Why Am I Signing This Waiver?

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Written by attorney Kevin Sutton, Partner at Lusk Albertson, PLC

Some things in life are certain – death, taxes, and pre injury liability waivers. These are all riveting subjects, but the last is particularly ubiquitous in our daily lives. From harrowing activities like skydiving, to more mundane events like playing in a sports league, you've probably signed at least dozens of these kinds of waivers in the past. And if you have kids, you have almost certainly signed plenty on their behalf as well for field trips, Boy/Girl Scouts, birthday parties, and the many other happenings on the endless carousel of youthful exuberance. But when it comes to your kids, what are you really waiving when you sign on the dotted line?

The Michigan Supreme Court addressed parental pre injury liability waivers in Woodman v Kera LLC, 486 Mich 228; 785 NW2d 1 (2010). In that case, a familiar scenario turned into a parent's nightmare. Trent, a five year old kid, celebrated his birthday party at an indoor play area, Bounce Party, which contained inflatable play equipment. Presumably, everything was going great, until Trent jumped off a slide and broke his leg. Trent's mother, standing in for her child, filed a negligence suit against the owner of Bounce Party. One problem: Trent's dad had signed a pre injury liability waiver on Trent's behalf.

Or maybe it wasn't such a problem after all. Writing for a majority of the Supreme Court, Justice Young determined that the waiver was unenforceable. In reaching this conclusion, Justice Young reached into the common law. Our society operates primarily under statutes and regulations. But before Congress and State Legislatures took ever greater control, the common law – which began in medieval England and was brought over to the Colonies – was a major source of law. Today, we still use the common law, which is judge made law, at least where the Legislature hasn't written a statute to supersede it.

In any case, Justice Young acknowledged that, at common law, minors are not allowed to sign contracts for themselves, including waivers. The corollary of that rule is that if a minor can't sign a waiver on his own, then he can't give someone else permission to do it for him, either. And it doesn't matter if the other person is a parent. According to Justice Young, a parent is just as unable to sign a waiver for a child as the parent would be to sign a waiver for a neighbor or other third party. For that reason, the majority of the Court held that Trent's negligence suit could move forward and wasn't barred by his dad's waiver.

But Justice Young had more to say. Normally, courts don't get to ask, "Should we change the law?" After all, the judiciary is an interpretive body; the legislative branch enacts laws and policies. However, recall that the common law is "judge made law," and that means, when it comes to the common law, either the Legislature or the courts can make modifications. So Justice Young considered changing the law on parental pre injury liability waivers. Ultimately, he concluded that altering the status quo could have massive ramifications for society. Justice Young's view was that the Legislature had better tools for making policy decisions, and that, in any case, the common law, along with positive law enacted by the Legislature, clearly showed a public policy that favors protecting minor children from the consequences that could occur when adults waive their rights.

Woodman resulted in a fractured Supreme Court. While a majority coalesced around the principle that a parental pre injury liability waiver is unenforceable, the case spawned four separate concurring opinions – including Justice Young, that's five opinions across a seven person court.

Mostly, these opinions supported Justice Young. But Justice Markman, on the other hand, penned an especially spirited and lengthy concurrence. He agreed that the case should move forward, but for other reasons. According to Justice Markman, most of the other Justices simply read the waiver wrong; it didn't waive Trent's right to sue, but rather it was poorly drafted and only waived the father's right to sue if the father was injured. Importantly, Justice Markman proceeded to defend the idea that a parental pre injury liability waiver is enforceable under the common law.

Why does it matter what Justice Markman thought? Simple answer: while Justice Markman may have lost the battle in 2010, he's presently the only sitting Justice on the Supreme Court that was serving at the time of Woodman. For that reason, it's not clear what would happen if the issue were to come before the Supreme Court again, given that there are six new members, and the only known position is that of Justice Markman, who took a strong stance against the majority's reasoning in Woodman.

For now, Woodman is the prevailing law, and parental pre injury liability waivers are not enforceable. It's still a good idea to have parents sign waivers when their kids go on field trips. It puts the parents on notice that an injury could happen, and it still gives schools a way to protect themselves – maybe the parents decide not to sue based on the fact that they signed the waiver. Just know that, legally speaking, these kinds of waivers are far from bulletproof. And, while nobody wants to hear that they'll be tied up in court, having one of these waivers in place could open the door to a change of law at the Supreme Court should a lawsuit eventually be filed because a child got hurt. Besides, having the waiver can't hurt you.

In any case, neither the Supreme Court nor the Legislature has decided to change the law in the 7 years since Woodman. Maybe that's an indication that the law is settled. Maybe not. That's a possibility for another day.