Court of Appeals panel addresses viability of pre-injury release of child's rights
As demonstrated by the Appendix to the Court's opinion (and as is well known to all parents), virtually every sponsor of children's activities demands--as a condition of participation--that parents sign a release giving up the child's right to sue in the event of negligently-caused injury. In 1987, the Michigan Supreme Court had ruled that long-standing Michigan public policy invalidates these "releases". In Woodman v. KERA, L.L.C., d/b/a Bounce Party, three of the Court of Appeals' more conservative judges were asked to reconsider this policy, after a child suffered a broken leg on a rented piece of inflatable play equipment.
The Court quickly dispensed with arguments suggesting statutory violations by the company that rented the inflatable, and with claims of gross negligence, but felt constrained to rule that the participation release signed by the child's parent was unenforcible. In separate opinions, each of the Judges noted the long-standing rejection of this type of pre-injury Release and the Judges also emphasized the carefully defined procedure which the Courts and Legislature have created to protect children from the impact of post-injury settlements and releases.
Despite this history and public policy, however, each of these Judges felt it was appropriate to ask the Supreme Court to reconsider the long-standing public policy protecting children and they invited the Court to exercise its activist nature in this direction. Knowing the past history of a majority of the current members of the Supreme Court, it will not be a surprise if the rights and protection of children are conveniently subsumed to the interests of the Chamber of Commerce and the insurance industry, when the insurers appeal this decision.
Every parent has stood at the entrance to an ice arena, soccer field, school building, horse barn, summer or sports camp, or laser tag or paintball facility and struggled with executing a release that purported to waive the negligence of the operator for injuring his or her child, in advance. Some parents have the courage to take their child by the hand and leave. Some attempt to modify the language of the release to provide their child a degree of protection--and inattentive or unconcerned operators may defy their insurer and accept the modified document.
In our experience, however, most parents swallow hard and then sign away their child's rights, trusting that probably nothing will happen, and that if anything does, no court will ever deny their child fair treatment. They avoid the embarassment and disappointment that would result from a principled stand over an issue that is likely to go away, in any event. To date, in Michigan, both child and parent have been protected in this situation: stand by for the latest word from the Engler majority.