HomeMy WebLinkAbout2008-05-22_Old_Laupahoehoe_Access_Road Harry Kim O... Of Lincoln S.T.Ashida
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Mayor ` � �yli,; Corporation Counsel
Gerald Takase
Assistant Corporation
'rE of "P, Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street,Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 Fax(808)961-8622
May 22, 2008
(via email)
Honorable Dominic Yagong
Councilmember,District 1
Hawaii County Council
333 Kilauea Avenue, 2°a Floor
Hilo, Hawaii 96720
Re: Old Laupahoehoe Access Road, Possible Warning Signs or Releases of Claims
Dear Mr. Yagong:
County of Hawaii Corporation Counsel Lincoln Ashida has assigned me to respond to
your letter to him, dated May 14, 2008. In that letter, you noted that the County has recently
begun blocking access to the Old Laupahoehoe Access Road ("OLAR") due to a study that
indicated that rockfall mitigation work should be done before the road is opened for public use.
You also stated that residents interested in continuing to walk the OLAR wanted to know if: (1)
warning signs might prevent County liability for injuries due to use of the road; and(2) waivers
of liability by users also might prevent such County liability.
Since this is a matter which your constituents are asking you, we will try to provide a
general legal response which you may share, which does not involve attorney-client privileged
opinions regarding any specific fact situations or claims. This should not be relied upon as a
legal opinion for action or forebearance by any person or entity. Of course any private persons
or entities should consult their own private counsel.
I. WARNING SIGNS
In Hawaii, the occupier of land has a duty to use reasonable care for the safety of all
persons reasonably anticipated to be on the land, regardless of the legal status of the individual.
This duty may include maintaining the premises in a safe condition and warning of known
defects. Pickard v. City and County of Honolulu, 51 Hawaii 134 (1969). Failure to carry out
this duty may result in liability for injuries caused.
Regarding natural conditions, the County may have a duty to warn or protect from
"extremely dangerous conditions"which are not readily apparent to persons of ordinary
Hawaii County is an Equal Opportunity Provider and Employer
Honorable Dominic Yagong
May 22, 2008
Page 2
intelligence, but are known to the County, if the County has "impliedly invited"people to enter
the land for known activities. Birmingham v. Fodor's Travel Publications, 73 Hawaii 359
(1992).
In this case, we assume that the County is aware of existing rockfall hazards. We also
assume, for discussion only, that the County would have a duty to warn users of the OLAR about
the rockfall hazard, if the road were opened for recreational walking.
Such situations inevitably invite comparison to the tragic Sacred Falls State Park rockfall
of Mother's Day 1999. On that date, some 30 cubic yards of rock and debris fell where a crowd
of hikers were enjoying the park. Eight people were killed, and fifty others injured among the
tons of boulders and debris. The State was sued, and was found liable at trial, despite nine (9)
warning signs at the trailhead.
In news release No. 2002-54, October 20, 2002, then State Attorney General Earl Anzai,
announcing that they would appeal, said:
. . . the signs specifically warned of the danger of falling rocks, warned
that falling rocks had caused death and injuries in the past, and warned
that if the public were to proceed past the signs, they should do so only at
their own risk, and they should use extreme caution.
At the gated entrance the sign warned "The upper end of the trail and the
falls area are bordered by rocky cliffs and are subject to FALLING
ROCKS and ROCK SLIDES. Use trail at your own risk." Another sign
posted near the pedestrian gate warned: "FALLING ROCKS ARE
DANGEROUS. THEY HAVE RESULTED IN DEATH AND
INJURIES HERE. ROCKS FALL AT UNPREDICTABLE TIMES
AND WITH LITTLE OR NO WARNING." Along with the other seven
signs the public was adequately warned of the dangers of falling rock at
the park, and the State therefore should not be liable for the deaths and
injuries that resulted from the rock fall tragedy.
Ultimately the State settled for$8.56 million.
The trial court had noted poor maintenance, ineffective warnings, and no program to
inspect, review or evaluate adequacy of warning signs. Said the court:
In the exercise of due care, the state should have posted more specific
warnings in the area of greatest risk and in a manner that would
adequately impress visitors with the extent of the risk involved . . . The
signs did not warn with the intensity and urgency demanded of the
falling-rock hazard in the waterfall area at Sacred Falls." See
htlp://starbu..Il-etln.com/2002/09/25/news/storyl.html
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.
Honorable Dominic Yagong
May 22, 2008
Page 4
The courts have also tended to throw out the entire waiver agreement, if it purports to
release from more than negligence liability. In re Pacific Adventures, Inc., 27 F. Supp.2d 1223,
1225 (D.Haw. 1998).
So, waivers also are not easy solutions to rockfall liability. Moreover, administration of
waivers would require controlled access to the area, probably requiring rangers or other
monitors. And of course there remains the problem of minors and others who may not
understand English or be of questionable legal capacity.
III. CONCLUSION
In theory, both signage and waivers may help reduce County liability for rockfall injuries.
However, they,cannot be viewed as reliable in every case. And beyond liability,when dealing
with such destructive and deadly forces as rockfalls,we would respectfully urge erring on the
side of caution in restricting access until best efforts can be made to minimize the risks.
Sincerely,
Ivan M. Torigoe
Deputy Corporation Counsel
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