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ARE PARENTAL WAIVERS WORTH THE PAPER THEY RE

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					ARE PARENTAL WAIVERS WORTH                              Woodman case, school districts enjoy some
THE PAPER THEY'RE PRINTED ON?                           protection from tort liability as a result of
                                                        governmental immunity granted by law.
                                                        However, as a result of this decision and the lack
The Michigan Court of Appeals recently ruled            of express statutory authority for pre-injury
that a pre-activity waiver of liability signed by a     waivers, school officials should be cognizant that
parent or legal guardian does not waive a child's       the mere act of obtaining a waiver will not
right to sue for injuries sustained while engaging      necessarily prevent a lawsuit or insulate the
in that activity. Woodman v Kera,                       school district from liability. If a claim that
L.L.C., __ Mich App __ (2008).                          involves a waiver goes to court, it seems likely,
                                                        in the wake of the Woodman case, that a judge
The Woodmans contracted with "Bounce Party"             will determine that the waiver is invalid.
to use their inflatable play equipment facilities for
their son's fifth birthday party. Before the party,
Mr. Woodman signed a waiver on behalf of his
son, releasing Bounce Party from any liability for
personal injury, property damage, or wrongful
death caused by playing on the play equipment,
an activity Bounce Party characterized as
containing "some element of personal risk."

During the party, the Woodmans' son jumped
from the top of a slide and broke his leg. The
Woodmans sued, alleging among other things,
negligence on the part of Bounce Party. Bounce
Party defended the complaint by claiming that
the Woodmans had waived any right to sue.
The trial court agreed.

However, the Michigan Court of Appeals
reversed, finding that a parent "has no authority
merely by virtue of the parental relation to waive,
release, or compromise claims of his or her
child." The court opined that public policy
dictated that the need to protect the rights of a
minor child is greater than the rights of a child's
parent to take action on behalf of the child. In so
finding, the Michigan Court of Appeals held that
"pre-injury waivers effectuated by parents on
behalf of their minor children are not
presumptively enforceable."

While the facts of the case involved a "for profit"
commercial business, the court noted that it was
unaware of any "legislative enactments upholding
exculpatory agreements, executed pre-injury by
parents on behalf of their minor children, which
waive liability for injuries occurred in . . .
nonprofit settings." Although the court
recognized that its ruling could result in higher
insurance rates and other problems for profit and
nonprofit organizations providing services to
children, the court recognized that any change in
the law was a function of the Michigan
Legislature, rather than the courts, and strongly
encouraged the Legislature to evaluate the issue.

Unlike the "for-profit" corporation in the

				
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