*** FOR PUBLICATION in WEST'S HAWAI`I REPORTS and PACIFIC REPORTER ***
'IN THE SUPREME COURT OF THE STATE OF HAWAI`I
---- o0o ----
LETIZIA THOMPSON, Plaintiff-Appellant,
vs.
and
JOHN
DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE NON-
PROFIT ENTITIES 1-10; and DOE
GOVERNMENTAL ENTITIES 1-10,
Defendants.
NO. 26040
NOVEMBER 9, 2006
OPINION OF THE COURT BY LEVINSON, J.
For the reasons discussed infra in section III, the Appellant's arguments are unavailing. Accordingly, this court affirms the circuit court's judgment.
The present matter arose out of an incident occurring on the island of Maui on September 26, 2000, when Thompson, a certified scuba instructor working as an independent contractor for Pacific Dive, a business located in Lahaina, led three students on a nighttime dive near the Sheraton at a location known as Black Rock. (1) Neither she nor her students had any affiliation with the hotel as employees or guests, nor had they any plans to visit the hotel during the evening in question. The group entered the water north of the hotel and dove south around Black Rock, exiting the water on the beach in front of the Sheraton. Upon exiting the water, the group, still fully clad in their scuba equipment but carrying their masks, fins, and snorkels, used the hotel's unlit beach-access path to return to their vehicles, which were parked in a lot on the hotel grounds provided free of charge for members of the public using the beach.
In her answer to interrogatories, Thompson described what occurred next:
We were walking down the pathway to the parking garage when my foot dropped into a hole in the cement pathway. I fell with full scuba gear on and my head hit the concrete. I remember the cracking sound of my skull. After that, I remember being unable to speak or move . . . .
II. STANDARDS OF REVIEW
"'A COL is not binding upon an appellate court and is freely reviewable for its correctness.'" AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 628, 851 P.2d 321, 326 (1993) (quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 119, 839 P.2d 10, 28 (1992)). This court ordinarily reviews COLs under the right/wrong standard. In re Estate of Holt, 75 Haw. 224, 232, 857 P.2d 1355, 1359 (1993). Thus, "'[a] COL that is supported by the trial court's [findings of fact] and that reflects an application of the correct rule of law will not be overturned.'" Estate of Caraang, 74 Haw. at 628-29, 851 P.2d at 326 (quoting Amfac, Inc., 74 Haw. at 119, 839 P.2d at 29). "However, a COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court's conclusions are dependent upon the facts and circumstances of each individual case." Id. at 629, 851 P.2d at 326 (quoting Amfac, Inc., 74 Haw. at 119, 839 P.2d at 29) (internal quotation marks omitted).
State v. Furutani, 76 Hawai`i 172, [180], 873 P.2d 51, [59] (1994).
Allstate Ins. Co. v. Ponce, 105 Hawai`i 445, 453, 99 P.3d 96, 104 (2004). (Some brackets and internal citations omitted.) (Some bracketed material altered.)B. Interpretation Of Statutes
The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai`i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, . . . statutory construction is guided by established rules:
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, "[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
State v. Koch, 107 Hawai`i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai`i 1, 7-8, 72 P.3d 473, 479-80 (2003)). Nevertheless, absent an absurd or unjust result, see State v. Haugen, 104 Hawai`i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language and may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai`i 465, 472, 24 P.3d 661, 668 (2001).
C. Summary Judgment
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, [this court] must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
Querubin v. Thronas, 107
Hawai`i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic
Recycling, Inc., 105 Hawai`i 490, 501, 100 P.3d 60, 71 (2004))
(internal citation
omitted) (some brackets in original).
III. DISCUSSION
On appeal, Thompson asserts that the circuit court: (1) erred by implicitly concluding that, under Crichfield v. Grand Wailea, 93 Hawai`i 477, 6 P.3d 349 (2000), absent evidence of a commercial purpose related to the landowner for entering the hotel's property, any presence by Thompson on the property was presumptively recreational; and, hence, (2) erred in concluding that the HRUS immunized the Sheraton from Thompson's negligence claims. She contends that, under Crichfield, the determining factor as to whether an entrant is engaged in a "recreational use" and, hence, barred by the HRUS from pursuing negligence claims against the landowner is the subjective intent of the entrant, not the intent of the owner in holding open the land for public use. She maintains that, inasmuch as her purpose at the Sheraton that evening was "occupational or vocational" as a paid diving instructor, she was not a recreational user under the HRUS.
The Sheraton argues that, inasmuch as Thompson concedes that she had no commercial purpose with the hotel, and that, under the plain language of HRS ch. 520, she was engaged in a recreational activity -- regardless of her motivation for doing so --, her presence falls under the HRUS. (3)
A. The HRUS
1.
Ambiguity
in the meaning of "recreational user" and "recreational purpose": The
plain language of the HRUS
and cases
construing it
As with any statutory inquiry, we begin by analyzing the plain language of HRS ch. 520.
HRS § 520-1 (1993) states that "[t]he purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." To achieve that goal, HRS § 520-3 (Supp. 1997) limits the duty of care owed by a landowner to members of the public entering the land for recreational purposes:
Except as specifically recognized by or provided in [HRS §] 520-6[ (1993) (relating to duties of persons entering the property)],[ (5)] an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes . . . .
Furthermore, HRS § 520-4(a) (Supp. 1997) limits the liability of an owner to any recreational entrant:Except as specifically recognized by or provided in [HRS §] 520-6,[ see supra note 5,] an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed;
(3) Assume responsibility
for, or incur liability for, any injury to person or property caused by
an act of omission or commission
of such persons;
and
(4) Assume responsibility
for, or incur liability for, any injury to person or persons who enter
the premises in response to an
injured recreational
user.[ (6)]
In Crichfield, this court summarized the overall effect of the HRUS on land owner liability:
[The] HRUS confers upon the owner of the land immunity from negligence liability to any person -- who is neither charged for the right to be present nor a houseguest[, see supra note 6] -- injured on the land while that person is using the owner's land for a recreational purpose. In other words, if a person is injured on an owner's land, but that person was not on the land for a recreational purpose, [the] HRUS does not, by its plain language, immunize the owner from tort liability.
93 Hawai`i at 485, 6 P.3d at 357. (Internal quotations omitted.) In most suits where a HRUS defense has been invoked, the question whether a party is a recreational user has been outcome-dispositive. See, e.g., Howard v. United States, 181 F.3d 1064 (9th Cir. 1999); Palmer v. United States, 945 F.2d 1134 (9th Cir. 1991); Brown v. United States, 180 F. Supp. 2d 1132 (D. Haw. 2001).Resorting to the plain language of HRS ch. 520 for a definition of recreational user is of limited value. HRS § 520-2 (Supp. 1997) defines "recreational user" to mean "any person who is on or about the premises that the owner of the land . . . indirectly . . . permits, without charge, entry onto the property for recreational purposes." "Recreational purpose," in turn, is defined as including "but not limited to any of the following[:] . . . fishing, swimming, boating, . . . and viewing or enjoying . . . scenic or scientific sites." HRS § 520-2.
As noted, the Sheraton contends that Thompson, as a person using the beach path to return to her car after diving, falls within the plain language of HRS § 520-2 and, hence, that the HRUS operates to bar her negligence claims. The hotel asserts that the mere fact that she engaged in the activity as part of a paid arrangement with her students "does not transform the 'recreational purpose'[ ] to a 'non-recreational' one."
Thompson, on the other hand, insists that, under Crichfield, her subjective intent to enter the property for a vocational pursuit, even one unrelated to the landowner, is sufficient to establish a non-recreational use of the land. Thompson's argument is unavailing.
b. Crichfield
This court concluded in Crichfield that neither the subjective intent of the landowner in holding open the property nor the subjective intent of the entrant in visiting the property were necessarily dispositive as to whether the plaintiff was a recreational user for the purposes of the HRUS. 93 Hawai`i at 487-88, 6 P.3d at 359-60 (noting, "as a preliminary matter, that the subjective intent of an owner of land is obviously relevant to whether he or she has directly or indirectly invited or permitted an injured party to use the land without charge for a recreational purpose" but concluding that the entrant's subjective intent is also material) (7) (internal quotations omitted).
In Crichfield, the plaintiffs alleged that they had entered the Grand Wailea's grounds both to enjoy the gardens and for the commercial purpose of having lunch at one of the hotel's restaurants. 93 Hawai`i at 481, 6 P.3d at 353. This court concluded that the commercial purpose of having lunch at the hotel was a non-recreational use of the property and, in vacating the grant of summary judgment in favor of the hotel, weighed the intent of the landowner and the intent of the entrant and concluded that the plaintiffs' allegations of a commercial purpose with the hotel raised a genuine issue of material fact. 93 Hawai`i at 487-88, 6 P.3d at 359-60. The result in Crichfield was based on the legislative history underlying HRS ch. 520 that expressly stated that the HRUS would not affect landowners' common law liability toward business invitees of the landowner, 93 Hawai`i at 488, 6 P.3d at 360 (quoting Sen. Stand. Comm. Rep. No. 534, in 1969 Senate Journal, at 1075), and a recognized need to prevent commercial establishments from exploiting the HRUS to escape well-settled landowner duties to non-recreational entrants, 93 Hawai`i at 489, 6 P. 3d at 361.
c. Palmer and Brown
Research reveals only two other cases that have construed the terms "recreational purpose" and "recreational user" as set out in the HRUS. In Palmer, 945 F.2d 1134, decided before Crichfield, the United States Court of Appeals for the Ninth Circuit affirmed a decision of the district court holding that the HRUS shielded a military recreational facility from negligence liability claims asserted by a grandfather who slipped and fell at a swimming pool while watching over his granddaughters. Id. at 1135. Palmer was only allowed access to the pool area to watch his granddaughters as a favor to his stepdaughter and was not himself allowed in the pool, which was restricted to military personnel and their dependents. Id. at 1136-37. Palmer argued that, because he was denied access to the pool, he was not a recreational entrant and, hence, the HRUS did not shield the facility from his claims. Id. at 1136. The court first considered the intent of the landowner, concluding that, because "[t]he United States has chosen to make the pool . . . available for recreational use free of charge . . . [,therefore,] the HRUS is applicable to the pool under the plain, unambiguous language of the statute." Id. Addressing next Palmer's contentions that, because his subjective intent in being at the pool was allegedly as a pseudo-lifeguard and therefore not recreational, the court reasoned:Id. at 1136-37. The Palmer court, therefore, considered the intent of the landowner in holding the land open for use, the subjective intent of the entrant, as well as the nature of the entrant's activity while on the property and whether the activity conferred any benefit upon the landowner such that it would be equitable to impose a corresponding duty of care upon the landowner.
The United States District Court for the District of Hawai`i, in Brown, focused primarily on the subjective intent of the entrant. The court concluded that a genuine issue of material fact existed as to whether the plaintiff was on a bicycle path on military land for recreational or non-recreational purposes, given the evidence that he was commuting to work (8) on the day he swerved to avoid a runner and suffered injuries. 180 F. Supp. 2d at 1140. The Brown court concluded that "[t]he Howard and Crichfield courts agree that the 'subjective intent of an owner of land is obviously relevant to whether he or she has directly or indirectly invited or permitted' a person to use the land for recreational purposes," but nevertheless interpreted Crichfield to mean that testimony by the plaintiff that entry was for a non-recreational purpose was sufficient in itself to avoid summary judgment on a HRUS defense. 180 F. Supp. 2d at 1139-40 (some internal quotation marks omitted) (quoting Crichfield, 93 Hawai`i at 487, 6 P.3d at 359) (citing Howard, 181 F.3d at 1072-73).
In Crichfield, this court noted that the "HRUS is ambiguous . . . regarding the standpoint or perspective from which 'recreational purpose' is ascertained." 93 Hawai`i at 487, 6 P.3d at 359. Palmer, Howard, Crichfield, and Brown struggled to define "recreational purpose" and "recreational user" under the HRUS, but there remains indistinctiveness and uncertainty surrounding the terms. An ambiguity exists in the present matter as to whether an activity that (1) is unrelated to the owner of the land and (2) generally falls within the definition of a recreational activity as set forth in HRS § 520-2, see supra section III.A.1.a, can be transformed from a recreational use into a non-recreational one solely by virtue of the plaintiff's subjective reasons for engaging in the activity. Inasmuch as an ambiguity exists, this court may examine the legislative history for guidance. Koch, 107 Hawai`i at 220, 112 P.3d at 74.
2.
The legislature granted
landowners reduced liability exposure to encourage opening private
lands to the public
for
exercise, sightseeing, and access to Hawaii's scenic beauty.
In Crichfield, this court summarized the legislature's intent in enacting and, in 1996, amending the HRUS:
Thus, the legislature enacted [the] HRUS to encourage the recreational use of our state's resources by limiting landowners' liability to recreational users and, thereby, promoting the use and enjoyment of Hawaii's resources. Indeed, in amending [the] HRUS in 1996, the legislature reaffirmed its original intent:
93 Hawai`i at
488-89, 6 P.3d at 360-61 (emphasis in Crichfield) (quoting 1996
Haw. Sess. L. Act 151, § 1 at 328). Nevertheless, this court
also noted that the "HRUS was not intended . . . to have
created out of whole cloth a universal
defense available to a commercial establishment . . . against any
and all liability for personal injury" and that the general
rule regarding landowner liability to non-recreational entrants
remained intact:
"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."
93 Hawai`i at 489, 6 P.3d at 361 (quoting Richardson v. Sports Shinko (Waikiki Corp.), 76 Hawai`i 494, 503, 880 P.2d 169, 178 (1994)).This court should, therefore, approach the analysis of whether a HRUS defense is available to the Sheraton in the present matter by seeking an outcome that "encourage[s] the recreational use of our state's resources by limiting landowners' liability to recreational users and, thereby, promot[es] the use and enjoyment of Hawaii's resources" by "encourag[ing] wider access to lands and waters for . . . fishing and other activities," while respecting traditional duties owed by landowners to non-recreational entrants.
B.
Inasmuch
As Thompson's Presence On The Land Was "An Action In Pursuit Of The Use
Of The Property For
Recreation," The Circuit Court
Correctly Entered Summary Judgment For The Sheraton.
Our research reveals only one case nationally that considers an argument similar to Thompson's, and the court reached a result antithetical to Thompson's position. In Hafford v. Great N. Nekoosa Corp., 687 A.2d 967 (Me. 1996), the plaintiff, a recreational outfitter supplying canoeing and camping enthusiasts on the Allagash Waterway in Maine, was injured in an auto accident on a private road owned by Great Northern while transporting his staff to pick up his clients' vehicles. Id. at 968. Hafford asserted that the recreational use statute (11) did not apply to him because he was on the property for vocational reasons. Id. at 969. The Maine Supreme Judicial Court affirmed the lower court's grant of summary judgment in favor of Great Northern, concluding that
[t]he trial court correctly concluded that Hafford's travel over Great Northern's land was an action in pursuit of the use of the property for recreation even though Hafford was paid by his customers to provide transportation. Hafford was passing over Great Northern's land to facilitate his customer's recreational pursuits; his status as a commercial outfitter does not change the fact that he was using the land for recreational purposes.
Id. As the Hafford court reasoned, an individual whose purpose for being on the land is unrelated to the owner and is predicated upon the land being available to the public for recreational use at no charge by the landowner due to a recreational use statute is a "recreational user" for the purposes of the statute. The reasoning is sound: without such a rule, entrants who took advantage of open lands to participate in nature walks, scuba dives, or archeological studies free of charge or benefit to the landowner would be divided into two classes of plaintiffs -- the bulk of the entrants would be barred from pursuing negligence claims against the landowner, while a member of the group paid to guide or instruct the others would not -- despite the fact that, from the viewpoint of the landowner, the two classes were indistinguishable. Such disparate treatment would be inequitable, particularly inasmuch as the favored individual benefits economically from the opening of the land, and such a policy would, no doubt, discourage landowners from allowing any entrants onto their land for fear that one of them might be earning money from the visit.Rather, a more just result is reached under the reasoning in Hafford, concluding that where the plaintiff's presence on the land is closely associated with the presence of individuals whose purpose on the land is purely recreational, the recreational purpose attaches to the plaintiff. We find the reasoning in Hafford persuasive.
In the present case, in which Thompson's presence on the land would not have occurred but for the recreational activity undertaken by her students and in which she derived a direct financial benefit from the policies underlying HRS ch. 520, to allow her to benefit financially while concluding that the landowner is afforded no protection by HRS ch. 520 would be unfair and contrary to the intent of the legislature.
We, therefore, hold that the circuit court correctly concluded that Thompson's status on the Sheraton's property fell as a matter of law within the ambit of HRS ch. 520 as a recreational user, inasmuch as she was engaged in "an activity in pursuit of the use of the property for recreational purposes" and, therefore, that the Sheraton was immunized from her negligence claims under the HRUS. We further hold that, inasmuch as there were no genuine issues of material fact in dispute, the circuit court correctly entered summary judgment in favor of the Sheraton and against Thompson.
Our holding accords with legislative intent and with this court's holding in Crichfield. (12) Moreover, unlike Crichfield, there is no danger in the present matter that this ruling will allow owners to exploit the HRUS to avoid liability for activities related to them or from which they benefit. (13)
In light of the foregoing, this court affirms the circuit court's August 18, 2003 judgment in favor of the Sheraton and against Thompson.
On the briefs:
1. Inasmuch as the facts surrounding the incident are not disputed, the factual background is drawn from Thompson's sworn answers to interrogatories and her January 4, 2003 deposition.
2. HRS § 520-4(b) (Supp. 1997) provides in relevant part:
3. Thompson was injured on the beach access path as she and her students returned to their cars. She was, therefore, not, strictly speaking, engaged in the recreational activity of diving when she was injured. Nevertheless, the Sheraton was required to provide beach access and free parking as part of the requirements for obtaining its state and county building and use permits. Pursuant to HRS § 520-4(b), see supra note 2, therefore, the fact that Thompson was injured on the path and not while actually diving or using the Sheraton's beach property is immaterial in analyzing whether the HRUS defenses are available to her.
4. Thompson concedes that "scuba diving can be recreational and is similar to other 'recreational' activities listed [in HRS § 520-2], e.g., fishing, swimming and water skiing."
5. HRS § 520-6 in fact emphasizes the duty of the entrant:
(1) Create a duty of care or ground of liability for injury to persons or property.
6. HRUS allows for only three
exceptions to the limitations to landowner duty and liability set forth
in HRS §§ 520-3 and
520-4: (1) willful or malicious failures to warn by the landowner; (2)
entrance to the land being premised on payment of a
fee; and (3) any claim involving a houseguest of the owner as
plaintiff. See HRS
§ 520-5 (1993). Thompson concedes that
none of the three exceptions apply in the present matter. As noted supra, the Sheraton
provides public parking for
beachgoers free of charge. 7. In concluding that both
the subjective intent of the landowner and of the entrant were
material in determining whether an
entrant qualifies as a recreational user, this court concluded that the
United States Court of Appeals for the Ninth Circuit
had misconstrued the HRUS in Howard,
181 F.3d at 1073 (concluding that the plaintiff's subjective intent for
being on the
land was immaterial in the analysis). 93 Hawai`i at 486-87, 6 P.3d at
358-59.
8. It was uncontested that
the bicycle Brown was riding that day was specially equipped for
commuting, with mirrors,
lights, bags, and rainguards. 180 F. Supp. 2d at 1134. 9. It would also arguably
run counter to the legislature's purposes behind enacting HRS §
520-4(b), see supra note 2, i.e.,
extending HRUS immunity to beach paths like the one in question, as
well as the legislative intent expressed in Sen. Stand.
Comm. Rep. No. 534, in 1969 Senate Journal, at 1075, see supra section III.A.2, that
requiring "an owner who provides a
public right-of-way through his land to beach areas . . .
[to] maintain such right-of-way . . . [would] create[] an
undue
burden on landowners."
10. Thompson states in her
deposition that, as a responsible instructor, she would not trespass on
private land in order to
reach the dive site, which is why she used the beach access path. 11. In Hafford the court based its
analysis on Me. Rev. Stat. Ann. tit. 14, § 159-A, a
recreational use statute similar to the
HRUS, which provided in pertinent part:
. . . .
B. "Recreational . . . activities" means recreational activities conducted out-of-doors, including, but not limited to, hunting, fishing, . . . camping, environmental education and research, hiking, sight-seeing, . . . hang-gliding,. . . equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products. It includes entry of, volunteer maintenance and improvement of, use of and passage over premises in order to pursue these activities. . . .
. . . .
2. Limited duty. An owner . . . or occupant of premises does not have a duty of care to keep the premises safe for entry or use by others for recreational . . . activities or to give warning of any hazardous condition, use, structure or activity on these premises to persons entering for those purposes. . . .
3. Permissive use. An owner . . . or occupant who gives permission to another to pursue recreational . . . activities on the premises does not thereby:
A. Extend any assurance that the premises are safe for those purposes;
B. Make the person to whom permission is granted an invitee or licensee to whom a duty of care is owed; or
C. Assume responsibility or incur liability for
any injury to person or property caused by any act of persons to whom
the
permission is granted.
4. Limitations on section. This section does not limit the liability that would otherwise exist:
A. For a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity;
B. For an injury suffered in any case where permission to pursue any recreational . . . activities was granted for a consideration other than the consideration, if any, paid to the following:
(1) The landowner or the landowner's agent by the State; or
(2) The landowner or the landowner's agent for use of the premises on which the injury was suffered, as long as the premises are not used primarily for commercial recreational purposes and as long as the user has not been granted the exclusive right to make use of the premises for recreational activities; or
C. For an injury caused, by acts of persons to whom permission to pursue any recreational . . . activities was granted, to other persons to whom the person granting permission, or the owner . . . or occupant of the premises, owed a duty to keep the premises safe or to warn of danger.
5. No duty created. Nothing in this section creates a duty of care or ground of liability for injury to a person or property.
The Maine statute does not contain an equivalent to HRS § 520-4(b), see supra note 2, which applies the liability limits set forth in HRS § 520-4(a), see supra section III.A.1.a, to public access areas provided by owners under state or county compulsion. Nevertheless, inasmuch as HRS § 520-4(b) merely expands the geographic reach of the protections afforded by HRS § 520-4(a) and inasmuch as HRS § 520-4(a)(1) to (3) is substantially similar to Me. Rev. Stat. Ann. tit. 14, § 159-A(3), the analytical power of the Hafford court's reasoning as applied to Thompson's arguments remains undiminished.
12. Indeed, in Crichfield, the court
characterized "permitting public access to the beach and ocean" as a
recreational
purpose. 93 Hawai`i at 487, 6 P.3d at 359.
13. This court offers no
opinion as to whether commercial purposes related to the owner comprise
the entirety of possible
non-recreational uses that plaintiffs may allege to avoid application
of HRS ch. 520. In Crichfield,
the business-invitee
nature of the plaintiffs' allegations and this court's concern that
commercial establishments could abuse the HRUS as an
improperly broad shield from negligence liability led us to that
holding.