Question

BJ’s Wholesale Club offers its members use of a children’s play center where parents can drop off their children while they shop. To use the play center, the parent must sign a standard form release, printed in eight-point bold type, that includes the following exculpatory and indem- nification language: “I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc. . . . from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereaf- ter may accrue including any such claims or causes of action caused in whole or in part by the negli- gence of BJ’s Wholesale Club, Inc. . . . I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc. . . . I further agree to indemnify, defend and hold harmless BJ’s Wholesale Club, Inc. . . . from any claims or causes of action of any kind arising from my or my child’s use of the Play Center.” Member Russell Rosen signed the release. Fifteen months later, his wife took their five-year-old son to BJ’s. She dropped him off at the play center, where he was severely injured after falling off play equipment. The parents, “individually and as parents and next friends” of their son, filed a negligence action. BJ’s filed a counter- claim, alleging “breach of the release agreement.” BJ’s then moved for summary judgment, “invoking that agreement,” which the trial court granted. The parents appealed.

1. What factors should the appeals court take into account when deciding whether the release is procedur- ally or substantively unconscionable?

2. Do clauses of this type give a commercial enterprise too much protection?

3. Does it matter that the parents could have elected not to bring their child to BJ’s?

4. If BJ’s is found liable, how would that affect its likelihood of providing play centers in the future?

Answer 1

1. Factors that the court need to take into account for appeals when deciding whether the release is procedural or substantially unconscionable are:

a. Child’s safety

b. Responsibilities of BJ’s as a child care center

c. Ethical and moral principles

2. Personally speaking, yes. The clauses of this type give a commercial enterprise too much protection from any negligence from their duties and responsibilities.

3. Absolutely. Since the release has a clear mention that BJ’s is not responsible for any harm caused to the child, the parent should be wise enough not to bring their child to such child care centers who don’t have commitment and responsibility on taking care of the child.

4. If BJ’s is found liable, then its reputation is affected eventually resulting in low business as parents want their child to be in safer hands rather than just sending them to child care centers who do not take responsibility of the child’s safety such as BJ’s.