Liability for Serious Falls (Falls from Elevation, Trips, Slips, etc.)

Balcony Defects, Railing Collapses, Building Code Violations and similar premises liability claims in Hawaii

NOTE: If the claim that you are investigating arose out of a balcony defect, a railing collapse, a fall from elevation and/or a building code violation, you may want to go here:

Accidents due to balcony defects, railing collapses, building code violations, etc. in Hawaii.

In Hawaii the owner or occupant of real property is required to take reasonable steps to eliminate any unreasonable risk of harm posed by the property to people who may come onto it. Depending upon the situation this may be done either by correcting a dangerous condition or by warning about it. The owner or occupant is responsible for conditions known about and which should have been known about. If you wish to find out more about Premises Liability law in the State of Hawaii, please review the Brief Overview set forth below.

Some examples of dangerous conditions for which liability has been imposed are:

- Unsafe design and/or construction of buildings

- Dangerous or unmarked holes, ditches or culverts

- Improperly maintained equipment, furniture or furnishings

- Overgrown or uncontrolled landscaping which hides the view of vehicular traffic or causes other dangers

- Inadequate security

- Inadequate lighting

- 'Slippery when wet' walking surfaces

- Defects, holes or obstructions in walking surfaces

- Keeping a dangerous animal

- Swimming pools without proper safeguards

Brief overview of premises liability and fall accident claims in Hawaii

I. No Trespasser, Licensee, Invitee Distinction under Hawaii Law

In Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969), the Supreme Court of the State of Hawaii did away with the traditional classification of persons coming onto land. This distinction between trespasser, licensee and business invitee forms the foundation of premises liability law in many other jurisdictions. (See the Restatement of Torts (Second) §343). In Hawaii, however, as the Supreme Court has repeated on several occasions, there is no longer a distinction between trespasser, licensee (social guest) and invitee (business guest) for purposes of Hawaii premises liability law. See, eg., Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 416, 772 P.2d 693, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1989).

II. The Bases of Premises Liability Law in Hawaii

A. The Premises Must Have an Unreasonable Risk of Harm

The general rule with respect to the liability of owners and occupiers of land is that " [a] possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it." Corbett, 70 Haw. at 415, 772 P.2d at 693 (emphasis added); see also Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d 377, 384 (1987), Bidar v. AMFAC, Inc., 66 Haw. 547 at 559 (1983).

B. The Possessor of Land Must Have Failed to Take Reasonable Steps to Eliminate the Unreasonable Risk of Harm

The case of Richardson v. Sports Shinko Waikiki Corp., 76 Haw. 494, 880 P.2d 169 (1994), demonstrates that the Hawaii Supreme Court does not require all unreasonable risks of harm to be completely eliminated in order for a possessor of land to escape liability for an accident occurring on its premises. In that case, the Hawaii Supreme Court affirmed a defense verdict in favor of a hotel and against the guest who injured herself on a staple embedded in a meeting room rug. The Court found that because reasonable steps were taken to eliminate the unreasonable risk of harm, there was not even a duty to warn of the danger which remained. After reviewing the record in the light most favorable to the hotel (because it was the plaintiffs' appeal), the court stated that the hotel's efforts at vacuuming, regular cleaning, detection and monitoring complaints (or the lack thereof) were sufficient to constitute "reasonable steps" to eliminate the unreasonable risk of harm.

C. Warnings of the Condition by the Possessor of Land Must Be Absent and the Condition Must Not Be Open and Obvious

i. Warnings of the Condition Must Be Absent

As set forth above, in Corbett, supra, the Hawaii Supreme Court found that a possessor of land can escape liability if it takes steps to warn users of the land against an unreasonable risk of harm found on its property. Typically, this involves the posting of a sign or the installation of a barrier to warn and protect against the danger. However, the Hawaii Supreme Court has found that there are certain types of conditions which provide their own warning and hence are not actionable. These are "open and obvious" conditions.

ii. The Condition must not be Open and Obvious

In the case of Friedrich v. Department of Transportation, 60 Haw. 32 at 36 (1978), the court found that a puddle- seen and sought to be avoided- was a danger which was sufficiently "open and obvious" that it provided its own warning and no further warning by the owner of the land was necessary. The Supreme Court of Hawaii stated: "The obviousness of a risk substitutes for an express warning and satisfies this obligation." The court went on to state that the landowner "may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid."

D. The Possessor of Land must have Actual or Constructive Notice of the Condition

In the case of Harris v. State, 1 Haw. App. 554, 623 P.2d 446 (1981), the Hawaii Supreme Court stated that the duty to correct or warn of a condition which poses an unreasonable risk of harm does not arise until the possessor of land has notice of the condition. Hence, under Hawaii law, in order to support recovery in an action where an owner or occupant is charged with negligence, it must be shown that the owner or occupant knows or should have known of the hazard or defect which caused the injury. Liability cannot be imposed where a landlord or an owner or occupant of premises has not been put on actual or constructive notice of the unsafe condition or defect that causes plaintiff injury. See also, Kellett v. City & County of Honolulu, 35 Haw. 447 (1940).

III. Summary

Negligence law in Hawaii does not require an owner or occupant of land to be an insurer against all accidents that occur on the premises. However, liability may be imposed upon a possessor of land for certain conditions which present an unreasonable risk of harm to ordinarily careful users of the premises. Once it has been shown that the Defendant knew or in the exercise of reasonable care should have known of the condition and that the Defendant did not take reasonable steps to eliminate the risk or to warn against it, the possessor of land will then be found responsible to one who is injured by the condition.

Resources and cases involving falls, trip and fall accidents, slip and fall accidents

OSHA's Tips on Preventing Fall accidents
OSHA provides some tips on maintaining floors and avoiding spills and clutter in a hospital setting in order to prevent slip and fall and trip and fall accidents.

OSHA recommendations on preventing fall accidents in the construction industry
OSHA states that falls in the construction trade (the leading cause of death in the construction industry) can be avoided with proper awareness and prevention.

Senior Falls from the Centers for Disease Control and Prevention
Facts on falls by older persons.

WEMPLE v. DAHMAN, JANUARY 30, 2004 The Hawaii Supreme Court holds that the test for determining a defendant's liability for dangerous conditions upon property is the degree of control exercised by the defendant over the property and not merely the ownership position of the same- and that the issue of control or amount of control over the premises is ordinarily a question of fact that should be left to the jury.

ATAHAN v. MURAMOTO, JUNE 3, 1999 Pursuant to Hawaii's recreational use statute, as a matter of law, a beachfront property owner, who neither charges nor invites people to use his land, and who neither creates nor perpetuates the dangerous ocean conditions on an adjoining parcel, is not liable to a party who parks on his property and then walks to and is injured on the adjoining parcel.

LEWIS v. STATE OF HAWAII, February 17, 2006 In this unpublished opinion the Hawaii Supreme Court affirms that the discretionary function exception for decisions of government agencies (such as the State of Hawaii) does not apply to prevent liability to a jogger who fell 14' into an unfenced drainage culvert while jogging along a road at night. (The culvert was fenced on one side of the road, but not on the other.)

Deadlines for filing a Fall (Trip, Slip, etc.) or other premises liability claim in Hawaii

A claim arising out of a fall or other accident resulting from a dangerous condition on property is generally subject to a two-year statute of limitations in Hawaii. It should be noted, however, that there are exceptions to this rule- for example, claims against the City and County of Honolulu and the various other Counties must be filed with the appropriate agency within six (6) months of the date of the accident. You must file your claims in court prior to the expiration of such deadlines, or your claims may be lost—regardless of their merit. To be wise it is recommended that you contact an attorney right away after an accident giving rise to injuries occurs. Please do not hesitate to :

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