Monday, January 30, 2012

Extensive Testimony on Speedometer Tests Holds (Fitz)water

State v. Eid (HSC January 26, 2012)

Background. Hatem Eid was charged with excessive speeding. HRS § 291C-105(a)(1). At trial, the prosecution called Roy and Duane Ozaki as expert witnesses. The Ozakis owned and operated Roy's Automotive. They are licensed automotive mechanics and certified automobile technicians. Roy Ozaki testified that only he and Duane perform speed checks cars for HPD. At trial, Roy explained that to check the accuracy of the speed of a car, with a method called the speedometer dynamometer. He places the car on a bed of rollers. A cable connects the rollers to a master head with a speedometer. The car is started and rolls on the rollers, which causes the cable to give a reading to the master head. No computer software is involved. During this test, the speedometer in the vehicle is compared with the reading on the master head. Roy compares the reading at 10-mile-per-hour increments from 25 mph to 95 mph.

Roy further testified that in 2007, he noticed that the comparison readings were adequate up until 75 mph. After that, the car's speedometer reading was faster than the master head reading by up to 5 mph. Roy called the manufacturer of the master head in California about it, and turned in the machine in 2008. It was returned with a letter stating that before it was recalibrated, the manufacturer tested it and concluded it was in working order with a margin of error of two percent.

Roy wrote a speed check card for Officer Perez's vehicle. According to the card, the speed check was performed in July 2007--before it was turned into the manufacturer for re-calibration. The speed check card stated that there were no discrepancies at speeds up to 65 mph. Ultimately, the district court allowed the speed check card to be admitted. At trial, Officer Perez testified that he was pacing Eid on a street where the speed limit was 25 mph. According to Officer Perez, his speedometer on his 2004 Crown Victoria read 65 mph. Eid was found guilty. He appealed and the ICA vacated judgment and remanded with directions to enter finding of regular speeding. Chief Judge Nakamura dissented.

Establishing the Foundation of a Test Result. "[B]efore the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact." State v. Wallace, 80 Hawai'i 382, 407, 910 P.2d 695, 720 (1996). A test result is reliable when there is "a showing that the measuring instrument is in proper working order." Id. The HSC has held in the past that in order for an instrument to be in "proper working order," there must be some evidence that it was adequately calibrated through testimony of a service representative or some kind of business record of the manufacturer. State v. Manewa, 115 Hawai'i 343, 357, 167 P.3d 336, 350 (2007). Furthermore, before an out-of-court instrument result is admitted, the movant must also establish that the operator of the instrument "is qualified by training and experience to operate" the instrument. State v. Assaye, 121 Hawai'i 204, 215-16, 216 P.3d 1227, 1238-39 (2009).

That said, the foundational issue of a speed check card requires the prosecution to show "(1) how and when the speed check was performed, including whether it was performed in the manner specified by the manufacturer of the equipment used to perform the check, and (2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it." State v. Fitzwater, 122 Hawai'i 354, 376-77, 227 P.3d 520, 542-43 (2010).

Adequate Foundation that Machine in Proper Working Order. The HSC held that in this case, the Fitzwater foundation requirements had been met. In other words, "the State established that the speedometer dynamometer was in proper working order, and used by persons qualified to operate the device." The prosecution established Officer Perez testified he took his vehicle to Roy's Automotive for the test. Roy testified that the speedometer dynamometer is comprised of three components: the bed of rollers, the cable, and the master head. It is a strictly mechanical test. There is evidence that the instrument was in "proper working order." When Roy noticed a slight difference, he returned the master head to the manufacturer, which gave it an approval.

. . . and Operated by Qualified People. The HSC also held that Roy and Duane were qualified to operate the device. Roy's testimony that he had done several of these speed checks, and was an expert in automotive technology. This is sufficient foundation for the operation of the speedometer dynamometer.

So much for Manufacturer-Approved Qualifications? The HSC in Assaye made much ado about manufacturer-approved methods of calibrating a machine. When that came out, we raised the question of what would happen if there was no manufacturer-approved method. Here, it seems we may have found an answer: if there is no manufacturer-approved method, then any sufficiently qualified operator can use it properly. The HSC never specifically dispensed with the requirement from Assaye. Perhaps this means that if there is prima facie proof of

Justice Acoba's Concurrence. Justice Acoba agreed that there was an adequate foundation laid before the results of the speedometer were admitted at trial. He wrote separately to note that in Fitzwater, there was absolutely no evidence of the foundation for the accuracy of the officer's speedometer. He felt that it was unnecessary to delve into constitutional issues and even hearsay issues that were addressed in Fitzwater. This, wrote Justice Acoba, is the proper time to raise this sort of thing.

Saturday, January 28, 2012

Prosecution must Disclose Name, Address of Witness to Rebut Alibi Defense (even if he was Initially an Alibi Witness)

State v. Valeros (HSC January 27, 2012)

Background. Brandon Valeros was charged with assault in the 2d degree. HRS § 707-711(1)(d). Valeros allegedly beat Kenneth Ring with a collapsible metal baton outside Exotic Nights, a stripclub near Ward Avenue and Halekauwila Street on November 6, 2006. Before trial, Valeros filed a notice of alibi pursuant to Hawai'i Rules of Penal Procedure Rule 12.1. The prosecution, pursuant to the rule, responded that it would rely on Ring and his friend, who was with Ring when he was assault at 2:20 a.m. Valeros further responded that at that date and time, he was in the Club Electro parking lot in Pearl City with Jamison Benavides and Timothy Santiago. Valeros provided their contact information.

During pretrial, Valeros reported having a hard time getting in contact with Santiago. In the meantime, the prosecution's investigator found Santiago in Kalihi and Santiago told the investigator a statement that rebutted the alibi defense. The investigator's findings were never disclosed to Valeros. Shortly before trial, Valeros announced that he could not rely on Santiago because he could not be reached and that he would rely only on Benavides. During another conference held two days after Valeros' announcement, the prosecution found Santiago on the Big Island, but never told Valeros.

At trial, Ring testified that he and his friends started out at Femme Nu and then moved on to Exotic Nights. After that, he was hit by a "Polynesian" man with a collapsible metal baton. The man had others with him. Ring and his friends gave different descriptions of the assailant. After giving a description to the police, Miller caught a cab to the Zanzabar nightclub in Waikiki. There, he saw one of the men he believed to be involved in the assault. He told a nearby police officer and it turned out that one of the men Miller identified was Benavides. At 5:00 that morning, the three men rounded up in Waikiki were presented to Ring and Miller. Ring identified Valeros as his attacker.

Benavides and Valeros testified. According to them, they were with Santiago and Ryan Yamashita. They did not have a truck that night. They were at Club Electro until 2:00 a.m. They smoked cigarettes in the parking lot and piled into Yamashita's Honda Civic to Big Kahua, a nightclub in Waikiki. They parked by the zoo. Yamashita left and then the three of them were stopped by the police.

The prosecution wanted to present a rebuttal witness that was flown in for one day. This was the first time Valeros learned that Santiago was going to testify as a rebuttal witness. Valeros spoke with Santiago in order to ascertain what he would say, and Valeros objected to his testimony as a violation of HRPP Rule 12.1. Valeros argued that the prosecution had to provide written notice of its intent to call him. The prosecution argued that it was not required to provide any notice because Santiago was part of the initial disclosure by Valeros. The objection was overruled.

Santiago testified that he was at Club Electro with Valeros and Benavides. He was very drunk, but could recall chasing some guy on Ala Moana Boulevard. Because his testimony was so disjointed, the circuit court permitted the prosecution to call the investigator who interviewed Santiago in Kalihi. The investigator testified that Santiago told him that he was a passenger in a pickup truck and that they were chasing two guys toward Exotic Nights. Valeros was found guilty as charged. The ICA affirmed.

Special Procedures of Discovery for Alibi Defenses. When a defendant relies on an alibi defense, "the defendant shall . . . notify the prosecutor in writing of such intention and file a copy of such notice with the court." HRPP Rule 12.1(a). After that, the prosecutor and the defendant narrow down the disputed date, time, and place of defendant's presence. HRPP Rule 12.1(b). The defendant must also disclose the names and addresses of the alibi witnesses. "The prosecutor shall then inform the defendant in writing of the names and addresses of the witnesses upon whom [sic] the government intends to rely to establish the defendant's presence at the scene of the alleged offense." Id.

Prosecution must Disclose Name and Address of Rebuttal Witness

After the "defendant has furnished to the government the names and addresses of his [or her] alibi witnesses, defendant has a reciprocal right to discover the names and addresses of witnesses the government intends to rely on to rebut or discredit" the alibi witnesses. State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981). Here, the HSC held that the prosecution had to disclose to the defense Santiago's name and address as soon as it realized that it was going to rely on him to rebut the Valeros' alibi. The fact that Santiago was originally an alibi witness was irrelevant.

. . . and be Quick About it. The prosecution's obligation to notify the defendant about rebuttal witnesses must be given "promptly." HRPP Rule 12.1(d). The record showed that the prosecution first contacted Santiago months before trial in Kalihi. The record also shows that at the latest, the prosecution knew it was going to use Santiago during the pretrial conference two days after it learned that Valeros announced he could not find him. Instead, it waited for the defense to start its case before making this announcement. It was clear to the HSC that Valeros lost contact with its alibi witness, the prosecution found him, and then used him for its case. According to the HSC, the prosecution "concealed Santiago's new status as its new alibi-rebuttal witness" in violation of HRPP Rule 12.1(b). The HSC noted that "trial is hardly an end in itself; it is not a poker game in which players enjoy an absolute right always to conceal their cards until played[.]" State v. Sherman, 70 Haw. 334, 341, 770 P.2d 789, 793 (1989).

The Circuit Court's Last-Minute Interview is not a Proper Remedy. The HSC next held that the circuit court's solution--allowing Valeros' counsel to interview Santiago in the middle of trial--did not cure the discovery violation. HRPP Rule 12.1(d) imposes a continuing duty to promptly disclose witnesses. This, according to the HSC, is designed to "precisely avoid such mid-trial surprises." Moreover, the HSC noted that if Valeros knew about Santiago before trial, it could have adjusted the trial strategy to avoid an alibi at all. The vast discrepancies in the prosecution's witnesses in chief showed that it could have used an unreliable-identity defense. But by the time Santiago was revealed, that defense was forfeited. Given this prejudice, the mid-trial meeting and a continuance of trial would not have remedied the violation.

Fall on your Sword: the Good Cause Exception. HRPP Rule 12.1 is not ironclad. The court may grant an exception to the specific disclosure requirements under the rule "[f]or good cause shown[.]" HRPP Rule 12.1(f). In determining whether good cause, the court "balance[s] the interests of both the government and the defendant to give both an opportunity to discover on equal terms." State v. Davis, 63 Haw. at 198, 624 P.2d at 380-81. Here, no good cause was shown by the prosecution for its violation. Thus, the circuit court abused its discretion in exempting it from discovery obligations. This should provide some hope for any party that finds itself in this bind. If there is a good reason for it, the circuit court can make exceptions to the requirements. But that would require acknowledgement of a violation. Here, it seems unlikely that the prosecution did such a thing.

The Error is not Harmless. An error cannot be harmless if there is "a reasonable possibility that [the] error might have contributed to the conviction." State v. Veikoso. Here, the HSC held that the error was not harmless because there was no "direct testimony" that overwhelmingly contradicted the alibi defense. See State v. Ah Choy, 70 Haw. 618, 780 P.2d 1097 (1989). The prosecution's witnesses in chief had multiple inconsistencies in their descriptions of the assailant despite their identification of Valeros, and no metal baton was found. Santiago's testimony--albeit indirectly--provided evidence that they were chasing two men near Exotic Nights. This, according to the HSC, proved to be a pivotal role in the case and reasonably might have contributed to Valeros' conviction.

Tuesday, January 24, 2012

Resurrecting a Property-Based Fourth Amendment Analysis

United States v. Jones (SCOTUS January 23, 2012)

Background. Antoine Jones owned and operated a nightclub in the District of Columbia. He was suspected by the FBI and the DC police of trafficking narcotics. The police used a bevy of investigative techniques like visual surveillance of the nightclub, cameras at the door of the club, a pen register and a wire tap of Mr. Jones' phone. The government applied for a warrant to install on Jones' Jeep Grand Cherokee an electronic tracking device or Global Positioning System (GPS). The warrant authorized installation of the device in DC and was limited to 10 days. Eleven days after the warrant was issued the government installed the device in the State of Maryland. For the next 28 days, the government tracked the vehicle. During that time, the government replaced the battery of the GPS in a public parking lot in Maryland.

The government ultimately brought charges of cocaine trafficking. Jones filed a motion to suppress the evidence obtained pursuant to the GPS. The motion was granted in part and suppressed only evidence that was obtained while the vehicle was parked in Jones' residential garage. The rest was deemed admissible. Jones' trial resulted in a hung jury. The government returned another indictment and the same evidence was used. The evidence linked Jones to $850,000 in cash and 97 kilograms of cocaine. This time, the jury found Jones guilty and he was sentenced to life imprisonment. Jones appealed and the DC Circuit reversed the conviction. The government applied for a writ of certiorari.

The Fourth Amendment Protects Reasonable Privacy Interests and Property Interests too. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Am. IV. A vehicle is an "effect" for purposes of a Fourth Amendment analysis. United States v. Chadwick, 433 U.S. 1 (1977). Justice Scalia, writing for the court, explained that the government "physically occupied private property for the purpose of obtaining information." This kind of physical intrusion was a search. Relying on an 18th-century English principle in property and SCOTUS cases predating Katz v. United States, 389 U.S. 347 (1967), the majority held that at a minimum the Fourth Amendment requires the government to get a warrant before physically intruding upon a person's property. The actions by law enforcement clearly intruded upon the person's property. The installation of a tracking device on a vehicle and using that device to monitor its movements is a "search" requiring a warrant. The reason is based not on the reasonable-expectation-of-privacy test from Katz, but rather the older property-based protection against governmental trespass. Thus, the D.C. Circuit should be affirmed.

Justice Alito's Concurrence asks What's Wrong with Katz? Justice Alito agreed that the D.C. Circuit should be affirmed. The government needed a warrant before installing the GPS on Jones' jeep. But he criticized Justice Scalia's analysis that in addition to Katz there is the older protection from governmental intrusion onto another's personal property. Justice Alito accused the majority of applying antedated tort law. "By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels." Justice Alito thought it "unwise" to supplement the Katz formulation with a throwback to property law. Instead, Justice Alito believed that the case should be decided under Katz and only Katz. And under Katz, there is a reasonable expectation of privacy in a person's vehicle when it comes to this kind of long-term monitoring. Justice Alito explained that a hypothetical reasonable person's expectations of privacy change with the influx of new technologies. The expectations are not static. These new technologies like smart phones and the wide dissemination of digital information have shaped the average person's expectations of privacy. What complicates things, wrote Justice Alito, is that "judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person[.]" Here, the 28-day monitoring of a person's vehicle without a warrant violated the reasonable person's expectation of privacy and a warrant was required. Justices Ginsberg, Breyer, and Kagan joined Alito.

Justice Sotomayor's Concurrence. Justice Sotomayor agreed in large part with Justice Alito's analysis. She opened the discussion to the ever-changing concept of privacy in the digital age. There is a lot of information about people that is voluntarily disclosed and put out there into the world, and yet people still consider that information private. She was careful to note that in today's world secret should not be considered the same thing as private. She even hinted that it will be necessary to reconsider whether a person has a reasonable privacy interest in voluntarily-disclosed information. "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." But these issues should be left for another day. Instead, she agreed with the majority's view that the Fourth Amendment, at a minimum, requires a warrant when the government physically intrudes onto another's property. And so she voted with Justice Scalia.

Why Did she do it that way? Justice Sotomayor was the deciding vote in this. Justice Scalia had Justices Kennedy and Thomas, Chief Justice Roberts in addition to her vote. That made it a bare majority of five. She agreed that the physical intrusion was enough to require a warrant. Justice Sotomayor's concurrence does not speak at all to the property-based, pre-Katz approach. In fact, she seems much closer to Justice Alito's opinion. Her vote is baffling. By siding with Scalia's two-test approach--Katz and the old-time trespass--she has clouded the doctrinal waters. Justice Sotomayor could have easily sided with Justice Alito's application of Katz (and only Katz), and have written her concurrence noting that there will come a day when the SCOTUS will have to re-evaluate the reasonable expectations of privacy in voluntarily disclosed information. It would have left this throwback to pre-Katz jurisprudence in the dust. Now, thanks in large part to Justice Sotomayor's concurrence, the property analysis walks again.

Wednesday, January 18, 2012

Allegations of Constitutional Violations STILL have to go Through the HLRB

HSTA v. Abercrombie (HSC January 17, 2012)

Background. During her last term, Governor Lingle issued a unilateral executive order that furloughed all state employees, restricted spending by the Department of Education, and the University of Hawai'i. The Hawai'i State Teachers Association and the United Public Workers union filed a complaint alleging that the executive order violated the right of public employees to organize under Hawai'i Constitution Art. XIII, Sec. 2, the right to accrued retirement benefits under Haw. Const. Art. XVI, sec. 2, and a violation of the separation of powers. The unions moved for a temporary restraining order, which the circuit court granted in part. Lingle filed a motion to dismiss on the grounds that the Hawai'i Labor Relations Board (HLRB) had exclusive jurisdiction over these matters pursuant to HRS chapter 89. The circuit court rejected the argument, and concluded that the management rights pursuant to HRS § 89-9(d) did not allow Lingle to unilaterally furlough employees. Still, it dismissed a portion of the complaint. The unions appealed the dismissal. Lingle cross-appealed and argued there was no jurisdiction. Before the ICA could decide the matter, the unions applied for a transfer to the HSC, which was granted.

Even when the Questions are Solely Constitutional, Go to the HLRB First. In HGEA v. Lingle, 124 Hawai'i 197, 239 P.3d 1 (2010), the HSC held that the HLRB has exclusive jurisdiction over issues relating to HRS chapter 89--collective bargaining rights. The circuit court should not have ruled on these matters and instead "deferred ruling on the constitutional issues until after the HLRB had the opportunity to resolve the statutory questions." Id. at 200, 239 P.3d at 4. In that case, the complaint raised both statutory issues and constitutional ones.

. . . Even when the Complaint does not Refer to any Statutes. The issue in this case, according to the HSC, was whether the HLRB had exclusive jurisdiction even though the complaint did not allege any statutory-related questions and only raised constitutional violations. "Any controversy concerning prohibited practices may be submitted to the [HLRB] . . . provided that the board shall have exclusive original jurisdiction over such a controversy[.]" HRS § 89-14. Prohibited practices include the refusal to bargain in collectively in good faith, participate in good faith in mediation and arbitration, violate the collective bargaining agreement, or refuse or fail to comply with any provision in HRS chapter 89. HRS § 89-13.

The HSC noted that the unions' complaint made absolutely no reference to HRS chapter 89. Instead, it alleged constitutional violations. Nonetheless, the reasoning underlying HGEA is the same and the HLRB has exclusive jurisdiction. According to the HSC, the plain language of HRS § 89-14 clearly shows that the allegations in the complaint amount to a "controversy concerning prohibited practices."

Why Neil? This is an old dispute between Lingle and the unions. So why is Governor Abercrombie's name on it? While the case was pending on appeal, Lingle left office and Abercrombie was elected and inaugurated. The answer, refreshingly, is clear. "When a public officer is a party to an appeal or other proceeding in the Hawai'i appellate courts in his or her official capacity and during its pendency dies, resigns, or otherwise cases to hold office, the action does not abate and his or her successor is automatically substituted as a party." HRAP Rule 43(c)(1). So ironically, Neil Abercrombie, who promised to end furloughs and enjoys a great relationship with unions, has his name on this one.

How come it's not Moot? And what about the new administration? Unless Abercrombie wanted Lingle's position to prevail, it could have argued that the issue was moot. It would seem to be a good case for the mootness doctrine. After all, the issue of furloughs are long gone. This news is almost as old as the Superferry. Unlike the HGEA opinion, which had a mootness analysis, the HSC here made no reference to the doctrine (or its public-interest exception).

Justice Acoba's Dissent. Justice Acoba dissented. However, his opinion has not been made available yet.

Tuesday, January 17, 2012

Defendants can Argue that the Settled Tortfeasor is Solely Responsible

Adams v. Yokooji (ICA January 13, 2012)

Background. One night in Kailua Stephen Adams got out of a taxi cab and was crossing Kalanianaole Highway in a crosswalk in order to catch the bus when he was hit by a car driven by Robynn Yokooji. Adams' estate sued Yokooji, the Department of Transportation, and Luteru Manu, the taxi driver. Adams claimed that the DOT owed a duty to properly design and maintain the crosswalk and roadway and breached that duty. Adams settled with Yokooji and Manu, and prepared for trial against the DOT.

Adams filed a motion in limine; the motion sought an order precluding the DOT from introducing evidence to establish or infer liability or negligence of the settled defendants. The circuit court granted the motion and prohibited the DOT from using any evidence or arguing that the accident was entirely caused by the settled defendants. During the opening statements, Adams said that the DOT's maintenance of lighting, traffic signs, and crosswalk signage would show its negligence. The DOT countered during its opening that the lighting and signage were not causes of the accident. In fact, according to the DOT, there was evidence that the lights were in perfect working order that night. Adams immediately objected and argued that that evidence served no purpose other than to show that Yokooji was solely at fault. The circuit court permitted the DOT to continue with its opening.

The DOT moved onto state that Helen Rasay was driving behind Yokooji and saw Adams crossing the road. Adams objected again on the same grounds. The circuit court overruled the objection. The DOT moved onto discuss its expert who would testify about the "line of sight" establishing that Yokooji should have been able to see Adams. Again, Adams objected. The DOT finally maintained that without this evidence, it would not be able to defend itself. After the DOT finished its opening statement, the circuit court permitted Adams to file an interlocutory appeal to resolve the issue.

The Effect of Settling with only one Joint Tortfeasor. A good-faith settlement with a joint tortfeasor shall "not discharge any other joint tortfeasor or co-obligor not released from liability unless its terms so provide[.]" HRS § 633-15.5(a)(1). The statute also reduces "the claims against the other joint tortfeasor . . . and [d]ischarge[s] the part to whom it is given from all liability for any contribution to any other joint tortfeasor or co-obligor." HRS § 633-15.5(a)(2)-(3). Moreover, a good-faith settlement bars other tortfeasors from claims against the settling tortfeasor and dismisses all cross-claims filed against the settling joint tortfeasor. HRS § 633-15.5(d); see also Troyer v. Adams, 102 Hawai'i 399, 77 P.3d 83 (2003).

The Remaining Claim Against the DOT. The plaintiff has the burden of proving the elements to a negligence action--duty, breach of duty, causation, and damages. Takayama v. Kaiser Found. Hosp., 82 Hawai'i 486, 498-99, 923 P.2d 903, 915-16 (1996). Here, the Plaintiffs planned on showing that the DOT's negligence brought about Adams' death. The DOT, however, intended to show that it was not a joint tortfeasor and that it did not cause the accident. In order to challenge the causation element, the DOT has to show that it was not bad lighting but driver inattentiveness that brought about the death. The ICA determined whether the DOT should be permitted to present evidence rebutting Adams' causation evidence. The ICA answered in the affirmative.

Evidence that the Settled Defendant was Solely Responsible is not Precluded by Statute. The ICA held that evidence pointing the finger directly at a defendant who already settled before trial is not barred by HRS § 633-15.5. The ICA relied on precedent from Illinois. Leonardi v. Loyola Univ. of Chicago, 658 N. E. 2d 450, 459 (Ill. 1995) ("if there is evidence that negates causation, a defendant should show it."); Nolan v. Weil-McLain, 910 N. E. 2d 549, 564 (Ill. 2009) ("the plaintiff exclusively bears the burden of proof to establish the element of causation through competent evidence, and that a defendant has the right to rebut such evidence and to also establish that the conduct of another causative factor is the sole proximate cause of the injury."); Ready v. United/Goedecke Services, Inc., 939 N. E. 2d 417, (defendant may "present evidence that the injury was the result of another cause.") (Ill. 2010).

The Right to Rebut a Plaintiff's Claim is far from Revolutionary. The ICA expressly adopted the Illinois precedent. In doing so, the ICA seems to have impliedly held that just as much as the plaintiff has a right to bring the action and prove negligence claims--including the causation element--the defendant has the right to rebut that element with evidence negating causation. This is far from revolutionary. It is not a new defense at all. HRS § 663-15.5 does not discuss what evidence is admissible at trial, but rather the legal effect of settling with a joint tortfeasor.

So what does the Statute do? The ICA, in a footnote, stated that if the DOT's evidence is insufficient and Adams prevails, the statute prevents the DOT from recovering against the settled defendants.

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.