Report Title:

Tort liability; immunities: damage appointments

Description:

Reiterates the underlying intent of the discretionary function and the intentional tort exception to the State's waiver of sovereign immunity for the torts of its employees, and declares that all the exceptions to the State's waiver of sovereign immunity are to be broadly construed in the State's favor.

HOUSE OF REPRESENTATIVES

H.B. NO.

2288

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO TORT 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 for 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 title 28 United States Code section 2680(a).

(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. Section 663-10.5, Hawaii Revised Statutes, is amended to read as follows:

"§663-10.5 Government entity as a tortfeasor; abolition of joint and several liability. Notwithstanding sections 663-10.9, 663-11 to 663-13, 663-16, 663-17, and [section] 663-31, in any case where a government entity is determined to be a tortfeasor along with one or more other tortfeasors, the government entity shall be liable for no more than that percentage share of the damages attributable to the government entity.

For purposes of this section, "government entity" means any unit of government in this State, including the State and any county or combination of counties, department, agency, institution, board, commission, district, council, bureau, office, governing authority, or other instrumentality of state or county government, or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county.

For purposes of this section, the liability of a government entity shall include its vicarious liability for the acts or omissions of its officers and employees."

SECTION 3. Act 213, Session Laws of Hawaii 1994, is amended by amending section 3 to read as follows:

"SECTION 3. This Act shall apply [only] to [causes of action based upon acts or omissions occurring on or after its effective date.] claims that accrue on or after June 22,

1994."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST