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Enforcing Parent-Signed Waivers of Liability for Injuries to Children During Recreational Activities

On June 21, 2011, Governor Rick Snyder signed into law House Bill 4231, partially overturning a longstanding public policy and giving parents the ability to release a party from liability if his or her child is injured during a recreational activity.  The new law allows a parent, before their child participates in a recreational activity, to sign a waiver releasing an organizer or coach from liability for economic or noneconomic damages for a personal injury to the child.  However, this law only applies to athletic or recreational sports sponsored or organized by a nongovernmental and nonprofit organization.

House Bill 4231 is a response by the Legislature to the Michigan Supreme Court’s 2010 opinion in Woodman v. Kera LLC, 486 Mich 228; 785 NW2d 1 (2010).  The Court held in Woodman that preinjury liability waivers signed by a parent on behalf of his or her child are unenforceable because a parent has no authority to bind his or her child to a contract.  Nevertheless, the Court recognized that the public policy may need to change and invited the Legislature to enact a new law if it wanted to make parental waivers enforceable.  The Legislature reacted to the opinion by enacting House Bill 4231, partially overturning a doctrine that found its roots in case law more than 130 years ago.

Parental waivers of liability remain unenforceable if the activity is sponsored by a governmental or for-profit organization.  However, cities, townships, municipalities, or organizations that operate for a profit still may be able to protect themselves by using a waiver that includes an indemnification clause stating that the parent agrees to indemnify the organization or coach from any claim brought by on or behalf of his or her child in connection with the recreational activity.  The Woodman Court held that such a clause in which a parent contracts to indemnify the defendant could be a suitable alternative for reducing liability.  486 Mich 228, 257 n. 74.  Therefore, even if House Bill 4231 does not apply to an organization, an indemnity clause may provide adequate liability protection.

* George Johnson is an attorney with Parmenter O’Toole, PLC in Muskegon, Michigan. Parmenter O’Toole is a full-service law firm with extensive experience in the area of business and real estate law. The comments in this article are not intended to be a substitute for legal guidance or advice for a specific situation.  You should obtain informed legal counsel to assist in your decisions relating to any issues which may be raised in this article.  For additional information regarding the above topic, or any other legal issues you may have, Mr. McEvoy can be reached at gwj@parmenterlaw.com or 231.722.5508.