REPORT TITLE:
Recreational Activities


DESCRIPTION:
Provides that public entities or employees are not liable for
damage or injuries to participants or spectators of hazardous
recreational activities, with exceptions.  Amends the landowners'
liability law to provide similar liability exemptions for private
landowners who allow those hazardous activities on their land.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2827
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO HAZARDOUS RECREATIONAL ACTIVITIES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that there is a need to
 
 2 limit the liability of public entities and employees, as well as
 
 3 that of private landowners, for injuries or property damage
 
 4 arising from hazardous recreational activities.  The legislature
 
 5 finds that participants, and, to a certain extent, spectators,
 
 6 assume the risk of these inherently dangerous activities.
 
 7 Accordingly, the purpose of this Act is to enact a new law
 
 8 exempting public entities or employees from liability for damage
 
 9 or injuries to participants or spectators of hazardous
 
10 recreational activities, with certain exceptions.  In addition,
 
11 this Act amends the landowners' liability law to provide similar
 
12 liability exemptions for private landowners, including those who
 
13 possess a fee interest, a tenant, lessee, occupant, or other
 
14 person in control of the premises, who allow hazardous
 
15 recreational activities on their land.
 
16               PART I.  PUBLIC ENTITIES OR EMPLOYEES
 
17      SECTION 2.  Chapter 78, Hawaii Revised Statutes is amended
 
18 by adding a new section to be appropriately designated and to
 
19 read as follows:
 

 
Page 2                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1      "§78-     Public entity or employee liability for hazardous
 
 2 recreational activities.  (a)  Neither a public entity or
 
 3 employee is liable to:
 
 4      (1)  Any person who participates in a hazardous recreational
 
 5           activity, including any person who assists the
 
 6           participant; or
 
 7      (2)  Any spectator who knew or reasonably should have known
 
 8           that the hazardous recreational activity created a
 
 9           substantial risk of injury to that spectator and was
 
10           voluntarily in the place of risk, or having the ability
 
11           to do so failed to leave,
 
12 for any damage or injury to property or persons arising out of
 
13 that hazardous recreational activity.
 
14      (b)  As used in this section, "hazardous recreational
 
15 activity" means a recreational activity conducted on property of
 
16 a public entity which creates a substantial (as distinguished
 
17 from a minor, trivial, or insignificant) risk of injury to a
 
18 participant or a spectator.  "Hazardous recreational activity"
 
19 includes, without limitation:
 
20      (1)  Water contact activities, except diving, in places
 
21           where or at a time when lifeguards are not provided and
 
22           reasonable warning thereof has been given or the
 
23           injured party reasonably should have known that there
 

 
Page 3                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1           was no lifeguard provided at the time;
 
 2      (2)  Any form of diving into water from other than a diving
 
 3           board or diving platform, or at any place or from any
 
 4           structure where diving is prohibited and reasonable
 
 5           warning thereof has been given; and
 
 6      (3)  Animal riding, including equestrian competition,
 
 7           archery, bicycle racing or jumping, mountain bicycling,
 
 8           boating, cross-country and downhill skiing, hang
 
 9           gliding, kayaking, motorized vehicle racing, off-road
 
10           motorcycling or four-wheel driving of any kind,
 
11           orienteering, pistol and rifle shooting, rock climbing,
 
12           rocketeering, rodeo, spelunking, sky diving, sport
 
13           parachuting, paragliding, body contact sports (i.e.,
 
14           sports in which it is reasonably foreseeable that there
 
15           will be rough bodily contact with one or more
 
16           participants), surfing, trampolining, tree climbing,
 
17           tree rope swinging, water skiing, white water rafting,
 
18           and windsurfing.  For the purposes of this subsection,
 
19           "mountain bicycling" does not include riding a bicycle
 
20           on paved pathways, roadways, or sidewalks.
 
21      (c)  Notwithstanding subsection (a), this section does not
 
22 limit liability which would otherwise exist for any of the
 
23 following:
 

 
Page 4                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1      (1)  Failure of the public entity or employee to guard or
 
 2           warn of a known dangerous condition or of another
 
 3           hazardous recreational activity known to the public
 
 4           entity or employee that is not reasonably assumed by
 
 5           the participant as inherently a part of the hazardous
 
 6           recreational activity out of which the damage or injury
 
 7           arose;
 
 8      (2)  Damage or injury suffered in any case where permission
 
 9           to participate in the hazardous recreational activity
 
10           was granted for a specific fee.  For the purpose of
 
11           this paragraph, a "specific fee" does not include a fee
 
12           or consideration charged for a general purpose such as
 
13           a general park admission charge, a vehicle entry or
 
14           parking fee, or an administrative or group use
 
15           application or permit fee, as distinguished from a
 
16           specific fee charged for participation in the specific
 
17           hazardous recreational activity out of which the damage
 
18           or injury arose;
 
19      (3)  Injury suffered to the extent proximately caused by the
 
20           negligent failure of the public entity or public
 
21           employee to properly construct or maintain in good
 
22           repair any structure, recreational equipment or
 
23           machinery, or substantial work of improvement utilized
 

 
Page 5                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1           in the hazardous recreational activity out of which the
 
 2           damage or injury arose;
 
 3      (4)  Damage or injury suffered in any case where the public
 
 4           entity or employee recklessly or with gross negligence
 
 5           promoted the participation in or observance of a
 
 6           hazardous recreational activity.  For purposes of this
 
 7           paragraph, promotional literature or a public
 
 8           announcement or advertisement which merely describes
 
 9           the available facilities and services on the property
 
10           does not in itself constitute a reckless or grossly
 
11           negligent promotion; or
 
12      (5)  An act of gross negligence by a public entity or a
 
13           public employee which is the proximate cause of the
 
14           injury.  Nothing in this subdivision creates a duty of
 
15           care of basis of liability for personal injury or for
 
16           damage to personal property.
 
17      (d)  Nothing in this section shall limit the liability of an
 
18 independent concessionaire, or any person or organization other
 
19 than the public entity, whether or not the person or organization
 
20 has a contractual relationship with the public entity to use the
 
21 public property, for injuries or damages suffered in any case as
 
22 a result of the operation of a hazardous recreational activity on
 
23 public property by the concessionaire, person, or organization."
 

 
Page 6                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1      SECTION 3.  Section 662-15, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "§662-15  Exceptions.  This chapter shall not apply to:
 
 4      (1)  Any claim based upon an act or omission of an employee
 
 5           of the State, exercising due care, in the execution of
 
 6           a statute or regulation, whether or not such statute or
 
 7           regulation is valid, or based upon the exercise or
 
 8           performance or the failure to exercise or perform a
 
 9           discretionary function or duty on the part of a state
 
10           officer or employee, whether or not the discretion
 
11           involved has been abused;
 
12      (2)  Any claim arising in respect of the assessment or
 
13           collection of any tax, or the detention of any goods or
 
14           merchandise by law enforcement officers;
 
15      (3)  Any claim for which a remedy is provided elsewhere in
 
16           the laws of the State;
 
17      (4)  Any claim arising out of assault, battery, false
 
18           imprisonment, false arrest, malicious prosecution,
 
19           abuse of process, libel, slander, misrepresentation,
 
20           deceit, or interference with contract rights;
 
21      (5)  Any claim arising out of the combatant activities of
 
22           the Hawaii national guard and Hawaii state defense
 
23           force during time of war, or during the times the
 

 
Page 7                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1           Hawaii national guard is engaged in federal service
 
 2           pursuant to sections 316, 502, 503, 504, 505, or 709 of
 
 3           Title 32 of the United States Code;
 
 4      (6)  Any claim arising in foreign country;
 
 5      (7)  Any claim arising out of the acts or omissions of any
 
 6           boating enforcement officer; [or]
 
 7      (8)  Any claim arising out of a year 2000 error produced,
 
 8           calculated, or generated by a government computer
 
 9           system or other computer-based system, regardless of
 
10           the cause for the year 2000 error.
 
11                "Government computer system" means a computer-
 
12           based system owned or operated by or on behalf of the
 
13           State, its political subdivisions, or a board.
 
14                "Computer-based system" includes any computer or
 
15           other information technology system, and any electronic
 
16           device that controls, operates, monitors, or assists in
 
17           the operation or functioning of equipment, machinery,
 
18           plant, or a device using an embedded or installed
 
19           microprocessor or chip.
 
20                "Year 2000 error" is the failure of a computer-
 
21           based system to accurately store, display, transmit,
 
22           receive, process, calculate, compare, or sequence date
 
23           and time data from, into, or between the twentieth and
 

 
Page 8                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1           twenty-first centuries, the years 1999 and 2000 and
 
 2           beyond, and leap year calculations[.]; or
 
 3      (9)  Any claim based upon an act or omission of a public
 
 4           entity or employee arising under section 78-   , except
 
 5           as otherwise provided in that section."
 
 6                   PART II.  PRIVATE LANDOWNERS
 
 7      SECTION 4.  Section 520-2, Hawaii Revised Statutes, is
 
 8 amended by amending the definitions of "recreational purpose" and
 
 9 "recreational user" to read as follows:
 
10      ""Recreational purpose" includes but is not limited to any
 
11 of the following, or any combination thereof:  hunting, fishing,
 
12 swimming, boating, camping, picnicking, hiking, pleasure driving,
 
13 nature study, water skiing, winter sports, and viewing or
 
14 enjoying historical, archaeological, scenic, or scientific
 
15 sites[.], and includes any other activity specified under the
 
16 definition of "hazardous recreational activity" as defined in
 
17 section 78-   .
 
18      "Recreational user" means any person who is on or about the
 
19 premises that the owner of land either directly [[]or[]]
 
20 indirectly invites or permits, without charge, entry onto the
 
21 property for recreational purposes."
 
22      SECTION 5.  This Act shall apply only to causes of action
 
23 based upon acts or omissions occurring on or after its effective
 

 
Page 9                                                     2827
                                     H.B. NO.           
                                                        
                                                        

 
 1 date.
 
 2      SECTION 6.  Statutory material to be repealed is bracketed.
 
 3 New statutory material is underscored.
 
 4      SECTION 7.  This Act shall take effect upon its approval.
 
 5 
 
 6                           INTRODUCED BY:  _______________________