Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred H.B. No. 451 entitled:

begs leave to report as follows:

The purpose of this bill is to establish the claimant's burden of proof in negligence claims brought against the owner of a retail premises.

In the case of Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 5 P.3d 407 (2000), the Supreme Court of Hawaii affirmed an Intermediate Court of Appeals decision that adopted the "mode of operation" rule. Under the general rule, a claimant is required to prove that the owner had actual or constructive notice of the specific instrumentality that caused harm to the claimant.

However, under the mode of operation rule, the claimant's burden to prove actual or constructive notice is eliminated if the specific instrumentality is a reasonably foreseeable consequence of the owner's mode of operating the business.

The Hilton Waikoloa Village, Hawaii Food Industry Association, and an individual submitted testimony in support of the bill. The Consumer Lawyers of Hawaii and an individual submitted testimony opposing the bill.

Your Committee believes that the law prior to the adoption of the mode of operation rule provided the parties with a more level playing field. However, your Committee has amended chapter 663, Hawaii Revised Statutes (HRS), believing that this would be more consistent with the intent of this bill than amending chapter 520, HRS. The latter section applies when a claimant enters upon an owner's land for recreational purposes. By contrast, this bill applies to land that is used for commercial retail purposes.

Your Committee further amended this measure by making technical, nonsubstantive changes for purposes of clarity and consistency.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 451, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 451, H.D. 1, and be placed on the calendar for Third Reading.