Jacobs v. Billy Casper Golf, LLC

150 Hawai‘i 289

500 P.3d 474

Jessica L. JACOBS and John N. Jacobs, Plaintiffs-Appellants,

v. BILLY CASPER GOLF, LLC; Bank of Hawaii, as Trustee of the Kukuiolono Park Trust Estate; Kukuiolono Park and Golf Course; Kukuiolono Park Trust Estate; Kukuiolono Management, LLC, Defendants-Appellees,andJohn Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-profit" Corporations 1-10; and Roe Governmental Entities 1-10, Defendants

NO. CAAP-16-0000792

Intermediate Court of Appeals of Hawai‘i.

SEPTEMBER 29, 2021

On the briefs:

Sue V. Hansen, Honolulu, for Plaintiffs-Appellants

Chad P. Love, Barbara Kirschenbaum, and Chuck T. Narikiyo (Love & Kirschenbaum), Honolulu, for Defendants-Appellees

GINOZA, C.J., WADSWORTH AND NAKASONE, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

Plaintiffs-Appellants Jessica L. Jacobs (Jessica ) and John N. Jacobs (John ) (collectively, the Jacobses ) appeal from the November 29, 2016 Final Judgment (Judgment ), entered by the Circuit Court of the Fifth Circuit (Circuit Court ), in favor of Defendants-Appellees Billy Casper Golf, LLC (BCG ); Bank of Hawaii, as Trustee of the Kukuiolono Park Trust Estate (BoH ); Kukuiolono Park and Golf Course (KPGC ); Kukuiolono Park Trust Estate; and Kukuiolono Management, LLC (KM ) (collectively, the KPGC Defendants ).¹ The Jacobses also challenge the Circuit Court's October 11, 2016 "Order Granting [the KPGC] Defendants' Motion for Summary Judgment, Filed 07/20/16" (Order Granting Summary Judgment ).²

On appeal, the Jacobses contend that the Circuit Court erred in granting summary judgment against them and in favor of the KPGC Defendants. The Jacobses argue there were genuine issues of material fact as to whether the Hawai‘i Recreational Use Statute (HRUS ), Hawaii Revised Statutes (HRS ) Chapter 520, quoted infra, immunized the KPGC Defendants from tort liability for the Jacobses' personal injuries.

We hold that the Circuit Court correctly concluded there was no genuine issue of material fact that: (1) the KPGC Defendants were "owners" of land as defined by the HRUS for purposes of applying the statute's immunity provisions; and (2) on the day she was injured, Jessica was on the KPGC premises for a "recreational purpose," within the meaning of the HRUS. We further hold, however, that the Circuit Court erred in concluding there were no genuine issues of material fact as to whether the KPGC Defendants knowingly created or perpetuated, and wilfully or maliciously failed to guard or warn against, an alleged dangerous condition on the KPGC premises. Accordingly, we vacate the Judgment and remand the case to the Circuit Court for further proceedings consistent with this opinion.

I. Background

This appeal arises out of a personal injury lawsuit brought by Jessica and her husband John against the KPGC Defendants. The following facts are undisputed: On February 16, 2013, at about 5:30 p.m., Jessica entered the grounds of Kukuiolono Park and Golf Course, in Kalaheo, Kauai, by car. There was no charge to enter, and Jessica did not purchase anything at KPGC that day. As she had done on prior occasions, Jessica went to KPGC that day to feed or water chickens on the park grounds. Jessica parked her car in a parking lot adjacent to a grassy area of the golf course – an area that is bordered by trees and other vegetation. Jessica was standing in the grassy area on the right side of her car, when she was struck by a large tree branch that fell on her. Jessica suffered a fractured left ankle that required surgery and rehabilitation treatment.

On October 28, 2014, Jessica and John filed a Complaint against the KPGC Defendants. Jessica asserted a claim for negligence and John asserted a claim for loss of consortium. On January 2, 2015, Jessica and John filed a First Amended Complaint alleging the same claims.

Following discovery, on July 20, 2016, the KPGC Defendants filed a motion for summary judgment. The KPGC Defendants argued that the Jacobses' personal injury claims were barred by the HRUS as a matter of law. In support of their motion, the KPGC Defendants submitted various declarations, deposition excerpts and documents to establish the requisites for invoking the liability protections of the HRUS. Based on this evidence, the KPGC Defendants argued that: (1) KPGC was open to the public; (2) KPGC was open for "recreational purposes"; (3) admission to KPGC was without charge; (4) the KPGC Defendants did not engage in a "wilful or malicious" failure to guard or warn against a dangerous condition; (5) Jessica was not the KPGC Defendants' "house guest"; and (6) all of the KPGC Defendants were entitled to summary judgment because they were all "owners" within the meaning of the HRUS.

On September 16, 2016, the Jacobses filed their memorandum in opposition to the KPGC Defendants' motion for summary judgment. In support of their opposition, the Jacobses argued that there were genuine issues of material fact as to whether the HRUS immunized the KPGC Defendants from the Jacobses' personal injury claims, which precluded summary judgment. The Jacobses submitted various declarations, deposition excerpts and documents to demonstrate the facts that presented a genuine issue for trial. Based on this evidence, the Jacobses argued that: (1) "wilful or malicious" conduct was a question of fact for the jury and was not appropriate for summary judgment; (2) there was a genuine issue of material fact as to whether the KPGC Defendants' alleged failure to guard or warn was wilful or malicious; (3) the KPGC Defendants were not within the class of "owners" that the HRUS was meant to protect; and (4) Jessica's feeding of chickens (or cats) at KPGC was not a recreational purpose under the HRUS.

On September 22, 2016, the KPGC Defendants filed a reply memorandum in support of their motion for summary judgment.

On September 27, 2016, the motion for summary judgment was heard by the Circuit Court. Following extensive oral argument by both sides, the Circuit Court granted the motion for summary judgment. On October 11, 2016, the Circuit Court entered the written Order Granting Summary Judgment.

On November 29, 2016, the Circuit Court entered the Judgment. The Jacobses filed a timely notice of appeal.

II. Points of Error

The Jacobses raise five points of error on appeal,³ contending that:

1. The Circuit Court's grant of summary judgment was in error because the court applied the KPGC Defendants' "self-styled five-prong test, which is not a valid legal standard under Hawai‘i law."

2. The Circuit Court erred in not considering whether any of the KPGC Defendants is "an ‘owner’ as contemplated under [HRS] § 520-2 before granting all [of the KPGC Defendants] immunity from liability."

3. The Circuit Court erred in finding that Jessica's activity at KPGC on the date of the incident "was for a ‘recreational purpose’ as contemplated under [HRS] § 520-2."

4. "Whether [the KPGC Defendants'] conduct was wilful or malicious is an issue of fact for the jury and not appropriate for summary ... adjudication."

5. Even if wilful or malicious conduct was an appropriate issue for summary adjudication, the Circuit Court erred "in failing to consider whether [the KPGC Defendants'] conduct was wilful or malicious for failing to warn or guard against a dangerous condition that they created or perpetuated ...."

III. Standards of Review

A. Summary Judgment

An appellate court reviews a trial court's grant or denial of summary judgment de novo using the same standard applied by the trial court. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai‘i 331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 (2015) ). "Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. at 342, 418 P.3d at 1198 (quoting Adams, 135 Hawai‘i at 12, 346 P.3d at 81 ) (brackets omitted). "A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Id. (quoting Adams, 135 Hawai‘i at 12, 346 P.3d at 81 ).

The moving party has the burden to establish that summary judgment is proper. Id. (citing French v. Haw. Pizza Hut, Inc., 105 Hawai‘i 462, 470, 99 P.3d 1046, 1054 (2004) ). "Once a summary judgment movant has satisfied its initial burden of producing support for its claim that there is no genuine issue of material fact, the party opposing summary judgment must ‘demonstrate specific facts, as opposed to general allegations, that present a genuine issue worthy of trial.’ " Id. (quoting Lales v. Wholesale Motors Co., 133 Hawai‘i 332, 359, 328 P.3d 341, 368 (2014) ) (brackets omitted). "The evidence must be viewed in the light most favorable to the non-moving party." Id. (quoting Adams, 135 Hawai‘i at 12, 346 P.3d at 81 ) (brackets omitted).

B. Statutory Interpretation

"The interpretation of a statute is a question of law reviewable de novo." McLaren v. Paradise Inn Hawaii LLC, 132 Hawai‘i 320, 327, 321 P.3d 671, 678 (2014) (citing Lindinha v. Hilo Coast Processing Co., 104 Hawai‘i 164, 171, 86 P.3d 973, 980 (2004) ). When construing a statute, we apply well-settled principles of statutory construction:

We first examine the language of the statute itself. [State v. ]Choy Foo, 142 Hawai‘i [65, ]72, 414 P.3d [117, ]124[ (2018)]. If the language is plain and unambiguous, we must give effect to its plain and obvious meaning. Id. Also, implicit in statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language of the statute itself. Id. Finally, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute,

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