Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release

Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

Hawaii Revised Statutes, Section 663-1.54

Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.

In Wheelock vs. Sport Kites

Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors

Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation

Plaintiff Claims: Negligence, Gross Negligence and Product Liability

Defendant Defenses: Release

Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.

In King v. CJM Country Stables

Plaintiff: John King and Patricia King

Defendant: CJM Country Stables

Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior

Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute

Holding: For the Plaintiff

Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.

In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating.  However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.

To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law.  The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence.  Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke.  Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites.  The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.

The court did not allow the release to bar claims for gross negligence and the product liability claim.

Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward.  The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’

§ 663-1.54.  Recreational activity liability.

(a) Any person 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, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:

(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.

(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

This statute superseded the common law, which developed through Wheelock and the cases preceding it.

The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.

The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:

…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.

The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”

Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.

…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.


The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.

It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases.  The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.

Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent.  The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment.  A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.

Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results.  Second, the statute explicitly states that providers will be liable for negligence.  Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability.  The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.

So Now What?

Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).

The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.

What do you think? Leave a comment.

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2 Comments on “Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release”

  1. My thoughts on this case go against what the court ruled. Mr. Wheelock was on vacation and as a tourist looked up a recreational activity that he thought he would be safe in participating in. You sign a waiver knowing the risks, but faulty safety equipment should not be one of them. If you hit bad winds or have other occurrences that are out of both yours and the company’s control you take that risk and that is on you but having negligence on equipment should not be one of them. If you look up a company on a website and see that a death has occurred because they did not properly check their equipment most likely people are not going to choose that company to participate in their outdoor activity choice, they will choose another company that may have had accidents caused by acts of God but not by negligence on the company’s part. I personally think the court was wrong and that the company had a breach of duty with the waiver that Mr. Wheelock signed. I understand that the point of having a waiver is to help prevent against those things but unless it states in the waiver that cause of death can be caused by faulty equipment then Mrs. Wheelock should have on her case. I don’t think that this should be true in every case, but I think that should be the case in this one. Under no circumstances should you plunge to your death with faulty equipment of every strap to break. I know that sometimes equipment doesn’t work for example a parachute that doesn’t open or a freak accident like that, but to have all of the straps break on your paraglide I feel is negligence and gross negligence on your company’s part, especially if you’re not trespassing and you signed up to ride an outdoor recreation activity.


    • You bring up a tough issue. It is difficult for a novice to inspect the equipment to begin with and then to know if the equipment if faulty or not makes it even harder for 99% of the population.


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