Supreme Court confirms long-standing rule: parents can't waive a child's injury claim before it occurs.The so-called "common law" is the collection of judicial decisions starting with the English Courts before the American Declaration of Independence and continuing through today in any area of law not governed by statute. In Michigan, that common law has long included the well-established principle that a parent cannot contract away a child's important rights. The latter principle had been further defined to include the right to pursue a personal injury claim among the protected rights of the child. This common law principle had also been recognized and reinforced in Court Rules and other public policy decisions protecting an injured child's interests and stipulating, for example, that a court , must approve any attempted waiver or compromise of a child's injury claim. This week a badly-divided Michigan Supreme Court reaffirmed these principles in Woodman v. Kera LLC, doing business as Bounce Party.
Justice Young wrote an opinion signed by three other judges who agreed with the basic holding that a parent lacks authority to sign away the child's rights. Justice Cavanagh agreed with the outcome, but based his decision on the fact that the purported waiver signed by the parent contained language that did not explicitly waive the child's rights. Justices Markman and Corrigan would vote to authorize parents to sign away a child's rights, in order to preserve the child's freedom to play in environments where the activity sponsor [or its insurer] wants to avoid liability exposure for the his or her own negligence.
The Young opinion may have accomplished the release-drafter's intent, in any event, as it upheld the contract right of the at-fault activity sponsor to seek indemnification from the parent, in the event a child proves that the sponsor was negligent and recovers a judgment.