Monday, September 8, 2008

Unnecessary, but not Necessarily Erroneous Instructions

Moyle v. Do Re Mi Karaoke (HSC September 4, 2008)

Background. After a long night of drinking, Moyle went to Do Re Mi Karaoke and drank some more. At Do Re Mi, Moyle ran into Simi Tupuola, who beat him up outside after Do Re Mi closed. Moyle sued Do Re Mi for negligence. Two years into the litigation, Do Re Mi attempted to bring Tupuola into the lawsuit, but the circuit court denied its motion. A jury concluded that Moyle was 5 % liable, Tupuola 95%, and Do Re Mi and the various owners were not liable. The ICA affirmed. Moyle appealed.

The Foreseeability Instructions were Prejudicially Misleading. The HSC first held that the jury instructions on foreseeability so prejudicially misleading that it arose to reversible error. A landowner generally does not have a duty to protect others from the criminal acts of a third party. Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 162, 829 P.2d 512, 515 (1992). However, when the landowner and the injured party have a "special relationship," the landowner has a duty to protect from criminal acts that are "reasonably foreseeable." Id. at 163-65, 829 P.2d at 515-16. For example, a person who "is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land" has a "special relationship." Id. at 164, 829 P.2d 515-16. The HSC explained that the jury instructions correctly explained the rationale underlying general rule, but because Moyle unquestionably had a "special relationship" to the owners of Do Re Mi Karaoke, that rationale had no place here. Thus, according to the HSC, the jury instructions were inconsistent and misleading and, therefore, in error. Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Hawai'i 286, 297, 141 P.3d 459, 470 (2006).

Nothing Wrong in Including Instructions of NON-Liability. The HSC, however, found nothing wrong in instructing the jury on a "dram shop action." Specifically, the circuit court instructed the jury that serving liquor to an already-intoxicated person does not arise to actionable negligence from which the intoxicated person can recover from the establishment. The HSC explained that the circuit court did not abuse its discretion in instructing on theories of "non-liability." These instructions may have been unnecessary, but they were not "prejudicially insufficient, erroneous, inconsistent, or misleading." Id.

And No Error for the Good Samaritan Instructions. The HSC also found no error in instructing the jury that a person in Hawai'i cannot be sued for failing to render aid. See HRS § 663-1.6. The HSC explained that Moyle adduced evidence that the bartenders at Do Re Mi did nothing to help him in the parking lot. Thus, the instructions helped clarify for the jury theories of non-liability and were proper.

Unnecessary, but not Necessarily Erroneous Instructions? It is unclear what the difference between the erroneous inclusion of instructions on foreseeability from the other theories of non-liability. At first, it would appear that the Good Samaritan instructions were proper because Moyle elicited testimony that would confuse the jury on the possible theories of liability. But what about the dram shop instructions? The HSC never indicated that Moyle established evidence pointing toward that theory. The HSC revealed that when it comes to instructing the jury, the circuit court has wide discretion. It is free to instruct the jury on issues that were never raised by the Plaintiff and have no bearing on the claimed action so long as they do not arise to a "prejudicially insufficient, erroneous, inconsistent, or misleading" instruction. Justice Acoba, however, took issue with this. He believed that these instructions were so disconnected that they arose to the level of prejudicially misleading or inconsistency. He would have ordered their omission on remand. It is equally unclear exactly how much the appellate courts will flesh out those instructions that do not address the actual theory of liability presented by the parties and whether they are permissible. Only time will tell.

Mode-of-Operation Rule is Limited to Wal-Mart or Wal-Mart-like Stores. Under the mode-of-operation rule, the plaintiff does not have to show that the defendant had actual notice of the cause of injury so long as the commercial establishment should have been aware that its mode of operation created a potentially hazardous condition. Gump v. Wal-Mart Stores, Inc., 93 Hawai'i 417, 420-21, 5 P.3d 407, 410-11 (2000). Moyle argued that this rule should have been instructed to the jury. The HSC disagreed because the scope of the mode-of-operation rule is limited to situations where the defendant's "marketing strategy" led to the foreseeable risk of danger. Thus, this particular rule is "limited almost entirely" to slip and fall cases in "big box" or "self service" stores like Wal-Mart. In this case, according to the HSC, Do Re Mi did not invite criminals to patronize the bar. The lack of security was not designed or part of Do Re Mi's "marketing strategy" to attract patrons with criminal inclinations.

Other Issues. The HSC also affirmed the ICA's refusal to hear Moyle's evidentiary claim that the circuit court should have admitted various police reports at trial. Furthermore, the HSC took no issue with the circuit court's denial of Moyle's motion for new trial.

When a Tortfeasor is not Joined, it Cannot be Included on the Verdict Form. The HSC held that Tupuola did not belong on the verdict form. Whether non-parties may be included on the verdict form lies within the "sound discretion" of the trial court. Id. at 423, 5 P.3d at 413. The HSC concluded, however, that the trial court's discretion is limited by the Uniform Contribution Among Tortfeasors Act, HRS § 663-11 et seq. Under the UCATA, degrees of fault are determined by pro rata shares only when the issue of fault is litigated between the joint tortfeasors "by pleading in that action." HRS §§ 663-17(c) and 663-12. The HSC held that because Do Re Mi failed to include Tupuola, it was not permitted to have fault determined in pro rata shares and, therefore, it was not within the circuit court's discretion to include Tupuola on the verdict form.

Justice Acoba's Concurrence. Justice Acoba agreed that Tupuola had no place on the verdict form, but not as a matter of law. Justice Acoba believed that because the circuit court denied Do Re Mi's motion to for leave to file a claim against Tupuola and Moyle's reliance on the denial throughout trial, it was an abuse of discretion to reverse itself and place him on the verdict form. According to Justice Acoba, preclusion from the verdict form as a matter of law "deprive[s] the trial courts of their discretion in dealing with varied factual circumstances."

Justice Acoba also took issue with the dram-shop instructions. He believed that they were prejudicially misleading. Dram shop liability is not part of this case. Justice Acoba believed that even if we were to assume that dram shop liability clarified the contours of potential liability, they were nonetheless "so disconnected from [Moyle's] theory of the case and the evidence presented to the jury, that it must be concluded that they were prejudicially misleading." Justice Acoba, therefore, does not see these instructions as merely unnecessary instructions. Interestingly, he did not take issue with the Good Samaritan instructions. Can it be that for Justice Acoba if the party elicited evidence that could confuse the jury on the theory of liability, instructions limiting the theory of liability are proper? Perhaps.

Justice Nakayama's Concurrence and Dissent. Justice Nakayama concurred with the majority on the foresseability instructions, but disagreed with the holding that it was error to include Tupuola on the verdict form. Justice Nakayama believed that the trial court as "complete discretion" in using a special verdict form and its content. See Montalvo v. Lapez, 77 Hawai'i 282, 292, 884 P.2d 345, 355 (1994). It was unclear for Justice Nakayama that the special verdict form was so defective that it warranted reversal. Thus, she believed that it was not reversible error to include Tupuola.

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