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THE SENATE |
S.C.R. NO. |
94 |
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TWENTY-THIRD LEGISLATURE, 2006 |
S.D. 1 |
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STATE OF HAWAII |
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RESOLUTION
ESTABLISHING A TASK FORCE TO EXAMINE THE ISSUE OF DISCRETIONARY FUNCTION EXCEPTION FOR OF THE STATE AND COUNTIES.
WHEREAS, in 1957, the Legislature passed the State Tort Liability Act, modeled after its federal counterpart, the Federal Tort Claims Act; and
WHEREAS, at the time the Legislature adopted the State Tort Liability Act, most of its language was taken directly from the Federal Tort Claims Act; and
WHEREAS, in interpreting the State Tort Liability Act, the courts have failed to protect the State from liability in situations in which the federal government would be protected under the Federal Tort Claims Act for the same types of acts; and
WHEREAS, clarification is needed to determine whether the discretionary function exception under state law requires the State and counties to have the same protection from liability that the United States is afforded under federal law; now, therefore,
BE IT RESOLVED by the Senate of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2006, the House of Representatives concurring, that a task force be established to examine the issue of the discretionary function exception as to the State and the counties; and
BE IT FURTHER RESOLVED that the membership of the task force shall consist of the following:
(1) The Attorney General or the Attorney General's designee;
(2) A member from each county's executive branch;
(3) One member of the Hawaii State Judiciary;
(4) One faculty member from the University of Hawaii, William S. Richardson School of Law;
(5) One member of the Hawaii State Bar Association who is primarily engaged in representing plaintiffs in cases against the State or counties, to be chosen by the president of the Hawaii State Bar Association;
(6) One member from Consumer Lawyers of Hawaii;
(7) One member from the Association of Trial Lawyers of America;
(8) One member from the Hawaii Government Employees Association; and
(9) One member from United Public Workers;
and
BE IT FURTHER RESOLVED that the faculty member from the University of Hawaii, William S. Richardson School of Law shall serve as the chairperson and facilitator of the task force for organizational purposes; and
BE IT FURTHER RESOLVED that the task force's mission shall be to:
(1) Determine whether the State should be excepted from liability for all intentional torts and any claim for negligent hire, retention, training, or supervision of an employee who is alleged to have committed an intentional tort;
(2) Determine whether the discretionary function exception should be interpreted to provide the State with the same type of protection from liability that the United States is afforded pursuant to the Federal Tort Claims Act, title 28 United States Code section 2680(a);
(3) Determine whether the discretionary function exception should include claims arising out of the adequacy of the design of a highway as defined in section 264-1(a)(1), Hawaii Revised Statutes, or associated structures, and under what circumstances, if any, the discretionary function exception should apply to the design;
(4) Determine whether the counties should be exempt from liability for the intentional torts of its employees; and
(5) Prepare proposed legislation; and
BE IT FURTHER RESOLVED that the task force shall provide the Legislature with a copy of its report, including proposed legislation, at least twenty days prior to the convening of the Regular Session of 2007; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, the Attorney General, the Chief Justice of the Hawaii Supreme Court, the Director of Transportation, the Mayor of each county, the Corporation Counsel for each county, the President of the Hawaii State Bar Association, the Dean of the William S. Richardson School of Law, Consumer Lawyers of Hawaii, Hawaii Government Employees Association, United Public Workers, and the Association of Trial Lawyers of America.
Report Title:
Tort actions; Discretionary function