Report Title:
Public and private recreational activity liability
Description:
Limits county liability where persons who engages in hazardous recreational activity know of the substantial risk of injury and voluntarily put themselves at risk. Broadens the scope of a private provider of sport activity to include nonprofit entities and a participant assumes the inherent risk whether the risk are known.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1363 |
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TWENTY-FIRST LEGISLATURE, 2001 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to recreational activity LIABILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§46- Counties’ liability limited for hazardous recreational activities. (a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectators who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to themselves and were voluntarily in the place or risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.
(b) In a claim by a person against a county alleging personal injury or death that occurred when the person was participating in, assisting, or observing a hazardous recreational activity on county-owned or controlled property, the county shall be liable only if the injury or death occurred as a direct result of the county’s:
(1) Failure to warn when:
(A) The county had actual knowledge of a physically hazardous condition, sufficient time to warn against the condition, and failed to do so; and
(B) When the physically hazardous condition was not known to the person and would not have been known to a reasonably prudent person participating, assisting, or observing the same hazardous recreational activity;
(2) Gross negligence, recklessness, or wilful, wanton, or deliberate conduct.
(c) Nothing in this section shall limit the liability of an independent concessionaire, or any person or organization other than the public entity, whether or not the person or organization has a contractual relationship with the public entity to use the public property, for injuries or damages
suffered in any case as a result of the operation of a hazardous recreational activity on public property by the concessionaire, person, or organization.
(d) For the purposes of this section, "hazardous recreational activity" means a recreational activity, which creates a substantial as distinguished from a minor, trivial, or insignificant, risk of injury.
"Hazardous recreational activity" includes:
(1) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, canoeing, diving, hang gliding, hiking, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, body contact sports (including sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), skateboarding, inline skating, roller hockey, surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing. For the purposes of this paragraph, "mountain bicycling" does not include riding a bicycle on paved pathways, roadways, or sidewalks; and
(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from a structure where diving is prohibited and reasonable warning thereof has been given."
SECTION 2. Section 663—1.54, Hawaii Revised Statutes, is amended to read as follows:
"[[]§663-l.54[]] [Recreational] Sport or recreational activity liability. (a) Any [person who owns or operates a business providing,] provider of sport or recreational activities to the public for profit or otherwise, such as, without limitation, baseball, softball, football, volleyball, tennis, soccer, basketball, swimming, surfing, hunting, fishing, horseback riding or any other equine activity, hiking or trail-building, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
[(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each person is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.]
(b) Any person who takes part in any sport or recreational activity assumes the inherent risks in that sport or recreational activity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to themself or other persons or property that results from the inherent risks in that sport or recreational activity.
(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an "inherent risk":
(1) Is a danger or condition that a reasonable person would understand to be [associated with the activity by the very nature of the] characteristic of or intrinsic to, or an integral part of the sport or recreational activity engaged in; and
[(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and]
[(3)](2) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.
(d) As used in this section, "provider" means any person who for profit or otherwise offers or conducts a sport or recreational activity."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were initiated, before its effective date.
SECTION 4. Statutory material to be repealed in bracketed. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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