BJ’s Wholesale Club offers its members use of a children’s playcenter where parents can drop off their children while they shop.To use the play center, the parent must sign a standard formrelease, printed in eight-point bold type, that includes thefollowing exculpatory and indem- nification language: “I,individually and on behalf of my child, do hereby waive, releaseand forever discharge BJ’s Wholesale Club, Inc. . . . from any andall claims and causes of action of any kind or nature which are inany way related, directly or indirectly, to the use of Play Centerwhich I may have or that hereaf- ter may accrue including any suchclaims or causes of action caused in whole or in part by the negli-gence of BJ’s Wholesale Club, Inc. . . . I understand that my childis here at my own risk and expense and agree that neither I nor mychild will bring any claim or cause of action of any kind or natureagainst BJ’s Wholesale Club, Inc. . . . I further agree toindemnify, defend and hold harmless BJ’s Wholesale Club, Inc. . . .from any claims or causes of action of any kind arising from my ormy child’s use of the Play Center.” Member Russell Rosen signed therelease. Fifteen months later, his wife took their five-year-oldson to BJ’s. She dropped him off at the play center, where he wasseverely injured after falling off play equipment. The parents,“individually and as parents and next friends” of their son, fileda negligence action. BJ’s filed a counter- claim, alleging “breachof the release agreement.” BJ’s then moved for summary judgment,“invoking that agreement,” which the trial court granted. Theparents appealed.
1. What factors should the appeals court take into account whendeciding whether the release is procedur- ally or substantivelyunconscionable?
2. Do clauses of this type give a commercial enterprise too muchprotection?
3. Does it matter that the parents could have elected not tobring their child to BJ’s?
4. If BJ’s is found liable, how would that affect its likelihoodof providing play centers in the future?
