Update on Effect of Parental Waivers for Children

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.

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The following article reports on an increasingly used strategy by individuals representing homeowners whose homes are in danger of foreclosure. In summary, the article addresses situations where a homeowner’s mortgage may have been sold or reassigned between several different companies and, therefore, the original mortgage note and mortgage executed by the homeowner cannot be located. If there is no evidence of a mortgage note or mortgage having been executed by the homeowner, then the bank or lending facility may have a challenge to actually prove indebtedness. The article below does provide useful information and should be considered by any homeowner facing a foreclosure action by their lender.

Dan Penning

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