In recent years, pre-injury liability waivers have become increasingly prevalent in various activities involving minors. These waivers are legal documents, signed by a parent/guardian on behalf of a minor, that aim to protect organizers, instructors, and facility owners from potential legal claims in the event of injuries or accidents. In Michigan, the enforceability of such waivers is murky. This article will explore Michigan's legal authorities and their analysis of the enforceability of pre-injury liability waivers.
A pre-injury liability waiver is a contractual agreement between two parties, typically the parent or guardian of a minor and the organization or individual conducting the activity. By signing the waiver, the parents/guardians agree to release the organizers from any legal liability for injuries, damages or accidents that may occur during the specific activity. These waivers are commonly used in sports activities, summer camps, recreational programs, and other events involving minors.
Although pre-injury liability waivers for minors is common in Michigan, are they enforceable? Michigan has two leading authorities on the topic. First, Woodman v. Kera is a Michigan Supreme Court case in which a pre-injury liability waiver is raised as a defense to a post-injury lawsuit brought on behalf of an injured minor. Second, MCL 700.5109 explicitly addresses pre-injury liability waivers signed on behalf of minors. This article will address each in turn.
Woodman v. Kera, LLC
In Woodman v. Kera, 785 NW2d 1, the issue before the court was whether a pre-injury liability waiver signed by a parent on behalf of his child was enforceable. In this case, five-year-old Trent Woodman held his birthday at "Bounce Party," an entity owned by Defendant Kera, LLC. Before the party, Trent's father signed a pre-injury liability waiver. The pre-injury liability waiver stated:
THE UNDERSIGNED, by his/her signature herein affixed does acknowledge that any physical activities involve some element of personal risk and that, accordingly, in consideration for the undersigned waiving his/her claim against BOUNCE PARTY, and their agents, the undersigned will be allowed to participate in any of the physical activities.
By engaging in this activity, the undersigned acknowledges that he/she assumes the element of inherent risk, in consideration for being allowed to engage in the activity, agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any liability for personal injury, property damage or wrongful death caused by participation in this activity. Further, the undersigned agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any and all costs incurred including, but not limited to, actual attorney's fees that BOUNCE PARTY, and their agents, may suffer by an action or claim brought against it by anyone as a result of the undersigned's use of such facility.
Trent Woodman jumped off a slide and broke his leg. After, his mother, Sheila Woodman, brought suit against Kera, LLC, owners of Bounce Party alleging negligence, gross negligence and violations of the Michigan Consumer Protection Act. Defendant Kera, LLC raised the waiver signed by Trent's father as a defense to the mother's claims.
The court held that pre-injury liability waivers signed on behalf of minors are unenforceable in Michigan. The court reasoned that pre-injury liability waivers are contracts, and, in Michigan, minors lack capacity to contract. Because a minor could not bind himself by a contract, the court then asked if a minor can be bound by a contract signed on his behalf by a third party, such as a parent or guardian. It was found that a parent is without authority to waive the rights or claims of a child. The court stated "Mr. Woodman possesses no greater authority to waive the property rights of his son Trent than he possesses to waive the property rights of any other nonconsenting third party, such as his neighbor or a coworker."
MCL 700.5109
Woodman v. Kera was decided in 2010. In 2011, the legislature promulgated a new law, adding MCL 700.5109 to the Estates and Protected Individuals Code. MCL 700.5109 states:
(1) Before a minor participates in recreational activity, a parent or guardian of the minor may release a person from liability for economic or noneconomic damages for personal injury sustained by the minor during the specific recreational activity for which the release is provided.
(2) This section only applies to a recreational activity sponsored or organized by a nongovernmental, nonprofit organization.
At first glance, it appears that by adding MCL 700.5109, the legislature codified the enforceability of pre-injury liability waivers signed on behalf of a minor. Unfortunately, section (2) of 5109 states that this law applies only to nongovernmental, nonprofit organizations. Recreational activities sponsored by for-profit organizations are not protected by this act.
For nongovernmental, nonprofit organizations like the Boy Scouts, a pre-injury liability waiver signed by a parent/guardian on behalf of a minor is enforceable. For lesson barns and other for-profit organizations, the law is less clear. Under Woodman v. Kera, unless the legislature promulgates a new law, pre-injury liability waivers signed on behalf of minors are unenforceable when the recreational activity is sponsored by a for-profit organization.
In conclusion, the enforceability of pre-injury liability waivers signed on behalf of minors in Michigan is murky. Any for-profit organization looking to use a pre-injury liability waiver must be aware that liability waivers signed on behalf of minors are unenforceable under Woodman v. Kera, LLC and would not provide a defense to any claim brought against them.
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