Have you ever signed a waiver before partaking in a recreational activity such as scuba diving, horseback riding, or the like? Would you be surprised to learn that in many cases in Hawaii, that such a release is often not worth the paper that it is written on?
In HRS § 663-1.54, Hawaii’s legislature has provided that recreational business operators and owners cannot absolve themselves from liability for negligence by having their patrons sign express waivers of negligence. So, if the release that you sign before participating in a recreational activity that you paid for attempts to absolve the recreational business from liability for negligence, that waiver will not hold up in court.
The statute does specify that recreational businesses may attempt to absolve themselves from liability for “inherent risks” of a recreational activity via waiver. See HRS § 663-1.54. However, HRS § 663-1.54 specifies that by definition, an inherent risk is not negligence. Additionally, the question of whether a risk is “inherent” is automatically a determination for the fact-finder. See Mohler v. Kipu Ranch Adventures, LLC, Civil No. 13-00611 JMS-BMK at * 14 (D. Haw., Nov. 7, 2014) (“Thus, § 663-1.54 precludes waivers of liability for negligence, and allows waivers only for damages resulting from ‘inherent risks’ that have been fully disclosed to the customer. And 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.”) (emphasis added).
The practical effect of this statute in litigation is that where a plaintiff has sued for negligence, a recreational business defendant in Hawaii should not be able to get out on summary judgment by arguing that the plaintiff signed a release or waiver, even if they argue that the patron was injured by an inherent risk of the activity instead of negligence.