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Home My WebLink AboutCOM 0084.000 2002-2004AOARIN� J. CURTIS TYLER III Bui, (808) 326-5684 .- 6ieuChoir - F'tu: (808) 326.5697 Dist')a N 6Narrh Kona) uq4+.r;«i nwr,,uc.n. AAWAI'I COUNTY COUNCIL Karw Cuuncil OJJica 077.6399 Malan, 54repr *Suite 104 •AuduraKorw 'Hawai'i 196740-p;%SO C Via Facsimile 961-89I2 Pages: 1 December 30, 2002 n1jum TO: James Y. Arakaki, Chairman Hawaii County Council FROM: J. Curtis Tyler III Vice Chair SLJBJBCT: HSAC Memos from Kauai County As we discussed via telephone this morning, attached please find three memos 1 received today by fax regarding legislative issues to be discussed at the January 15, 2003, HSAC Executive Committee meeting in Honolulu. Since time is of the essence, I am requesting that these matters be waived to the full Council for discussion at the January 8 meeting. I also have discussed this request with PWIRC Chair Leningrad Elarionoff who tars agreed to waive the memos from his committee in order to facilitate discussion by the full Council prior to the January 15, 2003 HSAC meeting. Thank you for your favorable consideration of this request. If you have any questions regarding this memo, please call me. JCT/mm Attachments (3) Comm. No. _ File No.� Ref. To: Ref. Date DE TO 39Vd 00N L69SSZE EZ:ZT Z00Z/0E/ZT 9JM�V'UF �;1k7 � r. J. CURTIS TYLER III 'y" �'�' Bus: (808) 326-5684 Vice Chair t°+ Fax: (808) 326-5697 District 8 (North Kona) _ --:_—� ctyler�interpac.net •. 6.._._:_:_ l,�rt OP •N►'� HAWAII COUNTY COUNCIL Kona Council Office •77-6399 Nalani Street •Suite 104 •Kailua-Kona •Hawai `i •96740-8980 Via Facsimile: 961-8912 Pages: I December 30, 2002 MEMORANDUM: TO: James Y. Arakaki, Chairman Hawaii County Council .' FROM: J. Curtis Tyler III Vice Chair SUBJECT: HSAC Memos from Kauai County As we discussed via telephone this morning, attached please find three memos I received today by fax regarding legislative issues to be discussed at the January 15, 2003, HSAC Executive Committee meeting in Honolulu. Since time is of the essence, I am requesting that these matters be waived to the full Council for discussion at the January 8 meeting. I also have discussed this request with PWIRC Chair Leningrad Elarionoff who has agreed to waive the memos from his committee in order to facilitate discussion by the full Council prior to the January 15, 2003 HSAC meeting. Thank you for your favorable consideration of this request. If you have any questions regarding this memo, please call me. JCT/mm Attachments (3) DEC -30-2002 MON 08:19 RM COK CLERK OFFICE FAX N0, 8082416349 P. 01/05 Hawaii State Association of Counties Counties of Kauai, Maui and Hawaii, City & County of Honolulu December 24, 2002 >* ' MEMORANDUM To: Members of the Hawaii State Association of Counties Executive Board Members & Respective Staff Members Attn: Curtis Tyler, III, President, County of Hawaii Dain Kane, Vice President, County of Maui Gary Okino, Secretary, City & County of Honolulu Staff; Rory Flynn, County of Hawaii Richclle Kawakami, County of Maui Andrew Sekine,Cit County of Honolulu From: James Kunane'1'oki ka, , reasurer, County of Kauai RE: LEGISLATIVE POSITION IN SUPPORT OF UNADJUDICATED FINL'S & FORFEITURES INITIATIVE BEFORE THE 2003 LEGISLATIVF. ' This is to transmit an official request that we consider taking a position on possible legislation relating to supporting the counties receiving the unadjudicated fines and forfeitures for traffic citations. As we heard at the December 9-10, 2003 HSAC Mid -Year Conference, it is my understanding that Governor Lingle had indicated to the press that she would be supporting this initiative before the Legislature during the upcoming 2003 session. 1 would like to request that HSAC take a position in support of proposed legislation relating to the counties receiving the unadjudicated lines and forfeitures monies since it would benefit all four counties. Your approval of this request would be greatly appreciated. JT/ca Attachment — Maui News article dated 12/27/02 Lingle provides a Neighbor Island lilt? cc; 1/15/03 HSAC Executive Committee Meeting Agenda Poet -it" Fax Note 7671 ()Btut"��,=K,'[�,� pr°qes� ,7 ro �; ✓'r)�...� iu�.,,I�. yc> From i.� CaJDept „� r,. I r Co. K, v',>l . • a Phone 0 Phone M _Y R" Fax N Fax N DEC -30-2002 MON 08:20 AM COK CLERK OFFICE FAX N0, 8082416349 P. 02/05 Maui News page: Hawaii News, "Tourist and Vacation Information page 1 of 4 Lingle provides a Neighbor Island tilt? Former Maui mayor, new governor advocates home rule, says decisions should be made where they will be felt By MARK ADAMS Staff Writcr HONOLULU — When Linda Lingle was mayor of Maui County, the Neighbor islands were at times treated like the stepchildren of Hawaii. With most of the people and a lot of the power concentrated on Oahu in what Lingle calls "perhaps the most centralized form of state government in the nation," many Neighbor Island leaders felt their counties were being shortchanged at best and simply overluokcd at worst when it came to decisions in areas ranging from highways and land use to the state's educational system and the amount of revenue derived from state taxes and fees. Lingle is now governor, and while it remains to be seen if the former mayor and Maui County Council member will change her stripes now that she's on the other side of the fence, initial observations point to the counties benefiting from a governor who's been here and done this. In a meeting Friday with representatives of Hawaii's print media outlets, Lingle said she would like to see the state's control loosened and "home rule" established for the counties as much as possible. She said she's setting up a "power-sharing committee" made up of county and state government leaders to look at reducing the current duplication of services and find areas that might be better handled at the county level, "My responsibility now is different." Lingle said, "but my philosophy hasn't changed. Decisions should be made where those decisions will be felt." And when the state returns responsibility for making decisions to the counties, she thinks the money to implement them should also go to the local level. "My view is when you give the function back, you give the revenues back as well," she said. "When we talk about state taxpayers versus county taxpayers, we have to remember that we're talking about the same people," But when it conies to large issues like disbanding or reworking the state Land Use Commission, the Commission on Water Resource Management or the state Department of Transportalion, Lingle says she doesn't think the political will to make wholesale changes exists in the state Legislature at this point in her four-year term. http!Hwww.maui.net/–mauinews/inewsoa-bi.m 12/27/02 DEC -30-2002 MON 08:20 RM COK CLERK OFFICE FAX NO. 8082416349 F. 03/05 Maui News page: Hawaii News, Tourist and Vacation Information Page 2 of 4 There is also strong opposition in the environmental community to changing the way the LUC and water commission work, she said. "I want to focus in the early years on those issues I feel we can get agreement on," the governor said. "The legislative sessions arc so short that to spend time in an aigurncnt that is not going to lead to a conclusion is a waste of time," Still, she spoke particularly forcefully about the control of water on Maui, where the state water commission has considered taking over management of the Iao/North Waihce aquifer, currently the sole source of drinking water for Central and South Maui, She opposed designation as mayor and and continues to oppose it "It's not really a water issue, it's a development issue," she said. "When you control water, you control everything," Lingle has not decided exactly how she sees control of state highways handled at the county level, but she docs see problems in the way the DOT has operated in the past. She mentioned the decision to proceed with improving Kuihelani Highway between Ilonoapii)ani Highway and Dairy Road as a prime example. She called that project the last priority in the minds of Maui motorists who see far more pressing improvements needed and said it moved forward simply because it was the easiest to complete. That is not how her administration will operate, she said. Lingle has yet to name a new director for that department. The governor said she'll start this year with items she thinks she can push through a Democratic - controlled and financially challenged state Legislature. Her administration will be sending lawmakers a package of bills that include one that would return cable television franchise fees to the counties where they arc collected, instead of turning them over to the state Department of Commerce and Consumer Affairs. She would also like to see the counties gain revenue from ventilation and air conditioning permits, she said, which the state Department of Ilealth now monitors. On a bigger issue that she does pian to tackle, Lingle said she's asking legislators to place an advisory ballot question before voters asking if they would like to see locally elected school boards in each island district making educational -system decisions at the county level. "Not on how it would work, just if it's the right thing to do," the governor said, adding that she recently had top educational leaders in the state in for a daylong workshop spent on proposals that could be made to lawmakers as the legislative session approaches, The former Maui mayor was asked about incoming Mayor Alan Arukawa's recent comments on the need for the state and county to become more self-sufficient in the areas of agriculture and energy, htip://www.maui.neV-mauinews/Inews0a.litni 12/27/02 DEC -30-2002 MON 08:20 AM COK CLERK OFFICE FAX NO, 8082416349 P. 04/05 Maui News page; Nlawai i News, Tourist and Vacation information Page 3 of 4 particularly in light of a volatile world situation that could conceivably disrupt normal imports of food and fuel oil from outside of Hawaii. Lingle said she agrees that those two areas present significant challenges and opportunities. "Both are important goals to pursue," Lingle said. She will include an agriculture advocate in tier administration, she said. On renewable energy, she said the University of Hawaii is in a unique position to become a leader in the field, She has set a goal of deriving 20 percent of the state's energy needs from renewable sources of energy such as wind and solar power by 2020 and thinks that goal can be reached. Asked about geothermal energy on the Big Island, Lingle said she is not ruling anything in or out at this point. She also said she will ask lawmakers to approve a $100 million appropriation for Ulf, spread over the next throe years, but she will not tell the university how to spend it, Lingle sent a $15 billion budget proposal that was prepared by former Gov. Ben Cayetano to the state Legislature last week. Expenditures in that proposal aro already $300 million more than projected revenue, with the state Council oil Revenues, a panel of economists, to nice( Jan. 10 to review the projected revenue growth for the current fiscal year. In the first five months of the current fiscal year, revenue grew at less [hall 1 percent, well below the initial 6.1 percent rate forecast for the year. If [lie projection is revised downward, the budget shortfall could grow significantly. At the same time, Lingle has promised to restore a food tax credit and end the excise tax on medical products and services, which Cayetano has said would eliminate another $100 million in revenue. Lingle said she will be sending a revised budget to lawmakers during the legislative session Thal begins Jan. 15. Asked how she plans to pay for her proposals, the governor said there is already new investment money headed to Llawaii because of a new spirit of optimism tied to tier election, and she thinks she can get the state economy turned around. The combination of revenue growth and getting a handle on stale spending — including cutting out waste and inefficiency, restricting spending and freezing vacant state positions — will help, she said. Senate President Bobby Bunda, a Democrat who represents Wahiawa, Kacna and Pupukca, also met With reporters Friday and said he is heartened that Lingle will avoid major contentious issues during this session. Ile said the new governor has met with Senate and House leaders and has promised to work closely with both bodies during the session. Banda said he expects that the session will focus on (he economy and education, but he also expects that the effort to balance the state budget is going to take up the bulk of the Legislature's (line, http://www,maui,neL/—mauinews/lnews0a.h(m 12/27/02 DEC -30-2002 MON 08:21 AM COK CLERK OFFICE FAX NO. 8082416?49 P. 05/05 Maui News page: Hawaii News, Tourist and Vacation Information Page 4 of 4 "we have to find the money first," he said, and both Lingle and the Senate have pledged not to touch the $187 million in the state's Hun icane Relief bund, which the Cayetano budget anticipates using. "1'm looking forward to the governor coming up with her own proposal for revenue enhancement and cost savings," he said. http://www.maui.nei/—mauinews/tncwsOa.htm 12/27/02 DEC -30-2002 MON 09:25 AM COK CLERK OFFICE FAX N0. 8082416349 P. 01 Hawaii State Association of Counties Counties of l(auai, Maui and Hawaii, City 8.. County of Honolulu December 24, 2002 MEMORANDUM t To: Members of the Hawaii State Association of Counties Curtis Tyler,111, President, County of Hawaii Dain Kane, Vice President, County of Maui Gary Okino, Secretary, City & County of Honolulu Attw Rory Flynn, County of Hawaii Richelle Kawakami,J96unty of Maui Andrew Sekine, C' County of Honolulu From: lames Kunanc To ok reasurer, County of Kauai RE: 2003IISAC LEIU TIWPACKAG& The Kauai County Council at its December 19, 2002 meeting approved the two (2) proposals submitted from HSAC to the respective Councils for inclusion in the 2003 HSAC Legislative Package as follows: 1.) Limited Liability for Counties: Skate Parks — amending Chapter 46, II.R.S., to limit the counties' liability from toil liability arising from skate park activities on county -owned or — controlled properties. 2.) Landowner's Liability — amending Sections 520-1 and 520.2, H.R.S., to extend to the counties the limitation of liability currently afforded to private landowners who make their land and water areas available to the public for recreational purposes. For your information, there is also another measure relating to item #1 which is being introduced by the counties Corporation Counsels which should be tracked and considered by HSAC for approval (see attachment). The difference in the Corp Counsel's bill its stated in Sec. 46- (c) (1)(4) and (b) is "unreasonable risk of harm' instead of in the language stand in the HSAC version of the bill which states in Sec. 46• (c)(1)(a) and (b) "physically hazardous condition". Based on information derived from a Supreme Court case decision, we have been advised that "physically hazardous condition" is not a standard recognized by the court but that the more approprlate language should be "unreasonable risk of harm". Therefore, we would like to recommend that the HSAC Executive Board consider reviewing and approving this attached bill for inclusion in the 2003 HSAC Legislative Package. The Kauai County Council has approved the intent of the HSAC version based on the newly submitted Corporation Counsel's proposal and will be scheduling this new bill for approval to be included in the 2003 HSAC Legislative Package at their January 23, 2003 meeting. Thunk you for your attention to this matter. Wca Attachment cc: 1/15/03 11SAC Executive Commitee Meeting Agenda Post -it" Fax Note 7671Dara td y1 M, o0ca► t I l,^C..l ry�E,CJ From Co/DePL 1 /4•Kf-JCY� `t- CP. DEC -30-2002 MON 09:26 AM COK CLERK OFFICE FAX NO. 8082416349 P. 02 DEC -03-2002 09:34 COUNTY OF KAUAI BBB 241 6319 P.02z07 1 Report Title: State and. County )tmtltmity from Tort )Liability: Hazardous ReGMtional Activities Description: Provides tlm State: and Counties limited immunity from any claim of liability arising i3rom a person participating in a hazardous recreational activity. DEG -30-2002 MON 09 26 AM GOK CLER�TY1oF KAUAI DEI. -03-2M2 09:34 . FAX N0. 8082416349 SW 241 6319 I15.8e067046e3 Seotiou I. 0opta 46, Hawaii Revised Statutes, is amended by adding a naw section to be aWgviately dedpated and to rad as follows: . V./ P.03/0? PACE aJ 2 le Cr Cogndee bbllity iiraw for baraMous roemt ionxi 3sgto . (a) SSS.._,! •<, . ql L 1 • 7. �.yi:. . 3�. • _l.__,r7.1y . u rlIf4 r..i4r_ . .' l.• r' Y� .n.'I .r T- • 1. A'1'.. DEC -30-2002 MON 09:26 AM COK CLERK OFFICE FAX N0, 8062416349 P. 04 DEC -03-2082 09 35 COUNTY OF KAUAC 906 241 6319 P.04/07 (2) ,Any form of diviun intoter brow other dw a divine hoard or ; 'ted -tj�w L' - • yL•pr �. r 1 •♦ q Vie' � ._�:♦ �qr _tee_ .r,�_•!— =•'+ i• . 1t1tL•/1 . •,iyt 1 . • � .. fiD N- tbkkg,m this section w limit tht liahility of an indeaebdmt DEC -30-2002 MON 09;26 AM COK CLERK OFFICE FAX NO. 8082416349 P. 05 DEC -032002 0935 ••" • � COUNTY OF KAUAI 899 241 6319 p,06i09 4 SEC77ON 2. chapter 662, Hawaii Revised Statutes, is amended by adding anew section to be appropriately designated and to read as follows, Q-2, thl SIM '8•I 1 . :yr,y r. •:w4h! _ i'-�T.l-:' 1 •� e \ r _r' :�^t: r . l• Ja or to .rg Sygdam mI 2LM• Ibb1v gjumLd have SIO Y/• Nat r L ` J.'L• i r'1r-_.4. q 1 r1� • .lei J ryC•• 111 • IL1'14 is .w -. ♦.. t• ♦) 'A� a ♦•r r r♦ r q MH "-1C33mm bWaiftot) risk ofiaiury. ... 0J.. " .�r .r ]!7�. ]I •M*§W! ! a - AD _. • : rough . ♦ • vigh -04r •1 .. ♦di _•. • I-. tme DJAagJ:.:.k! • 1•_I: ar. 1! Y'1L1: DEC -30-2002 MON 09:27 AM COK CLERK OFFICE FAX NO. 8082456349 P. 06 Lc�-es-1002 0935 COUNTY OF KAUAI 608 241 6.319 P.05i07 p} og-e Of tw$ `SriOltG Wn bicvclinv_" does Lot innh�rtina ridinobiceg .,. .77'r r,Lry :s . r:l 1.. �V/r y •irn_ . . r_ •lr 11 • ... •Z. yr r a n -2.771! .,t__ r 7 .�.nrl'-r_ 'I !' `17[:P a a.- if 11.: • •• ...�1 L' r. IS`.-77 r • M =• t7!Sr • cr • ¢Y 'l1 I r : rtt. 1 '.1 . . � •. . .ram.• . I .. {� L) Faillm of th& S to wam wb� r yl r l r a• r � ri .r. � I- l:.. r r r u • . •r • • r a .. �.r • • 1 r .qr gip_• {�.� :Ir •! . .�,r 1. L•r> [ 1.. . r ..�� . ' ¢_� • r .:.i_ NC -30-2002 ION 09;36 CLERCOO�TYCOF K"l FAX N0, 8062416343 We 241 6319 SEMON 3. This Act does not affect righs and duties that manamd, pwWtie4 that, were hmmed, amd proeaedinge than were initiated, before its cffwtive date. &ECrMN 4. New smtutoty mat64 is tnndencotvd. SEMON 5. This Act shall take effort upon its approval. gmUl P. 07/0? PAOL 7/e 2 TOTAL. P.07 DEC -30-2002 MON 0927 AM COK CLERK OFFICE FAX N0, 8082416349 F. m 70 11A CORBKTT v. ASSN. OV APT. OWNERS 415 OF WAILUA DAYVIEW AI"1'S. Syllabus MARGARET CORBETT, Plaintiff -Appellant, v. ASS(X-IATION OF APAR'T'MENT OWNERS OF WAILUA 15AYVILW APARTMENTS, LX(crxlanl-Appellee NO. 12957 APPEAL FROM nm FIFTH CIRCUIT COURT IIONOKAIJLEi CLIFFUItU L. NAKEA, JUUOG (CIV, NO. 86-0047) MAY 2, 1989 LUM, C.J., NAKAMURA, PAI7GGTl, IIAYASHI, AND WAKATSUKI, JJ. NEULIGENCF, — possersars of land—starurard of Care wish rcrpecr to per - yaw using the land. A possessor of laret, wln+knows or simid Tuve known of an i n esson- able risk of hat in posed to persows using rhe land, by a condition on the land, owes a duty to the perwns using Ore land to take rcasormble sly a to eliminate the tuunswtable risk, or to wain kite users against it. TRIALS —fury inrlructiom—negligence of possessors of land —locus of tut sfractianr. The focus of a jury Instruction, with respect to the duly Lnpoud upon poss"rors ofd¢ land as regards injuries of prisons using 160 land. should be upon whether dare is an unreasunable risk of ham tesuhbte from dre coodi- don on are land. It is error to focus the iosrrucrions on wbether the condidim on the land was "unreasonably dangerous" rachet than on wliedrer the condi- kion imposed an unreasonable risk of horn. OPINION OF THG COURT BY PADGET'r, J. This is an appeal front a judgment in favor of the dcfendatrVposscs. sor of land pursuant to a jury verdict, in a slip--and–fall case. Appellant Margaret Corbett allegedly injured herself when site stepped off of a paved sidewalk on appellee's premises and fell, She claims that the cause of her fall was Ate four– or five–inch difference to height between die paved sidewalk and die adjoining lawn. DEC -30-2002 MON 09 27 RM COK CLERK OFFICE FAX N0, 8082418349 416 SUPREME COURT OF HAWAII 70 HAW Opinion of Elie Court The appeal is based upon claimed error in the giving of defendunl's proposed jury instructions 38, 40 and 41 over her objection. Those three instructions read as follows: DEFENDANT'S PROPOSED INSTRUCTION NO. 38 People can hurl themselves on almost any condinoi n of dwc prcmises.But it lakes more than this to make a condi lion unrca- sonably dangerous. If people who are likely to encounter a con- dition away b: expected to lake perfectly good care of thCm- selves without further precautions, then Uwe condition is not un- reasonably dangerous because the likelihood of learnt is Slight. DEFENDANT'S PROPOSED INSTRUCTION NO. 40 "Achwl notice" means duct the defendant actually knew the condition was unreasonably dangerous. "Constructive no- tice" of an unmasonably dangerous condition arises by opera- tion of law and maybe inferred if tie facts indicate a reasonably prudent persun would have discovered Line dangerous condi uoo in time to remedy it or give warning before the injury occurred. DEFENDANT'S PROPOSED INSIRUC ION NO, 41 In determining whadier the condition was unreasonably dangerous and whether the defendant had actual or constructive notice of de condition, you #nay eawsidcr evidence of the ab- sence of prior accidents or occurrences. The phrase "unreasonably dangerous" is used live times in there dree instructions. Appel lant contends, and we agree, that lar the pugiuscs of jury instructions, that term is misleading, and should not have been used, I'lie legal question, of Ute scope of die duty of a possessor of the land, toward those who come onto the land, with respect to conditions on Lite land, is a matter with which tie courts have had great difficulty in dealing, and which has resulted in many jurisdictions In very complex Ades based on the particular status of die personcoming on die hand. Sec, for example, 2 Ressoranenr of yorrs (Second) §§ 328E through 350, at 170-233 (1965). Some years ago, this court broke with the conunon-haw tradition of classifying the scope of die possessor's duly by the status of die persons injured as invitees, licensees, aro. Pickard v, City & County, 51 Haw. 134, 452 P -2d 445 (1969); Gibo Y. City & County, 51 Haw. 299, 459 P.2d 198 (1969). W DEC -30-2002 MON 09:27 RM COK CLERK OFFICE FAX NO, 8082416349 70 11A COltnpa-I'v.ASSN. OFAPf.OWNERS 417 OF WAILUA IIAVVIEW APTS. Opinion of the Court However, in discussing the land possessor's negligence ill otter cases we havc, in various contexts• used Or term "condition unreasonably dangerous" (Friedrich v Uepartmenr ojTransp„60 Haw. 32, 36 n. I, 586 P.2d 1037, 1040 n.l (1978)); "dangerous conditions” (Urdetarl V. stare, 66 Haw, 5.5, 09, 656 P.2d 1336, 1345 (1982)); and "cxtrcmcly dangerous conditions" (8aczmarczyk v. City & County, 65 Haw, 612, 615, 656 P,2d 89,92 (1982)). Likewise, tie filter mediate Court of Appeals of the Sale 01 I lawah has used "unreasonably dangerous condition" (I4n•ris r. State, I Haw. App. 554, 558, 623 11,2d 446, 449 (1981)) and "dunprons coot itaon" (Hascup v. City A County, 2 I -law. App. 639, 642, 638 11.2d 870, 873 (1982)), Textual writers also have used Um Leon "unreasonably danger- ous" (2 1larper & Jamcs, Torts 0 27,13 (1956)) - In our view, the substance of our many cases, dealing with lwsscs- sors of land, anal their duty toward persons using the land, is [hat, if a con- Likiun exists upon the laud which poses an unicasouable risk of harm to persons using the laud, then the possessor of the land, if tine pusstssor knows, or should have known of tiro unreasonable risk, owes a duty to die persons using file land to take reasonable steps to eliminate the wlrcas(nl• able risk, or adequately to wam die users against it. Our past discussions of this macer, and file leans used theicin, were mode ill the context of Ute facts in those casos, but were nut dISCIINSWnS of the proper wording of jury instructions. As we have pointed out ill earlior decisions, a direct quotation of lan- guage from an opinion is not always a good basis for a jury illSouLtion. The question here is whether the use, five times, of Lite conn "unreason- ably dangerous," applied to the condition of the laild, in the three instruc- Lions quoted, is the equivalent of the proper test for negl igmt: of the Inn- Sessof which we havc suited above. We conclude Ural it is not. The focus of die test for negligence should be, and, in Lite case or jury instructions, must be, on tic unr(•.asonableness of the risk of harm, not on the dc6ree of dangerousness of die condition. A jury might, and probably would, regard the four— to five -inch dir- ference in height between lite sidewalk and the adjoining lawn us not "un- reasonably dangerous" but it might lind that, In Lite circurnslaneus of de case, it posed an unreasonable risk of harm. DEC -30-2002 MON 09:28 AM COK CLERK OFFICE FAX NO, 8082416349 418 SUPREME COURT OF HAWAII 70 IIAW Opinion or Clic Court In our view, the instructions, aS worded, required Cho Jury lofind ind mat the condition was " unreasonably dangerous," before it considered dw un- reasonableness or the risk of ham, and were thus misleading. Revcrscd and remandect for a new trial. Douglrar R. Spencer (Teresa S. 7"ico on UWe olicning bricl) I'or appel- ]ant. Jeffrey S. Porinoy (Peter W, Obon whh him on the bricC Cades Sdmtte Fleeting & Wright, of counsel) for aplwllcc. DEC -30-2002 MON 03:23 PM COK CLERK OFFICE COUNTY C1.13,ItK - 4396 RICIZ I,IHUB Ill TEL, (R08) 241 -6371 FAX N0. 8082416349 t COUNCIL SERVICES ST., RM. 206 96766-1199 TAX. (808) .241-6349 PACSIMILE TRANSMITTAL SHE '1'O. curti.5 Zyler, TIT I°Rum.- James Kunane ZoklOkS Dain Kane b COMPARY, Attn: Rory Flynn DATE-- Richelle Kawasaki 12/30/02 VAXNUMRIM: e%" TOTM,NO, W(P^tltISINaa.0111H 04AVVtA: 2 NIONK NUM11AW SIMMIN'S kJ040111,MM NUAtOVW p. 01/02 RIC YOUR 14HPIAIdNCII NUM191"W httachment for Memo,,datad 12/24/02 regarding 2003 1ISAC legislative Package (Skate Parks - Corp Counsel. Bill) Opinion from Amy Fsaki, First Deputy County Atty 0 tilMIENT 01�Ok WIMEW 0 PWASH COMM INT 0 PIAMN IMPLY 0 PLICA`,: 1t1tCY0,1i Nt 1'1'I!F�t;ap1w1llN'1 s: this opinion was requested by Councilmember JoAnn Yukimura as it relates to the new Skate Park bill transmitted along with this memorandum sent to you earlier this Horning. you may want to circulate it to your Councilmembers for their information. Tf you have any questions, please contact Cyndi Ayonon at 241--6358. DEC -30-2002 MON 03:23 PM COK CLERK OFFICE FAX N0, 6082416340 P. 02/02 COUNTY Q; KAunl OFFICE, 0 1 1 CO T��I' RNU,Y MERORANDUM December 23, 2002 TO; JoAnn A. Yukimura Council Membcr FROM: Army I. Esaki First Deputy County Attorney RF; REQUEST FOR SUPREME COURT DECISION ON CASE RELATING TO SKATEBOARD PARKS This is in response to your request for a summixty of the Supreme Court decision relating to the HSAC's proposed hazardous recreation bill, The Hawaii Supreme Court case is Corbett v. AscoGiation of Aoartanent wners of VVailua a3 view ApagMots, 70 flaw. 415 (1989). Plaintiff Margaret Corbett filed a law suit against the Dcfendant for injuries she sustained as a result of her stepping off a paved sidewalk on Defendant's premises and falling. She claimed that the cause of her fall was the four or five -inch difference in height between the paved sidewalk and the adjoining lawn. The jury found in favor of Defendant, and Plaintiff appealed on the basis that there was an error in the Defendant's jury instructions which utilized (lie phrase "unreasonably dangerous" five tunes. Plaintiff/App-llant argued that the term was misleading and should not have been used, The Ilawaii Supreme Court agreed with Appellant. It held that the focus of the test for negligence should be on the unreasonableness of the risk of harm and not on the degree of dangerousness of the condition. The Court reversed and remanded the case for a new trial. As a result of the Court's decision, the attached bill is being recommended by the City and County of Honolulu attorneys which contains the phrase "unreasonable risk of harm" rather than "physically hazardous condition," �.J AMY 1. L•SAKI First Deputy County Attorney A.lE;pyc Attachment DEC -30-2002 MON 08:35 AM COK CLERK OFFICE FAX NO. 8082416349 P. 01/05 Hawaii State Association of Counties Counties of Kauai, Maui and Hawaii, City & County of Honolulu December 20, 2002 MEMORANDUM To: Members of the Hawaii State Association of Counties Executive Board Members & Respective Staff Members Attn: Curtis Tyler III, President, County of Hawaii Dain Kane, Vice President, County of Maui Gary Okino, Secretary, City & County of Iionolulu Staff: Rory Flynn. County of Hawaii Richolle Kawakami, C my of Maui Andrew Sekinc, Cita nCounty of flonolulu Front; James Kunanc Tokink�l, �['reasurer, County of Kauai RE: 2003 FISAC Legislative Package Proposal from Couneilmember Romy M. Cachola Relating to Resolution No. 02-292 Supporting a Policy CJnder Which All Counties Share fit Tile Cost Of A Lawsuit Brought By A County Against The State Or Other Governmental Entity That May Bencrd All Counties At the HSAC Executive Board Meeting which was held on November 22, 2002 Councilmember Gary Okino circulated a memorandum from Couneilmcirber Romy M. Cachola dated September G, 2002 relating to the above-mentioned resolution for possible inclusion in the 2003 HSAC Legislative Package. At that time, the HSAC board was briefed by Councilmember Cachola's staff member, The HSAC Board requested that information oil the intent and legislative history on this issue be submitted for review and consideration in order to refer this matter to the four (4) County Councils. To date, I have not received that information. 1 would like to know whether the City & County of Honolulu's Council has acted on Resolution No. 02-292 and its status. 1 would also like to request that this matter be scheduled for the next IISAC Executive Board Meeting to be held on January 15, 2003 and that the background information on Resolution No. 02.292 be submitted to all IISAC Board members prior to this meeting due to time constraints. It is important to gather all the infornhation necessary in a timely manner in order to facilitate this process or the issue may not be acted upon. I would also like to be able to present the background information to our County A[Iomey and the members of the Kauai County Council as soon as possible for their input prior to the IISAC meeting on January 15". Thank you very much for your attention to this matter. IT/ca cc: 1/15/03 FISAC Executive Committee Meeting Agenda Alt. Post -It* Fax Note 7671 pato t nor n^ . <ti� Pnaen .� From DEC -30-2002 MON W35 RM COK CLERK OFFICE FAX N0, 8082416'49 P, 02/05 ltUh1Y M. CACItOLA COUNMMUMDER (808)547.7007 (808) 523 4220 (rax) c.m.il: rcaclwlawa.honolulu 11LUS September 6, 2002 Memorandum CT'T''S - CQU'NCTL, CITY AND COUNTY OF HONOLULU HONOLULU, HAWAII 96813-3005 / TELEPHONE 547.7000 TO: COUNC1LMEMBER GARY 0K1N0 FROM: COUNCII,MI ML113R ROMY M. CACI-I01,A SUBJECT: 2003 HSAC L1iGISLATIVE PACKAGE 'I hank you for your memorandum dated August 29, 2002 requesting legislative proposals for consideration and inclusion in the 2003 HSAC f egislative Package. I tun interested in IISAC's support of a measure which would require cacti county to pay for their reasonable share of expenses in lawsuits that affect the various counties, As you may recall at a recent Executive SCSSioll, this Council was asked to approve funding to hire a law firm to intervene in a case that affects the State Employees Retirement System. It is my belief that on matters that have statewide implications all COUn ics should mak-c a commitment to share in the expenses. I also believe HSAC should add to its package legislation urging the State Legislature to grant all of the counties immunity from toil liability arising from just skate park activities on City -owned or City-controtted'properlies. As you know, the City Council considered, but did not adopt, Resolution 02-123 which urged the City Administration to temporarily suspend planning, constntetion and future development of skate park facilities until the State Legislature grants the City immunity as suggested above. I continue to believe it is in the best interest of the all counties to be protected from potclttial liability given the inherently llamrdous nature of skating and skateboarding. Thank you for your attention to this matter. DEC -30-2002 MON 08 35 RM COK CLERK OFFICE FAX NO, 8082416349 '�' -.I CITY COUNCIL CITY AND COUNTY OF HONOLULU \�-,.. HONOLULU, HAWAII No. RESOLUTION F. 03105 02-292 SUPPORTING A POLICY UNDER WHICH ALL COUNTIES SIMRE IN THE COST OF A LAWSUIT BROUGHT BY A COUNTY AGAINST'THE STATE OR OTHER GOVERNMENTAL ENTITY THAT MAY BENEFIT ALL COUNTIES. WHEREAS, at times, a county may bring a lawsuit- against the State or other governmental entity to seek an interpretation, abeyance, or invalidation of law or administrative action that may benefit all counties, even those not parties to the lawsuit; and WHEREAS, a lawsuit may entail expenses such as the engagement of special counsel to represent the interests of the county that brings the lawsuit-; and WHEREAS, the Council believes that in lawsuits that may benefit all counties of the State of Hawaii, the counties should make a commitment to share appropriately in the costs of the lawsuits; now, therefore, BE IT RESOLVED by the Council of the City and County of Honolulu that it supports a policy under which all counties share in the cost of a lawsuit brought by a county against the State or other governmental entity that may benefit all counties; and BE IT FURTHER RESOLVED that under this policy, all counties will enter into cost-sharing agreements for such lawsuits on a case-by-case basis; and HE IT FURTHER RESOLVED that the counties of Hawaii, Kauai, and Maui are urged to adopt measures in support of the policy stated in this Resolution; and OCSO0615.RO2 DEC -30-2002 MON 08:35 AM COK CLERK OFFICE FAX NO. 8082416349 P. 04/05 RESOLUTION BE IT FINAIF,LY RESOLVED that copies of Lhis Resolution be tramsmitLed to the council chairs of the counLies of Hawaii, Kauai, and Maui, and the President of the Hawaii State Association of Counties. DATE of INTRODUCTION: OCT 10 2002 Honolulu, Hawaii (OCS/101002/ct) CITY COUNCIL CITY AND COUNTY OF HONOLULU HONOLULU, HAWAII 1 herAby certify Ihat the foregoing RESOLUTION was adopted by the COUNCIL OF THE CITY AND COUNTY OF HONOLULU on the dale and by the vote, indicated to the right. ATTEST: GENEVIEVE G. WONG JOHN DeSOTO CITY CLERK CHAIR ANO PRESIDING OFFICCR DOW Councilmembers 2 ADOPTED MEETING HELD AYE NO A/E DAINUM DUNDA CACHOIA DeSOTO FELIX HOLMES KOBAYASHI OKINO YOSHIMURA Reieronce: Report No. Resolution No, 02-292 DEC -30-2002 MON 08:36 AM COK CLERK OFFICE KC 23 '02 1114aW Intergovernmental Affairs and Customer Services Committee Minutes Tuesday, October 22, 2002 Page 3 FAX N0, 8082416349 P, 05105 2. $.SOLUT1Qbj 02.202 —COMMIT I EE REPORT 487 SUPPORTING A POLICY UNDER WHICH ALL COUNTIES SHARE IN THE COST OF A LAWSUIT BROUGHT BY A COUNTY AGAINST THE STATE OR OTHER GOVERNMENTAL ENTITY THAT MAY BENEFIT ALL COUNTIES. Committee Chair Caohola stated that the intent of the resolution Is for all counties to share In litigation expenses for lawsuits that benefit all counties. Resolution 02.202 reported out for adoption. AYES: CACHOLA (Chair), BUNDA, KOBAYASHI.3. NOES: None. EXCUSED: YOSHIMURA -1. ABSENT: HOLMES - 1. 3. 8F.SOLUTION 02 303 �- COMM)EE REP 8 RELATING TOA LEGISLATIVE PROPOSAL FOR INCLUSION IN THE 2003 HSAC LEGISLATIVE PACKAGE THAT WOULD PROVIDE THE COUNTIES AND COUNTY EMPLOYEES IMMUNITY FROM TORT LIASIITY ARISING FROM HAZARDOUS ACTIVITIES IN SKATE PARKS IN COUNTY -OWNED OR CONTROLLED PROPERTIES. ' Councilmember Okino explained the purpose of the resolution and credited the advice of Committee Chair Cachols for 4 being included in the HSAC package, Committee Chair Caohola explained that skate parks are In demand by communities statewide because they offer alternatives from possible pang related activities for the youth, As the community needs get fUmlled - the building of more skate parks - there Is also greater risk of Injuries and lawsuits. This resolution addressee that situation and gives the legislature an opportunity to assist the counties from such increased liability. Committee Chair Cachole introduced a CD1 that correct& page 2, line 20, of the bill Attached to the resolution by adding the word "not" to Section (o) (1)(8). LENINGRAD ELARIONOFF Councilmemher OFFICE OF THE COUNTY COUNCIL County ofHawaii Hannii County Building 25 Aupuni Street Nilo, Hawaii 96720 December 30, 2002 Re: Comm. 84 James Y. Arakaki, Chairman Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 RE: HSAC Memos from Kauai PHONE: 961-8265 FAX: 961-8912 Pursuant to Section I (g) of Rule 4 of the Rules of Procedure of the Council of the County of Hawaii, this written request is submitted with my approval that the above -referenced matter be waived from the Committee on Public Works and Intergovernmental Relations to the full Council for immediate action. In reviewing this matter, timely approval is crucial. It is therefore advantageous that approval is granted and the matter placed onto the next Council agenda for review. However, in the event this request is denied, for whatever reason, I understand the matter shall be referred to the Committee on Public Works and Intergovernmental Relations for placement on its future agenda. Sincerely, ma Leningrad Elarionoff, Chair Committee on Public Works and Intergovernmental Relations to `i County Council Disapproved/Date/Refer to PWIRC: James Y. Arakaki, Chairman Hawaii County Council DISTRICT 9 Waimea, Kohala, Kawaihae, Waikoloa, Puako