Steigman v. Outrigger Enters., Inc.

126 Hawai'i 133

267 P.3d 1238

Michele R. STEIGMAN, Petitioner–Plaintiff–Appellant,

v.OUTRIGGER ENTERPRISES, INC., dba Ohana Surf Hotel, Respondent–Defendant–Appellee.

No. SCWC–28473.

Supreme Court of Hawai‘i.

Dec. 15, 2011.

Janice P. Kim, for petitioner-plaintiff-appellant.

Dennis E.W. O'Connor and Michael J. McGuigan of O'Connor Playdon & Guben, LLP, for respondent-defendant-appellee.

Arthur Y. Park and John C. McLaren, for Amicus Curiae Hawai‘i Association for Justice.

RECKTENWALD, C.J., NAKAYAMA and DUFFY, JJ., and Circuit Judge WILSON, Assigned by Reason of Vacancy; and ACOBA, J., concurring separately.

Opinion of the Court by NAKAYAMA, J.

Petitioner–Plaintiff–Appellant Michele R. Steigman brought this tort action to recover damages after suffering a slip-and-fall accident while she was a guest of Respondent–Defendant–Appellee Outrigger Enterprises' Ohana Surf Hotel. The case went to trial, and a jury found that Outrigger was not negligent.¹ Steigman's appeal to the Intermediate Court of Appeals ("ICA") resulted in a Summary Disposition Order affirming the trial court's final judgment.

Steigman's application for writ of certiorari presents a question of first impression, namely, whether Hawaii's comparative negligence statute nullifies the common law tort defense barring recovery for plaintiffs injured by known or obvious dangers. Prior to the legislative enactment of comparative negligence, the courts of this state applied the rule of contributory negligence, and an injured plaintiff was denied recovery upon a showing that her negligence contributed to her own injury. Torres v. Northwest Engineering Co., 86 Hawai‘i 383, 399 n. 8, 949 P.2d 1004, 1020 n. 8 (App.1997). Then, "[a] legislative perception of unfairness in the common law doctrine of contributory negligence led to the passage of our modified comparative negligence statute in 1969." Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 403–04, 642 P.2d 930, 932 (1982). The statute, Hawai‘i Revised Statutes (HRS) § 663–31, states, in relevant part:

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, if such negligence was not greater than the negligence of the person or in the case of more than one person, the aggregate negligence of such persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.

HRS § 663–31(a) (1993). This statute eliminates contributory negligence, and instead provides that an injured plaintiff may recover against a defendant even if her negligence contributed to her own injury, as long as her negligence is not greater than that of the defendant.

Steigman contends that the traditional known or obvious danger defense conflicts with the Legislature's intent behind the comparative negligence statute. We agree. We therefore hold that in Hawai‘i, the known or obvious danger defense is no longer viable as a complete bar to an injured plaintiff's claim in the context of premises liability.

I. BACKGROUND

Steigman's application poses two questions. She asks whether, as a matter of law, the known or obvious danger defense is inconsistent with comparative negligence, and whether, as applied in her case, the jury instruction on the defense was properly given. We answer her first question in the affirmative, eliminating the need to consider her second question; thus a thorough review of the details of her case and the evidence presented over eight full days of trial is unnecessary. Nonetheless, this case is illustrative of the difficulty in applying the known or obvious danger defense. As such, a brief review of the facts of this case follows.

A. Trial Proceedings

In 2003, Steigman and her family were guests of the Ohana Surf Hotel in Honolulu. On the afternoon of March 6, Steigman and her family got caught in a rainstorm and returned to their hotel room to dry off. When Steigman went on the lanai² to get a chair, she slipped, slid across the balcony, and sustained injury to her foot when it got trapped under the lanai railing.

Steigman filed this lawsuit against Outrigger alleging negligence. At trial, Steigman presented evidence to prove that the hotel lanai was unsafe. An expert witness testified that the lanai's surface did not have the friction coefficient required by industry standards for exterior surfaces. Steigman's daughter testified that the lanai had a glossy surface, so it was difficult to determine by sight alone whether it was wet or dry. Steigman also presented evidence that an Outrigger employee had suffered a similar slip-and-fall accident on a lanai at the hotel, and therefore Outrigger knew of the dangerous condition. Throughout the trial, Outrigger argued that Steigman's injury was caused solely by Steigman's own negligence because the wet lanai presented a known or obvious danger of being slippery, and she chose to confront that danger.

At the conclusion of the trial, Outrigger proposed the following jury instruction: "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." The court refused Outrigger's instruction and proposed the following instruction, fashioned after the Restatement (Second) of Torts:

A hotel operator is not liable to its guests for physical harm caused to them by any activity or condition in the hotel whose danger is known or obvious to them, unless the hotel operator should anticipate the harm despite such knowledge or obviousness.

The word "known" denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. "Obvious" means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the guest, exercising ordinary perception, intelligence, and judgment.

Steigmen's counsel objected to this instruction on the grounds that it was not supported by the evidence and that it conflicted with this state's comparative negligence statute. The court replied "Okay. And the Court's giving it because [of] the fact that it was raining, and the plaintiff knew it was raining."

The court provided the jury with a special verdict form. The first question asked "Was defendant Outrigger Enterprises, Inc., doing business as Ohana Surf Hotel, negligent?" The jury answered "no". As instructed by the form, the jury did not answer any further questions. The trial court entered a final judgment in favor of Outrigger, and ordered Steigman to pay Outrigger $29,722.30 for costs.

B. The ICA's June 8, 2010 Summary Disposition Order

On appeal before the ICA, Steigman asserted five points of error. Three points of error are no longer relevant to this appeal. The remaining two of the points of error concerned the known or obvious danger instruction: Steigman argued that the facts of her case did not support the instruction, and that the instruction fundamentally conflicts with Hawaii's comparative negligence statute.

On November 16, 2010, the ICA filed a Summary Disposition Order affirming the trial court's judgment. Steigman v. Outrigger Enterprises, Inc., No. 28473, 2010 WL 4621838 (App. Nov. 16, 2010) (SDO). Therein the ICA affirmed the trial court's judgment on all five points of error. With regard to the known or obvious danger arguments, the ICA held that the instruction was proper because there was substantial evidence to support the jury's finding. Steigman, 2010 WL 4621838 at *7 n. 5. The court also held that "there is no inherent conflict between the known or obvious doctrine and the comparative negligence statute," because the finding of a known or obvious danger completely absolves a landowner of his duty to people on his premises. Steigman, 2010 WL 4621838 at *6. The ICA's reasoning was as follows:

[I]f the finder of fact determines that the hazard falls within the known or obvious doctrine, the question of comparative negligence is never reached as the defendant owes no duty to the plaintiff, and accordingly, cannot be negligent as a matter of law. In the absence of a legal duty owed to the plaintiff, there is no negligence to compare under HRS § 663–31.

Steigman, 2010 WL 4621838 at *6.

On December 16, 2010, the ICA filed its Judgment on Appeal. On February 10, 2011, Steigman filed a timely application for writ of certiorari. This court accepted Steigman's application on March 23, 2011 and heard oral argument on May 5, 2011.

II. STANDARD OF REVIEW

"Questions of statutory interpretation are questions of law reviewable de novo." Hawaii Government Employees Ass'n, AFSCME Local 152, AFL–CIO v. Lingle, 124 Hawai‘i 197, 201–02, 239 P.3d 1, 5–6 (2010) (quoting Gump v. Wal–Mart Stores, Inc., 93 Hawai‘i 417, 420, 5 P.3d 407, 410 (2000) ).

III. DISCUSSION

The case at bar presents a question of first impression. However, the central core of the question is familiar, in that it requires this court to reexamine a traditional, judge-made rule of tort law in modern context, an analysis this court has previously undertaken. For example, until 1969, the state followed the common law rule that a landowner's duty to a visitor was determined by the visitor's purpose for being on the land; a landowner owed a high duty of care to visitors on the land for business purposes, called "invitees," but a smaller scope of duty to visitors there for non-business purposes, called "licensees." W. Page Keeton, et al., Prosser and Keeton on the Law of Torts §§ 60 and 61, at 412 and 419 (5th ed. 1984). Then in 1969, this court abandoned the common law invitee/licensee distinctions and...