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Municipal Law Update
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 recreational
and 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, municipalities face
difficult decisions about activities that would before Woodman have called for a
parental waiver. Municipalities 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 regarding this
article, please contact your Clark Hill municipal attorney.
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For further
information about the content of this Municipal Law Update, please
contact Scott Smith or Roger Swets. To find out more about
Clark Hill and our Municipal Law team, visit clarkhill.com
or call 800.949.3124
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