SB854.DOC

THE SENATE	S.B. NO.	854
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO CIVIL ACTIONS.

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

SECTION 1. Section 662-15, Hawaii Revised Statutes, is amended to read as follows:

"§662-15 Exceptions. (a) This chapter shall not apply to:

(1) Any claim based upon an act or omission of an employee of the State, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved has been abused;

(2) Any claim arising in respect of the assessment or collection of any tax, or the detention of any goods or merchandise by law enforcement officers;

(3) Any claim for which a remedy is provided elsewhere in the laws of the State;

(4) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, [or] interference with contract rights[;], or any other intentional tort, and any claim based upon the negligent hire, retention, training, or supervision of an employee who is alleged to have committed the intentional tort;

(5) Any claim arising out of the combatant activities of the Hawaii national guard and Hawaii state defense force during time of war, or during the times the Hawaii national guard is engaged in federal service pursuant to section 316, 502, 503, 504, 505, or 709 of Title 32 of the United States Code;

(6) Any claim arising in a foreign country; or

(7) Any claim arising out of the acts or omissions of any boating enforcement officer.

(b) The discretionary function exception in subsection

(a)(1) shall be interpreted so as to provide the State the same type of protection from liability that the United States is afforded pursuant to section 2680(a) of Title 28 of the United States Code.

(c) The discretionary function exception in subsection (a)(1) includes any claim arising out of the adequacy of the design of a highway as defined in section 264-1(a)(1) or its associated structures if, at the time the design was adopted, it was appropriate for the conditions prevailing and consistent with design standards in effect at the time of the design.

(1) It shall be deemed an exercise of discretionary

function or duty whether or not to update the highway or associated structures to conform with changed conditions or updated design standards and guidelines;

(2) If the State has notice that the highway or its associated structures may no longer be in conformity with a standard, this exception shall continue for a reasonable period of time sufficient to permit the State to obtain approval and funds for the design, planning, and construction of remedial work;

(3) If the State is unable to do remedial work because of practical impossibility or lack of sufficient funds, this exception shall continue so long as the State attempts to provide adequate warning of the condition that is not in conformity;

(4) If a person fails to heed an adequate warning, such failure shall constitute the assumption of the risk of the danger indicated by the warning; and

(5) This exception shall not apply to maintenance and repair functions."

SECTION 2. Act 112, Session Laws of Hawaii 2006, is amended to read as follows:

"SECTION 3. This Act shall take effect upon approval and [~~its provisions shall apply retroactively to the extent permitted by law.~~] shall be applied retroactively to the fullest extent permissible to all cases, actions, proceedings, and claims in which a final non-appealable judgment has not yet been entered."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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By Request