Whether you visit Hawai‘i or live here full-time, you have probably been tempted to engage in a recreational activity. From boating to biking to jet skiing, there are so many options for outdoor fun in Hawai‘i. Yet each of these activities also carries a certain amount of risk and typically requires you to sign a liability waiver.
While these waivers may seem scary, the reality is that you can often still file a lawsuit even if you have signed a waiver. Hawai‘i sets strict limits on the use of waivers, and as a result, they often are not enforceable. Our Honolulu recreational activity attorneys
can help you evaluate your options and determine if you can file a lawsuit against the company or another party.
At Miyashita & O’Steen, we are committed to providing the highest level of legal representation for our clients. We work hard to get maximum compensation for injury victims throughout Hawai‘i, and we never charge a fee unless we recover money for you. Reach out to our law offices to schedule a free initial consultation with a Honolulu personal injury lawyer.
What Is a Liability Waiver?
If you participate in any sort of recreational activity in Hawai‘i, you will almost certainly be required to sign a liability waiver as a condition of participation. So what exactly is a waiver, and how does it affect your legal rights?
A liability waiver is a written legal agreement between a company and a client. Generally, these waivers will list the potential risks associated with a given activity. The client will then sign the agreement to acknowledge the risks and give up the right to sue the company if they are hurt while engaging in the activity.
Under Hawai‘i law, owners and operators of recreational activities are not liable for damages suffered by a patron that arise from the inherent risks associated with that activity, if the patron voluntarily signs a written release. To be valid, these waivers must meet the following conditions:
- The owner or operator fully discloses the inherent risks associated with the activity; and
- The owner/operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instructions to participate in the activity safely.
For purposes of waivers, an inherent risk is a danger that a reasonable person would understand is associated with the activity by its very nature. This danger must exist despite the owner/operator’s reasonable care to eliminate or minimize the danger. An inherent risk is not a danger that results from the negligence, gross negligence, or wanton act or omission of the owner or operator.
For example, an inherent risk of an activity like scuba diving might be encounters with marine life or gas or pressure-related risks (such as damage to the ears due to pressure changes during ascent or descent). These types of dangers aren’t within the control of the owner/operator of the scuba diving company. That being said, the company owner still has to make sure that any participant understands these risks, that they are physically able to participate, and that they have received the proper training to engage in scuba diving.
Generally, you won’t have a choice when it comes to signing a liability waiver if you want to do an activity. Whether you want to head out on an ATV ride, go horseback riding, or take a helicopter ride, the owner/operator of the company will almost certainly require you to sign a waiver. As explained below, you might still be able to file a lawsuit even if you have signed a liability waiver.
Can You Still File a Lawsuit Even If You Signed a Liability Waiver?
If you get hurt during a recreational activity in Hawai‘i, you might believe that you can’t sue the at-fault party. After all, you signed a liability waiver. Doesn’t that mean that you can’t sue?
Like many legal questions, the answer is that it depends on the facts of the case. If the waiver is valid under Hawai‘i law and you were hurt due to the inherent risks involved in the activity, then you might not be able to file a lawsuit. That being said, there is a significant question as to what exactly is an inherent risk of an activity.
For example, in one Hawai‘i case, a couple went horseback riding in Kauaʻi as part of a cruise excursion. They signed a liability waiver that included horses acting unpredictably as an inherent risk of the activity. During the ride, the wife was bitten by a horse. The couple later sued the horseback riding company for her injuries.
The horseback riding company argued that the lawsuit should be dismissed because getting bitten by a horse was an inherent risk of participation. The Court determined that a jury would have to decide whether or not bites were an inherent risk of horseback riding. In addition, a jury would need to decide whether the company was negligent (careless) in a way that caused the woman’s injuries.
This case highlights the complexities of liability waivers in Hawai‘i. Even if a waiver looks valid on its face, it might not protect the company owner/operator from liability for several different reasons.
In addition to the inherent risk issue, owners and operators of recreational activity companies are liable for any injuries caused by their own actions. Under Hawai‘i law, a person who owns or operates a business providing recreational activities to the public is liable for injuries that result from negligent acts or omissions (i.e., carelessness). Waivers also do not protect companies from lawsuits based on intentional or reckless behavior.
There are many different ways that a recreational activity company might be negligent. For example, if a zipline tour operator does not make sure that its equipment is in safe, working condition, then it could be held responsible for any injuries that result. If an ATV tour operator doesn’t take the time to teach participants how to properly operate the vehicles, then they could be liable if a participant crashes the ATV.
If you have been hurt while engaged in a recreational activity in Hawai‘i (either as a tourist or as a local), you might be able to file a personal injury lawsuit against the owner or operator. Our law firm is adept at handling these cases, digging into the facts and Hawai‘i law to build the strongest possible claim for compensation. Even if you signed a liability waiver, you should talk to our Honolulu personal injury attorneys to learn more about your rights and options.
Hurt in a Recreational Accident? We’re Here for You.
Liability waivers must meet certain criteria to be valid under Hawai‘i law. Perhaps more importantly, they do not shield owners of recreational companies from lawsuits for injuries caused by their own negligent, reckless, or intentional behavior. If you have been hurt in a recreational activity in Hawai‘i, you might still be able to file a lawsuit against the at-fault party.
Based in Honolulu, Miyashita and O’Steen fiercely advocate for clients throughout Hawai‘i. We know that liability waivers can seem intimidating, but they are not necessarily a bar to filing a lawsuit. Our team of skilled litigators will analyze the facts of your case and work hard to defeat the waiver and get you maximum compensation for your injuries. To learn more or to schedule a free initial consultation with a Honolulu recreational activity lawyer, call our law firm at 808-300-0068 or fill out our online contact form.
