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HomeMy WebLinkAboutCOM 0452.001 2004-2006 :'o:~-.t-- ' J<r1Mt.~ 1'. ~K~~KA,KI ~~°~~'y I'honc: (8OSlt~f~l-8?7? ~~j" ,s t ~ 1j p p { p r~~Tii7i .=ti7:;V7)f)t i)L11711'13 ~.o-`. J ~'f~~.~O~)D~i~il 1'011 SF' s C(>[~TY C:OUNC'~L. C'urtrJt~~ n~~Huu~,tJ i ffrre~ti'i ('r„„ttf f3ttil~r-rrg ~ I r;~:it,ri .Sir°~r1. ,Suitr ~'O9 Nilr,, /fcnrui7 yh~?tr M~MO~1\TDUM DA'T'E: October 3, 2005 ~`1 ~ 'I'O: Stac~~ K. lliga, Chairman i r~ FRO1Vd: James Y. ~~rakaki, Council MembeYl 1ZE: Referring to Comm. 452 1 2006 HSAC Legislatise T'ackage 1 would like to suggest adding the following legislation to the 2006 HSAC Legislati~-c Package: 1) Bill relating to Public Land Liability Immunity (Beach Signage/Lifeguard Liahilit<~), which repeals the sunset date on June 30, 200i'. 2) Bill relating to Public Land Inability (Public Lands Signage -Sacred I"alls), which repeals the sunset date on ~unc 30, 2008. Please contact me i£ ~~ou ham e anp further duestions or concerns. 1~~Iahalo. ~1'_\r'rnmc .Attachments lL,u r ~„~,n r ,~r t:J;;,r/r?J .t=iartll:rll /',~•~,r,.irr ,ut,i l:xJ,l,-irr R~~~. ~ ~ ~ JUSTIFICATION SHEET PROPOSER: County of Hawaii TITLE: RELATING TO PUBLIC LAND LIABILITY IMMUNITY PURPOSE:: Repeals sunset date of June 30, 2007, for public land liability immunity established by Act 190, Session Laws of Elawai'i 1996, as amended by Act 101, Session Laws of Hawaii 1999, and sunset date of June 30, 2007, for State and county tort liability established by Act 170, Session Laws ofHawai`i 2002. MEANS: Amends Act 190, SI,H 1996, and Act 170, SLH 2002. JUST[FICATTON: Act 190, SLH 1996, established a process by which a legally adequate warning system was developed at public beach parks to increase public safety,rcduce ocean-related accidents, and protect the State and counties from unlimited liability exposure at public beaches and in the ocean. The posting of signs for public safety in return for protection for various governments against liability has given the public safer access to recreational areas and removed an unnecessary and unreasonable burden on government agencies. This is a public safety measure that should be made permanent. Act 170, SLH 2002, provided for an exception to tort liability for county lifeguard services while providing rescue, resuscitation, or other lifeguard services on the beach or in the ocean. It has helped the counties place lifeguards on the public beaches and has he]ped the State to make public parks safer. This is a life-saving measure that should he made permanent. .B. NO. A BILL FOR AN ACT RELATING TO PUBLIC LAND LIABILITY IMMUNITY BE IT EKACTED BY'CHF, LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. Section 7 of Act 190, Session Laws of Hawaii 2 1996, as amended by section 2 of Act 101, Session Laws of 3 Hawaii 1999, as amended by section 2 of Act 170, Session Laws 4 of Hawaii 2002, is amended to read as follows: 5 6 "SECTION 7. This Act shall take effect on July 1, 7 1996 K Jk3..,.~o^~v^v-~r~ it 9 111 SECTION 2. Act 170, Session Laws of Hawaii 2002, is It amended by amending section 5 to read as follows: 12 13 "SECTION 5. This Act shall take effect upon its 14 approval [ , 15~T~ ]6 17 SECTION 3. Statutory material to be repealed is bracketed IH and stricken. 19 2U SECTION 4. This Act shall take effect upon its approval. 21 22 23 INTRODUCED BY: Act 190 (page 1 of 3) Pubic Beach Signage 663-10.5. Government entity as a tortfeasor; abolition of joint and several liability. Notwithstanding sections 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 rnore 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 ofits officers and employees. [L 1994, c 213, § 1; am L 2001, c 300, § Editor's note - 1994 Haw. Sess. Laws, Act 213, § 3, provides that the Act shall apply only to causes of action based upon acts or omissions occurring on or after June 22, 1994. 1996 Haw. Sess. Laws, Act 190, § 2, effective July 1, 1996, as amended by 1999 Haw. Sess. Laws, Act 101, § 2, and 2002 Haw. Sess. Laws, Act 170, § 2, which extended the repeal date from June 30, 1999 to June 30, 2007, provides as follows: "Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "663-. Conclusive presumptions relating to duty of public entities to warn of dangers at public beach parks. (Repealed effective June 30. 2007.1 "(a) The State or county operating a public beach park shall have a duty to warn the public specifically of dangerous shorebreak or strong current in the ocean adjacent to a public beach park if these conditions are extremely dangerous, typical for the specific beach, and if they pose a risk of serious injury or death. <q 2005 Matthew bender & Compm,y, Inc., n member of the LexisNexis G~oup_ All righLC mserved_ Use of this pnxlucr is subject to [hc rastnnioac and lams' and conditions oCthr Matthew Bender Master Agreement Act 190 (page 2 of 3) Pubic Beach Signage "(b) A sign or signs warning of dangerous shorebreak or strong current shall be conclusively presumed to be legally adequate to warn of these dangerous conditions, if the State or county posts a sign or signs warning of the dangerous shorebreak or strong current and the design and placement of the warning sign or signs has been approved by the chairperson of the board of land and natural resources. The chairperson shall consult the governor's task force on beach and water safety prior to approving the design and placement of the warning sign or signs. "{c) A sign or signs warning of other extremely dangerous natural conditions in the ocean adjacent to ~`~I^ t`.eaCh ark Shaii be CuiwiUSvel r6sUiiied 10 be ie au ode uaie to warn Of [he don erOUS a pu.., „ p Y F' 9" ..Y q 9 natural conditions, if the State or county posts a sign or signs warning of the extremely dangerous natural condition and the design and placement of the sign or signs have been approved by the chairperson of the board of land and natural resources. The chairperson shall consult the task force on beach and water safety prior to issuing an approval of the design and placement of a warning sign or signs pursuant to this section. ' "(d) The State or county operating a public beach park may submit a comprehensive plan for warning of dangerous natural conditions in the ocean adjacent to a public beach park to the chairperson of the board of land and natural resources who shall review the plan for adequacy of the warning as well as the design and placement of the warning signs, devices, or systems. The chairperson shall consult with the task force on beach and water safety prior to issuing an approval of the plan. The task force on beach and water safety may seek public comment on the plan. In the event that the chairperson approves the plan for the particular beach park after consulting with the task force and the State or county posts the warnings provided for in the approved plan, then the warning signs, devices, or systems shall be conclusively presumed to be legally adequate to warn for alt dangerous natural conditions in the ocean adjacent to the public beach park. "(e) Neither the State nor a county shall have a duty to warn on beach accesses, coastal accesses, or in areas that are not public beach parks of dangerous natural conditions in the ocean. "(f) Neither the State nor any county shall have a duty to warn of dangerous natural conditions in the ocean other than as provided in this section. "(g) In the event that a warning sign, device, or system posted or established in accordance with this section is vandalized, otherwise removed, or made illegible, the conclusive presumption provided by this section shall continue for a period of five days from the date that the vandalism, removal, or illegibility is discovered by the State or county. The State or county operating a public beach park shall maintain a record regarding each report of vandalism, removal, or illegibility that results in the replacement of a warning sign, device, or system at a State or county public beach park. The record shall include the date and time of the reporting and the replacement of the warning sign, device, or system. The State and county shall provide a copy of the record annually to the chairperson of the board of land and natural resources and the task force on beach and water safety. "(h) The chairperson shall consider the needs of the public to be warned of potentially dangerous conditions in the ocean adjacent to a public beach park prior to issuing an approval for the design and placement of a warning sign or a comprehensive plan. The chairperson may require warning devices or systems in addition to the signing before approving the design and placement of a warning sign or a comprehensive plan. The approval of the design and placement of a warning sign, device, system or comprehensive plan provided in this section shall be a discretionary decision under chapter 662. "(i) Chapter 91, Hawaii Revised Statutes, shall not apply to any process, including any action taken by the chairperson, established or made pursuant to this section. "(j) Nothing in this section shall be construed to have an impact upon governmental liability for the (<7 2005 Matthew Bendy & Company, Inr,., a manbcr oC Lhe lzxfsNexis Grnup. All nghis reservul. Use orthis product is subl~l to the rest~ictim~s and renns and conditions of the Matl hew Bcndrr Master Agreem~ml. Act 190 (page 3 of 3) Pubic Beach Signage pertormance of rescue services or duties and responsibilities of lifeguards other than the duty to warn as set forth in this section." 1996 Haw. Sess. Laws, Act 190, § 4, provides: "This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." Act ~ it1 (page 1 of 'I ) Partial Immunity for County Lifeguard Services 2002 Haw. Sess. Laval, Act 170, § 1, effective June 18, 2002, and repealed June 30, 2007, enacts the following section: 563- .Exception to IiabilitY for county lifeguard services. "(a) For the purpose of this section: "'County lifeguard' means a person employed as a lifeguard by a county of this State: " Employing county' means the county employing a county lifeguard. "(b) Notwithstanding any other law to the contrary, a county lifeguard, the employing county, and the State shall not be liable for any civil damages resulting from any act or omission of the lifeguard white providing rescue, resuscitative, or other lifeguard services on the beach or in the ocean in the scope of employment as a county lifeguard. This exception from liability, however, shall not apply when the claim for civil damages results from a county lifeguard's gross negligence or wanton act or omission." 2002 Haw. Sess. Laws, Act 170, § 3, provides that the Act shall not affect rights and duties matured, penalties incurred, and proceedings begun, before its effective date. The 2001 amendment, effective June 28, 2001, substituted the reference in the first paragraph for "sections 663-11 to 663-17 and section 663-31" and made stylistic changes. CASE NOTES Liability improperly apportioned - HRS § 663-10.5 did not apply fo claims of plaintiffs, the molested students and their parents, to the extent that they were based upon the State of Hawaii department of education (DOE) negligently retaining the teacher accused of molestation; thus, the circuit court erred in apportioning liability between the DOE and the teacher, and the DOE was liable to the plaintiffs for the full extent of their damages. Mr. & Mrs- Doe Parents No. 1 v. State, 100 Haw. 34, 58 P.3d 545, 2002 Haw. LEXIS 766 (2002). Act 170 (page 1 of 1) Partial Immunity for County Lifeguard Services 2002 Haw. Sess. Laws, Act 170, § 1, effective June 18, 2002, and repealed June 30, 2007, enacts the following section: 663- .Exception to Liability for rounty lifeg~.rard services. "(a) Fur the purpose of this section: "'County lifeguard' means a person employed as a lifeguard by a county of this State. " Employing county' means the county employing a county lifeguard. "(b) Notwithstanding any other law to the contrary, a county lifeguard, the employing county, and the State shall not be liable for any civil damages resulting from any act or omission of the lifeguard while providing rescue, resuscitative, or other lifeguard services on the beach or in the ocean in the scope of employment as a county lifeguard. This exception from liability, however, shall not apply when the claim for civil damages results from a county lifeguard's gross negligence or wanton act or omission." 2002 Haw. Sess. Laws, Act 170, § 3, provides that the Act shall not affect rights and duties matured, penalties incurred, and proceedings begun, before its effective dale. The 2001 amendment, effective June 28, 2001, substituted the reference in the first paragraph for "sections 663-11 to 663-17 and section 663-31" and made stylistic changes. CASE NOTES Liability improperly apportioned - HRS § 663-10.5 did not apply to claims of plaintiffs, the molested students and their parents, to the extent that they were based upon the State of Hawaii department of education (DOE) negligently retaining the teacher accused of molestation; thus, the circuit court erred in apportioning liability between the DOE and the teacher, and the DOE was liable to the plaintiffs for the full extent of their damages. Mr. & Mrs. Doe Parents No. 1 v. State, 100 Haw. 34, 58 P.3d 545, 2002 Haw. LEXIS 766 (2002). JUSTIFICATION SHEET PROPOSER: County of I Iawai`i TITLE: RELATING TO PUBLIC LAND LIABILITY PURPOSE: Repeals sunset date of June 30, 2008, for public land liability established by Act 81, Session Laws of riawai`i 1003. MEANS: Amends Act 82, SLH 2003. JUS"fiFICATION: Act 82, SLH 2003, established a risk management procedure for public lands, involving the design and placement of signs that warn of dangerous natural conditions, and provided the State and the counties protection from liability for injuries resulting from those dangerous conditions. The Act struck an equitable balance between the personal responsibility of people engaged in recreational pursuits on public lands, and the duty of government to take reasonable measures to protect its citizens from harm by providing adequate warning. The Act helped to prevent the closure of recreational public lands, and should be made permanent. .B. NO. A BILL FOR AN ACT RELATING TO PUBLIC LAND LIABILITY BE IT F,NACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: SECTION 1. Act 82, Session Laws of Hawaii 2003, is 2 amended by amending section 8 to read as follows: 3 J "SECTION 8. This Act shall take effect on July 1, 5 2003 ~-."~~s's Ac ,.a T..~..~z^~oo) G 7 SECTION 2. Statutory material to be repealed is bracketed ft and stricken. 9 lfl SECTION 3. This Act shall take effect upon its approval. 11 12 13 INTRODUCED BY: Act 82 (page 1 of 2) Improved Public Lands Signage Editor's note - 2003 Haw. Sess. Laws, Act 82, § 2, added the following uncodified part, effective July 1, 2003 and repealed effective June 30, 2008: "Part LIMITATIONS ON PUBLIC ENTITY LIABILITY IN ACTIONS BASED UPON DUTY TO WARN OF NATURAL CONDITIONS "6 663- . Definitions. As used in this part: "~Board~ means the board of land and natural resources. "'Improved public lands' means lands designated as part of the state park system, parks, and parkways under chapter 184, or as part of a county's park system, and lands which are part of the Havraii statewide trail and access system under chapter 198D, excluding buildings and structures constructed upon such lands. For purposes of this part, "improved public lands"' excludes ocean and submerged lands, and further excludes any public beach pack falling within Ac[ 190, Session Laws of Hawaii 1996, as amended by Act 101, Session Laws of Hawaii 1999. "'Public entity means government entity ' as defined in section 663-10.5. "6 663- .Conclusive presumptions relating to duty of public entities to warn of dangers on improved public lands. (a) A sign or signs warning of dangerous natural conditions on improved public lands shall be conclusively presumed to be legally adequate warning of the dangerous natural conditions of which the sign or signs warn, if the State or a county posts a sign or signs warning of the dangerous natural conditions and the design and placement of the warning sign or signs are approved by the board. The board shall consult the risk assessment working group established by chapter 171, prior to approving the design and placement of a warning sign pursuant to this section. "(b) The State or a county may submit to the board a comprehensive plan for warning of dangerous natural conditions at a particular area of improved public lands. The board shall review the plan for adequacy of the warning as well as the design and placement of the warning signs, devices, or systems. The board shall consult with the risk assessment working group before approving the plan. The risk assessment working group shall seek public comment on the plan. In the event that the board after consulting with the risk assessment working group approves the plan for a particular area of improved public lands, and the State or a county posts the warnings provided for in the approved plan, then the warning signs, devices, or systems shall be conclusively presumed to be legally adequate warning of all dangerous natural conditions on the improved public lands. "(c) The State or a county shall have no duty to warn of dangerous natural conditions on unimproved © ZUUS Matthew [lender & Company, Inc , a member of die Lex3sNexis Group. All nghLS reserv~_ Use oCthfs product fs suhiect to the restnefionti end Jenne and coodlt[onti of the Matthew Bcxtder Maser Agreement. Act 82 (page 2 of 2) Improved Public Lands Signage public lands "(d) If a warning sign, device, or system is posted or established in accordance with this section on unimproved lands, the posting or establishment of the warning sign, device, or system shall not create a duty on the part of the State or county to warn of other dangerous natural conditions on unimproved lands or to place or establish an additional warning sign, device, or system in other locations on the unimproved lands. "(e) The State and the counties shall implement and maintain a sign inspection program in which a park caretaker or other authorized person conducts documentetl inspections of all signs in the park or trail area on a quarterly or more frequent basis. "Records shall be kept under the sign inspection program which document the date of each sign inspection and whether the particular sign inspected was in place, free of vandalism, and legible. The State and the counties shall annually provide the board with a copy of the documentation of all sign inspections under the sign inspection program. 'The conclusive presumption provided by this section shall continue for any sign posted pursuant to this section for a period of one hundred twenty days after the last inspection that documented that the sign was in place and legible, after which the presumption shall lapse until the time at which the sign is subsequently inspected and documented to be in place and in legible condition. "In any circumstance in which the conclusive presumption lapses because of the lack of a documented inspection, the presumption shall be reestablished if the State or county, as the case may be, proves by a preponderance of the evidence that at the time of the inc;ident at issue, the sign was in place and in legible condition. "(f) The board shall adopt rules pursuant to chapter 91 establishing standards to guide the department of land and natural resources and the risk assessment working group in the general design and placement of warning signs; provided that chapter 91 shall not apply to any other process or action undertaken pursuant to this part. "(g) The State and the counties shall implement an accident reporting and record keeping program whereby all known accidents in park and trail areas are documented on an accident report form, and all such accident reports are kept on a permanent basis. The risk assessment working group shall review and use accident reports kept as part of this program as part of its consultation to the board under this section." 2003 Haw. Sess. Laws, Act 82, § 5, provides: "This Act shall not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." 2003 Haw. Sess. Laws, Act 82, § 6, provides: "If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable." RESEARCH REFERENCES ALR Escalators. 1 A.L.R.4th 144. Flammable clothing. 1 A.L.R.4th 251. Defect in boator its parts, supplies, or equipment. 1 A.L.R.4th 411. CQ 2005 Matthew 6rnde~ & (~mpany, Ina, a member of the LexisNexis Grnup All nghls reserved- Use uC Ihis product is subjcer to the reshictions and tenus and cooditioas of the Matthew Render Mall cr Agreement