Report Title:

State and Counties Limited Immunity; Hazardous Recreational Activities

 

Description:

Establishes limited immunity for the State and counties from tort liability arising out of hazardous recreational activities.

HOUSE OF REPRESENTATIVES

H.B. NO.

267

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to government.

 

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-    Counties’ liability limited for hazardous recreational activities. (a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectators who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to themselves and were voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

(b) For the purposes of this section, "hazardous recreational activity" means a recreational activity that 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 purpose of this paragraph, "mountain bicycling" does not including 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.

(c) 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 condition that poses an unreasonable risk of harm, sufficient time to warn against the condition, and failed to do so; and

(B) The condition that poses an unreasonable risk of harm 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; or

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

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

SECTION 2. 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. (a) Notwithstanding section 662-2, the State shall be not be liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectators who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to themselves and were voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

(b) For the purposes of this section, "hazardous recreational activity" means a recreational activity that 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 purpose of this paragraph, "mountain bicycling" does not including 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.

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

(1) Failure to warn when:

(A) The State had actual knowledge of a condition that poses an unreasonable risk of harm, sufficient time to warn against the condition, and failed to do so; and

(B) The condition that poses an unreasonable risk of harm 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; or

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

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

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were initiated, before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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