Woodman v. Kera LLC

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JUNE 18, 2010

STATE OF MICHIGAN

SUPREME COURT

TRENT WOODMAN, a Minor, by his Next
Friend, SHEILA WOODMAN,

Plaintiff-Appellee,

v No. 137347

KERA LLC, doing business as BOUNCE
PARTY,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

YOUNG, J.

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

1
Const 1963, art 3, § 7 (“The common law and the statute laws now in force . . .
shall remain in force until they expire by their own limitations, or are changed, amended
or repealed.”); Longstreth v Gensel; 423 Mich 675, 686; 377 NW2d 804 (1985) (“[T]he
common-law rule remains the law until modified by this Court or the Legislature.”).
2
I note that a bill to modify the common law rule at issue here has been
introduced in the Legislature. HB 4970, introduced May 19, 2009, would add § 5109 to
the Estates and Protected Individuals Code. The added section would provide:

(1) A parent or guardian of a minor who participates in recreational
activity may release a person in advance from liability for economic or
noneconomic damages for personal injury sustained by the minor as a result
of the activity.

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:

(2) One or more of the following may be released from liability
under this section:

(a) A sponsor or organizer of the recreational activity.

(b) An owner or lessee of the property on which the recreational
activity occurs.

(3) A release under this section shall be in writing signed by the
parent or guardian.

On March 10, 2010, the House Judiciary Committee reported the bill with a substitute
and recommended that the House of Representatives adopt the substitute.
3
This is a case in which the competing policy interests are closely balanced. The
common law and positive law that inform my understanding uniformly promote the
protection of children and require that parents not be permitted to waive any future claims
of their children. I am sympathetic to the arguments that Justice MARKMAN and the
Court of Appeals concurrences offer that this view of the common law rule may promote
litigiousness in our modern society. However, given the cases and positive law cited, I
believe that this closely balanced social question is one best handled by the Legislature—
particularly given that members of this Court, rather than the parties themselves, have
offered stronger rationales for the common law rule that Justice MARKMAN favors.

3
 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.

Participant:_________________ Signature:____________________
PRINTED NAME Parent or Legal Guardian’s
signature if participate [sic] is
under age 18.

Date: _____________________

BE SURE YOU COMPLETE THIS CARD AND SEND IT WITH THE
PARTY GUEST!

Mr. Woodman signed the form as the parent and Trent’s name was printed on the form as

the “participant.”4

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

4
As noted in footnote 6, given the language of the waiver, the fact that Mr.
Woodman signed as “parent” rather than as the “participant” on the waiver raises
questions about whether Trent’s rights were waived at all.

4
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

5
MCL 445.901 et seq.
6
Ironically, the question whether the waiver at issue here actually bound the child
was raised by members of this Court at oral argument, as the challenged waiver appears
to bind only the “undersigned,” who is Mr. Woodman, not the “participant,” Trent.
Indeed, it appears that the “undersigned” is bound to indemnify defendant for any
liability that might occur. Notwithstanding this, plaintiff has argued throughout this
litigation that the release bound Trent.

Following the trial court’s determination that the waiver precluded plaintiff’s suit,
plaintiff subsequently moved for summary disposition and argued that the waiver
language was ineffective to waive plaintiff’s claim. Plaintiff conceded that the waiver
“operate[d] between” defendant and Trent, but argued that the agreement was
insufficiently clear to effectuate a valid waiver of Trent’s rights. The trial court denied
that motion, and plaintiff has not appealed on the basis that the waiver language was
ineffective. An issue not advanced or appealed is deemed waived. Lawrence v Will
Darrah & Assoc Inc, 445 Mich 1, 4 n 2; 516 NW2d 43 (1994). Because plaintiff never
argued that the waiver bound Mr. Woodman, I do not address the obvious problems with
the waiver language, which, in contradiction to the argument specifically advanced by
plaintiff before the trial court, appears to bind only Mr. Woodman, rather than Trent.

5
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 issue and change the common law to permit a

parent to waive the tort claims of their minor children.11

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

7
Woodman v Kera, LLC, 280 Mich App 125; 760 NW2d 641(2008). The Court of
Appeals also held that defendant was entitled to summary disposition on plaintiff’s gross
negligence and MCPA claims.
8
Id. at 144 (opinion by TALBOT, J.), quoting Tuer v Niedoliwka, 92 Mich App
694, 698-699; 285 NW2d 424 (1979).
9
Woodman, 280 Mich App at 151 (opinion by TALBOT, J.).
10
Id. at 149.
11
Id. at 157 (opinion by BANDSTRA, P.J.); id. at 161 (opinion by SCHUETTE, J.).
12
Woodman v Kera, LLC, 483 Mich 999 (2009).

6
 II. STANDARD OF REVIEW

This Court reviews de novo the grant or denial of summary disposition.13

III. DISCUSSION

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, defendant necessarily asserts that the

contract is enforceable against Trent because Mr. Woodman had authority to bind his son

to the contract.

The well-established Michigan common law rule is that a minor lacks the capacity

to contract.14 It is undisputed that if five-year-old Trent had signed the waiver, defendant

13
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
14
See Holmes v Rice, 45 Mich 142; 7 NW 772 (1881) (“The law in recognizing
the incapacity of infants to enter into certain contracts and declaring such contracts
voidable does so for the infant’s protection. Their contracts are not void but voidable,
and it is for the infant to avoid the contract or ratify it . . . .”); Minock v Shortridge, 21
Mich 304, 315 (1870) (“The executory contract of an infant, such as a promissory note, is
not void in the sense of being a nullity, because it may be confirmed, but it has no
binding force until it is confirmed.”); Carrell v Potter, 23 Mich 377, 378-379 (1871);
Dunton v Brown, 31 Mich 182, 183 (1875); Reynolds v Garber-Buick Co, 183 Mich 157,
162; 149 NW 985 (1914) (“After reaching his majority one may disaffirm a contract

7
could not enforce the waiver against him unless Trent confirmed it after he reached the

age of majority.15

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

made by him during infancy and recover what he paid or parted with pursuant to such
contract, if he return what he received.”); Lawrence v Baxter, 275 Mich 587, 589; 267
NW 742 (1936) (“Authority need not be cited in support of the uniform holdings that a
minor may rescind a contract of this character. The contract for the house and lot was not
for a necessity.”).

The common law exception to this rule is that a minor can bind himself by
contract for “necessaries.” See In re Dzwonkiewicz’s Estate, 231 Mich 165, 167; 203
NW 671 (1925) (defining “necessaries” as items that “‘answer[] the bodily needs of the
infant, without which the individual cannot reasonably exist’” and holding that medical
services are “necessaries”) (citation omitted); Squier v Hydliff, 9 Mich 274, 277 (1861)
(“It has, we believe, always been held that a minor might bind himself by contract for
necessaries, and that such contract when executed, if reasonable under all the
circumstances, or not so unreasonable as to be evidence of fraud or undue advantage, can
not be repudiated by him.”); Lynch v Johnson, 109 Mich 640, 643; 67 NW 908 (1896)
(“These clothes were within the class known as ‘necessaries.’”); Wood v Losey, 50 Mich
475, 477-478; 15 NW 557 (1883).

There are, of course, also express statutory exceptions to the common law. See,
e.g., MCL 600.1404(2) (educational loans); MCL 600.1403 (willful misrepresentation of
age); MCL 500.2205 (life or disability insurance); MCL 333.5127(1) (consent to medical
care for a minor infected with venereal disease or HIV); MCL 333.6121(1) (consent to
substance abuse related medical care); MCL 333.9132(1) (consent to prenatal and
pregnancy related health care).
15
See Minock, 21 Mich at 315. The age of majority in Michigan is 18. MCL
722.52.
16
Justice MARKMAN cites numerous instances in which the Legislature has
permitted “parents to provide consent to their children’s participation in numerous
significant activities” as a basis for concluding that parental preinjury waivers are
enforceable. Post at 25, 27-30.

However, the issue presented in this case is not whether parents have the authority
to consent to their child’s participation in various activities. Certainly, parents generally

8
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 the contract and recover the money his father had paid toward the purchase

price on his behalf. Justice COOLEY, writing for a unanimous Court, held that the

plaintiff had no interest in the contract because his father was without authority to bind

him to the contract:

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

have such authority, and nothing in this opinion should be read as attempting to limit a
parent’s authority to provide consent to the activity. The issue in this case is whether a
parent may bind his child by contract when the child is injured as a result of participating
in the consented-to activity.
17
See Reynolds, 183 Mich at 166, in which this Court stated:

Of the power of guardians to contract for their wards, it is stated as a
general proposition that:

“Guardians cannot by their contracts bind either the person or estate
of their wards. Such contracts bind the guardians personally, and recovery
must be had in an action against them, not against the ward.” [Citation
omitted.]

See also Burt v McBain, 29 Mich 260, 265 (1874) (“In this case the plaintiff was an
infant, and she could not be bound by any relinquishment or attempted relinquishment by
another of her rights.”); Bearinger v Pelton, 78 Mich 109, 114; 43 NW 1042 (1889)
(“The general guardian had no right to bind the infants by a consent decree.”).
18
Armitage v Widoe, 36 Mich 124 (1877).

9
 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.[19]

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.[21]

This Court set forth ample authority supporting the proposition that the guardian was

without authority to bind the minors to a contract.22

The fact that the guardian in the instant case is the child’s father does not alter this

bedrock legal principle. Parents, as natural guardians of a child,23 enjoy the same

19
Id. at 129 (citations omitted).
20
Lothrop v Duffield, 134 Mich 485; 96 NW 577 (1903).
21
Id. at 487 (emphasis added).
22
See id. at 487-489 and the numerous authorities cited therein.

10
authority over a child as legal guardians.24 Indeed, in Power v Harlow,25 Justice THOMAS

M. COOLEY made clear that a parent’s authority is limited to the care and custody of his

child and that a parent is without authority to waive the rights of the child. In Power, the

plaintiff child was injured while playing with an explosive on the defendant’s property.

The defense sought to use the mother’s admission that the child had been warned of the

danger as an admission binding on the child. The trial court held that the statement was

inadmissible, and Justice COOLEY, writing for the Court, affirmed:

The natural guardian has no power to admit away the rights of the
ward whose person is committed to his custody. He is guardian of the
person only, having no control of any estate the ward may possess, and
could not be given a control except on judicial proceedings and after giving
security for responsible care. This being so, it cannot be plausibly claimed
that by an irresponsible admission he may deprive his ward of important
rights. A right of action is as much property as is a corporeal possession,
and, in the case of a minor, is protected by the law in the same way and
under the same securities. The mother could not release it even for full
consideration and by the most formal instrument; much less, therefore,
could she, by mere word of mouth, when not under oath, or otherwise
chargeable with responsibility, destroy his right of action by her
admissions.[26]

23
See In re Knott, 162 Mich 10, 16; 126 NW 1040 (1910); In re Rosebush, 195
Mich App 675, 686; 491 NW2d 633 (1992), quoting In re LHR, 253 Ga 439, 446; 321
SE2d 716 (1984).
24
See Gott v Culp, 45 Mich 265, 271-272; 7 NW 767 (1881) (“The law is entirely
well settled that the guardian’s discretion in such matters stands on a very similar footing
with a parent’s, and that he is not compellable to prefer mere economy of cost to the
welfare and comfort of his ward.”); MCL 700.5215 (“A minor’s guardian has the powers
and responsibilities of a parent who is not deprived of custody of the parent’s minor and
unemancipated child . . . .”).
25
Power v Harlow, 57 Mich 107; 23 NW 606 (1885).
26
Id. at 111 (emphasis added).

11
 The longstanding and undisturbed common law rule that a parent lacks authority

to bind his child by contract27 was recently acknowledged by this Court in a case in

which the Legislature had abrogated the general common law rule in the medical

malpractice context. In McKinstry v Valley Obstetrics-Gynecology Clinic, PC,28 the

pregnant mother signed a medical waiver requiring arbitration of any claim on behalf of

her unborn child. However, the mother contested the validity of that waiver after her

child was injured during delivery. The Court considered the effect of MCL 600.5046(2)

(since repealed by 1993 PA 78), which provided:

A minor child shall be bound by a written agreement to arbitrate
disputes, controversies, or issues upon the execution of an agreement on his
behalf by a parent or legal guardian. The minor child may not subsequently
disaffirm the agreement.

This Court concluded that the statute mandated that the arbitration agreement signed by

the mother bind her child. In so doing, we acknowledged that the agreement would not

have been binding under the general common law rule:

27
See footnote 17 of this opinion; Lothrup, 134 Mich at 487; Reliance Ins Co v
Haney, 54 Mich App 237, 242; 220 NW2d 728 (1974) (“A parent has no authority
merely by virtue of the parental relation to waive, release, or compromise claims by or
against his child.”), citing 67 CJS, Parent & Child, § 58, p 764, and Schofield v Spilker,
37 Mich App 33; 194 NW2d 549 (1971); Tuer, 92 Mich App at 698-699 (holding that an
agreement between parents purporting to release the father of child support obligation
was not binding on the child); In re Kinsella Estate, 120 Mich App 199, 203; 327 NW2d
437 (1982) (mother’s consent to annulment with putative father was not was not binding
on children seeking to establish paternity); Smith v YMCA of Benton Harbor/St Joseph,
216 Mich App 552, 554; 550 NW2d 262 (1996) (parental release in exchange for $3,275
after child fell at swimming pool was not binding on child).
28
McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167; 405
NW2d 88 (1987).

12
 Our interpretation of [MCL 600.5046(2)] is a departure from the
common-law rule that a parent has no authority to waive, release, or
compromise claims by or against a child. However, the common law can
be modified or abrogated by statute. Thus, a child can be bound by a
parent's act when a statute grants that authority to a parent. We believe that
[MCL 600.5046(2)] changes the common law to permit a parent to bind a
child to an arbitration agreement.[29]

Accordingly, we reaffirmed that, under the consistent and well-established Michigan

common law, a parent is without authority to bind his child by contract.

In support of its claim that parental preinjury waivers are valid, defendant first

contends that general freedom of contract principles render these agreements

enforceable.30 This contention is entirely unpersuasive. The issue at hand is not whether

a competent adult is free to contract. Rather, the relevant issue is the subject matter of

the contract. This Court does not, under freedom of contract principles, enforce contracts

that the parties otherwise have no authority to enter.31 Mr. Woodman possesses no

29
Id. at 192-193 (citations omitted).
30
See Terrien v Zwit, 467 Mich 56, 71; 648 NW2d 602 (2002) (“‘The general rule
[of contracts] is that competent persons shall have the utmost liberty of contracting and
that their agreements voluntarily and fairly made shall be held valid and enforced in the
courts.’”), quoting Twin City Pipe Line Co v Harding Glass Co, 283 US 353, 356; 51 S
Ct 476; 75 L Ed 1112 (1931).
31
See, e.g., Atlas Mining Co v Johnston, 23 Mich 36, 47 (1871) (holding that the
defendant was not bound by its agent’s agreement to purchase property sold at a public
auction for $400 more than he was authorized to bid because “[i]t would be simply
preposterous to hold that [the agreement] . . . assented to by [the agent], could in any way
bind or affect the defendant, if [the agent] had no authority thus to bind them and the
defendant did not ratify his action.”); Miller v Frost’s Detroit Lumber & Wooden Ware
Works, 66 Mich 455, 458-459; 33 NW 406 (1887) (holding that the defendant was not
bound by the agreement of an unauthorized agent to purchase lumber); Deffenbaugh v
Jackson Paper Mfg Co, 120 Mich 242; 79 NW 197 (1899) (holding that the defendant

13
greater authority to waive the property rights of his son Trent than he possesses to waive

the property rights of any other nonconsenting third party, such as his neighbor or a

coworker. Thus, the answer to defendant’s freedom of contract argument is simple: the

freedom to contract does not permit contracting parties to impose obligations upon and

waive the rights of third parties in the absence of legally cognizable authority to do so.

Relying on O’Brien v Loeb,32 defendant’s second contention is that a parent is

only prohibited from waiving a tort claim after the injury and may freely waive a tort

claim before the injury. In O’Brien, this Court rejected a parent’s authority to waive her

minor son’s tort claim after the injury occurred because “[t]he transaction was carried on

entirely with the mother, who was without authority to bind him in the release of his

cause of action against the defendants.”33 Rather than supporting defendant’s claim,

O’Brien is in accord with the general common law rule that a parent is without authority

to bind his child by contract. O’Brien in no way creates an exception to the general

common law rule, and no limiting principle or rationale may be extracted from its

company was not bound by an employment contract with the plaintiff that its agents were
not authorized to enter into on the defendant’s behalf).
32
O’Brien v Loeb, 229 Mich 405; 201 NW 488 (1924).
33
Id. at 408. The Court further quoted the rule from 22 Cyc L & Proc at 584:

“An infant is not bound by a contract made for him or in his name by
another person purporting to act for him, unless such person has been duly
appointed his guardian or next friend and authorized by the court to act and
bind him.” [O’Brien, 229 Mich at 408.]

14
holding. I conclude that there is no basis to support defendant’s contention that a parent

is only prohibited from waiving the child’s tort claims after the injury.34

The application of the common law in this case is simple and straightforward. The

waiver at issue is a contractual release. Mr. Woodman signed the waiver on behalf of his

son, thereby intending to bind Trent to that contract. Under the common law, Mr.

Woodman was without authority to do so. Accordingly, the waiver is not enforceable

against Trent and does not bar his cause of action. Defendant’s effort to enforce the

waiver must therefore be viewed as a request that this Court modify the common law.

B. SHOULD THE COMMON LAW BE CHANGED?

The Michigan Constitution provides that “[t]he common law and the statute laws

now in force, not repugnant to this constitution, shall remain in force until they expire by

their own limitations, or are changed, amended or repealed.”35 Both this Court and the

Legislature have authority to change the common law.36

In this case, we are (impliedly) asked to alter a common law doctrine that has

existed undisturbed for well over a century. There is no question that, if this Court were

inclined to alter the common law, we would be creating public policy for this state. Just

as “legislative amendment of the common law is not lightly presumed,”37 this Court does

34
See McKinstry, 428 Mich at 192-193, in which this Court acknowledged that a
preinjury arbitration agreement was not enforceable under the common law.
35
Const 1963, art 3, § 7.
36
Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965).
37
Wold Architects & Engineers v Strat, 474 Mich 223, 233; 713 NW2d 750
(2006).

15
not lightly exercise its authority to change the common law.38 Indeed, this Court has

acknowledged the prudential principle that we must “exercise caution and . . . defer to the

Legislature when called upon to make a new and potentially societally dislocating change

to the common law.”39 Whether to alter the common law is a matter of prudence and,

because we share this authority with the Legislature, I believe we must consider whether

the prudent course is to take action where the Legislature has not.

1. THE SUPERIORITY OF THE LEGISLATURE
TO MAKE POLICY DECISIONS

This Court has recognized that the Legislature is the superior institution for

creating the public policy of this state:

“As a general rule, making social policy is a job for the Legislature,
not the courts. See In re Kurzyniec Estate, 207 Mich App 531, 543; 526
NW2d 191 (1994). This is especially true when the determination or
resolution requires placing a premium on one societal interest at the
expense of another: ‘The responsibility for drawing lines in a society as
complex as ours—of identifying priorities, weighing the relevant
considerations and choosing between competing alternatives—is the
Legislature’s, not the judiciary’s.’ O’Donnell v State Farm Mut
Automobile Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979).”[40]

The superiority of the Legislature to address matters of public policy is positively

correlated with the complexity of the government’s role in our society. During the

nineteenth century, courts exercising their authority to alter the common law did so

38
See Bott v Natural Resources Comm, 415 Mich 45; 327 NW2d 838 (1982).
39
Henry v Dow Chem Co, 473 Mich 63, 89; 701 NW2d 684 (2005).
40
Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999), quoting Van v
Zahorik, 227 Mich App 90, 95; 575 NW2d 566 (1997).

16
within the context of a simpler, agrarian economy. The legislatures of that era exercised

a more limited regulatory role. In contrast, today’s modern legislatures exercise robust

regulation of all facets of our modern, internationalized economy and the rights and

responsibilities of citizens. The need for a judiciary responsive to perceived public policy

needs of the state has been correspondingly reduced by the development of the

Legislature as a full-time institution and its pervasive statutory regulation of our

increasingly complex society.

This case illustrates why this Court should frequently defer policy-based changes

in the common law to the Legislature. When formulating public policy for this state, the

Legislature possesses superior tools and means for gathering facts, data, and opinion and

assessing the will of the public.41 The Legislature can hold hearings, gather the opinions

of experts, procure studies, and generally provide a forum for all societal factions to

present their competing views on a particular question of public policy.

The judiciary, by contrast, is designed to accomplish the discrete task of resolving

disputes, typically between two parties, each in pursuit of the party’s own narrow

interests. We are “‘limited to one set of facts in each lawsuit, which is shaped and

limited by arguments from opposing counsel who seek to advance purely private

interests.’”42 We do not generally consider the views of nonparties on questions of

41
See Henry, 473 Mich at 92 n 24, quoting Schwartz & Lorber, State Farm v
Avery: State court regulation through litigation has gone too far, 33 Conn L R 1215,
1219-1220 (2001).
42
Henry, 473 Mich at 93 n 24, quoting Schwartz & Lorber, 33 Conn L R at 1220.

17
policy,43 and we are limited to the record developed by the parties. The reality of our

judicial institutional limitations is a significant liability in regard to our ability to make

informed decisions when we are asked to create public policy by changing the common

law.

This case demonstrates these institutional limitations. Defendant openly concedes

that the principal impetus for seeking enforcement of parental preinjury waivers is the

protection that waivers afford its business in the face of the increasingly litigious nature

of society. But for the perceived increased likelihood of a lawsuit and accompanying

litigation costs, businesses such as defendant would not need parental preinjury

waivers.44 Accordingly, in seeking to have its waiver enforced, defendant requires a

modification of the common law rule and thus necessarily (but only impliedly) asserts

that the societal benefits of enforcing the waiver—saving defendant litigation costs—

43
Our authority to entertain the positions of nonparties through briefs of amici
curiae, MCR 7.306(D), is a far inferior alternative to the legislative process, in which
hearings on policy questions broadly permit all citizens to give testimony and otherwise
participate by petitioning their government and lobbying their representatives. See Const
1963, art 1, § 3. While appropriate in the legislative branch, such conduct is unethical in
the judicial branch.

This very case shows the limit of this Court’s ability to consider positions other
than the ones advanced by the parties. Although the question whether parents may waive
their children’s rights is one of obvious public policy significance, only two amicus
curiae briefs were submitted, and one urged this Court to defer to the Legislature. See
amicus curiae brief of the Michigan Association for Justice at 7.
44
Judge BANDSTRA, concurring with the lead opinion in the Court of Appeals,
observed that “this case amply demonstrates [that] ours is an extremely and increasingly
litigious society” and that “[c]hildren have routinely jumped off playground slides for
generations; lawsuits seeking to impose damages on someone else for resulting injuries
are only a recent phenomenon.” Woodman, 280 Mich App at 160 & n 2.

18
outweigh the societal costs of abrogating the common law. Defendant, however, has not

provided this Court with anything beyond mere conjecture that this is true.45

This is a purely policy-driven matter with numerous costs, benefits, and trade-

offs—none of which defendant has bothered to raise, much less explicate. Certainly,

enforcing the common law would protect minors’ contractual and property rights and

presumably encourage greater care in preventing negligent injuries to children. These

are, without question, admirable societal goals with significant societal benefits that have

a long provenance in this state’s jurisprudence. Changing the common law would

arguably save litigation costs for businesses offering recreational activities for children

and concomitantly promote the availability of a wide range of activities for children.

These too are admirable societal goals.46 Of concern, however, are the potential hidden

costs that might occur if the common law were changed. For example, if parental

preinjury waivers were to be enforced, there would be a possibility that business owners

will have diminished incentives to maintain their property appropriately, resulting in an

45
Again, defendant does not even acknowledge that it seeks to change the
common law rule. Consequently, defendant offers no analysis of what change this Court
should make to the existing rule or the consequences of such a change.
46
Fostering the stability of Michigan’s businesses is also an important policy
objective. In fact, given Michigan’s persistently poorly performing economy, an
argument could be made that fostering businesses that create more job opportunities is of
primary social and economic importance to this state. See Gallagher, CEOs expect slow
state recovery, Detroit Free Press, October 28, 2009, at 13A; The State of Joblessness,
Wall St J, October 20, 2009, at A20; United States Department of Commerce, Bureau of
Economic Analysis, News Release: Economic Slowdown Widespread Among States in
2008, June 2, 2009 (showing that Michigan’s gross domestic product has declined each
year since 2005), available at (accessed June 3, 2010).

19
increased number of injuries to children. Moreover, the enforcement of preinjury waivers

might result in an increased burden on taxpayers for children whose parents waived their

children’s right to pursue a tort remedy but cannot afford their necessary medical care.47

These are but two illustrations of possible unintended consequences that a change

in the common law here might occasion. Undoubtedly, there are many others. How are

we as jurists to determine whether enforcing or changing the common law rule will result

in a net benefit to society? Here we would only be able to make an uneducated guess

without even a substantial analysis from the party that requires (but has not asked for)

changes in the common law.48 When engaging in such rank guesswork, the weight of

common law authority that has existed for more than a century must be preferred. In

accord with Hippocrates’ admonition, maintaining the status quo has the significant

benefit of doing no greater harm.

As stated previously, the Legislature is not similarly constrained to make policy on

the basis of blind speculation. Thus, if changing the common law to permit a parent to

bind his child to a preinjury waiver is deemed to result in a net societal benefit, the

Legislature can determine that fact with reasonable assurance before subjecting the public

to such a change.

47
See Kirton v Fields, 997 So 2d 349, 357 (Fla, 2008). (“If the parent cannot
afford to bear that burden, the parties who suffer are the child, other family members, and
the people of the State who will be called on to bear that financial burden.”).
48
Cf. Henry, 473 Mich at 90 (“In effect, we have been asked to craft public policy
in the dark.”).

20
 Illustratively, defendant’s proffered rationale for a revision of what a majority of

justices have concluded is the existing rule is the argument that a parent is presumed to

act in his child’s best interests and has a “fundamental right . . . to make decisions

pertaining to the care, custody, and control of [that] minor child[].”49 That rationale,

however, is not discretely limited to preinjury waivers. Under defendant’s proffered

analysis, a parent would be able to bind the child in any contract, no matter how

detrimental to the child. Thus, defendant’s rationale would arguably completely abrogate

the common law prohibition of guardians contractually binding their minor wards.

As explained, the common law rules regarding minors and limitations on those

who would contract on their behalf exist solely for the protection of the minors.50 As

unfortunate as it may be, a parent does not always act in his child’s best interests. For

example, in Wood v Truax,51 the defendant’s guardian entered into a mortgage and bond

when the defendant was a minor. After the mortgage went into foreclosure, the plaintiff

“procured a decree for the deficiency” against the defendant. However, Wood applied the

common law rules to invalidate a judgment against the defendant because the mortgage

was entered into when she was a minor and she had done nothing to affirm the contract

49
Troxel v Granville, 530 US 57, 66; 120 S Ct 2054; 147 L Ed 2d 49 (2000)
(opinion by O’Connor, J.); see also Parham v J R, 442 US 584, 602; 99 S Ct 2493; 61 L
Ed 2d 101 (1979).
50
See Holmes, 45 Mich at 142 (“The law in recognizing the incapacity of infants
to enter into certain contracts and declaring such contracts voidable does so for the
infant’s protection.”).
51
Wood v Truax, 39 Mich 628 (1878).

21
after reaching adulthood.52 Similarly, in Tuer v Niedoliwka,53 the mother agreed on her

infant child’s behalf to release the father from all child support obligations in return for

$2,000. However, the Court held that a “child's right to support from a putative father

cannot be contracted away by its mother, and that any release or compromise executed by

the mother is invalid to the extent that it purports to affect the rights of the child.”54

Thus, as noted in our caselaw, there have been instances in which a parent did not act in

his child’s best interests, and it is certainly not unimaginable that such agreements could

recur and be enforced in the absence of the common law rule that serves to protect the

minor child.

As occurred in oral argument on this case, those favoring the modification of the

common law rule might reflexively respond to the fact that parents do not always act in

the best interests of their children by adding a qualifier to the modification of the

common law rule: a parental waiver is binding on the child only if the waiver is in the

“child’s best interests.” However, this effort to avoid eviscerating the protection of

children now recognized in the common law rule would undoubtedly create as many

problems as it would resolve. Certainly, such an approach would create ancillary

litigation over whether the parental waiver was in the child’s best interests. While

society might generally benefit from allowance of parental waivers for minor children, it

could reasonably be asked: Is any preinjury waiver that is later asserted against a

52
Id. at 633.
53
Tuer, 92 Mich App at 696.
54
Id. at 699.

22
particular minor ever in the best interests of the injured child? The existing common law

is well established, clear, and easy to apply and consistently protects children; it must be

preferred over a chaotic, ad hoc alternative.

2. PUBLIC POLICY ENACTED BY THIS COURT MUST BE CONSISTENT
WITH THE EXISTING PUBLIC POLICY OF THIS STATE

For the reasons discussed in the preceding section, this Court must practice

restraint when considering a change in the common law. I believe we must limit the

exercise of our authority by creating public policy that is consistent with the existing

public policy of this state. Doing so protects against unwarranted and unwanted

“societally dislocating change[s]” to the public policy of this state.55 We have previously

defined the proper sources of public policy to guide our analysis:

In identifying the boundaries of public policy, we believe that the
focus of the judiciary must ultimately be upon the policies that, in fact,
have been adopted by the public through our various legal processes, and
are reflected in our state and federal constitutions, our statutes, and the
common law.[56]

a. POSITIVE LAW

The preferred practice is to follow the lead of the institution best suited to make

public policy for the state. Accordingly, I begin with the positive law enacted by the

Legislature to determine whether public policy supports the change in the common law

sought by defendant.

55
Henry, 473 Mich at 89.
56
Terrien, 467 Mich at 66-67.

23
 The Legislature has affirmatively acted to protect and preserve minors’ property

interests.57 With respect to a minor’s cause of action, the Legislature has taken two

significant steps. Pursuant to MCL 600.5851, the minority tolling provision, the period

of limitations for a cause of action that accrued during minority is tolled. The minor is

permitted to bring his cause of action within one year of reaching majority.58 Thus, the

Legislature has acted to preserve a minor’s ability to pursue and control the minor’s own

claim.

Furthermore, although a parent as next friend of his child may settle a claim with

the approval of the court,59 the parent’s authority to receive settlement proceeds on the

child’s behalf is strictly limited. Under MCL 700.5102, a guardian or person with the

57
See, e.g., MCL 700.5401(2) (permitting a court to appoint a conservator or enter
a protective order “if the court determines that the minor owns money or property that
requires management or protection that cannot otherwise be provided, has or may have
business affairs that may be jeopardized or prevented by minority, or needs money for
support and education and that protection is necessary or desirable to obtain or provide
money”); Michigan Uniform Transfers to Minors Act, MCL 554.521 et seq.
58
MCL 600.5851 contains exceptions for medical malpractice claims, but
provides in pertinent part:

[I]f the person first entitled to make an entry or bring an action under
this act is under 18 years of age . . . at the time the claim accrues, the person
or those claiming under the person shall have 1 year after the disability is
removed through death or otherwise, to make the entry or bring the action
although the period of limitations has run. [MCL 600.5851(1).]
59
MCR 2.420; O’Brien, 229 Mich at 408.

24
care and custody of a minor may receive no more than $5,000 each year on that minor’s

behalf,60 and

an individual receiving money or property for a minor is obligated to apply
the money to the minor's support and education, but shall not pay himself or
herself except by way of reimbursement for out-of-pocket expenses for
goods and services necessary for the minor's support. An excess amount
shall be preserved for the minor's future support and education. A balance
not used for those purposes and property received for the minor shall be
turned over to the minor when majority is attained.[61]

Notably, the Court of Appeals has held that MCL 700.5102 does not authorize a parent to

settle his child’s tort claims.62 Furthermore, in recognizing these legislative policy

choices, this Court has provided by court rule that all settlements in favor of minors for

payments of less than $5,000 in a single year are controlled by MCL 700.5102 and all

greater settlements require the appointment of a conservator.63

These statutes evince a public policy firmly at odds with the autonomous parental

control over a minor’s property rights that defendant asserts. The Legislature has

consistently acted to preserve a minor’s property interest in his tort claims, and nothing in

Michigan’s positive law indicates a legislative intent to abrogate the common law or

60
MCL 700.5102(1)(b) and (c).
61
MCL 700.5102(3).
62
Smith, 216 Mich App at 555 (“The statute does not provide parents the authority
to compromise their children’s claims; it merely permits a debtor of a minor to make
payments directly to the minor’s parents without seeking judicial approval for each
payment as long as the aggregate amount of the payments is less than $5,000 a year.”).
Smith interpreted MCL 700.403, a predecessor of MCL 700.5102 with essentially the
same provisions.
63
MCR 2.420(B)(4); see MCL 700.5401 through MCL 700.5433 (providing for
the appointment of a conservator to protect the property of a minor).

25
extend a parent’s authority. Accordingly, positive law does not provide an anchor for

altering the common law rules.

b. COMMON LAW

The common law is also a valid source for identifying the public policy of this

state.64 If the change required by defendant in order to have the parental waiver upheld

were consistent with other common law doctrines, this Court could consider creating

consistent public policy. Here, however, the change necessitated to validate the parental

waiver is at odds with other pertinent common law doctrines.

Defendant, in seeking to enforce a parental right to bind his child by contract,

requires the abrogation of not one, but two common law tenets. First, as stated, a minor

lacks the capacity to contract: “Their contracts are not void but voidable, and it is for the

[minor] to avoid the contract or ratify it . . . .”65 Second, a guardian cannot contractually

bind his minor ward.

It should be noted that the modification defendant requires would not merely give

a parent the same authority as the minor, given that a minor has no contractual authority

and the minor’s waiver would not bar this action. Rather, defendant requires a

modification of the common law rule that would give the parent authority to contractually

bind the minor superior to that the minor himself enjoys. In short, defendant requires that

the common law be changed to permit a parent to do what a minor could not do on his

64
See Terrien, 467 Mich at 66-67.
65
Holmes, 45 Mich at 142.

26
own behalf—enter into a contract that binds the minor. As we have previously stated, the

rule that a minor lacks capacity to contract exists solely for the minor’s protection.66

“The protection of infancy is a substantial one, and is not to be put aside and overcome

by indirect methods.”67 The exception required by defendant does precisely that: it

removes the protections of a minor’s incapacity to contract by the indirect means of

permitting the guardian to enter into a binding and enforceable contract for the minor.

Moreover, under the common law, minors are generally protected by the

placement of greater burdens and increased potential liability on those coming into

contact with minors. Thus, permitting the waiver of liability for negligent harm done to a

child is inconsistent with public policy broadly recognized in the common law.

For example, a landowner is generally not liable for injuries suffered by a

trespasser,68 but the attractive nuisance doctrine imposes liability for injuries suffered by

trespassing children.69 Thus, the common law doctrine protects children by imposing

greater liability on landowners when minors are involved.70 Also, under the common

66
Id.
67
Armitage, 36 Mich at 129.
68
The exception is for injuries caused by the landowner’s willful and wanton
misconduct. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d
88 (2000).
69
Murday v Bales Trucking, Inc, 165 Mich App 747, 751-752; 419 NW2d 451
(1988); 2 Restatement Torts, 2d, § 339, p 197.
70
See Justice COOLEY writing for the Court in Powers v Harlow, 53 Mich 507,
515; 19 NW 257 (1884):

27
law, a minor under seven years old was incapable of contributory negligence.71 For

minors older than seven, contributory negligence was based on “whether the child had

conducted himself as a child of his age, ability, intelligence and experience would

reasonably have been expected to do under like circumstances.”72 Accordingly, the

common law protects children by creating an incentive to exercise greater care for

minors because it limits a defendant’s ability to escape liability on the basis of the child’s

contributory negligence.73

The public policy of this state reflected in these common law liability doctrines is

to protect children by imposing greater liability on adults for conduct involving potential

harm to children. It would therefore require an extremely compelling argument to change

Children, wherever they go, must be expected to act upon childish
instincts and impulses; and others who are chargeable with a duty of care
and caution towards them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything
which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.
71
Baker v Alt, 374 Mich 492, 505; 132 NW2d 614 (1965).
72
Burhans v Witbeck, 375 Mich 253, 255; 134 NW2d 225 (1965); see also 2
Restatement Torts, 2d, § 283A, p 14.
73
See Tyler v Weed, 285 Mich 460, 488-489; 280 NW 827 (1938) (MCALLISTER,
J., dissenting in part) (“This ancient bulwark and protection of little children is a vital
safeguard of their rights and persons. It warns that no one can negligently cause injury to
a child of such tender years with impunity, by casting on his small shoulders the onerous
burden of proving his own freedom from negligence.”).

28
the common law and permit defendant to limit its liability involving children.74

Defendant has offered none.

IV. CONCLUSION

The relief impliedly sought by defendant requires the creation of a new public

policy for this state by modification of the common law. Although this Court has the

authority to create public policy through its management of the common law, we share

that authority with the Legislature. This Court has fewer tools for assessing the societal

costs and benefits of changing the common law than the Legislature, which is designed to

make changes in public policy and the common law. Moreover, defendant has failed to

identify any existing public policy supporting the change in the common law that it seeks;

the existing positive law and common law indicate that enforcing parental waivers is

contrary to the established public policy of this state. Accordingly, in matters such as

these, I am persuaded that the prudent practice for this Court is conservancy of the

common law.

Accordingly, I would decline to change the common law. I would affirm the

judgment of the Court of Appeals and remand the case for further proceedings consistent

with this opinion.

Robert P. Young, Jr.

74
I note that, even without a change in the common law rule, defendant has
alternatives for reducing its liability. For example, defendant’s waiver in this case
suggests a suitable, although perhaps less than optimal, alternative: parental indemnity.
A parent can contract on the parent’s own behalf to indemnify the defendant for any
losses arising from injuries his child suffers while participating in the activity offered by
the defendant.

29
 STATE OF MICHIGAN

SUPREME COURT

TRENT WOODMAN, a Minor, by his Next
Friend, SHEILA WOODMAN,

Plaintiff-Appellee,

v No. 137347

KERA LLC, doing business as BOUNCE
PARTY,

Defendant-Appellant.

HATHAWAY, J.

I concur with the result reached in Justice YOUNG’s opinion, that a preinjury

waiver signed by a parent on behalf of his or her minor child is unenforceable under

longstanding Michigan law, for the reasons stated in parts I, II, and III(A) of the opinion.

This rule has been embodied in Michigan law for more than a century, and I find no

compelling reason to depart from it now.

The public policy concerns expressed by the concurring opinions in the Court of

Appeals presume that such waivers have been enforceable in the past and that if we

suddenly stop enforcing them, children’s sports programs and activities and the

businesses that run them will somehow be fundamentally undermined. However, the fact

is that preinjury waivers have never been enforced or considered enforceable by the
courts of this state.1 Despite the fact that Michigan does not enforce these waivers,

children still play football, engage in sports activities, and go to bounce parties, just as

they do in other states that do not enforce preinjury waivers.2

As noted in the remainder of Justice YOUNG’s opinion, there are compelling

public policy reasons not to depart from this historic rule.3 The purpose of the rule is to

protect minor children. The rule merely provides the same protections for minor children

in their preinjury status as in their postinjury status. The protections afforded injured

minor children seeking redress have long been embodied in our court rules, see MCR

2.420, as well as in our probate codes, see, e.g., MCL 700.5102, a provision of the

1
Please see the analysis contained in parts I, II, and III(A) of Justice YOUNG’s
opinion.
2
See, e.g., Williams v United States, 660 F Supp 699 (ED Ark, 1987); Hawaii Rev
Stat 663-10.95 and 663-1.54 (2006); Leong v Kaiser Foundation Hosps, 71 Hawaii 240;
788 P2d 164 (1990); Douglass v Pflueger Hawaii, Inc, 110 Hawaii 520; 135 P3d 129
(2006); Meyer v Naperville Manner, Inc, 262 Ill App 3d 141; 634 NE2d 411 (1994);
Wreglesworth v Arctco, Inc, 316 Ill App 3d 1023; 738 NE2d 964 (2000); La Civ Code art
2004 (2006); Costanza v Allstate Ins Co, 2002 US Dist LEXIS 21991 (ED La, 2002);
Rice v American Skiing Co, 2000 Me Super LEXIS 90 (Me Super Ct, 2000); Hojnowski v
Vans Skate Park, 187 NJ Super 323; 901 A2d 381 (2006); Childress v Madison Co, 777
SW2d 1 (Tenn Ct App, 1989); Munoz v II Jaz Inc, 863 SW2d 207 (Tx App, 1993);
Fleetwood Enterprises, Inc v Gaskamp, 280 F3d 1069 (CA 5, 2002); Hawkins v Peart, 37
P3d 1062 (Utah, 2001); Hiett v Lake Barcroft Community Ass’n, Inc, 244 Va 191; 418
SE2d 894 (1992); Scott v Pacific West Mountain Resort, 119 Wash 2d 484; 834 P2d 6
(1992); Johnson v New River Scenic Whitewater Tours, Inc, 313 F Supp 2d 621 (SD W
Va, 2004).
3
While I agree with the well-articulated public policy reasons expressed by Justice
YOUNG, I do not join in Justice YOUNG’s assertion that the rule prohibiting parental
waivers can be circumvented by a parental indemnity agreement. This issue is not before
the Court, and the assertion would be, at best, dicta. More importantly, if it had been an
issue here, it should be recognized that a parental indemnity agreement would directly
contravene the compelling policy reasons that exist for the historic rule.

2
Estates and Protected Individuals Code. There is no question that a parent may not

resolve his or her child’s claim or sign a release on the child’s behalf without court

approval after the child has been injured, and there simply is no justifiable reason to treat

preinjury releases any differently. The historic rule is a sensible, logical, and well-

reasoned approach that places greater emphasis on the protection of minor children than

on hypothetical business concerns that have not materialized in this or any other state that

has chosen to follow it.

KELLY, C.J., and WEAVER, J., concurred with HATHAWAY, J.

3
 STATE OF MICHIGAN

SUPREME COURT

TRENT WOODMAN, a Minor, by his Next
Friend, SHEILA WOODMAN,

Plaintiff-Appellee,

v No. 137347

KERA LLC, doing business as BOUNCE
PARTY,

Defendant-Appellant.

KELLY, C.J.

I concur in full with Justice HATHAWAY and with parts I, II, and III(A) of Justice

YOUNG’s opinion. I write separately to touch on parental indemnity agreements in the

context of liability waivers involving children. Justice YOUNG takes the position that a

defendant can circumvent the unenforceability of a parental preinjury liability waiver

simply by entering into a separate indemnity agreement with the parent. In footnote 74 of

his opinion, he states:

I note that, even without a change in the common law rule,
defendant has alternatives for reducing its liability. For example,
defendant’s waiver in this case suggests a suitable, although perhaps less
than optimal, alternative: parental indemnity. A parent can contract on the
parent’s own behalf to indemnify the defendant for any losses arising from
injuries his child suffers while participating in the activity offered by the
defendant.

Justice YOUNG is the only one who has advanced this position and it has not been

adopted by this Court. I find his proposition problematic for several reasons.
 First, his discussion of the issue is unnecessary to resolve the case. Second,

neither of the parties advanced this argument, and this Court did not have a proper

opportunity to consider and pass on it. I would be hesitant to make such a sweeping

holding without having briefing on the matter. Also, the Court has not given due

consideration to how indemnity agreements by parents interact with parental preinjury

liability waivers.

Finally, the validity of such indemnity agreements is questionable. They would

require an injured child to seek recovery from his or her parent. Courts in a number of

states have held that such indemnity agreements are unenforceable because they produce

the same effect as parental preinjury liability waivers. That is, they enable a tortfeasor

who is negligent to shift financial responsibility for its tortious conduct to the parent of

the minor victim.1

The validity of such indemnity agreements is not answered in this case and is left

for another day.

Marilyn Kelly

1
See, e.g., Johnson v New River Scenic Whitewater Tours, Inc, 313 F Supp 2d 621
(SD W Va, 2004) (holding that an indemnity agreement with defendant whitewater
rafting company was unenforceable and against public policy).

2
 STATE OF MICHIGAN

SUPREME COURT

TRENT WOODMAN, a Minor, by his Next
Friend, SHEILA WOODMAN,

Plaintiff-Appellee,

v No. 137347

KERA LLC, doing business as BOUNCE
PARTY,

Defendant-Appellant.

CAVANAGH, J.

I would affirm the Court of Appeals’ decision that defendant was not entitled to

summary disposition on the basis of the release. I would do so, however, on different

grounds. The actual language of the release at issue did not waive the minor child’s

claims. Instead, the release only waived the claims of the “undersigned,” and the

undersigned was the child’s father. Although I believe that whether a parental preinjury

liability waiver is valid and enforceable is an issue of jurisprudential significance, I find it

unnecessary to reach that issue in this case.1 Accordingly, I would vacate the portion of

the judgment of the Court of Appeals that held that preinjury waivers effectuated by

1
For the reasons stated in Chief Justice KELLY’s opinion, I would also find it
unnecessary to address whether a defendant could circumvent a parental preinjury
liability waiver by entering into a separate indemnity agreement with a parent.
parents on behalf of their minor children are not presumptively enforceable, and I would

remand the case to the trial court for further proceedings.

Michael F. Cavanagh

2
 STATE OF MICHIGAN

SUPREME COURT

TRENT WOODMAN, a Minor, by his Next
Friend, SHEILA WOODMAN,

Plaintiff-Appellee,

v No. 137347

KERA LLC, doing business as BOUNCE
PARTY,

Defendant-Appellant.

MARKMAN, J.

I agree that defendant was not entitled to summary disposition on the grounds that

the actual language of the waiver at issue did not waive the minor’s claims. Accordingly,

I would affirm the judgment of the Court of Appeals. However, I would vacate the

analysis that concluded that a parent cannot waive a child’s negligence claim

prospectively in order to participate in voluntary recreational activities. In that regard,

the Court of Appeals answered a question that was not properly before it given the actual

terms of the release. The lead opinion and those of Justice HATHAWAY and Chief Justice

KELLY do the same. Therefore, I disagree with this conclusion of law. If this issue were

properly before us-- and it is not-- I would clarify that Michigan’s common law does

allow the enforcement of such a waiver. That is, if the release in this case had actually

contained effective language indicating that the father was waiving his son’s negligence

claims prospectively, I would conclude that Michigan common law permits the
enforcement of that waiver to the same extent as if the father himself had signed a

preinjury waiver of his own rights as a condition of participating in a sporting or

recreational activity.1

I. THE RELEASE

As recognized in the lead opinion, Jeffrey Woodman signed a form so that his son

could participate in a recreational activity. The pertinent part of the release, which only

the father signed, provided:

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.

Thus, the release stated plainly that the “undersigned” (who was the father), in

consideration for waiving his claim against defendant, would be allowed to participate in

1
Our caselaw is replete with instances in which waivers signed by adults have
been enforced. See, e.g., Kircos v Goodyear Tire & Rubber Co, 108 Mich App 781; 311
NW2d 139 (1981) (pit crew members could not recover from a sports car club for their
injuries because they had signed an applicable waiver); Paterek v 6600 Ltd, 186 Mich
App 445; 465 NW2d 342 (1990) (softball field owner’s agreement to let a player play
softball on its field was adequate consideration to support the player’s release of the
owner from liability); Dombrowski v City of Omer, 199 Mich App 705; 502 NW2d 707
(1993) (release executed by a contestant in a “rope climb” across a river was not subject
to rescission on the ground of mutual mistake as a result of the contestant’s signing it
without reading it, absent any allegation of misrepresentation); Skotak v Vic Tanny Int’l,
Inc, 203 Mich App 616, 617-618; 513 NW2d 428 (1994) (“It is not contrary to this state’s
public policy for a party to contract against liability for damages caused by its own
ordinary negligence.”); and Lamp v Reynolds, 249 Mich App 591, 594; 645 NW2d 311
(2002) (“[A]lthough a party may contract against liability for harm caused by his
ordinary negligence, a party may not insulate himself against liability for gross
negligence or wilful and wanton misconduct.”).

2
any of defendant’s physical activities, which involved some element of personal risk.

While the child was identified as a “participant” at the bottom of the release, the only

waiver that actually occurred was by and for the “undersigned,” the father. Thus, the

actual language of the release simply did not waive any claims or rights of the minor,

whatever was purported to have been done and whatever issues the parties have

determined to litigate.

Remarkably, the justices comprising the majority do not see this as a barrier to

their opinions. Rather, they decide that if the document had been drafted to state that the

father was waiving his son’s potential claims-- which again it was not-- it would have

been unenforceable. This is a noteworthy pronouncement of law, but over the past 175

years or so, this Court has been in the habit of uttering such pronouncements only in

response to actual and not hypothetical disputes. We have been in the habit of viewing

an actual dispute as a condition for the exercise of our “judicial power.” Const 1963, art

6, § 1. To decide a hypothetical dispute is the equivalent of issuing an advisory opinion,

which, with narrow constitutional exceptions, is beyond the scope of this judicial power.2

In effect, the justices in the majority assert the invalidity of a contract into which

the parties never entered. This constitutes nothing less than reaching out to decide a non-

controversy-- indeed, in this case, a false controversy. The opinions of the justices in the

2
Const 1963, art 3, § 8, authorizes this Court to issue advisory opinions
concerning the constitutionality of legislation, but only upon the request of either house
of the Legislature or the Governor and only after it has been enacted into law but not yet
taken effect.

3
majority, whatever their substantive merits, constitute little more than nonbinding dicta

and more properly belong in a law review rather than a volume of the Michigan Reports.

The lead opinion suggests that plaintiff “abandoned” or “waived” the argument

that the release did not actually waive the son’s claims because, although plaintiff

preserved this issue in the trial court, he did not preserve it in the Court of Appeals.

While I certainly agree that an appellate court will not ordinarily review an issue that has

been abandoned or waived, such review is allowed when it is “necessary to a proper

determination of the case . . . .” Dation v Ford Motor Co, 314 Mich 152, 160-161; 22

NW2d 252 (1946); see also Paramount Pictures Corp v Miskinis, 418 Mich 708, 731;

344 NW2d 788 (1984); Prudential Ins Co of America v Cusick, 369 Mich 269, 290; 120

NW2d 1 (1963).3 This could not be more clearly the situation here. The individual

decision of a litigant not to pursue an available argument, or to relinquish an available

issue, cannot impose on this Court an obligation to operate upon a false premise, in this

case that a contract says what it clearly does not say.4 That is, neither an individual

3
See also MCR 7.316(A)(3), providing that this Court may “permit the reasons or
grounds of appeal to be amended.” If ever there was a circumstance compelling the
application of this rule, it is here.
4
See, e.g., Mack v Detroit, 467 Mich 186, 197; 649 NW2d 47 (2002), in which the
defendant “city abandoned its assertion of governmental immunity to this Court,” yet this
Court nevertheless held that the city was entitled to prevail because of governmental
immunity. As this Court explained:

[A]ddressing a controlling legal issue despite the failure of the
parties to properly frame the issue is a well understood judicial principle.
See Legal Services Corp v Velazquez, 531 US 533, 549, 558; 121 S Ct
1043; 149 L Ed 2d 63 (2001) (majority and dissent both stating that
whether to address an issue not briefed or contested by the parties is left to

4
litigant nor even both litigants acting jointly can require this Court to turn a blind eye

toward the actual words of a dispositive document. No matter what the parties’

determination to have a particular issue decided, they cannot impose on this Court the

obligation to pretend that A does not say A; no litigant can obligate this Court to ignore

what is true and accept what is false.

Thus, in deciding whether a parent can waive a child’s claims before the injury,

the justices in the majority are compelled to rewrite what is a straightforward release.

However, the proper rule is that the scope of a release is controlled by its language, and

we construe such language as written. See Batshon v Mar-Que Gen Contractors, Inc,

463 Mich 646, 649-650; 624 NW2d 903 (2001); McDonald v Farm Bureau Ins Co, 480

Mich 191, 197-198; 747 NW2d 811 (2008). The justices in the majority construe the

release not “as written,” but as rewritten.

For these reasons, I would affirm the judgment of the Court of Appeals that held

that defendant was not entitled to summary disposition, but I would vacate the Court of

Appeals’ analysis addressing a parent’s ability to waive a child’s negligence claims

prospectively. I thus dissent from the decision to rewrite a contract in order to answer a

question not raised by the actual contract.

discretion of the Court); Seattle v McCready, 123 Wash 2d 260, 269; 868
P2d 134 (1994) (indicating that the court “is not constrained by the issues
as framed by the parties”). [Id. at 207-208.]

5
 II. THE COMMON LAW

A. NATURE OF THE COMMON LAW

The common law originated in the decisions of English judges, starting in the

early Middle Ages, and developed over the ensuing centuries. Hall, ed, The Oxford

Companion to American Law, (New York: Oxford University Press, 2002), p 125. Sir

Edward Coke explained that the common law was the “custom of the realm.” Coke, The

Complete Copyholder, p 70 (1641). He indicated that if a custom was “current

throughout the commonwealth,” it was a part of the common law. Id. Sir William

Blackstone similarly discussed “[g]eneral customs; which are the universal rule of the

whole kingdom, and form the common law.” 1 Blackstone, Commentaries on the Laws

of England, p 67.

The “common law and its institutions were systemically extended to America, at

least insofar as appropriate for frontier conditions.” Oxford Companion, p 127. This was

true in particular in Michigan where each of its constitutions (starting in 1835) generally

adopted the common law.5 Given that the common law develops through judicial

decisions, it has been described as “judge-made law.” Placek v Sterling Hts, 405 Mich

638, 657; 275 NW2d 511 (1979). As this Court explained in Bugbee v Fowle, the

5
See Const 1835, Schedule, § 2; Stout v Keyes, 2 Doug 184, 188-189 (Mich,
1845), Const 1850, Schedule, § 1, Const 1908, Schedule, § 1, and Const 1963, art 3, § 7
(“The common law and the statute laws now in force, not repugnant to this constitution,
shall remain in force until they expire by their own limitations, or are changed, amended
or repealed”). As noted in Bean v McFarland, 280 Mich 19, 21; 273 NW 332 (1937),
“the retention of the common law [in the constitution] is expressly conditioned upon right
to abrogate the same or any part thereof.” Thus, whenever the Legislature enacts a
statute that is inconsistent with the common law, the statute supersedes the common-law
rule. Positive law trumps common law.

6
common law “‘is but the accumulated expressions of the various judicial tribunals in their

efforts to ascertain what is right and just between individuals in respect to private

disputes.’” Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936), quoting Kansas v

Colorado, 206 US 46, 97; 27 S Ct 655; 51 L Ed 956 (1907).

The common law, however, is not static. By its nature, it adapts to changing

circumstances. See Oliver Wendell Holmes, Jr., The Common Law (New York: Dover

Publications, Inc., 1991), p 1 (noting that the common law is affected by “the felt

necessities of the time, the prevalent moral and political theories, [and] intuitions of

public policy” and that it “embodies the story of a nation's development through many

centuries”). And as this Court stated in Beech Grove Investment Co v Civil Rights

Comm:

It is generally agreed that two of the most significant features of the
common law are: (1) its capacity for growth and (2) its capacity to reflect
the public policy of a given era.

* * *

“The common law does not consist of definite rules which are
absolute, fixed, and immutable like the statute law, but it is a flexible body
of principles which are designed to meet, and are susceptible of adaption to,
among other things, new institutions, public policies, conditions, usages
and practices, and changes in mores, trade, commerce, inventions, and
increasing knowledge, as the progress of society may require. So, changing
conditions may give rise to new rights under the law . . . .” [Beech Grove
Investment Co v Civil Rights Comm, 380 Mich 405, 429-430; 157 NW2d
213 (1968), quoting CJS, Common Law, § 2, pp 43-44.]

The common law is always a work in progress and typically develops

incrementally, i.e., gradually evolving as individual disputes are decided and existing

common-law rules are considered and sometimes adapted to current needs in light of

7
changing times and circumstances. In re Arbitration Between Allstate Ins Co & Stolarz,

81 NY2d 219, 226; 597 NYS2d 904; 613 NE2d 936 (1993) (noting that the law evolves

through the “incremental process of common-law adjudication as a response to the facts

presented”);6 see also People v Aaron, 409 Mich 672, 727; 299 NW2d 304 (1980)

(“Abrogation of the felony-murder rule is not a drastic move in light of the significant

restrictions this Court has already imposed. Further, it is a logical extension of our

decisions . . . .”).

B. COMMON LAW AUTHORITY

The lead opinion acknowledges that this Court “unquestionably” has the authority

to modify the common law.7 Ante at 2. This authority is traceable to Const 1963, art 3,

§ 7, which provides:

The common law and the statute laws now in force, not repugnant to
this constitution, shall remain in force until they expire by their own
limitations, or are changed, amended or repealed.

As stated in Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965) (opinion

by O’HARA, J.): “‘Amendment’ and ‘repeal’ refer to the legislative process. ‘Change’

6
See also Kestin, The bystander’s cause of action for emotional injury;
Reflections on the relational eligibility standard, 26 Seton Hall L R 512, 512 (1996)
(“Growth in the common law is incremental, often scarcely noticeable in the short run,
but inexorable when viewed in the long term.”); Davis v Moore, 772 A2d 204, 238 (DC,
2001) (Ruiz, J., dissenting) (“It cannot be forgotten that the incremental pace at which
common law develops, coupled with the increasing importance of statutory law, ensures
that cases where truly ‘new’ rules of common law are announced . . . will not frequently
occur.”).
7
This Court’s authority to alter the common law has also been described as
“axiomatic.” North Ottawa Community Hosp v Kieft, 457 Mich 394, 403 n 9; 578 NW2d
267 (1998).

8
must necessarily contemplate judicial change. The common law is not static, fixed and

immutable as of some given date.” Thus, the ability to alter the common law is

constitutionally vested in both the Legislature and the judiciary. There is no violation of

separation-of-powers principles under Const 1963, art 3, § 2, when the judiciary alters the

common law because that power is given to both branches to exercise through means and

procedures that are proper to each.8 The common law is, thus, law subject to continuing

judicial and legislative development.9

8
While this Court’s authority to alter civil common law is unquestioned, our
authority to alter criminal common law has been the subject of debate. See, e.g., In re
Lamphere, 61 Mich 105, 109; 27 NW 882 (1886) (“Whatever elasticity there may be in
civil matters, it is a safe and necessary rule that criminal law should not be tampered with
except by legislation.”). Lamphere was cited with approval in People v Riddle, 467 Mich
116, 126; 649 NW2d 30 (2002), yet notwithstanding Lamphere this Court has altered
criminal common law on several occasions. See, e.g., People v Stevenson, 416 Mich 383,
392; 331 NW2d 143 (1982) (rejecting the common-law “year and a day” rule and stating
that “no limitation upon this Court’s authority to ‘enlarge’ common-law criminal liability
appears in Const 1963, art 3, § 7 or can be fairly implied from its language”). In Aaron,
409 Mich at 733, this Court stated, “Today we exercise our role in the development of the
common law by abrogating the common-law felony-murder rule.” Further, in People v
Kevorkian, 447 Mich 436, 445; 527 NW2d 714 (1994), this Court rejected the common-
law definition of “murder” to the extent it could be read to encompass the act of
intentionally facilitating the commission of suicide. And in People v Kreiner, 415 Mich
372; 329 NW2d 716 (1982), we essentially held that the Michigan Rules of Evidence
constituted a codification of the rules of evidence that superseded common-law rules.
9
Although it is undeniably true that this Court’s exercise of the “judicial power”
generally involves declaring only what the law “is,” as opposed to what it “ought” to be,
Cameron v Auto Club Ins Ass’n, 476 Mich 55, 66; 718 NW2d 784 (2006), citing Marbury
v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803), the quasi-legislative exercise
that characterizes our common-law authority is an exception to this general rule.
Nonetheless, such common-law authority constitutes a traditional part of the exercise of
Michigan’s “judicial power,” just as it does in most states. Ultimately, the “judicial
power” of this Court is the sum of the powers that have been conferred upon us by our
laws and constitution.

9
 The lead opinion contends that this Court is less well positioned than the

Legislature to decide whether the common law should be altered.10 Although there may

well be instances in which this is true, and in which prudence would dictate that we defer

to the Legislature, I do not know why this should invariably be true.11 The common law

of parental waivers has been a matter of longstanding judicial interest in this state, the

legal rights of children is an issue well known to this Court in a wide variety of contexts,

10
Notwithstanding this assertion, I note that the author of the lead opinion has also
authored and joined opinions in which this Court has altered the common law, as have
other members comprising the majority in this case. See, e.g., Ritchie-Gamester v City of
Berkley, 461 Mich 73, 89; 597 NW2d 517 (1999); Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 606; 614 NW2d 88 (2000); James v Alberts, 464 Mich 12, 18;
626 NW2d 158 (2001). Moreover, in at least Ritchie-Gamester and James, the common
law was not merely being clarified, as it is here, but was clearly being altered. Why is the
Legislature the proper institution for addressing the common law in the instant case, but
not in those prior cases? The lead opinion provides no standards in this regard, and
indeed offers nothing more than the conclusion that the instant matter is better left for the
Legislature, even though for more than a century it has been a matter left to the judiciary.
11
The lead opinion accurately notes that this Court decides cases and
controversies involving individual parties. But it overstates its case when it asserts that
we do not give consideration to the views of nonparties. Indeed, justices routinely
remind attorneys arguing before this Court that the rule to be formulated by this Court in
both common-law and non-common-law cases must be just and reasonable, not only for
their individual case, but also for the 100 or 1,000 forthcoming cases that will involve
similar legal issues. Moreover, we routinely receive amicus curiae briefs from interested
individuals and organizations, just as we have in this case. If the lead opinion’s point is
that our common-law decisions require justices to think along somewhat different lines
than is required by our other areas of responsibility, I concur. If, however, its point is to
suggest the wisdom of retreating from a responsibility that has belonged to Anglo-
American courts for 500 years or so, I respectfully disagree. In any event, the lead
opinion does reach its conclusions about this case on the basis of its author’s own views
of the common law. And further, if this Court did nothing at all to maintain the common
law, existing common law would remain in place-- at least until the Legislature decided,
if ever, to alter it-- and it would still have to be interpreted by some court, just as occurred
here. It just happens in the instant case that the lead opinion is apparently in agreement
with the interpretation of the Court of Appeals.

10
the judiciaries of most other states have addressed the common law of parental waivers,

and the immediate dispute involves only whether to clarify, or ‘fine-tune’ at the margins,

a common-law rule of considerable vintage. Each of these factors implicates exactly the

kind of decision-making that typifies the evolution of the common law. Our constitution

gives the judiciary the authority to change the common law because the common law is

“judge-made law.” Placek, 405 Mich at 657. And it is well recognized that rules that

were “judge-invented” can be “judge-reinvented,” “judge-uninvented,” or, as I believe is

required in this case, “judge-clarified.” See Montgomery v Stephan, 359 Mich 33, 49;

101 NW2d (1960). As was stated in Moning v Alfono, 400 Mich 425, 436; 254 NW2d

759 (1977): “The law of negligence was created by common-law judges and, therefore, it

is unavoidably the Court’s responsibility to continue to develop or limit the development

of that body of law absent legislative directive.”

I would further observe that in Henry v Dow Chem Co, 473 Mich 63, 83; 701

NW2d 684 (2004), which the lead opinion cites, this Court explained that it is “the

principal steward of Michigan’s common law.”12 (Emphasis added.) And in Burns v

Van Laan, 367 Mich 485, 494; 116 NW2d 873 (1962), we stated, “In that great field

where the common law grows or withers the judiciary is the primary actor.” (Emphasis

12
See also Gruskin v Fisher, 405 Mich 51, 58; 273 NW2d 893 (1979) (noting that
“it is for this Court to decide whether a common-law rule shall be retained unless the
Legislature states a rule that is inconsistent with or precludes a change in the common-
law rule”).

11
added.)13 Then, in Placek, 405 Mich at 657, 659, we reiterated that this Court may alter

the common law through its decisions: “[W]hen dealing with judge-made law, this Court

13
This Court, in lieu of the Legislature, has altered the common law over the last
40 years on numerous occasions. See, e.g., Daley v LaCroix, 384 Mich 4, 12-13; 179
NW2d 390 (1970) (rejecting the “impact” requirement for common-law claims for
emotional distress proximately caused by a defendant’s negligent conduct); Womack v
Buchhorn, 384 Mich 718, 724-725; 187 NW2d 218 (1971) (rejecting the common-law
disallowance of recovery for negligently inflicted prenatal injury); Plumley v Klein, 388
Mich 1; 199 NW2d 169 (1972) (abolishing the common-law rule that children cannot
bring a tort cause of action against their parents); Pittman v Taylor, 398 Mich 41; 247
NW2d 512 (1976) (abrogating the common-law doctrine of state governmental
immunity); Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977) (abolishing Lord
Mansfield’s rule, which prevented spouses from testifying that they had no access to each
other at the time a child was conceived to prove the husband’s lack of paternity);
Gruskin, 405 Mich at 58, 70-71 (rejecting the common-law rule that forfeiture of a land
contract is considered an election of remedy); Placek, 405 Mich at 656-657 (abolishing
common-law contributory negligence as a total bar to recovery and adopting pure
comparative negligence); Toussaint v Blue Cross & Blue Shield of Mich, 408 Mich 579,
615; 292 NW2d 880 (1980) (making employer policies and procedures a legally
enforceable part of an employment relationship if such policies and procedures instill
“legitimate expectations” of job security); Aaron, 409 Mich at 723 (abolishing the
common-law felony-murder rule); Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981)
(expanding the common law to permit a child to recover money damages for the lost
society and companionship of a negligently injured parent, notwithstanding the argument
that the Legislature was in the best position to determine whether this new cause of action
should be instituted and what limits should be placed on it); Kreiner, 415 Mich at 377
(holding that Michigan’s common-law tender-years rule, which permitted excusable
delay in reporting certain crimes against minors, did not survive the adoption of MRE
803[2]); Stevenson, 416 Mich at 392 (abolishing the common-law year-and-a-day rule in
homicide cases); Kevorkian, 447 Mich at 494 (rejecting the common-law definition of
“murder” to the extent it could be read to encompass intentionally providing the means
by which a person commits suicide); Bertrand v Alan Ford, Inc, 449 Mich 606; 537
NW2d 185 (1995) (applying the common-law open-and-obvious-danger doctrine to
claims of premises liability); Ritchie-Gamester, 461 Mich at 89 (specifically modifying
the common law of torts regarding recreational activities by adopting reckless
misconduct as the minimum standard of care for co-participants in recreational
activities); Stitt, 462 Mich at 606 (holding, as a matter of premises liability law, that
church visitors are not invitees); and James, 464 Mich at 18 (abolishing the common-law
“volunteer” doctrine); see also Ghaffari v Turner Constr Co, 473 Mich 16, 25-26; 699
NW2d 687 (2005) (clarifying that the open-and-obvious-danger doctrine has no

12
in the past has not disregarded its corrective responsibility in the proper case. . . . [The

courts] are certainly in as good, if not better, a position to evaluate the need for change,

and to fashion that change.” In People v Stevenson, 416 Mich 383, 390; 331 NW2d 143

(1982), we stated, “This Court has often recognized its authority, indeed its duty, to

change the common law when change is required.” And in Adkins v Thomas Solvent Co,

440 Mich 293, 317; 487 NW2d 715 (1992), we asserted: “When appropriate, we have not

hesitated to examine common-law doctrines in view of changes in society’s mores,

institutions, and problems, and to alter those doctrines where necessary.”

For these reasons, I reject the Court of Appeals’ statement that “we can neither

judicially assume nor construct exceptions to the common law extending or granting the

authority to parents to bind their children to exculpatory agreements. Thus, the

designation or imposition of any waiver exceptions is solely within the purview of the

Legislature.” Woodman v Kera, LLC, 280 Mich App 125, 149; 760 NW2d 641 (2008)

(opinion by TALBOT, J.). Far more accurately, as Judge BANDSTRA stated, the issue is for

applicability to a claim under the common-work-area doctrine). And, concomitantly,
there have been occasions on which this Court has rejected requests to alter the common
law. See, e.g., In re Certified Question, 479 Mich 498, 521-522; 740 NW2d 206 (2007)
(declining to expand the common law to impose a duty on a landowner to anybody who
comes into contact with somebody who has been on the landowner’s property because it
would expand traditional tort concepts beyond manageable bounds); Wold Architects &
Engineers v Strat, 474 Mich 223, 236; 713 NW2d 750 (2006) (declining to reject
Michigan’s common-law arbitration-unilateral-revocation rule, being “unpersuaded that
the time is ripe to change” the rule); Henry, 473 Mich at 68, 89 (“[a]lthough . . .
recogniz[ing] that the common law is an instrument that may change as times and
circumstances require,” declining to expand the common law to recognize a medical
monitoring cause of action, noting that it might “lead to dramatic reallocation of societal
benefits and burdens”).

13
“either the Michigan Legislature or our Supreme Court . . . .” Id. at 157 (BANDSTRA, J.,

concurring) (emphasis added).

C. COMMON-LAW PRINCIPLES

The lead opinion correctly states that when deciding whether to clarify or change

the common law, this Court should consider existing sources of public policy, such as

statutes and other court decisions setting forth common-law doctrines.14 As a starting

point, we inquire whether the Legislature has already spoken regarding the specific

issue.15 If not, we then inquire whether the Legislature has preempted a particular area of

14
As this Court emphasized in Terrien v Zwit, 467 Mich 56, 67; 648 NW2d 602
(2002): “The public policy of Michigan is not merely the equivalent of the personal
preferences of a majority of this Court; rather, such a policy must ultimately be clearly
rooted in the law.” The focus of the judiciary must ultimately be on the policies that, in
fact, have been adopted by the public through our various legal processes and that are
reflected in our state and federal constitutions, our statutes, the common law, and
administrative rules and regulations. Id. at 71 n 11.
15
“[L]egislative amendment of the common law is not lightly presumed.” Wold
Architects, 474 Mich at 233. Rather, the Legislature “should speak in no uncertain
terms” when it exercises its authority to modify the common law. Hoerstman Gen
Contracting, Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006). See also Burns, 367
Mich at 492 n 5, in which we approvingly quoted Judge Benjamin N. Cardozo:

“When the legislature has spoken, and declared one interest superior
to another, the judge must subordinate his personal or subjective estimate of
value to the estimate thus declared. He may not nullify or pervert a statute
because convinced that an erroneous axiology [set of values] is reflected in
its terms.” [Citation omitted.]

I note further that the Legislature has forbidden prospective waivers of certain
rights. For example, the Worker’s Disability Compensation Act states: “No [preinjury]
agreement by an employee to waive his rights to compensation under this act shall be
valid . . . .” MCL 418.815. The Michigan Employment Security Act states: “No
agreement by an individual to wave [sic], release, or commute his rights to benefits or
any other rights under this act from an employer shall be valid.” MCL 421.31. And the
teacher tenure act provides: “No teacher may waive any rights and privileges under this

14
the law.16 When we determine that the Legislature has not specifically spoken, and has

not preempted the adoption or revision of a new common-law rule, we consider whether

a clarification or change of the common law is warranted in light of a variety of factors

discussed herein.

As noted, “we have not hesitated to examine common-law doctrines in view of

changes in society’s mores, institutions, and problems, and to alter those doctrines where

necessary.” Adkins, 440 Mich at 317. But as counseled in People v Kevorkian, 447 Mich

436, 482 n 60; 527 NW2d 714 (1994) (opinion by CAVANAGH, C.J., and BRICKLEY and

GRIFFIN, JJ.), citing Judge Cardozo’s The Nature of the Judicial Process:

The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of
his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated
to the primordial necessity of order in the social life. Wide enough in all
conscience is the field of discretion that remains. [Quotation marks and
citations omitted.][17]

act in any contract or agreement made with a controlling board.” MCL 38.172. Here,
however, the Legislature has in no way forbidden releases in which a parent
prospectively waives a child’s negligence claims.
16
See, e.g., Jackson v PKM Corp, 430 Mich 262, 278; 422 NW2d 657 (1988)
(“The Legislature intended the dramshop act to afford the exclusive remedy for injuries
arising out of an unlawful sale, giving away, or furnishing of intoxicants thereby
preëmpting all common-law actions arising out of these circumstances.”); Hoerstman
Gen Contracting, 474 Mich at 74 (“. . . Article 3 of the [Uniform Commercial Code] is
comprehensive. It is intended to apply to nearly every situation involving negotiable
instruments.”).
17
Concerning the common law, Oliver Wendell Holmes, Jr., stated that it is
predicated, not upon logic, but upon experience. Holmes, The Common Law, p 1.

15
It is also the case that “endeavoring to uncover the doctrinal underpinnings of common-

law rules can be an effective-- if not essential-- way of determining whether a suggested

[clarification or] change [to a common-law rule] is warranted.” Young, A judicial

traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 309 (2004); see also

Montgomery, 359 Mich at 49 (“The reasons for the old rule no longer obtaining, the rule

falls with it.”);18 James v Alberts, 464 Mich 12, 17; 626 NW2d 158 (2001) (abolishing

the volunteer doctrine because “the fellow-servant rule, which created the need for the

volunteer doctrine, was no longer part of our law”). Thus, when the common-law

rationale for a particular rule has dissipated, the rule itself may be subject to revision or

change.

Courts also consider other relevant, though not directly applicable, statutes in

determining whether to clarify or change the common law because

“legislative establishment of policy carries significance beyond the
particular scope of each of the statutes involved. The policy thus

18
Judge Cardozo, in his William L. Storrs Lectures before the Yale University
Law School in 1921, had this to say:

There should be greater readiness to abandon an untenable position
when the rule to be discarded may not reasonably be supposed to have
determined the conduct of the litigants, and particularly when in its origin it
was the product of institutions or conditions which have gained a new
significance or development with the progress of the years. [Cardozo, The
Nature of the Judicial Process (New Haven: Yale University Press, 1921),
p 151.]

In the case at bar, there is no hint that either party operated as if the common-law
rule adopted here by a majority of justices (that a parent may not waive his or her child’s
negligence claim prospectively in order to participate in a sporting or recreational
activity) determined their conduct. Indeed, the precise opposite is true: a waiver
purporting to have exactly the opposite effect was signed.

16
 established has become itself a part of our law, to be given its appropriate
weight not only in matters of statutory construction but also in those of
decisional law.” [Moning, 400 Mich at 453-454, quoting Moragne v States
Marine Lines, Inc, 398 US 375, 390-391; 90 S Ct 1772; 26 L Ed 2d 339
(1970).]

Thus, we also look to (1) actual social customs and practices, and changes in such

customs and practices, (2) the doctrinal underpinnings of a common-law rule and their

continuing relevance, (3) related statutes and case-law, and (4) the extent to which

existing rules may reasonably be supposed to have influenced or determined the conduct

of the litigants. But in the final analysis, we ask ourselves, what common-law rule would

best serve the interests of Michigan citizens while taking into consideration the prevailing

customs and practices of the people?19

III. PARENTAL PREINJURY WAIVERS

The justices in the majority assert that under existing Michigan common law, a

preinjury release signed by a parent waiving a child’s negligence claim in order to enable

that child to participate in a sporting or recreational activity is unenforceable. However,

they do not cite a single Michigan case holding that a preinjury parental waiver is

19
As stated in Stitt, 462 Mich at 607 “[I]n exercising our common-law authority,
our role is not simply to ‘count heads’ but to determine which common-law rules best
serve the interests of Michigan citizens.” The lead opinion asks whether a parental
preinjury waiver is “ever” in the best interests of a child who becomes injured. Ante at
22-23. However, the proper question would take into consideration the interests of all
children whose parents sign a preinjury waiver, as well as the interests of all children
whose access to sporting or recreational activities might be adversely affected by rule the
majority favors, not merely those very few children whose parents have signed a
preinjury waiver and who later suffer an injury. If we could look into the future and
know which children will, in fact, be injured after a preinjury waiver has been signed, we
would, of course, have to conclude that it would have been better if it had not been
signed. The lead opinion’s is a misleading and skewed question. As we stated in Stitt,
our inquiry should be what rule best serves Michigan’s citizens in general.

17
unenforceable.20 Instead, they only cite cases involving parental waivers of existing

claims. Until today, Michigan’s common-law rule against parental waivers has only been

applied to the latter claims. I would not, as do the justices comprising the majority,

extend our common-law rule against postinjury parental waivers to preinjury parental

waivers. These waivers are very different.

The trial court held that the preinjury waiver here was enforceable, specifically

noting the absence of “any Michigan case which says that a parent who signs a waiver

like this one prior to a child engaging in an activity is engaging in an act which is a legal

nullity.” Similarly, Judge BANDSTRA correctly stated, “There is no Michigan precedent

explicitly discussing whether the postinjury rule against parental waivers should apply in

a preinjury case.” Woodman, 280 Mich App at 157 (BANDSTRA, P.J., concurring). And

Judge SCHUETTE also correctly remarked upon “the dearth of preinjury, parental-waiver-

of-liability cases in Michigan . . . .” Id. at 163 (SCHUETTE, J., concurring).

If the justices who make up the majority are correct that current Michigan

common law precludes the enforcement of preinjury parental waivers, then the lack of

any earlier decision actually stating this proposition is, to say the least, noteworthy,

especially given that such waivers have been commonplace in this state and our country

20
Justice HATHAWAY’s opinion states, “[T]he fact is that preinjury waivers have
never been enforced or considered enforceable by the courts of this state.” Ante at 1-2.
But also like the lead opinion, she does not cite a single Michigan case in which a
preinjury waiver of a child’s negligence claim has been deemed unenforceable.
Obviously, neither of the parties in the instant case was similarly apprised that preinjury
waivers have never been enforced or considered enforceable. Nor were the countless
numbers of sporting and recreational providers and the parents of children participating in
sporting and recreational activities who have signed preinjury waivers over the decades.
Nor, for that matter, was the trial court judge or two judges of the Court of Appeals.

18
for decades. The lead opinion rightly states, “The underlying facts are simple and likely

familiar to many parents with young children.” Ante at 3 (emphasis added). Doubtless,

the facts are “likely familiar” precisely because generations of parents have routinely

been confronted with such waivers as a condition to their children’s participation in

sporting and recreational activities. As Judge SCHUETTE observed: “[A]n immense

amount of youth activities-- church groups, Boy Scouts, sports camps of all kinds,

orchestra and theatrical events, and countless school functions-- run and operate on

release and waiver-of-liability forms for minor children.” Id. at 163-164 (SCHUETTE, J.,

concurring). In view, therefore, of the facts that (1) preinjury parental waivers have been

ubiquitous in this state for decades, enabling children to participate in a wide array of

sporting and recreational activities that might otherwise not be available, and (2) there is

no Michigan case that has ever held that a parental preinjury waiver is unenforceable, or

otherwise prohibited or contrary to public policy, what exactly is the basis for the

confident assertion by a majority of justices that such waivers are unenforceable in this

state?

The lead opinion correctly observes that in McKinstry v Valley Obstetrics-

Gynecology Clinic, PC, 428 Mich 167, 192-193; 405 NW2d 88 (1987), this Court set

forth “the common-law rule that a parent has no authority to waive, release, or

compromise claims by or against a child.” This statement, however, was made in the

course of an opinion that held that a particular statute created an exception to this

common-law rule, and the cases cited in McKinstry in support of this rule all involved

existing claims. McKinstry did not assert that the common-law rule applies to preinjury

19
parental waivers, and it did not hold that such waivers are unenforceable. To make the

point as clearly as possible, until the instant Court of Appeals decision, no existing

Michigan case had held that the rule barring parental waivers applied in the preinjury

context, and none had applied the rule in such a context, notwithstanding the familiarity

of such waivers in this state. Thus, the precise question before this Court is genuinely an

issue of first impression in this state.

IV. APPLICATION OF THE COMMON-LAW

On the basis of the following considerations, I believe that the common law in our

state should be clarified to hold that parental preinjury waivers are enforceable: (1)

statutes and caselaw that have enhanced the legal autonomy of minors, (2) statutes and

caselaw that have recognized parents’ authority to undertake important decisions

regarding their children, (3) decisions of the United States Supreme Court that have

‘constitutionalized’ the rights of fit parents to undertake important decisions regarding

their children, (4) statutes and caselaw that have granted protections to recreational

providers, (5) freedom of contract principles, (6) evolution of the litigative environment

in recent decades, and (7) persuasive decisions from other jurisdictions.

A. AUTHORITY OF MINORS

The lead opinion acknowledges six statutory exceptions to the rule that a minor

lacks the capacity to contract. Ante at 8 n 14. Despite this list, however, the justices in

the majority give no apparent weight to these exceptions. In reality, there are a far

greater number of statutory exceptions to the two common-law rules that form the basis

20
of the decision here, namely that (1) a child cannot bind himself or herself by contract

and (2) a parent cannot bind a child by contract.

Concerning the common-law rule that a child cannot bind himself or herself by

contract, the lead opinion acknowledges the common-law exception that a child can do so

by a contract for necessaries.21 It also notes a statutory exception, MCL 600.1403, that

provides that an infancy defense will not be recognized for breach of contract if a minor

willfully misrepresented his or her age when entering into a contract. Under the common

law, a child was not considered an adult until age 21, but our Legislature reduced this age

to 18 in 1971,22 and for criminal matters, the effective age of majority is now 17.23

21
Publishers Agency, Inc v Brooks, 14 Mich App 634; 166 NW2d 26 (1968)
(recognizing that minors are liable for contracts to purchase necessaries).
22
The Age of Majority Act, MCL 722.51 et seq., effective January 1, 1972. Under
MCL 722.52(1), a person who attains the age of 18 “is an adult of legal age for all
purposes whatsoever, and shall have the same duties, liabilities, responsibilities, rights,
and legal capacity as persons heretofore acquired at 21 years of age.” But one still must
be 21 in order to lawfully purchase or consume alcoholic beverages under an amendment
of our constitution that was adopted in 1978. Const 1963, art 4, § 40; see MCL
722.52(1).
23
MCL 712A.2(a)(1) provides that the family division of circuit court has
“[e]xclusive original jurisdiction superior to and regardless of the jurisdiction of another
court” in proceedings concerning minors under the age of 17 who violated a municipal
ordinance or a state or federal law. Indeed, the common law’s solicitude toward minors
has been diminished dramatically with respect to criminal law. Pursuant to MCL
769.1(1), a court must sentence a juvenile convicted of any one of 12 specified serious
felonies in the same manner as an adult. See also MCR 6.931(A). In 1996, the Michigan
Legislature amended the state’s juvenile code, allowing a child of any age to be tried and
sentenced in the family division of circuit court in the same manner as an adult. This
procedure may take place either at the discretion of the prosecutor for certain “specified
juvenile violations,” MCL 712A.2d(1), or by order of the court following a request by the
prosecutor and a hearing for any other offense, MCL 712A.2d(2). In 1997, an 11 year
old was charged by the prosecutor as an adult, pursuant to this statute, with first-degree

21
 The common-law rule that a child is incompetent to enter into a contract has other

exceptions. As a result of legislation,24 minors can now enter into enforceable contracts

in these additional situations: (1) upon being emancipated by the family division of

circuit court,25 (2) upon getting married,26 (3) upon entering into active duty with the

United States military,27 (4) in order to open a savings account,28 (5) in order to receive

premeditated murder, assault with intent to murder, and two counts of felony-firearm.
See People v Abraham, 234 Mich App 640; 599 NW2d 736 (1999); People v Abraham,
256 Mich App 265; 662 NW2d 836 (2003). Indeed, we are told that the Michigan
Department of Corrections currently holds 146 defendants sentenced to life without the
possibility of parole who were 16 or younger when they committed their offenses. Note:
A second chance: Michigan’s progressive shift in social policy to rehabilitate its mentally
ill and juvenile defendants, 86 U Det Mercy L R 559, 565 (2009).
24
The lead opinion cites MCL 600.1404(2) (educational loans) as an exception,
but this 1970 statute is no longer properly considered an exception because it refers to the
enforceability of educational loans entered into by “a minor 18 or more years of
age . . . .” When the statute was enacted, the age of majority was 21. Because the age of
majority is now 18, the statute is little more than an anachronism.
25
MCL 722.4e(1)(a) states:

A minor shall be considered emancipated for the purposes of, but not
limited to, all of the following:

(a) The right to enter into enforceable contracts, including apartment
leases.
26
MCL 722.4(2)(a). A minor who is 16 or 17 can marry with the consent of a
parent. MCL 551.103(1).
27
MCL 722.4(2)(c). Under federal law, a 17 year old can join the military with
the consent of a parent. See 10 USC 505(a).
28
MCL 491.614 authorizes the issuance of a savings account to a minor as the sole
and absolute owner of the account and authorizes the paying of withdrawals and the
performance of acts with respect to the account on the order of the minor with the same
effect as if the minor had full legal capacity.

22
substance abuse treatment,29 (6) in order to receive treatment for a venereal disease or

HIV,30 (7) in order to receive pregnancy-related services,31 (8) in order to receive mental

health services,32 and (9) in order to purchase certain insurance policies.33 All but one of

these statutory exceptions were adopted between 1956 and 1980.

Thus, there is a clear trend in Michigan public policy toward giving increased

weight to the significant life decisions of minors by allowing them a limited measure of

legal autonomy and responsibility. Indeed, minors are also considered competent to

29
MCL 333.6121(1) provides that a minor who is or professes to be a substance
abuser may sign a consent to the provision of substance-abuse-related medical or surgical
care, treatment, or services by a hospital, clinic, or health professional and that the
consent is valid and binding in the same manner as if the minor had achieved the age of
majority.
30
MCL 333.5127(1) provides that a minor who is or professes to be infected with
a venereal disease or HIV may sign a consent to the provision of medical or surgical care,
treatment, or services by a hospital, clinic, or physician and that the consent is valid and
binding in the same manner as if the minor had achieved the age of majority.
31
MCL 333.9132 provides that a minor may sign a consent to the provision of
prenatal and pregnancy-related health care or to the provision of health care for a child of
the minor by a licensed health facility or agency or a licensed health professional and that
the consent is valid and binding in the same manner as if the minor had achieved the age
of majority.
32
MCL 330.1707 provides:

A minor 14 years of age or older may request and receive mental
health services and a mental health professional may provide mental health
services, on an outpatient basis, excluding pregnancy termination referral
services and the use of psychotropic drugs, without the consent or
knowledge of the minor’s parent, guardian, or person in loco parentis.
33
MCL 500.2205 provides that a life insurance or disability insurance contract
made by a person between the ages of 16 and 18 years for the person’s benefit or that of a
close relative is good and of the same force and effect as though the minor had attained
majority at the time of making the contract.

23
waive a variety of rights when charged with a crime. See, e.g., People v Simpson, 35

Mich App 1; 192 NW2d 118 (1971), which indicates that minors are competent to waive

even constitutional rights when charged with a crime.34

The common-law rule that minors are incompetent to enter into contracts was

predicated on the idea that minors must be protected from their own contractual follies

and exploitation by adults. Holmes v Rice, 45 Mich 142; 7 NW 772 (1881); Frye v Yasi,

327 Mass 724, 728; 101 NE2d 128 (1951). These purposes comport with common sense

and experience, but neither would be undermined by permitting a child’s parents to

exercise their own prudence and judgment on behalf of their minor children in

prospectively waiving negligence claims in order to allow their children to participate in

recreational activities. As explained in Parham v J R, 442 US 584, 602; 99 S Ct 2493; 61

L Ed 2d 101 (1979), there is a presumption that parents possess what a child lacks in

maturity, experience, and the capacity for judgment required for making life’s difficult

decisions. Thus, it is not incompatible with the common-law rule concerning the limited

ability of a minor to enter into legal contracts to allow the parent the right to permit or

34
See also Llapa-Sinchi v Mukasey, 520 F3d 897, 900 (CA 8, 2008), which
explains:

Minors can be responsible for their own legal status and can waive
their constitutional rights. Courts have repeatedly held this, and statutes
have long allowed it. The Supreme Court has held minors can be
responsible for waiving their right to appeal deportation and custody
determinations.

Llapa-Sinchi went on to cite cases holding that minors can waive the right to appeal, the
right to a jury trial, and the rights guaranteed by Miranda v Arizona, 384 US 436; 86 S Ct
1602; 16 L Ed 2d 694 (1966).

24
deny a child’s participation in sporting or recreational activities and to weigh the risks

and benefits of that participation.

B. PARENTAL AUTHORITY

Concerning the common-law rule that a parent cannot bind a child by contract,

the courts and the Legislature have found it increasingly appropriate to allow parents to

provide consent to their children’s participation in numerous significant activities. As

explained in Parham, 442 US at 602:

Our jurisprudence historically has reflected Western civilization
concepts of the family as a unit with broad parental authority over minor
children. . . . The law’s concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and capacity for
judgment required for making life’s difficult decisions. More important,
historically it has recognized that natural bonds of affection lead parents to
act in the best interests of their children.

More recently, the United States Supreme Court has determined that the right of a parent

to decide how a child will be raised is one of the oldest and most fundamental rights

emanating from the “liberty” interest of the Due Process Clause of the Fourteenth

Amendment. Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000)

(opinion by O’Connor, J.). In Troxel, a plurality cited the Court’s long history of

recognizing that the family is a unit within which parents possess “‘broad . . . authority

over minor children.’”35 Troxel, 530 US at 66, quoting Parham, 442 US at 602. Troxel

also indicated that courts may not overturn decisions by a fit custodial parent “solely on

[the basis of] the judge's determination of the child’s best interests.” Troxel, 530 US at

35
“It is the natural, fundamental right of parents and legal guardians to determine
and direct the care, teaching, and education of their children.” MCL 380.10 (part of the
Revised School Code).

25
67. Rather, courts must give some “special weight” to the parents’ determination of their

children's best interests. Id. Indeed, in Hunter v Hunter, 484 Mich 247, 258 n 16, 262;

771 NW2d 694 (2009), this Court recognized that Troxel “included forceful language

describing the significance of parents’ fundamental liberty interest in the care, custody,

and control of their children” before proceeding to hold that “Troxel established a floor

or minimum protection against state intrusion into the parenting decisions of fit parents.”

Considering the breadth and significance of the constitutional right of a fit parent to raise

a child as that parent deems appropriate, I would clarify that parental preinjury waivers

are enforceable, in part on the basis of this constitutional development.

There is also Michigan caselaw indicating that parents can consent to a variety of

actions having serious consequences for their children. In re Rosebush, 195 Mich App

675, 682-683; 491 NW2d 633 (1992), for example, held that parents are empowered to

make decisions regarding withdrawal or withholding of lifesaving or life-prolonging

measures on behalf of their children because the right of the parent to speak for the

minor child is embedded within our common law. To put it starkly, then, although the

common law allows a parent to unilaterally deny or withdraw even life-prolonging

medical care for his or her child if the child is seriously injured while participating in a

recreational or sporting activity, a majority of justices would deny the same parent the

right to prospectively waive a negligence claim that would allow the same child to

participate in a ‘Bounce Party,’ or some other sporting or recreational activity, in the first

place. And in People v Goforth, 222 Mich App 306; 564 NW2d 526 (1997), the Court

of Appeals held that parents may consent to a police search of their child’s bedroom

26
even though such consent could have serious consequences if contraband or other

evidence of criminal activity were found in the minor’s room. Moreover, in People v

Givans, 227 Mich App 113, 116, 123-124; 575 NW2d 84 (1997), the Court of Appeals

affirmed the defendant’s conviction in a case in which the parent consented to have her

child interrogated by the police out of her presence-- even though the questioning

produced a confession to the crime.

In the face of the broad authority parents have regarding the raising of their

children, our Legislature has enacted a long list of statutes related to that authority. For

example, as a result of legislation, parents can (1) consent to allow their minor daughter

obtain an abortion,36 (2) consent to their minor child’s release of his or her child for

adoption,37 (3) consent to their minor child’s receiving a tattoo, brand, or body

piercing,38 (4) consent to their minor child’s petition for a name

change,39 (5) consent to their minor child’s participation in an undercover operation by

purchasing or receiving alcoholic liquor under the supervision of a law enforcement

agency,40 (6) consent to their 16- or 17-year-old child’s marriage,41 (7) file a petition for

court approval of a kidney donation by their minor child to a close relative if the child is

36
MCL 722.903(1).
37
MCL 710.43(4).
38
MCL 333.13102(1).
39
MCL 711.1(5).
40
MCL 436.1701(7).
41
MCL 551.103(1).

27
at least 14 years old,42 (8) consent to electroconvulsive therapy or a procedure intended

to produce convulsions or a coma for their minor child,43 (9) consent to the issuance of a

level 1 graduated driver’s license to their minor child if the child is 14 years and 9

months old or older,44 (10) consent to their minor child’s employment as a golf caddy or

as a youth athletic program referee or umpire if the child is at least 11 years old,45 (11)

delegate to another person for up to six months most of the parent’s powers regarding

care, custody, or property of the minor child by signing a power of attorney,46 (12)

consent to a pawnbroker’s purchase of an item from their minor child,47 (13) consent to

allow a merchant to furnish or sell their minor child bulk gunpowder, dynamite, blasting

caps, or nitroglycerine,48 and (14) consent to the sale of a motor vehicle to their minor

child.49 Similarly, as a result of federal legislation, parents can (15) consent to their 17-

year-old child’s enlisting in the United States military50 and (16) consent to their minor

42
MCL 700.5105.
43
MCL 330.1717(1)(b).
44
MCL 257.310e(3)(c).
45
MCL 409.103(2)(a) and (b).
46
MCL 700.5103(1).
47
MCL 750.137.
48
MCL 750.327a.
49
MCL 750.421c.
50
10 USC 505(a).

28
child’s participation as a subject in certain kinds of medical research.51 Third parties

cannot consent to have someone else’s child do or receive these things; only the child’s

parents can provide such consent. This is because, contrary to the assertion of the lead

opinion, a parent is not merely tantamount to a “third party” with regard to his or her

child. There is a clear trend in Michigan public policy toward according parents

authority to consent to let their children engage in, or experience, a variety of significant

activities. These consent statutes recognize the liberty interest of parents to make

important decisions that affect the well-being of their children and acknowledge the

constitutional principle that fit parents are presumed to act in the best interests of their

children in making those decisions.

As these examples illustrate, current Michigan public policy-- genuine public

policy rooted in the statutory and decisional law of this state-- fully recognizes that

parents may make important, even life-altering, decisions on behalf of their children.

While the lead opinion cites statutes and common-law doctrines showing the law’s

general solicitude toward minors52-- and who could disagree with such a proposition?--

51
45 CFR 46.404 through 46.408.
52
The lead opinion correctly notes, ante at 27-28, that the common law generally
holds minors to a lower standard than an adult. But it fails to mention that even infants
were liable for their torts at common law. Indeed, in Jennings v Rundall, 101 Eng Rep
1419, 1421-1422 (KB, 1799), Lord Kenyon said, “[I]f an infant commit an assault, or
utter slander, God forbid that he should not be answerable for it in a Court of Justice.”
See also Prosser, Torts (3d ed), § 128, p 1024. Moreover, our common law provides that
“‘whenever a child, whether as plaintiff or as defendant, engages in an activity which is
normally one for adults only * * * he must be held to the adult standard, without any
allowance for his age.’” Farm Bureau Ins Group v Phillips, 116 Mich App 544, 547; 323
NW2d 477 (1982), quoting Prosser, Torts (4th ed), § 32, pp 156-157; accord Constantino

29
the statutes and cases cited here are in no way inconsistent with those cited by the lead

opinion and are fully compatible with a clarification of our common law allowing

parents to sign preinjury waivers of negligence claims so their children can participate in

recreational and sporting opportunities.53 Such clarification would be consistent with,

and no more than a logical extension of, existing Michigan public policy based on the

trends identified in this section.

C. RECREATIONAL ACTIVITIES

The Legislature has also determined that there is a place in society for recreational

activities that occasionally produce injuries by enacting standards of care that preclude

claims for injuries to participants, regardless of the injured person’s age, resulting from

the inherent risks of such activities. As this Court indicated in Neal v Wilkes, 470 Mich

661; 685 NW2d 648 (2004), the Legislature enacted Michigan’s recreational land use

statute, MCL 324.73301, to provide immunity for landowners from personal-injury

lawsuits by persons using their property recreationally, regardless of age, i.e., even when

v Wolverine Ins Co, 407 Mich 896 (1979); Osner v Boughner, 180 Mich App 248, 254-
257; 446 NW2d 873 (1989) (driving is an adult activity, and when minors drive, they are
held to the adult standard of care).
53
Under the clarifying rule I would adopt, parents would still need judicial
approval to settle existing claims involving their children, and even prospective waivers
would be ineffective with respect to claims of gross negligence or willful or wanton
behavior. Lamp, 249 Mich App at 594 (“[A] party may not insulate himself against
liability for gross negligence or wilful and wanton misconduct.”). I also would not allow
prospective waivers regarding compulsory activities, such as required school classes or
events. See, e.g., Sharon v City of Newton, 437 Mass 99, 106; 769 NE2d 738 (2002)
(enforcing a release “in the context of a compelled activity . . . might well offend public
policy”).

30
minors are injured.54 As we discussed in Anderson v Pine Knob Ski Resort, Inc, 469

Mich 20; 664 NW2d 756 (2003), the Legislature enacted Michigan’s Ski Area Safety

Act, MCL 408.321 et seq., to provide immunity for ski-area operators from personal-

injury suits by injured skiers, regardless of the age of the skier.55 And as was further

mentioned in Dale v Beta-C, Inc, 227 Mich App 57; 574 NW2d 697 (1997), the

Legislature enacted Michigan’s Roller Skating Safety Act, MCL 445.1721 et seq., to

provide some immunity for roller-skating rink operators from personal-injury suits by

injured skaters, again regardless of the skater’s age.56 See also the Equine Activity

Liability Act (EALA), MCL 691.1661 et seq., which proscribes general claims for

ordinary negligence, regardless of the injured person’s age. In particular, the EALA
54
MCL 324.73301(1) provides:

Except as otherwise provided in this section, a cause of action shall
not arise for injuries to a person who is on the land of another without
paying to the owner, tenant, or lessee of the land a valuable consideration
for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing,
motorcycling, snowmobiling, or any other outdoor recreational use or trail
use, with or without permission, against the owner, tenant, or lessee of the
land unless the injuries were caused by the gross negligence or willful and
wanton misconduct of the owner, tenant, or lessee.
55
MCL 408.342(2) provides:

Each person who participates in the sport of skiing accepts the
dangers that inhere in that sport insofar as the dangers are obvious and
necessary. Those dangers include, but are not limited to, injuries which can
result from variations in terrain; surface or subsurface snow or ice
conditions; bare spots; rocks, trees, and other forms of natural growth or
debris; collisions with ski lift towers and their components, with other
skiers, or with properly marked or plainly visible snow-making or snow-
grooming equipment.
56
MCL 445.1725 provides “Each person who participates in roller skating accepts
the danger that inheres in that activity insofar as the dangers are obvious and necessary.”

31
proscribes liability for injuries resulting from the inherent risks of equine activity.57 We

should give significant weight to the Legislature’s expression of the public policy that

such activities are worthy of protection, even in light of their risks, and that providers of

such activities are entitled to receive some measure of protection from lawsuits in the

absence of gross negligence, even when the participants are minors.

Similarly, our state’s caselaw evidences that Michigan public policy recognizes

that there are benefits to recreational activity. In Benejam v Detroit Tigers, Inc, 246 Mich

App 645, 657-658; 635 NW2d 219 (2001), in which a minor was injured by a flying bat

fragment, the Court of Appeals reversed a jury verdict and dismissed the injured minor’s

claim after adopting the “limited duty doctrine” as a matter of Michigan law.58 See also

Moning, 400 Mich at 458, in which this Court said:

[B]aseball equipment and bicycles . . . are viewed by society
essentially as are automobiles in that although children are injured and
57
MCL 691.1663 provides:

Except as otherwise provided in [MCL 691.1665], an equine activity
sponsor, an equine professional, or another person is not liable for an injury
to or the death of a participant or property damage resulting from an
inherent risk of an equine activity. Except as otherwise provided in [MCL
691.1665], a participant or participant’s representative shall not make a
claim for, or recover, civil damages from an equine activity sponsor, an
equine professional, or another person for injury to or the death of the
participant or property damage resulting from an inherent risk of an equine
activity.
58
The Court of Appeals stated:

[W]e hold that a baseball stadium owner that provides screening
behind home plate sufficient to meet ordinary demand for protected seating
has fulfilled its duty with respect to screening and cannot be subjected to
liability for injuries resulting to a spectator by an object leaving the playing
field. [Benejam, 246 Mich App at 657-658.]

32
 killed riding bicycles and playing baseball, the utility of such activity is
regarded by society and all reasonable persons as outweighing the risk of
harm created by their manufacture for and marketing to children.

Indeed, in Ritchie-Gamester v City of Berkley, 461 Mich at 73, 92 n 13; 597 NW2d 517

(1999), this Court described recreational activities as “valuable” and “important” “social

activities.” We should take cognizance of and give weight to these judicial decisions

when assessing whether there is a public policy favoring parental preinjury waivers as a

condition to allowing minors to participate in sporting and recreational activities and how

this ought to be reflected in our state’s common law.

D. FREEDOM OF CONTRACT

The common-law default position is that contracts are enforced. Terrien v Zwit,

467 Mich 56, 71; 648 NW2d 602 (2002).59 This freedom of contract is “deeply

entrenched in the common law of Michigan.” Id. at 71 n 19. The lead opinion, however,

states that the issue is “whether a minor can be bound by a contract signed on his behalf

by a third party.” Ante at 8. I respectfully disagree with how the lead opinion frames this

issue.60 It errs in characterizing a parent as a “third party” with respect to his or her own

child. The better, and more precisely, crafted question is whether a parent-- a person

59
I do recognize that some contracts are not enforceable in Michigan as a matter
of public policy. See, e.g., Cudnik v William Beaumont Hosp, 207 Mich App 378, 389-
390; 525 NW2d 891 (1994), which held that on the basis of public policy, “an
exculpatory agreement executed by a patient before treatment is not enforceable to
absolve a medical care provider from liability for medical malpractice and other acts of
negligence related to a patient’s medical care.”
60
I certainly agree that a third party cannot bind someone else to a contract. That
is, if a parent signs a contract purporting to bind his next door neighbor or the neighbor’s
child, that contract would obviously be of no effect.

33
who in the course of caring for his or her child might take actions pertaining to such

matters as the location and establishment of a home, schooling, health care, diet and

nutrition, discipline, social and family relationships, lifestyle, hobbies, clothing, religion,

instruction in values, vacations, and, yes, even recreational activities, to name a few--

may prospectively waive the child’s future negligence claim so that the child can

participate in a sporting or recreational activity. That is, the relevant question in this case

pertains to the rights of a “parent,” not those of a “third-party.”

The common-law rule that parents are empowered to make important decisions

regarding their children was recognized in In re Rosebush, 195 Mich App at 682-683.

See also In re LHR, 253 Ga 439, 445; 321 SE2d 716 (1984) (“The right of the parent to

speak for the minor child is . . . imbedded in our tradition and common law . . . .”).

Moreover, as previously indicated, caselaw holds that parents are presumed to act in the

best interests of their children and are entitled to make judgments and decisions

concerning risks to their children. Parham, 442 US at 602. The lead opinion discounts

this presumption as overbroad, noting that it is not limited to preinjury waivers and could

be cited to justify a parent being able to bind a child to any contract. Ante at 21. I agree

this presumption does not justify allowing a parent to enter into any contract that would

be binding on a child. But this presumption, now of constitutional dimension, does

support making parental preinjury waivers of negligence claims enforceable.

Assuming that the release actually waived the child’s claim in this case, a parent

made the decision that the benefits to his child flowing from the waiver outweighed the

risks of a broken leg, as was suffered here, or an even more serious injury. Although

34
plaintiff now seeks to avoid his obligations under the waiver on the grounds that it is

“unenforceable,” the father’s waiver was nonetheless entered into voluntarily and

knowingly. This Court should not disturb that decision, out of regard for the parent’s

rights to undertake such decisions for the child, as well as out of regard for traditional

‘freedom of contract’ principles. A majority of the justices forbid parents under all

circumstances to undertake even a perfectly rational decision to assess the risks and

benefits when determining what is in the best interests of their children. Instead, such

decision-making will now be monopolized by judges, and the answer will always be the

same: “No. The parent cannot be permitted to make such a determination.” That is, no

matter how compelling the child’s interest in participating in a sporting or recreational

activity, and no matter how slight the risk of a serious injury, the answer will always

remain the same. There can be no parental preinjury waiver; there can be no assessment

of the risks and benefits by the person who is constitutionally presumed to be, and who in

reality is, more concerned than anyone else in the world about the well-being of that

child; and there can be no contract freely entered into by adults, both of whom may be

exercising entirely reasonable and sound judgments.

The justices in the majority refuse to enforce the preinjury waiver contract, noting

that postinjury waivers are not enforced. But I would not extend our common-law rule

against postinjury parental waivers to preinjury parental waivers. These situations are

quite different. As Judge BANDSTRA stated in his concurrence in the Court of Appeals:

“‘The concerns underlying the judiciary’s reluctance to allow
parents to dispose of a child’s existing claim do not arise in the situation
where a parent waives a child’s future claim. A parent dealing with an

35
 existing claim is simultaneously coping with an injured child; such a
situation creates a potential for parental action contrary to that child’s
ultimate best interests.

“‘A parent who signs a release before her child participates in a
recreational activity, however, faces an entirely different situation. First,
such a parent has no financial motivation to sign the release. To the
contrary, because a parent must pay for medical care, she risks her financial
interests by signing away the right to recover damages. Thus, the parent
would better serve her financial interests by refusing to sign the release.

“‘A parent who dishonestly or maliciously signs a preinjury release
in deliberate derogation of his child’s best interests also seems unlikely.
Presumably parents sign future releases to enable their children to
participate in activities that the parents and children believe will be fun or
educational. Common sense suggests that while a parent might misjudge or
act carelessly in signing a release, he would have no reason to sign with
malice aforethought.

“‘Moreover, parents are less vulnerable to coercion and fraud in a
preinjury setting. A parent who contemplates signing a release as a
prerequisite to her child’s participation in some activity faces none of the
emotional trauma and financial pressures that may arise with an existing
claim. That parent has time to examine the release, consider its terms, and
explore possible alternatives. A parent signing a future release is thus more
able to reasonably assess the possible consequences of waiving the right to
sue.’” [Woodman, 280 Mich App at 158-159 (BANDSTRA, P.J., concurring)
(citations omitted).]

I agree with Judge BANDSTRA’s observations and have no difficulty concluding that the

policy considerations underlying the rule limiting postinjury waivers absent judicial

approval are sharply distinct from those at issue with respect to the preinjury rule. In

particular, the traditional freedom of contract enjoyed by parents with regard to their

children argues in favor of allowing enforcement of parental preinjury waivers.

36
 E. GROWTH OF LITIGATION

There can also be little denying Judge BANDSTRA’s observation that “[a]s this case

amply demonstrates, ours is an extremely and increasingly litigious society.”61 Id. at 160.

“Children have routinely jumped off playground slides for generations; lawsuits seeking

to impose damages on someone else for resulting injuries are only a recent phenomenon.”

Id. at 160 n 2. As a result of trends toward increasing litigation in modern society, 48

jurisdictions adopted tort reform legislation between 1985 and 1988. Sanders & Joyce,

Off to the races: The 1980s tort crisis and the law reform process, 27 Hous L R 207, 220-

222 (1990). Even in 1992 it was stated:

Few would dispute the proposition that America has become a
litigious society and that the preferred method for resolving disputes and
achieving social reform is to file lawsuits. In 1989, close to eighteen
million new civil cases were filed in state and federal courts, amounting to
one lawsuit for every ten adults. In the federal courts alone, the number of
lawsuits filed each year has more than quadrupled in the last thirty years--

61
In 1982 Chief Justice Warren Burger observed:

One reason our courts have become overburdened is that Americans
are increasingly turning to the courts for relief from a range of personal
distresses and anxieties. Remedies for personal wrongs that once were
considered the responsibilities of institutions other than the courts are now
boldly asserted as “legal entitlements.” The courts have been expected to
fill the void created by the decline of church, family, and neighborhood
unity. [Burger, Isn’t there a better way?, 68 ABA J 274 (1982).]

See also Posner, The Federal Courts: Crisis And Reform 55-79 (1985) (explicitly finding
a litigation explosion since the 1960’s and employing numerous categories of statistics to
analyze this dramatic increase), and Olson, The Litigation Explosion: What Happened
When America Unleashed the Lawsuit (1991).

37
 from approximately 51,000 in 1960 to almost 218,000 in 1990. [Quayle,
Civil justice reform, 41 Am U L R 559, 560 (1992).][62]

Indeed, this Court has previously expressed “concern over the effect of increased

litigation on recreational activities” and identified “clear evidence that litigation can exact

a toll on what most would consider valuable social activities.” Ritchie-Gamester, 461

Mich at 92 n 13. I agree with Ritchie-Gamester that “our duty” is to adopt common-law

rules that do not create “destructive levels of litigation that will inhibit important social

activity.” Id. at 93 n 13.63 Unfortunately, the concern expressed in Ritchie-Gamester is

not shared by a majority of justices here. Indeed, their decision to expressly preclude the

enforceability of parental preinjury waivers should be seen for what it is: an anti-tort-

reform measure that will exact a heavy toll upon valuable social activities. Their decision

will encourage the kind of modern litigation that has led to the closing of playgrounds for

fear of a child being injured and a lawsuit being filed. See, e.g., Messina v Dist of
62
See also Bator, What is wrong with the supreme court?, 51 U Pitt L R 673, 676-
677 (1990):

In the 1985 fiscal year there were filed in the federal district courts
about 315,000 civil and criminal cases; this is, of course, exclusive of the
some 365,000 bankruptcy petitions filed in 1985. (Compare this figure of
315,000 to the total of under 200,000 cases commenced as recently as 1980
and the total of some 120,000 commenced in 1970.) In 1985, these district
court cases, together with the work of those administrative agencies
reviewed directly in the courts of appeals, generated, in 1985, a total of
about 34,000 new cases in the federal courts of appeals (including the Court
of Appeals for the Federal Circuit). (This figure of 34,000 should be
contrasted with the figure of just over 23,000 such cases in 1980, 11,500 in
1970, and under 4,000 in 1960.).
63
As stated by the Ohio Supreme Court in Zivich v Mentor Soccer Club, Inc, 82
Ohio St 3d 367, 372; 696 NE2d 201 (1998): “[F]aced with the very real threat of a
lawsuit, and the potential for substantial damage awards, nonprofit organizations and
their volunteers could very well decide that the risks are not worth the effort.”

38
Columbia, 663 A2d 535, 538 (DC, 1995) (holding that expert testimony was necessary to

establish the standard of care for installation of cushioning under the monkey bars on a

playground).64

The more litigious our society becomes, the more each injured child becomes a

potential plaintiff in a lawsuit and the more sports and recreational providers see the need

to obtain waivers in order to avoid lawsuits and remain in business. Thus, I believe that

our society’s overall increase in litigiousness over recent generations constitutes a

substantial change in society’s customary practice that supplies an additional reason for

this Court to clarify that our common law allows for the enforceability of parental

preinjury waivers. A society in which monkey bars and other traditional playground

equipment disappear, and in which sports such as dodge ball attract the scrutiny of the

64
In 1996 New York City Parks Commissioner Henry Stern stated, “In today’s
litigious world, the children come to the playground with parents and the parents come
with lawyers.” Douglas, That Upside-Down High Will Be Only a Memory, Monkey Bars
Fall to Safety Pressure, NY Times, April 11, 1996, available at (accessed June 10, 2010). Indeed, it was widely reported
last year that a child in the New York area sued two coaches along with Little League
Baseball Incorporated and the New Springville Little League when he was injured sliding
into second base. Nyback, Staten Island mom settles suit with Little League and coaches
over knew injury, available at (accessed June 10, 2010); see also Benard, Little
league fun, big league liability, 8 Marq Sports L J 93, 98 (1993) (“[O]ur lawsuit happy
society has come to view a child's misjudging a fly ball as a cause of action against an
individual who may, incidentally, have the most economic wealth.”); Doughtery, This
Museum Exposes Kids To Thrills, Chills and Trial Lawyers, Wall St J, May 1, 2010
(reporting that annual insurance costs for the City Museum in St. Louis Missouri, have
risen from about $36,000 since its founding in 1997 to about $600,000 a year,
representing about $1 of the museum’s $12 admission price), available at
(accessed June 10, 2010).

39
bench and bar, may be a society in which there is less risk of injury, but it is also a

society in which the nature of childhood, and the responsibilities of parenthood, are

defined very differently than they have by past generations of Americans. Because I see

no evidence that community views have altered in this regard, I would maintain the

genuine common law in this state-- one in which parental preinjury waivers are an

ordinary part of the family experience-- not the distorted common law articulated by a

majority here.

F. OTHER JURISDICTIONS

The question whether to enforce parental preinjury waivers of negligence claims

so that minors may participate in elective recreational activities has arisen in other

states.65 Numerous out-of-state cases have decided that parental preinjury waivers should

be enforced in a wide variety of situations, notwithstanding the common law’s obvious

solicitude toward children. It is generally seen as being entirely compatible with that

solicitude that parents be allowed to undertake certain decisions on behalf of their

children, the consequences of which may not be entirely foreseeable. Who normally

would be more concerned about, caring toward, and solicitous of the interests of a child

than that child’s parents? In Hohe v San Diego Unified School Dist, 224 Cal App 3d

1559; 274 Cal Rptr 647 (1990), a 15-year-old girl was injured when she volunteered to

participate in a hypnotism show sponsored by her school’s parent-teacher-student

association. Although the minor and her father had signed a waiver form as a condition

65
However, I well recognize that “in exercising our common-law authority, [this
Court’s] role is not simply to ‘count heads’ but to determine which common-law rules
best serve the interests of Michigan citizens.” Stitt, 462 Mich at 607.

40
to her participation in the show, the plaintiff still attempted to hold the school, the

association, and the school district liable for her injuries. The appellate court ruled that

the release was not void as against public policy.66

In Zivich v Mentor Soccer Club, Inc, 82 Ohio St 3d 367; 696 NE2d 201 (1998),

Pamela Zivich registered her seven-year-old son for soccer. The soccer club required

Mrs. Zivich to sign a release form for her son as a part of the registration process. The

child was injured at practice, and his parents filed a lawsuit. The court held that a parent

can bind a minor child to an exculpatory agreement in favor of volunteers and sponsors

of nonprofit sport activities when the cause of action sounds in negligence. The court

concluded that no public policy was violated by enforcing the release, stating:

It cannot be disputed that volunteers in community recreational
activities serve an important function. Organized recreational activities
offer children the opportunity to learn valuable life skills. It is here that
many children learn how to work as a team and how to operate within an
organizational structure. Children also are given the chance to exercise and
develop coordination skills. Due in great part to the assistance of
volunteers, nonprofit organizations are able to offer these activities at
minimal cost. . . .

66
Hohe stated:

Hohe, like thousands of children participating in recreational
activities sponsored by groups of volunteers and parents, was asked to give
up her right to sue. The public as a whole receives the benefit of such
waivers so that groups such as Boy and Girl Scouts, Little League, and
parent-teacher associations are able to continue without the risks and
sometimes overwhelming costs of litigation. Thousands of children benefit
from the availability of recreational and sports activities. Those options are
steadily decreasing-- victims of decreasing financial and tax support for
other than the bare essentials of an education. Every learning experience
involves risk. In this instance Hohe agreed to shoulder the risk. No public
policy forbids the shifting of that burden. [Hohe, 224 Cal App 3d at 1564.]

41
 * * *

[A]lthough Bryan, like many children before him, gave up his right
to sue for the negligent acts of others, the public as a whole received the
benefit of these exculpatory agreements. Because of this agreement, the
Club was able to offer affordable recreation and to continue to do so
without the risks and overwhelming costs of litigation. Bryan’s parents
agreed to shoulder the risk. Public policy does not forbid such an
agreement. In fact, public policy supports it. See Hohe v. San Diego
Unified School Dist. (1990), 224 Cal.App.3d 1559, 1564, 274 Cal.Rptr.647,
649. Accordingly, we believe that public policy justifies giving parents
authority to enter into these types of binding agreements on behalf of their
minor children. We also believe that the enforcement of these agreements
may well promote more active involvement by participants and their
families, which, in turn, promotes the overall quality and safety of these
activities. . . .

* * *

[W]e hold that parents have the authority to bind their minor
children to exculpatory agreements in favor of volunteers and sponsors of
nonprofit sport activities where the cause of action sounds in negligence.
These agreements may not be disaffirmed by the child on whose behalf
they were executed. [Id. at 371-374.]

In Sharon v City of Newton, 437 Mass 99; 769 NE2d 738 (2002), the Court

upheld a release relating to a voluntary high school cheerleading program on the basis of

public policy. The Court stated:

In the instant case, Merav’s father signed the release in his capacity
as parent because he wanted his child to benefit from participating in
cheerleading, as she had done for four previous seasons. He made an
important family decision cognizant of the risk of physical injury to his
child and the financial risk to the family as a whole. In the circumstance of
a voluntary, nonessential activity, we will not disturb this parental
judgment. This comports with the fundamental liberty interest of parents in
the rearing of their children, and is not inconsistent with the purpose behind
our public policy permitting minors to void their contracts.

. . . Our views with respect to the permissibility of requiring releases
as a condition of voluntary participation in extracurricular sports activities,

42
 and the enforceability of releases signed by parents on behalf of their
children for those purposes, are also consistent with and further the public
policy of encouraging athletic programs for the Commonwealth’s youth.
[Id. at 108-109.][67]

I acknowledge that some out-of-state cases have refused to enforce parental

preinjury waivers. See, e.g., Cooper v Aspen Skiing Co, 48 P3d 1229, 1237 (Colo,

2002);68 Scott v Pacific West Mt Resort, 119 Wash 2d 484; 834 P2d 6 (1992); Hawkins v

Peart, 37 P3d 1062 (Utah, 2001); Hojnowski v Vans Skate Park, 375 NJ Super 568; 868

A2d 1087 (2005). However, in my judgment, these decisions rely on the same kind of

arguments set forth in the lead opinion and those of Justice HATHAWAY and Chief

Justice KELLY and fail to recognize the superior authority of parents, now recognized by

67
See also Brooks v Timberline Tours Inc, 941 F Supp 959 (D Colo, 1996)
(upholding the enforceability of waivers signed by parents on behalf of their minor
child); Kondrad v Bismarck Park Dist, 655 NW2d 411 (ND, 2003) (child’s negligence
claim was barred by a waiver and release signed by his mother regarding an after-school
care program when the minor fell on the school grounds while riding a bicycle owned by
a child who was not part of the after-school care); Gonzalez v City of Coral Gables, 871
So 2d 1067 (Fla App, 2004) (upholding a parental preinjury release executed for a
minor’s participation in a high school fire-rescue training program); Rackley v Advanced
Cycling Concepts Inc, 2009 Tex App LEXIS 1888 (2009) (barring the claim of a child
injured at a “Pump it Up” party-- a chain of children’s party venues featuring inflatable
houses, slides, and obstacle courses-- because of a release signed by his parent); Mohney
v USA Hockey, Inc, 77 F Supp 2d 859 (ED Ohio, 1999) (applying the Zivich holding and
ruling that “[n]othing in the Zivich opinion indicates that its holding should be limited to
nonprofit sports organizations that are local in scope”), aff’d in part and rev’d in part on
other grounds, 248 F3d 1150 (CA 6, 2001) (stating that parents have the authority to bind
their minor children to exculpatory agreements).
68
The Cooper case, however, was legislatively superseded by statute in 2003. As
noted in Pollock v Highlands Ranch Community Ass’n, Inc, 140 P3d 351 (Colo App,
2006), the statute recognizes a substantive defense to negligence claims that will often
operate as a complete bar to relief. The statute provides: “A parent of a child may, on
behalf of the child, release or waive the child’s prospective claim for negligence.” Colo
Rev Stat 13-22-107(3). An Alaska statute similarly allows a parent to prospectively
waive a child’s negligence claim. Alas Stat 09.65.292.

43
the United States Constitution’s Due Process Clause, to make decisions of the present

sort on behalf of their children. I find the out-of-state cases allowing parental preinjury

waivers of negligence claims far more persuasively reasoned and considerably more in

line with the constitutional presumption that parents act in their children’s best interests,

as well as with Michigan’s public policy favoring recreational activities and affording

some measure of legal protection to providers of such recreational activities.

Finally, it is at least noteworthy that many legal commentators have come down

on the side of the enforceability of parental preinjury waivers. Professor Joseph King, Jr.,

for example, states, “[Negative] judicial attitudes toward exculpatory agreements signed

by parents on behalf of their minor children seem inconsistent with the powers conferred

on parents respecting other important life choices.” King, Exculpatory agreements for

volunteers in youth activities—The alternative to “Nerf®” tiddlywinks, 53 Ohio St L J

683, 716 (1992).69

V. CONSEQUENCES

As a result of today’s decision holding that parental preinjury waivers are not

enforceable, there will be at least the following predictable consequences: (1) this being

the first decision in Michigan specifically holding that such waivers are unenforceable,

there will be an increase in recreational and sports-related litigation, arising as a

69
See also Comment, Interscholastic sports: Why exculpatory agreements signed
by parents should be upheld, 76 Temp L R 619 (2003); Comment, The theory of the
waiver scale: An argument why parents should be able to waive their children’s tort
liability claims, 36 USF L R 535 (2002); Note, Scott v Pacific West Mountain Resort:
Erroneously invalidating parental releases of a minor’s future claim, 68 Wash L R 457
(1993).

44
consequence both of now invalid past waivers and the disappearance of future waivers,

(2) sporting and recreational opportunities, particularly for minors, will dwindle out of a

reasonable fear of tort liability,70 (3) parents’ fundamental interests in making important

decisions regarding their children will be curtailed in favor of a rigid judicial policy that

prohibits parents from making important decisions concerning their children’s

participation in recreational and sporting activities,71 (4) Michigan’s erstwhile public

policy favoring and encouraging recreational and sporting opportunities for minors will

run afoul of its new common law diminishing such opportunities, (5) recreational

providers, such as schools and municipalities; organizations, such as the YMCA, Boy

Scouts, Girl Scouts, and the 4-H Club; civic and service organizations, such as the

Optimists, the Kiwanis Club, the Jaycees, the Lions Club, and the Elks; and local small

businesses will all be subject to increased exposure to lawsuits and higher insurance

70
As was recognized in Nat’l Int’l Brotherhood of Street Racers, Inc v Superior
Court, 215 Cal App 3d 934, 937; 264 Cal Rptr 44 (1989), “many popular and lawful
recreational activities are destined for extinction” unless preinjury waivers are
enforceable.
71
I concur with the following dissenting statement in Hojnowski, 375 NJ Super
568 at 598 (Fisher, J. concurring in part and dissenting in part):

I believe a parent also has the right-- with which the state must not
interfere-- to decide whether a child may play football or collect sea shells,
learn to ride a horse or engage in bird-watching, go skateboarding or only
play video games involving animated skateboarders, or engage in any other
type of sport or recreational activity that encompasses inherent risks, or
those that are sedate, or all such activities, or none. The majority may not
view these matters as important, but, important or not, they and countless
others ought to be resolved solely within the sphere of the family and,
absent the parents’ unfitness, it should be beyond our courts’ power to say
otherwise.

45
costs, which will lead to either a reduction in interest in sponsoring youth activities or an

increase in participation costs for minors and their parents, and (6) nonprofit recreational

providers will have a more difficult time recruiting volunteers because of their fear of

being personally sued if a child is injured.72

The rule established here by a majority of justices summarily strikes down tens of

thousands of waivers now believed to be valid and enforceable by thousands of providers

of recreational and sporting opportunities and the parents of children who partake in such

opportunities.73 One can then be assured, as certainly as day follows night, that every

hard slide at third base, every hockey penalty, every overly aggressive tackle, every slip

at an ice arena, every broken leg at a summer camp, every display of carelessness by a six

year old, and every collision between two young athletes will be followed by the

attentions of a lawyer newly specializing in “recreational and sporting law.” That is, if

72
The lead opinion asserts, remarkably, that if the rule the majority here favors
were not adopted, business owners might have a diminished incentive to maintain their
property appropriately, resulting in an increased number of injuries to children. Ante at
19-20. I see just the opposite incentive. This concern is considerably overblown, in my
judgment. First, providers would continue to be liable when they acted in a grossly
negligent manner. Second, recreational providers of sports and recreational activities to
adults already have waivers enforced absent gross negligence, and there is utterly no
evidence that those facilities are generally maintained in an unsafe manner. Third, as
noted by the Ohio Supreme Court, “enforcement of [parental waivers] may well promote
more active involvement by participants and their families, which, in turn, promotes the
overall quality and safety of these activities. [Zivich, 82 Ohio St 3d at 372.]
73
Regrettably, many of the providers who continue to abide by established
customs and practices, and who may only belatedly become aware of today’s decision,
will learn the hard way that contracts they believed were protecting them and their
businesses have become unenforceable. This is all the more reason why the common law
ought to closely reflect the actual customs and practices of the people, so that citizens
need not enroll in continuing legal education courses.

46
some intrepid providers can still be found who are prepared to continue to make available

youth recreational and sporting opportunities.

By contrast, enforcing parental preinjury waivers of negligence claims accords

respect to the judgments of parents concerning their minor children’s welfare, upholds

the freedom of contract, encourages safe and available recreational and athletic

opportunities, and intelligently and responsibly reconciles competing societal interests in

a fashion similar to that of the Legislature in a widening range of areas pertaining to

recreational and sporting opportunities. In refusing to permit parental preinjury waivers,

the justices in the majority fail to appreciate the destructive impact of their decision on

children, parents, and those who finance and provide recreational opportunities.

The clarifying rule I would adopt is consistent with the common law’s concern

that children generally be protected from their own contractual follies, and it is equally

faithful to the common law’s concern that parents not act precipitously when releasing an

existing negligence claim of their child. This rule is also consistent with the actual

practices of the parties themselves in this case, as well as with those of Michigan citizens

generally. Indeed, it is contrary to our common-law experience not to bring the common

law into accord with the actual customs and practices of its citizens; rather, those

customs and practices lie at the foundation of our common law. In my judgment, the rule

that would best serve the interests of Michigan citizens, and that most closely comports

with our people’s values and traditions, is the rule set forth in this opinion.

47
 VI. RESPONSE TO JUSTICE HATHAWAY’S OPINION

Justice HATHAWAY’s opinion shows particular confusion in its confident and

sweeping assertion that “[parental] pre-injury waivers have never been enforced or

considered enforceable by the courts of this state.” (Emphasis added.) There is, of

course, not the slightest evidence in support of either prong of this assertion. Concerning

the first prong, past enforcement, Justice HATHAWAY fails to cite a single judicial

decision in this state’s history involving a parental preinjury waiver, and given her

agreement with the lead opinion that such waivers are “likely familiar” to parents with

young children, one might reasonably wonder why the absence of such judicial decisions

supports her conclusion rather than exactly the opposite conclusion. Concerning the

second prong, parental preinjury waivers not being “considered enforceable,” there is

also not a bit of evidence in support of her position. To the extent that a straightforward

and unambiguous waiver is viewed as meaning what it says, there is no reason to suppose

that a parent who had signed such a waiver and whose child had been injured in the

course of a sporting or recreational activity would even assume that a lawsuit could be

brought. While Justice HATHAWAY would apparently tally that parent within the ranks of

those who did not “consider enforceable” the waiver, exactly the opposite conclusion is

better founded. That is, precisely to the extent that parents shared Justice HATHAWAY’s

view and did not view waivers as enforceable, one would logically surmise that lawsuits

would be brought and that the absence of such lawsuits should be seen not as Justice

HATHAWAY does, as evidence of their unenforceability, but as evidence of the opposite.

Justice HATHAWAY’s premise is necessarily that injured persons reflexively bring

48
lawsuits even when they recognize that they have signed contracts precluding such

lawsuits and that their not bringing such lawsuits is the equivalent of their viewing the

contract as “unenforceable.” Hers is a seriously faulty premise and, thankfully, does not

yet reflect the norms and values of the people of this state, the instant decision by a

majority of justices notwithstanding.

VII. CONCLUSION

For all the foregoing reasons, I would affirm in part the judgment of the Court of

Appeals to the extent that it held that defendant was not entitled to summary disposition,

on the alternative ground that the actual language of the release at issue did not waive the

minor’s claims. I would vacate that portion of the Court of Appeals’ judgment

concluding that a parent cannot waive a minor child’s negligence claims prospectively,

because the release at issue did not actually do so. I dissent, however, from the decision

to extend the common-law rule forbidding a parent to release a child’s existing

negligence claim to further forbid a parent to prospectively waive such a claim so that his

or her child may participate in recreational or sporting activities. The decision by a

majority of justices will have significant consequences that will be felt widely throughout

this state, including both an increase in litigation and a reduction in sporting and

recreational opportunities for children. Thus, if the enforceability of parental preinjury

waivers were properly before us, and it is not, I would clarify that Michigan’s common

law permits the enforcement of a parental preinjury waiver.

CORRIGAN, J., concurred with MARKMAN, J.

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