Report Title:

Torts; Abolish Joint and Several Liability; Cap Punitive Damages

Description:

Makes a tortfeasor liable for no more than that percentage share of the damages attributable to that individual or entity. Removes exceptions from law abolishing joint and several liability. Caps punitive damages at $375,0000.

THE SENATE

S.B. NO.

407

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to torts.

 

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

PART I. PUNITIVE DAMAGES

SECTION 1. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"663- Punitive damages. Notwithstanding any law to the contrary, no award of punitive damages may be imposed against a defendant in any court of competent jurisdiction in this State in any single case in excess of $375,000."

PART II. JOINT AND SEVERAL LIABILITY

SECTION 2. The legislature believes that the present system of joint and several liability is unfair and inequitable in that a person with only one per cent of fault can become liable for one hundred per cent of the damages. Even if the plaintiff was partially to blame, a person with only one per cent of fault could have to pay nearly all of the damages. Joint and several liability has led to a search for "deep pockets" -- governments, large companies, and other insured persons and entities -- who must bear the greatest burdens of liability even if their involvement is minimal.

The legislature finds that the fairest solution is to abolish joint and several liability. This Act clarifies that each joint tortfeasor may be held liable for no more than that percentage share of the damages attributable to that joint tortfeasor.

SECTION 3. 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. (a) Notwithstanding [sections 663-11 to 663-13, 663-16, 663-17, and section 663-31,] any law to the contrary, 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.

(b) 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.

(c) 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 4. Section 663-10.9, Hawaii Revised Statutes, is amended to read as follows:

"663-10.9 Abolition of joint and several liability[; exceptions]. (a) Joint and several liability for joint tortfeasors as defined in section 663-11 is abolished [except in the following circumstances:

(1) For the recovery of economic damages against joint tortfeasors in actions involving injury or death to persons;

(2) For the recovery of economic and noneconomic damages against joint tortfeasors in actions involving:

(A) Intentional torts;

(B) Torts relating to environmental pollution;

(C) Toxic and asbestos-related torts;

(D) Torts relating to aircraft accidents;

(E) Strict and products liability torts; or

(F) Torts relating to motor vehicle accidents except as provided in paragraph (4);

(3) For the recovery of noneconomic damages in actions, other than those enumerated in paragraph (2), involving injury or death to persons against those tortfeasors whose individual degree of negligence is found to be twenty-five per cent or more under section 663-31. Where a tortfeasor's degree of negligence is less than twenty-five per cent, then the amount recoverable against that tortfeasor for noneconomic damages shall be in direct proportion to the degree of negligence assigned; and

(4) For recovery of noneconomic damages in motor vehicle accidents involving tort actions relating to the maintenance and design of highways including actions involving guardrails, utility poles, street and directional signs, and any other highway-related device upon a showing that the affected joint tortfeasor was given reasonable prior notice of a prior occurrence under similar circumstances to the occurrence upon which the tort claim is based. In actions in which the affected joint tortfeasor has not been shown to have had such reasonable prior notice, the recovery of noneconomic damages shall be as provided in paragraph (3).

(5) Provided, however, that joint and several liability for economic and noneconomic damages for claims against design professionals, as defined in chapter 672, and certified public accountants, as defined in chapter 466, is abolished in actions not involving physical injury or death to persons].

(b) Each party shall be liable for:

(1) That party's share of any damages only and not for the share of any other person; and

(2) The amount of damages allocated to that party in direct proportion to the party's percentage of responsibility.

(c) A separate judgment shall be rendered against each party for the amount allocated to that party. For the purposes of this section, the trier of fact shall determine the proportion of responsibility of each party for the claimant's harm."

SECTION 5. Section 663-11, Hawaii Revised Statutes, is amended to read as follows:

"663-11 Joint tortfeasors defined. For the purpose of this part, the term "joint tortfeasors" means two or more persons [jointly or severally] who are liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them."

SECTION 6. This Act shall apply only to causes of action based upon acts or omissions occurring on or after its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

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