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Trials and Tribulations of a Recreational Activity Lawyer

Jacob K Lowenthal

Trials and Tribulations of a Recreational Activity Lawyer
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Maui, Hawaii, is commonly referred to as paradise—one that many people hope to visit at least once in their lives. Visitors come to the island to see the sights, bask in the sunshine, and embark on adventurous activities. Whale watching and kayaking tours, horseback riding through forests and along coastlines, snorkeling and scuba adventures, and ziplining in the West Maui Mountains are a few activities for thrill-seekers looking to have fun on their vacation.

The story starts the same for most people. The visitors book an activity. They arrive at their activity site. Consent forms are provided and quickly signed, with the specific terms of the forms often ignored. Next, employees regale the visitors with lore about the area and share fun stories. Finally, the activity starts, and the fun begins! During the activity, an unexpected thing happens: someone falls, is struck, crashes, or is otherwise injured. Following a possible trip to the emergency room or even surgery, and after the dust settles and the visitor returns home, they have time to think about what happened. They may even think to themselves, “you know, I think something went wrong with that activity I signed up for.” That is where the recreational activity lawyer steps in.

Recreational activity cases do not often fit into the neat boxes of common personal injury cases like car crashes or slip-and-falls. They frequently involve terrible injuries, and each one seems so different—a lady falls off a horse during a tour and suffers a traumatic brain injury, a man breaks his back while ziplining, a visitor’s legs are lacerated on a kayak ride when she is slammed by a wave while trying to disembark. From a legal and factual standpoint, each case begins as unique and mysterious but can slowly bloom into a strong case you take to a jury.

Handling these cases, attorneys get to know a lot about each new activity they litigate. With every type of case—horseback riding, ziplining, boat tours, all-terrain vehicles, kayaks—you learn something new. If you are the type of person who likes learning new things continually, this is a good area of law to practice. You can learn the mechanics and engineering of how zipline brake systems work. You can learn the techniques of cowboys to make sure horses are safe for guests. And, you can learn a lot about how boats float.

Recreational activity cases can also be strange and challenging at times. Do not expect to settle or win them without a fight. If you want to be successful in litigation, you must be willing to take the time and care to learn about the activity and drill down into the activity provider’s policies and procedures to help answer the question of whether the provider failed to ensure the safety of a guest who was injured.

Maui boasts a population of 170,000 and hosts more than 3 million visitors annually. Most of my recreational activity clients are not from Hawaii. They are primarily from the contiguous United States, and some are international visitors. Being thousands of miles away from clients poses particular challenges. For example, getting medical records can require Zen-like patience. Often, each client is in their home state with varying state laws and with their local medical providers who have their own way of doing things.

Before COVID-19, litigation often involved logistical challenges and could be expensive for the client. I would routinely fly to the mainland for depositions and to neighboring islands for 10-minute hearings. During the trial, we would fly witnesses and experts to Maui and cover airfare and accommodations. However, COVID-19 forced Hawaii attorneys to adapt technologically to keep practicing and moving our cases forward. Today, depositions are regularly taken via Zoom, with folks all over the world testifying. Testimony from treating physicians and expert and lay witnesses is now conducted via Zoom in the courtroom. This digital revolution saves everyone time and money, which ultimately goes toward helping the client.

Focusing on recreational activity cases is a rewarding and often untapped niche area of personal injury where you get to help someone whose world changed for the worse during what was supposed to be a highlight.