Report Title:

State and County Immunity from Tort Liability; Hazardous Recreational Activities

Description:

Provides the State immunity from any claim of liability arising from a person participating in a hazardous recreational activity. Provides counties limited immunity.

HOUSE OF REPRESENTATIVES

H.B. NO.

258

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to state and county tort liability.

 

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

SECTION 1. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§662-   Immunity from liability; participation in hazardous recreational activities; limited immunity for counties. (a) Notwithstanding section 662-2, the State shall be immune from liability for any claim for damage or injury to property or persons arising from a person's direct, assisting, or spectating participation in a hazardous recreational activity when the person knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to themselves and was voluntarily in the place of risk, or having the ability to do so, failed to leave the place of risk.

For the purposes of this section, "hazardous recreational activity" means a recreational activity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury.

"Hazardous recreational activity" includes:

(1) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, canoeing, diving, hang gliding, hiking, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), skateboarding, inline skating, roller hockey, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing. For the purposes of this paragraph, "mountain bicycling" does not include riding a bicycle on paved pathways, roadways, or sidewalks; and

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

(b) In a claim by a person against a county alleging personal injury or death that occurred when the person was participating in, assisting, or observing a hazardous recreational activity on county-owned or controlled property, the county shall be liable only if the injury or death occurred as a direct result of the county's:

(1) Failure to warn when:

(A) The county had actual knowledge of a physically hazardous condition, sufficient time to warn against the condition, and failed to do so; and

(B) When the physically hazardous condition was not known to the person and would not have been known to a reasonably prudent person participating, assisting, or observing the same hazardous recreational activity;

(2) Gross negligence, recklessness, or willful, wanton, or deliberate conduct.

(c) Nothing in this section shall limit the liability of an independent concessionaire, or any person or organization other than the State or a county, whether or not the person or organization has a contractual relationship with the State or a county to use the public property, for injuries or damages suffered in any case as a result of the operation of a hazardous recreational activity on public property by the concessionaire, person, or organization."

SECTION 2. Section 662-2, Hawaii Revised Statutes, is amended to read as follows:

"§662-2 Waiver and liability of State. [The] Except as otherwise provided in section 662-  , the State hereby waives its immunity for liability for the torts of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________