*1 LLC Kera, v KERA, WOODMAN 10, 2008, at Grand Submitted June 275079 and 275882. Docket Nos. 2008, appeal August a.m. Leave to Rapids. at 9:00 Decided sought. friend, minor, Woodman, through and next Sheila his mother a Trent against Woodman, brought Court an action in the Kent Circuit play large, L.L.C., facility inflatable operates that contains a which injuries he seeking damages sustained when equipment, for he during birthday party him at the jumped held for a slide from purpose facility, Sheila had been rented for that which defendant’s gross negligence, and plaintiff alleged negligence, The Woodman. (MCPA), Michigan Act MCL Consumer Protection violation of the summary disposition, seq. defendant moved for 445.901 et The signed before the arguing plaintiff’s a valid release that the father plaintiffs plaintiff party and waived all of behalf of the on against The defendant further potential the defendant. claims but, negligence prove gross if he plaintiff claimed that the could not jumping could, danger from the precluded was because open defendant also obvious hazard. The slide constituted an plaintiff duly supervise the because his it had no asserted that Finally, the accident. parents him at the time of were with claim, alleging sought that it did dismissal of the MCPA defendant allegations any misrepresentations in the and that the not make designed comprise type was complaint of case the MCPA do not summary disposition regard remedy. plaintiff with The moved waiver, purported asserting waiver that the the affirmative defense of waive, not as a matter of law because was invalid release, against The compromise his or her child. claims Johnston, J., court, was valid and held that the waiver Donald A. ordinary given the claim of The court dismissed should be effect. gross-negligence claim and the negligence, but declined to dismiss testimony holding alleging that further violation of the claim MCPA ques- The court necessary be decided. before the issues could was open-and-obvious-danger defense and re- application of an tioned duty supervise the jected had no that the defendant the assertion present. parents The court plaintiff the fact that his were because of vio- rejected plaintiff’s that the defendant assertion thereafter regarding through advertising public policy or claims false lated Mich safely facility. parties sought appeal. ofthe Both leaveto The Court Appealsgranted applications appeals. both and consolidatedthe Appeals
The held-. Court Michigan precept 1. caselaw adheres to the common-law *2 authority parent merely by parental has of the no virtue relation release, waive, compromise to or claims of his or her child. Michigan specific exceptions permit statutory does to the common- parental authority preclusion regarding law rule of of the release rights. or waiver of children’s permits parent property rights 2. No statute a of to release presented his or her under the child circumstances in this case. regarding validity 3. The trial court’s determination of the waiver must be reversed and the must be for matter remanded negligence of the reinstatement claim. properly plaintiff 4. The trial court determined that the failed possessed to that the a demonstrate defendant substantial lack of plaintiffs safety well-being. Summary disposi- concern for the gross-negligence tion of the claim not error. was open-and-obviousdanger inapplicable 5. The doctrine is this to negligence action the case of because involves a claim and does not requirements premises-liability meet the definitional either a products liability action or a action. presence plaintiffs parents 6. The of the did not serve abrogate duty premises the defendant’s as the owner. deceptively 7. There is no evidence that the defendant tried to failing obtain a The trial waiver. court erred as matter of law in grant summary disposition the defendant’s motion for of the MCPAclaim. Reversed and remanded. EJ., concurring, separately Bandstra, wrote to stress that the great impact result that be must reached in this case has a and Legislature Supreme
therefore the or the Court should address and further consider issues raised in this case. Schuette, J., concurring, separately emphasize wrote several legal significance policy issues of extreme and be should consequence addressed as this decision. — Parent and Child Waiver Child’s Claims. authority merely by parental
A has no of the virtue relation waive, release, compromise of his or her child claims either arise; exceptions before or such after claims to this common-law provided rule be statute. J. Timmer, A. Paul G. (by Gregory McKee PC Rhoades Hulst) plaintiff. for the J. Stephen and McCarthy, Feuer), for the Kozerski, L. (by PC Scott & Feuer defendant. SCHUETTE, JJ. EJ., TALBOT
Before: BANDSTRA, minor, his Woodman, through Tat,rot, Trent Woodman, friend, appeals next Sheila mother and summary dispo- motion for defendant’s granting orders denying plain- negligence claim of plaintiffs sition regard to disposition with summary tiffs motion Defendant defense of waiver. affirmative defendant’s for sum- motion denying defendant’s the order appeals negligence gross claims of plaintiffs mary disposition Protection Michigan Consumer and violation to the trial court. and remand reverse Act.11 would *3 HISTORY I. FACTUAL which con- facility, rented defendant’s Sheila Woodman fifth for her son’s equipment, large, play inflatable tains to Sheila invitations provided Defendant birthday party. party to the Woodman, forwarded subsequently which she as follows: of the invitation was The content guests. a_party invited to been _has for_. Party Bounce party be held at
The will on_,_from_to_. at_before_.
Please RSVP 1 appeal and application leave to granted party’s each This Court LLC, unpublished orders of appeals. v Kera the two consolidated (Docket 275079 and April Nos. Appeals, entered 2007 the Court of 275882). 125 Opinion by Talbot, hosting party Party are our at Bounce in
We Kentwood. We chaperon[e]s present will have to ensure that this is safe enjoyable party. parent/guardian and We need a to review sign your the information below and send it child with party day. your Party on have child at Please Bounce party minutes before the start time.
Thank you,_
Your Host Party play Bounce is an indoor inflatable arena with opportu- interactive inflatables. Your child have the bounce, slide, nity mazes, challenge maneuver run courses, box, houncy bungee joust. basketball and Your chaperon[e]s hosts will have on site we will have staff present. enjoyable party members To ensure a safe and please your be sure that child simple follows these few rules prior attending party. your really you Please hope RSVP to host. We be able will
{} party. to attend
(>Wear CLEAN socks. No bare shoes or feet are allowed play arena. Wear comfortable clothes. jewelry, keys, sharp objects, bands, Leave all pencils, hair watches, etc. at home. your (> good Let child know that expected manners are inappropriate will behavior result in removal. guest
<) parent/guardian Be sure that this signs release and the guest brings it with them party. to the Anyone parent/guardian approval without will be able not participate you games. multiple in the arena If have guests your family, you can all list their names on this one form. UNDERSIGNED, by signature
THE affixed herein his/her *4 acknowledge any physical does activities involve some personal that, element of risk accordingly, and in consider- undersigned waiving against ation for the claim his/her KERA, V WOODMAN by PARTY, agents, undersigned will their the and BOUNCE any physical the activities. participate allowed be acknowledges activity, undersigned the engaging in By this risk, in of inherent the element assumes he/she activity, engage in being allowed to for consideration PARTY, their indemnify hold and agrees to and BOUNCE injury, any liability personal agents, harmless from by participation wrongful caused damage death property Further, undersigned agrees indem- activity. this PARTY, agents, nify hold and their harmless BOUNCE including, any but not limited costs incurred from all PARTY, their to, attorney’s fees that BOUNCE actual brought against it an action or claim agents, suffer undersigned’s of such anyone as of the use a result facility.
Participant:_Signature:_ Legal Parent or printed NAME signature
Guardian’s participate [sic] if is under age 18. Date:_ CARD AND SEND YOU COMPLETE THIS
BE SURE PARTY GUEST! IT WITH THE father, Jeffrey day party, plaintiffs On the Woodman, plaintiffs on signed the above document “safety An of defendant conducted employee behalf. started, defendant as- before the which party talk” jump included an instruction not specifically serted addition, on the posted rules the slide. In written from not to from guests jump informed slide and wall times, However, correctly using slide five after slide. slide, to the fell plaintiff jumped top from leg. his ground, and broke HISTORY
II. PROCEDURAL LOWER-COURT friend, next filed Plaintiff, mother and through his defendant, gross alleging against complaint three-count *5 Opinion by J. Talbot, and negligence, negligence, Michigan’s violation of Con- (MCPA), Act sumer Protection MCL 445.901 et seq. alleged Plaintiff knowingly defendant failed to provide supervision, ignored the slide’s manufacturer’s warnings safety instructions, and did not properly devices, slide equip safety with available and failed an to have attendant to monitor the slide. Plaintiff contended that these failures and omissions were the proximate direct injuries. and causes of his respect With claim, to the MCPA plaintiff alleged that defendant falsely advertised as providing itself a safe play environ- when, fact, ment defendant knew it failed to install appropriate safety equipment and provide adequate supervision. Defendant filed an answer com- plaint, denying plaintiffs claims and asserting affirma- defenses, including tive the defense of waiver. July 27, 2006, On pursuant MCR 2.116(C)(7), (8), (10), and defendant moved summary disposition for all three counts. Defendant argued that plaintiffs fa- signed ther a valid behalf release on of plaintiff and all waived of plaintiffs potential claims against defen- dant and that plaintiff prove gross could not negligence. Further, gross even if negligence could be demon- strated, defendant contended that liability was pre- cluded danger because the of jumping from the slide constituted an open obvious hazard. Defendant asserted that it no duty supervise had plaintiff his parents because were him with at the time of the urged accident. Defendant trial court to dismiss MCPA plaintiffs claim because defendant did not make any misrepresentations allegations made in the complaint comprise do not type of case the MCPA designed was to remedy. Concurrently, plaintiff moved summary disposition on defendant’s affirmative 2.116(C)(8) waiver, pursuant defense to MCR (10). Plaintiff argued purported waiver was Opinion by not parent may as matter law because invalid against his claims waive, release, compromise or her child. summary- on the hearing
The trial conducted court 14, 2006. The trial September on disposition motions waiver, by plaintiffs determined signed that the court be effect. When given and should was valid parent, issue, the on the waiver summary disposition granting “any Michigan case the absence trial court noted *6 like this signs a who a waiver says parent that which in an activity engaging engaging to a child prior one legal nullity.” The trial court further in an act which is general proposition the that it concurred with opined his approving a waiver validly that a can execute and activity in an dismissed her child’s participation ordinary negligence. of claim plaintiffs claim, the gross-negligence Considering plaintiffs provided counsel opined plaintiffs trial court that ignored spe- that defendant sufficient demonstration use of regarding or recommendations cific instructions The denied defen- the slide. trial court staffing and for gross-negligence plaintiffs dant’s motion to dismiss fact found “a finder of because it that reasonable claim it from that conduct that constitutes could conclude injury an results indifference to whether substantial of the the slide.” operation from open defense of obvious Addressing defendant’s a five-year- court whether questioned the trial danger, the comprehend capacity had intellectual old the Recognizing in off jumping a slide. dangers inherent the to a child under negligence imputed cannot be that “ negli- seven, [i]f trial reasoned that age of the court them, really how I’m not sure imputed be gence can’t the open proceeding can be barred from they rejected de- court further The trial obvious doctrine.” 280 Mich it fendant’s assertion that had no duty supervise of of plaintiff presence parents, ruling because his that “the nature the defendant’s business is such they that have an inherent in obligation regard.” duty Because the scope defendant’s and whether it an duty comprised breached existent fact questions of jury, for the the trial to grant court declined defendant’s request summary for disposition Although on this issue. court questioned trial applicability the MCPA claim, to plaintiffs it declined to dismiss the claim until could issue be further developed. 2.116(C)(8) On 2006, pursuant November to MCR and (10), plaintiff again moved summary disposition regarding defendant’s waiver, affirmative defense of that the asserting invitation language was insufficient argued constitute a waiver. Plaintiff that the invita- tion did not indemnify waive or negligence claims against defendant because the only document ad- dressed risks inherent in participating the activities at facility. defendant’s responded Defendant invitation constituted a valid all waiver barred by plaintiff claims ordinary negligence. The trial court concluded that language contained *7 sufficiently waiver apprised signatory the of the inher- ent risks involved in the activities and the assumption of those risks. Finding language of the waiver clear provided notice, trial declined plaintiffs court request to invalidate the rejected waiver and also plain- tiffs assertion that defendant violated public policy through false advertising regarding safety claims of the facility. The trial rulings court’s were subse- quently memorialized an order entered November 27, 2006.
Plaintiff moved for reconsideration of the trial court’s uphold decision to the validity of the invitation 133 v Opinion by claim. Plaintiff negligence waiver as a valid ruling its reconsider court should that the trial argued invalidated have jurisdictions in other courts because negligence to waive purporting provisions similar acknowledged However, plaintiff businesses. for-profit preclude waivers upheld courts have other state or- involving nonprofit in situations claims negligence plaintiffs trial court denied The or schools. ganizations ensued. reconsideration, appeal this motion APPEAL III. ISSUES ON challenges the 275079, defendant No. In Docket claims of plaintiffs court to dismiss of the trial failure Defendant of the MCPA. and violation negligence gross by jumping danger posed that the asserts additionally open an constitutes of a slide high point off the duty have a that it did not and contends danger obvious proximity given presence supervise plaintiff injured. was plaintiff to the slide when of his father 275882, poses question plaintiff In Docket No. preclude of this state public policy the law and whether on signed by parent preinjury of a waiver effectuation specifically minor child. Plaintiff of his or her behalf preclude of such a waiver applicability queries engaged in such as that for-profit of a business by defendant. OF REVIEW
IV STANDARD
or denial of
grant
a trial court’s
This Court reviews
Char-
de novo. Willett
summary disposition
Waterford
(2006).
38, 45;
Mich
718 NW2d
App
ter
Twp,
comprise ques-
also
statutory interpretation
Issues of
Newton v Bank
law,
review de novo.
which we
tions
437;
West,
686 NW2d
Mich
*8
134
125
by
Opinion
J.
Talbot,
2.116(C)(7),
litigant
In accordance
MCR
may
with
claim
seek dismissal of a
on the basis that
is barred
it
of a
The filing
supportive
because
release.
materials
Rozwood,
or
required.
documents is not
Maiden v
109, 119;
Mich
However,
As discussed in Healing Place at North Oakland Med Co, Ctr 51, 55-56; v Allstate Ins 277 Mich App (2007): NW2d 2.116(C)(8)
Summary disposition under either MCR (0(10) presents issue of [the an law for Court’s] determi- and, thus, nation ruling [the Court] review[s] a trial court’s summary disposition on a motion for de novo. Where parties rely documentary evidence, appellate on courts proceed under applicable the standards of review to a 2.116(0(10). made motion under MCR 2.116(0(10) A motion under made MCR tests support granted factual for a claim and should be when genuine moving there no issue of fact material and the party judgment is entitled to as a matter of law. When proof nonmoving would party, burden at trial rest on the upon allegations the nonmovant not rest mere must, pleadings, by documentary denials but evi- dence, specific showing set forth facts there is genuine genuine A issue for trial. issue of material fact record, drawing when the exists all reasonable inferences nonmoving party, open in favor of the upon leaves an issue which reasonable minds could differ. summary disposition under deciding motion for *9 When affidavits, pleadings, the rule, must consider a court
this documentary admissions, evidence other depositions, in the parties the the action or submitted filed in then nonmoving party. But such the to light most favorable extent that only to the be considered “shall materials [Quotation as evidence....” [they] be admissible would omitted.] and citations marks OTHER JURISDICTIONS V OVERVIEW A. GENERAL issue level, pre- predominant the At its most basic to authority parent of a in this case concerns sented agree- exculpatory minor child to an his or her bind a defendant’s liabil- ment, preclude functions which has even occurred. injury before an negligence, for ity juxtaposes the issue most sense general In its authority parent of a fundamental rights and inherent child or her minor for his make determinations against public- Amendment the Fourteenth pursuant authority in accordance the state’s concerns and policy patriae.2 doctrine of parens with the recognized Court has Supreme States The United pertain- decisions to make right parents fundamental minor control of their care, custody, and ing to the Granville, 57; 120 S Ct 530 US Troxel v children. See recognition The of this L Ed 2d 49 2054; 147 on based, part, right is pre- on a family [which] rests concept of the
[t]he law’s child lacks in matu- parents possess what a sumption that “2 country,’ ‘parent of his or her patriae,’ is Latin for which ‘Parens provider protection capacity to those as ‘the state in its describes ” Shea, Marketing, Inc v Global Travel for themselves.’ unable to care (8th ed), Dictionary (Fla, 2005), quoting Law Black’s 399 908 So 2d p 1144.
Opinion by
rity, experience,
capacity
judgment
required
for
for
making
important,
life’s difficult decisions. More
histori
cally
recognized
it has
that natural bonds of affection lead
parents to act
best
interests of their children.
R,
584, 602;
2493;
v J
US
S
[Parham
99 Ct
61 L Ed 2d
(1979).]
addition,
In
presumption
parents
exists
“fit
act in
Troxel,
their
best interests of
children.”
at 68.
supra
long
Consequently, “so
as a
cares
parent adequately
for
(i.e.,
fit),
his
her children
is
normally
there will
be no
inject
reason
the State to
itself
private
into the
family
realm the
question
ability
further
to make the
concerning
best decisions
rearing of that parent’s children.” Id. at
Histori-
68-69.
cally,
this
consistent with
the United
rulings
States
*10
Supreme
indicating
Court
that the inherent nature of
parenthood is
of
comprised
the
of a child
companionship
right
and the
to make decisions
to the
pertaining
child’s
care, control, health, education, religious affiliations,
Society Sisters,
associations. See Pierce v
268 US
of
510, 534-535;
571;
Ct
(1925);
45 S
Some
have used
precepts regard-
these
ing the
of parental authority
dominance
to validate
preinjury
preclude
waivers to
liability. By way of ex-
the
ample,
United States
Court
District
for the District
of Colorado has upheld the enforceability of a waiver
signed by a parent on behalf
his
of minor child. Brooks
(D
Tours, Inc,
1996).
v
941
Colo,
Timberline
F
Supp
also,
Saloon,
See,
Inc,
Lantz v Iron Horse
2d
717 So
(Fla
1998). Massachusetts,
In
App,
upholding
paren-
permitting
tal waiver
a minor to
in a
participate
school
cheerleading
it
program,
was held: “In the circum-
of a voluntary,
stance
activity,
nonessential
we will not
this parental judgment.
disturb
This
with
comports
v
Opinion by Talbot,
of
rearing
of
liberty
parents
interest
fundamental
purpose
with the
children, and is not inconsistent
their
minors to void their
public policy permitting
behind our
Newton,
99, 109;
437 Mass
City
contracts.” Sharon
of
noted
the court
Specifically,
Other of the best interests pertaining protection minors, exculpatory agreements preinjury have ruled parental “the that a release Rejecting argument invalid. implicates on behalf of a minor child upbringing to direct the right fundamental parent’s child,” Court in Jersey Supreme his or her the New Park, 323, 339; 901 A2d v Vans Skate 187 NJ Hojnowski (2006), question that “the emphasized instead tort release a minor’s future whether policy wider concerns and the implicates public claims the best interests of duty protect parens patriae opined protect children.” The court need unnecessarily not at odds and did not children was *11 constitutionally right of protected interfere “with the in deny participation a child’s parent permit a may be or all of the recreational activities any omitted). and citation (quotation Id. marks available.” historically pro- enactments Relying legislative on the interests, coupled children’s with viding protection to on the activity “discourage negligent the need to 138 125 Opinion by Talbot, part children,” enterprises attracting of commercial parent’s court held “that a execution of a pre-injury arising release of a minor’s future tort claims out of the facility use of a commercial recreational is unenforce- able.” Id. at 338. Court, Peart, Supreme
The Utah
in
v
Hawkins
37
2001),
1062,
(Utah,
P3d
v
citing Scott
West
Pacific
Resort,
2d 484;
(1992),
Mountain
119 Wash
An party clause that relieves a from future important remove an incentive to act with care. are routinely imposed reasonable These clauses also in a any genuine bargaining unilateral manner without oppor- tunity pay party a fee for The demanding insurance. exculpatory adherence to an simply clause evades neces- sity liability coverage and then shifts the full burden of risk party. Compromise claim, of harm to the other existing of an however, negligence already place relates to that has taken subject damages. and is to measurable Such releases involve negotiations concerning rights actual ascertained and liabili- Thus, anything, ties. if policies relating to restrictions on parent’s right compromise an existing apply claim with greater even force in preinjury, exculpatory clause sce- [Hawkins, supra 1066.] nario. at Similarly, the Supreme Court, Colorado v Cooper Co, Aspen Skiing 2002),3 48 P3d (Colo, while Cooper subsequently superseded by We note that the has case been Ass’n, Highlands Inc, Community statute. See Pollock Ranch 140 P3d (Colo 2006). App, *12 Kera, 139 J. created between the “well- the dissonance recognizing during minority, minor his ‘[a] principle settled may disaf- reaching majority, on his acting timely during into may he have entered any firm contract that “ ” for freedom regard ‘our traditional minority’ his ” contract,’ public-policy in accordance with ruled concerns, “protections pre- which which established releasing from a minor’s guardians parents clude (citations Id. negligence.” claim for prospective own “ omitted). parent gen- ‘since a opined The court a child’s cause of action after may not release erally little, if conclude a any, parent makes sense to injury, it to release a child’s cause of action authority has the ” (citation omitted). As a injury.’ to an Id. at 1233 prior result, ruled, in part: the court relevant guardian public policy disallows a
Colorado’s minor exculpatory provisions on behalf of his to execute negligence. Specifi- prospective claim based on child for a guardian may cally, parent or not release a we hold that a may prospective negligence and not minor’s claim for against indemnify negligence for committed a tortfeasor [Id. 1237.] child. at his minor
B. WAIVER EXCEPTIONS recognize of cases that appear types There to be two parent’s of a unilateral exceptions preclusion or release a child’s claims before or authority waive type The first of case deals with injury. even after an exceptions, created which restrict specific, statutorily an bringing provide a claim rather than the forum for “a waiver any negligence. Typically, absolute waiver of supported on behalf of a minor is by parent executed medical obtaining when it relates to by public policy community care, insurance, or school or participation Kirton, So 2d Fields v sponsored activities.” 280Mich Opinion by Talbot, (Fla 2007).4 App, Distinguishing between the “parents deciding preclusion restriction or from what appropriate activities be for their minor children’s participation” insulating [a] and “the effect of release provider activity negligence from upon opined minor,” inflicted the court Fields *13 provider “[t]he to the an decision absolve of (re- activity any negligence from for of form gardless danger activity) of the inherent risk in or the goes beyond determining scope activity the of a which person appropriate feels is for their child.” Id. Conse- quently, resulting potential on the basis of the effect parent’s preinjury from a determination execute a rights, property release of a minor child’s the Fields “rights court determined that the child’s cannot be by parent waived the absent in a basis common or law Often, statute.” Id. at 1130. these cases involvewaivers regarding right disputes mediate or arbitrate potential injuries or future and have an identified “[wjhether important parent may distinction between rights” waive his or her child’s substantive parent may agree any dispute arising “whether a from the contract be arbitrated rather than de- Marketing, cided in a court of law.” Global v Travel Inc 2005). (Fla, Shea, 392, instances, 908 So 2d 401 In these distinguish the courts arbitration clauses from releases liability: of parent’s
“[W]e note that consent and release to only specifies arbitration the forum for resolution of the claim; extinguish child’s it not Logically, does the claim. if authority bring has the and conduct a lawsuit 4 Supreme accepted jurisdiction We note that the Florida Court in this question by matter to address the certified the Florida District of Court Appeal:“Whether parent may pre-injury bind a estate minor’s Fields, supra 1130; Fields, execution of a release.” at Kirton v 2d 973 So 2007). (Fla, 1121 Opinion Talbot, J. child, authority he or she has the same on behalf of litigation [Id. forum.” at choose arbitration as Carnes, 157, 169; quoting Cross v 132 Ohio 3d (1998).] NE2d used to type exception uphold
The second reliant validity preinjury public-policy of a waiver is on many indicates that jurisdic- Our research arguments. engage type compromise hybrid, tions this exculpatory of certain releases or upholding validity agreements limited or defined circumstances involv- schools, ing religious organizations, public, and other voluntary provided functions to children nonprofit, to define attempted within communities. Courts have used in these making the standards or elements to be in Tunkl v Univ By way example, determinations. 92, 99-101; 2d 32 Cal Regents, Rptr 60 Cal California 33; (1963) (footnotes omitted), P2d 441 the court determining public- criteria to be used for listed the as policy limitations on releases follows: *14 attempted exemption but involves a trans [T]he invalid following of the action which exhibits some or all charac teristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seek great ing exculpation engaged performing is in a service importance public, to the is matter of which often a practical necessity public. [3] for some members of the The party willing perform holds himself out as this service any it, public member of the who seeks or at least for any coming member within certain established standards. service, of the in the [4] As a result of the essential nature transaction, setting party invoking economic of the possesses advantage bargaining exculpation a decisive against any public strength member of the who seeks his services. [5] In exercising superior bargaining power party public confronts the with a standardized adhesion exculpation, provision whereby contract of and makes no may pay fees and obtain purchaser additional reasonable protection against negligence. [6] Finally, as a result of the transaction, person property purchaser is placed seller, subject under the control of the to the risk of agents. carelessness the seller or his A more abbreviated version of the elements to be considered in provided these circumstances is in Jones v Dressel, (Colo, 1981), 623 P2d states, which relevant part: determining exculpatory
In agreement whether an is valid, there are four factors which a court must consider: (1) (2) duty public; existence of a to the the nature of (3) performed; the service fairly whether the contract was (4) into; entered and whether the parties intention of the expressed unambiguous language. clear and Notably, Jones cited the standard elucidated in Tunkl for determining “the duty existence of a public.” Id.
In
cases,
this line of
the focus of the courts is directed
“not [on] whether the release violates public policy; but
rather that public policy
justifies
itself
the enforcement
agreement.”
[the]
Zivich
Club, Inc,
v Mentor Soccer
367, 370;
Ohio St 3d
It cannot be community volunteers in important recreational activities Orga- serve an function. nized recreational activities offer children opportunity to learn many valuable life skills. It is here that children learn how to work operate as a team and how to within an organizational structure. given Children also are chance develop to exercise and coordination skills. Due in great part volunteers, to the nonprofit assistance of orga- nizations are able to offer these activities at minimal Clearly, cost. ... volunteers, without the work of its these nonprofit organizations exist, could not and scores of *15 children would be enjoyment without the benefit and of Kera, Woodman v Opinion by Yet, liahility sports. strongly of deters organized the threat organi- volunteering nonprofit many individuals from answer, organizations is not the zations. Insurance for the may find themselves because individual volunteers still Thus, although potentially injury liable when an occurs. receiving any their finan- volunteers offer services without return, they personal place their assets at risk. cial lawsuit, Therefore, very real threat of a faced with awards, potential damage nonprofit and the for substantial organizations very decide and their volunteers could well Hence, are not worth the effort. invalidation that risks exculpatory agreements the number of would reduce of possible through uncompensated ser- activities made sponsoring organizations. [Id. their vices of volunteers and (citations omitted).] at 371-372 reasoning, opined On the basis of this the Zivich court “public policyjustifies giving parents authority types binding agreements enter into these on behalf of their minor agreements and that children” “enforcement these
may promote well more active involvement by participants families, turn, which, and their in promotes quality safety the overall of these activi- Consequently, defining court, ties.” Id. at 372. parameters ruling, part, stated, relevant “parents authority have the to bind their minor chil- exculpatory agreements dren to in favor of volunteers sponsors nonprofit sport activities where the negligence. agreements cause of action sounds These not be disaffirmed the child on whose behalf they reasoning were executed.” Id. at 374. This same acknowledged adopted Royal in In was re Carib- (SD Supp Ltd, bean F 2d Cruises 1279-1280 2006), Royal Fla, when the court refused to exonerate Caribbean from on the basis of the execution of Citing a waiver of a minor child. with approval preinjury Zivich and other cases in various jurisdictions, distinguished holdings the court their
144 280 Mich Opinion by Talbot, J. from the circumstances in the action involv- present as ing “parental pre-injury releases executed for purposes participation nonprofit, of a minor’s in community based, pa- school related activities rather than and/or pre-injury private rental releases related to for profit activities.” Id. at 1280.
VI.MICHIGAN
A. OVERVIEW
In analyzing the current status
in
law Michi-
our
gan,
starting point
well-recognized
is the
common-
premise,
law
cited and adopted through
prolonged
a
history of
that “in Michigan
caselaw
a
has
parent
no
authority merely by
parental
virtue of the
relation to
waive, release,
compromise
his
claims of
or her child.
Generally speaking,
the natural guardian has no au-
thority to
an
do
act which is detrimental
to the child.”
Niedoliwka,
Tuer v
694, 698-699;
92 Mich App
(1979).
NW2d
Caselaw in Michigan demonstrates
adherence to this common-law
which
precept,
places
strict limitations on a parent’s authority to compromise
claims on behalf of the parent’s
By way
minor child.
example, we note our Supreme
ruling
Court’s
in
Loeb,
405, 408;
O’Brien v
(1924),
mother,
authority
who was without
to bind him in the
against
release of his cause of action
An
defendants.
by
infant is not bound
a contract made for him or in his
Opinion by
person
him,
purporting
name
another
to act for
unless
person
duly appointed
guardian
such
has been
his
or next
friend and authorized
the court to
[Id.
act and bind him.
omitted).]
(quotation marks and citation
Despite recognition by our Court that “[t]he status of a
nature,”
is one of
parent
guardian by
courts in this state
have consistently ruled that
authorized by
“[u]nless
statute,
guardian
is without power to bind the infant
or his estate.” Reliance
Haney,
Ins Co v
54 Mich App
237, 242;
Co,
Limitations on parental authority, consistent with rule, this common-law have also been imposed cases involving support instance, of a minor child. For “an illegitimate right support child’s to from putative father cannot be away by mother, contracted its that any release or compromise executed the mother is invalid to the extent that it purports affect the Tuer, rights of the child.” supra at 699. Caselaw has further emphasized restrictions on parental authority by recognizing parent’s right stipulate approve App 280 Mich Opinion by Talbot,
an “annulment
but
judgment”
precluding
agree-
affecting
ment from
the minor children
rights of
hearing
paternity.
involved to a full
on the issue of
In re
Estate,
199, 203;
Kinsella
NW2d 437
(1982). Referencing public policy, this Court “has taken
agreements
sign away
a dim view of
purporting
child,
rights of a
the result
particularly when
of such an
agreement may be
the child becomes a public
Rozema,
charge
619, 624;
.. ..” Van Laar v
94 Mich App
This concern is public-policy demon- strated in procedures mandating rules court over- sight, implemented which have been to assure the protection of minors and their rights postinjury 2.420(A), example, consistently cases. For MCR with the doctrine parens patriae, delineates strict limita- tions on parental authority regarding settlements and judgments for minors. Specifically, 2.420(A) provides applies only
MCR
that the rule
to settle
“brought
friend,
ments in cases
for a minor
next
guardian,
conservator,”
which we
sup
read as further
port
holding
authority
for our
that a
has no
compromise
unliquidated
liquidate
an
claim or to
a claim
procedures
on behalf
child
of a
absent
the formal
proper supervision suggested by the court rule. The obvi
ous basis for such a rule is to ensure that the best interests
(1)
protected by
appointment
the minor child are
*18
friend, guardian,
represent
a next
or conservator to
(2)
oversight
court,
probate
minor and
of the trial
or
court,
commenced,
any
before an action is
to scrutinize
proposal
compromises
rights. [Smith
the minor’s
v
Joseph,
App
556;
YMCA Benton Harbor St
216 Mich
/
(1996) (emphasis
original).]
These function parental as checks on authority in an protection effort to ensure the of a minor by requiring child’s interest the appointment of a conservator guardian approved by the court affairs, handle the minor’s or by provision of additional following time attainment of the age majority by minor to exercise certain rights, rather than the auto- assumption matic of this role aby parent. The imple- mentation of these provisions indicative of an adher- ence public policy, which favors the protection of the contractual rights of minors consistent with common-law limitations placed parental authority on compromise belonging claims to their children. *19 App 280 Mich J. Opinion by Talbot,
B. WAIVER EXCEPTIONS
Michigan, consistently
jurisdictions,
with other
does
specific statutory exceptions to the common-law
permit
preclusion
parental authority regarding
rule of
of
rights.
release or waiver of children’s
We note that such
legislatively
exceptions
strictly
created
Eire limited and
construed. “Because the common law
be abrogated
statute,
child
be
by parent’s
can
bound
a
act when
grants
authority
parent.”
a statute
to a
Benson v
Granowicz,
167, 169;
App
140 Mich
Currently, Legislature cleEirly our has identified cer- tain, very specific situations in which are al- parents compromise rights lowed to of their minor child. However, nothing has been discovered the current statutory scheme that permit would to release property rights of his or her child in circumstances similar to those in this litigation. Specifically, this Court of no legislative upholding aware enactments excul- patory agreements, by pEirents executed on behalf of injury, their minor children before that waive injuries incurred in either commercial nonprofit or Rather, settings. given preclusion au- parental thority compromise postinjury claims initiated on children significant oversight behalf of without court or created legislatively safeguards, institution it is justifiable counterintuitive to believe it acceptable rights that inchoate claims could waived preinjury be by parents, particularly given the absence of sufficient negotiation or informed such factual information the caselaw and the circumstances.5 Given preinjury safeguards, it is legislative enactments context *20 it Michigan particularly is cautious when apparent compromise any the of child’s permitting comes to preclu- to the common-law strictly adheres rights situations, recogniz- in these authority sion of parental statutory exceptions ing only very specific limited Hence, rule. in the absence of clear or general to this directive, judicially we can neither specific legislative to the common law exceptions assume nor construct authority parents the to bind extending granting or Thus, agreements. the exculpatory their children to imposition any exceptions or of waiver designation Legislature.6 the of the solely purview within uphold I of the fact that to particularly cognizant am afford minor validity preinjury the of waivers would protections provided postinjury children fewer than claims, oversight court or statutorily require which I Concurrently, acknowledge for settlement. approval reasoning underlying the concerns and public-policy concurrences, Contrary arguments validating prein I find the to the jury persuasive regarding postinjury than those waivers waivers less (a) based on the absence of sufficient information make informed (b) injury yet occurred, regarding an has not decisions waiver when greater, equivalent, importance affording of minors or at least protections, postinjury afforded in cases and to adults. In those addition, regarding agree I do not that our determination invalidation authority. preinjury parental undermine Parents waivers serves to authority decision-making regarding continue to retain their child’s ruling only participation in select activities. Our serves to assure effectively any fully are informed in order to balance such determinations adequate afford risks and benefits inherent in the chosen activities and to protections negligent from behavior in the conduct of those activities. 6 Further, Legislature strongly encourage I to evaluate this would issue, any acknowledgedregarding including treatment distinctions to be nonprofit organizations involving for-profit preinjury versus waivers programs.
Opinion by
distinctions
in other
developed
jurisdictions pertaining
validity
to the
of such
dependent
waivers
on the nature
activity
engaged
regarding
in
for-profit and
nonprofit
However,
activities or services.
following
even
reasoning
of other jurisdictions,
the exceptions
recognized
those cases are
applicable given
not
for-profit nature of defendant’s business.
spe-
Without
cific legislative direction this
precluded
Court is
from
defining
implementing any
divergence
such
from the
preclusion
common-law
regarding
validity
any
form of
by parent
waiver
on behalf of his or her minor
child. Although there exists in this state a clear inten-
give
tion to
predominance to protecting
rights
children,
minor
“[t]he Michigan Legislature is the
proper
institution
which to make such public policy
determinations, not the courts.” Huron
LP v
Ridge
Ypsilanti Twp,
23, 45;
275 Mich App
While ruling this has significant and far-reaching implications regarding practices routinely engaged in by organizations and businesses providing valuable services and activities for minor children and has the to potential increase litigation and affect the availabil- ity of programs to younger members of the community, I have no alternative but recognize to the current status of our law and follow its precepts. “It is not the function of the courts usurp the constitutional role of the legislature and judicially legislate that which necessar- ily must if originate, law, it is to be with the legislature.” Fields, supra at 1130.
C. CONCURRENCES Contrary to the concerns expressed my colleagues’ respective concurrences, I potential welcome the discourse and may examination that be occasioned by Opinion by organizations may While certain ruling our this case. delivery to reevaluate their services and of required be determination, I this activities as a result of our believe pay protect is a small the interests price society. Hopefully, members of our our most vulnerable which has ruling disrupt complacency, will serve to years, pro over the from the developed proliferation acceptance forma waivers and will serve to preinjury belongs by removing where it place refocus protections organizations the artificial afforded to that are in the of ser- negligent provision businesses Further, may, to children. it from a social- vices while policy perspective, exempt nonprofit be beneficial specified organizations preinjury and other from liabil- ity, the establishment of for such is protections groups easily if our act. Our provided Legislature chooses to ruling significant is not because it in a result disruption complacent of the status quo regarding of the use of for minors. acceptance preinjury waivers Rather, the decision in this it important case because an priority place serves as affirmation of the we on the health and protection well-being of our children.
D. CONCLUSION Therefore, I would determine that preinjury waivers by parents effectuated on behalf of their children minor are not presumptively Specifically, enforceable. within overriding policy, the context of our state’s and in the absence any specific legislative exceptions permitting situations, liability by parents the waiver of in these release on signed plaintiffs behalf son cannot be Consequently, construed as valid. I would reverse the *22 regarding validity trial court’s determination challenged waiver and remand the case for reinstate- ment Because our plaintiffs negligence ruling claim. 280 Mich
Opinion by invalid, determines that the waiver is I need not address parties’ pertaining contentions to the scope parameters of the language waiver’s and content.
VII. GROSS NEGLIGENCE
Defendant contends that
the trial
court erred
refusing to dismiss plaintiffs claim of gross negligence.
“Gross negligence” is conduct that is so reckless that it
demonstrates a substantial
lack of concern for whether
an injury results. Xu v Gay,
263, 269;
257 Mich App
(2003).
NW2d 166
Evidence of ordinary negligence is
insufficient to create a material
question
regard-
fact
ing
Maiden,
gross negligence.
existence of
at
supra
122-123. The
gross
issue of
negligence may be deter-
mined by summary disposition only where reasonable
minds could not
Co,
differ. Jackson v Saginaw
141, 146;
Plaintiff contends that the failure of defendant implement follow or the manufacturer’s instructions regarding equipment to in conjunction be used with the slide and recommendations pertaining super- adult vision of its use constituted evidence gross negli- gence. However, plaintiff ignores the fact that defen- dant did undertake certain actions to ensure the safety guests. of its It is undisputed that defendant’s staff provided verbal instructions to the participants regard- ing safety and appropriate conduct or behavior before permitting use of the equipment and that certain rules safe regarding use of the equipment were posted. Fur- ther, plaintiff does not allege the minor children attend- ing party were completely unsupervised, only that insufficient supervision was provided. Considering the fact that defendant did undertake certain steps or precautions to prevent injury, there has been no dem- onstration that possessed defendant a substantial lack *23 V WOODMAN KERA, Opinion by J. Talbot, safety well-being. for the minor child’s of concern Therefore, I hold that the trial court erred would on claim summary disposition plaintiffs to failing grant I deter- Id. at 151. Because would gross negligence. not gross negligence claim of is plaintiffs mine that viable, assertion I find no need to address defendant’s on the basis of summary disposition that it is entitled to proximate a lack of causation. this issue are defendant’s concomi-
Subsumed within
(1)
off
danger posed by jumping
tant assertions that
the
hazard,
open-and-obvious
pre-
the
of a slide is an
top
(2)
liability and
defendant did
cluding
imposition
the
the minor child
duty
supervise
given
not have a
to
parents
injury
of the child’s
at the time the
presence
regarding
I
address the assertion
occurred.
first
of the
doctrine.
applicability
open-and-obvious-danger
Court,
applicabil-
As
discussed
this
previously
ity
depen-
of the
doctrine is
open-and-obvious-danger
and the nature
theory
liability presented
dent on the
duty
that is at issue. Hiner v
271 Mich
Mojica,
(2006).
604, 615;
Defendant also contends that the trial court erred in
finding
duty protect
given
it had a
the minor child
presence
parents
of his
at the site at the time of the
injury.
summary
I concur with the trial court’s denial of
*24
disposition
presence
on this basis because the
parents
abrogate
minor child’s
did not serve to
defen-
“
duty
premises
Generally,
dant of its
as the
owner.
‘a
premises possessor
duty
owes a
to an invitee to exercise
protect
reasonable care to
the invitee from an unrea-
by dangerous
sonable risk of harm caused
condition
” Bragan Symanzik,
on the land.’
v
(2004), quoting Lugo
330-331;
VIII. MICHIGAN CONSUMER PROTECTION ACT Lastly, argues improp- defendant that the trial court erly plaintiffs failed to dismiss claim under the MCPA. Notably, plaintiffs complaint identify does not specific sections of the MCPA claimed to have been general, plaintiffs allegations comprise violated. In misrepresentation “deceptiverepresen- assertions of or facility equipment of its or safety regarding tations” Plaintiff further availability supervision. and the by sug- misrepresentation or purposeful fraud implied was waiver of purported defendant’s gesting in the of an invitation.” “disguised form improperly in his these by plaintiff complaint, not specified While plaintiffs detail in greater were discussed allegations brief, in she asserted that defendant’s which appellate the facil- safety to the misrepresentations pertaining supervision constituted violations ity, equipment, and 445.903(1). of MCL multiple subsections “[u]nfair, the use of general, precludes In the MCPA methods, acts, unconscionable, practices or or deceptive MCL of trade or commerce . .. .” in the conduct 445.903(1). is defined as the “Trade or commerce” property, or providing goods, “conduct of a business household personal, family, service or primarily solicitation, of- advertising, and includes the purposes rent, sale, lease, of a for sale or or distribution fering real, tangible intangible, per- service or or property, sonal, mixed, article, other or a business any 445.902(l)(g). MCL The intention under- opportunity.” “ pur- in their lying protect the act is ‘to consumers personal, are used for goods primarily chases of which *25 ” v Chrysler Corp, or household Zine family purposes.’ (1999) (citation 261, 271; 600 384 App 236 Mich NW2d omitted). designed statute “The MCPA is remedial practices unfair trade or commerce prohibit its intended liberally must be construed to achieve Laszar, 711, 715; 239 Mich goals.” App Forton v (2000), grounds overruled in on other part NW2d 850 (2007). Lewiston-Richards, Inc, Mich 203 In v Liss claim the “courts presented, order to have a valid MCPA complained of the conduct must examine nature to the determine whether it relates by case case and commercial, aspects of or business” entrepreneurial, App
Opinion by
E J.
Bandstra,
Ho,
the defendant’s profession. Nelson v
222 Mich 74, 84;
Plaintiff contends that defendant advertised itself as
a safe and supervised facility, even though it purport-
edly knowingly violated safety recommendations
set
by
forth
the manufacturer
equipment,
of its
and tried to
deceptively obtain
by
a waiver
providing free invitations
waiver,
contained the
in violation of the MCPA.
The gravamen of plaintiffs claim negligence
because
the allegations center on the way defendant operated
slide,
not
by
manner
which it solicited or
advertised its business. See
Tipton William Beaumont
Hosp,
(2005) (the
266 Mich App
33;
I would reverse and remand to the trial court for further proceedings consistent with this opinion. I would not jurisdiction. retain
BANDSTRA, P.J.
I
(concurring).
concur with the lead
opinion’s conclusions that the trial court erred by not
dismissing plaintiffs
gross
claim of
negligence and that
the trial court
improperly
also
failed to
plain-
dismiss
*26
v
157
by
Opinion
E J.
Bandstra,
Protection
Michigan Consumer
claim under the
tiffs
Further,
reluctantly
I
(MCPA),
445.901 et seq.
MCL
Act
enforce the
decision that we cannot
with the
concur
However, I think
child’s father.
signed by the
waiver
that
hoping
wrong
separately
and write
that result
Court
Supreme
or our
Michigan Legislature
either the
the issue.
further address
will
caselaw
Michigan
overview of
opinion’s
As the lead
illustrates,
long
parent
rule has
been settled that
claims
authority
existing
to release
does not have
on the basis of events that have
might
that a child
have
abrogating
rule
“postinjury”
occurred. This
already
preinjury
has been extended to
waiv-
parental waivers
here,
ers,
by
one at issue
courts
some
such as the
difference between the
our sister states who see little
Co,
See,
v
48
e.g., Cooper Aspen Skiing
contexts.
two
(Colo, 2002),
v
quoting
1233
Scott
P3d
Pacific
Resort,
484, 494;
P2d 6
119 Wash 2d
WestMountain
(1992) (“
not release a
generally may
a parent
‘[S]ince
little, if any,
it makes
injury,
child’s cause of action after
release
authority
to conclude a
has the
parent
sense
”).
an
prior
injury.’
a child’s cause of action
discussing
Michigan precedent explicitly
There is no
against parental
rule
waivers
postinjury
whether
However, in
in a
case.
a case
apply
preinjury
should
waiver,
Court in its
Supreme
our
involving
preinjury
enforced,
that waiver should be
analysis of whether
rule that a
has no
recognized “the common-law
waive, release,
claims
authority
compromise
Valley
Obstetrics
against
McKinstry
a child.”
Clinic, PC,
167, 192;
“The concerns to reluctance parents dispose existing allow of a to child’s claim do not in parent arise the situation where a waives a child’s future parent dealing existing claim. A with an claim is simulta- neously child; coping injured with an such a situation parental potential contrary creates a action to that child’s best ultimate interests. parent signs
“A a partici- who release before her child pates however, activity, entirely in a recreational faces an First, parent different situation. such a has no financial sign contrary, motivation to release. To the a because parent care, pay must for medical risks she her financial by away signing right interests to damages. recover Thus, parent would better her serve financial interests sign refusing to the release. parent dishonestly maliciously “A signs prein- who a jury derogation release in deliberate of his child’s best unlikely. Eresumably parents sign interests also seems future enable participate releases to their children to in parents activities that the and children believe will be fun suggests educational. parent Common sense that while a might misjudge carelessly signing release, or act a he sign would have aforethought. no reason to with malice “Moreover, parents are less to vulnerable coercion and preinjury setting. fraud in parent contemplates A who signing prerequisite as a participa- release to her child’s activity tion in some faces none of the emotional trauma pressures existing and financial arise with an parent release, claim. That has time to examine the con- terms, explore possible sider its A alternatives. Bandstra, EJ. reasonably more able to release is thus signing a future right waiving the consequences of possible assess 367, Club, Inc, St 3d 82 Ohio Mentor Soccer [Zivich v sue.” Note, (1998), v Facific quoting Scott 373; 696 NE2d invalidating parental Erroneously Resort: Mountain West claim, L R 68 Wash releases minor’s future (1993).] 473-474 con- and I would are persuasive These considerations postin- abrogating merits of that, whatever clude to extend that waivers, is no reason there jury parental waivers. abrogation preinjury authority undermines the Moreover, do so further regarding and decisions judgments make parents participate. their children should which the activities in Par Court reasoned Supreme United States As the *28 2d 2493; 61 L Ed 584, 602; 99 S Ct J R, 442 US ham v on a family the rests (1979), concept of law’s “[t]he 101 child lacks possess what parents that presumption re judgment for capacity and maturity, experience, Thus, a decisions.” life’s difficult making quired into itself inject hesitant “to extremely court should be the family” by questioning realm of the private the decisions concern make the best of a “to ability Troxel v children.” parent’s that rearing the of ing 2d 2054; 147 L Ed 68-69; 120 S Ct Granville, 57, US 530 99, Newton, 437 Mass (2000); City accord Sharon 49 of (2002) (“[W]ith matters to respect 108; 738 769 NE2d care, custody, upbring and children’s] to relating [their make those right fundamental have a [parents] ing them.”). Instead, parental privilege that decisions for it courts, as by respected be authority should and in Zivich: was because signed she did so the release Mrs. Zivich When important made an Bryan play soccer. She she wanted injury physical the risk of assumed
family decision and she on behalf of the financial risk child and on behalf of her App Bandstra, EJ. family Thus, her as a whole. decision release a volunteer simply injury of on behalf her child shifted cost of to the parents. Apparently, she made a decision that the benefits outweighed physical injury. to her child risk Mrs. protect Bryan’s did we Zivich her best interests and will [Zivich, judgment. supra (emphasis not disturb her at 374 added).] here,1 Similar decisions were made child’s father and should them by allowing we not undermine this proceed. lawsuit to
Finally, I agree opinion with the lead our that deci- today significant far-reaching sion has implica- As amply demonstrates, tions. this case ours is an extremely and increasingly Any litigious society.2 entity an provides educational, recreational, or entertain- to a opportunity ment minor does so great at risk of to defend having expensive lawsuit, an meritorious or that, not. To avoid some preinjury waivers have become If commonplace. the law does not honor those waivers, the implications appear inevitable: the cost of providing rise, opportunities will some families who would like their children to participate longer will no be to, and, able to afford ultimately, some opportunities simply will altogether. See, become e.g., unavailable San Diego Dist, Hohe v School 224 Cal 3d Unified (1990) 1564; Cal Rptr (upholding parental waiver while noting availability sports recreational activities for children are steadily decreasing). impact
Because of the today’s decision *29 compelling arguments against abrogating preinjury pa- argument There is no that the waiver was unclear or that the child’s father not did read and understand it. routinely jumped have playground generations; Children off slides for seeking impose damages lawsuits resulting on someone else for injuries only phenomenon. are a recent KERA, V WOODMAN J. Schuette, Michigan Legislature waivers, encourage I rental the issue. consider further Court to Supreme my First, I concur with (concurring). SCHUETTE, opin- in his lead Judge colleague, distinguished TALBOT, defendant’s that did not establish plaintiff ion that Con- Michigan that negligent, grossly was conduct no et has Act,' seq., MCL 445.901 Protection sumer facts, circum- case, that to this applicability a do not involve of this case stances, pleadings action. premises-liability reluctantly, in the conclu- concur, although
I further precedent judicial TALBOT by Judge sion reached court to reviewing this requires Michigan of the state liability signed waiver preinjury invalidate share strongly case. I also in this minor child’s father concurring opinion of in the expressed the sentiments I Judge BANDSTRA. write colleague, my distinguished legal of extreme several issues emphasize separately as a addressed that should be policy significance decision. of this consequence validity prein- concerning Plaintiff’s claim newly minor is a liability for a jury, parental waiver in Judge described courts. As issue for our emerging courts across opinion, lead thorough TALBOT’s issue, and now this grappling with United States are McKinstry under I turn. believe Michigan’s it is Clinic, PC, 428 Mich Obstetrics-Gynecology Valley (1987), required are 192; we 405 NW2d waiver parental a preinjury, invalidate child. minor case, Supreme our waiver McKinstry, preinjury
In unborn could bind her that a mother determined Court 5046(2) Medical § under arbitration child to *30 App 162 280 MICH 125 Opinion by Schuette, J. (MMAA),
Malpractice Arbitration Act MCL 600.5046(2).1 Our Supreme Court stated: 5046(2) departure interpretation §
Our
is a
from
waive,
parent
authority
that a
common-law rule
has no
to
release,
compromise
by
against a
or
claims
or
child. Schofield
Spilker,
v
App 33;
(1971);
194
Reliance
37 Mich
NW2d 549
Haney,
Co v
237;
(1974);
Ins
App
54
Mich
220
728
67A
NW2d
CJS,
Child, §114,
However,
pp
Parent and
469-470.
v
abrogated by
be
statute. Bean
common law can modified or
McFarland,
19;
(1937);
O’Brien v
280 Mich
Some might quo- above-referenced tation is dictum and hence binding not on lower in Michigan.2 Or, courts some might contend that the plain meaning by use the word “claim” our in Supreme McKinstry may only Court be to interpreted waivers, apply postinjury to because claim can only after, before, occur injury Yet, not an been has caused.3 600.5046(2) by repealed 78, 1,1993. MCL was 1993 PA effective October “ ‘ “judicial during Dictum is delivering comment made the course of judicial opinion, unnecessary but one that decision in the case precedential (though may persua and therefore not it be considered ’ ” sive).” City Lansing, 383-384; Carr v 674 NW2d (2003) (citations omitted). 3 A claim is defined as: aggregate operative giving right 1. The facts rise by right; existing
enforceable a court.... 2. The of an assertion any right payment equitable remedy, contingent or to an even if provisional.... money property 3. A demand which (7th Dictionary right.... ed), [Black’s p 240.] one asserts a Law Schuette, that “the Court stated Supreme our McKinstry, in statute,” or abrogated can be modified common law that, 192, seemingly implying at McKinstry, supra contrary, Michigan a statute to the absence of prohibiting parental rule common-law adheres to the postinjury, as as well preinjury, waiver of *31 situations. have enormous in this is bound to
The
case
decision
Michi-
impact throughout
profound
and
consequence
Supreme
be our
Court’s
significance
Of
will
gan.
equal
of
decision,
preinjury,
the dearth
given
of this
review
in Michigan
cases
and the
parental-waiver-of-liability
jurisdictions
in
rulings emerging
other
variety
wide
of
this
state courts of
nation.
throughout
the federal and
Tours,
F
Inc, 941
See,
Supp
v
e.g., Brooks Timberline
(D
Saloon, Inc,
1996);
v Iron Horse
717
Colo,
Lantz
959
(Fla
Newton,
1998);
City
v
App,
2d 590
Sharon
So
of
99;
(2002); Hojnowski Vans Skate
Mass
Certainly, businesses, a eye wayward a ear or blind turn deaf organizations, volunteer nonprofit dishonorable place dangerous a child a situa- might groups a executing release tion, notwithstanding parent’s resulting Equally sig- liability injury. for waiving of youth immense amount fact that an nificant is the Opinion by Schuette, Scouts, Boy activities —church groups, sports camps kinds, events, all orchestra and theatrical and countless school on operate functions —run and release waiver-of-liability forms minor children.4 heard, Voices will be this heard during as Court oral argument, no acquiesce court law should to a business, piece paper protecting nonprofit organi zation, or group liability school from when a child is injured. Equally strong church, be the will chorus school, and organizations, volunteer and passionate parents, decrying the effect” “chilling of the invalida waivers, tion of out preinjury freezing adult volunteers from participating youth activities and of all camps kinds, Damocles,5 with Sword of speaking, in the lurking weeds or their hanging over heads. end, But in the Michigan Legislature will have to determine a statutory exception whether to the common- law for preinjury rule adopted, waivers should be whether there should any be differentiation between for-profit and nonprofit groups as some states have seen *32 fit Sharon, 109-110; to do. See at Zivich, supra at supra 372; Hohe v San Diego Dist, School Cal Unified 3d 1559, 1564; 274 Cal I Rptr hope that the Michigan Legislature acts thoroughly and promptly. 4 Appended opinion examples to this preinjury, parental are but a few waivers, widespread which demonstrate their use. Such waivers are used youth organizations, universities, community nonprofit groups array an Michigan, immense including: of activities across Arcadia Daze 5K A), (Appendix SpringHill B), Run Camps (Appendix Trickey Summer Jeff (Appendix C), Camps University Michigan Gymnastics Quarterback D), Camp (Appendix E), (Appendix Ann Arbor YMCA Detroit Free Press/Flagstar (Appendix F), Wayne University Marathon State Mort G). Harris Camp (Appendix Recreation and Fitness Center Youth Fitness suspended The “Sword of Damocles” was sword over the head of myth. Wikipedia Damocles <http://en.wikipedia.org/ Greek (accessed wiki/Sword_of_Damocles_%28disambiguation%29> July 2008). Opinion by Schuette,
APPENDIX A *33 Opinion by Schuette, B APPENDIX *34 Kera, LLC Woodman v Opinion by Schuette, J. APPENDIX C Camps
Trickey Quarterback Jeff QUARTERBACK APPLICATION FORM CAMP My permission son to attend the my has JEFF I QB TRICKEY CAMP. that certify within the two he years, has liad pest physical now, examination and that he is physically able football participate activities without restriction. In the camp injury, give event of an illness or I my medical for treatment and consent attending physician
permission treatment, and proper secure hospitalize, surgery. I injections, anesthesia, or order or medical for other any wilt be responsible son’s charges my with in connection camp. attendance in acknowledge TRICKEY at I JEFF in a sport son will participate my CAMP QB things, among involve, other that may with other body contact physical including objects, ground, and persons CAMP, he QB at JEFF TRICKEY injury. 1 risk specifically incur give release the JEFF waive, up staff from CAMP QB TRICKEY damages which I claim for any injuries or illness have for my may son at camp. sustain that may he Ctunper Signature:. Signature:.
Parent's BE ACCEPTED WILL PLAYER NO APPROVAL PARENTAL
WITHOUT Opinion by Schuette,
APPENDIX D (/Guardian Liability Consent, Pn ron Medical Release and Release from Agreement carefully read Please thefollowing signing information before completed. carefully All blanks must be Please read the following information signing. before Activity:______________ Activity Time Period: _____________________________ Activity Sponsor: ____________ ______ _ Participant Name: ___________________ Parent/Guardian Namefs): _ Participant participate and/or Activity, parents allowing In consideration for I/wc, as guardians Participant, agree following: to the *35 Participant participate Activity Activity Authorize in the for the Time Period stated above. indemnify Activity Sponsor University any Release, and hold harmless the damages, and from and all except Activity Sponsor for caused the sole damages gross or intentional negligence misconduct of University, participation Participant Activity. or out of the arising of in the Activity, Activity, I/we the Prior to commencement of tho were made of the had aware the nature of opportunity inquire I/we Activity further, sufficient and understand the has inherent risks and and Participant Participant, assume, on behalf of all those risks. inherent Activity, While participating subject Participant policies, Is regulations rules and Activity University Sponsor. explosives, any weapon, fireworks, of or drugs and Possession illegal any Participant Activity. prohibited expulsion Further, alcohol is and cause for immediate from the disobeying University repeatedly Activity Sponsor policies, may expelled or rules or be regulations from Activity. Activity Sponsor, employees, (collectively, “Activity clinicians, trainers, its nurses and agents Authorize authority any Sponsor”) approve seek, obtain, including, and medical care and treatment but not x-ray examination, medical, and surgical diagnosis, limited to or treatment medical anesthetic, dental any provided supervision physician general care be recommended and of which under necessary Participant judgment, Participant which, surgeon, well-being for in their for the health and participation Activity. solely responsible his/her I/We thatl/wo in the further for during any agree are(am) Activity Sponsor University agree Regents Michigan, costs incurred and to hold the (collectively, “University”) any liability any employees for agents arising good their harmless out Participant. obtaining faith action taken medical treatment upon representatives us, estates, heirs, above are our agreements binding assigns. The Parent/Guardian Date Signature_____ Parent/Guardian Signature_____ Date Participant Signature ____Date Keea, Opinion by Schuette, E
APPENDK *36 Mich Opinion by Schuette, APPENDIX F Free Detroit Press/Ffagstar Waiver/Release Marathon to promotion laws of administrators, determine whether I am fit been verified principles); Newspaper Partnership, representatives, attest and future arising officers, governors, arising have In consideration of the non-transferable, against free competitions. out of or from said Michigan or other certify use and that I the waive and release in a licensed medical doctor successors and and will event. Detroit Free that my any your accepting account sponsors I name, grant even If my physical am way the be acknowledge physically to relating Cities to the adjudicated exclusively by voice and the Press/Flagstar safely complete this assigns, race Is cancelled. volunteers, Detroit and/or of Detroit and any this event. condition and Marathon fit and and all my participation entry, that for I picture (except acknowledge have It Is any Marathon ("Marathon"), and its I rights this hereby, my responsibility Windsor, ability and sufficiently in where the latter is event and I any sponsors and agree Free all for broadcast, injuries that claims for this press, safely complete USA myself, that in the trained my entry the and event Track and any or Inc., precautions to understand the risks and Courts licensees the my telecast, death suffered legal will its in Flagstar, heirs, complete fee is non-refundabie violation employees, be claim Field, this event have and governed Michigan. advertising, executors and I should take. I damages Detroit exclusive right and this and of religious by dispute their agents, me in or the I may The registrant MarathonGuide.com/Web has no acknowledges Marketing Associates responsibility operation Free the Detroit Press/Flagstar Marathon and associated applicants only participate acting agent as an register events and who wish to Accordingly, Press/Flagstar registrant Detroit Free associated agrees Marathon and events. any MarothonGulde.com/Web Marketing agents to hold Associates from and Its harmless injury liability or resulting Press/Flagstar from Detroit Free Marathon and associated Furthermore, registrant events. that it agrees against shall have no claim any Injury MarathonGulde.com/Web Marketing Associates for during occur operators Press/Flagstar Detroit free Marathon and associated The individual event events. provided sponsors MarathonGuide.com/Web have in this information included site and completeness verify accuracy Marketing Associates not does thereof. AHconfirmed payment MarathonGuide.com/Web orders are once Is Marketing final submitted. Associates Issue does not refunds. *37 Keea, Schuette, G
APPENDIX