Woodman v. Kera LLC

486 Mich 228 v KERA WOODMAN (Calendar 9). 28, Argued Docket No. 137347. October No. Decided June 2010. Woodman, minor, by friend, Trent his mother and next Sheila Woodman, brought against an action in the Kent Circuit Court LLC, (a doing Party facility Kera business as Bounce that con- play large playground tained a equipment), area with inflatable alleging negligence, gross negligence, and a violation of the Michi- gan leg Consumer Protection Act. Trent had broken his while jumping during birthday party facility. off a slide his at the summary disposition, arguing Defendant moved for liability father, Jeffrey Woodman, signed waiver Trent’s had on against Trent’s behalf barred the claims it. Plaintiff also moved for summary disposition, arguing that the waiver was invalid as a parent waive, release, compro- matter of law because a cannot court, Johnston, J., mise his or her child’s claim. The Donald A. negligence claim, ruled that the waiver barred the but not the gross negligence protection parties and consumer claims. Both sought appeal. separate J., opinions leave to In three Talbot, EJ., J., Appeals the Court of concluded Bandstra, Schdette, that the dismissing gross negli- trial court had erred gence protection and consumer claims and further held that the negligence waiver did not bar the Appeals claim. The Court of reversed negli- and remanded the case for reinstatement of the (2008). gence App Supreme claim. 280 Mich Court granted appeal, defendant leave to with consideration limited to validity enforceability liability of the waiver. 483 Mich 999 (2009). separate opinions, Supreme In Court held-. Michigan’s law, parental preinjury Under liability common waiver is unenforceable. Young opinion, Justice wrote the lead which set forth the 111(A) holding part opinion, of the In Court. he stated that Michigan’s law, under capacity common a minor lacks the signed waiver, father, contract. Had Trent rather than his against defendant could not have enforced the waiver him unless age majority. Trent confirmed it after he reached the Further- V KERA LLC WOODMAN more, law, Michigan’s common cannot contractu- under Accordingly, ally did not har hind his or her minor child. waiver Young plaintiffs further in the cause action. Justice stated opinion Supreme of his that both the Court and the remainder authority change law, Legislature have the the common but prudence, given a that whether the Court should do so is matter of assessing has fewer tools for the societal costs and Court changes Moreover, Legislature. benefits of those than the regarding common-law rules minors and limitations on those who solely protection would contract on their behalf exist for the of the identify any existing policy public minors. Defendant did not change law, supporting enforcing parental in the common and contrary public policy waivers would be to the established of Young Michigan. Accordingly, Justice would decline in this in- noted, however, stance alter common-law rule. He that even change rule, without a in the common-law defendant would have reducing liability parental an alternative for its in the form of a indemnity agreement. joined by Justice Chief Justice and Justice Kelly Hathaway, concurring, agreed preinjury signed by that a waiver Weaver, parent on behalf of his or her minor child is unenforceable for the 111(A) Young’s I, II, parts opinion. reasons stated in and of Justice by compelling policy As further noted Justice there are Young, depart longstanding rule, gives not to reasons from this which protections injury. minor children the same before and after an A parent may sign not resolve his or her child’s claim or a release on approval behalf of the child without court after the child has been injured. Young, however, disagreed Justice HATHAWAY with Justice prohibiting parental that the common-law rule can waivers be indemnity parental agreements. circumvented Chief Kelly Justice concurred full with Justice Hathaway 111(A) Young’s II, parts I, opinion. and with of Justice She separately proposition wrote to note that the that a defendant can unenforceability parental preinjury liability circumvent the aof simply by entering separate indemnity agreement waiver into a parent problematic question with a is for several reasons. The case, majority should not be addressed and a has not Young’s accepted regarding validity Justice conclusions The it. agreements questionable they those because shift financial responsibility negligent parents for a tortfeasor’s conduct to the victim, producing parental liability the minor the same effect as waivers.

Affirmed and remanded. 486 Mich 228 Cavanagh Appeals’ Justice would affirm the Court of decision summary disposition that defendant was not entitled to on the release, grounds. but would do on different The basis of so only language of the release waived the claims of the “under- undersigned signed,” and the in this case was Trent’s father. Cavanagh portion judgment Justice would vacate the of the Appeals preinjury by parents Court of that held that waivers on presumptively behalf of their minor children are not enforceable unnecessary case, just because it was to reach that issue in this as unnecessary indemnity agreements it was address effect by parents. joined by agreed Justice Justice that defen- Corrigan, Markman, summary disposition, grounds dant was not entitled to on the that language the actual of the waiver did not waive Trent’s claims. The analysis by Appeals concluding the Court of that a cannot bind preinjury his or her child minor waiver should be vacated Appeals question because the Court of answered a was properly opinions before it. of Justice Justice Hathaway, Young, question properly and Chief Justice do the same. Were the Kelly Court, Supreme pursuant authority before the to the Court’s under 3, 7, clarify § Michigan Const art Justice Markman would law, prevailing practices common consistent with the customs citizens, Michigan’s parental prein- does allow the enforcement of a jury previous Michigan parental waiver. No case has held that preinjury unenforceable, many waivers are and relevant consider- support clarifying permits ations that the common law enforcement (1) waivers, parental preinjury including statutes and caselaw that (2) minors, legal autonomy have enhanced the statutes and recognized parents’ authority important caselaw that have to make (3) regarding children, decisions their caselaw of the United States Supreme recognizing authority, Court a Constitutional basis for that (4) granted protections statutes and caselaw that have to recreational (5) (6) providers, principles, freedom-of-contract recent trends in the growth litigation, persuasive jurisdic- decisions from other majority’s significant consequences tions. The decision will have widely state, throughout including will be felt both an increase in litigation sporting opportunities and a reduction and recreational for children. — —

Parent and Child Waiver of Children’s Claims Contracts to Waive — Children’s Claims Common Law. preinjury liability by parent A waiver on behalf of her his or child

is unenforceable and does not bar the child’s cause of action. v Kera LLC Opinion by Young, J. (by Rhoades McKee PC Paul A. McCarthy Hulst) for Stephen plaintiff. Kozerski, Feuer), (by

Feuer & PC. Scott L. for defen- dant.

Amici Curiae:

Eardley Law Offices, (by Eugenie Eardley), PC. B. the Michigan Association for Justice.

Kreis, Enderle, Borsos, Hudgins (by & PC. James D. Lance) for the Michigan Ways, Association of United Association, the Michigan Nonprofit Michigan and the Community Association of Mental Health Boards. Young, IJ. believe this Court must determine whether preinjuiy liability signed by parent waiver on behalf of and, not, his child is enforceable under the if common law change whether this Court should the common law to I enforce such a waiver. would hold that a parental

preinjury Michigan’s waiver is unenforceable under com- because, special circumstances, mon law absent a parent no authority has bind his child contract. I would further decline to the common change law rule.

While this Court unquestionably has the authority modify law,1 the common such modifications should be made with the utmost caution because it is difficult for the judiciary competing to assess the interests that be at stake and the societal trade-offs relevant to one modification of the common law versus another relation to the existing rule. (“The 3, § art Const common law and the statute laws now they expire by limitations,

force . .. shall remain in force until their own changed, repealed.”); Longstreth Gensel; or are amended or 423 Mich (1985) (“[T]he 675, 686; 377 NW2d 804 common-law rule remains the by Legislature.”). law until modified this Court or the Opinion Young, J. the

Ironically, consistently defendant has denied explicitly precluded parental preinjuiy common law use result, As a defendant has never advocated a waivers. law, in common much less the change provided specific analytic concerning framework such an any Court with any assessment of meaningful possible alternative rule or change attend a in the consequences might existing duration of the Particularly light rule. historic waivers, generally precluding parental common law rule change and because the has proponent requiring essentially provide any argument failed to critical analysis in I support change, would decline alter I existing Accordingly, judg rule. would affirm the ment of the remand the Appeals Court case for proceedings further consistent with this opinion.3 modify I note that a bill to the common rule at law issue here has been 2009, Legislature. May 19, introduced in the HB introduced would § add 5109 to the Estates and Protected Individuals Code. The added provide: section would (1) parent guardian participates A or of a minor who activity may person liability

recreational release a advance from damages personal injury for economic or noneconomic tained sus- activity. the minor as a result of the (2) following liability One or more of the be released from under this section:

(a) organizer sponsor activity. A or of the recreational (b) property An owner or lessee of the on which the recreational activity occurs. writing signed by A release under this section be in shall guardian. 10, 2010, Judiciary reported On March the House Committee the bill Representatives with a substitute and recommended that the House of adopt the substitute. competing policy closely This is a case in which interests are positive my balanced. The common law and law that inform understand- Kera Woodman v

Opinion by Young, I. FACTS AND PROCEDURAL HISTORY underlying facts are and familiar simple likely many parents young with children. Five-year-old Trent Woodman’s had parents birthday party his at Bounce Party, which defendant Kera LLC and operates which is an play indoor area that contains inflatable play equip- father, ment. Before party, Jeffrey the Trent’s Wood- man, signed liability waiver on Trent’s behalf. The provided pertinent waiver part: UNDERSIGNED, by THE signature herein affixed his/her acknowledge any physical does that activities involve some that, personal accordingly, element of risk and in consider- undersigned waiving ation for the against claim his/her PARTY, agents, undersigned BOUNCE and their will participate be allowed any physical activities. By engaging activity, undersigned in this acknowledges risk, assumes the element of inherent he/she being consideration for engage activity, allowed to in the agrees indemnify PARTY, and hold BOUNCE and their agents, any liability harmless from personal injury, property damage wrongful by participation death caused Further, activity. in this undersigned agrees to indem- nify PARTY, and hold agents, BOUNCE and their harmless any from and including, all costs incurred but not limited to, attorney’s PARTY, actual fees that BOUNCE and their agents, may by brought against suffer an action or claim it by anyone undersigned’s as a result of the use such facility. ing of children uniformly promote protection require not be to waive future claims of their children. I parents permitted any arguments am to the that Justice Markman and the Court of sympathetic concurrences offer that this view of the common rule Appeals law litigiousness given in our modern promote the cases society. However, law I believe that balanced social positive cited, closely question Legislature given one best handled that members particularly — stronger of this than rather Court, have offered parties themselves, rationales for the common rule law that Justice Markman favors. Mich Opinion Young, J.

Participant:_Signature:_ Legal Parent or

PRINTED NAME Guardian’s signature if participate [sic] is age under 18. Date:_ IT

BE YOU THIS CARD AND SEND SURE COMPLETE THE PARTY GUEST! WITH the and signed parent Mr. the form as Trent’s Woodman “participant.”4 name on the form as the printed was off a slide and broke his During party, jumped the Trent mother, Trent, Woodman, friend, as next leg. by his Sheila defendant, gross filed suit against alleging negligence, negligence, Michigan and violation of the Consumer Pro- (MCPA).5 sought summary tection Act Defendant disposi- tion, that claims arguing, pertinent part, plaintiffs liability the Plaintiff filed a cross- were barred waiver. that the summary disposition, arguing motion for waiver parent invalid as a matter of law because a cannot was waive, release, compromise or his child’s claims. The trial plaintiffs negligence court ruled that the waiver barred claim,6 plaintiffs gross negligence but not or MCPA claims. waiver, given language of the that As noted footnote the the fact signed “parent” “participant”

Mr. as rather than as the on the Woodman questions rights about whether Trent’s at all. waiver raises were waived seq. MCL 445.901 ei actually Ironically, question the at here whether waiver issue argument, bound the child was raised members of this Court at oral as only “undersigned,” challenged appears waiver to bind who is Mr. Indeed, Woodman, “participant,” appears Trent. it that indemnify any liability “undersigned” is bound to defendant that might Notwithstanding this, plaintiff argued throughout occur. has litigation that the release bound Trent. Kera Opinion by Young, J. issue, and appealed Plaintiff the waiver defendant gross negligence and MCPA issues. The appealed reversed and held that the waiver was Appeals Court negligence opinion, invalid to bar the claim.7 The lead by Judge provided thorough authored discus- TALBOT, validity foreign sion of the waivers parental jurisdictions Michigan as well as under law. The lead law, Michigan concluded that under common opinion “ authority merely by ‘a has no virtue of the waive, release, compromise relation to or parental ”8 Thus, opinion claims of his or her child.’ the lead concluded, signed [Trent] “the release on behalf of designation cannot be construed as valid”9 and “the imposition any exceptions solely waiver within the Legislature.”10 Judges BANDSTRA and purview concurred, their “reluctantly” noting hope SCHUETTE Legislature this Court or the would address the Following precluded the trial court’s determination that the waiver suit, summary plaintiff’s plaintiff subsequently disposition moved for and argued language plaintiff’s that the waiver was ineffective to wave claim. “operate[d] Plaintiff conceded that the waiver defendant between” Trent, agreement insufficiently argued but that the was clear to effectuate motion, rights. a valid waiver of Trent’s The trial court denied that plaintiff appealed language has not on the the waiver basis was appealed An issue not advanced or is deemed waived. Lawrence ineffective. v Will Darrah Assoc (1994). Inc, 1, 4 2; Mich n & 445 516 NW2d 43 Because Woodman, plaintiff argued never that the waiver Mr. I hound do address problems which, language, the obvious with the waiver in contradiction to court, argument by plaintiff specifically advanced before the trial Woodman, appears only to bind Mr. rather than Trent. 7 641(2008). Kera, LLC, 125; App Woodman v 280 Mich 760 NW2d The Appeals summary Court of also held that defendant was entitled to disposition plaintiffs gross negligence on and MCPA claims. 8 Niedoliwka, (opinion by quoting at 144 J.), Id. Tuer v 92 Mich Talbot, (1979). 694, 698-699; App 285 NW2d 424 9 Woodman, J.). (opinion Mich at 280 151 Talbot, App 10 at Id. 149. 486 MICH228 Opinion by Young, J. change permit

issue and the common law waive the tort claims of their minor children.11

Defendant sought appeal, leave to and this Court granted application, defendant’s limited to considering the parental preinjury liability “whether waiver was valid and enforceable.”12

II. STANDARD OF REVIEW This Court reviews de the grant novo or denial of summary disposition.13

III. DISCUSSION Defendant seeks to have Court enforce the parental preinjury waiver that Mr. Woodman signed on behalf stated, of his son. As I believe that this Court must determine a parental preinjury whether waiver enforceable and, not, under the common law if whether should authority we exercise our change the common law and enforce such a waiver.

A. THE COMMON LAW A parental preinjury waiver is a contract. Mr. Woodman purportedly signed the contract on behalf of his son. Consequently, defendant necessarily asserts that the con- tract is enforceable against Trent because Mr. Woodman authority had to bind his son to the contract. Michigan well-established common law rule is

that a minor lacks the capacity to contract.14 It is undis- (opinion by EJ.); Id. at 157 (opinion id. at 161 Bandstra, Schoette, J.). Kera, LLC, (2009). Woodman v 483 Mich 999 Rozwood, (1999). Maiden 597 NW2d 817 Rice, (1881) (“The See Holmes v Mich 7 NW 772 law recognizing incapacity of infants to enter into certain contracts and v Kera 237 Opinion by Young, J. waiver, signed if Trent had puted five-year-old that him against the waiver defendant could not enforce age it after he reached the of unless Trent confirmed majority.15 declaring protection. voidable does so for the infant’s such contracts voidable, Their contracts are not void but and it is for the infant to .”); ratify Shortridge, . . Minock v 21 Mich avoid the contract or it. (1870) (“The 304, executory infant, a 315 contract of an such as

promissory note, being nullity, a because it not void the sense of confirmed.”); confirmed, may binding be but it has no force until it is Potter, 377, (1871); Brown, v 31 Mich Carrell v 23 Mich 378-379 Dunton 182, (1875); Co, 157, 162; Reynolds v 183 Mich 149 183 Garber-Buick (1914) (“After reaching majority may disaffirm a NW 985 his one by during infancy paid contract made him and recover what he or contract, parted pursuant with to such if he return what he re- (1936) ceived.”); Baxter, 587, 589; Lawrence v 275 Mich 267 NW 742 (“Authority support holdings need not cited in the uniform be a minor rescind a contract of this character. The contract for the necessity.”). house and lot was not for a exception The common law to this rule is that a minor can bind by Estate, himself contract for “necessaries.” See In re Dzwonkiewicz’s 165, 167; (defining 231 Mich 203 NW 671 “necessaries” as items “ infant, bodily needs of the without which ‘answerü ” reasonably holding individual cannot exist’ and that medical services “necessaries”) (citation omitted); Squier Hydliff, are v Mich (1861) (“It has, believe, always might we been held that minor bind necessaries, himself contract and that such contract when ex- ecuted, circumstances, if reasonable under all the or not so unreasonable advantage, repudiated by as to be evidence of fraud or undue can not be (1896) (“These him.”); Johnson, Lynch 67 NW 908 ”); Losey, clothes were within the class known as ‘necessaries.’ Woodv (1883). 475, 477-478; Mich 15 NW 557 are, course, express statutory exceptions There also to the common (educational 600.1404(2) See, loans); e.g., law. MCL MCL 600.1403 (willful (life misrepresentation age); disability 500.2205 MCL 333.5127(1) (consent insurance); MCL to medical care for a minor 333.6121(1) (consent HIV); infected with venereal disease or MCL 333.9132(1) (consent care); substance abuse related medical MCL care). prenatal pregnancy related health 15 Minock, age majority Michigan at is 18. See Mich 315. MCL 722.52. 486 Mich Opinion by Young, J.

At issue is whether minor can be bound signed by party.16 contract on his behalf a third Specifi- cally, by can a bind his child contract if the child parent that, could be not otherwise bound? Defendant insists law, under the common a waiver is enforceable parental However, to bar the claim of a minor child. the Michigan guardian, common law rule is clear: a including parent, contractually cannot bind his minor ward.17

That point firmly law was established more than years ago by in v Armitage Court Widoe.18In case, the plaintiff was minor when his father signed purchase land contract on behalf of his son. After reaching majority, plaintiff sought the to disaffirm Legislature Justice Markman cites numerous instances which the permitted provide “parents participa has consent to their children’s significant concluding tion in numerous activities” as a basis for parental preinjury 285, waivers are enforceable. Post at 288-290. However, presented parents the issue in this case is whether have not authority participation the to consent to their child’s in various activities. Certainly, parents generally authority, nothing have such in this opinion attempting parent’s authority should be read as to limit a provide activity. consent to the The issue in this case is whether a by injured his child bind contract when the child is as a result of participating activity, in the consented-to 17 Reynolds, 166, See 183 Mich at in which this Court stated: ,to power guardians wards, theOf contract for their it is general proposition

stated as a that: person “Guardians cannot their contracts bind either the or guardians person- estate of their wards. Such contracts bind the ally, recovery them, against must be had in an action against [Citation omitted.] the ward.” (1874) (“In McBain, See Burt v also 29 Mich this case the plaintiff infant, by any relinquish- was an and she could not be bound attempted relinquishment by rights.”); Bearinger ment or another of her (1889) (“The Pelton, general guardian 43 NW 1042 decree.”). right had no to bind the infants a consent (1877). Widoe, Armitage v 36 Mich 124 v Kera Opinion by Young, J. the contract and father had money paid recover his COOLEY, toward the on purchase price his behalf. Justice writing Court, for a plaintiff unanimous held that had no interest the contract because his father was without authority to bind him to the contract: place

Had the infant the first undertaken to make him, agent another his to enter into the contract for appointment would not have been valid. On the authorities no rule is clearer than that an empower infant cannot an agent attorney or to act for appoint him. But if he cannot an agent attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he extraordinary party could not authorize. It would be if a who power particular yet indirectly by has no to do a act could do it adoption. deprive mere act of Such a doctrine would wholly protection; only change infant of his for one has proceeding, get order of assume to act for the infant first and authority afterwards, his principle and the of law which power give authority denies him the the is subverted. But wholly such protection a doctrine is inadmissible. The infancy one, is a put substantial and is not to be aside and methods.[19] by overcome indirect In Duffield,20 v an Lothrop attorney represented who several infants in obtaining grandfa- shares of their ther’s estate sought to recover his fee from the minors’ estates. This Court held attorney that the could not recover from the directly minors’ estates because

[w]hatever contract relations he had were with their guardian, personally who could not bind the or their infants by (except by court, authority probate estate contract law), subject in accordance with so as to their estates to by parties expenses by claims filed third for incurred the guardian.[21]

19 (citations omitted). Id. at 129 (1903). Lothrop Duffield, 485; v 134 Mich 96 NW 577 added). Id. at 487 (emphasis 486 MICH 228 Opinion Young, J. the authority supporting ample This Court set forth authority guardian that the was without proposition the minors to a contract.22 bind in the instant case is guardian The fact that legal principle. father does not alter this bedrock child’s child,23 Parents, enjoy of a guardians as natural Indeed, authority legal guardians.24 over a child as same Harlow,25 THOMASM. COOLEY made in Power v Justice authority is limited to the care and parent’s clear that a is his child and that a without custody of Power, In of the child. authority rights to waive explo- with an plaintiff injured playing child was while sought The defense property. sive on the defendant’s the child had been use the mother’s admission binding an admission on the danger warned of the as the statement was child. The trial court held inadmissible, Court, writing and Justice for the COOLEY, affirmed: guardian power away the

The natural has no to admit rights person his of the ward whose is committed to only, custody. guardian person having He no any may possess, control of estate the ward and could not given except judicial proceedings be a control on and after so, giving security responsible being care. This it cannot plausibly irresponsible he be claimed that an admission 22 See id. at 487-489 and the numerous authorities cited therein. 16; Knott, 10, (1910); See In re 162 Mich 126 NW 1040 In re Rosebush, (1992), App quoting In re 195 Mich NW2d 633 (1984). LHR, 253 Ga 321 SE2d 716 (1881) (“The 265, 271-272; Culp, law is See Gott 7 NW 767 entirely guardian’s well settled that the discretion such matters stands very footing parent’s, compellable on a similar and that he is not with ward.”); economy prefer of cost to the welfare and comfort of his mere (“A guardian powers responsibilities has the and MCL 700.5215 minor’s deprived custody parent’s parent minor and of a who is not of ....”). unemancipated child 25 (1885). Harlow, 107; Power v 57 Mich 23 NW 606 V KERA 241 WOODMAN Opinion by Young, J.

may deprive important rights. right his ward of A action and, property corporeal possession, is as much as is a in the minor, protected by way case the law in the same and under the same securities. The mother could not release it by even consideration and the most instru for full formal ment-, less, therefore, she, by much mere could word of mouth, oath, chargeable when not under or otherwise with responsibility, destroy right by his of action her admiss ions.[26] longstanding undisturbed common law rule

that a parent authority lacks to bind his child recently contract27 acknowledged by was this Court case in Legislature abrogated general which the had common law rule in the medical context. In malpractice Clinic, McKinstry PC,28 v Valley Obstetrics-Gynecology the pregnant signed mother a medical waiver requiring any arbitration of claim on of her behalf unborn child. However, the mother the validity contested of that waiver after her child was injured during delivery. The 600.5046(2) (since Court considered the effect of MCL 78), PA repealed by 1993 which provided: added). (emphasis at Id. opinion; Lothrup, 487; See footnote 17 of this 134 Mich at Reliance (1974) (“A Haney, App 242; Ins Co v 54 Mich 220 NW2d 728 authority merely by parental waive, has no virtue relation to release, child.”), compromise against CJS, citing claims or his Child, 58, p 764, Spilker, 33; § Parent & App v 37 Mich Schofield (1971); Tuer, App (holding NW2d 549 92 Mich at 698-699 that an agreement parents purporting between to release the father of child support obligation child); binding Estate, was not on the In re Kinsella (1982) (mother’s App 120 Mich 327 NW2d 437 consent to putative binding annulment with father was not was not on children seeking paternity); to establish Smith v YMCA Benton Harbor St / Joseph, App 552, 554; (parental 216 Mich 550 NW2d 262 release $3,275 exchange swimming pool binding after child fell at was not child). on Clinic, McKinstry Valley Obstetrics-Gynecology PC, (1987). 405 NW2d 88 486 Mich 228 by Opinion Young, by agreement to

A child shall be bound a written minor controversies, upon disputes, or issues the execu- arbitrate by parent legal agreement on his behalf a or tion of an guardian. subsequently disaffirm The minor child agreement. This Court concluded that the statute mandated that the mother bind agreement signed by the arbitration In that the doing, acknowledged agree- her child. so we been under the binding general ment would not have rule: common law 600.5046(2)] interpretation departure [MCL

Our is a parent authority rule from the common-law that a has no waive, release, against compromise claims or a However, child. modified common law can be or abro Thus, gated by by parent’s statute. a child can be bound grants authority parent. act when a statute to a We 600.5046(2)] changes [MCL believe that the common law to permit parent agreem to bind a child to an arbitration ent.[29] that, Accordingly, we reaffirmed under the consistent law, and well-established common Michigan authority without to bind his child contract. support parental In of its claim that waiv preinjury valid, general ers are defendant first contends that freedom of contract render these principles agreements entirely enforceable.30 This contention is unpersuasive. The issue at hand is not whether a adult is competent Rather, free contract. the relevant issue is the subject not, matter of the contract. This Court does under omitted). (citations Id. at 192-193 (2002) (“ Zwit, 56, 71; See Terrien v 648 NW2d 602 ‘The competent general persons contracts] [of rule is that shall have the liberty contracting agreements voluntarily utmost and that their ”), fairly quoting made shall be held valid and enforced the courts.’ Co, City Pipe Harding Line Glass US 51 S Twin Co Ct (1931). 476; 75 L Ed 1112 Woodman v Kera Opinion by Young, J. freedom of contract principles, enforce contracts that parties otherwise authority have no to enter.31Mr. possesses greater no authority waive the property rights of his son Trent than he possesses to property waive the rights any other nonconsenting party, third such as neighbor his or a Thus, coworker. the answer to defendant’s freedom of contract argu ment is simple: the freedom to contract does not permit contracting parties to impose obligations upon and waive the rights parties of third in the absence of legally cognizable authority to do so.

Relying Loeb,32 on O’Brien v defendant’s second contention is that a parent only is prohibited from waiving a tort claim injury and may freely after waive a tort claim injury. O’Brien, In before rejected Court parent’s authority to waive her minor son’s tort claim after the injury occurred because “[t]he transaction was carried on entirely mother, with the who was without authority to bind him in the release of his cause of against action the defendants.”33 Rather than supporting claim, defendant’s O’Brien is in accord wdth general common law rule that a parent is 31 See, (1871) e.g., Mining Johnston, (holding Atlas Co v 23 Mich by that agent’s agreement the defendant was not purchase bound its to property public sold at a $400 auction for more than he was authorized to simply preposterous ‘‘[i]t bid because agree would be [the to hold that by agent], ment] any way [the ... assented to could in bind or affect the defendant, agent] authority [the if had no thus to bind them and the ratify action.”); defendant did not his Miller v Frost’s Detroit Lumber & (1887) Works, 455, 458-459; Wooden Ware 66 Mich (holding 33 NW 406 by agreement that the defendant was not bound of an unauthorized agent lumber); purchase Deffenbaugh Paper Co, Mfg v Jackson 242; Mich (holding 79 NW 197 company that the defendant was employment not bound plaintiff agents an contract with the that its behalf). were not authorized to enter into on the defendant’s (1924). Loeb, O’Brien v 201 NW 488 quoted Cyc Id. at 408. The Court further the rule from 22 L & Proc at 584: Mich 228 Opinion by Young, J. O’Brien his child contract. authority to bind

without common general an to the way exception in no creates or rationale be rule, limiting principle law and no no I that there is holding. its conclude extracted from that a defendant’s contention support basis to tort claims the child’s only waiving from prohibited injury.34 after the in this case is the common law application

The is a The waiver at issue straightforward. simple the waiver on signed Mr. contractual release. Woodman son, Trent thereby intending to bind behalf of his law, Mr. Woodman contract. Under the common Accordingly, so. the waiver authority was without do bar his against Trent and does not is not enforceable effort to enforce the waiver cause of action. Defendant’s request as a that this Court must therefore be viewed modify common law. THE LAW BE CHANGED?

B. SHOULD COMMON “[t]he Constitution com- Michigan provides force, repug- statute laws now in mon law and the constitution, shall remain in force until nant to this limitations, changed, their own or are they expire by Legis- and the repealed.”35 amended or Both this Court authority change the common law.36 lature have by him in his “An infant is not bound a contract made for him, person purporting to act for unless such name another guardian person duly appointed his or next friend has been [O’Brien, him.” 229 Mich authorized the court to act and bind 408.] at 34 McKinstry, 192-193, at in which this Court acknowl See 428 Mich edged preinjury agreement arbitration was not enforceable under the common law. 35 3, § Const art 7. 36 (1965). Auditor, 1, 7; Myers v Co 190 Genesee 375 Mich 133 NW2d Kera v Opinion by Young, case,

In this we are asked to alter a (impliedly) common law doctrine that has existed undisturbed for century. that, well over a There is no if this question law, Court were inclined to alter the common we would public policy be for this state. Just creating “legisla- as tive amendment of the common lightly law is not presumed,”37 lightly this Court does not exercise its authority change Indeed, the common law.38 this Court has acknowledged prudential principle we must “exercise caution and . .. defer to the Legisla- ture upon when called to make a new and potentially societally dislocating change to the common law.”39 Whether to alter the common law is a matter of and, prudence authority because we share this with the Legislature, I believe we must consider whether prudent course is to take action the Legislature where has not.

1. THE SUPERIORITY OF THE LEGISLATURE TO MAKE POLICY DECISIONS This Court has recognized that the is the Legislature superior institution creating for public policy state: rule, general making

“As a policy job social is a for the Legislature, Estate, Kurzyniec not the courts. See In re (1994). App 531, 543; Mich especially 526 NW2d 191 This is requires true when the placing determination or resolution premium on expense one societal interest at the responsibility drawing another: ‘The society lines in a complex as identifying priorities, weighing as ours —of choosing relevant competing considerations and between Strat, Engineers Wold Architects & 474 Mich 713 NW2d 223, 233; (2006). Comm, See Bolt v Natural Resources 415 Mich 327 NW2d 838 (1982). Henry Co, (2005). v Dow Chem 701 NW2d 684 486 Mich 228 Opinion Young, J. judiciary’s.’ Legislature’s, the the alternatives —is Co, Ins 404 Mich v Farm Mut Automobile O’Donnell State (1979).”[40] 524, 542; 273 NW2d 829 to address matters Legislature The superiority correlated with the com- positively is public policy society. During in our government’s the role plexity of century, exercising courts their author- the nineteenth did the context of ity to alter the common law so within The of that era simpler, agrarian economy. legislatures contrast, In regulatory limited role. exercised a more regulation exercise robust today’s legislatures modern modern, economy of all facets of our internationalized of citizens. The need rights responsibilities and the public policy judiciary responsive perceived for a the has been reduced correspondingly needs of state the as full-time insti- Legislature development statutory and its of our pervasive regulation tution increasingly complex society. why

This case illustrates this Court should fre- in the common law quently policy-based changes defer Legislature. formulating public policy to the When for state, tools and Legislature possesses superior data, facts, opinion and assess- gathering means Legislature The can hold ing public.41 will of stud- hearings, gather opinions experts, procure ies, and a forum for all societal generally provide particu- factions to their views on a present competing lar question public policy. by contrast, designed judiciary, accomplish resolving disputes, typically task of be- discrete Zahorik, (1999), 320, 327; quoting Van v Van 460 Mich 597 NW2d 15 (1997). Zahorik, v App 575 NW2d 566 24, Lorber, Henry, quoting State n See 473 Mich at 92 Schwartz & far, Avery: regulation through litigation gone has too

Farm State court (2001). 33 Conn L R 1219-1220 y Kera Opinion by Young, J. tween two each in parties, pursuit party’s own “ narrow interests. We are ‘limited to one set of facts in lawsuit, each is and shaped by arguments which limited from counsel seek to opposing purely who advance ”42 interests.’ private generally We do not consider the views of nonparties questions policy,43 on and we are limited to the developed by parties. reality record of our judicial significant institutional limitations is a liability regard ability to our to make informed deci- sions when we are asked to create public policy by chang- ing the common law.

This case demonstrates these institutional limita- tions. Defendant concedes that openly principal impetus for seeking parental preinjury enforcement of waivers is the protection that waivers afford its busi- ness the face of the increasingly litigious nature of society. perceived But for the increased likelihood of a costs, lawsuit and accompanying litigation businesses such as defendant parental preinjury would need waivers.44 Accordingly, seeking to have its waiver 42Henry, 24, Lorber, quoting 473 Mich at 93 n & L Schwartz 33 Conn R at 1220. authority positions nonparties through Our to entertain the briefs curiae, 7.306(D), of amici MCR a far inferior alternative to the legislative process, hearings policy questions broadly permit in which on give testimony participate by all petitioning citizens to and otherwise government lobbying 1963, representatives. their their See Const art appropriate legislative branch, § 3. While in the such conduct is judicial unethical in the branch. very ability This case shows the limit of this Court’s to consider positions parties. Although other than the ones advanced question parents may rights whether waive their children’s is one of public policy significance, only obvious two amicus curiae briefs were submitted, urged Legislature. and one this Court to defer to the See Michigan amicus curiae brief of the Association for Justice at 7. 44Judge concurring opinion with the lead in the Court of BANDSTRA, Appeals, amply [that] observed that “this case demonstrates ours is an 486 MICH228 Opinion by Young, J. the com- a modification of enforced, requires defendant (but necessarily only impliedly) thus mon law rule and enforcing the waiver that the societal benefits of asserts the soci- litigation outweigh —saving defendant costs— Defendant, the common law. abrogating etal costs of anything Court with however, provided has not this is true.45 conjecture mere beyond matter with numerous purely policy-driven This is a costs, benefits, and trade-offs —none of which defen- raise, Cer- explicate. bothered to much less dant has minors’ tainly, enforcing protect the common law would en- property rights presumably contractual and in to preventing negligent injuries care courage greater are, These without admirable soci- question, children. benefits that have a goals significant etal with societal jurisprudence. Changing in this state’s long provenance litigation arguably the common law would save costs children offering businesses recreational activities for concomitantly availability of a wide promote of activities for children. These too are admirable range concern, however, potential societal Of are the goals.46 “[cjhildren litigious society” extremely increasingly and that have routinely jumped playground generations; seeking slides for lawsuits off resulting injuries only impose damages to on someone else for are Woodman, App phenomenon.” at & n recent 2. 45Again, acknowledge change that it to defendant does not even seeks analysis Consequently, law rule. defendant offers no of what the common existing change consequences this Court should make to the rule or the change. of such a stability Michigan’s important Fostering the businesses is also an fact, policy objective. given Michigan’s persistently poorly performing In economy, argument fostering an be made that that could businesses job primary impor opportunities create more is of social and economic recovery, Gallagher, expect tance to this state. See CEOs slow state Detroit 2009, Joblessness, J, Press, 28, 13A; Free October at The State Wall St Commerce, 20, 2009, A20; Department October at United States Analysis, News Release: Economic Slowdown Wide Bureau of Economic 2, spread Among (showing Michigan’s in June that States v Kera Opinion by Young, J. might hidden costs that occur if the common law were For if waivers changed. example, parental preinjury enforced, there that possibility were to be would be business owners will have diminished incentives resulting maintain their in an property appropriately, Moreover, children. injuries increased number result in an preinjury might enforcement of waivers increased burden on for children whose taxpayers par- right pursue ents waived their children’s a tort remedy necessary but cannot afford their medical care.47

These are but of possible two illustrations unin- consequences change tended that a the common law might Undoubtedly, many here occasion. there are are jurists others. How we as to determine whether enforcing changing the common rule will result law in a net society? only benefit to Here we would be able to make an uneducated even a guess without substan- (but analysis tial from the party requires has not for) changes asked the common engaging law.48When rank guesswork, weight such of common law authority century has existed for more than a must preferred. admonition, be In accord Hippocrates’ with maintaining quo significant the status has the benefit of doing greater no harm.

As stated previously, Legislature similarly is not constrained to make policy specu- on the basis of blind gross product year 2005), domestic has declined each since available at <http://www.bea.gov/newsreleases/regional/gdp_state/2009/pdf/gsp0609.pdf> (accessed 2010). 3, June 47 (“If 2008). Fields, (Fla, parent See Kirton v 997 So 2d 357 the burden, child, parties cannot afford to bear that the who suffer are the members, family people other and the of the State who will be called on burden.”). that financial bear 48 (“In Henry, effect, Cf. 473 Mich at 90 have been asked to craft we dark.”). public policy in the 228 Opinion Young, J. Thus, if changing permit the common law to

lation. preinjury to bind child to a waiver is deemed parent his benefit, the can Legislature to result a net societal determine that fact with reasonable assurance before subjecting public change. the to such a rationale for a

Illustratively, proffered defendant’s majority justices revision of what a have concluded is that a existing argument parent the rule is the to act in his child’s best interests and has a presumed right... “fundamental to make pertaining decisions care, custody, [that] the and control of minor child[].”49 rationale, however, discretely That is not limited to Under preinjury proffered analy- waivers. defendant’s sis, a would be able to bind the child in any contract, Thus, no matter how detrimental to the child. arguably completely defendant’s rationale would abro- gate the common law prohibition guardians contrac- tually binding their minor wards.

As explained, regarding the common law rules mi- nors limitations on those who would contract on solely their behalf exist for the mi- protection may be, nors.50 As unfortunate as it a parent does not always act in his child’s best interests. For example, Truax,51 Wood v guardian defendant’s entered into a mortgage and bond when the defendant was a minor. foreclosure, After the went mortgage plaintiff into a decree for “procured deficiency” against However, defendant. applied Wood the common law rules to invalidate a judgment against the defendant Granville, 57, 66; 2054; Troxel v 530 US 120 S 147 L Ct Ed 2d 49 by O’Connor, J.); J R, (opinion Parham v see also 442 US (1979). S L 99 Ct 61 Ed 2d 101 (“The Holmes, recognizing incapacity See Mich at law declaring of infants to into enter certain contracts and such contracts protection.”). voidable does so for the infant’s (1878). Truax, Wood v 39 Mich 628 Woodman v Kera by Opinion Young, J. because the mortgage was entered into when she was a minor and she had done nothing to affirm the contract reaching after Similarly, adulthood.52 Tuer v Niedo- liwka,53 the mother on her agreed infant child’s behalf to release father obligations from all child support $2,000. However, in return for the Court held that a “child’s right support from a father cannot putative away by mother, be contracted its and any that release or compromise executed the mother is invalid extent it purports rights to affect Thus, child.”54 caselaw, as noted in our there have been child’s instances which a did not act in his interests, best and certainly unimaginable it is agreements such could recur and be enforced in the absence of the common rule protect law that serves to the minor child. case,

As occurred in oral argument on this those favoring the modification common law rule might reflexively respond parents to the fact that do not always act in the best interests of their children by adding to the qualifier modification of the common law rule: a parental binding waiver is on the child only if the waiver is in the However, “child’s best interests.” this effort to avoid eviscerating protection of chil- dren recognized now in the common law rule would undoubtedly many create as as it problems would Certainly, resolve. such approach an would create ancil- lary litigation over parental whether the waiver inwas the child’s best interests. society might generally While benefit from parental allowance of waivers for minor children, it could reasonably any preinjury be asked: Is waiver that is later against asserted a particular minor

52Id. at 633.

53 Tuer, App at 696. 54Id. at 699. 486 Mich 228 Opinion Young, child? The injured

ever the best interests of the established, clear, easy existing common law is well children; consistently it must be apply protects chaotic, ad hoc alternative. preferred over BY BE 2. PUBLIC POLICY ENACTED THIS COURT MUST CONSISTENT WITH THE EXISTING PUBLIC POLICY OF THIS STATE section, For the reasons discussed in the preceding this Court restraint a practice considering must when in the common I change law. believe we must limit the by creating exercise of our that authority public policy is the existing public policy consistent with of this state. Doing against so and protects unwarranted unwanted “societally dislocating change[s]” public policy to the this state.55 We have defined the previously proper public sources of to our policy guide analysis: identifying public policy, In the boundaries of we believe judiciary the ultimately upon focus of the must be the that, fact, policies adopted by public through have been the legal processes, our various and are reflected in our state and law.[56] constitutions, statutes, federal our and the common a. POSITIVE LAW The preferred practice is to follow the lead of the institution best suited to public policy make for the state. Accordingly, begin I with the positive law enacted Legislature to determine public policy supports whether change in the sought by common law defendant. Legislature has affirmatively acted to protect preserve and minors’ property respect interests.57 With 55 Henry, 473 Mich at 89.

56 Terrien, 467 Mich at 66-67. 700.5401(2) e.g., (permitting MCL a court to conser See, appoint vator or enter a order “if the court determines the minor protective v Kera Opinion Young, J. action, has Legislature to a minor’s cause of taken 600.5851, the significant Pursuant to MCL steps. two tolling period of limitations for minority provision, during minority of action that accrued is tolled. cause his cause of action permitted bring The minor is Thus, the year reaching majority.58 Legis- within one ability pursue has acted to a minor’s preserve lature and minor’s claim. control the own

Furthermore, although a as next friend of his court,59 may approval child settle a claim with the authority to receive settlement on parent’s proceeds strictly the child’s behalf limited. Under MCL 700.5102, guardian person or with the care and $5,000 of a no custody minor receive more than year behalf,60 each on that minor’s receiving money property an individual for a minor is obligated apply money support to the minor’s education, pay except by himself but shall or herself way out-of-pocket expenses goods of for reimbursement for necessary support. and services for the minor’s An excess preserved amount be support shall for the minor’s future money property requires management protection owns or or provided, may cannot otherwise be has or have business affairs that jeopardized by minority, prevented money support be or or needs for and protection necessary education and that is or desirable to obtain or provide money”); Michigan Act, Uniform Transfers to Minors MCL seq. 554.521 et 58 exceptions claims, malpractice MCL 600.5851 contains for medical provides pertinent part: but person entry bring [I]fthe first entitled to make an or an action years age under this act is under 18 ... at the time the claim accrues, person claiming person or those under the shall have year disability through otherwise, 1 after the is removed death or entry bring although period to make the the action 600.5851(1).] [MCL limitations has run. 2.420; O’Brien, MCR 229 Mich at 408. 700.5102(l)(b) (c). MCL and 486 Mich 228 Opinion by Young, J. purposes A balance not for those and education. used property received for the minor shall be turned over to the attained.[61] majority minor when is Notably, Appeals the Court of has held that MCL 700.5102 does not authorize a to settle his child’s Furthermore, in recognizing legisla- tort claims.62 these choices, tive Court has policy provided by court rule that all settlements in favor of for payments minors $5,000 year less than in a are single controlled MCL 700.5102 and all greater require ap- settlements pointment of a conservator.63

These statutes evince a at public policy firmly odds parental with the autonomous control a over minor’s property rights Legislature that defendant asserts. The consistently has acted to preserve property a minor’s claims, interest his tort nothing Michigan’s positive legislative law indicates a intent to abrogate parent’s authority. common law or extend a Accord- ingly, positive law does not an provide anchor altering the common law rules.

b. COMMONLAW The common law is also a valid source for identifying If public policy this state.64 the change required 700.5102(3). MCL (“The Smith, App provide parents at 555 statute does not authority claims; compromise merely permits their children’s it directly payments parents debtor of a minor to make to the minor’s judicial seeking approval payment long without for each as as the aggregate payments $5,000 year.”). amount of the than less Smith 700.403, interpreted predecessor MCL of MCL 700.5102 with essen tially provisions. the same 2.420(B)(4); through (pro MCR see MCL 700.5401 MCL 700.5433 viding appointment protect property for the of a conservator to the of a minor). Terrien, See Mich at 66-67. Kera LLC by Opinion Young, J. to the waiver parental defendant in order have by with common law doc- were consistent other upheld creating consistent trines, this Court could consider Here, however, necessitated to change the public policy. other is at odds with parental validate waiver doctrines. common law pertinent right a to Defendant, seeking parental to enforce contract, abrogation by requires bind his child one, First, stated, as a not but common law tenets. two lacks the to contract: “Their contracts capacity minor voidable, and it is for the to [minor] are not void but ratify Second, guardian .”65 avoid the contract or it. .. contractually cannot bind his minor ward. defendant

It should be noted that the modification merely give parent would not the same requires minor, minor has authority given as the that a no and the would not authority contractual minor’s waiver Rather, defendant a modifica- requires bar action. rule give parent tion of common law that would authority contractually bind the minor to superior short, In defendant enjoys. minor himself requires changed permit that the common law be a minor could not do on his own do what behalf —enter into a contract that binds minor. As stated, previously we have the rule that a minor lacks to contract exists for the minor’s capacity solely protec- one, infancy “The is a protection tion.66 substantial aside and indirect put to be overcome defendant exception required by methods.”67 The does that: it removes the of a minor’s precisely protections incapacity permit- to contract the indirect means 65 Holmes, 45 Mich at 142. 66Id.

67 Armitage, 36 Mich at 129. 486 Mich 228

256 by Opinion Young, J. ting guardian to enter into a binding enforce- able contract for the minor.

Moreover, law, under the gener- common minors are ally protected by greater placement burdens and increased potential liability coming on those into con- Thus, tact permitting with minors. the waiver of liabil- ity negligent for harm done a child is to inconsistent public policy broadly recognized with in the common law. example,

For a landowner is generally not liable for injuries by suffered a trespasser,68 but the attractive nuisance doctrine imposes liability injuries suffered by trespassing Thus, children.69 the common doc- law trine children protects by imposing greater liability on landowners Also, when minors are involved.70 under the law, common a minor under years seven old was inca- pable contributory negligence.71 For minors older seven, than contributory negligence was based on “whether the child had conducted himself as a child of age, ability, his intelligence experience would rea- sonably expected have been to do under like circum- exception injuries by The is for caused the landowner’s willful and Fellowship, wanton misconduct. Stitt v Holland Abundant 462 Mich Life (2000). 591, 596; 614 NW2d 88 Murday Inc, Trucking, App 747, 751-752; v Bales 165 Mich (1988); Torts, 2d, 339, p § NW2d 451 2 Restatement 197. Cooley writing Harlow, See Justice for the Court in Powers 53 Mich (1884): 507, 515; 19 NW 257 Children, they go, expected upon wherever be must to act impulses; chargeable childish instincts and and others who are duty upon

with a this, of care and caution towards them must calculate precautions accordingly. they exposed and take If leave to the anything tempting observation of children which would he to them, they judgment might naturally and which in their immature they suppose liberty play with, they were at to handle or should expect liberty to be taken. (1965). Alt, Baker v 132 NW2d 614 v Kera Opinion Young, chil- Accordingly, protects the common law stances.”72 care for greater an incentive to exercise hy creating dren ability escape limits a defendant’s minors because it contributory negli- the child’s liability on the basis of gence.73 of this state reflected these public policy children liability protect doctrines is to

common law adults for conduct involv- liability on imposing greater harm children. It would therefore ing potential argument change extremely compelling an require to limit its common law and defendant permit has offered children.74 Defendant liability involving none.

IV CONCLUSION sought by requires relief defendant impliedly modifi- for this state public policy creation of a new has the Although cation of the common this Court law. through manage- create its authority public policy law, authority ment of the common we share with assessing has tools for Legislature. This Court fewer the common changing the societal costs and benefits of Witbeck, (1965); Burhans v 375 Mich 134 NW2d 225 see 2d, 283A, Torts, p § 14. also Restatement Weed, 460, 488-489; Tyler v 280 NW 827 See (“This J., dissenting part) protec in ancient bulwark (McAllister, safeguard rights persons. It tion of little children is a vital of their injury negligently can cause to a child of such tender warns that no one years impunity, by casting small the onerous with on his shoulders proving negligence.”). his own freedom from burden of rule, that, change law I note even without a common example, reducing liability. its For defen defendant has alternatives for suitable, although perhaps suggests less than dant’s waiver in this case indemnity. optimal, parental A can contract on the alternative: indemnify any arising parent’s losses behalf to the defendant for own activity injuries participating in the offered from his child suffers while by the defendant. 486 MICH 228 Opinion by Hathaway, than Legislature,

law which is designed to make changes public policy Moreover, and the common law. identify defendant has failed to any existing public policy supporting change in the common law that it seeks; the existing positive law and common law indi- cate that enforcing parental contrary waivers is to the established public policy of this state. Accordingly, these, matters such I persuaded as am that the prudent practice for conservancy this Court is of the common law. I

Accordingly, would decline change the common law. I would affirm the judgment of the Court Appeals and remand the case for further proceedings consistent opinion. with this J. I concur with the result reached in

Hathaway, Justice YOUNG’s opinion, that a preinjury waiver signed by a parent on behalf of his or her minor child is unenforceable under longstanding Michigan law, for the 111(A) I, reasons stated in parts II, and of the opinion. This rule has been embodied in Michigan law for more than a century, and I find no compelling reason to from depart it now.

The public policy expressed concerns by the concur- ring in opinions the Court Appeals presume that such waivers have been enforceable in past and that if we suddenly stop them, enforcing sports children’s pro- grams and activities and the businesses that run them will somehow be fundamentally However, undermined. the fact is that preinjury waivers have never been enforced or considered enforceable by the courts of state.1 Despite the fact Michigan does not enforce waivers, these football, children still play in engage 1 111(A) analysis I, II, parts Please see the contained in of Justice Young’s opinion. 259 v Kera Opinion by Hathaway, J. they as parties, just activities, go bounce sports waiv- preinjury not enforce that do do other states ers.2 opin- remainder of Justice

As noted in the YOUNG’s reasons not to policy ion, compelling public there are of the rule purpose historic rule.3 The from this depart merely provides The rule children. protect is to minor prein- in their for minor children the same protections The protections in their status. postinjury status as jury have seeking children redress injured minor afforded 2.420, rules, see MCR embodied our court long been 700.5102, codes, see, MCL e.g., probate as well as our and Protected Individuals of the Estates provision that a question Code. There is no sign her claim or a release on the resolve his or child’s 2 (ED Ark, States, 1987); See, Supp e.g., v 660 F 699 Williams United (2006); Leong v Stat 663-10.95 and 663-1.54 Kaiser Founda Hawaii Rev 240; (1990); Douglass Pflueger Hosps, P2d 164 v tion 71 Hawaii 788 (2006); Hawaii, Inc, 520; Meyer Naperville v 110 Hawaii 135 P3d 129 Manner, (1994); Inc, 141; Wreglesworth App 411 v 262 Ill 3d 634 NE2d Arctco, Inc, 1023; (2000); App La Code art 316 Ill 3d 738 NE2d 964 Civ (ED (2006); Co, v Allstate Ins 2002 US Dist LEXIS 21991 2004 Costanza (Me La, 2002); Co, Skiing Super Rice v American 2000 Me LEXIS 90 323; Ct, 2000); Park, Super Hojnowski Super v Skate 187 NJ 901 Vans (Tenn Co, (2006); App, 1 Ct A2d 381 Childress v Madison 777 SW2d (Tx Inc, 1993); 1989); App, 207 Fleetwood Munoz v II Jaz 863 SW2d (CA 5,2002); Peart, v Enterprises, Gaskamp, F3d Hawkins Inc v Ass’n, Community Inc, (Utah, 2001); v Lake 37 P3d 1062 Hiett Barcroft Resort, (1992); 191; 418 SE2d Scott v WestMountain Va Pacific (1992); River Scenic 2d 834 P2d 6 Johnson New 119 Wash 2004). (SD Tours, Inc, Va, Supp F 2d 621 W Whitewater public policy agree reasons ex I with the well-articulated While Young’s join pressed in Justice assertion that Young, Justice I do not by parental prohibiting parental waivers can be circumvented the rule Court, indemnity agreement. and the This issue is not before be, best, importantly, if it had been an at dicta. More assertion would indemnity agreement here, recognized parental that a issue it should be compelling policy directly reasons that exist for the contravene the would historic rule. 486 Mich 228 Opinion by Kelly, J. C.

child’s behalf court approval without after the child has been and injured, simply there is no justifiable reason to treat preinjury any releases differently. The historic rule sensible, is a and logical, well-reasoned approach places greater emphasis on the protection minor children than hypothetical on business concerns that have not materialized in any this or other state that has chosen to follow it.

Kelly, C.J., Weaver, J., and concurred with Hathaway, C.J. I concur in full with Justice HATHAWAY Kelly, I, II, and with parts of Justice Young’s 111(A) opinion. I write separately to touch on parental indem- nity agreements in the context of liability waivers involving children. Justice YOUNG takes the position that a defendant can circumvent the unenforceability of a parental preinjury liability simply by waiver entering into a separate indemnity agreement with the parent. In footnote 74 of his opinion, he states: that,

I note change even without a in the common law rule, defendant has reducing liability. alternatives for its example, For defendant’s suggests waiver in this case suitable, although perhaps optimal, less than alternative: parental indemnity. A parent’s can contract on the indemnify own behalf to any the defendant losses arising injuries from his participating child suffers while activity offered the defendant. Justice YOUNG is the only one who has advanced this position and it has not adopted by been this Court. I find his proposition problematic for several reasons.

First, his discussion of the issue is unnecessary to Second, resolve the case. neither of the parties advanced this argument, and this Court did not have a proper opportunity to consider pass on it. I would be v Kera LLC Opinion by Cavanagh, J. holding without sweeping hesitant to make such Also, the matter. the Court has having briefing on indemnity agreements to how due consideration given liability preinjury parental with parents interact waivers. validity indemnity agreements of such

Finally, the to injured an child They require would questionable. in a or her Courts recovery parent. seek from his indemnity agree number of states have held that such they produce unenforceable because the ments are liability That preinjury effect as waivers. parental same is, negligent enable a tortfeasor who is shift they the for its tortious conduct to responsibility financial the minor victim. parent of indemnity agreements is not validity of such another day. in this case and is left for answered Cavanagh, affirm the Court of Appeals’ J. I would summary that defendant was not entitled decision so, I do on the basis of the release. would disposition however, grounds. language on different The actual the minor child’s the release at issue did not waive the Instead, only the release waived claims of claims. and was the child’s “undersigned,” undersigned a parental I believe that whether Although father. waiver is valid and enforceable is an preinjury liability I find it unneces- jurisprudential significance, issue of Accordingly, in I sary to reach that issue this case.1 Tours, Inc, See, e.g., River 313 F Johnson v New Scenic Whitewater 2004) (SD Va, (holding indemnity agreement Supp an with 2d 621 W that against rafting company was unenforceable defendant whitewater public policy). Kelly’s opinion, Justice I would also For the reasons stated Chief unnecessary it to address a defendant could circumvent find whether separate indemnity preinjury liability by entering parental into a waiver agreement parent. with a Mich Opinion by Markman, portion judgment would vacate of the Court Appeals that held that waivers effectuated preinjury by parents on behalf of their minor children are not enforceable, I presumptively remand would case to the trial court for proceedings. further J. I agree defendant was not entitled Markman, summary on disposition grounds that the actual language of the waiver at issue did not waive the minor’s claims. I Accordingly, would affirm the judg- ment Appeals. However, of the Court of I would vacate the analysis that concluded that a parent cannot waive negligence child’s claim prospectively order to participate voluntary recreational activities. In that regard, the Appeals Court of a question answered was not it properly given before the actual terms of the opinion release. The lead and those of Justice HATHAWAY and Chief Justice KELLY Therefore, do the same. I disagree with conclusion of law. If this issue were before properly us—and it is not —I clarify would Michigan’s common law does allow the enforcement of is, such a That if waiver. release this case had actually contained effective language indicating that the father was waiving negligence his son’s claims I prospectively, would conclude that Michigan common permits

law the enforcement of that waiver to the same extent as if the father himself had signed preinjury rights waiver of his own as a condition of participating in a or sporting activity.1 recreational replete signed by- Our caselaw is with instances in which waivers See, e.g., Goodyear Co, adults have been enforced. Kircos v Tire & Rubber 781; App (pit 108 Mich 311 NW2d 139 crew members could not sports injuries they recover from signed car club for their because had applicable waiver); Ltd, 445; an App Paterek v 6600 465 NW2d (1990) (softball agreement player play field owner’s let softball adequate support player’s on its field was consideration to release of v Kera by Opinion Markman, J. RELEASE

I. THE Jeffrey Woodman opinion, in the lead recognized As in a participate that his son could a form so signed release, of the part activity. pertinent recreational signed, provided: father only the which UNDERSIGNED, signature af- by herein THE his/her acknowledge any physical activities involve fixed does that, accordingly, in personal of risk and some element waiving undersigned claim for the consideration his/her PARTY, agents, the under- against and their BOUNCE any physical of the signed participate will be allowed activities. “undersigned” that the

Thus, plainly the release stated (who father), waiving his in consideration was the defendant, partici- would be allowed against claim activities, defendant’s which any physical pate the child personal risk. While involved some element at the bottom of the “participant” identified as a was occurred was release, only actually waiver that Thus, the father. the actual “undersigned,” and for the any did not waive claims simply of the release language minor, to have purported whatever was rights have deter- parties done and whatever issues been litigate. mined to City of Omer, App liability); Mich Dombrowski v the owner from (1993) (release “rope in a climb” executed a contestant 502 NW2d 707 subject ground mutual to rescission on the across a river was not it, reading signing the contestant’s it without mistake as a result of Int’l, Tanny any allegation misrepresentation); Skotak v Vic absent (“It (1994) contrary

Inc, 616, 617-618; App is not 203 Mich 513 NW2d liability against public policy party for for a to contract to this state’s Reynolds, ordinary negligence.”); Lamp damages its own caused may (“[Ajlthough party App 645 NW2d 311 ordinary negligence, hability against harm caused his for contract negligence against liability gross or party himself not insulate misconduct.”). wilful and wanton 486 Mich 228 Opinion by Markman, J. Remarkably, justices comprising the the majority do not see this as a barrier opinions. Rather, to their they decide that the document had been drafted to state that if the father was his waiving potential son’s claims —which again it was not —it would have been unenforceable. This noteworthy pronouncement law, is a of but over the past so, years or this Court has been in the habit of uttering such pronouncements only in response to actual hypothetical disputes. We have been in the habit viewing an dispute actual as a condition for the exercise of our “judicial power.” 1963, 6, § Const art 1. To decide a hypothetical the dispute equivalent is an issuing advi- sory which, opinion, with narrow constitutional excep- tions, beyond the scope judicial of this power.2 effect,

In justices the majority assert invalidity a contract into parties which the never entered. This constitutes nothing less than reaching out to decide a non-controversy indeed, case, in this a false — controversy. opinions justices majority, whatever their merits, substantive constitute little more than nonbinding dicta and properly more belong in a law review rather than a volume of the Michigan Reports.

The lead opinion suggests that plaintiff “abandoned” or “waived” the argument the release did not actually because, waive the son’s claims although plain- tiff preserved this issue in court, the trial he did not it in preserve the Court of Appeals. While I certainly agree that an appellate court ordinarily will not review an issue that has been waived, abandoned or such 3, 8,§ Const art advisory opinions authorizes this Court to issue concerning constitutionality legislation, only upon request but Legislature of either only house of the Governor and after it has yet been enacted into law but not taken effect. v Kera 265 by Opinion J. Markman, to a “necessary proper is allowed when it is review Co, v Ford Motor of the case . . ." Dation determination 160-161; (1946); 22 252 see also 152, Mich NW2d 314 Miskinis, Corp Pictures v 418 Mich Paramount Prudential Ins Co (1984); 731; 788 344 NW2d Cusick, America v 269, 290; 1 369 Mich 120 NW2d (1963).3 here. clearly This could not be more the situation an litigant pursue The individual decision of a not to issue, relinquish or to an available argument, available obligation operate upon on this Court an to impose cannot says a case that a contract what it premise, false 4 is, an say. does not That neither individual clearly can re litigants acting jointly nor even both litigant eye turn a blind toward the actual quire this Court to document. No what the dispositive words of a matter have a issue de particular determination to parties’ cided, obligation on this Court the they impose cannot A; litigant obligate that A not no can pretend say to does is ignore accept this Court what is true what false.

Thus, can a deciding whether waive justices the the in the injury, child’s claims before 3 7.316(A)(3), providing may “permit See also MCR that this Court the grounds appeal If there reasons or to be amended.” ever was rule, compelling application circumstance of this it is here. Detroit, 186, 197; (2002), See, Mack v e.g., Mich NW2d “city governmental abandoned its assertion of immu which the defendant Court,” nity yet city that entitled to this this Court nevertheless held was governmental immunity. explained: prevail because of As this Court [A]ddressing controlling legal despite issue the failure of the judicial properly parties is a understood frame issue well Legal Corp Velazquez, 533, 549, Services v

principle. See 531 US (2001) 1043; (majority 121 S Ct 149 L Ed 2d 63 and dissent stating both that whether to address an issue not briefed or Court); by Seattle parties contested is left to discretion of the McCready, (indicating 868 P2d 134 123 Wash 2d by by “is constrained the issues as framed the court [Id. parties”). 207-208.] at 486 MICH

Opinion Maskman, majority are to rewrite is a compelled straightfor- what However, the proper scope ward release. rule is of a language, release controlled its and we language construe such as written. See Batshon v Contractors, Mar-Que Inc, 646, 649-650; Gen 463 Mich (2001); 624 NW2d 903 McDonald v Farm Ins Bureau (2008). Co, 191, 197-198; 747 NW2d 811 justices in the majority construe the release not “as written,” but as rewritten. reasons,

For these I affirm judgment would Court of that held Appeals that defendant was not summary entitled to but I disposition, would vacate the Appeals’ analysis Court of addressing parent’s ability negligence to waive a child’s prospectively. claims I thus dissent from the decision to rewrite a contract in order to answer a question raised the actual contract. THE

II. COMMON LAW A. NATURE OF THE COMMON LAW The common in originated law the decisions of En- glish judges, in starting early Middle Ages, developed ensuing Hall, ed, over the centuries. The (New Law, to American Companion York: Ox- Oxford University Press, 2002), ford p 125. Sir Edward Coke explained that the common law was the “custom of the (1641). Coke, realm.” The Complete Copyholder, p 70 He indicated if a custom “current throughout was commonwealth,” part it was a of the common law. Id. Sir William similarly Blackstone “[gen- discussed customs; eral which are the universal rule of the whole kingdom, and form the Blackstone, common law.” 1 Commentaries on the Laws of England, p 67.

The “common law and its institutions were systemi- cally America, extended to at least insofar as appropri- v Kera LLC Opinion by Makkman, ate for frontier conditions.” 127. Companion, p Oxford This was true in in particular Michigan where each of 1835) its constitutions (starting generally adopted the common law.5 Given that the common develops law judicial decisions, through it has been “judge- described as made law.” Hts, 638, 657; Placek v Mich Sterling (1979). NW2d 511 As this Court explained v Bugbee “ Fowle, the common law ‘is but the accumulated expres sions of the judicial various tribunals their efforts to ascertain what is right just between individuals in ” respect to private disputes.’ Fowle, Bugbee v 485, 492; (1936), 269 NW 570 quoting Colorado, Kansas (1907). 206 US 27 S Ct 51 L Ed 956 law, however, common nature, is not By static. its it adapts to changing circumstances. See Oliver Wendell (New Holmes, Jr., The Common Law York: Dover Publi cations, Inc., 1991), 1p (noting that the common law is affected “the felt time, necessities of the prevalent moral and political theories, public [and] intuitions of policy” and that it “embodies the of a story nation’s centuries”). development through many And as this Court stated in Beech Grove Investment Co v Civil Rights Comm: generally agreed It is significant two of the most (1)

features growth of common capacity law are: its for (2) capacity and public polity its to given reflect the of a era. 5 1835, Schedule, 2; Keyes, 184, 188-189 § See Const Doug (Mich, 2 Stout v 1845), 1850, Schedule, 1, 1908, Schedule, § 1, 1963, Const § Const and Const (“The 3, § art 7 force, common law and the statute laws in now repugnant constitution, they expire shall remain in force until limitations, changed, them own repealed”). or are amended or As noted in McFarland, (1937), Bean v 280 Mich 273 NW 332 “the retention of expressly [in common law upon right constitution] is conditioned abrogate any part Thus, the same Legislature thereof.” whenever the law, enacts a statute that is inconsistent with the common the statute supersedes trumps the common-law rule. Positive law common law. 228 486 Mich

268 Opinion by Markman, of definite rules law does not consist “The common absolute, fixed, immutable like the statute and which are law, body principles are flexible which but it is a to, adaption meet, susceptible designed and are institutions, policies, things, public among new other mores, changes in conditions, usages practices, and and trade, commerce, inventions, increasing knowledge, and So, changing society may require. progress of as the may give rights new under the law conditions rise to Comm, Rights Co v Civil [Beech Grove Investment . . . .” (1968), 405, 429-430; quoting 213 Mich 157 NW2d Law, 2, CJS, pp § 43-44.] Common always progress a work in The common law is i.e., evolving incrementally, gradually typically develops existing disputes as individual are decided rules are considered and sometimes common-law times and light changing to current needs adapted Co circumstances. In re Arbitration Between Allstate Ins 904; Stolarz, 219, & 81 NY2d NYS2d (1993) through that the law evolves (noting NE2d 936 adjudication process the “incremental of common-law People as a to the facts see also response presented”);6 Aaron, 672, 727; 299 NW2d 304 felony-murder rule is not a drastic (“Abrogation of significant restrictions this Court light move Further, already imposed. logical has it is a extension of ....”). our decisions injury; Kestin, bystander’s action emotional See also cause of standard, 512, eligibility 26 Seton Hall L R on the relational

Reflections (1996) (“Growth incremental, scarcely often in the common law run, long in the short but inexorable when viewed noticeable 2001) J., Moore, (DC, (Ruiz, term.”); Davis v 772 A2d (“It pace dissenting) forgotten at cannot be the incremental increasing importance develops, coupled law with the which common statutory law, truly ‘new’ rules of common ensures that cases where occur.”). frequently . . . will not law are announced 269 Kera v Opinion Markman, authority

b. common-law The lead opinion acknowledges that this “un- Court questionably” has the authority to modify common law.7Ante at 231. authority This is traceable to Const 1963, 3, 7,§ art provides: which force,

The common law and the statute laws now in repugnant constitution, to this shall remain in force until they expire by limitations, their changed, own or are repealed. amended

As stated in vMyers Auditor, Genesee Co 1, 7; 375 Mich J.): 133 NW2d 190 (opinion by O’HARA, “ ‘Amendment’ and ‘repeal’ refer to legislative process. ‘Change’ must necessarily contemplate judicial change. The common static, law is not fixed and immu- table as of some given Thus, date.” ability alter the common law constitutionally vested in both the Legislature and the judiciary. There is no violation of separation-of-powers principles 1963, under Const art 3, 2,§ when the judiciary alters the common law because that power is given to both branches to exercise through means and procedures that are proper to each.8 authority This Court’s to alter the common law has also been described as Community Kieft, “axiomatic.” North Ottawa Hosp v 394, (1998). Mich 403 n 578 NW2d 267 authority While this Court’s civil unques alter common law is tioned, authority our to alter criminal common law has been the subject See, e.g., Lamphere, 105, 109; debate. In re 61 Mich 27 NW (1886) (“Whatever elasticity matters, there be in civil it is a necessary safe and rule that tampered criminal law should not be with except by legislation.”). Lamphere approval People was cited with v Riddle, 116, 126; (2002), 467 Mich yet notwithstanding NW2d 30 Lamphere this Court has altered criminal common law on several See, e.g., People Stevenson, occasions. 331 NW2d (1982) (rejecting “year day” the common-law and a rule and stating upon authority ‘enlarge’ “no limitation this Court’s liability appears 1963, 3, common-law criminal § in Const art 7 or can fairly implied be language”). Aaron, from its In 409 Mich at 228 486 MICH

270 Opinion Markman, J. thus, continuing to is, subject law The common law development.9 legislative judicial is less well that this Court opinion The lead contends the decide whether Legislature the to than positioned Although there be altered.10 law should common true, and which in which this is be instances well Legislature, that defer to the dictate we would prudence stated, development the “Today in the of we exercise our role Court felony-murder by abrogating rule.” the common-law law common Kevorkian, 436, 445; Further, People Mich 527 NW2d 714 v 447 (1994), rejected of “murder” to the common-law definition this Court intentionally encompass act of be read to the the extent it could Kreiner, People facilitating And in v 415 the commission of suicide. (1982), essentially Michigan the we held that 329 NW2d 716 Mich of the rules of evidence Evidence constituted a codification Rules of superseded rules. that common-law 9 undeniably Although it true that this Court’s exercise is “is,” declaring only “judicial power” generally what the law as involves Ass’n, be, “ought” v Auto Club Ins 476 opposed it to Cameron to what (1 Madison, (2006), citing Marbury 55, 66; 5 US 784 Mich 718 NW2d Cranch) (1803), 137, 177; quasi-legislative 2 L the exercise Ed 60 authority exception an to this our common-law characterizes Nonetheless, authority general such common-law constitutes rule. “judicial just Michigan’s power,” part as of the exercise of traditional “judicial Ultimately, power” of this Court is it does in most states. the upon powers us our laws the sum of the that have been conferred and constitution. assertion, Notwithstanding this I note that the author of the lead joined opinions opinion in which this Court has has also authored and majority law, comprising the have other members altered the common as 73, 89; City Berkley, See, e.g., Mich Ritchie-Gamester v in this case. of (1999); Fellowship, Holland Abundant NW2d 517 Stitt v Life Alberts, 12, 18; (2000); Mich 614 NW2d 88 James v Mich (2001). James, Moreover,in at least Ritchie-Gamester and 626 NW2d 158 clarified, here, merely being as it is but was was not the common law clearly being Why Legislature proper is the the institution altered. case, prior addressing not in those the law in the instant but common regard, opinion provides in this and indeed The lead no standards cases? nothing matter is better than the conclusion that the instant offers more century though Legislature, than a it has been the even for more left for judiciary. a matter left the Kera Woodman v Opinion by Mabkman, J. I true.11 why invariably do not know this should be of has matter of parental common law waivers been a judicial state, in this the longstanding legal interest well rights of children is an issue known to this Court variety contexts, judiciaries a wide most other parental states addressed the common have law of waivers, only and the immediate dispute involves clarify, margins, whether or ‘fine-tune’ at rule common-law vintage. considerable Each these factors kind of implicates exactly decision-making typifies evolution of the law. Our common gives judiciary constitution authority change the common law because the common is “judge- law Placek, made law.” 405 Mich at it is 657. And well recognized that “judge-invented” rules that were can be “judge-reinvented,” or, I “judge-uninvented,” as believe case, is required in this “judge-clarified.” Montgom- See (1960). very 359 Mich 101 Stephan, NW2d As 11 opinion accurately The lead that v 401 Serafin Mansfield’s testifying they rule, spouses prevented that had from which prove a child to the to each other at the time was conceived no access 58, (rejecting Gruskin, paternity); at 70-71 405 Mich husband’s lack of an of a land contract is considered the rule that forfeiture common-law Placek, (abolishing remedy); Mich at 656-657 common-law election of 405 pure recovery adopting contributory negligence and as total bar to Mich, comparative negligence); v Blue Cross & Blue Shield Toussaint (1980) (making employer policies and NW2d 880 408 Mich 292 relationship employment if legally part an procedures a enforceable job expectations” “legitimate policies procedures instill such and Woodmanv Kera 273 Opinion by Markman, J. Then, Placek, in 657, 659, 405 Mich at we reiterated that may this Court alter the common law through its “[W]hen decisions: dealing judge-made law, with Court in past the has not disregarded its corrective security); Aaron, (abolishing 409 Mich felony- at 723 the common-law rule); Weber, (1981) Berger 1; murder v 411 Mich NW2d (expanding permit the money common law to damages a child to recover society for the companionship negligently injured lost parent, of a notwithstanding argument Legislature that inwas the best position to determine whether this new cause of action should be it); Kreiner, instituted placed and what limits should be on 415 Mich at (holding Michigan’s tender-years rule, that common-law which permitted delay reporting against minors, excusable certain crimes did adoption 803[2]); Stevenson, not survive the of MRE 416 Mich at 392 (abolishing year-and-a-day cases); the common-law rule homicide Kevorkian, (rejecting 447 Mich at 494 the common-law definition of “murder” to encompass intentionally the extent it could be read to providing person suicide); the means which a commits v Bertrand Ford, Inc, (1995) 606; Alan 449 Mich (applying 537 NW2d 185 open-and-obvious-danger common-law premises doctrine to claims of liability); Ritchie-Gamester, (specifically 461 Mich modifying at 89 regarding common law of torts adopting recreational activities reck- less misconduct as the co-participants minimum standard of care for activities); Stitt, recreational (holding, 462 Mich at 606 as a matter of premises liability law, invitees); that James, church visitors are not (abolishing 464 Mich at 18 doctrine); the common-law “volunteer” see Co, also 16, 25-26; v Turner Constr 473 Mich 699 NW2d 687 Ghaffari (2005) (clarifying open-and-obvious-danger doctrine has no applicability doctrine). to a claim under And, the common-work-area concomitantly, there have been occasions on which this Court has rejected requests See, to alter e.g., the common law. In re Certified Question, 498, 521-522; 479 Mich (declining NW2d 206 to expand impose duty the common anybody law to on a landowner to who somebody comes into contact with who has been on the landowner’s property expand because it concepts beyond would traditional tort manageable bounds); Engineers Strat, 223, WoldArchitects & (2006) (declining reject 713 NW2d Michigan’s to common-law rule, being “unpersuaded arbitration-unilateral-revocation that the time ripe change” rule); Henry, (“[although 473 Mich at . . . recognizfing] that the common law is an change instrument as require,” times and declining expand circumstances the common law recognize monitoring action, a medical noting cause of might that it burdens”). “lead to dramatic reallocation of societal benefits and Mich 228 486

274 Opinion by Markman, are courts] . . . [The case. proper the responsibility better, a to evaluate position if not certainly good, in as In change.” and to fashion change, need for the 143 383, 390; 331 NW2d Stevenson, 416 Mich v People its stated, recognized “This Court has often (1982), we the common law duty, change indeed its to authority, And in Adkins Thomas change required.” is when (1992), 293, 317; 715 Co, Mich 487 NW2d Solvent we have not hesitated appropriate, “When we asserted: changes doctrines in view of common-law to examine institutions, and to alter mores, society’s problems, necessary.” where those doctrines reasons, I of reject Appeals’ the Court For these assume nor judicially that “we can neither statement extending law or to the common exceptions construct bind their children authority parents the granting Thus, designation or agreements. exculpatory solely within any exceptions waiver imposition Kera, LLC, Woodman v Legislature.” of the purview (opinion 760 NW2d 641 App Mich J.). accurately, Judge Far more as BANDSTRA TALBOT, stated, Michigan Legislature “either the the issue is for (BANDSTRA, J., Court ....” Id. at 157 Supreme or our added). concurring) (emphasis C. COMMON-LAWPRINCIPLES deciding that when correctly The lead states opinion law, the common this Court clarify change whether to as policy, such existing public should consider sources setting forth and other court decisions statutes inquire we starting point, doctrines.14 As common-law Zwit, emphasized in Terrien v As this Court (2002): merely is policy Michigan public “The NW2d Court; rather, majority personal preferences equivalent of a of this ultimately clearly policy in the law.” The focus must be rooted such v Kera Opinion Markman, J. has Legislature already spoken regarding whether not, issue.15 If then specific inquire we whether the Legislature preempted particular has area of the law.16 Legislature When we determine that has not spe- cifically spoken, and has not preempted adoption or judiciary that, fact, ultimately policies must be on the in have been adopted by public through legal processes our various and that are constitutions, statutes, reflected in our and state federal our the common law, regulations. and administrative rules and n 11. Id. at 71 15 “[Ljegislative lightly pre amendment of the common not law is Architects, Rather, Legislature sumed.” Wold 474 Mich at 233. speak authority “should in no uncertain terms” when it exercises its to modify Hahn, Contracting, the common law. Hoerstman Gen Inc v (2006). Burns, 5, Mich 711 NW2d 340 See also 367 Mich at 492 n approvingly quoted Judge Benjamin in which we N. Cardozo: legislature spoken, “When the has and one declared interest

superior another, judge personal to must subordinate his or subjective may estimate of value to the estimate thus declared. He nullify pervert or a statute because convinced that an errone- axiology [set values] ous [Citation is reflected in its terms.” omitted.] Legislature prospective I note further that the has forbidden waivers rights. example, Disability Compensation of certain For the Worker’s Act [preinjury] agreement by employee rights states: “No an to waive his to compensation under this act shall be valid... .” MCL 418.815. The Michigan Employment Security agreement by Act states: “No an indi- [sic], release, rights any vidual to wave or commute his to benefits or rights employer other under this act from an shall be valid.” MCL 421.31. provides: any rights And the teacher tenure act “No teacher waive privileges any agreement and under in this act contract or made with a controlling Here, however, Legislature board.” MCL 38.172. has in no way parent prospectively forbidden releases in which a waives a child’s negligence claims. 16 See, e.g., 262, Corp, 278; Jackson v PKM 422 NW2d 657 (1988) (“The Legislature dramshop intended the act to afford the remedy injuries sale, arising giving away, exclusive out of an unlawful furnishing thereby preempting of intoxicants all common-law actions arising circumstances.”); Contracting, out of these Hoerstman Gen (“... compre Mich at 74 [Uniform Code] Article 3 of the Commercial apply nearly every involving hensive. It is intended to situation instruments.”). negotiable 486 Mich 228 Opinion Markman, rule, consider of a new common-law we revision the common law is change a clarification or whether variety of a of factors discussed light warranted herein. noted, to examine

As “we have not hesitated changes society’s doctrines view of common-law institutions, to alter those mores, problems, and Adkins, 440 Mich at necessary.” 317. doctrines where Kevorkian, Mich But as counseled in People CAVANAGH, n (opinion 527 NW2d C.J., GRIFFIN,JJ.), citing Judge and BRICKLEYand Car- dozo’s The Nature the Judicial Process: judge, free, wholly even when he is is still not pleasure.

free. He is not to innovate at He is not a roaming knight-errant, pursuit at will in of his own ideal beauty goodness. inspiration or of He is to draw his yield spas principles. from consecrated He is not to sentiment, vague unregulated modic benevolence. tradition, He is to exercise discretion informed a by analogy, disciplined system, methodized and sub primordial necessity of in ordinated order enough social life. Wide in all conscience is the field of. [Quotation discretion that remains. marks and citations omitted.[17]

It the case “endeavoring is also uncover the doctrinal of common-law rules be underpinnings can an way not whether determining effective —if essential — suggested change [clarification or] [to a a common-law A Young, judicial is warranted.” traditionalist rule] law, 299,309 L common 8 Texas Rev & Pol confronts (“The (2004); Montgomery, see also 359 Mich at 49 reasons for the old rule the rule longer obtaining, no law, Holmes, Jr., Concerning the Oliver common Wendell stated Holmes, predicated, upon logic, upon experience. it is not but Law, p 1. Common - Woodman v Kera Opinion by Markman, J. it.”);18 Alberts, falls with James (2001) (abolishing NW2d the volunteer doctrine rule, “the because fellow-servant which created the doctrine, longer need for the volunteer was no part law”). Thus, our when the common-law rationale for rule has particular dissipated, may the rule itself be subject change. revision or relevant, Courts also consider other di- though not rectly in applicable, determining statutes whether to clarify change or the common law because

“legislative policy significance establishment of carries beyond particular scope of each of the statutes in- policy part volved. The thus established has become itself a law, given appropriate weight only of our to be its not statutory matters of construction but also in those of [Moning, 453-454, quoting decisional law.” 400 Mich at Lines, Inc, Moragne 375, 390-391; v States Marine 398 US (1970).] 90 S Ct 26 L Ed 2d 339 (1) Thus, we also look to actual social customs and practices, and changes such customs and practices, (2) the doctrinal of a underpinnings common-law rule relevance, and their continuing related statutes and 18Judge Cardozo, in his William L. Storrs Lectures before the Yale University say: Law School in had this to greater There should be readiness to abandon an untenable position may reasonably when the rule to be discarded be supposed litigants, to have determined the conduct of the particularly origin product it when its was the of institutions or gained significance development conditions which have a new [Cardozo, progress years. with the The Nature (New Press, 1921), University p

Judicial 151.] Process Haven: Yale bar, party operated In the case at there is no hint that either if as (that adopted by majority justices common-law here rule negligence prospectively not waive his or her child’s claim in order participate sporting activity) in a or recreational determined their Indeed, precise opposite purporting conduct. true: a waiver to have exactly opposite signed. effect was 486 MICH228 by Opinion Makkman, J. case-law, existing extent to which rules to have influenced or deter- reasonably supposed be in the final litigants. mined the of the But conduct ourselves, ask what common-law rule analysis, we Michigan best serve the interests of citizens would customs taking prevailing while into consideration practices people?19 WAIVERS III. PARENTALPREINJURY justices majority in the assert that under exist- law, Michigan by a release ing preinjury signed common in parent waiving negligence a a child’s claim order to enable that child to in a or recre- participate sporting However, activity they ational is unenforceable. do not cite a single Michigan holding preinjury case that a parental Instead, they only is unenforceable.20 waiver Stitt, exercising “[I]n As stated in 462 Mich at 607 our common-law authority, simply role to ‘count our is not heads’ but to determine which Michigan common-law rules best serve the interests of citizens.” The lead opinion parental preinjury asks whether a waiver is “ever” the best injured. However, of a interests child who becomes Ante at 251-252. proper question into would take consideration the interests of all parents preinjury waiver, sign children whose as well as the interests sporting might all children whose access to or recreational activities be adversely majority favors, merely very affected rule the those few parents signed preinjury children whose have waiver and who later injury. an If suffer we could look into the future and know which children fact, will, injured preinjury signed, be after a waiver has been we course, would, of have to conclude that it would have been better if it had signed. opinion’s misleading question. not been The lead is a and skewed Stitt, inquiry As we stated in our should be rule best what serves Michigan’s general. citizens in states, opinion Hathaway’s preinjury “[T]he Justice fact is that waivers have never been enforced or considered enforceable the courts opinion, of this state.” Ante at 258. But also like the lead she does not cite single Michigan preinjury negligence case in which a waiver of a child’s Obviously, parties claim has been deemed unenforceable. neither of the similarly apprised preinjury the instant case was waivers have never Woodman v Kera Opinion Markman, J. cite cases involving parental existing waivers claims. today, Michigan’s against pa- Until common-law rule only rental waivers has been to the latter applied not, I justices claims. would as do the comprising majority, against extend our common-law rule postin- jury parental waivers to waivers. preinjury parental These are different. very waivers

The trial court held that waiver here preinjury enforceable, was specifically noting “any the absence of Michigan says case which that a parent signs who waiver like this one to a child in prior engaging an activity is in engaging an act which is a legal nullity.” Similarly, Judge correctly stated, “There is no BANDSTRA Michigan precedent explicitly discussing whether the rule postinjury against parental waivers should in apply a preinjury Woodman, case.” 280 Mich App at 157 (BANDSTRA, P.J., And concurring). Judge SCHUETTE also correctly upon remarked “the preinjury, dearth of parental-waiver-of-liability in Michigan caées . ...” Id. at J., concurring). (SCHUETTE,

If justices who make up majority are correct Michigan current common precludes law the en- waivers, forcement of preinjury parental then the lack any earlier decision actually stating proposition is, say least, noteworthy, especially given that such waivers have commonplace been this state and country states, our for decades. The lead opinion rightly “The underlying facts are simple likely and familiar (em- many parents with Ante young children.” at 233 added). Doubtless, phasis “likely the facts are familiar” because precisely generations parents routinely have been enforced or considered enforceable. Nor were the countless num- sporting providers parents bers and recreational and the of children participating sporting signed and recreational activities who have preinjury Nor, matter, waivers over the decades. for that was the trial judge judges Appeals. court or two of the Court of Opinion by Markman, confronted with such waivers as condition been and recre- participation sporting their children’s observed: Judge “[A]n ational activities. As SCHUETTE immense youth groups, amount of activities —church kinds, Scouts, of all orchestra and Boy sports camps events, countless school functions —run theatrical waiver-of-liability on release and forms operate (SCHUETTE, J., at concur- minor children.” Id. 163-164 view, therefore, ring). preinjury In of the facts that in ubiquitous waivers have been this state for parental decades, array in a wide enabling participate children to might and recreational activities that oth- sporting (2) available, Michigan and there is no erwise be that waiver parental preinjury case that has ever held a unenforceable, or to prohibited contrary or otherwise exactly what is the basis for the confident public policy, by majority justices assertion that such are waivers in unenforceable this state? in opinion correctly McKinstry

The lead observes that Clinic, PC, Valley Obstetrics-Gynecology 192-193; (1987), 405 NW2d 88 this Court set forth “the waive, rule has authority common-law that no to release, compromise against claims or child.” This statement, however, in opinion was made the course of an held that a an particular exception statute created to rule, McKinstry this common-law and the cases cited support McKinstry of this rule all involved claims. existing did not assert that the common-law rule applies prein- waivers, jury parental and it did not hold that such clearly are make the as as point waivers unenforceable. To decision, the instant Court of no possible, Appeals until existing had held that the rule Michigan barring case context, in the and parental applied preinjury waivers context, none had the rule in such a applied notwithstand- Thus, ing familiarity of such waivers this state. v Kera Opinion Markman, genuinely precise question before this Court is an issue impression of first in this state. OF THE

rv APPLICATION COMMON-LAW following considerations, I On the basis of the believe that the common law in our state should be parental preinjury clarified to hold that waivers are (1) and that have enforceable: statutes caselaw en- (2) autonomy legal minors, hanced statutes recognized authority parents’ caselaw that have important regarding undertake decisions their chil- (3) Supreme dren, decisions of the United States rights Court that have ‘constitutionalized’ the of fit parents important regarding to undertake decisions (4) children, their statutes and caselaw have (5) granted protections providers, to recreational (6) principles, freedom of contract evolution litigative decades, environment in recent persuasive jurisdictions. decisions from other

A. AUTHORITY OF MINORS opinion acknowledges statutory excep- The lead six capacity tions to the rule that a minor lacks the Despite list, however, n contract. Ante at 237 14. justices majority give weight apparent the in the no exceptions. reality, greater these In there are a far statutory exceptions number of to the two common-law namely here, rules that form the basis of the decision (1) by that a child cannot bind himself or herself by contract and a a child cannot bind contract.

Concerning the common-lawrule that a child cannot by opinion contract, bind himself or herself the lead acknowledges exception the common-law that child Mich 486 228 Opinion by Markman, by can do so a contract for necessaries.21 It also notes a 600.1403, statutory exception, MCL provides infancy recognized an defense will not be for breach of willfully contract if a minor his misrepresented or her age when into entering a contract. Under the common law, 21, a child was not considered an adult until age but Legislature age 1971,22 our reduced this to 18 in and for matters, criminal the age majority effective of is now 17.23 Brooks, Agency, App 634; Publishers Inc v 14 Mich 166 NW2d 26 (1968) (recognizing purchase that minors are hable for contracts to

necessaries). Act, Age Majority 1,1972. seq., January of MCL 722.51 et effective 722.52(1), person age legal Under MCL who attains the of 18 “is an adult of age whatsoever, duties, purposes liabilities, for all and shall have same responsibilities, rights, legal capacity persons acquired as heretofore at years age.” lawfully purchase But one still be 21 in must order to or beverages consume alcoholic under an amendment of our constitution that 722.52(1). adopted 1963, 4, 40;§ was in 1978. Const art see MCL 712A.2(a)(l) provides family MCL that the division of circuit court has “[ejxclusive original jurisdiction superior regardless jurisdic to and of the proceedings concerning age tion another court” minors under the of 17 municipal Indeed, who violated a ordinance a or state or federal law. dramatically common law’s solicitude toward minors has heen diminished respect 769.1(1), with to criminal law. Pursuant to MCL a court must juvenile any specified sentence a convicted one of 12 serious felonies 6.931(A). 1996, Michigan same manner as an adult. See also MCR In Legislature juvenile code, allowing any age amended the state’s a child of family be tried and sentenced in the division of circuit court in the same procedure may place manner as an adult. This take either at the discretion prosecutor juvenile “specified violations,” 712A.2d(l), for certain MCL following request by prosecutor hearing order of the court and a 712A.2d(2). any offense, 1997, year charged other MCL In an 11 old was adult, prosecutor pursuant statute, first-degree anas to tins with premeditated murder, murder, assault with intent and two counts of felony-firearm. Abraham, People App 640; See v 234 Mich 599 NW2d 736 (2003). (1999); Abraham, People App Indeed, 662 NW2d 836 Michigan Department currently we are told that the of Corrections holds possibility parole 146 defendants sentenced to life without the who were younger they 16 or when committed their offenses. Note: A second chance: Michigan’s progressive policy mentally in social to rehabilitate ill its shift (2009). juvenile defendants, Mercy 86 U Det L R v Kera 283 by Opinion Markman, J. incompetent rule that a child is

The common-law As a result of exceptions. has other enter into a contract enforceable can now enter into legislation,24 minors (1) upon being in these additional situations: contracts (2) court,25 family the of circuit emancipated by division (3) into married,26 entering active getting upon upon (4) in military,27 States order to duty with the United (5) account,28 in order to receive sub- savings a open (6) treatment,29 to receive treat- abuse order stance (7) in order to ment for a venereal disease or HIY30 24 loans) 600.1404(2) (educational opinion MCL as an The lead cites longer exception, properly hut this 1970 statute is no considered an enforceability exception it refers to of educational loans because by years age entered into “a minor 18 or more of ....” When statute enacted, majority age majority age was 21. Because the of was is little than an now the statute more anachronism. 25 722.4e(l)(a) MCL states: of, emancipated purposes A minor shall be considered for the to, following:

but not limited all of the (a) right contracts, including to enter into enforceable apartment leases. 26 722.4(2)(a). marry MCL A minor who is 16 or can the consent 17 with 551.103(1). parent. aof MCL 722.4(2)(c). law, join year Under federal a old can MCL 505(a). military parent. with the consent of a See 10 USC savings MCL491.614 authorizes the of a account to a minor issuance paying as the sole absolute owner of the account and authorizes the performance respect and the with withdrawals of acts account on the order of the minor with the same effect as if the minor had full legal capacity. 333.6121(1) provides professes that a to be MCL minor who is or may sign provision substance abuser a consent to the of substance-abuse- surgical care, treatment, hospital, related medical or or services clinic, professional binding or health and that the consent is valid and age majority. if the had the same manner as minor achieved 333.5127(1) provides professes that a minor is or to be MCL who may sign infected with a venereal disease or a consent to the HIV care, treatment, provision surgical hospital, of medical or or services clinic, physician binding and that the consent is valid and in the same age majority. if manner as the minor had achieved the 486 MICH 228 Opinion by Markman, J. pregnancy-related services,31

receive in order to services,32 receive mental health and in order to purchase certain insurance All but one policies.33 of statutory these exceptions were adopted between 1956 and 1980.

Thus, there is a clear in Michigan trend public policy toward giving increased to the weight significant life by decisions of minors them allowing a limited measure legal autonomy of and responsibility. Indeed, minors are also considered competent variety to waive a rights when charged See, with a crime. e.g., People v Simpson, 1; (1971), 192 118 App NW2d which indicates that minors are competent to even waive constitutional rights charged when with a crime.34 31 provides may sign MCL 333.9132 that a minor a consent to the provision prenatal pregnancy-related provi and health care or to the sion of health care facility for child of the minor licensed health or agency professional or a licensed health and that the consent is valid and binding in the same age manner as if the minor had achieved the majority. 32 provides: MCL 330.1707 years age may A minor 14 request or older and receive professional

mental health provide services and a mental health services, outpatient basis, mental health excluding on an pregnancy psychotro- termination referred services and the use of pic drugs, knowledge without the parent, consent or of the minor’s guardian, person parentis. in loco 33 provides MCL 500.2205 disability that a life insurance or insurance by person ages contract made years between of 16 and 18 for the person’s good benefit or that of a close relative is and of the same force though and majority effect as the minor had attained at the time of making the contract. 34 (CA Llapa-Sinchi Mukasey, 897, 8, See also v 2008), 520 F3d explains: which responsible legal Minors can be for their own status and can rights. repeatedly this,

waive their constitutional Courts have held long and Supreme statutes have allowed it. The Court has held Kera v Opinion Markman, incompetent rule that minors are The common-law on the idea that predicated into contracts was to enter contractual from their own protected minors must be Rice, v adults. Holmes exploitation by follies and Yasi, Mass (1881); v 142; Frye 7 NW 772 Mich (1951). comport purposes These 728; 101 NE2d 128 neither would but experience, sense with common to exer- parents a child’s by permitting undermined be on of their judgment behalf prudence cise their own waiving negligence prospectively children in minor participate children to to allow their claims order R, in Parham J explained As recreational activities. (1979), L Ed 2d 101 S Ct 442 US a child what parents possess is a presumption there capacity and the maturity, experience, lacks in decisions. making life’s difficult for judgment required rule with the common-law Thus, incompatible it is not into a minor to enter ability the limited concerning permit to parent right to legal contracts allow in or recreational sporting deny participation child’s that the risks and benefits of weigh activities and to participation.

B. PARENTALAUTHORITY rule that a can- Concerning the common-law contract, Legis- courts and the by a child not bind it to allow increasingly appropriate lature found have participa- consent to their children’s provide to parents in As significant explained activities. tion numerous Parham, 442 US at 602: right appeal responsible waiving their

minors can be for custody deportation and determinations. holding waive the Llapa-Sinchi cite cases that minors can went on to trial, rights guaranteed right right jury appeal, the and the (1966). 436; 1602; Arizona, L Ed 2d 694 Ct Miranda v 384 US 86 S 486 MICH 228 Opinion by Markman, J. jurisprudence historically Our has reflected Western concepts family civilization of the as a unit with broad parental authority over minor children.. .. The law’s concept family presumption parents rests on a possess maturity, experience, what a child lacks in capacity judgment required making for life’s difficult important, historically decisions. More recognized it has parents natural bonds of affection lead to act in the best interests of their children. recently,

More the United States Supreme Court has determined right that the of a parent to decide how child will be raised is one of the oldest and most fundamental rights emanating from the “liberty” inter- est of the Due Process Clause of the Fourteenth Amend- Granville, ment. Troxel v 530 US 120 S Ct J.). L147 Ed 2d 49 (opinion by O’Connor, In Troxel, a plurality cited the long Court’s history of recognizing that the family is a unit within which “ parents possess ‘broad . . . authority over minor chil- ”35 dren.’ Troxel, 66, Parham, 530 US at quoting 442 US at 602. Troxel also indicated that courts overturn decisions a fit custodial parent “solely on [the basis the judge’s of] determination of the child’s Troxel, best interests.” Rather, US at 67. courts give must some “special weight” parents’ to the deter- mination of their children’s best Indeed, interests. Id. Hunter, Hunter v 247, 258 n 262; 771 (2009), NW2d 694 this Court recognized that Troxel “included language forceful describing the significance of parents’ fundamental liberty care, interest custody, and control of their children” proceed- before ing to hold that “Troxel established a floor or minimum protection against state intrusion into the parenting natural, right "It is the parents legal guardians fundamental of care, teaching, to determine and direct the and education of their Code). (part children.” MCL 380.10 of the Revised School Kera v Opinion Markman, Considering parents.” the breadth of fit decisions parent right to significance a fit of the constitutional of appropriate, parent I would deems as that raise a child preinjury enforceable, parental clarify are waivers development. part constitutional of this on the basis indicating Michigan caselaw There is also having variety parents of actions to a can consent consequences In re Rose- for their children. serious App 675, 682-683; 491 NW2d bush, 195 Mich empowered (1992), parents example, are held that for regarding withhold- withdrawal or to make decisions lifesaving life-prolonging ing measures on behalf or of parent right to because the their children speak our is embedded within the minor child although starkly, put the then, To it common law. unilaterally deny parent a law allows common life-prolonging care for his or medical even withdraw par- seriously injured while child if the child is her ticipating activity, sporting recreational or in a deny parent justices majority the same would negligence right prospectively claim that waive participate in a ‘Bounce child to allow the same would activity, sporting Party,’ or recreational other or some People place. 222 Mich v Goforth, And in in the first (1997), Appeals App Court of 564 NW2d police parents search consent to held that though consent could such child’s bedroom even their consequences or other if contraband serious have activity mi- in the were found criminal evidence of People Givans, Moreover, nor’s room. (1997), App 123-124; 113, 116, 575 NW2d Appeals conviction affirmed the defendant’s Court to have her consented in a case which presence— police interrogated out of her child produced though questioning a confession even the crime.

288 486 MICH 228 by Opinion Markman, J.

In the face of the authority broad parents have regarding the raising children, of their Legislature our has enacted a list long of statutes related to that authority. For a example, as result of legislation, par- (1) ents can consent to allow their minor daughter (2) abortion,36 obtain an consent to their minor child’s (3) release of his or her child for adoption,37 consent to their minor receiving tattoo, child’s brand, a body or (4) piercing,38 consent to their minor child’s petition for (5) a name change,39 consent to their minor child’s participation an operation undercover by purchasing or receiving alcoholic liquor under supervision of a (6) law enforcement agency,40 consent to their 16- or (7) 17-year-old child’s marriage,41 file a petition for court approval of a kidney donation their by minor child to a (8) close relative if the child is at old,42 least 14 years consent to therapy electroconvulsive or procedure a intended to produce convulsions or a coma for their (9) child,43 minor consent to the issuance of a 1 level graduated driver’s license to their minor child if the child 14 years (10) and 9 older,44 months old or consent to their minor child’s employment as a golf caddy or youth as a athletic program referee or umpire (11) if the child is at least 11 years old,45 delegate to another person for up to six months most of the 36 722.903(1). MCL 37 710.43(4). MCL 38 333.13102(1). MCL 39 711.1(5). MCL 436.1701(7). MCL 551.103(1). MCL

42 MCL 700.5105. 330.1717(l)(b). MCL 257.310e(3)(c). MCL 409.103(2)(a) (b). MCL v Kera Opinion Markman, care, or custody, property powers regarding parent’s (12) attorney,46 power child signing minor an item from purchase pawnbroker’s to consent merchant child,47 consent to allow a minor their dyna- child bulk gunpowder, or sell their minor furnish (14) consent mite, blasting caps, nitroglycerine,48 child.49 minor the sale of motor vehicle their can legislation, parents a Similarly, as result of federal (15) in the enlisting their child’s 17-year-old consent to minor and consent to their military50 States United in kinds subject as a certain participation child’s to Third cannot consent parties medical research.51 things; do or these someone else’s child receive have This provide child’s can such consent. only parents because, opinion, assertion of the lead contrary to the party” a “third merely is not tantamount to in his child. There is a clear trend to or her regard with au- according parents Michigan public policy toward in, or engage consent let their children thority to These variety significant activities. experience, par- interest of recognize liberty statutes consent the well- important decisions that affect ents to make the constitu- being acknowledge of their children and are act in presumed fit principle parents tional that making those best interests of their children decisions. illustrate, Michigan public current examples

As these statutory rooted in the public policy policy genuine — that fully recognizes decisional law of this and state — 700.5103(1). MCL 47 MCL 750.137.

48 MCL 750.327a.

49 MCL 750.421c. 505(a). 10 USC through 46.404 46.408. 45 CFR 486 MICH228 Opinion by Markman, J. life-altering, make even deci- parents important, opinion sions on of their lead behalf children. While the showing cites statutes common-law doctrines toward general law’s solicitude minors52—and who disagree could with such proposition? statutes —the cited way and cases here are in no inconsistent with those cited the lead opinion fully compatible are allowing parents with a clarification of our common law sign negligence waivers so preinjury claims their children can participate recreational and sporting opportunities.53 Such clarification would be consistent with, logical of, and no more than a extension existing public on Michigan policy based the trends identified in this section. notes, 256-257, opinion correctly The lead ante at that generally common law holds to a than minors lower standard an adult. But it to mention fails that even infants were their liable for torts at Indeed, Jennings Rundall, Eng Rep 1419, common law. (KB, 1799), said, Kenyon 1421-1422 “[I]f Lord an infant commit an assault, slander, or utter God forbid he should not be answerable (3d Prosser, ed), 128, § for it in a p Court Justice.” See also Torts “ Moreover, provides child, 1024. our common law ‘whenever a defendant, plaintiff engages activity whether as or as in an which is * * * normally only one for adults he must be held to the adult ” standard, any age.’ Group without allowance for his Ins Farm Bureau Phillips, App (1982), v quoting 116 Mich 323 NW2d 477 (4th Prosser, ed), 32, 156-157; pp § Torts accord v Constantino Wolver Co, (1979); Boughner, 248, ine App Ins 407 Mich 896 v Osner 180 Mich (1989) 254-257; (driving activity, 446 NW2d 873 is an adult and when care). drive, they minors are held adult to the standard of 53 clarifying adopt, parents Under the rule I would would still need

judicial approval existing children, involving to settle claims their and prospective even respect waivers would ineffective to be with claims of gross negligence or Lamp, App willful or wanton behavior. Mich 249 at (“[A] liability party against gross 594 not insulate himself for misconduct.”). negligence wilful and or wanton I not also would allow prospective regarding compulsory activities, required waivers such as See, Newton, e.g., City school or events. v classes Sharon 437 Mass of 106; (enforcing 769 738 NE2d release “in context the of a activity. compelled might public policy”). . . well offend Kera 291 Woodman v Opinion by Markman,

c. recreational activities determined that there is a Legislature has also that occasion- society in for recreational activities place of care that by enacting standards ally produce injuries regardless for injuries participants, claims preclude inherent resulting from the injured person’s age, of the in Court indicated Neal risks of such activities. As this 661; (2004), Wilkes, 685 NW2d land use Michigan’s enacted recreational Legislature statute, 324.73301, immunity MCL for land- provide by using personal-injury persons owners from lawsuits i.e., age, their of even property recreationally, regardless in injured.54 minors are As we discussed Anderson when Resort, Inc, Mich v Pine Knob Ski NW2d (2003), the Ski Area Legislature Michigan’s enacted Act, Safety provide immunity MCL 408.321 et seq., for ski-area from suits operators personal-injury skiers, And injured regardless age of the skier.55 324.73301(1)provides: MCL Except provided section, of action as otherwise cause injuries person to a the land another shall not arise who is on owner, paying tenant, the land a without to the or lessee of purpose fishing, hunting, trap- for the valuable consideration ping, camping, hiking, sightseeing, motorcycling, snowmobiling, or use, any or without other outdoor recreational use or trail with owner, tenant, permission, against land or lessee unless injuries gross negligence the wanton misconduct of the were caused or willful owner, tenant, or lessee. 408.342(2) provides: MCL skiing accepts person participates sport Each who in the dangers sport dangers are that inhere insofar as include, necessary. dangers are limited obvious and Those but terrain; to, injuries which can result from variations surface or conditions; rocks, trees, spots; bare subsurface snow or ice other forms of debris; growth natural or collisions with ski lift skiers, components, properly or towers and their marked or with other with snow-making snow-grooming equip- plainly visible ment. 486 Mich 228 Opinion by Markman, Beta-C, as further in Inc, was mentioned Dale v Mich App (1997), 574 NW2d 697 the Legislature enacted Michigan’s Skating Safety Act, Roller MCL provide 445.1721 et some seq., immunity for roller- skating rink operators personal-injury from suits by injured skaters, again regardless age.56 of the skater’s (EALA), See also the Equine Activity Liability Act MCL 691.1661 et seq., proscribes general which claims for ordinary negligence, regardless injured person’s of the age. In particular, the EALA proscribes liability for injuries resulting from the inherent risks of equine activity.57 should give significant We weight to the Legislature’s expression public policy such activitie's are worthy protection, even in light of their risks, and that providers of such activities are entitled to receive some measure of protection from lawsuits in the absence of gross negligence, even when the partici- are pants minors.

Similarly, our state’s caselaw evidences that Michi- gan public policy recognizes that there are benefits to activity. recreational In Benejam Inc, v Detroit Tigers, 246 Mich App 657-658; (2001), 635 NW2d 219 which a injured by minor was a flying bat fragment, the provides person participates MCL 445.1725 “Bach who in roller skating accepts danger activity inheres in that insofar as the dangers necessary.” are obvious and provides: MCL 691.1663 Except provided 691.1665], as otherwise equine [MCL an activity sponsor, equine professional, an person or another is not injury participant liable for an property to or the death aof or damage resulting equine activity. from an inherent risk of an Except provided 691.1665], participant [MCL as otherwise or

participant’s representative for, recover, shall not make a claim or damages equine activity civil sponsor, equine profes- from an an sional, person injury or another to or the death of the participant property damage resulting from an inherent risk of activity. equine an v Keba by Opinion Markman, J. and dismissed Appeals jury Court of reversed verdict the “limited injured adopting minor’s claim after Michigan doctrine” as a matter of law.58See also duty 458, 400 Mich at in which this Court said: Moning, bicycles by equipment and ... are viewed soci- [B]aseball essentially although ety as are automobiles in that children baseball, injured riding bicycles playing and killed are utility activity regarded by society all of such is reason- by persons outweighing the risk of harm created their able as marketing to children. manufacture for and Indeed, in City Berkley, Ritchie-Gamester v (1999), n Court at 92 597 NW2d 517 and “im- described recreational activities as “valuable” cognizance “social activities.” We should take portant” decisions give weight judicial of and to these when assessing public policy favoring whether there is a preinjury allowing waivers as a condition to parental participate sporting minors to and recreational ac- tivities and how this to be reflected in our state’s ought common law.

D. FREEDOM OF CONTRACT position The common-law default is that contracts Zwit, are enforced. Terrien Mich 648 (2002).59 NW2d 602 This freedom of contract is “deeply Appeals The Court of stated: provides [W]e hold that a baseball stadium owner screen- ing plate ordinary behind home sufficient to meet demand for duty protected seating respect screening has fulfilled its with subjected liability injuries resulting and cannot be to a spectator by object leaving playing [Benejam, an field. App 657-658.] Mich at recognize Michigan I do that some contracts are not enforceable as See, public policy. e.g., Hosp, a matter of Cudnik v Beaumont William 378, 389-390; (1994), App Mich held that on the 525 NW2d 891 which 486 Mich 228 Opinion by Markman, Michigan.”

entrenched in the common law of 71 n Id. at however, opinion, 19. The lead states that the is issue “whether a minor can be bound a contract signed on his behalf a third Ante at 238. I party.” respectfully disagree with the lead opinion how frames this issue.60 It errs in characterizing parent as a “third with party” respect better, to his or her child. The own and more precisely, crafted question whether a per-—a son who in the course of caring for his or her child might take actions pertaining such matters as the home, location and establishment of a schooling, health care, nutrition, diet and social and discipline, family relationships, lifestyle, hobbies, clothing, religion, in- values, vacations, and, struction in yes, even recre- activities, ational to name a prospectively few— waive the child’s negligence future claim so that participate child can in a sporting or recreational activ- ity. is, That question relevant in this case pertains to rights of a “parent,” not those of a “third-party.” parents common-law rule that are empowered to important make regarding decisions their children was recognized Rosebush, in In re App at 682-683. LHR, See also In re 253 Ga 321 SE2d 716 (1984) (“The right parent of the for speak the minor child is. . . imbedded in our tradition and common law....”). Moreover, previously indicated, as caselaw holds that parents presumed are to act in the best interests of their children and are entitled to make public policy, exculpatory agreement basis of patient “an executed a provider before treatment is not enforceable to absolve a medical care liability malpractice negligence from for medical and other acts of related patient’s ato medical care.” 60 certainly agree party I that a third cannot bind someone else to a is, parent signs purporting contract. That if a a contract to bind his next neighbor neighbor’s child, door obviously or the that contract would be of no effect. v Kera OpinionbyMarkman,J. to their chil- concerning risks and decisions judgments lead dis- Parham, opinion 442 US at 602. The dren. overbroad, that it is noting as presumption counts this be cited to waivers and could preinjury not limited to any a child to able to bind parent being justify does agree presumption contract. Ante at 250.1 any to enter into contract that allowing parent justify presumption, child. But this now binding be on a would dimension, making pa- support constitutional does claims enforce- negligence waivers preinjury rental able. child’s actually the release waived the

Assuming that case, made the decision that the claim this outweighed from the flowing benefits to his child waiver here, as or an leg, the risks of a broken was suffered injury. Although plaintiff more serious now seeks even under the waiver on the obligations to avoid his “unenforceable,” that it the father’s waiver grounds voluntarily entered into and know- was nonetheless decision, This should not disturb that out ingly. Court rights for the to undertake such deci- regard parent’s child, regard for the as well as out of tradi- sions majority A principles. tional ‘freedom of contract’ under all circumstances to un- justices parents forbid decision to assess the perfectly dertake even a rational determining and benefits when what is the best risks Instead, their children. such decision- interests of monopolized by judges, will be and the making now The always parent will be the same: “No. answer to make such a determination.” permitted cannot be is, the child’s interest compelling That no matter how activity, sporting in in a or recreational participating injury, the risk of a serious the slight and no matter how There can be no always will remain same. answer waiver; there can be no assessment parental preinjury who is constitu- person the risks and benefits 486 Mich Opinion Markman, be, in tionally presumed reality is, to and who more concerned than in the anyone else world about child; well-being and there can be no contract freely adults, entered into by both of whom be exercising entirely reasonable and sound judgments. justices in the majority refuse to enforce the contract, preinjury noting waiver that postinjury waiv- ers are not enforced. IBut would not extend our against common-law rule parental waivers postinjury preinjury parental waivers. These situations are quite different. As Judge stated his concurrence BANDSTRA in the Court of Appeals:

“ underlying ‘The judiciary’s concerns reluctance to parents dispose existing allow of a child’s claim do not parent arise in the situation where a waives a child’s future parent dealing existing A claim. with an claim is simulta- neously coping injured child; with an such a situation potential parental contrary creates a action to that child’s ultimate best interests.

“ parent signs ‘A partici- who a release before her child pates activity, however, in a recreational entirely faces an First, parent different situation. such a has no financial sign contrary, motivation to the release. To the because a parent pay care, must for medical she risks her financial by signing away right interests damages. to recover Thus, parent would better serve her financial interests by refusing sign the release.

“ parent ‘A dishonestly maliciously signs who or preinjury derogation release in deliberate of his child’s best unlikely. interests also Presumably parents sign seems future releases to participate enable their children to parents activities that the and children believe will be fun suggests parent educational. Common sense that while a might misjudge carelessly signing release, or act he sign would have no reason to aforethought. with malice “ ‘Moreover,parents are less vulnerable to coercion and preinjury setting. fraud in a A contemplates who v Kera LLC OpinionbyMarkman,J. signing prerequisite participa her a release as a to 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 and alternatives. A signing reasonably a future release is thus more able to possible consequences waiving right assess the ” [Woodman, (BANDSTRA, P.J., App sue.’ at 158-159 (citations omitted).] concurring) I and agree Judge with BANDSTRA’s observations have no difficulty concluding that the considerations un- policy derlying the rule limiting postinjury waivers absent judicial are distinct from those at issue approval sharply to the rule. In respect preinjury particular, with traditional freedom of contract enjoyed by parents with to their children in favor of regard argues allowing enforcement of parental preinjury waivers.

E. GROWTH OF LITIGATION denying Judge There can also be little BANDSTRA’s amply demonstrates, “[a]s observation that this case is an extremely increasingly litigious ours and soci- ety.”61 routinely Id. at 160. “Children have off jumped Burger In 1982 Justice Chief Warren observed: One reason our courts have become overburdened increasingly turning

Americans are to the courts for relief from a range personal personal distresses and anxieties. Remedies for wrongs responsibilities that once were considered of institu- boldly “legal tions other than the are courts now asserted as expected entitlements.” The courts have been fill the void church, family, neighborhood unity. created the decline (1982).] [Burger, way?, ABA Isn’t there a better J 274 Posner, See also The Federal Courts: Crisis And 55-79 Reform finding litigation (explicitly explosion employing since the 1960’s and increase), categories analyze numerous of statistics to this dramatic Olson, Litigation Explosion: Happened What When America Un- (1991). leashed the Lawsuit 486 MICH 228 Opinion Markman, J. generations; seeking slides for lawsuits playground impose damages resulting injuries on someone else for are Id. at 160 n 2. As a only phenomenon.” recent increasing litigation result of trends toward modern society, legislation tort reform jurisdictions adopted Joyce, between 1985 and 1988. Sanders & to the Off races: The 1980s tort crisis and the law process, reform (1990). 207, 27 Hous L R 220-222 in 1992 it Even was stated: dispute proposition

New would that America has society litigious preferred become a and that the method resolving disputes achieving social reform is to file 1989, eighteen lawsuits. In close to million new civil cases courts, amounting were filed in federal state and to one every alone, lawsuit for ten In adults. the federal courts year qua number of lawsuits filed each has more than drupled thirty years approximately in the last —from 51,000 218,000 [Quayle, in 1960 to almost in 1990. Civil (1992).][62] justice 559, reform, 41 Am U L R Indeed, this Court has previously expressed “concern of litigation over effect increased on recreational activities” and identified “clear litigation evidence that can exact a toll on what most would consider valuable Ritchie-Gamester, social activities.” 461 Mich at n92 Bator, court?, wrong supreme See also What is with the 51U Pitt L R (1990): 673, 676-677 year In the 1985 fiscal there in were filed the federal district 315,000 is, cases; course, courts about civil and criminal this of 365,000 bankruptcy petitions exclusive of some filed in 1985. 315,000 (Compare figure 200,000 of to the total of under cases recently 120,000 commenced as as 1980 and the total of some 1985, 1970.) cases, together commenced in In these district court agencies directly with the work of those administrative reviewed appeals, generated, 1985, 34,000 in the courts of in a total of about appeals (including new cases in the federal of courts the Court of Circuit). (This

Appeals 34,000 figure for the Federal of should be figure just 23,000 1980, contrasted with the of over such cases in I960.). 11,500 1970, 4,000 and under Woodman v Kera Opinion by Markman, agree 13. I with duty” Ritchie-Gamester that “our is to rules adopt common-law that do not create “destructive litigation levels of that will inhibit important social activity.” Id. at 93 n 13.63Unfortunately, the concern expressed Ritchie-Gamester is not shared aby major ity justices Indeed, here. their expressly decision to preclude enforceability of parental preinjury waiv ers should be seen for what it is: an anti-tort-reform measure that will exact a heavy toll upon valuable social activities. Their decision will the kind encourage litigation modern that has led to the closing play grounds for fear of a child being injured and a lawsuit See, being e.g., filed. Messina v Columbia, Dist 1995) (DC, A2d (holding expert testimony was necessary establish the standard of care for installation of under cushioning monkey on bars playground).64 Supreme Club, As stated the Ohio Court in Zivich v Mentor Soccer Inc, (1998): “[Fjaced very Ohio St 3d 696 NE2d 201 with the lawsuit, potential awards, real threat a damage of and the for substantial nonprofit organizations very and their volunteers could well decide that the risks are not worth the effort.” City stated, In Henry 1996 New York Parks Commissioner Stern “In today’s litigious world, playground the children parents come to the with parents lawyers.” Douglas, and the Upside-Down come with High That Only Memory, Monkey Safety Pressure, Times, Will Be a Bars Fall to NY (accessed 11, 1996, 2010). April 10, Indeed, available at June it was widely reported year last that a child in the New York area sued two along League coaches with Incorporated Little Baseball and the New Springville League injured Little sliding when he was into second base. Nyback, Staten League Island mom settles suit with Little and coaches injury, <http://www.silive.com/northshore/

over knew available at (accessed index.ssf/2009/08/staten_island_mom_settles_suit.html> June 10, 2010); Benard, fun, league big league liability, see Marq also Little (1993) (“[Ojur 93, Sports happy L J society lawsuit has come to view misjudging fly a against child’s a a ball as cause of action an individual may, incidentally, wealth.”); who have Doughtery, the most economic Thrills, Exposes This Museum Lawyers, Kids To Chills and Trial Wall St J, 1,M!ay (reporting City that annual insurance costs for the 486 Mich 228 Opinion Makkman, J. becomes, society the more litigious

The more our in potential plaintiff child a a injured each becomes sports providers and the more and recreational lawsuit in order to avoid lawsuits see the need to obtain waivers Thus, in I believe that our soci- and remain business. in recent litigiousness gen- increase over ety’s overall change society’s in erations constitutes substantial an additional reason customary practice supplies clarify that our common law allows for Court A enforceability parental preinjury of waivers. soci- traditional ety monkey play- in which bars other and in which such ground equipment disappear, sports bar, the bench and dodge scrutiny as ball attract society injury, be a in which there is less risk of but childhood, in the nature of society it is also a which very are responsibilities parenthood, defined differently they than Ameri- past generations have I community cans. Because see no evidence that views I regard, have altered in this would maintain the state —one in genuine paren- common law this which preinjury ordinary part family tal waivers are an the distorted common law articulated experience —not by majority here.

E OTHER JURISDICTIONS question parental preinjury whether to enforce negligence may par- waivers of claims so that minors ticipate elective recreational activities has arisen other states.65 Numerous out-of-state cases have de- Missouri, $36,000 Museum in St. Louis have risen from about since its $600,000 founding year, representing $1 in 1997 to about about (accessed 2010). price), $12 museum’s admission available at June 65 However, recognize exercising I “in well our common-law authority, simply [this Court’s] role is not to ‘count heads’ but Michigan determine which common-law rules best serve the interests of Stitt, citizens.” 462 Mich at 607. Woodman v Kera Opinion Markman, J. parental cided that preinjury waivers should be en- situations, forced in a variety wide notwithstanding the common law’s obvious solicitude toward children. It is generally being entirely seen as compatible with that solicitude that be parents allowed to undertake certain children, decisions on behalf of their the consequences of which may entirely not be foreseeable. Who normally would be about, toward, more concerned caring and solicitous of the interests of a child than that child’s parents? In Hohe Dist, v San Diego School Unified 1559; App Cal 3d 274 Cal Rptr (1990), a 15-year-old girl injured was when she volunteered to participate a hypnotism sponsored by show her parent- school’s teacher-student association. Although the minor and her father had signed a waiver form as a condition to her participation show, plaintiff still at- tempted school, to hold the association, and the school district liable for her injuries. The appellate court ruled that the release was not void as against public policy.66

In Club, Zivich v Inc, Mentor Soccer 82 Ohio St 3d (1998), 696 NE2d 201 Pamela Zivich registered her seven-year-old son for soccer. The required soccer club Mrs. Zivich to sign a release form for her son as a part

66Hohe stated: Hohe, participating like thousands of children in recreational sponsored by groups parents, activities of volunteers and was give up right public asked to her to sue. The as a whole receives the groups Boy Scouts,

benefit of such waivers so that such as and Girl League, parent-teacher Little associations are able to continue overwhelming without the litigation. risks and sometimes costs of availability Thousands of children benefit from the of recreational sports options steadily decreasing— activities. Those are decreasing support victims of financial and tax for other than the Every learning experience bare essentials of an education. involves agreed risk. In this public instance Hohe to shoulder the risk. No policy shifting [Hohe, App forbids the of that burden. 224 Cal 3d at 1564.] MICH 228 Opinion by Markman, at injured The child was registration process. The court held filed a lawsuit. parents and his practice, exculpatory child to an bind a minor that a can non- sponsors of in favor of volunteers agreement in sounds the cause of action activities when profit sport policy no public The concluded that negligence. court release, stating: by enforcing the was violated community- disputed volunteers in It cannot be Orga- important function. activities serve an recreational opportunity children the recreational activities offer nized many It is here that children valuable life skills. learn operate within an to work as a team and how to learn how given the organizational structure. Children also are in develop coordination skills. Due chance to exercise and volunteers, nonprofit orga- great part to the assistance of at minimal are able to offer these activities nizations cost.. .. him, many gave

[Although Bryan, like children before others, up right negligent acts of his to sue for exculpatory public of these as a whole received the benefit agreement, agreements. Because of this the Club was able and to continue to do so to offer affordable recreation overwhelming litigation. costs of without the risks and Bryan’s policy Public parents agreed to the risk. shoulder fact, agreement. public policy In not forbid an does such supports Diego v. School Dist. it. See Hohe San Unified 1559, 1564, (1990), Cal.Rptr.647, 649. Cal.App.3d giving Accordingly, public policy justifies we believe that types binding parents authority enter into these agreements on behalf of their minor children. We also may agreements well believe that the enforcement of these by participants and their promote more active involvement families, which, turn, promotes quality the overall safety of these activities.... v Kera OpinionbyMakkman,J. authority parents

[W]ehold that have the to bind their exculpatory agreements minor children to favor of nonprofit sponsors sport volunteers and activities where negligence. agreements the cause of These action sounds they not be disaffirmed the child on whose behalf were at [Id. 371-374.] executed.

In Newton, Sharon v City 437 Mass 769 NE2d (2002), upheld relating the Court a release to a voluntary high cheerleading program school on the public policy. basis Court stated: case,

In the signed instant Merav’s father the release in capacity his as because he wanted his child to cheerleading, benefit participating from as she had done previous important family four He seasons. made an cognizant physical injury decision the risk of of to his child family and the to the financial risk as a whole. In the voluntary, activity, circumstance of a nonessential we will judgment. comports parental disturb this This with the liberty parents in rearing fundamental interest of of children, their purpose and is not with the inconsistent public behind our policy permitting minors to void their contracts. respect

. . . Our with permissibility views to the of requiring voluntary participation releases as condition of activities, sports extracurricular the enforceability and signed by parents of releases on their behalf of children for purposes, those are also consistent and with further the public policy encouraging of programs athletic for the youth. [Id. Commonwealth’s at 108-109.][67] 67 Inc, (D See also Brooks v Timberline Tours Supp Colo, F 941 959 1996) (upholding enforceability signed by parents of waivers on Dist, child); Kondrad v Park of their Bismarck behalf minor 655 NW2d 2003) (child’s (ND, negligence by 411 claim was barred a waiver and signed by regarding program release his mother an after-school care grounds riding bicycle by when the minor fell on the school while owned City Gonzalez v part care); Coral a child who was not after-school Gables, (Fla 2004) App, (upholding parental preinjury 871 So 2d 1067 high participation release executed for a minor’s in a school fire-rescue

304 Mich 228 Opinion Markman, J. have cases out-of-state that some acknowledge I See, e.g., waivers. preinjury parental enforce refused to (Colo, Co, 48 P3d Skiing Aspen v Cooper 484; 2002); 2d Resort, 119 Wash Mt v West Scott Pacific (Utah, Peart, P3d 1062 (1992); Hawkins 834 P2d 6 Park, Super 375 NJ v Vans Skate 2001); Hojnowski (2005). these However, my judgment, A2d 1087 forth set arguments same kind of rely on the decisions and those of Justice and opinion in the lead HATHAWAY recognize superior KELLY and fail to Justice Chief by the United recognized now parents, authority Clause, make Due Process Constitution’s States children. on behalf of their sort present decisions of allowing preinjury parental cases I find the out-of-state persuasively far more claims negligence waivers in line with the consti more considerably reasoned in their chil parents act presumption tutional Michigan’s public interests, as well as with dren’s best affording activities favoring recreational policy of such providers legal protection measure of some activities. recreational Inc, Cycling Concepts Rackley 2009 Tex training program); v Advanced injured “Pump (barring at a

App the claim of a child LEXIS 1888 party featuring inflatable Up” party of children’s venues it chain —a signed houses, slides, his of a release and obstacle courses —because (ED 1999) Ohio, Inc, Supp Mohney Hockey, F 2d 859 parent); v USA “[njothing holding ruling in the Zivich that (applying the Zivich sports nonprofit holding limited to opinion its should be indicates that part part scope”), and rev’d in on organizations in aff d in that are local 2001) (CA 6, (stating parents have the grounds, 248 F3d 1150 other agreements). exculpatory authority their minor children to bind 68 superseded by case, however, legislatively statute in Cooper was The Ass’n, Inc, Community 140 Highlands v Ranch As noted in Pollock 2003. (Colo 2006), recognizes defense to App, a substantive the statute P3d 351 operate complete The as a bar to relief. negligence that will often claims child, may, release provides: parent a child on behalf “A of statute negligence.” Stat prospective Colo Rev claim for waive the child’s 13-22-107(3). prospectively similarly allows a An Alaska statute negligence Stat 09.65.292. claim. Alas waive a child’s v Kera 305 Opinion Markman, it least Finally, noteworthy many legal is at come commentators have down on side of the enforceability preinjury of waivers. Professor parental Jr., states, Joseph King, example, “[Negative] judi- for cial exculpatory agreements signed by attitudes toward parents on of their behalf minor children seem incon- sistent with the conferred powers parents respecting on other important King, Exculpatory life choices.” agree- ments in youth volunteers alternative activities —The L 53 J tiddlywinks, Ohio St “Nerf®” (1992).69

V CONSEQUENCES today’s As a result holding decision that parental preinjury enforceable, waivers are not there will be at (1) predictable least the following consequences: being the first in Michigan decision specifically holding that such are unenforceable, waivers there will be an increase recreational and sports-related litigation, arising consequence as a both of now invalid past (2) waivers disappearance and the waivers, of future sporting and opportunities, recreational particularly for minors, will out dwindle of a fear reasonable of tort liability,70 parents’ fundamental interests making important decisions regarding their children will be Why sports: exculpatory Comment, agree Interscholastic See also signed by parents upheld, ments should be Temp (2003); L R 619 Comment, theory argument why parents the waiver scale: An claims, liability should be able to their waive children’s tort 36 USF L R (2002); Note, Erroneously Scott West Resort: Mountain Pacific invalidating parental claim, releases minor’s 68 Wash L R 457 future (1993). Racers, Nat’l Int’l recognized Street As was Brotherhood Inc v Court, Superior App (1989), Rptr “many- 215 Cal 3d 264 Cal popular and lawful recreational activities are destined for extinction” preinjury unless are waivers enforceable. MICH228

Opinion by J. Markman, policy prohibits rigid judicial in of a favor curtailed concerning decisions important making from parents sport- and in recreational participation their children’s (4) policy public erstwhile activities,71 Michigan’s ing sporting and encouraging recreational and favoring of its new run afoul minors will opportunities (5) recre- such diminishing opportunities, law common municipalities; schools and such as ational providers, Scouts, Girl YMCA, Boy as the such organizations, Club; organiza- and service 4-H civic Scouts, and the Club, the the Kiwanis tions, Optimists, as the such Elks; small Club, and local and Jaycees, the Lions exposure increased subject to will all be businesses costs, lead to which will insurance higher and lawsuits youth in sponsoring in interest either a reduction mi- costs for participation increase in or an activities recreational nonprofit parents, nors and their recruiting time more difficult will have a providers sued being personally fear of because of their volunteers injured.72 if a child is Hojnowski, following dissenting in statement with the I concur dissenting part): (Fisher, concurring part in in Super at

NJ 568 598 right must which the state I also has believe —with may play or a child football decide whether

not interfere —to bird-watching, shells, engage learn to ride horse or collect sea involving only play games go skateboarding video animated or skateboarders, any type sport engage or recreational or other sedate, risks, activity encompasses those that are inherent or majority may activities, these The not view all such or none. or matters as not, they but, important important, and countless sphere family solely ought to be resolved within others and, unfitness, beyond parents’ our courts’ it should be absent the say power to otherwise. majority asserts, remarkably, opinion that if the rule the lead The might adopted, have a diminished business owners here favors were not resulting property appropriately, in an incentive to maintain their just injuries Ante at 249. I see to children. increased number of overblown, my judg- considerably opposite incentive. This concern Kera Woodman v Opinion by Markman, J. rule established here a majority justices summarily strikes down tens of thousands of waivers now believed to be valid and by enforceable thousands of providers of recreational and sporting opportunities parents and the of children partake who oppor- such assured, tunities.73 One can then be as certainly day as follows third night, every base, hard slide at every hockey penalty, every overly tackle, aggressive every slip arena, at an ice every leg broken at a summer camp, every of display by old, carelessness a six year and every collision between two young athletes will be by followed lawyer attentions of a newly specializing “recre- ational and sporting is, law.” That if intrepid some providers can still be found who are prepared to con- tinue to make available youth and recreational sporting opportunities.

By contrast, enforcing parental preinjury waivers of negligence claims accords respect judgments to the parents concerning welfare, their minor children’s up- holds contract, the freedom of encourages safe and available recreational and athletic opportunities, and intelligently and responsibly reconciles competing soci- First, providers ment. they would to continue be liable when acted in a grossly negligent Second, providers manner. sports recreational and already recreational activities to adults have waivers enforced absent gross negligence, utterly and there is no evidence that those facilities are generally Third, maintained in an by unsafe manner. as noted the Ohio Supreme Court, [parental promote “enforcement of waivers] well by participants families, more active which, involvement and their turn, promotes quality safety [Zivich, overall of these activities. 372.] 82 Ohio St 3d at 73 Regrettably, many providers of the who continue to abide estab practices, may only lished customs and belatedly and who become aware today’s decision, way they will learn the hard that contracts believed protecting were them and their businesses have become unenforceable. why This is all ought closely the more reason the common law reflect practices the actual people, customs and of the so that citizens need not continuing legal enroll in education courses. Opinion Markman, the Legis- to that of in a fashion similar interests etal pertaining of areas widening range in a lature refusing In opportunities. sporting recreational in the waivers, justices parental preinjury permit impact the destructive appreciate fail to majority children, those who parents, and their decision on opportunities. recreational provide finance and I is consistent with adopt rule would clarifying be generally that children law’s concern the common follies, and it is from their own contractual protected concern that to the common law’s faithful equally existing an releasing when precipitously not act parents consis- their child. This rule also claim of negligence themselves practices parties tent with the actual citizens case, Michigan well as with those of in this as Indeed, contrary it is to our common-law generally. accord the common law into experience bring citizens; and of its practices the actual customs with at the foundation rather, practices those customs and lie that my judgment, In the rule of our common law. citizens, and Michigan the interests of would best serve values and closely people’s with our comports that most traditions, in this opinion. is the rule set forth TO JUSTICE HATHAWAY’S OPINION

VI. RESPONSE confu- opinion particular shows Justice HATHAWAY’s “[pa- assertion that sweeping sion in its confident and waivers have never been pre-injury rental] enforced this state.” by the courts of considered enforceable added.) is, course, slightest not the There (Emphasis prong of either of this assertion. support evidence enforcement, Justice Concerning prong, past the first in this single judicial to cite a decision HATHAWAY fails waiver, involving parental preinjury history state’s the lead that agreement opinion her with given and v Kera Opinion by Markman, such “likely waivers are familiar” to parents young with children, might reasonably one why wonder the absence of such judicial decisions her supports conclusion rather than exactly opposite conclusion. Concerning the second prong, parental preinjury waivers not being enforceable,” “considered there is not a bit of also evidence in support of her position. To the extent that a straightforward and unambiguous waiver is viewed as it meaning says, what there nois reason to suppose a parent signed who had such waiver and whose child injured had been in the course of a sporting or recre- ational activity would even assume that a lawsuit could brought. be While Justice HATHAWAY apparently would tally that parent within the ranks of those who did not “consider enforceable” waiver, exactly the opposite conclusion is better is, founded. That precisely to the parents extent that shared Justice HATHAWAY’s view did not view waivers enforceable, as one would logically surmise that lawsuits would be brought absence of such lawsuits should be seen not as Justice does, as evidence of their unenforceability, HATHAWAY but as evidence of the opposite. Justice Hathaway’s premise is necessarily that injured persons reflexively bring lawsuits even when they recognize that they have signed contracts precluding such lawsuits and that their not such bringing lawsuits equivalent is the their viewing the contract as “unenforceable.” Hers is a seriously faulty premise and, thankfully, yet does not reflect the norms and values of the people state, of this the instant decision by a majority justices notwith- standing.

VII. CONCLUSION For all the foregoing reasons, I would affirm in part the judgment of the Court of Appeals to the extent that Mich 228 Opinion Markman, J. summary not entitled to defendant was

it held that the actual ground the alternative disposition, on did not waive the the release at issue language of the Court portion I vacate that minor’s claims. would cannot concluding parent that a judgment Appeals’ prospectively, claims negligence a minor child’s waive I actually did do so. the release at issue because extend the dissent, however, from the decision to to release a forbidding parent rule common-law claim to further forbid existing negligence child’s a claim so that his or waive such prospectively sporting in recreational or may participate her child justices will by majority activities. The decision widely be felt consequences have that will significant state, an increase in including both throughout sporting a reduction in and recreational litigation and Thus, enforceability if the opportunities for children. us, were before parental preinjury properly waivers not, clarify Michigan’s I common law it is would parental preinjury the enforcement of a waiver. permits J., Markman, Corrigan, with concurred notes this Court decides cases and involving parties. controversies individual But it its case when overstates give nonparties. it we asserts that do not consideration the views of Indeed, justices attorneys routinely arguing remind before this Court by that be the rule to formulated Court in this both common-law and reasonable, just only non-common-law cases must he for their case, 1,000 forthcoming individual but also for the 100 or cases that will legal Moreover, routinely involve similar issues. we amicus curiae receive organizations, just briefs from interested individuals we have in as opinion’s point this case. If lead is the that our common-law decisions require justices along required to think somewhat different lines than is If, responsibility, however, point our other areas of I concur. its is to suggest retreating responsibility belonged the wisdom of has from that Anglo-American so, years respectfully disagree. courts for 500 or I In any event, opinion the lead does its this reach conclusions about case on further, the basis of its author’s own the common if views of law. And nothing law, existing Court did at all the to maintain common common place Legislature decided, ever, law would remain least until the if —at court, just interpreted by it to alter it—and would still have to he some as just happens opinion occurred here. It in the instant case that the lead agreement apparently interpretation Appeals. with the of the Court 228 486 Mich 272 Opinion by Markman, J. 425, 436; 254 Mich v 400 Moning Alfono, was stated (1977): created negligence was “The law of 759 NW2d unavoidably and, therefore, it is judges by common-law limit develop to continue responsibility the Court’s legislative absent body of law development directive.” v Dow Chern Henry that in further observe I would (2004), which 83; 701 684 Co, 63, Mich NW2d 473 “the that it is cites, explained this Court opinion lead (Em- Michigan’s common law.”12 steward of principal added.) 485, Laan, v Van 367 Mich And in Burns phasis stated, “In (1962), great 873 we 494; 116 NW2d or withers grows law field where the common added.)13 (Emphasis is the actor.” judiciary primary 12 (1979) 51, Fisher, 58; NW2d 893 v 405 Mich also Gruskin See rule (noting to decide whether a common-law that “it is for this Court Legislature states a rule that is inconsistent unless the shall be retained rule”). change precludes a in the common-law with or Court, Legislature, law has altered the common in lieu of This LaCroix, See, e.g., Daley years v occasions. the last 40 on numerous over (1970) (rejecting “impact” 12-13; 179 NW2d 390 384 Mich proximately requirement claims for emotional distress for common-law conduct); Buchhorn, negligent v Womack caused a defendant’s (1971) 718, 724-725; (rejecting the common-law 187 NW2d 218 Mich prenatal injury); recovery negligently Plum inflicted disallowance of (1972) 1; (abolishing Klein, ley common- 388 Mich 199 NW2d bring against of action their cannot a tort cause law rule that children (1976) (abro 41; Taylor, parents); Pittman v NW2d governmental immunity); gating doctrine of state the common-law (abolishing Serafin, Lord Mich 258 NW2d 461

Case Details

Case Name: Woodman v. Kera LLC

Court Name: Michigan Supreme Court

Date Published: Jun 18, 2010

Citation: 785 N.W.2d 1

Docket Number: Docket 137347

Court Abbreviation: Mich.