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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.)

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    Not sure about Hawaii law, but I would probably make a police report for extortion if they explicitly assert, say, in writing, that they would not abide by the contract and kept the money unless you surrender or forfeit certain rights or prerogatives purchased by the payment including those read into the contract by the operation of law. If it was California, I could support it by case law so that it would be well-established. Although, no cop would give a damn or prosecutor to prosecute the matter any ways.
    – kisspuska
    Sep 14, 2022 at 3:54
  • They are deliberately letting you use the zip line. So if anything happens because you were using the zip line, they will have created the relevant risk deliberately.
    – Jan
    Sep 14, 2022 at 14:11
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    I'm not a lawyer, but I've been told by one that they don't even read these. It's an "adhesion contract" and you just sign it and if something happens you argue in court afterwards whether the waiver is reasonable or not.
    – IceGlasses
    Sep 14, 2022 at 19:51
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    You should expect to be asked to sign such a waiver for any activity like this. You should have seen it at the time of booking, not after the cancellation period had passed. It may be that they are taking advantage of people who will not sign the waiver, but I would be surprised because those are few. If you don't want to sign it, I would ask to cancel for that reason and see what they say. If they refuse, tell your credit card it is a fraudulent charge because they did not disclose the conditions. "Never ascribe to malice what you can explain by stupidity." Sep 15, 2022 at 3:14
  • I'd assume that they are putting in the plainly unenforceable crazy clauses mainly as evidence that the inherent risks can be understood to be broad if it ever comes up in court, but I am not a lawyer, so take anything I say with a big ole' grain of salt.
    – Ben I.
    Sep 15, 2022 at 13:03

3 Answers 3

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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.

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    Okay, so another clause following the list of risks saying "this list is not exhaustive and includes any risks the operator isn't aware of at the time of signing, no matter if unforeseeable or foreseeable." can be considered unenforceable, too. Given that the risks had to be disclosed. So even if I sign the contract most of it wouldn't be relevant and it would become rather an very generic waiver, given the salvatoric clause. Is my understanding here generally correct?
    – Zaibis
    Sep 14, 2022 at 7:58
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    I do wonder what the reason is for these clearly unenforceable waivers. Sep 14, 2022 at 16:58
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    @Crazymoomin Having signed such a waiver may discourage a client from seeking redress, even if they are in fact still entitled to it. And it's more or less free for the business to put unenforceable clauses in, so they might as well try it to potentially save themselves some money by discouraging claims.
    – amalloy
    Sep 14, 2022 at 17:10
  • @Crazymoomin Also, I think it may count as the disclosure necessary for disclaiming inherent risks Sep 14, 2022 at 19:29
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    @amalloy not only is it more or less free to include unenforceable clauses but it's potentially pretty expensive to undertake a proper legal analysis of what is and isn't enforceable, just to make sure you don't miss a chance to sign away liability where you're allowed to. Much easier to just name every possible liability you can imagine, and look in more detail if it looks like you'll be held liable for a specific loss if not for a waiver.
    – Will
    Sep 15, 2022 at 14:25
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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.

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    This answer requires evidence, e.g. citing a law book, court case, or other authority.
    – Stuart F
    Sep 14, 2022 at 13:50
  • @StuartF can you cite law.SE rules for a blanket rule or such that narrowly applies to my answer? My gut tells me about a third of all answers include no citation, probably fourth or more of the accepted ones do neither
    – kisspuska
    Sep 14, 2022 at 20:11
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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.

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    Your primary recourse is to name and shame as much as possible so that they lose as much business as possible until they change this reprehensible requirement. Review them on Yelp, on Google, and so on. Sep 15, 2022 at 23:29
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    @DavidSchwartz - When a business is giving visitors the run-around because they know they won't stick around to follow through, it can also helpful to complain to the local police and to the tourism bureau. They want tourists coming in and spending money, so after a couple of complaints they can get very motivated to get involved with anything that might drive tourists away or make them spend less money.
    – bta
    Sep 17, 2022 at 4:00

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