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I am going to make vacation on Hawaii next week. For one day we booked a Ziplining tour. Just after the free cancelation date passed, I was sent a waiver which is required to be signed to participate.

And this waiver is something, even without knowing much about the legal system of the USA, I can't imagine to be justified.

It asks me to hold the event host and their employees free from any damage or claim due to risks of i.e. servere injury, disabilitys or even death. OK, that's fair.

Then it says that I also waive any such action for cases where anything like this happens negligent. This made me already feel somewhat uncomfortable. But not knowing the laws in the USA, this might be a thing one can ask me to waive.

But then it also mentioned any of the risks or harm caused by them deliberately. And causing the risk of murder (what deliberately causing an accident that leads to death) makes me not want to sign that waiver. It feels just not right.

Now leaving aside if you can waive and agree to indemnify in the USA for a deliberately caused death...

Given that I got the waiver handed over just after the free cancellation period had ended and being unwilling to sign that waiver, are they entitled to keep my payment, because I missed the free cancellation period? (It was said before that there will be such a waiver, but it was not linked or anything and I was just told that the waiver will be sent out a few days prior to the event.)

Community
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Zaibis
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3 Answers3

35

This waiver is unenforceable in Hawaii

Persons who “owns or operates a business providing recreational activities to the public” cannot disclaim liability for negligence. However, they are not liable for inherent risks providing those risks are disclosed. (Haw. Rev. Stat. § 663-1.54)

While a business might be tempted to include an unenforceable waiver to discourage someone suing, it’s a bad idea. Hawaii, like most other jurisdictions, have consumer protection laws against misleading and deceptive conduct - saying you cant sue when you can has been held to be such conduct.

Dale M
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That disclaimer for deliberate damages is obviously and indisputably in circumvention of public policy and therefore is null and void. If they deny service on the basis of you not signing that disclaimer after you already paid for whatever service it disclaims damages of, you probably will have a claim.

kisspuska
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But then it also mentioned any of the risks or harm caused by them deliberately. And causing the risk of murder (what deliberately causing an accident that leads to death) makes me not want to sign that waiver. It feels just not right.

You can use a legal contract like a disclaimer to forfeit your rights to take civil action against the other party (i.e., suing them for damages). What it cannot do is protect them from anything considered a criminal offense (assault, murder, fraud, identity theft, etc). Criminal offenses are a matter between the perpetrator and the state. The victim doesn't have the ability to forfeit the state's right to prosecute.

Deliberate harm of any meaningful magnitude would most likely be a criminal offense. Many types of harm due to negligence are also criminal offenses (e.g., negligent homicide). No disclaimer would enable the tour operator to commit criminal offenses against you with impunity.

Regarding whether you can get a refund, I'd imagine you could (at least technically). Without signing the disclaimer, the company will refuse to offer you their services. It would be hard to justify them simultaneously refusing to serve you and keeping your money. However, a particularly stubborn company could drag the process out if they know you're a traveler. The amount you'd recover would be far less than the cost of extending your trip long enough to go through the court system. Unless this was a particularly expensive excursion, it's probably not worth the hassle of forcing a refund if the company doesn't cooperate. I'd still file a formal complaint, though.

bta
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