No Foresseability Invites an Error that's Not Plain.


Moyle vs. Do Re Mi Karaoke (ICA Nov. 8, 2007)

Background. After a long night of drinking, Moyle went to the Do Re Mi Karaoke Bar in the wee hours to drink some more. As he was leaving the back door, Moyle was beat up and robbed by some other guy. Tupuola was found criminally liable. Moyle sued Do Re Mi claiming negligent failure to provide adequate security and negligently failing to protect its patrons. At trial, Moyle tried to get police reports about the incident into evidence, but the circuit court precluded them. Moyle also challenged the jury instructions. A jury trial entered a verdict in Do Re Mi's favor. Moyle appealed.

Failure to Define Foreseeability Errors Precluded by Invited-Error Doctrine. Moyle challenged two instructions that related to the foreseeability of criminal acts by a 3d party. The ICA held that this was invited-error. The invited-error doctrine prohibits a party who brings about the error at the trial level from raising that error on appeal. Kealoha v. Tanaka, 45 Haw. 457 (1962).

For jury instructions, invited error arises when the party appealing the contents of an instruction was responsible for the instruction; when the party agreed to the contested instruction; and when the party contends the omission of an instruction brought on by that party's own actions (e.g. party withdraws an instruction that the party later argues should've been read). In this case, Moyle withdrew a clear instruction on foreseeability, but failed to offer a substitute. Now, Moyle argues that there should have been an instruction. The ICA held this to be an invited error.

Not Plain Error Either. Invited error can be overlooked if it's plain error. The ICA took a rigorous plain-error analysis and would only recognize it if (1) the issue doesn't involve questions of fact; (2) the issue does not go to the "integrity of the fact-finding process"; and (3) the issue doesn't go involve questions of "great public import." As to the 2d prong, because the jury is the factfinder, the failure to instruct it would affect the integrity of its findings. In Montalvo v. Lapez, 74. Haw. 308 (1994), the HSC found plain error after its invited-error analysis. The error in Montalvo pertained to the failure to clearly defined "legal cause" to the jury. The HSC held that this was an error because "legal cause" is "a concept foreign to most non-lawyers[.]"

The ICA here distinguished Montalvo because, unlike "legal cause," foreseeability is a common term that can be understood by most non-lawyers. The ICA then engages in a nice discussion of forseeability and the duty of business owners, if any, to protect its patrons from criminal acts.
Generally, such criminal acts are so unlikely in any circumstance, that the burden of taking precautions against them almost always exceeds the risk absent a special relationship such as the business-establishment-patron relationship. There was an affirmative duty between Moyle and Do Re Mi. Nevertheless, according to the ICA, "forseeability" is a term that is generally understood by non-lawyer jurors. So while Do Re Mi did indeed have a duty to protect Moyle, and while the circuit court failed to clearly define the term, leaving out an instruction on "foreseeability" did not compromise the integrity of the jury’s findings and wasn't plain error either.

This could take us down a strange path. If plain error hinges on whether the concept that was not clearly defined is familiar to laypersons rather than lawyers, it'll be difficult in the future to determine just where exactly that line is. "Legal cause" may be familiar to lawyers and only lawyers. "Forseeability," is a common enough term. But what about something like, say "punitive damages"? Is that a term known only to lawyers? It is, after all, a term of art that needs to be explained and has been defined by courts. On the other hand, the same can be said about "foreseeability" and the opinons, including this one, that have waxed eloquently on the subject. The arguments from this line of reasoning could be hardly foreseeable.

Other Issues Did Not Warrant Reversal. As with many civil appeals, there were other issues in this case, and none went to a favorable result for Moyle. Thus, a victory for karaoke bars statewide.

Editor's Note-- This opinion was briefed by Kirstin Hamman. Thanks Kirstin!


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