Woodman v. Llc
|18 June 2010
|Calendar No. 9.,Docket No. 137347.
|Trent WOODMAN, a Minor, by his Next Friend, Sheila WOODMAN, Plaintiff-Appellee, v. KERA LLC, doing business as Bounce Party, Defendant-Appellant.
|Michigan Supreme Court
Rhoades McKee PC, Grand Rapids (by Paul A. McCarthy and Stephen J. Hulst) for plaintiff.
Feuer & Kozerski, P.C., Birmingham (by Scott L. Feuer), for defendant.
Eardley Law Offices, P.C., Cannonsburg (by Eugenie B. Eardley), for Amici Curiae the Michigan Association for Justice.
Kreis, Enderle, Hudgins & Borsos, P.C., Battle Creek (by James D. Lance) for Amici Curiae the Michigan Association of United Ways, the Michigan Nonprofit Association, and the Michigan Association of Community Mental Health Boards.
I believe this Court must determine whether a preinjury liability waiver signed by a parent on behalf of his child is enforceable under the common law and, if not, whether this Court should change the common law to enforce such a waiver. I would hold that a parental preinjury waiver is unenforceable under Michigan's common law because, absent special circumstances, a parent has no authority to bind his child by contract. I would further decline to change the common law rule.
While this Court unquestionably has the authority to modify the common law, 1 such modifications should be made with the utmost caution because it is difficult for the judiciary to assess the competing interests that may be at stake and the societal trade-offs relevant to one modification of the common law versus another in relation to the existing rule.
Ironically, defendant has consistently denied that the common law explicitly precluded use of parental preinjury waivers. As a result, defendant has never advocated a specific change in the common law, much less provided the Court with any analytic framework concerning such an alternative rule or any meaningful assessment of possible consequences that might attend a change in the existing rule. Particularly in light of the historic duration of the common law rule generally precluding parental waivers, and because the proponent requiring the change has essentially failed to provide any critical argument and analysis in support of the change, I would decline to alter the existing rule.2 Accordingly, I would affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.3
I. FACTS AND PROCEDURAL HISTORY
The underlying facts are simple and likely familiar to many parents with young children. Five-year-old Trent Woodman's parents had his birthday party at Bounce Party, which defendant Kera LLC operates and which is an indoor play area that contains inflatable play equipment. Before the party, Trent's father, Jeffrey Woodman, signed a liability waiver on Trent's behalf. The waiver provided in pertinent part:
|THE UNDERSIGNED, by his/her signature herein affixed does acknowledge that any physical activities involve some element of personal risk and that, accordingly, in consideration for the undersigned waiving his/her claim against BOUNCE PARTY, and their agents, the undersigned will be allowed to participate in any of the physical activities.
|By engaging in this activity, the undersigned acknowledges that he/she assumes the element of inherent risk, in consideration for being allowed to engage in the activity, agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any liability for personal injury, property damage or wrongful death caused by participation in this activity. Further, the undersigned agrees to indemnify and hold BOUNCE PARTY, and their agents, harmless from any and all costs incurred including, but not limited to, actual attorney's fees that BOUNCE PARTY, and their agents, may suffer by an action or claim brought against it by anyone as a result of the undersigned's use of such facility.
|Parent or Legal Guardian's
|signature if participate [sic] is
|under age 18.
|BE SURE YOU COMPLETE THIS CARD AND SEND IT WITH THE PARTY GUEST!
During the party, Trent jumped off a slide and broke his leg. Trent, by his mother, Sheila Woodman, as next friend, filed suit against defendant, alleging negligence, gross negligence, and violation of the Michigan Consumer Protection Act (MCPA).5 Defendant sought summary disposition, arguing, in pertinent part, that plaintiff's claims were barred by the liability waiver. Plaintiff filed a cross-motion for summary disposition, arguing that the waiver was invalid as a matter of law because a parent cannot waive, release, or compromise his child's claims. The trial court ruled that the waiver barred plaintiff's negligence claim,6 but not plaintiff's gross negligence or MCPA claims.
Plaintiff appealed the waiver issue, and defendant appealed the gross negligence and MCPA issues. The Court of Appeals reversed and held that the waiver was invalid to bar the negligence claim.7 The lead opinion, authored by Judge Talbot, provided a thorough discussion of the validity of parental waivers in foreign jurisdictions as well as under Michigan law. The lead opinion concluded that under Michigan common law, " 'a parent has no authority merely by virtue of the parental relation to waive, release, or compromise claims of his or her child.' " 8 Thus, the lead opinion concluded, "the release signed on behalf of [Trent] cannot be construed as valid" 9 and "the designation or imposition of any waiver exceptions is solely within the purview of the Legislature." 10 Judges Bandstra and Schuette "reluctantly" concurred, noting their hope that this Court or the Legislature would address the
Defendant sought leave to appeal, and this Court granted defendant's application, limited to considering "whether the parental preinjury liability waiver was valid and enforceable." 12
II. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of summary disposition. 13
Defendant seeks to have this Court enforce the parental preinjury waiver that Mr. Woodman signed on behalf of his son. As stated, I believe that this Court must determine whether a parental preinjury waiver is enforceable under the common law and, if not, whether we should exercise our authority to change the common law and enforce such a waiver.
A. THE COMMON LAW
A parental preinjury waiver is a contract. Mr. Woodman purportedly signed the contract on behalf of his son. Consequently,
The well-established Michigan common law rule is that a minor lacks the capacity to contract.14 It is undisputed
At issue is whether a minor can be bound by a contract signed on his behalf by a third party.16 Specifically, can a parent bind his child by contract if the child could not otherwise be bound? Defendant insists that, under the common law, a parental waiver is enforceable to bar the claim of a minor child. However, the Michigan common law rule is clear: a guardian, including a parent, cannot contractually bind his minor ward.17
That point of law was firmly established more than 130 years ago by this Court in Armitage v. Widoe.18 In that case, the plaintiff was a minor when his father signed a land purchase contract on behalf of his son. After reaching majority, the plaintiff sought to disaffirm
Had the infant in the first place undertaken to make another his agent to enter into the contract for him, the appointment would not have been valid. On the authorities no rule is clearer than that an infant cannot empower an agent or attorney to act for him. But if he cannot appoint an agent or attorney, it is clear he cannot affirm what one has assumed to do in his name as such. He cannot affirm what he could not authorize. It would be extraordinary if a party who has no power to do a particular act could yet do it indirectly by the mere act of adoption. Such a doctrine would deprive the infant wholly of his protection; for one has only to change the order of proceeding, assume to act for the infant first and get his authority afterwards, and the principle of law which denies him the power to give the authority is subverted. But such a doctrine is wholly inadmissible. The protection of infancy is a substantial one, and is not to be put aside and overcome by indirect methods.
In Lothrop v. Duffield,20 an attorney who represented several infants in obtaining shares of their grandfather's estate sought to recover his fee from the minors' estates. This Court held that the attorney could not recover directly from the minors' estates because
[w]hatever contract relations he had were with their guardian, who could not bind the infants personally or their estate by contract (except by authority of the probate court, in accordance with law), so as to subject their estates to claims filed by third parties for expenses incurred by the guardian.[
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