*1 provides Hawaii-Kona because it conclu- that he would have been able establish legal sions on essential elements Thomas’s that agent, Barbati was Thomas’s Kidani malpractice demonstrating claims without shows that Thomas cannot meet her burden the connection between the circumstances of prove successfully she would have opinion. ease and his The declaration overcome the statute of limitations. any legal does authority, not cite either from summary, In though even Kidani moved jurisdictions, Hawai'i or support other summary judgment, for Thomas retains the fiduciary conclusions that Thomas’s fraud ar- proving burden of pre- that she would have gument applies in the context of this case presented vailed at trial had Kidani fidu- trial, and would have affected outcome ciary theory. fraud As the for sum- movant had presented Kidani it. The declaration mary judgment, may prevail Kidani if he presents cogent also why rationale as to shows that Thomas cannot meet burden. her fiduciary argument fraud apply should carry court holds that Thomas did not Accordingly, context. the declaration prove her burden to that she would have does help meet prove Thomas’s burden to prevailed “fiduciary theory on her fraud” below, prevailed she would had against trial. Kidani’s defense Thomas’s un- argued agency theory. Kidani her successful; supported claim is are no there in dispute material facts that would affect agree We with Kidani element, analysis our of this and Kidani has satisfy Thomas does burden proof her summary shown he judg- is entitled to prevailed to show that she would have at trial judgment ment a matter of law. The argument ICA’s faulty because her relies on the affirming grant summary the trial court’s premise required trig that actual notice is affirmed, judgment grounds is thus ger discovery statute limitations. The articulated above. rule states that statute limitations begins running plaintiff when knew damage.
should have known of the Accord
ingly, “key Barbati’s defense” that the stat
ute of limitations had run on her claims claim, agency have also defeated this
had Kidani made it. there “When has been discovery action,
belated
the cause
den of proving argue that Kidani her did below,
agency theory assuming and further explicit (holding six-year 7. There is no statute of for P.2d 1 statute of limitations claims of real estate fraud. We need not deter- sounding ap- limitations plied claims contract general exactly mine statute of limitations legal malpractice, rather than two- apply years longest because six is the year sounding statute limitations claims potentially applicable statute of limitations tort). Mirikitani, Higa case. See 55 Haw. *2 Kim, petitioner-plaintiff-ap- person’s legal representative Janice P. to recover pellant. damages resulting in death person or in property, Dennis O’Connor and J. E.W. Michael *3 greater negligence negli- was not than Guben, McGuigan Playdon of O’Connor & gence person ease more LLP, respondent-defendant-appellee. for person, one aggregate negligence than McLaren, Arthur and C. Y. Park John for persons against recovery whom is Amicus Hawai'i Curiae Association for Jus- any damages sought, but allowed shall be tice. in proportion diminished amount negligence person attributable to the RECKTENWALD, C.J., NAKAYAMA injury, damage or whose death is JJ., DUFFY, and Judge and Circuit made. WILSON, Assigned by of Vacancy; Reason J., 663-31(a) (1993). ACOBA, § concurring separately. and HRS elimi- This statute contributory negligence, nates and instead Opinion NAKAYAMA, of the Court J. provides injured plaintiff may that an recover against a negligence defendant even if her Petitioner-Plaintiff-Appellant R. Michele injury, long contributed her own as as her Steigman brought this tort action to recover negligence greater is not than that of the damages slip-and-fall suffering after a acci- defendant. guest while of Respondent- dent she was a Defendant-Appellee Outrigger Enterprises’ Steigman contends that the tradition trial, Ohana Surf Hotel. The went ease al known or obvious defense conflicts a Outrigger and found that Legislature’s with the intent behind com negligent.1 Steigman’s appeal to the Inter- parative negligence agree. statute. We We (“ICA”)
mediate Appeals Court of resulted Hawai'i, hold therefore that in the known or Summary Disposition a affirming Order longer obvious viable as judgment. trial court’s final injured complete plaintiffs a bar to an claim premises liability. the context of
Steigman’s application for writ of cer- presents question a impres tiorari first sion, namely, comparative whether Hawaii’s I. BACKGROUND negligence statute nullifies the common law Steigman’s application poses ques- two barring recovery tort defense whether, law, tions. She asks a matter
injured by dangers. known or obvious Prior defense is in- legislative of comparative enactment comparative negligence, consistent with negligence, applied the courts of this state whether, ease, applied in her contributory negligence, the rule of properly giv- instruction on the defense was recovery upon denied en. We answer her first showing negligence that her contributed affirmative, eliminating the need to consider injury. Engi own her Torres v. Northwest question; thorough her thus second review Co., neering 86 Hawai'i 399 n. of the details of her case and the evidence Then, (App.1997). n. 8 “[a] presented eight days over full of trial legislative perception of unfairness Nonetheless, unnecessary. this case illus- contributory law negli common doctrine of difficulty in applying trative of the known gence passage led to the our modified such, defense. As brief comparative negligence statute 1969.” review of facts of this case follows. Tours, Wong Ltd., v. Hawaiian Scenic 401, 403-04, Proceedings A. Trial (HRS) statute, Hawai'i Revised Statutes 663-31, states, part: in relevant family Steigman and her were negligence
Contributory guests re- Surf shall bar Ohana Hotel in Honolulu. covery by any person Steigman in any action or the On the afternoon of March presided. Honorable Victoria S. Marks both ed. “Obvious” means that the condi- family got caught in a rainstorm and her dry apparent their hotel room off. tion and risk returned to man, get Steigman went on the lanai2 recognized When would be reasonable balcony, chair, slipped, guest, exercising slid across the position she got it injury to foot when ordinary intelligence, judg- and sustained her perception, railing. lanai trapped under the ment. against Outrig- filed this Steigman lawsuit objected to this Steigmen’s instruc- counsel trial, Steigman
ger alleging negligence. At grounds supported it was not tion on the presented prove evidence to hotel by the evidence and that conflicted with expert An witness testified lanai was unsafe. comparative this state’s statute. *4 lanai’s did not the the surface replied “Okay. And the The court Court’s required by industry stan- coefficient friction giving it the fact that it was [of] because Steigman’s for exterior surfaces. dards it raining, and the knew rain- glossy lanai had a daughter testified the ing.” surface, by determine so it was difficult to jury with provided special The court the dry. sight was wet or alone whether it question verdict form. The first asked “Was presented also evidence Steigman Inc., doing Outrigger Enterprises, defendant employee a similar Outrigger had suffered Hotel, negligent?” Surf business Ohana hotel, slip-and-fall accident on a lanai at The answered “no”. As instructed Outrigger danger- knew of therefore form, did not answer further trial, Throughout Outrig- ous condition. The entered final questions. trial court ger argued Steigman’s Outrigger, and judgment in favor of ordered negligence solely by Steigman’s own caused $29,722.30 Outrigger Steigman pay presented the wet lanai a known or because costs. being slippery, she danger. to confront that chose Summary ICA’s B. The June Dis- trial, Outrigger conclusion of the At the position Order following jury instruction: “A proposed the ICA, Steigman appeal On before the as- party open and obvious when points points Three five of error. serted knew or should have known of it. either longer appeal. are no relevant to this error actually Plaintiff discovered the Whether remaining points of the of error two court danger is irrelevant.” The refused in- or obvious concerned known proposed the fol- Outrigger’s instruction and Steigman argued facts of struction: instruction, after the Re- lowing fashioned instruction, not support her ease did (Second) statement Torts: fundamentally instruction conflicts operator liable to A hotel is not its negligence comparative Hawaii’s stat- guests physical harm caused them ute. any activity or in the hotel condition them, danger is or obvious to whose known the ICA On November filed operator anticipate hotel unless the Summary Disposition affirming Order knowledge despite such or obvi- the harm Steigman Outrig- judgment. trial court’s Inc., ousness. ger Enterprises, No. 2010 WL 2010)(SDO). (App. only Nov. Therein The word “known” denotes judgment court’s the condition the ICA affirmed the trial knowledge of existence of itself, points activity appreciation regard all five of error. With but also on danger arguments, the known or obvious danger Thus the condition involves. exist, activity only proper known to held that the instruction must ICA there evidence to recognized that it was substantial it must also but jury’s Steigman, probability support finding. gravity and the dangerous, The court held appreciat- *7 n. 5. also threatened harm must be WL (rev. Elbert, Dictionary meaning "porch, H. Samuel Hawaiian is a Hawaiian word "Lanai” 1986). veranda, balcony.” Mary Pukui ed. Kawena & [or] that “there is no inherent conflict §§ between on the Torts Law of 60 and at 412 and (5th 1984). or obvious doctrine and the com- 419 ed. Then in this court statute,” parative negligence because the abandoned the common law invitee/licensee finding of a known or premises duty com- distinctions and defined pletely occupier absolves a landowner of his follows: “an of land has a people premises. Steigman, use care safety reasonable for the WL of all persons reasonably reasoning anticipated *6. The ICA’s was as to be premises, regardless legal follows: status of City the individual.” County Pickard v. [I]f finder of fact determines that the Honolulu, 51 Haw. hazard falls within known or obvious justifi- two advanced doctrine, comparative negli- First, change. cations for the courts had gence is never reached as the defendant difficulty applying law common classifica- plaintiff, owes no and accord- consistently. tions quoted The court lan- ingly, negligent cannot be as matter guage Supreme from the United States law. legal duty absence of a owed Court, noting that plaintiff, there is no *5 compare justice an [i]n under HRS effort do 663-31. industri- alized society, urban its complex with Steigman, 2010 WL 4621838at *6. economic and relationships, individual 16, 2010, On December the ICA filed its modern common-law courts have found it Judgment 10, Appeal. February 2011, on On necessary increasingly to formulate subtle Steigman timely application filed a for writ of refinements, verbal to create subclassifi- certiorari. accepted Steigman’s This court among cations traditional common-law 23, application on March heard oral categories, grada- and to fine delineate 5, argument May tions in the standards of care which the landowner owes to each. Yet even within II. STANDARD OF REVIEW single jurisdiction, a the classifications “Questions of statutory interpretation subclassifications bred the com- questions produced mon law of law de have confusion reviewable novo.” Ass’n, Hawaii conflict. Employees Government 152,
AFSCME Local
v. Lingle,
AFL-CIO
135-36,
(quoting
Id. at
proper considerations which degree negligence of each duty. question of the determination expressed percentage. party, (c) findings making Upon the (quoting P.2d at 446 Rowland verdict, special return as is or the Christian, Cal.Rptr. Cal.2d (b) above, the contemplated by subsection (1968)). the amount the award court shall reduce justifications from these We believe negligence proportion to the amount case: apply ease in this we the Pickard injury, person for whose attributable difficulty applying courts observe that made; recovery pro- is damage or death consis- danger defense the known or obvious proportion greater vided that the said incompatible tently, and that the defense person negligence or in than tort law policy modern values that with the person, aggre- ease of more than one Furthermore, we believe to effect. seeks persons against gate of such danger defense is the known or obvious sought, the will whom court legislative intent behind inconsistent judgment the defendant. enter comparative negligence our statute. state’s (d) instruct re- shall majority finally, we note that And comparative negligence garding the law have abol- consider the states to appropriate. where of the known or obvious ished the use § 663-31 The statute is struc- HRS complete to an as a bar (a) follows: tured as subsection statute recovery. *6 negligence that a mandates will plaintiff, completely bar for that Danger De- A. Known Or The Obvious greater long negligence as her was not than Legislative Frustrates The In- fense (b) requires a the defendant’s. Subsection Negligence Comparative Behind tent jury find- verdict from the special form Steigman’s this question, court To resolve damages ings the total and the amount negli- comparative interpret our state’s must party. negligence of each Subsec- percent statute, gence The HRS statute. (c) administering in the guides court tion the provides: (d) permits recovery, and the subsection (a) Contributory negligence shall not bar jury comparative to instruct the about court by any person or recovery in action appropriate. plain negligence where legal representative to recov- person’s the expressly the does not language of statute resulting damages negligence in er involving actions known or include exclude injury property, person in if death or then, dangers. in Our task order greater than negligence was not the Steigman’s question, is to effect the answer person the in the case of negligence of legislative intent the statute. Hawaii behind negli- person, aggregate one the more than Ass’n, Lo- Employees AFSCME Government recov- gence persons against whom of such Lingle, 124 Hawai'i at cal AFL-CIO v. any damages allowed ery sought, but (2010). P.3d at 6 proportion to the shall be diminished in legislative pur- This court examined the negligence attributable the amount of negligence stat- pose comparative behind damage or death person injury, for whose Wong v. past in a In Hawaiian ute case. recovery made. Tours, Ltd., parents the estate Scenic (a) (b) any action to which subsection Wong brought Wesley Leong suit Wai court, nonjury in a applies, this section County of against City Honolulu or, trial, findings make shall (“the City”) Scenic after and Hawaiian Tours trial, special jury jury shall return by a bus. Wesley fatally was struck school shall verdict which state: P.2d trial, that Hawaiian damages At determined The amount fault, percent at eighty Tours was been there Scenic recoverable fault, City Wesley percent extremely was six at was she in confronting cautious percent danger, fault. Id. and a fourteen at defendant not be held City appealed, arguing at 931. if he high liable even knew the had a Wesley any damages could injury nothing not recover likelihood lead to but did City found it less because the to be correct it. 36 n. 586 P.2d at n. James, Torts, Wesley. supreme (citing Harper at fault than Id. The court s 27.13 (1956)). that in noted the time between the accident Legislature appeal, and the had modified The known defense is permit explicitly plaintiff the statute to opposition person’s “in average con- against joint
recover
tortfeasors if
com-
their
cept
justice”
because it mandates that a
greater
negligence
plain-
bined
than
plaintiff
go uncompensated
inju-
must
for her
tiffs.
Id. at 402
n. 1.
n.
P.2d at 931
ries,
precaution
if she
even
acted with
However, the version of the statute that was
did
defendant
not. The defense is incom-
place
at the
time of
accident contained
patible
comparative
with the
negli-
state’s
provision;
no such
therefore
court inves- gence
statute because it
denies
tigated
legislative
intent
stat-
behind the
opportunity
compared
to have her fault
City’s appeal.
ute
order to
resolve
Id.
such,
the fault
As
defendant.
As this court wrote:
known or obvious
defense conflicts
legislative
[t]he
modification of the doc-
Legislature
with the intent of the
contributory negligence
trine of
in 1969
apply comparative negligence
courts
in the
sought
phase
temper
of the common place of “unfair” common
doctrines.
law
contempo-
law deemed inconsistent with
rary
Danger
purpose
notions of
Its
was B. The Known Or
fairness.
Obvious
De-
partly
to allow
at fault in
Yields
one
an accident
fense
Inconsistent Results
resulting
to be recompensed for
reported
applying
There
few
cases
the damages attributable to the fault of known
or obvious
another if the former’s
however,
cases,
jurisdiction,
among those
primary
of the accident.
cause
difficulty
applying
apparent.
the defense is
Informing
example,
off
below,
P.2d at
mary adjudication.
Id. at
sustaining injury.
In that
feet
Id.
dissent, Judge
assigned
ease,
Spencer,
160. In
reversed the trial court’s
this court
state,
vacancy,
that he would
holding
wrote
judgment for the
that the state
reason
summary judgment be-
injury.
grant
affirm
liable for the
Id.
is a
argu-
cause
towel bar
known or obvious
crossing a two-foot seawall did not. Defining danger in the ease at bar Outrigger involving presents challenge. a known a similar Another case or obvious lanai, danger, Amfac, Bidar 669 seemed to define as wet (1983), being people recognize quite P.2d 154 similar the case at most difficulty knowing dangerous, argued that it is potentially bar illustrates *8 by Steig- not for suffered danger the known or obvious test liable whether Bidar, to known plaintiff, elderly man when chose encounter that applies. she tourist, guest danger. defined the dan- was a of a hotel on Maui. Id. at or obvious Plaintiff gerous lanai. P.2d used condition as surface of the at 157. She the toilet bathroom, the lanai’s surface hotel and then tried to use the She offered evidence that adjacent slip wall to did the level of resistance estab- towel bar mounted on not have standards, industry and that up. The tore lished hotel help pull herself Id. towel bar wall, glossy coating it with a plaintiff and down to was finished loose from fell made to tell was wet. ground, fracturing hip her and Id. it difficult the surface wrist. argued slippery that a lanai surface filed and the hotel moved for Plaintiff Plaintiff suit condition, be- summary judgment, arguing that had no was a known obvious it capable sup- average person not determine provide to towel rack cause an could would walk on the guest’s weight. dangerous Id. how it be to porting Steig- disagreed lanai. court with agreed The trial P.2d at 157. The trial Out- argument. man’s The court stated that summary judgment. granted reversed, rigger to known or obvious was entitled appeal at 158. On this court danger because of “the fact it holding liability turned on the foresee- defense raining, and the knew it was our ficulties courts and courts other raining.” jurisdictions experienced applying have defense, the known or we obvious believe Defining known or obvious as a prudent prevent it would be Hawai'i courts balcony wet leads to an antithetical result. embedding problematic further rains, exterior When surfaces become into doctrine our ease law. wet, industry requiring standards non- slip provide surfaces are established a safe Danger C. The Known Or Obvious De- Allowing environment even when wet. land- Incompatible fense Is with Public Pol- escape liability injuries owners caused icy guests slip when on an untreated surface Mississippi Supreme analysis The Court’s wet—despite because the surface was known or obvious and tort fact that protect peo- the standards exist to policy is instructive. As that court ex- ple, should the surfaces become wet—is plained: counterproductive. provide This would Court discourage unreasonably This incentive for landowners maintain premis- dangerous fostering conditions rather than compliance safety es standards even them their obvious forms. It is anoma- dangers when non-compliance lous to find that Also, a defendant has readily foreseeable. provide reasonably premises safe and at
unable to premis- recover when while deny plaintiff recovery the same time state, were in dangerous es their most even duty. from breach of that same they possibly when could have known party position in the best eliminate comply do surfaces with ordi- dangerous condition should be burdened nary safety standards. responsibility. dangerous with that If a past As cases the case at bar illus plaintiff, condition is obvious to the then trate, surely it is the defendant as presents many difficulties to courts. We defendant, well. The accordingly, should note also that courts of our sister states have danger. alleviate the similarly struggled, and de therefore the Tharp Bunge Corp., v. So.2d fense significant has come under criticism. (Miss.1994). Kentucky Supreme Court P’ship, ERP Operating See Woodard v. Ltd. agreed recently Mississippi’s analysis. (E.D.Mich.2005) F.Supp.2d They Mississippi’s reasoning sup- cited (“The ‘open and obvious’ doctrine is one port abolishing known or obvious litigated Michigan premis the most areas of comparative negli- defense in favor liability Despite es law. that Michi gence good policy Kentucky “makes sense.” gan courts decided hundreds of cases McIntosh, River Medical Center v. doctrine, involving applica inconsistent (Ky.2010). S.W.3d 391-92 This is be- tions of the resulted in doctrine have a con predicated upon cause a landowner’s “is (footnote omitted); fusing jurisprudence.”) knowledge superior concerning the dan- [his] Cruises, Inc., Rogers Spirit 195 Misc.2d gers property,” places land- 2003) (App. 760 N.Y.S.2d Term position anticipate owner a better (characterizing the rule as “ancient” and “oft- prevent injury. take action to at 392 criticized”); Co., Bjornson Groleau Oil *9 Co., (quoting Janis v. Nash Finch 780 Inc., 763, (N.D.2004) (Mar 676 N.W.2d 773 497, (S.D.2010)). N.W.2d 502 J., ing, dissenting part concurring (“Therefore, duty’ part) Approaching policy the common law ‘no torts a from ‘open or perspective germane jurispru rule and obvious’ doctrine has en to Hawai'i dence; written, dured much criticism both from courts and as this court has “tort law is commentators.”); City primarily designed poli O’Donnell v. Cas to vindicate social 1278, (“This Inc., (Wyo.1985) per, cy.” Enterprises, 696 P.2d 1282 Francis v. Lee 89 234, 239, 707, applica court has not been in its P.2d consistent Hawai'i 971 712 Keeton, al., Page danger compar (citing tion the obvious rule since et Prosser and W. (5th 1, negligence.”). acknowledge on the 5-6 ative We the dif Keeton Law of Torts 142 omitted). 1984)) a does not (emphasis danger character of auto- One social obvious
ed. liability.3 through system the tort a policy matically enacted absolve landowner plaintiffs. v. compensating injured analysis typically Fonseca The one of two follows Co., Const. 513 54 tacks. Pacific 156, (1973) (“a premise 160 basic of tort P.2d The that have the defense courts found give protection persons adequate law is to incompatible comparative through injured the unreasonable conduct analyzed have the known obvious charac or others....”). complete enacted as a When danger component either as a teristic of bar, precludes the known obvious defense or duty, as a factor to of the landowner’s recovering from weighing party’s negli when each consider landowner, oppos- even unreasonable states, gence. following The former either Second, important policy. tort es this social (Sec their own statutes the Restatement prevent injury possible law seeks where ond) Torts, held the known obvious by providing negligent incentive to deter complete defense is not bar Inc., Biological, See Cutter acts. Smith v. known or characteristic because the obvious (1991). 416, 717, 435, P.2d 727 72 Haw. 823 danger always defeat land Allowing escape liability as a landowner to Illinois4, duty. owner’s These states include law, has matter of when he not reason- even Missouri7, Michigan6, New Mexi Kentucky5, provides ably premises, maintained his co8, Utah9, and Tennessee10. latter such incentive. We therefore conclude states held that factfinders should consider policy public considerations of counsel quality obvious as a known or against permitting the continuation of the fault, component comparative entirely known obvious defense. the defense. These states include abolished 11, Texas14, Mississippi12, Oregon13, Idaho Abolishing The Known Or Obvious D. Wyoming15. Defense, Danger Hawai'i Joins The Majority Of That Have Consid- States Analyzing 1. Or The Known Obvi- States Question ered Aspect Danger An ous As Defense Of jurisdiction Hawai‘i is not the first to abol- Duty the known or Of ish obvious defense. directly that have the known or the states have considered Some states struck complete bar comparative the advent of defense as a how incompa- liability held that a bar is negligence modified the or obvious have defense, majority duty. typ- held that the known or tible landowner These states Beckstead, 263, (Utah minority 116 3. A consider the 9. v. P.3d 267 states to issue Hale 2005). retained known or recovery. complete bar See O’Sullivan v. Shaw, 201, 951, 431 726 N.E.2d 956-57 Mass. 34, Savannah, City 10. S.W.2d Coin v. 966 43 (2000); Harrington Enterprises, Syufy v. 113 Nev. (Tenn.1998) (overruled grounds). on other 246, 1378, (1997); Armstrong P.2d v. 931 1380 Co., 79, Inc., Buy Best 99 Ohio St.3d 788 N.E.2d 588, Taylor, 11. Harrison v. 768 115 Idaho 1088, (2003). 1089 1321, (1989). 1326 132, Corp., K 143 4. Ward v. Mart 136 Ill.2d 288, 223, (1990). 228 Ill.Dec. 554 N.E.2d (Miss. Bunge Corp., 12. Tharp 25 641 So.2d 1994). McIntosh, Kentucky Medical Center v. 5. River (Ky.2010). S.W.3d Wells, 13. Woolston Or. 149-50(1984). Inc., Corp., Lugo v. Ameritech Mich. N.W.2d Inc., Park, Highland 14. Parker v. S.W.2d Niehaus, (Mo. Harris v. S.W.2d 1978). (Tex. 1993). *10 City 15. Casper, P.2d 696 Corp., O'Donnell Klopp v. 113 N.M. Wackenhut (1992). (Wyo.1985). ieally case, adopt analysis injury. the plaintiffs Restatement Id. In this the court (Second) Torts, provides: which believed it was foreseeable that a customer may injured by post, be the concrete so the possessor A of land not liable to his duty prevent injury. store had a such Id. physical
invitees for caused harm to them activity or condition on the land analysis The court’s turned on the notion danger them, whose is known or obvious to ability plaintiff recognize of a a possessor anticipate unless the should danger depends heavily on the circumstances despite knowledge harm or obvious- plaintiff danger. confronts ness. As the court noted: (2) In determining possessor whether perhaps danger there is no condition the anticipate should harm from a known or which is so that all obvious customers un- danger, that the fact invitee is der necessarily all would circumstances see land, public entitled make use of or of and realize the in the absence of utility, facilities of public a is a factor contributory negligence, and partic- this is importance indicating the harm ularly true if principle the further so often anticipated. should repeated accepted that the customer or business invitee is entitled to assume that (Second) Restatement Torts 343A premises reasonably are safe for his framework, Under this the fact that use. danger is a known or obvious does not elimi- Instead, liability
nate as a matter law. Keeton, (quoting Page Id. W. Person- duty, comparative negli- landowner has a and Injuries Resulting Open al and Obvi- gence principles apply, when the Conditions, landowner ous 100 U.Pa.L.Rev. anticipate (1952)). harm from a known or Thus, obvi- the fact that a condition is ous on his land. known or obvious is not an absolute bar to recovery, and jurisdic- instead courts of that The case of Mart Carp., Ward v. K engage thorough analysis. tion must a more Ill.2d Ill.Dec. N.E.2d 223 (“Whether Id. at 299. in fact the condition (1990), Ward, provides illustration. adequate pres- itself served as notice of its plaintiff exiting department a K Mart precautions ence whether additional were carrying large just pur store item he had required satisfy duty the defendant’s post chased when he walked into a concrete questions properly to the left trier of fact. directly located outside the store’s exit. Id. may The trier of fact also consider whether trial, at 224. The case went and a plaintiff guilty plaintiff, delivered a verdict in favor of the contributing part injury, whole or to his damages but reduced the 20% to account for adjust accordingly.”) the verdict plaintiffs comparative negligence. However, judge jurisdictions court Other circuit en share Illinois Su judgment tered for the defendant preme notwith Court’s view that the known or obvi verdict, standing jury’s finding may complete that the ous defense not be bar to a claim, store owed the but rather that a landowner post open protect against, and obvious. Id. at 224. A has a affirmed, for, appellate fractured injuries court held liable due foreseeable to a plaintiff appealed Supreme danger. Kentucky Court of known or obvious River McIntosh, Id. supreme Illinois. court reinstated Medical Center v. 319 S.W.3d verdict, (Ky.2010) jury’s open (“By concluding and held that the obvious, open character of did we not auto was can conclude that matically negate plain falling invitee was negligent store’s victim to it, tiff. Instead of an inflexible rule that unless for ‘to some reason a reasonable plaintiffs, advantages position denied to all the man of [en analysis countering outweigh held danger] that a more nuaneed necessary, apparent necessarily does the circumstances of risk.’ But this possessor to determine K Mart mean that the land was not order whether could also anticipated pole negligent fix failing would cause unreasonable *11 obvious, City’s granted and place. open Under rule of was and danger in first our summary judgment ground fault, on the be motion for comparative the defendant should City duty owed no to warn of an responsible negligence, own if held for his (citation danger. appeal, Id. at On omitted); obvious City v. Sa any.”) Coin of (over (Tenn.1998) vannah, Supreme Wyoming of held that Court this S.W.2d (“As error, and reasoned that: any negli grounds) ruled on other action, a risk is unreasonable gence we think [tjhe by City may negligent have been gives rise to act with due care and streets, maintaining and properly probability gravity and if the foreseeable City, any, negligence of the if should be by out posed harm a defendant’s conduct appellant. compared negligence with the en weigh upon the defendant to burden appellant obviously Because knew of pre gage in alternative conduct would he dangerous condition of the road analysis, if the Applying vent the harm. negligent, have been but that very well foreseeability by gravity posed of harm determine, fact to the trier of conduct, ‘open even if the defendant’s impor- degree negligence is all relative obvious,’ outweigh the burden the de comparative negligence. under Gone tant conduct, the engage fendant to in alternative days are when a scintilla with defendant has a to act reasonable by plaintiff recovery. will bar principles ap fault comparative care and the jurisdictions 1283-84. Courts of other ....”) (citations omitted); Beck ply Hale v. agreed that defense is irreconcilable (Utah 2005) (“The stead, 116 P.3d negligence. comparative Woolston v. danger rule in open particular and obvious Wells, 297 Or. pos simply defines the reasonable care that (“Instructing has that defendant land invitees. sessors of must show toward plaintiff, liability because of actions of the definition, possessor land Under that only is liable if a reasonable defendant against dangers protect must invitees of person entering the land not realize a unaware, they may forget, may protect against or would himself reasonably despite the encounter obviousness it, purpose instituting frustrates danger.”) fault.”); system comparative Parker summarize, following the Re- Inc., To states Park, Highland 565 S.W.2d statement, plaintiff in- (Tex.1978) fact that a (“[Comparative Negligence] re- jured due to a or obvious does known placed system victory the harsh of absolute claim; automatically plaintiffs bar defeat of an total action doctrines states, retains those landowner voluntary contributory negligence, as as- was fore- risk, sumption of the included doc- also seeable. no-duty. trine The survival [...] known appreci- no-duty (plaintiffs knowledge Analyzing ation)
2. States
The Known Or Obvi-
incompatible
a total bar is
with the
Danger
As An Element
ous
negli-
legislative purpose
comparative
Of
Defense
Comparative
statute.”).
Fault
gence
jurisdictions have
where the
or obvious dan-
Other
abolished
states
known
abolished,
entirely
ger
has been
defense
comparative
the known or
character of
incompatibility
due to its
considers
many factors
negligence.
considered
the Su-
as one of the
rele-
The case
determining
Wyoming,
party’s comparative
vant
each
preme Court of
one
the first to
Orleans,
doctrine,
Joseph City
New
provides
apt
negligence.
illustra-
abolish
City
(La.Ct.App.2003) (“Simply
Casper,
In ODonnell v.
696 842
tion.
So.2d
stated,
(Wyo.1985),
open and obvious nature of the
that court considered
weighed
inju-
merely another factor to be
motorcyclist
the case of a
who sustained
defect is
balance.”);
High-
risk-utility
Parker v.
motorcycle slipped
loose
in the
ries when his
(Tex.
Park, Inc.,
City’s
land
565 S.W.2d
gravel on one of the
streets.
1978) (“The
an actor’s con-
gravel
reasonableness of
The trial court found
*12
duet
will
ages
under the circumstances
be deter-
fault
attributable to the
of another
principles
contributory negli-
mined under
negligence
primary
former’s
was not
gence.”); Tharp
Bunge Corp.,
641 So.2d
cause
Applying
accident.” Id.
(Miss.1994) (“We
20, 25
abolish
so-
now
logic
precludes
absolute
of the Restatement
‘open
called
and
apply
obvious’ defense and
injured plaintiff
an
based on
comparative
our true
negligence doctrine.
Judge’s
danger
conclusions that a
was
jury
negligence
found that there
injury
known
obvious and that
was not
hand;
judge
the case at
the trial
erred
oppor-
foreseeable. This would not
an
afford
open
construing the
and
a
obvious defense as
tunity
plaintiffs
compared
for the
fault to be
complete
mitiga-
when
really
only
bar
a
to the fault of the landowner.
In precluding
of damages
comparative
tion
on a
negligence
comparison,
such
the Restatement
not
comparative
basis
negli-
under
state’s
[the
permit
plaintiff
recompensed
“to be
for
statute].”).
gence
damages
attributable to
the fault
an-
other if the former’s
was not the
In summary, in states where the
known
primary cause of the accident.”
completely
obvious defense has been
abol-
ished,
jury
need
finding
not make a
Second,
view,
in rejecting the Restatement
regarding
danger
whether the
was known or
join
we
the states that have
abolished
obvious because such a determination does
part
defense
operate
an
as
absolute
to a
bar
proper
affirm the
role of the
factfin-
Instead,
recovery.
a
all
consider
der. Those states
noted
the determina-
injury,
the facts and
circumstances
and
tion of whether the known or obvious
apportion liability by comparing the
fault
applied
had
been
element
injured plaintiff.
landowner
analysis, and therefore had
fallen
Many
expressed
judge.
states
concern that
E. The
Or
Known
Obvious Defense No
Is
judge
a
would decide such a fact-intensive
Longer
Liability
Viable
Premises
example,
Taylor,
issue. For
Harrison v.
Actions
(1989),
115 Idaho
termits assessment opinion. with proceedings consistent this in premises the a for failure to maintain condition.”) reasonably safe ACOBA, by Concurring Opinion J. In Ha these concerns. We share by I concur in the outcome reached the waii, duty question a the is a existence case, majority in but for reasons set this Inc., Amfac, law. Bidar v. view, my the known or forth herein. 154,158 Accordingly, if (1) incompatible danger obvious defense is or obvious court were to retain known comparative negligence stat- with Hawaii’s danger defeating landowner’s defense as totally bars a recov- ute duty, judge it would fall to to decide ery contributorily negligent, if the applies. the defense That result is whether (2) comport general and with the does known or undesirable. As our review of the by care owed of reasonable landowner shows, the characterization cases occupier premises. who or to those enter the danger known or obvious is fact-inten danger Consequently, the known or obvious in depends sive and circumstances abrogated. Additionally, defense must be We such an volved each case. believe case is remanded for a new inasmuch as this jury, for the assessment should reserved trial, I hold that the circuit court would also minds unless reasonable could not differ. (the court) circuit abused its first (noting at P.2d at See id. allowing, via discretion in cross-examination by must of breach be resolved plaintiffs experts, admission multi- jury if the is left with “a definite im hearsay by ple records from reviewed pression that reasonable minds could draw experts but admitted evidence. and different inferences the facts arrive conflicting conclusions on relevant factual I. issues.”) for Application In her Writ of Certiorari Petitioner/Plaintiff-Appellant (Application), CONCLUSION IV. (Petitioner) argues R. Steigman Michele or obvi We hold known (1) danger the known or obvious defense “is danger with the ous defense inconsistent negli- comparative inconsistent Hawaii’s compara legislative intent behind Hawaii’s regarding law gence standard and landowner negligence statute. known or obvi tive liability” should not be defense yields inconsistent re ous defense retained context owed policy incompatible sults occupier an owner or of land to maintain his underlying values Hawaii’s tort law. Ac property.1 her [Id. 6-8] or obvi cordingly, we hold that longer viable in ous defense is II. reject Hawaii We Restatement’s re argument, As to first our com- Petitioner’s in deter tention of the doctrine as factor statute, § parative negligence HRS 663-31 mining duty, and instead landowner’s (1993), 1969, provides in relevant enacted of this state consider hold courts part as follows: any known obvious characteristics bar; Contributory negligence no com larger comparative in the as factors findings parative negligence; negligence analysis. Intermediate obvious,' Application presents property 'known which are 1. The filed Petitioner negli- following question: "Whether in a warranted on the whether such instruction was gence specially action instructed that presented facts at trial herein.” not liable hazards on its [a] defendant is verdicts, (a) special Contributory negli comparative with HRS 663-31 because the gence by any ry, damage gence resulting person son, sentative in son attributable to any damages allowed shall be diminished sons (Emphases proportion greater or in the case more than one against shall not bar person aggregate negligence property, than or death added.) whom recover to the amount of or the person recovery death or recovery person’s such Petitioner damages for negligence is is made. whose legal sought, negligence contends repre action negli inju per per per but [2] while the known known or obvious precludes defendant negligence analysis applies “only after dant has not been found to be cording to Respondent, defendant any finding of comparative case, and, The issue the court as a is found to have been result, negligence analysis is arose because in a defendant’s gave danger of care on plaintiff, cannot following “[w]here defense. conflict thereby negligence. *14 negligent, part instruction negligent,” the defen- barring instant moot,” Ac- partly the statute “allows ‘one at fault defense, danger on the known or obvious in resulting an accident to be (Second) fashioned after Restatement recompensed damages for the attributable (Restatement) (1965)3 § Torts 343A and ” (Quoting Wong the fault of another.’ comment b to the same section4: Tours, Ltd., Hawaiian Scenic 64 Haw. operator A hotel is not liable its (1982).) Ac guests physical harm caused to them for Petitioner, cording to or the known by activity any or condition the hotel danger doctrine is inconsistent HRS danger whose is known or obvious to § complete 663-31 because it serves “as a them, operator unless the hotel should an- recovery contributory bar to based on [the] ticipate despite knowledge the harm such negligence plaintiff.” (Citing [of the] or obviousness. Price, Young 47 Haw. n. (1963).) n. 11 only The “known” word denotes not knowledge hand, of the existence of the condition On the Respondent/Defen- other itself, activity dant>-Appellee Outrigger Enterprises, Inc., appreciation but also dba Ohana Hotel involves. (Respondent), Surf main- it Thus the condition exist, tains that doctrine activity only is not inconsistent not must be known § provides § part: 2.HRS 663-31 continues as 343A follows: 3. Restatement in relevant (b) (a) any action which subsection (1) Dangers. § 343A. Or Known Obvious court, nonjury applies, in a section possessor A of land is not liable invitees trial, or, findings jury shall make of fact by physical harm caused to them activ- trial, special shall return a verdict ity or condition the land whose is which shall state: them, posses- known or unless (1) damages The amount of the which would anticipate despite sor should the harm such have had been recoverable there been no knowledge or obviousness. contributory negligence; and degree negligence party, each paragraph 4. The second of the instruction is al- expressed percentage. aas most comment b verbatim to Restatement (c) making findings Upon of the § 343A verdict, special or the return as is contem- provides: (b) above, Comment b to Restatement 343A plated by subsection the court shall only The word "known” denotes knowl- proportion reduce the amount of the award edge of the of the or activi- negligence existence condition the amount attributable to the itself, ty appreciation but of the it person injury, also damage for whose or death re- made; activity involves. the condition covery provided pro- Thus must if the said exist, only portion be known to but it must also be greater negligence than of the recognized dangerous, proba- person it is person, and or in the case of more than one negligence bility gravity aggregate persons harm threatened must against sought, appreciated. "Obvious” means that both whom court judgment apparent will enter the condition and the risk are to and the defendant. (d) man, by regard- recognized shall would be a reasonable court instruct the visitor, ing position exercising ordinary comparative negligence the law where appropriate. perception, intelligence, judgment. ton) plaintiff argued recognized that it is hotel. The it must also be
but
gravity
court’s
on the known or obvious
probability
and the
instruction
dangerous,
“prejudicial”
error be-
appreciat-
harm must
doctrine
of the threatened
supported
cause the instruction was
means that both the condi-
ed. “Obvious”
adduced
trial.5
warranted
the evidence
apparent
to and
and the risk
tion
man,
P.2d at 640.
Because
recognized
would be
reasonable
nothing
suggest
record to
there was
guest, exercising
position
fall
steps
that “the
where the
occurred con-
intelligence,
judg-
ordinary perception,
danger[,]”
stituted an obvious
the Gelber
ment.
prejudi-
the instruction
determined
added.)
(Emphasis
or suggested]
“intimate[d]
cial
danger presented
at [Sheraton’s]
A.
premises might
been obvious
[the
comparative
adopting
Prior to
plaintiff] might
have been contribu-
therefore
jurisdiction
regime, the cases in our
330, 417
torily negligent.” Id. at
P.2d at 640
*15
or obvious
seem to have viewed
(internal quotation marks and
omit-
citations
barring any recovery be-
danger defense as
ted)
added).
(emphasis
contributory negli-
cause of
However,
negligence
comparative
our
stat-
plaintiff brought
gence.
Young,
In
suit
“[cjontributory neg-
ute
that one’s
mandates
fell over
tripped
green
after
hose
she
ligence
recovery in any
shall not bar
action”
by
placed across a sidewalk
the defendants.
long
“negligence
person’s
so
was not
plaintiff
This court concluded
was
greater
negligence
person
than
eontributorily negligent
“one who
person,
in
than one
the ease of more
fails to see and avoid
obvious obstruction
aggregate negligence
persons against
of such
just
plain sight
in
ahead in
is
or on sidewalk
sought[.]”6
§
recovery
whom
HRS
663-
contributory negligence
matter
guilty of
as a
31(a). Thus,
the known or
unlike
317,
of
able
11,
Id.
n.
388 P.2d
209 n. 11
at 318
at
statutory language
Although the
of HRS
added).
(emphasis
unambiguous,
§
plain
663-31
we
legislative history
Corp.,
In
v.
49 resort
to confirm
Gelber
Sheraton-Hawaii
638,
327, 327,
(1966),
of the statute.
E & J
interpretation
417 P.2d
See
639
Lounge
Liquor
plaintiff brought
Operating
Co. v.
Comm’n
damages
suit
connec-
Honolulu,
320,
City County
118
injuries
tripped
tion
sustained
she
&
Hawai'i
after
(2008)
335,
432,
steps
(“Legislative
447
descending
and fell as she was
P.3d
(Shera-
history may
interpreta-
to confirm
the main entrance of the defendant’s
used
that,
objected
portion
where
plaintiff
to the
6. "It
is well-established
a statute
‘shall,’
stated,
provision generally
contains the word
"And
enti-
instruction which
the owner is
mandatory.”
will be
Saito,
construed as
that the invitee will see and ob-
tled to assume
Malahoff
168, 191,
401,
111 Hawai'i
P.3d
through
which would be
rea-
serve that
(citations omitted);
(2006)
see also
v. Bd.
Leslie
sonably expected
ordinary person’s
of an
use
Hawaii,
384,
Appeals County
109 Hawai'i
give
There is no
the invitee notice
senses.
393-94,
(2006) ("Where
126 P.3d
1080-81
Gelber,
danger."
49 Haw. at
an obvious
"shall,”
provisions
its
a statute
the word
contains
added).
(emphasis
legislature contributory noted rule of “An exception that the the defense negligence contributory negligence “bar[red] law common he, party if degree, judi- it is shown that doctrine of last clear chance—a doctrine injuries.” cially mitigate contributed H. Stand. created the harsh results Journal, Rep. Comm. No. contributory negligence.” in 1969 House (citing Pros- ser, (3d 1964) § HRS 663-31 was to “re- enacted Law Torts at 438 ed. Torts]). place Prosser, [hereinafter, the common law doctrine of contributo- Under that ry doctrine, negligence comparative negligence if the negligent, even legislature perceived statute” because the his or her defeat recov- ery contributory negligence rule of be unfair “to it could be shown defendant opposition average person’s and in had the last clear avoid chance to justice.” concept explained by plaintiff. Id. It was See id. legislature comparative negli- “[a] Rapoza acknowledged “[njothing in gence rectify law would this unfairness language legislative history of HRS providing jury compare explicitly § 663-31 abolishe[d] the last clear *16 fault of the defendant with the fault of the However, chance doctrine.” Id. ob- the ICA plaintiff, any, recovery if down scale severely served that the doctrine had “been negligence the amount of to attributable being criticized for harsh as well as archaic plaintiff’; “[ojnly if the evidence showed light proximate of modern ideas of eausa- plaintiff great the fault of the was applied particular tion[J” because it in a defendant, greater than that of case, “the entire burden back [wa]s shifted recovery be barred.” Id. 778-79. pay onto defendant who must then danger plaintiffs despite
Insofar as the known or
full
damages
amount of
entirely precludes recovery
plaintiff
defense
negligent.”
because
that the
Id.
that,
plaintiffs contributory
it
negligence,
is
the “last clear
survived
chance” doctrine
doctrine has been
doctrine,
§
Rapoza
HRS
663-31. See id. The
court
the known or obvious
explained
adoption
contributory
long-
“[pjrior
negligence,
of variant of
is no
663-31,
§
negligence
HRS
all claims of
er viable. Under HRS
subject
completely
Hawai'i
law
not
sim-
were
the common
is
barred from
negligent.
contributory negligence[,]”
ply
defense
which
because he or she
Accord-
be-
doctrine,
distinctions
the common law
chance
HRS abolished
ingly, as with the last
(licensee/invitee)
persons
tween
classes
has
the known or obvious
§ 663-31
rendered
duty
by an owner or
regard
owed
and it
there-
danger defense obsolete
must
prem-
occupier
land to those who enter
abrogated.
court’s
instruction
fore be
stated,
then,
ises.
“We believe
defense,
This
constituted reversible
on this
classes of
law distinctions between
common
error.
logical relationship to the
persons have no
safety
for the
exercise of reasonable care
III.
Pickard,
According
“‘[a]
others.”
Id.
A.
does
less wor-
man’s life or limb
not become
argument,
second
In connection with her
nor a loss
thy
protection
law
less
obvi-
that the known or
compensation
Petitioner contends
the law be-
worthy of
under
retained
upon
land of another
ous
cause he has come
respect
duty
owed
an owner
permission
or with
but
permission
without
“
”
‘[rjeason-
prem-
enter
occupier of
those who
purpose’
land to
without a business
Petitioner, although one
vary
According
ordinarily
ises.
their con-
people
able
do not
”
to warn
depending
matters[.]’
duct
doctrine,
dangers
the fact
under
Rowland
(quoting
P.2d at 446
Christian,
Cal.Rptr.
known or obvious should
that a
69 Cal.2d
(1968)).
of a landowner or occu-
obligation
obviate the
rectify
land to
or correct such dan-
pier of
court,
Thus,
Pickard
in the view
however,
suggests,
gers. Respondent
“
upon the
‘[t]o focus
status
retained
the doctrine should be
licensee,
trespasser,
or invitee in
party
aas
defen-
specifically concerns the existence of a
whether
order
to determine
care,
must
be estab-
dant’s
care,
contrary
has a
landowner
part
plaintiff’s prima facie ease
of a
lished
our
social mores and humanitarian
modern
analysis
comparative
before
”
Rowland,
Cal.Rptr.
(quoting
values.’
performed.
can
*17
568).
97,
In
at
accordance
the
443 P.2d
While,
noted,
juris-
eases in
some
this
occupier
court held
“an
of
foregoing, this
that
the
in terms
have discussed
diction
duty
land
to use
care
the
has a
reasonable
barring
plaintiffs
on account of
of
reasonably anticipated
safety
persons
all
of
contributory negligence,
the
the
of
upon
premises, regardless
to be
the
the
applied
terms of the
defense has also been
135,
the
Id. at
legal status of
individual.”
by
occupier
land to
duty owed
an owner or
of
added).
(emphasis
452
at 446
P.2d
respect
premises.
who enter the
With
those
Then,
Transp.,
Dep’t
v.
60
duty,
in Friedrich
occupiers’
landowners’
in Pickard
to
or
of
(1978),
32, 33,
1037,
Honolulu,
134,
1038
Haw.
586 P.2d
City
51 Haw.
County
v.
&
of
statute,7
(1969),
445,
part by
135,
superceded in non-relevant
452 P.2d
this court
Friedrich,
adjacent
strong current in the ocean
to
In
stated:
break or
a
this court
public
park
conditions are ex
beach
these
if
government
upon
maintains
Where the
land
beach,
typical
specific
tremely dangerous,
public
to
which the
are invited and entitled
injury
they pose a risk
serious
or
and if
enter,
reasonably
"may
assume
mem-
it
that
190,
(Quoting
Act
Sess. L.
death.'”
§
public
by
will not be harmed
bers
added.)
435.)
2(a),
(Emphasis
According
at
extreme,
dangers
which are
Bhakta,
plain language
of section
"[u]nder
to
2(a)
any
person exercising ordi-
which
reasonable
190],
required to warn
the State is
[of Act
attention,
intelligence
nary
perception, and
(1)
dangerous’
‘extremely
conditions
that
ocean
expected
(2)
could be
to avoid.”
parks,
public
if these condi
at
beach
occur
36-37,
(quoting
beach,
at
Haw. at
586 P.2d
typical
specific
for the
tions are
they
43A)
§
g
(emphasis
to
comment
added).
Restatement
present a risk of serious
death.”
Maui,
County
omitted).
109 Haw
In
v.
Bhakta
that "in
(emphasis
Bhakta noted
Id.
943,
(2005),
198, 214-15,
190,
legislature expressly
124 P.3d
959-60
promulgating
ai'i
Act
1996,
explained
provided
are
was
that Act
enacted
the State and counties
it
dangerous
operates
duty
county
subject
provides that
the State or
other
to warn
where
to
"
conditions,
provided
duty
park,
‘other than
public
‘shall have a
natural ocean
in
beach
”
(brackets
original) (quoting
dangerous
M.
public
[Act 190.]’
specifically of
shore-
warn the
seemingly
except
circumstances,9
was
qualified.
specific
Pickard
for certain
id.
ease,
plaintiff brought
36-37,
suit
recover for
at
at
586 P.2d
Because
injuries, leaving
paralyzed
him
from the neck
obvious,
slipping
pier
off
down, sustained
fell into
when he
shallow this court concluded that the State did not
Hanalei,
pier
water from a
State-owned
duty
plaintiff.
breach its
of care toward the
Id. at
at
Kauai.
586 P.2d
1038. At the
1041;
at
Id.
586 P.2d at
see
also Harris
accident,
time
pier
a deteri
State,
Haw.App.
623 P.2d
orated condition. Id. at
557,
According to the
defense.
P.2d at
623
ICA,
“if the
of fact determines that
should be overruled insofar
finder
Friedrich
falls
the known or obvious
occupier
the hazard
within
held
a landowner or
owes no
doctrine,
care,
[danger]
compara-
respect
duty
known or obvi
reached as
defen-
tive
is never
reasonably anticipated
to those
dangers,
ous
duty
plaintiff,
no
and ac-
dant owes
premises,
no matter the cir
enter one’s
cordingly,
negligent as matter of
cannot be
cumstances.
words, “[i]n
In
the absence
law.” Id.
other
First,
appear
to have de
Friedrich
duty
plaintiff,
legal
there is
of a
owed
parted
governing
from the
reasonable care
compare
§
under
negligence to
HRS 663-
forth in
standard set
Pickard.
Pickard
31.” Id.
respect
sought
to eliminate distinctions
occupier duty, making
clear that
owner or
B.
only
there
one
of care owed
standard
However, assuming arguendo,
occupier of
care
owner or
land: “reasonable
defining
danger doctrine in
known or obvious
persons reasonably
safety
of all
antic
owed
the landowner does not
Pickard,
premises[.]”
ipated
upon
to be
§
with HRS
conflict
135,
51
at
invitee will suffer nevertheless Friedrich, pursuant duty of care owed harm.” Id. by occupier premises to those who vein, explained premises a similar been “‘traditionally has enter the does not that, case, require “in the usual obligation there elimination known or obvious protect against dangers invitee appellant which hazards which [the] would reason- ” him, ably expected are known so obvious be to avoid.’ Id. at (Circuit apparent may reasonably he be Judge Spencer assigned P.2d at 162 expected protect by to discover them” and vacancy, dissenting) (quoting him- reason Keeton, al., Friedrich, 1040). against self danger. W. et 60 Haw. at at (5th dissent, According Prosser & Keeton on Torts at 427 “the defendant ... 1984) (footnotes omitted). However, ed. perfectly assuming reasonable certainly rule, “this is not a fixed and all of know better than use a the circumstances must be taken ac- designed into towel rack as if it was and intended example, occupi- and, count.” support Id. For “where the weight person” of a therefore, person er as anticipate a reasonable could not “be said to have breach- an unreasonable risk of harm to the ed a invitee reasonable care owed to [the] notwithstanding knowledge rack, plaintiff merely maintaining ... a towel condition, toilet, something obvious nature of the on a wall next to the which could not way precautions more in support person.” re- weight Id. at omitted). (footnote quired.” Id. at court, however, perpetuate specific exceptions
To
majority
A
did
of this
doctrine,
adopt
known or obvious
approach
see Fried-
such an
and reinforced the
“
rich,
principle
occupier
60 Haw.
586 P.2d at
...
‘[a]n
seems
land
has
contrary
governing
safety
reasonable care
to use reasonable care for the
reasonably
policy
persons
anticipated
standard set forth
Pickard and the
of all
to be
”
premises.’
supporting
considerations
that case.
In the
P.2d at
framework,
Pickard,
(quoting
Pickard
whether a
V.
them”);
Nichols,
see also State v.
111 Ha
340-341,
wai'i
141 P.3d
987-88
ICA,
appeal
On
Petitioner
raised
(2006) (“provid[ing] guidance to the circuit
permissible
as to
whether
remand” regarding
court on
instruc
expert
cross-examination for
to read into
tions);
Kim,
Corp.
KNG
107 Hawai'i
hearsay
the record
statements derived from
(“Because
(2005)
employment
398-99
record not
into
introduced
case,
conclude,
by experts
guid
evidence but reviewed
in the we remand the
we
court,
opinions.
forming
course of
their
ance
statute]
does not
[the
noted,
(explaining
It
343A
that Restatement
of.foreseeability,
concept
refers
in terms
reasonably
perceived
"[t]he risk
to be
defines the
person entering
one’s
whether
not harm to
obeyed;
reasonably
to be
it is the risk
with-
property
been
should have
foreseeable to the
range
apprehension,
another
occupier
spite
landowner
of the known
person,
determining
is taken
into account
danger. Foreseeability
obvious nature of the
care”) (inter-
the existence of the
to exercise
presented
not relevant to the issue
in this case—
omitted).
quotation
nal
marks and citation
whether
known and obvious
doctrine
should be abolished. Because the
standard
raised, preserved
The issue
ad-
applies
care that
is "reasonable
care for
by the
and was
dressed
courts below
also dis-
safety
persons reasonably anticipated
of all
to be
during
argument.
cussed
this court’s oral
See
Pickard,
premises[J”
upon the
violate 35(c) (HRAP) (stating pellate and federal constitu Procedure Rule clauses of state Venture, tions.”); Gap dispositional “unpublished v. Puna Geothermal orders (2004) 912, 331, 325, Hawaii 104 P.3d 918 precedent, may persua- for but be cited (“offer[ing] guidance value”). to the circuit court sive remand”); setting appropriate sanction on 299, 303, Aganon, Hawai'i 36 P.3d State v. VI. (2001) 1269, (“examin[ing the defen A. remaining arguments appeal” on re dant’s’] garding propriety instructions trial, 1, 2006, During on Peti- November guidance provide order to given “[i]n witness, Ferrante expert Dr. Michael tioner’s remand”). on circuit court (Ferrante), physician pain specializing Moreover, question should be decided medicine, asked on examination was cross judicial economy. If the purposes for for timecard whether Petitioner’s termination again evidentiary ruling challenged court’s opinion his about her fraud would affect remand, following seem appeal on would credibility: apparent that this court would need to con- Make [RESPONDENT’S COUNSEL]: the issue anew. See Commonwealth sider you why difference to was [Petitioner] 1265, 218, Moose, Pa. A.2d 1276 n. 11 job? her fired from that, (stating although dispositive, No. [FERRANTE]: “we have reversed case and because If she [RESPONDENT’S COUNSEL]: trial[,]” “principles it for a new remanded job— was from her fired judicial economy encouraged us to reach the Objec- [PETITIONER’S COUNSEL]: Sixth [the defendant’s] issue of whether tion, Honor. THE COURT: Over- Your violated” rights Amendment were because ruled. may “possibly again, faced with it we —for [RESPONDENT’S COUNSEL]: during] retri- same conduct occur [the time[ ]eard— al”); Loup-Miller v. As- see also Brauer & Mountain, Inc., 67, Objec- COUNSEL]: socs.-Roclcy Colo.App. [PETITIONER’S (al- tion, Your Honor. (Colo.Ct.App.1977) properly “in though an issue was not raised THE COURT: Overruled. trial[,]” a new plaintiffs’ motion for [the] If she [RESPONDENT’S COUNSEL]: appellate court addressed the issue on the job time[]eard was fired from her for merits, retried, “[s]inee the case must did reporting fraud in hours that she problem again[.]”); also will arise see September work for certain weeks Park, Fed.Appx. Ryan v. Hazel you that there indicate (6th *4 No. 2008 WL credibility? her problem was a Cir.2008) (noting that “where trial court Objec- [PETITIONER’S COUNSEL]: parties and both briefed addressed issue tion, your Honor. issue, economy judicial requires” the THE COURT: Overruled. it, forcing “rather than address necessarily.... Not [FERRANTE]: parties to raise it with the district court anew remand”). counsel Finally, if the On November Petitioner’s on ICA’s erroneous objec- “put “continuing ruling allowing inadmissible information on the record” any questions “dealing with” expert during cross tions” to to be elicited from use, remedied, fraud, phone trial excessive “time[ ]card is not courts examination sought He to strike guidance, despite rely opinion on the ICA insubordination.”14 questions respective answers elicited wrong application of the Hawaii Rules of its However, document, Ex- employment was for identification. Exhibit stat- admitted 14. One 204-A, stating engaged billing, received ing that Petitioner had had over hibit warning that Petitioner insubordinate, April excessively phone, she "not used the work,” during happy the cross poor performance, with was admitted had the result evidence, termination, examination of Petitioner on November not admitted into but *23 Ferrante, argued from employment fraud, reporting timecard hours that she work, containing insubordination, records the reasons for termi- did not not follow- only “through nation could be admitted a live ing given supervisor, directions viola- personal rules, knowledge” concerns, witness with of the in- company safety tion of employment formation contained in the rec- phone. over use of ords. The Respondent court directed to Employer believes [Petitioner’s] actions using language “[a]void that’s those potential were deliberate and have caused [employment] you get documents until harm to the business. into documents evidence.” go- [PETITIONER’S COUNSEL]: I’m 3, 2006, On November the direct examina- that, ing object, again. Move to strike (Ow- Owings tion Stanley was conducted of again, hearsay[.] ings), expert “in the field of vocational THE COURT: take it up We’ll later. Owings rehabilitation^]” was retained Continue. 8,May Petitioner on purpose for the added.) (Emphases formulating a plan” “vocational rehabilitation excused, day, That after the Peti- May for report, Petitioner. tioner’s counsel stated that there was a “con- Owings explained that Petitioner had been in tinuing objection” to en- the mention of the years, for workforce about 26 and was try, Respondent’s and asked counsel to “state injured May 2005. Pursuant to his inter- company for the record names” of the [Petitioner],” view or “discussion with he un- expects witnesses purposes “he to call for that, September during derstood her evidence, admitting those records into and to employment supervisor, as a traffic control hearsay objections[.]” Respon- overcome the someone,” disagreement “she had a responded dent’s counsel that he intended However, “basically Owings was fired.” ex- employees, “identify call the who would these plained that Petitioner told him had at- she being part compa- ... documents as of [the tempted job, find another but could not ny’s] explained records.” The court find one “physically appropriate[.]” that was would “wait see what disclosure is.” Owings “sedentary employ- determined that Notably, 8, 2006, on November after other ment” was “critical” for Petitioner he testified, witnesses had the court stated: pursue advised her to either a bachelor’s It seems to me that sides been both degree program, community attend col- trying get hearsay in a lot of informa lege.
tion through
experts’ reports....
[Re
spondent
trying
get
hearsay
is]
B.
employer through
statements from the
On
during
November
exami-
cross
expert[15].... Reading from an
exhibit
Owings, Respondent’s
nation of
counsel
permitted
unless and until the exhibit
explain
asked him to
a document entitled
And, quite
is admitted into evidence....
chronology,” (chronology)
“[Petitioner’s] file
frankly, I
...
time
didn’t catch it
the first
report.
was attached to his
He was
you
unfortunately
did it and
I had al
then
entry”
asked
“read” the “first
piece
lowed that
in.
I
come
think
chronology, to which Petitioner’s counsel ob-
the—maybe
was with one
Ow-
[]
however,
jected;
entry
the court allowed the
ings.
into
Owings
following:
evidence.
read the
added.)
(Emphasis
9/23/95,
[OWINGS]: I’ll start from the
records,
...
the date
the miscellane-
indicated,
points through-
As
at numerous
employment
ous
records.
trial, Respondent
out
referred to the fact
company,
job
[At Petitioner’s former
Peti-
was terminated
that Petitioner
from her
pay rate
Additionally,
tioner’s]
She is a
fraud.”
Re-
[$]19.25.
“time[]card
economist,
flagger.
discharged
spondent
[Petitioner]
asked Petitioner’s
economics,
referring
expert
day.
15. The
Petitioner’s
and who testified that
Loudat,
witness Thomas
who holds a doctorate
hearsay and
Loudat,
jury[,]”
the statements were
if Petitioner was terminated
Thomas
fraud,
again
to which Petitioner
have been excluded.
for timecard
Re-
Finally,
closing argument,
objected.
brief,
answering
did not
Respondent
In its
testimony,
Owings’
spondent quoted
Peti-
respond
foregoing argument.
discharged for
stating
“[w]as
that Petitioner
reply
brief maintained
tioner
her
fraud, reporting hours that she
time[]card
*24
“has not refuted or con-
Respondent
because
insubordination,
work;
following
not
did not
the reasons
[of
tested that these accusations
supervisor;
by
violation of
given
directions
made, that
termination] were
for Petitioner’s
rules; safety
use
company
concerns over
of
inadmissible,
they preju-
they
were
that
phone[.]”
grant-
jury[,]”
Petitioner
be
diced
Respondent
witnesses
failed
call
new
ed a
trial.
hearsay
respect to the
statements.
with
VIII.
VII.
Petitioner, deter
disagreed
The ICA
alia,
appeal,
argued,
On
Petitioner
inter
mining
Owings was
that cross examination of
in “allow-
its discretion
court abused
Fer-
cross examination of
proper, whereas
hearsay” that Petitioner was
ing inadmissible
“clearly
improper,
but did not
rante
fraud’, ‘insubordina-
fired for “‘time[]card
Steigman, 2010 WL
prejudice”19 Petitioner.
like[,]”
record[.]”
read
tion’ and the
“into
ICA,
According
“[p]ur-
to the
*5.
Petitioner,
in,
According
the court erred
702.1(a)[20]
may gener
party
suant Rule
(1) allowing
among
things,
other
inadmissible
expert
matter
ally
on the
cross-examine
record,
hearsay
read into the
viola-
be
opinion
and
upon
expert’s
which
is based
(2)
(1993),16 permitting
tion of HRE Rule 805
expert’s opinion, even
the reasons for the
acting in
the inference that Petitioner was
opinion
expert’s
the basis for the
would ordi
conformity
prior
her
that was
conduct
Therefore,
,Id.
narily be inadmissible.”
employment entry, in
derived from the
viola-
reasoned,
Rule
“pursuant
ICA
to HRE
404(b) (Supp.2006),17
tion of HRE Rule
702.1(a),
could
cross-
[Respondent]
properly
(3) failing
about the
to exclude
evidence
...
Owings regarding the content of
examine
pursuant
reasons for Petitioner’s termination
the doc
c]hronology, which summarized
[the
(1993).18
main-
to HRE Rule 403
Petitioner
upon
Owings’
opinion
expert
which
uments
entry
was based
tained that because
largely
based.”
upon
nonparties
of other
which
“statements
examination, the
to or
in the
As to Ferrante’s cross
were
attached
included
docu-
although Respondent’s
improperly
...
read to
ICA determined
[were]
ments which
issues,
"[h]earsay
ger
prejudice,
provides
HRE
in-
of unfair
confusion
16.
Rule 805
hearsay”
permissible
misleading
jury,
"if
of
cluded
is
each
considerations
within
time,
part
delay,
presenta-
of
statements conforms with
the combined
or needless
undue
waste
exception
hearsay
provided in
to the
rule
evidence.”
tion
cumulative
these rules.”
a matter
19.
of cross-examination is
"[T]he extent
404(b) provides
pertinent part
HRE
17.
Rule
as
largely
trial court
within the discretion of the
follows.
subject
unless
and will
be the
of reversal
party.”
clearly prejudicial
complaining
crimes, wrongs, or acts
Evidence
other
Bhakta, 109
IX.
upon
experts
particular
in the
field in
forming opinions
upon
or inferences
A.
(3)
the materials do not oth-
subject,” and
(1993),
Under
expert
HRE Rule 703
an
”
erwise “indicate lack
trustworthiness.
may
“opinions
render
on
based
data not ad-
Tabieros,
long
type
384,
missible in evidence so
as ‘of a
“without ever
B.
opin-
...
formed
basis of his
contents
385,
at
achieve
the minimum
even
trustworthiness[,]”
necessity
stan-
id. at
spectability of the reasonable reliance
and
703-2[4],
Bowman,
§
supra,
dard.”
at 7-35.
parts
545. The Fifth Circuit concluded
was,
Tabieros,
report
In
at issue
because
opinions
admit-
should
have been
alia,
multiple hearsay,
[and]
inter
“based
they
unnecessary
were
and the
ted
report
authorship,” the
was of undetermined
opinions did not bear certain indicia of trust-
indicated
lack of trustworthiness
the worthiness.
Id.
expert
not have been allowed to read
Bryan
Tabieros,
appears
inAs
there
report.
Hawaii at
repeatedly from the
dispute
employ-
be no
in this ease that the
387,
dence Rules 702 ] 403,31 pursuant to FRE Rule still ] be exclud XIV. probative substantially ed its value is out weighed by prejudice, of unfair light the fact the cross examination of issues, confusion of misleading erroneous, Owings was the ICA was incor jury[.]” City Chicago v. Anthony, 136 deciding posed rect in I11.2d 144 Ill.Dec. N.E.2d 1381 Ferrante, of whether Petitioner’s termination (1990) (internal quotation marks and citations for timecard fraud would indicate a credibili omitted). ty problem, clearly prejudicial. was not First, important[]” the ICA’s “most
XIII. reason, that the reference to timecard fraud foregoing, reversibly Based on “properly during Owings’ the ICA was elicited” cross examination, in upholding erred “properly court’s admission the reference was not (1) entry, supra, insofar there was no evi- elicited” for the reasons discussed thus, and, Owings’ opinion dence as support to whether was cannot the conclusion that entry containing “based” on prejudiced. Steigman, the informa- Petitioner was not (2) tion; Second, jury there was no indication that *5. WL entry type “reasonably read was of a relied” instruction that counsel’s statements and evidence, experts questions the field of vocational reha- are not in fact had a bilitation; there discussion deleterious effect inasmuch as the entry “trustworth[y,j” attorneys’ “may whether the nec- also instructed that remarks essary prerequisites jury] in understanding a determination assist the evi [the Thus, applying whether inadmissible evidence be elicit- dence the law[.]” through expert purpose Respondent’s ed use was directed to explaining expert’s hearsay basis or bases remarks as of assistance in “under 703; opinion, standing applying see HRE Rule see HRE also evidence” law. *29 702.1(a). Third, Owings although testimony Rule have been F err ante’s con upon objection, only It is that Rule of the FRE was the trial finds notable that if require "[f]acts amended in 2000 to that or data probative value of information assist- that are otherwise shall not be dis- jury inadmissible ing expert’s opinion to evaluate sub- jury by proponent opinion closed to stantially outweighs prejudicial its effect." Id. or inference added). unless court determines that (emphasis probative assisting jury their value in to eval- opinion outweighs expert's substantially uate the FRE, 31. Rule 403 of the which is identical to prejudicial commentary their effect.” The ex- 403, provides: HRE Rule plained, empha- 703 has "Rule been amended to relevant, Although may evidence excluded expert reasonably size that when relies probative substantially if value is out- opinion its inadmissible inference, information form prejudice, weighed by of unfair underlying is ad- information issues, misleading jury, opinion simply missible confusion because the or inference Commentary delay, is or time, considerations undue waste of admitted." 2000 FRE Rule 703 added). rule, (emphasis According presentation or needless of cumulative federal "[tjhe jury. information evidence. disclosed now, damages, lying had the assertion titioner lied before
cerned causation jury returning into could have influenced questions, jury not “reach” those did against a verdict Petitioner. *5, specu is Steigman, 2010 WL jury obligated lative inasmuch as testimony all the evidence and consider XV. decision, jury
reaching a and therefore the herein, discussed I concur For reasons tes presumed to have considered Ferrante’s must be remanded to the court case timony. Civil Instruction See Hawai'i trial, grounds for a new but on the stated all the evi (“Upon No. 3.3 consideration of herein. dence, particular jury] find[s] that a [the true, likely ... more true than not claim[ ] claim, defense, or fact has been
then preponderance of the evi
proven
dence.”). Moreover, Respondent was not
delivered verdict dispel
negligent the inference that does Pe suggesting Fen-ante