Sang v. Clark

130 Hawai'i 282

308 P.3d 911

Tracy AH MOOK SANG, as the Personal Representative of the Estate of Makamae Ah Mook Sang, Deceased, Tracy Ah Mook Sang, individually, and Jason Ah Mook Sang, individually, Plaintiffs–Appellants,

v.Michael CLARK, Denise Clark, and Eden Pacific Properties, Inc., Defendants–Appellees.

No. SCAP–11–0000536.

Supreme Court of Hawai‘i.

Sept. 3, 2013.

Thomas M. Otake, (Diane K. Agor–Otake with him on the briefs), Honolulu, for plaintiffs-appellants.

Jonathan L. Ortiz, (Wade J. Katano, Honolulu, and Christine S. Prepose–Kamihara with him on the briefs), for defendants-appellees.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., Circuit Judge ALM, in place of ACOBA, J., recused, and Circuit Judge AYABE, in place of POLLACK, J., recused.

Opinion of the Court by NAKAYAMA, J.

Makamae Ah Mook Sang, according to the allegations in the complaint in this case, was fifteen years old on July 29, 2009 when she attended a house party hosted by Michael Clark, then twenty-five years old. Once there, Makamae was allegedly served and encouraged to drink large amounts of hard liquor. At some point during the night, she allegedly began to feel ill and then became unconscious, yet neither Michael nor his mother Denise Clark, with whom he lived and who was present on the property at the time, rendered or summoned any aid. The next morning, Michael then allegedly assisted in loading Makamae's apparently still-unconscious body into her friend's car and simply directed the friend to leave the property. According to medical personnel, by that time Makamae had likely already died of acute alcohol intoxication.

Makamae's parents, Tracy, individually and as personal representative of Makamae's estate, and Jason, individually (collectively, the Ah Mook Sangs), brought the present negligence action against Michael, Denise, and Eden Pacific Properties, Inc. (collectively, the Clarks). They seek damages under Hawai‘i Revised Statutes (HRS) § 663–3, Hawaii's wrongful death statute, as well as for claims of emotional distress and loss of consortium due to Makamae's death.

After the Circuit Court of the First Circuit¹ granted the Clarks' motion to dismiss the Ah Mook Sangs' complaint for failure to state a claim and entered judgment thereon, the Ah Mook Sangs appealed. The appeal is now before this court pursuant to our order granting the Ah Mook Sangs' application for transfer of the case from the Intermediate Court of Appeals (ICA).

This appeal requires us to consider whether a social host who invites a minor onto his or her property and then directly serves alcohol to the minor owes a duty of care to prevent foreseeable injuries resulting from consumption of the alcohol, or to render or summon aid if injuries have occurred, while the minor remains on the property as a guest. While this court has previously decided cases addressing civil liability for alcohol-related injuries, we conclude, based on the discussion that follows, that those cases are factually distinguishable from the situation presented by this case. We also conclude that the statute enacted to create a right of action founded on social host liability does not apply in a case such as this where the intoxicated minor has not caused damage or injury to an innocent third party.

Accordingly, we hold that a social host in the circumstances presented in this case owes a duty of care to a minor when the host has placed the minor in a position of peril and does not act to prevent foreseeable harm to the minor that may thereby result, and when the host does not act to aid the minor in the event that harm has occurred. We therefore vacate the order and judgment of the circuit court and remand for further proceedings in this case.

I. BACKGROUND

A. Factual Background

Because this case is on appeal from a grant of a motion to dismiss the complaint, the facts alleged in the complaint are deemed to be true and viewed in the light most favorable to the Ah Mook Sangs. See, e.g., Buscher v. Boning, 114 Hawai‘i 202, 212, 159 P.3d 814, 824 (2007) (quoting Wong v. Cayetano, 111 Hawai‘i 462, 476, 143 P.3d 1, 15 (2006) ).

On July 29, 2009, twenty-five-year-old Michael hosted a party at his residence in Honolulu. Denise, who is Michael's mother, also resided at the house and was present on the property during the party. The house was owned by Eden and Anne Clark, who is Denise's mother and Michael's grandmother. Denise is listed as the registered agent, president, and owner of Eden, a real estate company registered in the State of Hawai‘i as a for-profit domestic corporation.

In advance of the July 29 party, Michael purchased alcohol and invited female guests he knew to be under twenty-one years of age, including fifteen-year-old Makamae.

On July 29, Makamae arrived at the party at approximately 10:00 p.m. with an eighteen-year-old friend, who drove, and two other underage females. While at the party during the night of July 29 and early morning hours of July 30, Michael provided large amounts of alcoholic beverages, including hard liquor, to Makamae and the other underage female guests. Michael also organized and facilitated drinking games during the party and encouraged the guests, including Makamae, to participate. Due to consumption of the large amount of alcohol provided by Michael during the party, Makamae became visibly sick and unconscious; however, at no time on July 29 or 30, 2009 did Michael or Denise render aid to Makamae, call an ambulance, or otherwise seek medical attention.

At approximately 10:00 a.m. on July 30, Michael assisted in loading Makamae's body into the car of the friend who had driven and told her to leave the property; she drove straight to the emergency room at Straub Hospital and arrived there at approximately 10:55 a.m. Makamae was pronounced dead at 11:22 a.m., although it appeared that she was already deceased prior to that time. Jason was contacted by Straub Hospital personnel and rushed to the emergency room but arrived after Makamae had been pronounced dead; Tracy was on the mainland at the time and received the news via telephone. An autopsy revealed that Makamae's blood alcohol level at the time of death was .433 grams per deciliter, and the cause of her death was determined to be acute alcohol intoxication. The Ah Mook Sangs also alleged that Makamae did not consume any alcohol on July 29 and 30, 2009 other than what was provided to her by Michael at the party.

B. Procedural Background

The Ah Mook Sangs filed their complaint on November 4, 2010, alleging that the Clarks negligently caused Makamae's death, seeking damages pursuant to HRS § 663–3.²

The Ah Mook Sangs also sought punitive damages.

Michael and Denise filed individual answers on December 9, 2010 and their motion to dismiss the Ah Mook Sangs' complaint for failure to state a claim upon which relief can be granted on February 10, 2011. Eden, which was represented by separate counsel at that time, filed its answer on December 23, 2010 and a joinder in the motion to dismiss on February 22, 2011. In support of the motion to dismiss, the Clarks began by noting that the Ah Mook Sangs' claims were based on the concept of social host liability; under that theory of liability, the Clarks would be held "legally responsible for Makamae's alcohol consumption and ultimate death." Specifically, the Ah Mook Sangs alleged that Michael, "an adult, negligently provided alcoholic beverages to a minor, Makamae, while she was a guest at his property[,]" and that Denise "was ‘present’ at the property while her son, [Michael], was providing alcohol to minors." As the alter-ego of Denise, Eden would be responsible under joint enterprise or agency liability.

While the Clarks acknowledged that the Ah Mook Sangs' claims were grounded in HRS § 663–3, Hawaii's wrongful death statute, the Clarks argued that Hawaii's common law does not recognize a plaintiff's claim for damages based on the concept of social host liability. Moreover, although the Clarks recognized that the Hawai‘i Legislature created a limited exception to the common law in HRS § 663–41³ by allowing claims against social hosts when the host's intoxicated guest who is under twenty-one years of age causes injury or damage to innocent third parties, they emphasized that the intoxicated minor guest has no similar claim against the host under that statute. The Clarks thus also argued that Tracy and Jason are barred from bringing their individual claims because those claims are derivative of the claims brought by Makamae pursuant to HRS § 663–3.

In opposition, the Ah Mook Sangs primarily distinguished the Hawai‘i cases cited by the Clarks as involving situations where intoxicated persons left the property where they consumed the alcohol and then injured themselves or others at a different location. In this case, however, the Ah Mook Sangs stressed that Makamae never left the Clarks' property and thus argued that the Clarks should be held liable because Makamae became ill and died while on their property due to their negligence.

The Ah Mook Sangs argued that, according to this court's opinion in Blair v. Ing, 95 Hawai‘i 247, 259–60, 21 P.3d 452, 464–65 (2001), whether one owes a legal duty to another must be decided on a case-by-case basis and should be determined by consideration of several different factors:

[w]hether a special relationship exists ..., the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered injury, the closeness of the connection between the defendants' conduct and the injury suffered, the moral blame attached to the defendants, the policy of preventing harm, the extent of the burden to the defendants and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk insured.

(Quoting Blair, 95 Hawai‘i at 260, 21 P.3d at 465 (quoting Lee v. Corregedore, 83 Hawai‘i 154, 164, 925 P.2d 324, 334 (1996...