Friday, March 19, 2010

Without Special Relationship, Hotel owes no duty for Those Injured by Suicidal Trespassor

Schwenke v. Outrigger Hotels Hawai'i, LLC (ICA March 18, 2010)

Background. Cameron Tuupoina went to the Maile Sky Court, a hotel in Waikiki, and climbed up to the roof. He was not a registered guest. Tuupoina jumped from the hotel and landed onto Sogi Schwenke's car causing substantial injuries. Schwenke and others sued Outrigger and Wackenhut, its security, for negligence. The circuit court granted the defendants' motions for summary judgment on the grounds that there was no duty owed to Schwenke.

Absent Special Relationship, no duty to Protect Plaintiff from Third Parties. "A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff." Cuba v. Fernandez, 71 Haw. 627, 631, 801 P.2d 1208, 1211 (1990). Absent a special relationship, "[t]here is no duty . . . to control the conduct of a third person as to prevent him [or her] from causing physical harm to another[.]" Id. at 631-32, 801 P.2d at 1211 (quoting Restatement (Second) of Torts § 315 (1965)). A "special relationship" includes the relationship between common carriers and their passengers, innkeepers and guests, possessors of land who open the land to the public, and "[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection under a similar duty to another." Id. (quoting Restatement (Second) of Torts § 315A). Here, the ICA agreed that there was no duty owed to Schwenke.

A Special case for Suicide? The ICA held that there was no duty owed to Schwenke. The ICA examined these facts "in the context of a suicide." The ICA relied extensively on Lee v. Corregedore, 83 Hawai'i 154, 925 P.2d 324 (1996). In that case, the issue centered around whether a counselor owed a duty of care to a non-custodial client who committed suicide. Id. at 156-58, 925 P.2d at 326-28. The HSC answered that in the negative and "recognized a reasonable duty of care to prevent suicide only on the part of a defendant who had actual custody of a suicidal person." Id. at 161, 925 P.2d at 331.

The Lee case v. the Restatement? The plaintiffs in this case were injured by a man committing suicide. The plaintiff in Lee sued on behalf of the man who committed suicide claiming that the breach of duty was the failure to prevent the suicide. Here, the plaintiffs claim that the defendants owed them a duty to protect them from the foreseeable suicide. In this scenario--where a third party actor injures the plaintiff--it would seem that the general rule from the restatement would apply rather than the facts from Lee. Does Lee matter in this case? Aren't we dealing with something entirely different?

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