By Doyice Cotten
Waiver law in Hawaii has been unclear for some time. In the past, waivers have been enforced in Hawaii, however, in 1997 the Hawaii Legislature passed HRS § 663-1.54 which read in part:
(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.
This seemed to be a clear cut prohibition of waivers for negligence, however, in a 2006 equine case (Courbat v. Dahana Ranch, Inc.), the Hawaii Supreme Court ruled that if the administration of the waiver used by the ranch was not deemed to be deceptive, then the waiver would waive the negligence claims against the ranch. Likewise, the waiver used by a tour company involved in a plane crash (Bailey v. United States of America, 2003) was enforced by the United States District Court.
On the other hand, a waiver in another equine case (King v. CJM Country Stables, 2004) was rejected by the United States District Court. The court relied on HRS § 663-1.54 in denying CJM’s summary judgment motion.
Mohler v. Kipu Ranch Adventures, LLC (2014 U.S. Dist. LEXIS 159195)
Kimberly Mohler rented an ATV for an a paid, guided, scenic tour for herself and a friend. They arrived early and both customers signed a waiver of liability. The waiver, in part, follows:
I hereby RELEASE AND DISCHARGE Kipu Ranch Adventures, L.L.C., their guides, agents, and employees, and William Hyde Rice, Limited, a Hawaii corporation, from any and all liability, claims, demands, or causes of action that I may have for injuries or damages arising out of my participation in four-wheel all terrain vehicles, guided routes, by Kipu Ranch Adventures, L.L.C.. I understand that this release of liability applies to any accident or occurrence of any kind which could occur as a result of using or riding on equipment or vehicles furnished by Kipu Ranch Adventures, L.L.C., whether or not Kipu Ranch Adventures, L.L.C., including it’s [sic] agents and employees are negligent.
I further acknowledge that full disclosure of all inherent risks associated with this guided tour have been disclosed to me. I hereby knowingly and willingly ASSUME ALL RISKS associated with this recreational activity.
I further declare . . . that I am voluntarily assuming all risks, including but not limited to . . . my inability to properly control any equipment furnished to me. I understand and acknowledge that four-wheel all terrain vehicle [sic], or activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate, and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF INJURY OR HARM WHILE PARTICIPATING IN THIS RECREATIONAL ACTIVITY.
I further agree that I WILL NOT SUE OR MAKE A CLAIM FOR NEGLIGENCE AGAINST KIPU RANCH ADVENTURES, LLC, OR WILLIAM HYDE RICE, LIMITED, FOR DAMAGES OR OTHER LOSSES SUSTAINED AS A RESULT OF MY PARTICIPATION IN THIS RECREATIONAL ACTIVITY. I further agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgment and costs, including attorney’s fees, incurred in connection with an action for negligence brought as a result of my participation in this recreational activity.
. . .
I have read this agreement and release of liability, understand it’s [sic] contents, and freely sign of my own free will.
After signing the Release, the plaintiff and her friend were fitted for helmets and goggles, given a fifteen minute orientation, led to their vehicle, and plaintiff was given instructions on how to start, steer, accelerate, and brake the ATV. Plaintiff then drove the ATV twice around the perimeter of the arena to familiarize herself with the ATV. They were told to keep a safe speed and stay a safe distance from the next ATV.
Albano never warned Plaintiff that the Operator’s Guide states that riding an ATV with a passenger may affect vehicle handling. The same training was given to all customers whether they were riding single or with a passenger and were not warned that riding with a passenger poses greater risks. Mohler was not told that there was a special technique to braking on hills. Further, Kipu did not provide the Operator’s Guide to customers or have them watch the safety video provided with the ATV.
The guide led the tour and Mohler and her passenger were immediately behind her. At times the guide got far ahead and Mohler would speed up to catch up. On one occasion, she “fishtailed” when trying to catch up, went off the path, and struck a tree.
1) The court relied on HRS § 663-1.54 and decided the statute voids the waiver in regard to Mohler’s negligence claims.
2) In addition, the court stated that it is a question of fact whether Kipu provided full disclosure of the inherent risks as required by the statute. The court pointed out that pursuant to § 663-1.54(c),
“[t]he determination of whether a risk is inherent or not is for the trier of fact,” meaning that the court cannot determine on summary judgment whether a written release constitutes a valid waiver of Defendant’s liability in this action. See also King, 315 F. Supp. 2d at 1067 (determining that § 663-1.54(c)’s “statutorily-imposed genuine issue of fact precludes summary judgment as a matter of law”).
Thus, since it is a question of fact as to whether a defendant fully disclosed the inherent risks to the plaintiff, summary judgment is always inappropriate and the question must go to trial for determination. The court, therefore, DENIES Defendant’s Motion for Summary Judgment.
Recreation providers in Hawaii would be advised to maintain a strong risk management program – making every effort to avoid injuries and subsequent lawsuits. It seems that waivers of liability for negligence will not be enforced in the State. In addition, providers would be wise to take extra efforts to insure (and be able to show evidence) that the customer has a clear understanding of the inherent risks.
Photo Credit: Thanks go to the U.S. Army on Flickr.