Sunday, December 4, 2011

Why a Plaintiff Brings a Lawsuit Cannot be Considered by the Jury.

Kobashigawa v. Silva (ICA December 2, 2011)

Background. William Kobashigawa was walking across Kamehameha Highway in a crosswalk in Kaneohe, when a truck driven by Joseph Silva hit him. Kobashigawa died. Gina Bailey was a witness. The estate of Kobashigawa and family sued Silva and the City and County of Honolulu. The Kobashigawas claimed negligence, negligent infliction of emotional distress, and loss of consortium. The Kobashigawas alleged that the City was negligent in the design of the highway with poor lighting in the crosswalk. The Kobashigawas settled with Silva and went to trial against the City. At trial, portions of Bailey's deposition were read to the jury. Also at trial, the City was allowed to use evidence on possible motives for bringing the suit. The jury found that the City was not negligent, and the circuit court awarded the City with costs. The Kobashigawas appealed.

A Plaintiff's Motives for Bringing a Lawsuit Cannot be Considered by the Jury. At trial, the circuit court gave this instruction:

You have heard testimony from one witness about certain statements attributed to a Kobashigawa family member following Mr. Kobashigawa's death. Your consideration of this evidence is limited to determining the existence or absence of any possible bias, interest or motive, if any, by [the Kobashigawas] in bringing this lawsuit and not for any other purpose.

The Kobashigawas did not object to the instruction at trial, and argued for the first time on appeal, that this instruction was erroneous and constituted plain error. The ICA agreed on both points.

The ICA held that this instruction was an erroneous statement of law. According to the ICA, "the motives of the plaintiffs are immaterial absent bad faith." Carter v. Ah So, 12 Haw. 291, 302 (Haw. Rep. 1899) ("So far as the law is concerned, if the plaintiff has made out a case on the facts, it is immaterial what [the] motive was."); Karim v. Gunn, 999 A.2d 888, 890 (D.C. 2010) ("motive of a party in bringing an action generally is immaterial to the question whether the action may be maintained."); Sommers v. AAA Temp. Servs., Inc., 284 N.E.2d 462, 465 (Ill. App. Ct. 1972) ("It is generally accepted that where the plaintiff asserts a valid cause of action, . . . motive in bringing the action is immaterial."). Simply put, the jury cannot consider the motives of the Kobashigawas "absent bad faith."

It's Plain Error. In a civil case, appellate courts look to three factors in considering whether a trial court committed plain error: "(1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial court's findings of fact; and (3) whether the issue is of great public import." Montalvo v. Lapez, 77 Hawai'i 282, 290, 884 P.2d 345, 353 (1994). The ICA weighed these three factors and held that the instruction was plain error. The first factor was satisfied. The circuit court gave the instruction. That was all that was needed to consider the issue. As for the second factor, the ICA held that because the trial court has a duty to properly instruct the jury on the law, id. at 291, 884 P.2d at 354, the second factor was met. In other words, it seems like the issue affects the findings of fact. Finally, the ICA held that the issue was of great public import.

The Improper Comments at Closing Argument Exacerbated the Erroneous Instruction. During closing argument, the City mentioned that when Bailey called the Kobashigawas days after the accident, the Kobashigawas immediately asked Bailey if she was going to testify when they sue. That, argued the City, horrified Bailey and she immediately hung up. The City then argued that "this case simply [is] about getting a collectable monetary award from the City when it was [Silva] who caused the accident[.]" This comment, according to the ICA, added to the harm caused by the erroneous jury instruction. Thus, the circuit court erred in allowing the City to comment in its closing argument on the Kobashigawas' motives for bringing the lawsuit. See Kakligian v. Henry Ford Hosp., 210 N.W.2d 463, 465 (Mich. Ct. App. 1973).

A Tragedy of Errors? The ICA clearly stated that a plaintiff's motives for bringing a good faith lawsuit are immaterial and cannot be considered by the jury. That meant that the jury instruction was an erroneous statement of law. Furthermore, even though it was not objected to at trial, it was so significant, that it constituted plain error. Fine. But then the ICA held that the circuit court erred in allowing the City to make a comment touching upon the Kobashigawas' motives because it "added to the harm" of the erroneous instruction. Shouldn't that error--allowing the comment--be an error onto itself because it urged the jury to consider the motives of the plaintiff? Why should it be error just because of the jury instruction? What if there was no such instruction? It would seem that the error in allowing the comment can stand on its own. (Whether it is plain error is an entirely different question). But to link it to the jury instruction complicates things.

What if there was no comment, and only an instruction? Is the error still plain? Maybe. The ICA did not take the comment into consideration when it weighed the Montalvo factors. Separating these out may never be resolved, but the basic principle is pretty clear: the plaintiff's motives in bringing the suit are off limits so long as the suit is in good faith.

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