Report Title:

Limited Immunity for State and counties; Hazardous Recreational Activities; County Parks

 

Description:

Establishes limited immunity for the State and counties from liability arising out of hazardous recreational activities; establishes limited immunity for counties from liability arising out of county public parks. (HB267 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

267

TWENTY-SECOND LEGISLATURE, 2003

H.D. 1

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-    County parks; county liability; immunity. Any county operating a public park shall not be liable for any civil damages resulting from or caused by any person's use or occupancy of any county public park, including skateboard parks, or any portion thereof. This exception from liability shall not apply when the claim for civil damages results from a county's gross negligence or wanton act or omission."

SECTION 2. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§663-    Liability limited for the State and the counties; hazardous recreational activities. (a) Except as provided in subsection (b) and notwithstanding section 662-2 to the contrary, the State and counties shall not be liable to:

(1) Any person who participates in a hazardous recreational activity;

(2) Any person who assists the participant; or

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

(1) Failure to warn when:

(A) The State or county had actual knowledge of a condition that poses an unreasonable risk of harm, had 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 wilful, 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 county, whether or not the person or organization has a contractual relationship with the State or county 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.

(d) For the purposes of this section, "hazardous recreational activity" means a recreational activity that creates a substantial risk of injury; and includes:

(1) Animal riding, 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, sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants, skateboarding, inline skating, roller skating, roller hockey, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing; provided that "mountain bicycling" shall not include riding a bicycle on paved pathways, roadways,or sidewalks; and

(2) Any form of diving:

(A) Into water from other than a diving board or diving platform; or

(B) At any place or from a structure where diving is prohibited and reasonable warning thereof has been given."

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

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

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