Liability and Negligence in North Carolina Exculpatory Agreements

Consumers have a right to expect that operators of facilities and equipment intended for use by the public are reasonably safe. Indeed, in some cases, there are specific laws requiring safety. gavel22.jpg

In an effort to shield themselves from future lawsuits arising from potentially unsafe situations, operators will sometimes require customers to sign something known as an exculpatory agreement. This is also sometimes referred to as a waiver or release of liability, and consumers need to make sure they read these documents carefully before signing.

Most states, including North Carolina, will enforce exculpatory agreements, though there are a few exceptions and gray areas. Our Charlotte injury lawyers know that in particular, one area of the law in which states tend to vary greatly is the question of whether a parent can sign a waiver of liability on behalf of a minor child.

That was the question raised in the recent case of BJ’s Wholesale Club v. Rosen, decided Nov. 27, 2013, In the Court of Appeals of Maryland.

Here, the issue was a waiver signed by parents who shopped at BJ’s Wholesale Club. The grocer offered a free, supervised child’s play area that included various types of play equipment – provided parents signed a waiver to hold the store harmless in the event of an injury-causing incident.

Several months after the waiver was signed, the couple’s 5-year-old son fell from a piece of play equipment while in the supervised play area. The parents would later point out that there was inconsistent padding throughout the play area, and despite being entirely covered with carpet, there was no indication of which areas were padded and which had only concrete underneath. The 5-year-old fell on the concrete. As a result, he suffered severe head injuries and had to undergo major surgery in order to save his life.

Later when the parents sued, they argued that the exculpatory agreement and indemnification clauses contained in the paperwork they signed should be void because it violated Maryland’s public policy interest in protecting children.

BJ’s, meanwhile, moved to have the claim dismissed on the grounds that the exculpatory agreement was valid and the chain therefore held no liability for the child’s injuries.

Initially, the circuit court granted BJ’s motion for a summary judgment to dismiss the claim. However, the court of special appeals subsequently struck the exculpatory agreement on the grounds that it violated the public interest. However, the court of appeals then reversed that decision, holding that the lower appellate court erred in invoking the state’s authority to invalidate the agreement.

In many states, there is case law indicating that such agreements are generally unenforceable when parents sign then on behalf of children. North Carolina has no such established case law.

What the courts will generally look at in these cases is whether, first of all, the agreement was gained through some inequality of bargaining power. The court will also examine whether the agreement violates any state or federal statutes. And lastly, the court will examine whether the agreement is contrary to a substantial public interest.

In the case of public interest, the North Carolina Supreme Court has held that an individual or party cannot protect himself by contracting against negligence or liability when he performs a duty of public service, or where a public duty is owed or public interest is involved.

Such agreements may also be considered unenforceable if they are ambiguous or uncertain. Here, the exact language of the agreement becomes critically important.

The bottom line is that while exculpatory agreements can be problematic to a claim of liability or negligence, they don’t necessarily bar such actions.

Contact our Charlotte personal injury lawyers at Lee Law Offices today by calling 800-887-1965.

Additional Resources:
BJ’s Wholesale Club v. Rosen, Nov. 27, 2013, In the Court of Appeals of Maryland

More Blog Entries:
Teaching Your Kids About Sports and Spinal Cord Injuries, Sept. 27, 2013, Charlotte Personal Injury Lawyer Blog

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