Report Title:

Public Land Liability; State and County Immunity

Description:

Establishes a process in which the State and counties are provided protection from liability faced with regard to recreational activities on improved and unimproved public lands. (SD2)

THE SENATE

S.B. NO.

1418

TWENTY-SECOND LEGISLATURE, 2003

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO PUBLIC LAND LIABILITY.

 

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

SECTION 1. The department of land and natural resources has jurisdiction of approximately one million acres of generally unimproved public land. There is increasing public demand for outdoor recreation on these lands. Many of these lands are inherently dangerous with many potential risks, especially for those who are unprepared, participate in hazardous recreational activities, or choose to ignore warning signs. Unfortunately, in some instances serious injuries have resulted. The uncertainty of the standard of care legally needed to prevent costly lawsuits can result in public recreational assets being closed.

A state risk assessment working group would identify methods to mitigate potential risks of improved and unimproved public lands. However, undeveloped public lands pose inherent risks that can never be fully assessed or prevented. Even the most carefully crafted risk assessment and management program will not eliminate all potential injuries associated with outdoor recreation on improved and unimproved public lands. Risk management can only reduce exposure to a hazardous event through mitigation, if possible, and/or signage warning the public of these risks.

The legislature finds that the State and counties need protection from liability arising from the inherent risks posed by improved and unimproved public lands under their jurisdiction. The legislature also finds that it is necessary to strike an equitable balance between the personal responsibility of people engaged in recreational pursuits and the duty of the government to take reasonable measures to protect citizens from harm by providing adequate warning.

The purpose of this Act is to establish a process in which the State and counties are provided protection from liability on improved and unimproved public lands, when the requirements of this Act are met.

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

"PART   . LIMITATIONS ON PUBLIC ENTITY LIABILITY IN

ACTIONS BASED UPON DUTY TO WARN OF NATURAL CONDITIONS

663-   Definitions. As used in this part:

"Lands" means all lands under the jurisdiction of the department of land and natural resources or a county, and includes all interests therein and natural resources including water, minerals, and all such things connected with land, and further excluding all public beach parks that are subject to Act 190, Session Laws of Hawaii, 1996, as amended.

"Improved public lands" means lands designated as part of the state park system, parks, and parkways under chapter 184, or as part of a county's park system, and lands that are part of the Hawaii statewide trail and access system under chapter 198D, excluding buildings constructed upon such lands.

"Unimproved public lands" means all lands except improved lands. "Unimproved lands" excludes buildings constructed upon such lands. "Unimproved lands" also excludes non-park roads and lands upon which public buildings are constructed.

663-   Conclusive presumptions relating to duty of public entities to warn of dangers on their improved lands. (a) A sign or signs warning of dangerous natural conditions on improved public lands shall be conclusively presumed to be legally adequate to warn of the dangerous conditions of which the sign or signs warn, if the State or a county posts a sign or signs warning of the dangerous conditions, and the design and placement of the warning sign or signs conform to standards specified by rule adopted by the board of land and natural resources pursuant to chapter 91. The board of land and natural resources shall consult the risk assessment working group, established by chapter 171-   , prior to approving the design and placement of the warning sign or signs pursuant to this section.

(b) The State or a county may submit a comprehensive plan for warning of dangerous natural conditions at a particular area of improved public lands to the board of land and natural resources, who shall review the plan for adequacy of the warning as well as the design and placement of the warning signs, devices, or systems. The board of land and natural resources shall consult with the risk assessment working group established pursuant to section 171-    before issuing an approval of the plan. The risk assessment working group may seek public comment on the plan. If the board of land and natural resources approves a plan for a particular area after consulting with the risk assessment working group and the State or a county posts the warnings provided for in the approved plan, then the warning signs, devices, or systems shall be conclusively presumed to be legally adequate to warn for all dangerous natural conditions on the improved public lands.

(c) The State or a county shall not have a duty to warn for dangerous natural conditions on unimproved public lands.

(d) If a warning sign, device, or system is posted or established in accordance with this section on unimproved lands, the posting or establishment of the warning sign, device, or system shall not create a duty for the State or county to warn of other dangerous natural conditions on unimproved lands or to place or establish an additional warning sign, device, or system on other locations of the unimproved lands.

(e) If a warning sign, device, or system posted or established in accordance with this section is vandalized, otherwise removed, or made illegible, the conclusive presumption provided by this section shall continue for a period of thirty days from the date that the vandalism, removal, or illegibility is discovered by the State or county. The State or a county shall maintain a record regarding each report of vandalism, removal, or illegibility that results in the replacement of a warning sign, device, or system on public lands. The record shall include the date and time of the reporting and the replacement of the warning sign, device, or system. The State or county shall provide a copy of the record annually to the board of land and natural resources and the risk assessment working group.

(f) There shall be a contested case hearing under chapter 91 for any person or entity objecting to any decision made under this part by the board of land and natural resources."

SECTION 3. Chapter 171, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"171-   Risk assessment working group. A risk assessment working group shall be administratively attached to the department. The risk assessment working group shall provide consultation to the board regarding the design and placement of warning signs, devices, or systems on public lands including any comprehensive plan submitted by the State, a county, or managing entity to the board for approval. The risk assessment working group shall consist of the following members, who shall serve without compensation:

(1) The chairperson of the board of land and natural resources, or a designated representative;

(2) The mayor of each county, or a designated representative;

(3) The administrators of the department of land and natural resources' division of forestry and wildlife, and the division of state parks, or their designated representatives;

(4) The attorney general, or a designated representative;

(5) Experts in risk assessment and warning signs; and

(6) Representative of the Hawaii State Bar Association; and

(7) A member representing the public."

SECTION 4. This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.