Overview
 Hawaii is a one-bite state despite having what appears to be a strict liability statute. To recover for a dog bite in this state, the victim must prove scienter, negligence or intentional injury, as in any other one-bite state. For more information about "scienter," and the other causes of action available in one-bite states, see The One-Bite Rule and Legal Rights of Dog Bite Victims in the USA.
The statute above referred to is HRS section 663-9, enacted in 1980 by Act 218, 1980 Haw. Sess. Laws 366-67:
Section 663-9 (Liability of animal owners)
(a) The owner or harborer of an animal, if
the animal proximately causes either personal or property damage to any
person, shall be liable in damages to the person injured regardless of
the animal owner's or harborer's lack of scienter of the vicious or dangerous
propensities of the animal.
(b) The owner
or harborer of an animal which is known by its species or nature to be
dangerous, wild, or vicious, if the animal proximately causes either personal
or property damage to any person, shall be absolutely liable for such damage.
[L 1980, c 218, §2]
Section 663-9.1 (Exception of animal owners to civil liability)
(a) As used in this section:
(1)
"Premises" includes any building or portion thereof or any real property
owned, leased, or occupied by the owner or harborer of an animal.
(2)
"Enter or remain unlawfully" means to be in or upon premises when the person
is not licensed, invited, or otherwise privileged to be upon the premises.
A person is not licensed or privileged to enter or remain in or upon a
premises if a warning or warnings have been posted reasonably
adequate to warn other persons that an animal is present on the premises.
A person who, regardless of the person's intent, enters or remains in or
upon premises which are at the time open to the public does so with license
and privilege unless the person defies a lawful order not to enter or remain,
personally communicated to the person by the owner of the premises or some
other authorized person. A license or privilege to enter or remain in a
building which is only partly open to the public is not a license or privilege
to enter or remain in that part of the building which is not open to the
public. A person who enters or remains upon unimproved and apparently unused
land, which is neither fenced nor otherwise enclosed in a manner designed
to exclude intruders, does so with license and privilege unless notice
against trespass is personally communicated to the person by the owner
of the land or some other authorized person, or unless notice is given
by posting in a conspicuous manner.
(3) The definitions
of "intentionally" and "knowingly" as contained in sections 702-206(1)
and 702-206(2) shall apply.
(b) Notwithstanding
sections 663-1 and 663-9, any owner or harborer of an animal shall not
be liable for any civil damages resulting from actions of the animal occurring
in or upon the premises of the owner or harborer where the person suffering
either personal or property damage as a proximate result of the actions
of the animal is found by the trier of fact intentionally or knowingly
to have entered or remained in or upon such premises unlawfully.
(c) Notwithstanding
sections 663-1 and 663-9, any owner or harborer of an animal shall not
be liable for any civil damages resulting from actions of the animal where
the trier of fact finds that:
(1)
The animal caused such damage as a proximate result of being teased, tormented,
or otherwise abused without the negligence, direction, or involvement of
the owner or harborer; or
(2)
The use of the animal to cause damage to person or property was justified
under chapter 703. [L 1980, c 218, §3; gen ch 1985]
In one of the most unfortunate court decisions throughout the field of dog bite law, the Hawaii Court of Appeals held that section 663-9 does not establish strict liability for canine-inflicted injuries, despite the fact that the statute clearly eliminates the common law's requirement of scienter (i.e., knowedge of the dangerousness or viciousness of a dog). In Hubbell v Iseke, 727 P2d 1131, 6 Haw. App. 485 (Haw.App. 1986), the court determined that the plaintiff must prove at least negligence on the part of the defendant. The court reached this conclusion after declaring that the statute was ambiguous, and that the ambiguity should be resolved by the legislative history of the law, in the form of the following conference committee report:
Conference Committee Report No. 36-80, in 1980 Senate Journal at 958, states that the legislation "abrogates the common law. It does not create strict liability. It merely eliminates scienter as a matter of proof for a plaintiff or lack of scienter as a defense for a defendant." Thus, under the statute, persons suffering injury caused by an animal must still prove negligence on the part of the animal's owner in order to make the owner liable for the injury. The injured person must prove duty, breach of duty, and damages; however, the injured person need not prove the owner's knowledge of the animal's vicious propensities.
The court tacitly and incorrectly assumed that the common law required a victim to prove both negligence and scienter. In fact, the common law distinguished between liability founded upon negligence and liability founded upon knowledge of a domestic animal's dangerouness or viciousness. Under the common law, such knowledge or "scienter" was, in itself, sufficient ground for liability even in the absence of negligence. It is interesting to compare the Hawaii interpretation with that of the Georgia courts. The latter have read the common law and the state's dog injury statute as meaning that there is no such thing as dog owner negligence -- that no dog owner owes a duty to any person to protect against anything other than the known dangerous or vicious propensities of the owner's dog. These diametrically opposite conclusions demonstrate a failure to understand basic principles of dog bite law, which have been set forth clearly as far back as the Restatement Second of Torts. (See the discussions of negligence and scienter in Legal Rights of Dog Bite Victims in the USA).
The Hubbell decision can be downloaded by clicking here. The Hawaii statutes can be reviewed on the state's official web site.
Litigation forms and other materials for attorneys
Just about all the documents you will need for your dog bitecase, at a price that is less that what it would cost to type them. Complaint, interrogatories, document production requests, admissions, witness list, petition for approval of minor's compromise (structured settlement), order approving minor's compromise, and Kenneth Phillips' 50-page deposition outline that covers every issue that can arise in a dog bite case. Save hours of work with the Dog
Bite Litigation Forms for Plaintiffs' Lawyers. Good throughout the USA. Available just one minute after you purchase them at the Dog Bite Law Bookstore. Download and use today.
|
Anatomy
of a Dog Bite Case is Mr. Phillips' 2-1/2 hour video seminar for plaintiffs' lawyers, containing tips and tricks, practice pointers and winning strategies that cannot be found anywhere else. A highly rated legal best-seller. Covers case selection, establishing liability, dealing with defenses, settlement and litigation throughout the USA. Arrives by mail in less than a week. There is a special discount if you purchase this and the Litigation Forms at the same time. |
|
