Volcano rider (Photo courtesy http://www.inversecondemnation.com/)
Volcano rider (Photo courtesy http://www.inversecondemnation.com/)

BY ROBERT THOMAS – This photo and accompanying story (“Volcano officials concerned about risky activity at Kilauea ocean entry“) reminded us of an article we did a few years ago about issues of liability in these cases, the “compensation culture,” and a famous tort decision by the UK’s House of Lords.

Our article, “Common Sense and Common Law – Who Does the Balancing of Social Utility?,” framed the issues in light of the situation at Hawaii Volcanoes National Park where visitors had (and apparently still have) the ability to simply walk out among the flowing lava:

Hawaii Volcanoes National Park is located on the island of Hawaii, and true to its name, its central attraction is one of the world’s most spectacularly active volcanoes, Kilauea. At the end of Chain of Craters Road, visitors may walk out past where it was cut off by a flow to witness a fresh lava flow firsthand and very close up. It’s a thrilling and humbling experience to watch and feel 1000-degree liquified rock make its way to the ocean through cracks in the brittle crust just beneath your feet. A smattering of National Park Service rangers wander around reminding viewers to keep to the ill-defined trail, and several warning signs are posted where the road ends and visitors must continue on foot.

The signs are dire enough: “Extreme Danger Beyond This Point!” “Bad Gases,” “Red Lava,” and “Methane Explosion Risk is HIGH Today.” But the signs are treated by visitors less as warnings and more as centerpieces of funny photographs to show the folks back home (especially the one about “methane explosion risk”). The rangers and the signs hardly deter hundreds of visitors a day. The tourist and the scientist marvel at witnessing so closely the creation of new land, but the lawyer is instinctively aghast: this is a public space after all, and park management just allows people to walk out day and night, mostly unsupervised, into a fresh lava field surrounded by molten rock and poisonous sulfur dioxide? Do they realize the exposure, the chance of someone being injured and suing? Are they insane?

This essay is not about the dangers that may lurk at Volcanoes National Park,or an analysis of the legal efficacy of the warning signs. The Kilauea example is highlighted simply to demonstrate that even in the age of risk management and litigation, some activities are deemed to have such value – whether scientific or esoteric – it is worth the risk of injury and lawsuits to continue them. This essay is about who determines that value.

Check it out if you are interested.

Common Sense and Common Law – Who Does the Balancing of Social Utility?

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.

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  1. A sign that states "We are not responsible if you pass this point and do something stupid" and a fence. They were warned.

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