgery saved his life.

The claim was that the store knew or should have known that placing an elevated play structure over carpet on concrete would endanger children.

That is as sympathetic a claim as this area of law produces, and the release still won.

What did the form say?

Everything, in bold, above the signature.

The parent acknowledged reading and agreeing to the rules, then waived, released and forever discharged the company, its subsidiaries and affiliates and their agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind related directly or indirectly to use of the play centre.

Crucially it extended to claims caused in whole or in part by the negligence of the company and those same parties, and included an undertaking that neither the parent nor the child would bring any claim.

Immediately below, in the same paragraph, sat an indemnity requiring the parent to indemnify, defend and hold harmless the same list from any claims arising from the child's use.

The court noted the language appeared in smaller font than the rest of the agreement but was printed in bold just above the signature line.

It also recorded that the agreement stated it would remain in force whether the child was dropped off by the signing parent or by anybody else.

Those are drafting decisions, and they are the reason the document survived.

Why did Maryland allow a parental release?

Because of what it thinks society expects of parents.

The analysis ran through the public interest exception, which in Maryland means the totality of the circumstances against the backdrop of current societal expectations.

The majority located those expectations in Maryland statutes and common law recognising that parents are empowered to make significant decisions on behalf of their children.

It declined to adopt the distinction the intermediate court had drawn between commercial and non-commercial providers.

Its reason was practical, and it quoted a Florida dissent asking whether a scout troop, a church camp, a band trip or a cheerleading squad is commercial, and how such groups could operate facing large damage claims when insurance costs deplete already scarce resources.

It also confined the state's protective doctrine to proceedings where parental fitness is genuinely in question rather than to ordinary decisions about activities.

Whatever one makes of that reasoning, it produces a rule an operator can plan around.

Was the court unanimous?

No, and the dissent names the cost.

Two judges dissented, describing the majority as adopting a position held by a minority of states.

Their argument was that such agreements are directly adverse to the interests of minors and ultimately shift the costs of commercial negligence onto families and the State.

They accepted the premise that parents make significant decisions for their children, but argued that courts sit in a protective role and that parental authority is subject to judicial determinations of public policy affecting children's welfare.

Operators should read that as a reminder that this is a contested rule rather than a settled fact of nature.

It is exactly the kind of holding a legislature can reverse, as happened elsewhere in the opposite direction.

Check the position before relying on it for a season's worth of family bookings.

What does this mean for a guide?

Real protection, with the usual conditions.

A Maryland operator can, on current authority, take a properly drafted release signed by a parent for a child and expect it to be taken seriously.

That is unusual enough that it should change how family trips are documented here rather than being treated as a footnote.

The conditions are the ordinary ones: name negligence expressly, name everybody being released, describe the activity, and put the operative language where a signer will see it.

Do not rely on a form drafted for a state that refuses parental waivers, because it will not contain the language this rule rewards.

And do not read the case as permission to run family trips loosely, since the three exceptions still stand and extreme negligence remains outside any release.

Running a good day with children aboard is its own craft, covered in the kids-on-a-trip piece.

Does the indemnity survive too?

It was part of what the store enforced.

The agreement carried an indemnity immediately beneath the release, and the store counterclaimed for breach of it when the family sued.

An operator considering the same structure should get advice rather than copying it, since indemnity clauses attract stricter construction almost everywhere and have split courts elsewhere in this series.

Where an indemnity is used, it should be consistent with the release beside it rather than carving out categories the release purports to cover.

Ask specifically what happens if a claim is brought by somebody other than the signer, since that is where these clauses do their real work.

And weigh the commercial reality: pursuing a customer's family for costs after a serious injury is a decision with consequences beyond the file.

For the ways these documents come apart in other states, the waiver-mistakes piece runs through them.

Where does unequal bargaining power bite?

Rarely for optional recreation.

The second exception asks whether the agreement resulted from unequal bargaining power, which is the argument most often run against standard forms.

A guided fishing trip is optional, sold by one of many providers, and booked in advance, which makes the argument weak in ordinary circumstances.

It gets stronger where a client has no realistic alternative, which is worth thinking about for remote lodges, packaged trips and anything sold on arrival.

Send the document early, price it plainly, and leave people free to walk, because that is what keeps this exception dormant.

Collecting and storing all of it is dealt with in the digital waiver workflow piece.

Where a booking comes through a lodge or agent, make sure the paperwork reaches the client before money does.

Is there statutory protection for land you control?

Some, and it evaporates the moment you charge.

Maryland provides that an owner who directly or indirectly invites or permits people without charge to use property for any recreational or educational purpose, or to cut firewood for personal use, does not thereby extend any assurance that the premises are safe for any purpose.

That owner also does not turn the visitor into an invitee or licensee owed a duty of care, and picks up no responsibility for harm flowing from what the visitor themselves did or failed to do.

All of that is expressly subject to a separate section preserving liability in defined circumstances.

The section is published in the Maryland Code, and its companion exceptions should be read alongside it in the current version.

The phrase without charge does the work, and a guide taking money for a day is outside it.

So the contract, not the statute, is what protects a commercial operator here.

Kenai River Drifters, AK

What still sits outside a Maryland release?

Extreme negligence, and anything genuinely public.

The first exception keeps extreme forms of negligence outside any exculpatory clause, which is the familiar ceiling under a different name.

The third keeps transactions affecting the public interest outside, judged on the totality of the circumstances against current societal expectations.

That phrase is deliberately open-ended, so an operator cannot rely on a checklist to prove they are outside it.

What helps is looking like an ordinary recreational business: optional, priced, alternatives available, nothing essential about it.

What hurts is anything that starts to look like a necessity, a monopoly or a public service.

Insurance carries whatever the release cannot, and the captain's insurance piece covers the shape of that cover, with the claims piece following an incident.

What made the drafting work?

Four choices, all copyable.

The first was breadth of parties: subsidiaries, affiliates, agents, employees, officers, directors, shareholders, successors and assigns, which leaves nobody exposed because they were left off a list.

The second was the explicit reference to claims caused in whole or in part by the company's negligence, which is the phrase most home-made forms omit.

The third was the promise not to bring a claim, given both individually and on the child's behalf, which does different work from the release itself.

The fourth was continuity: the agreement stated it applied to every visit and remained in force whoever brought the child.

For a guide, the equivalent of that last point is a form that covers this season's trips rather than one that expires with a single booking.

Ask a lawyer to build those four features into your own document rather than lifting the wording, since the context differs.

Does the money side change the analysis?

Not in the way people expect.

The play area in this case was free, offered as a benefit of membership while parents shopped, and the release still had to be justified under the public interest test.

The court then refused to make commerciality the dividing line at all, which cuts against the instinct that charging for a service makes a release harder to defend.

Guides sometimes assume that a cheap trip, a free demonstration day or a charity auction lot sits in a different legal category. In Maryland it does not obviously do so.

What that means practically is that the same paperwork should be used across everything you run, including the days you do not charge for.

Free trips are exactly where operators skip the form, and they are no safer than the paid ones.

Getting the funding and cost side of a business right is a separate discipline, and the federal small business agency's guidance on growing and funding a business is the national starting point for it rather than anything Maryland-specific.

What should the season's records look like?

Built to be produced, not just kept.

The agreement in this case was signed fifteen months before the injury, which is a reminder that the document you rely on may be old by the time it matters.

Store executed forms so they can be found by name and date, and keep the version of the form that was in force when each one was signed.

Where a form says it applies to future visits, keep evidence of the visits too, since the link between the signature and the day is what a court will look for.

Photograph the boat and any structure clients use at the start of a season, because a claim about a hazard is answered with evidence of what things actually looked like.

None of this is complicated, and all of it is easier to build in March than to reconstruct in November.

The collection side of it is dealt with in the digital waiver workflow piece.

How does Maryland compare regionally?

Out of step, deliberately.

Most states in this series refuse parental pre-injury releases, and several say so in strong terms.

Maryland went the other way on an explicit assessment of societal expectations, and its own dissenters called it a minority position.

The contrasts are drawn in the Delaware piece, the Pennsylvania piece and the Virginia piece.

Guides fishing the Chesapeake across state lines should assume the answer changes with the water.

Registration and licensing are handled in the Maryland charter business piece; the Maryland guide hub collects the rest of the state material.

What should you ask a Maryland lawyer?

Five questions, one of them about children.

Ask how a parental release should be worded for your trips so it sits inside the current rule rather than at its edge.

Ask whether an indemnity clause is worth having, and what it should say if so.

Ask what could push your business toward the public interest exception, given how open-ended the test is.

Ask how the analysis changes for lodge packages, corporate bookings and anything sold on arrival.

Ask what to watch for legislatively, since the dissent maps the argument any reform would make.

Then verify the exact current position with counsel before the season rather than after a booking goes wrong.

The Maryland answer, in order

Enforced, including for children, with three exceptions.

Exculpatory clauses are generally enforced in Maryland as a matter of freedom of contract.

Three exceptions apply: extreme forms of negligence, unequal bargaining power, and transactions affecting the public interest.

The public interest question is decided on the totality of the circumstances against the backdrop of current societal expectations.

Applying that, the state's highest court upheld a release and indemnity signed by a parent on behalf of a five year old injured in a commercial play area.

It refused to distinguish between commercial and non-commercial providers, citing the difficulty of classifying scout troops, camps and school trips.

Two judges dissented, calling the result a minority position that shifts costs onto families and the State.

And the recreational land provisions remain built around access without charge, so they do not reach a paid trip.