Hawaii Revised Statutes

Haw. Rev. Stat. § 663-31 (2026)

Contributory negligence no bar; comparative negligence; findings of fact and special verdicts

✓ current as of July 2026

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[PART IV.] COMPARATIVE NEGLIGENCE

Law Journals and Reviews

Tort and Insurance "Reform" in a Common Law Court. 14 UH L. Rev. 55 (1992).

§663-31 Contributory negligence no bar; comparative negligence; findings of fact and special verdicts. (a) Contributory negligence shall not bar recovery in any action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.

(b) In any action to which subsection (a) of this section applies, the court, in a nonjury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:

(1) The amount of the damages which would have been recoverable if there had been no contributory negligence; and

(2) The degree of negligence of each party, expressed as a percentage.

(c) Upon the making of the findings of fact or the return of a special verdict, as is contemplated by subsection (b) above, the court shall reduce the amount of the award in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made; provided that if the said proportion is greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, the court will enter a judgment for the defendant.

(d) The court shall instruct the jury regarding the law of comparative negligence where appropriate. [L 1969, c 227, §1; am L 1972, c 144, §2(i); am L 1975, c 152, §1; am L 1976, c 161, §1; gen ch 1985]

Law Journals and Reviews

For a discussion of the doctrines of contributory and comparative negligence, see A Proposal for the Judicial Adoption of Comparative Negligence in Hawaii. 5 HBJ, no. 2, at 49 (1968).

Tort Law--Bertelmann v. Taas Associates: Limits on Dram Shop Liability; Barring Recovery of Bar Patrons, Their Estates and Survivors. 11 UH L. Rev. 277 (1989).

Ozaki and Comparative Negligence: Imposing Joint Liability Where a Duty to Protect or Prevent Harm from Third Party Intentional Tortfeasors Exits Is Fairer to Plaintiffs and Defendants. 26 UH L. Rev. 575 (2004).

Case Notes

In Federal Tort Claims Act action against United States of America for damages for personal injuries plaintiffs sustained when they were scalded by lava heated ocean water, judgment to be entered in favor of the government, where court found, inter alia, that because plaintiffs knowingly entered a closed area with an open and obvious hazard, not only was their behavior unreasonable, but they alone were responsible for their injuries. 73 F. Supp. 2d 1172 (1999).

Comparative negligence doctrine will not be applied to claims accruing before July 14, 1969. 51 H. 636, 466 P.2d 429 (1970).

Comparative negligence applies only to claims accruing after July 14, 1969, and the rule of contributory negligence continues on claims that accrued before that date. 52 H. 129, 471 P.2d 524 (1970).

Contributory negligence is available as defense against claims accruing before July 14, 1969. 55 H. 375, 520 P.2d 62 (1974).

Costs allowable to prevailing party not subject to reduction in proportion to negligence attributable. 56 H. 613, 546 P.2d 1013 (1976).

Section does not affect action between two joint tortfeasors under §§663-11 to 663-17. 65 H. 428, 653 P.2d 96 (1982).

Comparative negligence principles not applicable to strict liability case. 69 H. 176, 738 P.2d 79 (1987).

Contributory negligence is no longer a complete defense or total bar to a tort claim; legislature, in enacting comparative negligence statute did not intend to alter judicially created derivative action for loss of consortiums. 69 H. 192, 738 P.2d 85 (1987).

Pure comparative negligence principles apply to strict products liability claims. 69 H. 231, 738 P.2d 416 (1987).

Section required that judgment be entered for defendant where jury's special verdict apportioned greater fault to victim than to defendant. 87 H. 265, 954 P.2d 644 (1998).

Where arbitrator's award apportioned liabilities in passenger's action against passenger's driver and driver of other vehicle as seventy per cent to thirty per cent negligent respectively, and arbitrator's award had collateral estoppel effect, subsection (a) barred recovery by passenger's driver in separate action against other driver. 90 H. 143, 976 P.2d 904 (1999).

The known or obvious danger defense is inconsistent with the legislative intent behind Hawaii's comparative negligence statute, yields inconsistent results, and is incompatible with the policy values underlying Hawaii's tort law; thus, the known or obvious danger defense is no longer viable in Hawaii; the Restatement's retention of the doctrine as a factor in determining the landowner's duty is rejected, and the courts of this State may consider any known or obvious characteristics of the danger as factors in the larger comparative negligence analysis. 126 H. 133, 267 P.3d 1238 (2011).

Instructions to jury. 1 H. App 94, 614 P.2d 402 (1980).

Comparative negligence and products liability doctrines merged; in products liability case injured plaintiff cannot recover if more negligent than defendant. 6 H. App. 652, 736 P.2d 440 (1987).

Because this section clearly permits apportionment of damages and no justification exists to maintain doctrine of last clear chance, use of doctrine by a plaintiff abolished. 83 H. 78 (App.), 924 P.2d 572 (1996).

Trial court should have instructed jury on law of comparative negligence and failure to do so made jury instructions that were given prejudicially insufficient. 83 H. 78 (App.), 924 P.2d 572 (1996).

In light of the plain language of HAR rule 23(a), trial court abused its discretion when it sanctioned defendant by apportioning defendant's and plaintiff's negligence based on arbitrator's award, and the apportionment sanction deprived defendant of a jury determination as to the degree of negligence of the parties, in violation of this section. 99 H. 432 (App.), 56 P.3d 734 (2002).

Cited: 60 H. 381, 590 P.2d 564 (1979).

Discussed: 781 F. Supp. 2d 1025 (2011).

Notes of Decisions

Cited in 74 cases (8 in the last 5 years), 1970–2025 · leading case: Steigman v. Outrigger Enter., Inc., 267 P.3d 1238 (Haw. 2011).

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Steigman v. Outrigger Enter., Inc., 267 P.3d 1238 (Haw. 2011). · cites it 118× “In the absence of a legal duty owed to the plaintiff, there is no negligence to compare under HRS § 663-31. Steigman, 2010 WL 4621838 at *6.”

Ozaki v. Ass'n of Apt. Owners of Discovery Bay, 954 P.2d 652 (Haw. App. 1998). · cites it 70× “As a result, we conclude that the first circuit court (the court) erred in applying HRS § 663-31 to bar Plaintiffs’ recovery against AOAO Discovery Bay and Walker based on the jury’s finding that Cynthia’s negligence exceeded AOAO Discovery Bay and Walker’s negligence.”

Ozaki v. Ass'n of Apt. Owners of Discovery Bay, 954 P.2d 644 (Haw. 1998). · cites it 68× “1 Discovery Bay argues that the ICA’s holding that HRS § 663-31 “ ‘applies only in actions which sound entirely in negligence’ ” constitutes a grave error of law.”

Moyle v. Y & Y Hyup Shin, Corp., 191 P.3d 1062 (Haw. 2008). · cites it 14× “Given the immateriality of Tupuola's degree of responsibility for the plaintiff's injuries, HRS § 663-31 is tangential to the issue posed on appeal in the present case.”

Armstrong v. Cione, 738 P.2d 79 (Haw. 1987). · cites it 15× “2d at 351-54 , requires application of the modified comparative negligence principles contained in HRS § 663-31 (1985). 2 As the court stated: *180 The Kaneko court does not cite HRS § 663-31; however, it is the only basis for application of the doctrine of comparative…”

Kealoha v. Cnty. of Hawaii, 844 P.2d 670 (Haw. 1993). · cites it 7× “Judgment was entered in favor of Kealoha, pursuant to HRS § 663-31, in the amount of $21,250. Having prevailed at the trial de novo, Kealoha subsequently moved for sanctions pursuant to HAR 26.”

Bissen v. Fujii, 466 P.2d 429 (Haw. 1970). · cites it 25× “Our legislature, in the 1969 session, enacted a comparative negligence statute, HRS § 663-31, which became effective on July 14, 1969.”

Dorrance v. Lee, 976 P.2d 904 (Haw. 1999). · cites it 7× “On May 14, 1998, Lee filed a motion for summary judgment, arguing that, because the arbitrator in the Cin-tron Action had determined Dorrance’s negligence to be larger than Lee’s negligence, HRS § 663-31 (governing contributory negligence), see infra, barred Dorrance from…”

Samson v. Nahulu., 363 P.3d 263 (Haw. 2015). · cites it 9× “They misstate a driver’s duty of care and conflict with our comparative negligence statute, HRS § 663-31, 12 which was enacted post-Areraa in 1969.”

Rapoza v. Parnell, 924 P.2d 572 (Haw. App. 1996). · cites it 20× “2 However, Defendant counters that the last clear chance doctrine does not apply in the instant case because the doctrine was abolished by the legislature when it enacted a modified comparative negligence statute in 1969—today codified as Hawai'i Revised Statutes (HRS) § 663-31…”

Honolulu Disposal Serv., Inc. v. Am. Benefit Plan Administrators, Inc., 433 F. Supp. 2d 1181 (D. Haw. 2006). · cites it 15× “§ 552A, there seem to be three options available: (1) apply § 552A and conclude that a plaintiffs contributory negligence bars all recovery; (2) apply § 552A where the plaintiff alleges solely pecuniary harm, but apply Hawaii’s modified comparative negligence statute, Hawaii…”

Mist v. Westin Hotels, Inc., 738 P.2d 85 (Haw. 1987). · cites it 8× “The Legislature enacted a modified comparative negligence statute for our jurisdiction which bars recovery when the negligence of the plaintiff is greater than the defendant or defendants, and reduces recovery against the defendant or defendants by the proportion of fault of the…”

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— Haw. Rev. Stat. § 663-31(a) — 10 cases

Steigman v. Outrigger Enter., Inc., 267 P.3d 1238 (Haw. 2011). “In the absence of a legal duty owed to the plaintiff, there is no negligence to compare under HRS § 663-31. Steigman, 2010 WL 4621838 at *6.”

Dorrance v. Lee, 976 P.2d 904 (Haw. 1999). “On May 14, 1998, Lee filed a motion for summary judgment, arguing that, because the arbitrator in the Cin-tron Action had determined Dorrance’s negligence to be larger than Lee’s negligence, HRS § 663-31 (governing contributory negligence), see infra, barred Dorrance from…”

Ozaki v. Ass'n of Apt. Owners of Discovery Bay, 954 P.2d 644 (Haw. 1998). “1 Discovery Bay argues that the ICA’s holding that HRS § 663-31 “ ‘applies only in actions which sound entirely in negligence’ ” constitutes a grave error of law.”

Samson v. Nahulu., 363 P.3d 263 (Haw. 2015). “They misstate a driver’s duty of care and conflict with our comparative negligence statute, HRS § 663-31, 12 which was enacted post-Areraa in 1969.”

Ozaki v. Ass'n of Apt. Owners of Discovery Bay, 954 P.2d 652 (Haw. App. 1998). “As a result, we conclude that the first circuit court (the court) erred in applying HRS § 663-31 to bar Plaintiffs’ recovery against AOAO Discovery Bay and Walker based on the jury’s finding that Cynthia’s negligence exceeded AOAO Discovery Bay and Walker’s negligence.”

— Haw. Rev. Stat. § 663-31(b) — 5 cases

Steele v. Dillard, 486 S.E.2d 278 (S.C. Ct. App. 1997).

Ozaki v. Aoao Discovery Bay, 954 P.2d 644 (Haw. 1998).

McKellar v. Outfitters Kauai, LTD. (Haw. App. 2025).

— Haw. Rev. Stat. § 663-31(b)(2) — 1 case

Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877 (Utah 1993).

— Haw. Rev. Stat. § 663-31(c) — 1 case

Armstrong v. Cione, 736 P.2d 440 (Haw. App. 1987).

— Haw. Rev. Stat. § 663-31(d) — 2 cases

Kaeo v. Davis, 719 P.2d 387 (Haw. 1986).

State v. Hatori, 990 P.2d 115 (Haw. App. 1999).

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