On June 18, 2010 the Michigan Supreme Court decided, in Woodman v. Kera, LLC, that pre-injury waivers signed by parents on behalf of their minor children are unenforceable. Generally, a minor is not capable of contracting with another party (Read the Court’s opinion by clicking here). Moreover, neither a parent nor a legal guardian may contractually bind a minor. As a result, when a parent signs a pre-injury waiver on behalf of his or her minor child, that waiver is unenforceable.
This ruling does not mean that a business will automatically be found negligent in a court of law when a child is injured. Rather, it means that when a lawsuit is filed on behalf of an injured minor, the case will not be summarily dismissed based on a pre-injury waiver. A parent does not have the authority to waive his or her child’s right to sue in court.
A parent may not personally sue a business in his or her own name for injuries sustained by their child. Michigan requires that a parent or guardian be named “next friend” or “guardian” by the Probate Court in order to sue for damages on behalf of the child. Because a child may not bring a lawsuit, the parent or guardian steps into the shoes of the child in bringing the action. The added supervision ensures that the best interests of the child are protected.
Despite the unenforceability of the pre-injury waiver as to the child, waivers are still important. The ruling does not affect the use of waivers that foreclose a parent’s ability to bring a suit for the parent’s own damages as result of the defendant’s negligence towards a child. In the absence of an enforceable waiver, a parent or guardian might sue the negligent party for damages that the parent or guardian suffered as a result of seeing the injury.
Because pre-injury waivers for children are unenforceable, it is important that businesses be very careful in preventing negligent injuries from occurring. Risk assessments should be completed in order to determine if there are areas or equipment that are not properly maintained that may lead to an injury. It would also be prudent to update and revise your release language. Insurance should also be purchased, both to provide a defense against a lawsuit, and to protect against a judgment.
This article was written by Michael K. Hayes, Legal Clerk at Demorest Law Firm.
