Pre-Injury Liability Waivers in Hawaii

Likelihood of Enforcement: Weak

The Hawaii Supreme Court has pronounced that while “[p]arties are permitted to make [exculpatory] contracts so long as they are knowingly and willingly made and free from fraud,” Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 438 (Haw. 2006); Fujimoto v. Au, 19 P.3d 699, 739 (Haw. 2001) (citing Weaver v. Am. Oil Co., 257 Ind. 458 (1971)), “[e]xculpatory provisions are not favored by the law and are strictly construed against parties relying on them. Exculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.” Courbat, 141 P.3d at 439;Fujimoto, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).  

(1) violative of a statute: 

Waivers in the recreational context are most likely to be invalidated on this ground. A special statutory provision governs liability for anyone 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.” Haw. Rev. Stat. § 663-1.54.  Subsection (a) prohibits owners or operators from disclaiming liability for injuries arising out of negligence; such owners or operators “shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.”  Haw. Rev. Stat. § 663-1.54; see also Hambrook v. Smith, CIV. 14-00132 ACK, 2015 WL 3480887, at *8 (D. Haw. June 2, 2015) (quoting Haw. Stand. Comm. Rep. No. 1537, 1997 Senate Journal, at 1476) (“[T]hese waivers do not extend immunity to providers for damages resulting from negligence.”).  

The statute, however, further provides in Subsection (b) that where “owners or operators” take certain statutorily specified precautions, such owners or operators shall not be liable for damages resulting from “inherent risks associated with the recreational activity” if “the patron participating in the recreational activity voluntarily signs a written release.” Such waivers are valid only where:

(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.  

Haw. Rev. Stat. § 663-1.54 (emphasis added).  As the Federal District Court for the District of Hawaii has ruled, § 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.”  Mohler v. Kipu Ranch Adventures, LLC, CIV. 13-00611 JMS, 2014 WL 5817538, at *6 (D. Haw. Nov. 7, 2014).

(2) contrary to a substantial public interest

With respect to its “contrary to a substantial public interest” exception, Hawaii has incorporated California’s Tunkl factors by reference to New Mexico law, which also follows TunklKrohnert v. Yacht Sys. Hawaii, Inc., 664 P.2d 738, 744 (Haw. App. 1983) (quoting Lynch v. Santa Fe Nat’l Bank, 627 P.2d 1247, 1249 (N.M. 1981) (discussing the Tunkl factors)).  Exculpatory clauses intended to limit liability for gross negligence or willful misconduct are prohibited as violative of public policy in Hawaii.  See Courbat, 141 P.3d at 439.

(3) gained through inequality of bargaining power

Lastly, Hawaii interprets the exception for “(3) gained through inequality of bargaining power” as requiring “the absence of alternatives.” Specifically, Hawaii courts ask “whether the plaintiffs were ‘free to use or not to use [the] defendant’s . . . services.”  Krohnert, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250).  Moreover, Hawaii courts are unlikely to find undue inequality of bargaining power “[i]n the context of a recreational sport or adventure activity, freely undertaken for pleasure.” Courbat, 141 P.3d at 439(asserting that in recreational sport “‘coercive bargaining’ and ‘an absence of alternatives’ are terms that hold little meaning”). 

Last updated: 12/2018

This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.