TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO LANDOWNER LIABILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 663, Hawaii Revised Statutes is amended by adding a new section to be appropriately designated and to read as follows:
"§663‑ Trespass; no duty of care; liability of owner; rebuttable presumption. (a) Notwithstanding any provision in this chapter to the contrary, an owner of agricultural land or range land owes no duty of care to keep the land safe for entry or use by a trespasser or to give any warning of a dangerous condition, use, structure, or activity on the land to a trespasser, except as provided in subsection (c).
(b) There shall be a presumption that an owner of agricultural land or range land is not liable to a trespasser for injury, loss, damage, or death occurring on the agricultural land or range land.
(c) In any action for civil damages, the presumption that an owner of agricultural land or range land is not liable to a trespasser for injury, loss, damage, or death occurring on the land may be rebutted by a preponderance of the evidence that the owner:
(1) Committed an act or omission that constitutes gross negligence or wilful or wanton disregard for the safety of the trespasser and that act or omission caused the injury, loss, damage, or death; or
(2) Intentionally injured the trespasser.
(d) As used in this section, unless the context otherwise requires:
"Agricultural land" means land used for agricultural purposes, including general farming, cane growing, fruit growing, flower growing, grazing, dairying, the production of any form of livestock or poultry, and any other form of agricultural activity. It includes land required for adequate farm dwellings and other essential farm buildings, roads, and adjacent lands under the control of an owner.
"Invited guest" means any person specifically invited by the owner or authorized representative of the owner to visit the agricultural land or range land for social, business, or other purposes.
"Land" means land, roads, water, watercourses, irrigation systems, private ways and buildings, structures, and machinery or equipment when attached to realty, other than lands owned by the government.
"Owner" means the possessor of a fee interest or a tenant, lessee, occupant, person, group, club, partnership, or corporation in control of the land.
"Range land" means privately owned land used for livestock that is not fenced or divided into paddocks or lots and that is generally unimproved.
"Trespasser" means a person who enters or remains on land without the permission of the owner or the owner's agent and who is not an invited guest."
SECTION 2. Section 708-814, Hawaii Revised Statutes, is amended to read as follows:
"§708-814 Criminal trespass in the second degree. (1) A person commits the offense of criminal trespass in the second degree if:
(a) The person knowingly enters or remains unlawfully in or upon premises that are enclosed in a manner designed to exclude intruders or are fenced;
(b) The person enters or remains unlawfully in or upon commercial premises after a reasonable warning or request to leave by the owner or lessee of the commercial premises, the owner's or lessee's authorized agent, or a police officer; provided that this paragraph shall not apply to any conduct or activity subject to regulation by the National Labor Relations Act.
For the purposes of this paragraph, "reasonable warning or request" means a warning or request communicated in writing at any time within a one-year period inclusive of the date the incident occurred, which may contain but is not limited to the following information:
(i) A warning statement advising the person that the person's presence is no longer desired on the property for a period of one year from the date of the notice, that a violation of the warning will subject the person to arrest and prosecution for trespassing pursuant to section 708‑814(1)(b), and that criminal trespass in the second degree is a petty misdemeanor;
(ii) The legal name, any aliases, and a photograph, if practicable, or a physical description, including but not limited to sex, racial extraction, age, height, weight, hair color, eye color, or any other distinguishing characteristics of the person warned;
(iii) The name of the person giving the warning along with the date and time the warning was given; and
(iv) The signature of the person giving the warning, the signature of a witness or police officer who was present when the warning was given and, if possible, the signature of the violator; or
(c) The person enters or remains on agricultural
lands without the permission of the owner of the land, the owner's agent, or
the person in lawful possession of the land, and the agricultural lands[
: (i) Are fenced, enclosed, or secured
in a manner designed to exclude intruders; (ii) Have a sign or signs displayed
on the unenclosed cultivated or uncultivated agricultural land sufficient to
give notice and reading as follows: "Private Property". The sign or
signs, containing letters not less than two inches in height, shall be placed
along the boundary line of the land and at roads and trails entering the land
in a manner and position as to be clearly noticeable from outside the boundary
line; or (iii) At], at the
time of entry, are fallow or have a visible presence or evidence of
livestock-raising, such as cattle, horses, water troughs, shelters, paddocks, or
of a crop:
(A)] (i) Under cultivation;
(B)] (ii) In the process of being
(C)] (iii) That has been
(2) Criminal trespass in the second degree is
a petty misdemeanor[
.]; provided that a fine of up to $10,000 may be
imposed for an offense under subsection (1)(c)."
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 on July 1, 2050.
Landowner Liability; Trespass
Provides that owners of agricultural land or range land have no duty of care to trespassers. Establishes rebuttable presumption of no liability. Permits trespasser to overcome presumption by preponderance of evidence that owner was grossly negligent or intentionally injured the trespasser. Authorized fines of up to $10,000 for the offense of criminal trespass on agricultural lands. Effective 7/1/2050. (SD2)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.