Bill Text: HI HB1232 | 2014 | Regular Session | Introduced

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Bill Title: Limitations on Actions; Immunity; Sexual Abuse of Minors

Spectrum: Moderate Partisan Bill (Democrat 5-1)

Status: (Introduced - Dead) 2013-12-18 - Carried over to 2014 Regular Session. [HB1232 Detail]

Download: Hawaii-2014-HB1232-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1232
TWENTY-SEVENTH LEGISLATURE, 2013
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO CIVIL REMEDIES.

 

 

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

 

     SECTION 1.  Act 68, Session Laws of Hawaii 2012, enacted on April 24, 2012, implemented several positive changes for the minor aged victims of sexual abuse.  The Act extended the time frame during which victims may commence civil actions against abusers.  Further, at any time before April 25, 2014, a victim may pursue a claim against an abuser for actions committed many years ago, even if the time frame imposed by an applicable statute of limitations expired prior to April 24, 2012.  Moreover, under certain circumstances, victims may pursue a claim against a grossly negligent private entity if the entity had the opportunity to prevent or stop the abuse and failed to do so.

     When legislators discussed the merits of the Act before its enactment, however, several members of the house of representatives expressed concern that the bill expressly exempted the State and counties from the retroactive extensions of the statutes of limitations.

     A more extensive review of the Hawaii Revised Statutes reveals that current law, while well-intentioned, grants the State too much immunity from such actions.  Further, both the State and counties have too much protection through current time limitations on civil actions.  The laws have the unintended effect of creating different classes of minor aged victims of sexual abuse: one class has more opportunities to pursue justice, while the other is deprived of such opportunities.

     The purpose of this Act is to increase the equity between governmental and nongovernmental entities regarding their liability in situations in which they fail to prevent the sexual abuse of children.  This change in the law will have the effect of ensuring that the voices of all persons who suffered sexual abuse as minors will be equally heard.

     SECTION 2.  Section 657-1.8, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§657‑1.8[]]  Civil action arising from sexual offenses; application; certificate of merit.  (a)  Notwithstanding any law to the contrary, no action for recovery of damages based on physical, psychological, or other injury or condition suffered by a minor arising from the sexual abuse of the minor by any person shall be commenced against the person who committed the act of sexual abuse more than:

     (1)  Eight years after the eighteenth birthday of the minor or the person who committed the act of sexual abuse attains the age of majority, whichever occurs later; or

     (2)  Three years after the date the minor discovers or reasonably should have discovered that psychological injury or illness occurring after the age of minor's eighteenth birthday was caused by the sexual abuse, whichever comes later.

     A civil cause of action for the sexual abuse of a minor shall be based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of chapter 707.

     (b)  [For a period of two years after [April 24, 2012],] Before April 25, 2014, a victim of child sexual abuse that occurred in this State who had been barred from filing a claim against the victim's abuser due to the expiration of the applicable civil statute of limitations that was in effect [prior to [April 24, 2012],] before April 24, 2012, may file a claim in a circuit court of this State against the person who committed the act of sexual abuse.

     A claim may also be brought under this subsection against a legal entity, except the State or its political subdivisions, if:

     (1)  The person who committed the act of sexual abuse against the victim was employed by an institution, agency, firm, business, corporation, or other public or private legal entity that owed a duty of care to the victim; or

     (2)  The person who committed the act of sexual abuse and the victim were engaged in an activity over which the legal entity had a degree of responsibility or control.

     Damages against the legal entity shall be awarded under this subsection only if there is a finding of gross negligence on the part of the legal entity.

     (c)  Before April 25, 2014, a victim of child sexual abuse that occurred in this State who had been barred from filing a claim against a governmental entity:

     (1)  Due to the fact that the governmental entity was the State, and due to the effect of any laws that granted the State immunity from such a claim before the effective date of Act   , Session Laws of Hawaii 2013; or

     (2)  Due to the fact that the governmental entity was the State or one of its political subdivisions, and due to the expiration of any applicable civil statutes of limitations that were in effect before the effective date of Act   , Session Laws of Hawaii 2013;

may file a claim in a circuit court of this State against the governmental entity; provided that the governmental entity's actions or lack of action made it at least as liable as a legal entity would be in a situation described in paragraph (1) or (2) of subsection (b).  Damages against the governmental entity shall be awarded under this subsection only if there is a finding of gross negligence on the part of the governmental entity.

     [(c)] (d) A defendant against whom a civil action is commenced may recover attorney's fees if the court determines that a false accusation was made with no basis in fact and with malicious intent.  A verdict in favor of the defendant shall not be the sole basis for a determination that an accusation had no basis in fact and was made with malicious intent.  The court shall make an independent finding of an improper motive prior to awarding attorney's fees under this section.

     [(d)] (e) In any civil action filed pursuant to subsection (a), [or] (b), or (c),  a certificate of merit shall be filed by the attorney for the plaintiff, and shall be sealed and remain confidential.  The certificate of merit shall include a notarized statement by a:

     (1)  Psychologist licensed pursuant to chapter 465;

     (2)  Marriage and family therapist licensed pursuant to chapter 451J;

     (3)  Mental health counselor licensed pursuant to chapter 453D; or

     (4)  Clinical social worker licensed pursuant to chapter 467E;

who is knowledgeable in the relevant facts and issues involved in the action, who is not a party to the action.

     The notarized statement included in the certificate of merit shall set forth in reasonable detail the facts and opinions relied upon to conclude that there is a reasonable basis to believe that the plaintiff was subject to one or more acts that would result in an injury or condition specified in subsection (a)."

     SECTION 3.  Section 657-13, Hawaii Revised Statutes, is amended to read as follows:

     "§657-13  Infancy, insanity, imprisonment.  If any person entitled to bring any action specified in this part [(excepting actions against the sheriff, chief of police, or other officers)] is, at the time the cause of action accrued, either:

     (1)  Within the age of eighteen years; or,

     (2)  Insane; or,

     (3)  Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than the person's natural life;

such person shall be at liberty to bring such actions within the respective times limited in this part, after the disability is removed or at any time while the disability exists[.], provided that this extension of time shall not apply to an action against the sheriff, chief of police, or other officer unless the cause of action is vicarious liability or any other type of secondary liability for another individual's sexual assault or sexual abuse of a minor."

     SECTION 4.  Section 662-2, Hawaii Revised Statutes, is amended to read as follows:

     "§662-2  Waiver and liability of State.  (a) The State hereby waives its immunity for liability for the torts of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

     (b)  Notwithstanding subsection (a) or any other law to the contrary, the State hereby waives its immunity for torts to the extent that it shall be liable for damages, interest, and attorney's fees and costs to the same extent that a nongovernmental legal entity would have vicarious liability or any other type of secondary liability for an individual's sexual assault or sexual abuse of a minor."

     SECTION 5.  Section 662-4, Hawaii Revised Statutes, is amended to read as follows:

     "§662-4  Statute of limitations.  (a) A tort claim against the State shall be forever barred unless action is begun within two years after the claim accrues, except in cases described in subsections (b) and (c).

     (b)  In the case of a medical tort claim, [when] the limitation of action provisions set forth in section 657-7.3 shall apply.

     (c)  In the case of a claim against the State for vicarious liability or any other type of secondary liability for an individual's sexual assault or sexual abuse of the claimant while the claimant was under the age of eighteen years at the time the cause of action accrued, the claimant shall be at liberty to bring such action no later than two years after the latter of:

     (1)  The claimant's eighteen birthday; or

     (2)  The date the claimant discovers or reasonably should have discovered that his or her psychological injury or illness was caused by the sexual assault or sexual abuse."

     SECTION 6.  Section 662-15, Hawaii Revised Statutes, is amended to read as follows:

     "§662-15  Exceptions.  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;

     (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[.]; or

     (8)  Any claim arising out of assault or battery, except that this restriction shall not be construed to prohibit a claim against the State for vicarious liability or any other type of secondary liability for an individual's sexual assault or sexual abuse of a minor."

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 9.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Limitations on Actions; Immunity; Sexual Abuse of Minors

 

Description:

Allows certain civil actions, interest, and damages against the State and counties in relation to sexual offenses against minors.  Allows, before April 25, 2014, certain actions for which the statute of limitations may have lapsed for cases against the State and its political subdivisions.

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.