2008-05-22_Old_Laupahoehoe_Access_Road

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Honorable Dominic Yagong May 22, 2008 Page 3 Current State Attorney General Mark Bennett has acknowledged that no sign would completely protect the State from lawsuits. "There will always be somebody who says, `That sign wasn't enough."' http://sierraacti.vist.org/article.php?sid=.2.5-'192 One of the plaintiffs' attorneys, Art Park, said"the new signs probably will protect against lawsuits, but the state still has a moral obligation to stop people from going to the falls when it knows of the dangers." http://the.honolul.uadvertiser.com/arti.cle/2004/May/09/in/1n08a.html There are further issues regarding the sufficiency of warning signage regarding children, international tourists, and others who may have difficulty with reading or understanding English, or lack capacity to make informed choices. Pictorial signs may be used,but again their effectiveness may be open to question. In general, we agree with Attorney General Bennett that while warning signage carefully done could, in theory, prevent liability, the reality in court cannot be guaranteed. Each case will be treated on its own unique facts by any court. As Attorney General Bennett said, there will always be someone who says, "that sign wasn't enough." And, as in the Sacred Falls case, there may be issues of maintenance and monitoring the effectiveness of the signage. Beyond that, we also agree with Arthur Park: If the County is informed of substantial danger of rockfalls or slides, the County has a moral responsibility not to allow people to venture into such danger zones, even if legal liability can be minimized. II. WAIVERS OF LIABILITY Courts have tended to limit waivers of liability, finding that they may relieve from negligence liability, but not from gross negligence. An agreement to relieve someone of gross negligence is considered against public policy and void. Wheelock v. Sport Kites, Inc., 839 F.Supp. 730, 736 (D.Haw.1993). An"attempt to escape liability for more than ordinary negligence renders the release clause invalid." Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235 (9th Cir. 1995). The Restatement of Contracts, section 574, indicates that a waiver may not be effective against reckless conduct. Plaintiffs' attorney Arthur Park has been quoted,regarding Sacred Falls: "It's reckless to let people go in there, but if the state is going to let people go in, it has to make sure they really understand the dangers,"he said. He believes that if hikers are allowed in, they should have to sign waivers that outline the dangers, deaths, and injuries that have occurred there. (See Honolulu Advertiser article referenced above.) Mr. Park's comments signal two things: (1) Plaintiffs' attorneys will regard any allowance of hikers into known rockfall areas as "reckless"or worse than mere negligence (making waivers questionable); and (2) Plaintiffs' attorneys will view general waivers as inadequate and will challenge whether waivers are sufficiently specific and detailed.