Representative Jon Riki Karamatsu
Written Remarks for the House Journal
Senate Bill 532, Senate Draft 1, House Draft 1, Conference Draft 1
Relating to Limiting Civil Liability
Tuesday, April 27, 2010
58th Day, Final Reading
Ordinary Calendar
Mr. Speaker, I rise in support.
Mr. Speaker, under current law, when faced by a threat on one’s life, one does not have a duty to retreat in one’s home or office. Senate Bill 532, Senate Draft 1, House Draft 1, Conference Draft 1 goes further where an owner of real property or an agent of the owner lawfully on the premises by consent of the owner, shall not be liable to any perpetrator engaged in any of the felonies involving violence as set forth in this bill for any injury or death to the perpetrator that occurs upon that property during the course of or after the commission of such felony, or when a reasonable person would believe that commission of a felony as set forth in this bill is imminent. However, if a perpetrator is injured, the perpetrator must be charged with the criminal offense and convicted of the criminal offense or of a lesser included felony or misdemeanor. Further, the limitation of civil liability applies only when the perpetrator’s conduct in furtherance of the commission of a felony specified in the bill proximately or legally causes the injury or death.
I have to admit that I struggled over this bill for the past two legislative sessions. I will go over the internal struggle I dealt with and why I came to agree with this conference draft before us. Last year, this bill stalled in conference since there was a stalemate between my counterpart in the Senate and myself. I drafted the House Draft 1 as narrow as I could with the intent to prevent any unintended consequences as best as I could. In the House Draft 1, the limitation of civil liability only applied to the owners. In contrast, the Senate defined an “owner” to mean owner, the occupant, tenant, or anyone authorized to be on the property by the owner or the occupant, including a guest or a family or household member, employee, or agent of the owner lawfully on the premises. Second, the House version limited civil liability to only apply when the perpetrator who is injured is convicted of a felony. It did not apply to when a perpetrator is killed. In contrast, the Senate version had limited liability for any injury or death to the perpetrator and had no requirement of a criminal conviction of the perpetrator. Third, the Senate version stated that the owner did not have a duty to warn the perpetrator of the felony and that he or she is armed and ready to cause bodily harm or death. The House version had no similar language. Finally, the last substantive difference is the Senate version had an additional subsection that did not limit the liability of an owner for injury or death caused to individuals other than the perpetrator of the felony.
In this conference draft, I agreed to the Senate to not limit civil liability exclusively to owners, or private owners, for a couple of reasons:
- The owner is not always the person residing on the property or needing to defend it. For example, a renter or a significant other is not the legal owner of the property, but may rise to his or her own defense while residing there; and
- Private persons are not the only ones holding title to property. Government housing projects, for example, are owned by the State and we would not want to prevent lessees of government property to be forbidden from protecting themselves in their own homes.
When I was younger, I trained in Aikido, the Japanese martial art that teaches one to the emphasis on self-defense. When attacked, one uses the force of one’s attacker to his or her advantage to subdue him, thus avoiding killing him. However, even with great discipline, under a very difficult situation, one’s self defense force may be too great, which may result in the unintended death of one’s attacker. Killing another should be avoided at all costs, but even with that train of thought in mind, the death of the perpetrator could still occur. After much thought and analysis, I agreed to the Senate to limit civil liability for an owner or agent of an owner who injured or killed a perpetrator upon the owner’s property during the course of or after the commission of a felony listed in this bill. On the other hand, the Senate agreed to the House version requiring a criminal conviction of an injured perpetrator in order to trigger the limitation of civil liability for the owner or agent of the owner.
I agreed to the Senate Draft 1 language, which the House did not have that says that the limitation of liability shall not be affected by the failure of the owner to warn the perpetrator of the felony and that the owner is armed and ready to cause bodily harm or death. In my rationale, when one is faced by an imminent threat of harm, one has to make a split decision to save his or her life or the lives of others. The time it takes one to warn the perpetrator of the felony and that he or she is armed and ready to cause bodily harm or death could result in the owner’s death and the death of those around him or her.
For the last difference between the House and Senate on this bill, the Senate Draft 1 had an additional subsection that did not limit the liability of an owner for injury or death caused to individuals other than the perpetrator of the felony. I agreed with this safeguard because an owner should still be liable for negligently injuring or killing an innocent third party or a third party of a lesser crime.
Finally, I agreed to this conference draft of Senate Bill 532 because there is a list of criteria an owner or agent of an owner in real property must meet in order to qualify in limiting his or her civil liability. These safeguards bring balance in protecting the perpetrator. The following are the criteria needed to limit civil liability for an owner or agent of an owner:
- The perpetrator must be engaged in one of the following felonies, which are higher level felonies that mostly involves violence:
- Murder in the first or second degree;
- Attempted murder in the first or second degree;
- Any class A felony as provided in the Hawaii Penal Code, including any attempt or conspiracy to commit a crime classified as a class A felony;
- Any class B felony involving violence or physical harm as provided in the Hawaii Penal Code;
- Any felony punishable by imprisonment for life;
- Any other felony in which the person inflicts serious bodily injury on another person; and
- Any felony in which the person personally used a firearm or a dangerous or deadly weapon.
- The limitation on liability applies only when the perpetrator’s conduct in furtherance of the commission of a felony specified in this section proximately or legally causes the injury or death.
- This section does not limit the liability of an owner that otherwise exists for:
- Willful, wanton, or criminal conduct; or
- Willful or malicious failure to guard or warn against a dangerous condition, use, or structure; or
- Injury or death caused to individuals other than the perpetrator of the felony.
It is for all these reasons that I support this final version of Senate Bill 532. Thank you.
JON RIKI KARAMATSU 