Our law partner, Ken Kupchak, a scientist and lawyer, spends a lot of time on the Big Island. Volcano, specifically. So when he recently circulated these photos, taken on a hike-and-bike out to where the lava meets the sea, it reminded us of an article we jointly authored a few years ago about issues of liability in situations like these, 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 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.