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Woodman v. Kera LLC - 486 Mich. 228, 785 N.W.2d 1 (2010)


Just as legislative amendment of the common law is not lightly presumed, the Supreme Court of Michigan does not lightly exercise its authority to change the common law. Indeed, the court must exercise caution and defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law. Whether to alter the common law is a matter of prudence and, because the court shares this authority with the Legislature, it must consider whether the prudent course is to take action where the legislature has not.


Plaintiff Sheila Woodman and her husband held a birthday party for their five-year-old son, T.W., at an indoor play facility operated by defendant Kera LLC, dba Bounce Party ("Kera"). Before the party, T.W.'s father signed a liability waiver on T.W.'s behalf. During the party, T.W. jumped off a slide and broke his leg. T.W., by his mother, filed a lawsuit against Kera in Michigan state court alleging negligence, gross negligence, and violation of the Michigan Consumer Protection Act (MCPA). Kera filed a motion for summary disposition, arguing, inter alia, the T.W.'s claims were barred by the liability waiver. T.W. filed a cross-motion for summary disposition, arguing that the waiver was invalid as a matter of law because a parent could not waive, release, or compromise his child's claims. The trial court ruled that the waiver barred T.W.'s negligence claim, but not his gross negligence or MCPA claims. Both parties appealed, and the court of appeals reversed, holding that the waiver was invalid to bar the negligence claim. Kera appealed.


Should the state supreme court modify the common law to permit a parent to bind his child to a pre-injury waiver of liability?




The state supreme court affirmed the appellate court's decision and remanded the cause for further proceedings. The court noted that it was well established in the common law in Michigan that a parent was without authority to bind his child by contract. The father signed the waiver on behalf of T.W., thereby intending to bind T.W. to that contract; yet, he was without authority to do so under the common law, and as a result, the waiver was not enforceable against T.W. and did not bar his cause of action. The court refused to modify the common law, noting that the legislature was in a much better position to determine whether changing the common law to permit a parent to bind his child to a pre-injury waiver would result in a net societal benefit. Moreover, Kera failed to identify any existing public policy supporting the change in the common law that it sought. The existing positive law and common law indicated that enforcing parental waivers was contrary to the public policy of the state.

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