Public policy prohibits the presumptive enforceability of liability waivers signed by parents on behalf of their minor children, the Michigan Court of Appeals has ruled.
The plaintiff was the mother of a child injured when the boy jumped off a slide at Bounce Party, a children’s entertainment facility that was rented to celebrate his fifth birthday. The day of the party, the child’s father, signed the waiver on his son’s behalf. An employee of Bounce Party conducted a “safety talk” before the party began, and written rules were posted on the slide and wall informing guests not to jump from the slide. However, after correctly using the slide five times, the birthday boy jumped from the top of the slide, fell to the ground, and broke his leg.
The mother sued the facility for negligence. She claimed it falsely advertised that it was a safe facility, alleging that Bounce Party did not provide reasonable supervision. The mother argued that the waiver was invalid because under state law a parent could not waive, release or compromise claims by or against the parent’s child.
The court of appeals agreed.
“Michigan, consistent with other jurisdictions, does permit specific statutory exceptions to the common law rule of preclusion of parental authority regarding the release or waiver of children’s rights [but] such exceptions are limited and strictly construed,” the court said.
“Without specific legislative direction this court is precluded from defining or implementing any such divergence from the common-law preclusion regarding the validity of any form of waiver by a parent on behalf of their minor child.”
Why is this ski news? Because the court cited similar cases from Colorado, Utah and New Jersey. Specifically the opinion cites Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), in which the Colorado Supreme Court held that as a matter of public policy, parents could be made to not sign away law’s protections of children. Harkening back to a case over 100 years old, the court said that courts “owe a duty to exercise a watchful and protecting care over a minor’s interests, and not to permit his rights to be waived, prejudiced, or surrendered either by his own acts, or by the admissions and pleadings of those who act for him.” Cooper at 1234, quoting from Seaton v. Tohill, 53 P. 170, 172 (Colo. App. 1898). *
What the Michigan opinion does not mention is that in 2003, the Colorado General Assembly reversed the Cooper decision, expressly validating such parental waivers, saying that the holding in Cooper reflected neither the “intent of the general assembly or the public policy of [the] state.” Colo. Rev. Stat. Ann. § 13-22-107, as added by Laws 2003, Ch. 262, § 1, eff. May 14, 2003.
So much for public policy…
*Jim Chalat was attorney for the amicus curiae filed by the Colorado Trial Lawyers Assn., in support of Mr. Cooper