RECREATIONAL SPORTS:  ALLOW PARENT

TO WAIVE LIABILITY FOR INJURY TO CHILD

House Bill 4231 as enrolled

Public Act 61 of 2011

Sponsor:  Rep. John Walsh

House Committee:  Judiciary

Senate Committee:  Judiciary

Second Analysis (7-28-11)

BRIEF SUMMARY:  The bill allowa the parent or guardian of a minor child to provide a written release from liability before the child participates in a recreational sport run by a nongovernmental, nonprofit organization.  

FISCAL IMPACT:  To the extent that the House Bill 4231 reduces filings at local trial courts, it would have a positive fiscal impact on the local governments.  There would be no fiscal impact at the state level.

THE APPARENT PROBLEM:

Parents often sign releases on behalf of their children giving up the child's right to sue if the child is injured while participating in sports or other recreational activities.  Many organizations that sponsor or provide recreational activities for children require such releases as a condition of participation.  However, this type of  waiver or release of liability was ruled invalid by the Michigan Court of Appeals in the case of  Woodman v Kera, LLC, 290 Mich. App. 125, 650 N.W. 2d 641 (2008), a case that was subsequently affirmed by the Michigan Supreme Court, 486 MICH 228 (2010).

The Woodman case involved the validity of a waiver signed by the parent of a five-year-old boy who broke his leg at his birthday party held at a commercial indoor play area.   In finding the waiver invalid, the appeals court relied on the common-law rule that parents have no authority simply by virtue of the parental relationship to waive or release claims on behalf of their minor children.  The appeals court concluded that any statutory exception to this common-law rule would have to be created by the Legislature.  In upholding the appeals court's decision, the supreme court also invited the Legislature to address this matter.

House Bill 4231 provides statutory authorization for parents or guardians to release certain organizations, paid staff, or volunteers from liability for damages for personal injuries sustained by children while actively participating in a recreational sport.  The bill only applies to injuries sustained by children who were actively participating in a recreational sport sponsored or organized by nongovernmental, nonprofit organizations. 

 

 

 

THE CONTENT OF THE BILL:

House Bill 4231 added a new section to the Estates and Protected Individuals Code (EPIC) to allow the parent or guardian of a minor to provide a written release before the minor participates in a recreational activity.  Under the bill, a "recreational activity" means "active participation in a recreational sport."  The release would apply to liability for economic or noneconomic damages for a personal injury sustained by the minor during the specific recreational sport for which the release was provided.  Other provisions of the bill include:

·                    The release could only be for a recreational sport sponsored or organized by a nongovernmental, nonprofit organization.

·                    The release could apply to the sponsor or organizer of the recreational activity, or to an individual who was paid or volunteered as a coach or to help conduct the activity, or to both sponsors and volunteers or paid staff.

·                    The release would only apply to liability for injury or death resulting solely from the inherent risks of the sport.  A release under the bill would not limit the liability for negligence of the subject of the release, or the negligence of the organization's employees or agents, that causes or contributes to the injury or death of the minor.

·                    The release would have to be in writing.

·                    The bill would not restrict the limitation of liability provided in Section 73301 of the Natural Resources and Environmental Protection Act^[1] or under Public Act 170 of 1964.^[2] 

MCL 700.5109

BACKGROUND INFORMATION:

In its 41st Annual Report (2008), the Michigan Law Revision Commission recommended that the Legislature immediately review the following question raised by the Woodman v. Kera decision:

Should state law be amended to create an exception to the common-law rule for pre-injury parental waivers and should a distinction be drawn for waivers between profit and non-profit groups? 

http://council.legislature.mi.gov/files/mlrc/2008-09/mlrc_41annual_2008.pdf

ARGUMENTS:

For:

The Woodman decision exposes nonprofit organizations to liability for injuries suffered by children participating in sports, even in the absence of gross negligence.  However, if nonprofit organizations can no longer obtain parental waivers of liability for injuries that result from the sports activity they sponsor, they may no longer be able to provide recreational opportunities for children or find volunteers willing to serve as coaches, thus depriving children of valuable experiences. 

This legislation would permit the use and enforceability of a parental waiver that was limited to releasing the defendant for injury or death resulting solely from the inherent risks of the recreational activity.  The bill would preserve the child's right to sue if the defendant committed negligence that caused or contributed to the injury or death.  For example, a head injury suffered by a child sent on a field to play football without a helmet would not be an injury resulting from an inherent risk in the activity if the injury could have been avoided by wearing standard equipment.  It can be difficult to determine whether a particular type of action qualifies as ordinary negligence, gross negligence, or should be characterized in some other way.  It is clearer to focus on risks that are inherent versus those that are not.

 

The bill is drafted to cover only nongovernmental, nonprofit organizations because governmental organizations such as schools already have governmental immunity and commercial ventures can obtain insurance.  

                                                                                           Legislative Analyst:   Susan Stutzky

                                                                                                  Fiscal Analyst:   Ben Gielczyk

■ This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.

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