Monday, January 9, 2012

A Known or Obvious Danger is not a Defense in Premises Liability Action (Anymore)

Steigman v. Outrigger Enterprises (HSC December 15, 2011)

Background. Michele Steigman and her family were guests at the Ohana Surf hotel in Honolulu. One rainy afternoon, Steigman went onto the lanai of their hotel room to get a chair. She slipped on the surface of the lanai and injured her foot when it got stuck under the railing. She brought a negligence claim against the hotel under a theory of premises liability. At trial, Steigman presented expert testimony that the lanai's surface had substandard "friction coefficiency." Her daughter testified that the lanai was glossy and hard to tell if it was wet or dry. An Outrigger employee testified about a similar slip and fall on a lanai at the hotel. Outrigger argued to the jury that the injury was caused entirely by Steigman's own negligence. According to Outrigger, the wet lanai was a known or obvious danger.

Over Steigman's objection, Outrigger proposed that the circuit court instruct the jury that a "danger is open and obvious when a party either knew or should have known of it. Whether the Plaintiff actually discovered the danger is irrelevant." Outrigger's proposed instruction was based on the known or obvious danger defense described in the Restatement of Torts. The circuit court gave the instruction. The jury found no liability. The circuit court entered judgment in favor of the defense and ordered Steigman to pay $29,722.30 in costs. Steigman appealed and the ICA affirmed.

The Known-or-Obvious-Danger Defense. Under the common law, a plaintiff cannot recover at all if the plaintiff is injured due to a known or obvious danger. Friedrich v. Dept. of Transp., 60 Haw. 32, 36, 586 P.2d 1037, 1040 (1978). It is a complete bar and the plaintiff cannot recover even if the plaintiff was extremely cautious and even if the defendant was aware of the danger. Id. at 36 n. 1, 586 P.2d at 1040 n. 1. Steigman argued that this defense is incompatible in Hawai'i jurisprudence and cannot bar recovery. The HSC agreed.

The Comparative Negligence Statute Does not Expressly Bar it . . . but Comes Close. The HSC first turned to HRS § 663-31, which abrogated the common-law doctrine of contributory negligence and replaced it with comparative negligence. "Contributory negligence shall not bar recovery in any action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property[.]" HRS § 663-31(a). According to the HSC, the statute does not expressly include or exclude actions involving known or obvious dangers. Thus, it turned to the legislative intent underlying the statute. The statute, according to the HSC, was intended "to temper a phase of the common law deemed inconsistent with contemporary notions of fairness. Its purpose was to allow one partly at fault in an accident resulting in injury to be recompensed for the damages attributable to the fault of another if the former's negligence was not the primary cause of the accident." Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933 (1982).

A Very Brief History of Premises Liability in Hawai'i. The HSC offered a history of premises liability in Hawai'i. Up until 1969, Hawai'i followed the common-law rule that premises liability hinged on the legal status of the injured person. For example, an occupier of land or landowner owed a greater duty to those coming onto the land for business purposes than those who were social guests or mere "licensees." Prosser & Keeton, Law of Torts, §§ 60 and 61, 412, 415 (1984). This all changed in Pickard v. City and County of Honolulu, 51 Haw. 134, 135, 452 P.2d 445, 446 (1969), where the HSC imposed upon landowners a single "duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual."

According to the HSC, the reason for the departure from ancient common law was based on two distinct principles. First, courts had difficulty applying the common-law classifications consistently. See Kermarec v. Compagnie Generale Transatalantique, 358 U.S. 625, 630-31 (1959). Second, the common-law doctrine was out of step with modern values. See Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968). The HSC adopted these two principles outlined in Pickard to determine whether the common-law defense applies.

Spotty Application of the Defense. The HSC first noted that the few times the appellate courts examined the defense, its application was inconsistent and, thus, difficult to apply. In Freidrich, the HSC affirmed a summary judgment to the defendant based on an assertion of the defense. But in Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), the court reached the opposite result even though the facts were similar. Finally, in Bidar v. Amfac, 66 Haw. 547, 669 P.2d 153 (1983), a dissenter from the majority would have held that the type of hazard--leaning on a towel rack--was a known or obvious danger and would have ruled for the defense on summary judgment. The HSC acknowledged similar inconsistencies in other jurisdictions. Woodard v. ERP Operating Ltd., P'ship, 351 F.Supp. 2d 708 (E. D. Mich 2005); Rogers v. Spirit Cruises, Inc., 760 N.Y.S. 2d 280 (App. Term 2003); Groleau v. Bjornson Oil Co., Inc., 676 N.W.2d 763 (N. D. 2003); O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985).

And Bad Public Policy. The HSC also recognized that the defense makes against public policy. "If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger." Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). Tort law in general, according to the HSC, is premised on sound public policy. See Francis v. Lee Enterprises, Inc., 89 Hawai'i 234, 239, 971 P.2d 707, 712 (1999) ("tort law is primarily designed to vindicate social policy."); Fonseca v. Pacific Const. Co., 54 Haw. 578, 513 P.2d 156 (1973). And tort law seeks to prevent injury by providing an incentive to deter negligent conduct. Smith v. Cutter Biological, Inc., 72 Hawai'i 416, 435, 823 P.2d 717, 727 (1991). The HSC stated that allowing a landowner to escape liability as a matter of law, does not deter negligent conduct. Thus, the defense is inconsistent with the policy underlying tort law.

A Two-Prong Test for Departing from Common-Law? Has the HSC provided us with a test to determine whether a common-law doctrine should be abandoned? It outlined two principles underlying the departure from common-law classifications in Pickard and applied them to justify its departure from the common-law defense. Does the same two-prong test apply for other arguably antiquated common-law doctrines? Maybe. But then again, how many arguably antiquated common-law doctrines are still left?

Abandoned or Abolished? The HSC made it clear that HRS § 663-31, did not expressly abolish the defense and so it had to determine whether to abandon deeply-entrenched common law. According to the HSC, HRS § 663-31--which abolished contributory negligence--did not expressly cover actions involving known or obvious dangers. This is a little strange because the statute says that contributory negligence does not "bar recovery in any action by any person . . . to recover damages for negligence resulting in death or injury to person or property[.]" Wouldn't an action involving a known or obvious danger be considered an "action . . . to recover damages for negligence"? The HSC did not explain why that language failed to cover the defense.

The Other Stuff. This was not the entire analysis. The HSC went into careful detail explaining why abandoning this common-law defense was appropriate. It particularly noted that the known or obvious dangers to the premises are subsumed other elements of a negligence claim.

Justice Acoba's Concurrence. Justice Acoba agreed that the defense should be abandoned. He wrote separately because took issue with the cross-examination of Steigman's expert and other evidentiary problems that arose at trial. He felt it was important to analyze these issues because the case was sent for retrial.

1 comment:

ALR said...

This is a major ruling. Thanks, Ben, for informing us of it.