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Thousands of rock climbers, para gliders, bikers and other aficionados of extreme sports are feeling a little let down after the latest legislative session.
A group of outdoor enthusiasts urged Hawaii lawmakers to strengthen a law that limits the state’s liability for accidents on public land. The advocates were concerned about recent closures of Hawaii trails, including the popular rock-climbing spot Mokuleia, and believed increasing liability protection for the state would improve trail access.
The grassroots organizing effort, fueled by sites like Reddit and Change.org, had allies in the Attorney General’s Office and the state Department of Land and Natural Resources.
But after a series of political disagreements that pushed the debate down to the wire, the Legislature decided merely to make permanent the state’s existing law, Act 82, regarding public land liability instead of passing the more expansive proposal. The law established a system by which the state Department of Land and Natural Resources identifies dangerous natural sites and puts up warning signs that shield the state from unlimited liability.
For activists, the result was a crushing disappointment after weeks of lobbying. But for lawmakers, the debate was a continuation of years of wrestling with the question of how much responsibility the state should bear for accidents on public trails.
It’s a salient issue in Hawaii, where the state manages more than 100 trails across six islands used by thousands of tourists and residents each year.
Following a fatal rockslide at Sacred Falls on Mother’s Day 15 years ago, the Legislature implemented Act 82 in 2003, which capped liability for accidents if the state puts up warning signs.
But over the past five years, Hawaii taxpayers have still spent more than $7 million to compensate victims of accidents on public land.
While some argue Act 82 does a good job of balancing taxpayers’ financial interests with the individuals’ right to compensation, others say that it’s time Hawaii follows the example of California and Colorado and does more to protect taxpayers from high-priced settlements.
Since 2010, Hawaii has spent more than $7 million to settle lawsuits related to accidents on public land.
The settlements addressed accidents ranging from a kid who hurt her leg on a fragment of a sign on a beach to the high-profile deaths of two hikers on Kauai that led to a $15.4 million payout (of which taxpayers shouldered about $5 million).
Settlements Paid for Accidents on Public Land, 2010-2014
|2013||$75,000||Gentry v. Aila||Man who went camping hurt his groin after landing on metal pole while climbing down a tree|
|2012||$40,000||Ah Loo v. State of Hawaii||A girl hurt her arm when a portion of the Hanalei pier’s roof fell off and hit her|
|2012||$5,459,107.50||Brem et al v. State of Hawaii||Two women died when they fell off a cliff while hiking in Kauai|
|2011||$18,000||Santiago v. Kauai||A child was sand sliding on the beach and hurt her leg on the fragment of a monk seal warning sign|
|2010||$1,500,000||Five consolidated cases||A breach in the Ka Loko Dam caused the deaths of seven people|
In some cases, accidents have led to the closure of recreational areas. Sacred Falls State Park is still closed 15 years after the Mother’s Day accident that killed eight people and injured 50 more. The deaths of two women in 2006 who were hiking in Kauai also led the state to close off the unofficial trail at Opaekaa Falls in 2007.
The injury of a 12-year-old girl at Mokuleia on the North Shore of Oahu also caused the state to shut down the popular climbing spot. The girl’s family sued the YMCA, not the state, but the state still decided that there were enough liability concerns to close the area.
Advocates for more liability protection say Hawaii law leaves the state a lot more vulnerable to expensive lawsuits than some other states, including California and Colorado.
Unlike Hawaii, both states have recreational use statutes aimed specifically at protecting the state from liability for accidents related to extreme sports.
Rep. Derek Kawakami from Kauai introduced a bill last year that focused specifically on dangerous sports, but it didn’t advance. He said he’s interested in pushing for a law that mirrors what exists in other states.
“The point is that anyone can sue but we just want to line it up so that when they do, they lose,” he said.
In a state dominated by the Democratic Party, it may be no surprise that efforts at tort reform in Hawaii haven’t gained much traction.
According to a 2010 report by the National Conference of State Legislators on tort liability, 28 states have laws prohibiting punitive damages against the state, while 32 have caps on how much a person can receive in damages. Hawaii isn’t among them.
Rep. Karl Rhoads said that while many people contend the state should have more immunity from lawsuits, he thinks the current law, Act 82, is sufficient.
“I think if the government is doing negligent things we should be on the hook just like everyone in the private sector is,” he said.
Still, as chairman of the House Judiciary Committee, Rhoads helped draft a revised version of the bill, SB 1007, which had the backing of those who support shielding the state from lawsuits.
While he was willing to support broadening Act 82, Rhoads said the state will save more money in the long run if it dedicates more funding to maintaining public land and preventing accidents.
“If we had spent a million extra dollars on maintenance, could we have prevented the Brem case? Maybe,” he said, referring to the case of two women who died in Kauai in 2006. “At some point it’s cost-effective just to be preventative and not allow things like that to happen.”
Mike Richardson, a rock climber who helped organize community members in support of strengthening the liability law, said Rhoads has a point. But he said that clarifying the law could only serve to help protect the state financially and increase access to recreational areas.
Richardson was particularly frustrated with the political maneuvering regarding SB 1007, and even joined nearly two dozen others to file an ethics complaint accusing Rep. Sylvia Luke of weakening the bill because she is a personal injury lawyer.
It’s likely the debate will play out again next year, as Richardson and his rock climbing friends plan to return to the Capitol to advocate on the topic again.
Kawakami also said the issue isn’t going away. “This is something that’s on the top of my priority list,” he said.