REPORT TITLE:
Tort Liability


DESCRIPTION:
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
activity.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           186
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO TORT LIABILITY. 


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

 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;
 

 
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                                     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
 

 
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                                     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.
 
17 
 
18                           INTRODUCED BY:  _______________________