Is a recreational waiver actually valid?

On Behalf of | Jul 19, 2023 | Personal Injury

Whether you were born in Hawaii or just visiting, you may find all kinds of recreational activities around that appeal to you in your free time – from horseback riding to skydiving and snorkeling to ziplining.

Naturally, you probably expect to sign some kind of waiver that releases the people who own and operate these recreational businesses from liability in case you get hurt. However, HRS § 663-1.54 makes it very difficult for such business owners to absolve themselves from all liability stemming from their own negligence.

What are the owners/operators of recreational businesses expected to do?

Broadly, the statute does say that owners and operators of recreational businesses are not liable for any injuries that a customer sustains due to the “inherent risks associated with the recreational activity” so long as they have a signed release. Injury from an “inherent risk” is not considered negligence on the part of an owner/operator. However, there are a couple of important things to remember about this reality:

  • The owner/operator is expected to fully explain the inherent risks associated with whatever activity is involved
  • Exactly what is considered an “inherent risk” may not be obvious, and it could be an issue that has to be settled in court.
  • The owner/operator is expected to make a reasonable effort to make sure that each patron is physically capable to participate in the proposed activity
  • The owner/operator is also expected to provide patrons with the instructions they need to do the proposed activity safely

This means, for example, that the owner of a zipline company can turn a guest loose on the lines after doing no more than collecting their signature. They need to make sure the guest is in reasonably decent shape to handle the activity, and they need to spend time explaining both the risks of ziplining and what safety measures need to be taken. If they don’t and someone gets hurt, they could be liable.

In other words, the question of liability can be a lot more nuanced and complicated than most people realize – although businesses often hope that the signed waivers they collect simply discourage claims. If you’ve been injured at a recreational business, don’t assume that you’re out of luck simply because you signed a waiver. Take time to explore your options by seeking legal guidance.