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STATE OF MICHIGAN COURT OF APPEALS SHEILA WOODMAN, as Next Friend of TRENT WOODMAN, a Minor, FOR PUBLICATION August 12, 2008 Plaintiff-Appellee, V No. 275079 Kent Circuit Court LC No. 06-000802-NO KERA, L.L.C., d/b/a BOUNCE PARTY, Defendant-Appellant. SHEILA WOODMAN, as Next Friend of TRENT WOODMAN, a Minor, Plaintiff-Appellant, v No. 275882 Kent Circuit Court LC No. 06-000802-NO KERA, L.L.C., d/b/a BOUNCE PARTY, Defendant-Appellee. Before: Bandstra, P.J., and Talbot and Schuette, JJ. SCHUETTE, J. (concurring). First, I concur with my distinguished colleague, Judge Talbot, that plaintiff did not establish that defendant’s conduct was grossly negligent; that the Michigan Consumer Protection Act, MCL 445.901 et seq., has no applicability to this case; and that the facts, circumstances, and pleadings of this case do not involve a premises liability action. I further concur, although reluctantly, in the conclusion reached by Judge Talbot that judicial precedent in the state of Michigan requires this reviewing court to invalidate the preinjury waiver of liability signed by the minor child’s father in this case. I also strongly share the sentiments expressed in the concurring opinion of my distinguished colleague, Judge Bandstra. I write separately to emphasize several issues of extreme legal and policy significance that should be addressed as a consequence of this decision. Plaintiff’s claim concerning the validity of a pre-injury, parental waiver of liability for a minor is a newly emerging issue for our courts. As described in Judge Talbot’s thorough -1- opinion, courts across the United States are grappling with this issue, and now it is Michigan’s turn. I believe that under McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 192; 405 NW2d 88 (1987), we are required to invalidate a pre-injury, parental waiver of liability of a minor child. In McKinstry, a pre-injury waiver case, our Supreme Court determined that a mother could bind her unborn child to arbitration under the Medical Malpractice Arbitration Act (MMAA), MCL 600.5046(2).1 Our Supreme Court stated: Our interpretation of §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. Schofield v Spilker, 37 Mich App 33; 194 NW2d 549 (1971); Reliance Ins Co v Haney, 54 Mich App 237; 220 NW2d 728 (1974); 67A CJS, Parent and Child, §114, pp 469-470. However, the common law can be modified or abrogated by statute. Bean v McFarland, 280 Mich 19; 273 NW 332 (1937); O’Brien v Hazelet & Erdal, 410 Mich 1; 299 NW2d 336 (1980). Thus, a child can be bound by a parent’s act when a statute grants that authority to a parent.7 Reliance Ins Co, supra, p 242; Wilson v Kaiser Foundation Hospitals, 141 Cal App 3d 891; 190 Cal Rptr 649 (1983). We believe that §5046(2) of the MMAA changes the common law to permit a parent to bind a child to an arbitration agreement. [McKinstry, supra at 192-193.] Some might argue that the above-referenced quotation is dictum and hence not binding on lower courts in Michigan.2 Or, some might contend that the plain meaning and use of the word “claim” by our Supreme Court in McKinstry may only be interpreted to apply to postinjury waivers, because a claim can only occur after, not before, an injury has been caused.3 Yet, in McKinstry, our Supreme Court stated that “the common law can be modified or abrogated by statute,” McKinstry, supra at 192, seemingly implying that, in the absence of a statute to the contrary, Michigan adheres to the common-law rule prohibiting parental waiver of liability in pre-injury, as well as post-injury, situations. 1 MCL 600.5046(2) was repealed by 1993 PA 78, effective October 1, 1993. 2 Dictum is “‘‘judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).’’” Carr v City of Lansing, 259 Mich App 376, 383-384; 674 NW2d 168 (2003) (citations omitted). 3 A claim is defined as: 1. The aggregate of operative facts giving rise to a right enforceable by a court . . . . 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional . . . . 3. A demand for money or property to which one asserts a right . . . . [Black’s Law Dictionary (7th ed.), p 240.] -2- The decision in this case is bound to have enormous consequence and profound impact throughout Michigan. Of equal significance will be our Supreme Court’s review of this decision, given the dearth of pre-injury, parental waiver of liability cases in Michigan and the wide variety of rulings emerging in other jurisdictions throughout the federal and state courts of this nation. See, e.g., Brooks v Timberline Tours, Inc, 941 F Supp 959 (D Colo, 1996); Lantz v Iron Horse Saloon, Inc, 717 So 2d 590 (Fla App, 1998); Sharon v City of Newton, 437 Mass 99; 769 NE2d 738 (2002); Hojnowski v Vans Skate Park, 187 NJ 323; 901 A2d 381 (2006); Zivich v Mentor Soccer Club, Inc, 82 Ohio St 3d 367; 696 NE2d 201 (1998). Of similar importance is the manner and speed with which the Michigan Legislature responds to this public policy issue, given the absence of any statute codifying the validity and scope of pre-injury, parental waivers of liability for a minor. Most certainly, legislators will come to hear about the impacts of this decision from constituents and interest groups of every competing philosophy and occupation. Certainly, no one in the Michigan judiciary desires to turn a deaf ear or a blind eye to wayward businesses, dishonorable non-profit organizations, or volunteer groups that might place a child in a dangerous situation, notwithstanding a parent executing a release and waiving liability for resulting injury. Equally significant is the fact that an 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.4 Voices will be heard, as this Court heard during oral argument, that no court of law should acquiesce to a piece of paper protecting a business, non-profit organization, or school group from liability when a child is injured. Equally strong will be the chorus of church, school, and volunteer organizations, and passionate parents, de-crying the “chilling effect” of the invalidation of pre-injury waivers, freezing out adult volunteers from participating in youth activities and camps of all kinds, with a Sword of Damocles,5 liability speaking, lurking in the weeds or hanging over their heads. 4 Appended to this opinion are but a few examples of pre-injury, parental waivers, which demonstrate their wide-spread use. Such waivers are utilized by youth and community organizations, universities, and non-profit groups for an immense array of activities across Michigan, including: Arcadia Daze 5K Run (Appendix A), Spring Hill Summer Camps (Appendix B), Jeff Trickey Quarterback Camps (Appendix C), University of Michigan Gymnastics Camp (Appendix D), Ann Arbor YMCA (Appendix E), Detroit Free Press/Flagstar Marathon (Appendix F), and Wayne State University Fitness Kids’ Summer Camp (Appendix G). 5 The “Sword of Damocles” was a sword suspended over the head of Damocles in a Greek myth. Wikipedia <> (accessed July 29, 2008). -3- But in the end, the Michigan Legislature will have to determine whether a statutory exception to the common-law rule for pre-injury waivers should be adopted, and whether there should be any differentiation between profit and non-profit groups as some states have seen fit to do. See Sharon, supra at 109-110; Zivich, supra at 372; Hohe v San Diego Unified School Dist, 224 Cal App 3d 1559, 1564; 274 Cal Rptr 647 (1990). I hope that the Michigan Legislature acts thoroughly and promptly. /s/ Bill Schuette -4- -5- -6- -7- -8- -9- -10- -11-