Remember the Chicken Little fable where a chicken runs around shouting hysterically that “the sky is falling” in the mistaken belief that disaster was imminent?
Recent news reports indicate that the Michigan Supreme Court last week struck down a pre-injury recreational liability waiver signed by parents in a decision “that has consequences for businesses, schools, and other groups offering recreational activities for minors.”
That sounds scary, doesn’t it? It sounds like a major change in the law in Michigan that will now expose all non-profit and for-profit recreational activities in that state to a flood of lawsuits, henceforth threatening the very existence of such endeavors.
But wait-hold the phone: Michigan has never recognized the validity of such waivers. From the time that Michigan courts first ruled on this issue 133 years ago, its common law has consistently held that such waivers are invalid. Justice Diane Hathaway pointed out that “The fact is that pre-injury waivers have never been enforced or considered enforceable by the courts of this state. 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 pre-injury waivers.”
A law review survey of states (17 J Legal Aspects of Sport 53 ) indicates that such waivers are considered unenforceable in 27 other states besides Michigan; a primary rationale for their illegality is the protection of minors’ rights in contractual obligations-for example a contract signed by a minor has been considered voidable under the law in all states. Only 9 states have considered such pre-injury waivers to be valid.
So is the sky really falling in Michigan?