The Michigan House Judiciary Committee will take testimony tomorrow on HB 4970, which would allow a parent or guardian to sign a liability waiver on behalf of a child participating in sports or recreational activities.
The legislation was prompted by a Court of Appeals decision, Woodman v. Kera, LLC. The decision invalidated a liability release signed by a 5-year-old boy’s parent and let a negligence suit go forward against a commercial play area operator after the child broke his leg.
In his lead opinion, Judge Michael Talbot said under the current state of both statutory and common law, the waiver could not stand.
[T]his court is aware of no legislative enactments upholding exculpatory agreements, executed by parents on behalf of their minor children before injury, that waive liability for injuries incurred in either commercial or nonprofit settings. …
[I]n the absence of a clear or specific legislative directive, we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.
Judge Richard Bandstra “reluctantly” concurred with Talbot.
[O]urs is an extremely and increasingly litigious society. Any entity that provides an educational, recreational, or entertainment opportunity to a minor does so at great risk of having to defend an expensive lawsuit, meritorious or not. To avoid some of that, preinjury waivers have become commonplace. If the law does not honor those waivers, the implications appear inevitable: the cost of providing opportunities will rise, some families who would like their children to participate will no longer be able to afford to, and, ultimately, some opportunities will simply become unavailable altogether. …
Because of the impact of today’s decision and the compelling arguments against abrogating preinjury parental waivers, I encourage the Michigan Legislature or Supreme Court to further consider the issue.
Judge Bill Schuette (now off the court and campaigning hard to be the state’s next attorney general) pragmatically noted in his concurrence that important public policy considerations cut both ways.
Certainly, no one in the Michigan judiciary desires to turn a deaf ear or a blind eye to wayward businesses, dishonorable nonprofit organizations, or volunteer groups that might place a child in a dangerous situation, notwithstanding a parent’s executing a release and waiving liability for resulting injury. Equally significant is the fact that an immense amount of youth activities — church groups, Boy Scouts, sports camps of all kinds, orchestra and theatrical events, and countless school functions — run and operate on release and waiver-of-liability forms for minor children. …
[T]he Michigan Legislature will have to determine whether a statutory exception to the common-law rule for preinjury waivers should be adopted, and whether there should be any differentiation between for-profit and nonprofit groups as some states have seen fit to do.
The Legislature heeded the call with the introduction of HB 4970 last year. A House Fiscal Agency analysis predicts “an indeterminate, but likely positive, fiscal impact on the judicial branch. Any fiscal impact would depend on the amount of litigation avoided due to the waiver of claims of liability.”
In the meantime, the Michigan Supreme Court granted leave in Woodman and heard oral arguments in October. A decision is due by the end of July.