Parental Waivers: The Continuing Saga

Parental Waivers Do Not Count For Much
In June of last year, we informed you that the Michigan Supreme Court held that parental waivers were unenforceable. At the same time, we were optimistic that the Michigan Legislature would pass a law that would give effect to parental waivers. Well, the Legislature did give us a law – MCL 700.5109: “Release for injury of minor during recreational activity” – but many are questioning whether the law changes anything.

Statute carves out large exceptions
MCL 700.5109 states that a parent or guardian of a minor may “release a person from liability… for personal injury sustained by the minor during the specific recreational activity for which the release is provided.” So, mom or dad can release the YMCA from liability for Jimmy’s soccer injury if the release was specific to the soccer activity. That’s not a bad start, but the statute goes on to carve out large exceptions, whittling away the strength of the statute.

Statute only applies to non-governmental non-profit organizations
The first exception (and the most glaring problem) is that the statute only applies to non-governmental non-profit organizations.
If you operate a for-profit business that provides recreational activity, this statute does not apply, and you are not protected from liability – period. Representative John Walsh, R-Livonia, sponsored the bill and said that private, for-profit organizations weren’t included in the statute because “they probably have a greater opportunity to buy insurance.”*

When an individual or organization initially released is open to a lawsuit
Next, if the statute does apply to your organization, the release can only apply to an injury or death that resulted “solely from the inherent risks of the recreational activity.” Therefore, if Jimmy trips on a little divot in the soccer field and injures himself, as long as no one knew about the divot, the release could block a lawsuit against the non-profit organization. This is because tripping on an uneven patch of grass while running on a soccer field is likely an inherent risk of the sport. But, if the organizer, sponsor, owner, lessee, employee, agent, or other person causes or contributes to the injury or death through negligence (for instance, if the employee knew about the divot and forgot to warn the kids or take corrective action), the release is ineffective, and the individual or the organization initially released is now open to a lawsuit. With regard to this carve-out, Rep. Walsh stated, “[W]e still preserve the right to sue if there’s negligence involved, improper equipment, poor coaching, things of that nature. We didn’t want to leave the parents without any recourse, but we wanted to protect volunteer coaches and non-profits[.]“*

Our recommendations
Unfortunately, it appears that we find ourselves in precisely the same situation as last year – parental waivers do not count for much. Accordingly, we continue to recommend that organizations and individuals act prudently, maintain adequate insurance, and continue use of pre-injury waivers (understanding the limits of those waivers). Additionally, contracts that provide for the parents themselves to “indemnify” (or reimburse) the organization for any losses that arise from a child’s injuries may still be a viable option. While parents cannot contract for their children, they can enter contractual commitments of their own and agree that, “If my child is injured while participating in your activity – and if that injury leads to a claim against you – I will reimburse you for the cost of that claim.” Again, this tool is not nearly as clean or risk free as a release, but it might be useful in defending an injury claim.

*Brian Frasier, Esq., New Law Allows Some Parental Waivers, 25 Michigan Lawyers Weekly, 1 (2011).

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