Tort Liability

Limits county liability for personal injury occurring at a
county-owned or controlled facility for hazardous recreational
activities to when the county acts with gross negligence,
recklessness, or wilful, wanton, or deliberate behavior, or if
county knew of a hazardous condition but failed to warn.  Repeals
recreational purposes requirement for assumption of risk to apply
on school property; repeals invitee or licensee requirement for
exception to assumption of risk; provides that assumption of risk
does not apply if the use is a school-sponsored event or

THE SENATE                              S.B. NO.           186
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 663, Hawaii Revised Statutes, is amended
 2 by adding a new section to be appropriately designated and to
 3 read as follows:
 4      "663-    County liability for hazardous recreational
 5 activities.  Notwithstanding any law to the contrary, the
 6 liability of a county for personal injury or death arising from a
 7 hazardous recreational activity on county-owned or county-
 8 controlled property or beach shall be limited to a county's:
 9      (1)  Failure to warn, if:
10           (A)  The county had actual prior knowledge of a
11                hazardous recreational activity that had occurred
12                on the property or beach, as applicable, and
13                sufficient time to warn in accordance with law
14                against the activity and failed to do so; and
15           (B)  The nature of the hazardous recreational activity
16                was such that the hazards would not be known to a
17                reasonably prudent person participating in such
18                activity;
19      (2)  Gross negligence;

Page 2                                                     
                                     S.B. NO.           186

 1      (3)  Recklessness; or
 2      (4)  Wilful, wanton, or deliberate conduct.
 3      For purposes of this section, "hazardous recreational
 4 activity" includes, but is not limited to, motorized vehicle
 5 racing, mountain bicycling, hang gliding, archery, pistol or
 6 rifle shooting, surfing, waterskiing, jet skiing, motor boating
 7 near swimmers, rock climbing, skateboarding, or other similar
 8 activities that require observation and caution to avoid injury."
 9      SECTION 2.  Section 302A-1148.5, Hawaii Revised Statutes, is
10 amended to read as follows:
11      "[[]302A-1148.5[]]  Use of school [grounds;] property;
12 assumption of risk.  Any person who enters school [grounds]
13 property for the purpose of using the school's [grounds,]
14 property, facilities, or equipment [for recreational purposes],
15 and who is not a student or member of the faculty or
16 administration of that school, is deemed to assume the risk of
17 liability for any injuries or death resulting from the use of the
18 [grounds,] property, facilities, or equipment[.  This]; provided
19 that assumption of risk shall not apply if:
20      (1)  The [person is an invitee or licensee to whom a duty of
21           care is owed by the school; provided that the] person
22           has received prior written authorization from the
23           school principal or other responsible person to use the

Page 3                                                     
                                     S.B. NO.           186

 1           school's [grounds,] property, facilities, or
 2           equipment[;] and the use is a school-sponsored event or
 3           activity; or
 4      (2)  The injuries or death were caused by wilful or wanton
 5           misconduct, including but not limited to the wilful or
 6           malicious failure to guard or warn against a dangerous
 7           condition, use, or structure which was knowingly
 8           created or perpetuated, and wilful or malicious failure
 9           to guard or warn against a dangerous activity which was
10           knowingly perpetuated."
11      SECTION 3.  This Act does not affect rights and duties that
12 matured, penalties that were incurred, and proceedings that were
13 begun, before its effective date.
14      SECTION 4.  Statutory material to be repealed is bracketed.
15 New statutory material is underscored.
16      SECTION 5.  This Act shall take effect upon its approval.
18                           INTRODUCED BY:  _______________________