STAND. COM. REP. NO. 847

                                   Honolulu, Hawaii
                                                     , 1999

                                   RE:  S.B. No. 186
                                        S.D. 1




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 1999
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred S.B. No.
186 entitled: 

     "A BILL FOR AN ACT RELATING TO TORT LIABILITY,"

begs leave to report as follows:

     The purpose of this bill, as received by your Committee, is
to limit county liability for personal injury from hazardous
recreational activities occurring at a county-owned or controlled
facility, and to repeal the invitee or licensee exception to
assumption of the risk for injuries on school property.

     Your Committee finds that the limitation on county liability
proposed by this measure would provide counties with greater
protection from liability than is enjoyed by the State or by any
private landowner.  Your Committee further finds that the
proposed expansion of the assumption of the risk defense for
injuries occurring on school property would not sufficiently
protect persons who were injured after being invited onto school
grounds for fairs, plays, or other events.

     However, your Committee finds that this measure, relating to
tort liability, is an appropriate vehicle for changes to Hawaii's
tort laws recommended by the Tort Law Study Group.  The Study
Group, which was convened in 1997 as requested by the Legislature
examined the issue of punitive damages.  Your Committee notes
that a recent Hawaii Supreme Court case has addressed this issue
in the context of tort claims arising out of breaches of

 
a                                                     
 
                                   STAND. COM. REP. NO. 847
                                   Page 2


contract.  Codification of the holding in that case will give
greater certainty in the area of punitive damages.

     Your Committee notes that businesses and individuals have
also objected to the practice by plaintiffs filing a lawsuit of
naming all possible defendants before determining which
defendants were most involved in the alleged wrongful conduct.
This is sometimes done as a protective measure, to avoid a
situation in which a known potential defendant is later
discovered to have been substantially responsible, but cannot be
named because the statute of limitation has already run.  If
plaintiffs could name additional defendants without regard to
statutes of limitation, though, defendants would be prejudiced by
being brought into lawsuits late and without a fair opportunity
to prepare for trial.  Your Committee believes this issue can be
addressed by allowing plaintiffs to name as Doe defendants known
potential defendants whose responsibility for the alleged
wrongful acts could not be ascertained through reasonable efforts
before filing of a complaint, but requiring plaintiffs to act
with diligence in determining the responsibility of potential
defendants and, if appropriate, identifying them to the court.

     Testimony in support of this measure was submitted by the
Department of Education, the Office of the Mayor for the County
of Maui, the Department of the Corporation Counsel for the City
and County of Honolulu, a member of the Maui County Council, and
the Hawaii County Council.  Testimony in opposition to this
measure was submitted by the Consumer Lawyers of Hawaii.

     Upon further consideration, your Committee has amended this
measure by:

     (1)  Deleting the provision limiting county liability for
          hazardous recreational activities; 

     (2)  Deleting the provision changing the circumstances in
          which a person on school grounds is deemed to have
          assumed the risk of injury;

     (3)  Adding a provision codifying the Hawaii Supreme Court's
          decision as to tortious breach of contract in Francis
          v. Lee Enterprises, Inc., No. 21631 (Haw. 1999); and

     (4)  Adding a provision permitting pleaders to name under
          fictitious names defendants whose responsibility for
          the wrongful acts alleged is unknown, in addition to
          defendants whose identity is unknown.


 
a                                                     
                                   STAND. COM. REP. NO. 847
                                   Page 3


     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of S.B. No.
186, as amended herein, and recommends that it pass Second
Reading in the form attached hereto as S.B. No. 186, S.D. 1, and
be placed on the calendar for Third Reading.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
a