Suttons Bay Law

Normally, our weekly emails provide information on various legal issues to assist our clients, contacts and other subscribers in their personal and business affairs. Today’s “special edition” is somewhat different. Hopefully the following information will make you pause, reflect on life a moment and simply make your day a little brighter. My wife and I have been blessed with three great sons, one of whom is challenged with autism. While not all of us have the challenge of raising a child with special needs, we all experience disappointments and failed expectations in our lives, careers and relationships. While the following poem focuses on the experience of raising the child with a disability, there are many lessons that we can all learn from the message of the author.

Welcome to Holland

by Emily Perl Kingsley

I am often asked to describe the experience of raising a child with a disability – to try to help people who have not shared that unique experience to understand it, to imagine how it would feel. It’s like this…

When you’re going to have a baby, it’s like planning a fabulous vacation trip – to Italy. You buy a bunch of guide books and make your wonderful plans. The Coliseum. The Michelangelo David. The gondolas in Venice. You may l earn some handy phrases in Italian. It’s all very exciting.

After months of eager anticipation, the day finally arrives. You pack your bags and off you go. Several hours later, the plane lands. The stewardess comes in and says, “Welcome to Holland.”

“Holland?!?” you say. “What do you mean Holland?? I signed up for Italy! I’m supposed to be in Italy. All my life I’ve dreamed of going to Italy.”

But there’s been a change in the flight plan. They’ve landed in Holland and there you must stay.

The important thing is that they haven’t taken you to a horrible, disgusting, filthy place, full of pestilence, famine and disease. It’s just a different place.

So you must go out and buy new guide books. And you must learn a whole new language. And you will meet a whole new group of people you would never have met.

It’s just a different place. It’s slower-paced than Italy, less flashy than Italy. But after you’ve been there for a while and you catch your breath, you look around…. and you begin to notice that Holland has windmills…. and Holland has tulips. Holland even has Rembrandts.

But everyone you know is busy coming and going from Italy… and they’re all bragging about what a wonderful time they had there. And for the rest of your life, you will say “Yes, that’s where I was supposed to go. That’s what I had planned.”

And the pain of that will never, ever, ever, ever go away… because the loss of that dream is a very very significant loss. But… if you spend your life mourning the fact that you didn’t get to Italy, you may never be free to enjoy the very special, the very lovely things… about Holland.

Have a great day,

Dan Penning

Tags: Know it Now, Special Needs Children by Dan Penning
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In 2008, the Michigan Court of Appeals held that a child’s ability to sue for a personal injury is not impaired despite any pre-injury waivers signed by the child’s parent. The case of Woodman v. Kera, L.L.C., 280 Mich. App. 125 (2008), involved a 5-year-old boy who was injured at an indoor recreation facility. The boy’s father had signed a pre-injury waiver, purporting to hold the recreation facility harmless if any injuries occurred to the child. According to the Court, the waiver could not prevent the child from pursuing a lawsuit against the facility. This conclusion was based on the common law rule that a parent lacks authority to waive, release, or compromise his or her child’s claims merely by virtue of the parental-child relationship. A parent, absent a specific exception created by the Michigan Legislature, cannot authorize an act that is detrimental to the child.

This case, which has far-reaching effects on commercial recreation establishments, churches, and schools, is currently under review by the Michigan Supreme Court. Oral argument on the case was heard by the Supreme Court in October of 2009, and an opinion is expected sometime later this year. It is also possible for the State Legislature to enact an exception to the general rule cited in Woodman, either before or after a decision is reached.

In the meantime, Woodman remains the rule in Michigan, and therefore establishments are best served by acting prudently and maintaining adequate insurance. While it is not recommended to discontinue the use of pre-injury waivers, awareness of the limited protection afforded by the waivers is important. For more information about this matter, please contact us.

Tags: Asset Protection, Disputes & Litigation, Know it Now, Personal Management by Dan Penning
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