HOUSE OF REPRESENTATIVES

H.B. NO.

2592

TWENTY-SEVENTH LEGISLATURE, 2014

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to tort liability.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"46- Hazardous recreational activity; limited county liability. (a) Subject to subsections (b) and (c), no county agency or county employee shall be liable to:

(1) Any person who participates in a hazardous recreational activity, including any person who assists the participant; or

(2) Any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to the spectator and was voluntarily in the place of risk, or having the ability to do so failed to leave the place of risk,

for any injury or damage to persons or property arising out of the hazardous recreational activity.

(b) The injuries or damages described in subsection (a) shall include those resulting from:

(1) Any act of the participant while engaged in the hazardous recreational activity;

(2) The negligence of any participant of the hazardous recreational activity;

(3) Equipment failure that occurs despite reasonable care and maintenance;

(4) Any airborne projectile that is an inherent risk of the hazardous recreational activity, including rocks, trees, equipment, or human bodies, as applicable;

(5) Adverse weather conditions, including lightning, rain, flooding, or heat;

(6) The participant's inability to safely participate in the hazardous recreational activity because of the participant's physical or mental limitations;

(7) A preexisting health condition; or

(8) Training or any other activity that the participant undertakes in preparation for the hazardous recreational activity.

(c) Notwithstanding subsections (a) and (b), this section shall not limit liability that would otherwise exist for:

(1) Failure of the county agency or county employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the county agency or county employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the injury or damage arose;

(2) Injury or damage suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purposes of this paragraph, the term "specific fee" shall not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the injury or damage arose;

(3) Injury or damage suffered to the extent proximately caused by the negligent failure of the county agency or county employee to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work or improvement utilized in the hazardous recreational activity out of which the injury or damage arose;

(4) Injury or damage suffered in any case where the county agency or county employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For the purposes of this paragraph, promotional literature or a public announcement or advertisement that merely describes the available facilities and services on the property shall not constitute a reckless or grossly negligent promotion; or

(5) An act of gross negligence by a county agency or county employee that is the proximate cause of the injury or damage;

provided that this subsection shall not be construed to create a duty of care or basis of liability for personal injury or damage to personal property.

(d) As used in this section, the term:

"County agency" includes the executive departments, boards, and commissions of the county but does not include any contractor with the county.

"County employee" includes officers and employees of any county agency and persons acting temporarily on behalf of a county agency in an official capacity, with or without compensation.

"Hazardous recreational activity" means a recreational activity conducted on property of a county agency that creates a substantial risk of injury to a participant or a spectator, including but not limited to:

(1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that no lifeguard was provided at the time;

(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given;

(3) Rock climbing; and

(4) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or all-terrain driving of any kind, orienteering, pistol and rifle shooting, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, windsurfing, and zipline riding. For the purposes of this paragraph, the term "mountain bicycling" shall not include riding a bicycle on paved pathways, roadways, or sidewalks."

SECTION 2. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"662- Hazardous recreational activity; limited state liability. (a) Subject to subsections (b) and (c), no state agency or employee of the State shall be liable to:

(1) Any person who participates in a hazardous recreational activity, including any person who assists the participant; or

(2) Any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to the spectator and was voluntarily in the place of risk, or having the ability to do so failed to leave the place of risk,

for any injury or damage to persons or property arising out of the hazardous recreational activity.

(b) The injuries or damages described in subsection (a) shall include those resulting from:

(1) Any act of the participant while engaged in the hazardous recreational activity;

(2) The negligence of any participant of the hazardous recreational activity;

(3) Equipment failure that occurs despite reasonable care and maintenance;

(4) Any airborne projectile that is an inherent risk of the hazardous recreational activity, including rocks, trees, equipment, or human bodies, as applicable;

(5) Adverse weather conditions, including lightning, rain, flooding, or heat;

(6) The participant's inability to safely participate in the hazardous recreational activity because of the participant's physical or mental limitations;

(7) A preexisting health condition; or

(8) Training or any other activity that the participant undertakes in preparation for the hazardous recreational activity.

(c) Notwithstanding subsections (a) and (b), this section shall not limit liability that would otherwise exist for:

(1) Failure of the state agency or employee of the State to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the state agency or employee of the State that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the injury or damage arose;

(2) Injury or damage suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purposes of this paragraph, the term "specific fee" shall not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the injury or damage arose;

(3) Injury or damage suffered to the extent proximately caused by the negligent failure of the state agency or employee of the State to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work or improvement utilized in the hazardous recreational activity out of which the injury or damage arose;

(4) Injury or damage suffered in any case where the state agency or employee of the State recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity. For the purposes of this paragraph, promotional literature or a public announcement or advertisement that merely describes the available facilities and services on the property shall not constitute a reckless or grossly negligent promotion; or

(5) An act of gross negligence by a state agency or employee of the State that is the proximate cause of the injury or damage;

provided that this subsection shall not be construed to create a duty of care or basis of liability for personal injury or damage to personal property.

(d) As used in this section, the term "hazardous recreational activity" means a recreational activity conducted on property of a state agency that creates a substantial risk of injury to a participant or a spectator, including but not limited to:

(1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that no lifeguard was provided at the time;

(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given;

(3) Rock climbing; and

(4) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or all-terrain driving of any kind, orienteering, pistol and rifle shooting, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, windsurfing, and zipline riding. For the purposes of this paragraph, the term "mountain bicycling" shall not include riding a bicycle on paved pathways, roadways, or sidewalks."

SECTION 3. Section 520-2, Hawaii Revised Statutes, is amended by amending the definition of "recreational purpose" to read as follows:

""Recreational purpose" includes but is not limited to any of the following, or any combination thereof: hunting, fishing, swimming, surfing, windsurfing, water skiing, boating, white water rafting, kayaking, camping, picnicking, hiking, orienteering, spelunking, pleasure driving, motorized vehicle racing, off-road motorcycling or all-terrain driving of any kind, nature study, [water skiing,] winter sports, [and] including cross-country and downhill skiing, animal riding, including equestrian competition and rodeo, archery, bicycle racing or jumping, mountain bicycling, pistol and rifle shooting, rocketeering, sky diving, sport parachuting, paragliding, hang gliding, trampolining, rock climbing, tree climbing, tree rope swinging, zipline riding, and viewing or enjoying historical, archaeological, scenic, or scientific sites."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Hazardous Recreational Activity; Government Agencies; Private Landowners; Limited Liability

 

 

Description:

Grants immunity to state and county agencies and employees from liability for injury or damage to persons or property arising out of hazardous recreational activities. Specifies the recreational activities giving rise to injury or damage from which private landowners are granted only limited liability under current law.

 

 

 

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