ARE PARENTAL WAIVERS WORTH THE PAPER THEY'RE PRINTED ON?
The Michigan Court of Appeals recently ruled that a pre-activity waiver of liability signed by a parent or legal guardian does not waive a child's right to sue for injuries sustained while engaging in that activity. Woodman v Kera,
L.L.C., __ Mich App __ (2008).
The Woodmans contracted with "Bounce Party" to use their inflatable play equipment facilities for their son's fifth birthday party. Before the party, Mr. Woodman signed a waiver on behalf of his son, releasing Bounce Party from any liability for personal injury, property damage, or wrongful death caused by playing on the play equipment, an activity Bounce Party characterized as containing "some element of personal risk."
During the party, the Woodmans' son jumped from the top of a slide and broke his leg. The Woodmans sued, alleging among other things, negligence on the part of Bounce Party. Bounce Party defended the complaint by claiming that the Woodmans had waived any right to sue.
The trial court agreed.
However, the Michigan Court of Appeals reversed, finding that a parent "has no authority merely by virtue of the parental relation to waive, release, or compromise claims of his or her child." The court opined that public policy dictated that the need to protect the rights of a minor child is greater than the rights of a child's parent to take action on behalf of the child. In so finding, the Michigan Court of Appeals held that "pre-injury waivers effectuated by parents on behalf of their minor children are not presumptively enforceable."
While the facts of the case involved a "for profit"commercial business, the court noted that it was unaware of any "legislative enactments upholding exculpatory agreements, executed pre-injury by parents on behalf of their minor children, which waive liability for injuries occurred in . . . nonprofit settings." Although the court recognized that its ruling could result in higher insurance rates and other problems for profit and nonprofit organizations providing services to children, the court recognized that any change in the law was a function of the Michigan Legislature, rather than the courts, and strongly encouraged the Legislature to evaluate the issue.
Unlike the "for-profit" corporation in the Woodman case, school districts enjoy some protection from tort liability as a result of governmental immunity granted by law. However, as a result of this decision and the lack of express statutory authority for pre-injury waivers, school officials should be cognizant that the mere act of obtaining a waiver will not necessarily prevent a lawsuit or insulate the school district from liability. If a claim that involves a waiver goes to court, it seems likely, in the wake of the Woodman case, that a judge will determine that the waiver is invalid.
