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Education Law
Practice Group Contacts
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Education Law
Practice Group
Members
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Dana L. Abrahams
Jeremy S. Motz
Nancy
L. Mullett
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Education Law
Alert
Michigan
Supreme Court Declares
Parental Pre-Injury Waivers
Unenforceable
by Mark W.
McInerney
The Michigan
Supreme Court invalidated parents' pre-injury waivers of their
children's rights, often required before children are permitted to
participate in school or other activities.
Woodman v Kera
LLC, decided on
June 18, 2010, involved a birthday party for a 5-year old at an
indoor play area containing inflatable play equipment. Before
the party, the father of the child signed a document acknowledging
the risk of harm at the facility and agreeing to hold the facility
harmless for any injuries caused by participation in the
activity. The child was identified as
"participant." During the party, the child jumped
from a slide and broke his leg, and the child, by his mother, sued
for negligence. The trial court dismissed the negligence claim
on the basis of the pre-injury waiver signed by the father. The
Court of Appeals reversed, with the lead opinion presenting a
comprehensive review of the law on the subject and concluding that,
absent a statutory exception, Michigan follows the common law rule
that a parent lacks legal authority to bind his or her child by
contract.
On appeal, the
Supreme Court affirmed the Court of Appeals' holding that the
negligence claims should go forward, albeit in five different
opinions. Justice Young's lead opinion concluded that the
common law rule that a parent cannot bind his or her child
contractually remains the law in Michigan, and concluded that any
change in that law should come from the Legislature. He
acknowledged that the Supreme Court had the authority to revise the
common law, but concluded that the better result would be to defer to
the Legislature to determine the appropriate public policy. In
a footnote at the end of his opinion, Justice Young suggested that
those seeking waivers still have an alternative - to have the parent
contract on his or her own behalf to indemnify them for any losses
arising from injuries suffered by their child.
Justices
Hathaway, Kelly and Weaver concurred with Justice Young's conclusion
that under the common law, parental pre-injury waivers are
unenforceable, and went on to argue that such a policy was worthwhile
and should not be disturbed. Writing separately, Chief Justice
Kelly took issue with Justice Young's footnote suggestion that a
parental indemnity agreement would be a way around the
unenforceability of the parental waiver, making it clear that that
suggestion did not reflect the thinking of the Court majority.
Justice
Cavanagh concurred in the reinstatement of the negligence claim, but
only on the basis that the waiver in question by its terms released
only the parent's claims, not those of the child. He thus
concluded that the Court should not even address the question of
whether parental waivers of the claims of their children are
enforceable.
Justices
Markman and Corrigan, finally, agreed with Justice Cavanagh that the
language of the waiver at issue did not operate to bar the child's
claims, and that therefore the Court should not address the issue of
whether parental waivers in general may be enforced. The justices
added, however, that if that question were properly before the Court,
Michigan's common law could and should be read to permit parental
waivers. Their separate opinion envisioned numerous
"predictable consequences" of the Court majority's holding,
observing among other things that schools and other non-profits
"will all be subject to increased exposure to lawsuits and
higher insurance costs, which will lead to either a reduction in
interest in sponsoring youth activities or an increase in participation
costs for minors and their parents," and that they "will
have a more difficult time recruiting volunteers because of their
fear of being personally sued if a child is injured."
Following the
Court of Appeals' Woodman
decision initially invalidating parental waivers, in early 2009 a
bipartisan group of 30 state representatives introduced House Bill
4970, designed to expressly permit parental pre-injury waivers.
Progress on the bill has been slow, likely as the Legislature awaited
a decision from the Supreme Court in the Woodman case. With the Supreme Court now
having spoken, presumably action may resume on HB 4970.
In the
meantime, schools face difficult decisions about activities that
would before Woodman have called for a parental waiver. Schools
do have the protection of the law of governmental immunity, and thus
are less at risk than other non-profits or for-profit entities who
now face liability for ordinary negligence - or, perhaps more
importantly, lawsuits alleging ordinary negligence even where such
claims are unsupportable. Activities will need to be
re-considered based on the increased risk the absence of a parental
waiver may impose.
If you have
questions about these issues and how to respond to them, please
contact your Clark Hill Education Law attorney.
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For further
information about the content of this Education Law Update, please
contact John Gierak or Barbara Ruga. To find out more about Clark
Hill and our Education Law team, visit clarkhill.com
or call 800.949.3124
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