Report Title:

TORT ACTIONS

Description:

Clarifies provisions which limit the liability of government entities to that percentage share of damages attributable to the government entities, Hawaii Revised Statutes.

THE SENATE

S.B. NO.

2858

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO TORT ACTIONS.

 

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

SECTION 1. The purposes of this Act are to clarify that: (1) section 663-10.5, Hawaii Revised Statutes, supersedes section 663-10.9, Hawaii Revised Statutes; and (2) Act 213, Session Laws of Hawaii 1994, applies when a claim accrues.

In 1994, when the legislature enacted section 663-10.5, the legislature intended to abolish government entities’ joint and several liability in any case under chapter 663, Hawaii Revised Statutes. However, two circuit courts have recently interpreted section 663-10.9 to apply to government entities. These interpretations are incorrect, and have created confusion in the legal community regarding the application of section 663-10.5. This Act clarifies that section 663-10.5 supersedes section 663-10.9.

This Act also amends the so-called non-retroactivity clause of Act 213, Session Laws of Hawaii 1994, to correct the Hawaii supreme court's interpretation of that clause in Doe Parents No. 1 v. State of Hawaii, Dept. of Educ., 100 Haw. 34 (2002). In Doe Parents No. 1, the supreme court held that under the non-retroactivity clause, Act 213 "requires a determination of when a government entity's employee engaged in the act or omission for which the entity is being held liable." Id. at 87. However, the legislature intended for Act 213 to apply when a claim accrues, not when the government employee engaged in the alleged tortious act or omission. This Act clarifies that legislative intent.

SECTION 2. Section 663-10.5, Hawaii Revised Statutes, is amended to read as follows:

"§663-10.5 Government entity as a tortfeasor; abolition of joint and several liability. Notwithstanding sections 663-10.9, 663-11 to 663-13, 663-16, 663-17, and section 663-31, in any case where a government entity is determined to be a tortfeasor along with one or more other tortfeasors, the government entity shall be liable for no more than that percentage share of the damages attributable to the government entity.

For purposes of this section, "government entity" means any unit of government in this State, including the State and any county or combination of counties, department, agency, institution, board, commission, district, council, bureau, office, governing authority, or other instrumentality of state or county government, or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county.

For purposes of this section, the liability of a government entity shall include its vicarious liability for the acts or omissions of its officers and employees."

SECTION 3. Act 213, Session Laws of Hawaii 1994, is amended by amending section 3 to read as follows:

"SECTION 3. This Act shall apply [only] to [causes of action based upon acts or omissions occurring on or after its effective date.] claims that accrue on or after June 22, 1994."

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.

INTRODUCED BY:

_____________________________

BY REQUEST