Hawaii Statute Prohibiting Waivers Enforced in Scuba Case

By Doyice Cotten

10361414_10153486081825606_4805340129485670651_nIn a recent ruling, the U.S. District Court of Hawaii ruled that a liability waiver could not protect a scuba diving business from liability for negligence (Hambrook v. Smith, 2015). William Savage died while scuba diving with Hawaiian Scuba Shack; his wife, Sandra Hambrook filed suit against the company as well as PADI.

Savage had signed a liability waiver which the plaintiff claimed was unenforceable against public policy because it violated a state statute prohibiting liability waivers in recreational activities. There was also an issue as to whether such waivers were applicable according to admiralty law which applied in this case. The court stated that in admiralty law, waivers were prohibited by a federal statute. (Though the statute only seems to apply to cruise ships, it was irrelevant since they enforced the state statute.) The reader might want to review a previous post summarizing waiver law.

In this case, the court ruled that PADI was not a business providing recreational service; so the waiver protected them from liability for all except gross negligence. Hawaiian Scuba Shack, however, did provide the service so the waiver was not enforceable and they were not protected.

Impact of the Statute

The statute has a significant impact on service providers of the relevant recreational activities from four standpoints.

  • First, it states that selected recreational providers cannot gain protection from liability for their negligent acts by using liability waivers; it also prohibits waiver protection against gross negligence or wanton acts or omissions. There is a question, however, regarding for which sports the statutes is intended. It states: by “. . . providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing . . . .”
  • Second, provisions include that the owner or operator must provide full disclosure of the inherent risks of the activity, must take reasonable steps to ensure that each patron is physically able to participate in the activity and is given necessary instruction to participate safely. If the participant voluntarily signs a written release for a recreational activity such as a bicycle tour, sky diving, mountain climbing, or scuba (and presumably other recreational activities of similar kind), it seems clear that the provider is not liable for injuries resulting from the disclosed, known inherent risks of the activity.
  • Third, what constitutes an inherent risk is not specified and can only be determined by the trier of fact – meaning a court cannot determine on summary judgment whether a written waiver constitutes a valid waiver of liability since a statutorily-imposed issue of fact precludes summary judgment as a matter of law. Thus, even protection from inherent risks may be illusionary.
  • Fourth, the statute does not define recreational activities beyond scuba or skin diving, sky diving, bicycle tours, and mountain climbing.



The case did expose the fact that the statute applies only to a business providing recreational activities to the public. It did not apply to PADI. One would assume that it would not apply to waivers used by employees of sport businesses.

The court also discussed the fact that in a previous Supreme Court of Hawaii case, the court stated that waivers are permitted so long as they are knowingly and willingly made and are free from fraud. They did say, however, that waivers are void if the 1) violate a statute (as in this case), 2) are contrary to the public interest, or 3) are gained through unequal bargaining power.

So, according to the statute, recreational waivers (at least for some activities and for some parties) are not legal. According to the Supreme Court, however, waivers meeting certain requirements are enforceable. Good luck.

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