Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.Posted: September 30, 2019
However, the court does uphold the use of a release as a defense to a horseback riding claim.
State: Hawaii, Supreme Court of Hawai’i
Plaintiff: Lisa Courbat and Steven Courbat
Defendant: Dahana Ranch, Inc.
Plaintiff Claims: negligence, gross negligence and the actions of the defendant were a deceptive trade practice
Defendant Defenses: Release
Holding: For the plaintiffs on the deceptive trade practices claim and sent back for review. However, if not a deceptive trade practice then for the defendant because of the signed release.
The plaintiff’s signed up with a third-party booking agent to take a horseback ride while in Hawaii. Upon arrival, they were presented with a release to sign which they were not told about when the booked the ride. Both the plaintiff and her husband signed the release.
During the ride the plaintiff road her horse to close to another hose that kicker her in the leg.
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.”  According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin.
It was interesting the court went on for 2 more pages, including the deposition testimony of the plaintiff and the wrangler on how this occurred. It seems like the defendant missed the defense of assumption of the risk, and the court was pointing it out to them.
Analysis: making sense of the law based on these facts.
The first argument of the plaintiff’s the court reviewed was whether the practice of booking a ride and having the release signed after the people arrive for the ride was a deceptive trade practice. The Plaintiffs argued.
… that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.
Hawaii Revised Statute ch. 480 is the Hawaiian deceptive trade practices act.
The plaintiff’s argued that not telling guests that they had to sign a release until after they arrived was misleading, and the release should be thrown out of that reason. A prior court of appeal’s decision held that the act was not available to plaintiff’s for personal injury claims. The plaintiff’s argued the act did apply because they were injured economically because of the cost of the ride.
The court held that a three-prong test must be applied to the facts to determine if the actions of the defendant violated the statute. The court also held that a determination that the actions violated the statute must be determined by the trier of fact, (the jury) and could not be determined by a motion for summary judgment.
This set up two possible outcomes. The first the non-disclosure of the waiver was a deceptive trade practice, then the release would be void. Also, the court held that the protections and rebutable presumption the Hawaii Equine Liability act provided would be void.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived.
If the trier of fact held that the non-disclosure of the release was not deceptive, then the release is valid and the defendant’s win.
“The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained. “Furthermore, ” ‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.’
“[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Therefore, as a general rule, ” ‘[e]xculpatory 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.’ ”
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
The court never really specified what the reasoning for its conclusion that the Hawaii Equine Liability Act did not apply except the one statement.
…. we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence on the part of the tour operator, does not apply to the present matter.
The plaintiff argued the release was void because of public policy grounds which the court denied.
….we determine that the public interest here is not at stake: recreational activity tours are not generally suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
….in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.’ (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.”
The court tied up any lose ends by reiterating the plaintiff’s deposition testimony concerning the release.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it, they were waiving legal rights in return for being allowed to participate in the ride.
The final issue was the gross negligence claim the plaintiff’s plead. The court stated the release did not protect against gross negligence or willful misconduct.
So Now What?
The good news is, if properly written and presented in advance of the arrival or the guests, a release in Hawaii is valid. If the release is void, big check. If the release is valid, still the issue of gross negligence to determine.
Copyright 2019 Recreation Law (720) 334 8529
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