Pre-Injury Liability Waivers in Michigan
Likelihood of Enforcement: Strong
Michigan law holds that “it is not contrary to this state's public policy for a party to contract against liability for damages caused by its own ordinary negligence.” Skotak v. Vic Tanny Intern., Inc., 513 N.W.2d 428, 429 (Mich.App. 1994). However, waivers will be “subject to strict construction and will not be so construed unless the contract language clearly evidences that [a liability waiver] was the intended effect.” A party cannot contract against liability for gross negligence or willful and wanton misconduct, and the two claims are treated as legally distinct. Skinner v. D–M–E Corp., 335 N.W.2d 90, 92 (Mich.App. 1983). Pre-injury liability waivers signed by a parent will not be upheld against a child’s cause of action because of Michigan’s common law rule that “a parent is without authority to bind his child by contract.” Woodman ex rel. Woodman v. Kera LLC, 785 N.W.2d 1, 9 (Mich. 2010).
Despite the Michigan courts’ assertions of strict construction, those same courts have “discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee's own negligence unless such an intent is expressed clearly and unequivocally in the contract.” Sherman v. DeMaria Bldg. Co., Inc., 513 N.W.2d 187, 190 (Mich.App. 2003). Specific language, including use of the word “negligence” or a description of the injuries within the scope of the waiver, is not required for enforcement. “[B]road indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.” Id. (internal quotations omitted).
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.