Winfrey v. GGP ALA Moana LLC

130 Hawai'i 262

308 P.3d 891

Heather R. WINFREY, Individually and as Personal Representative for the Estate of Jasmine Rose Anne Fry, and Samuel J. Fry, Jr., Petitioners/Plaintiffs–Appellants,

v.GGP ALA MOANA LLC dba Ala Moana Center, Respondent/Defendant–Appellee.

No. SCWC–30589.

Supreme Court of Hawai‘i.

July 18, 2013.

Michael J. Green, Glenn H. Uesugi, and Myles S. Breiner, Honolulu, for petitioner.

Patricia M. Napier, Thomas Benedict, and Kimberly A. Vossman, Honolulu, for respondent.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., and Circuit Judge TRADER, Assigned by Reason of Vacancy; With ACOBA, J., Concurring and Dissenting Separately.

Opinion of the Court by McKENNA, J.

I. Introduction

Jasmine Rose Anne Fry ("Fry") somehow accessed the rooftop of Ala Moana Center ("Center"), entered into and became trapped in an exhaust duct above the Makai Market Food Court ("Food Court"), then died from hyperthermia and respiratory compromise. Her parents, Heather R. Winfrey and Samuel J. Fry, Jr. (collectively, "Plaintiffs"), sued GGP Ala Moana LLC dba Ala Moana Center ("Ala Moana"). Before a trial date had been set, Ala Moana moved for summary judgment on the grounds that (1) it did not owe Fry a duty of care because she was a trespasser; and (2) it could not be held liable for its affirmative attempts to render aid. The Circuit Court of the First Circuit ("circuit court") granted summary judgment in favor of Ala Moana on all of Plaintiffs' claims.¹ The Intermediate Court of Appeals ("ICA") affirmed on appeal, concluding that Ala Moana did not owe Fry a legal duty under any theory of liability.

We hold that summary judgment was properly granted on Plaintiffs' general premises liability claims against Ala Moana as a possessor of land because: (1) Ala Moana owed no duty to a person not reasonably anticipated to be on the rooftop and, based on the admissible evidence, Fry could not have reasonably been anticipated to be on the rooftop; (2) even if Ala Moana should have reasonably anticipated Fry's presence on the rooftop, it still could not be held liable because Fry's entry into the exhaust vent was not reasonably foreseeable; therefore, any breach of its general duty as a possessor of land was not a substantial factor in causing Fry's injuries and/or death; (3) whether or not Fry had the mental capacity to voluntarily enter the exhaust duct is irrelevant to Ala Moana's general premises liability duty; (4) the doctrine of res ipsa loquitur is inapplicable; and (5) Plaintiffs' other theories as to how Fry ended up on the rooftop are speculative and constitute intentional torts for which Ala Moana cannot be held vicariously liable.

We also hold, however, that pursuant to section 338 of the Restatement (Second) of Torts, adopted by this court in Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977), as a possessor of land in immediate control of the heat, smoke, and gasses emanating from stoves in the Food Court into the exhaust duct, and knowing of Fry's presence in dangerous proximity to those forces, Ala Moana had a duty to exercise reasonable care to control those forces to prevent them from doing harm to Fry, even if she was a trespasser. Genuine issues of material fact exist as to (1) whether Ala Moana breached its duty under section 338; and (2) if so, whether such breach was a substantial factor in causing Fry's injuries and/or death.

In addition, we hold that, pursuant to section 314A(3) of the Restatement (Second) of Torts, as a possessor of land who held its land open to the public, Ala Moana had a duty to members of the public who entered the Center in response to its invitation to take reasonable action to give first aid after it knew or had reason to know that such persons were ill or injured, and to care for such persons until they could be cared for by others. Genuine issues of material fact exist to (1) whether Fry was a member of the public who entered the Center in response to Ala Moana's invitation; (2) if so, whether Ala Moana breached its duties under section 314A(3); and (3) if so, whether such breach was a substantial factor in causing Fry's injuries and/or death.

Therefore, we vacate in part and affirm in part the ICA's judgment in favor of Ala Moana, and remand the case to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Factual Background

Reviewing the law de novo and the facts and in the light most favorable to Plaintiffs, pursuant to the standards governing appellate review of summary judgment motions,² the following factual background can be gleaned from the evidence in the record.³

On Saturday, September 3, 2005, at around five or ten minutes after 2:00 p.m., Cary Oshiro ("Oshiro"), a maintenance worker employed by Ala Moana, responded to a call from the Poi Bowl restaurant at the Food Court indicating its exhaust fan was not working. Oshiro was at Poi Bowl for less than a minute. While there, security officers were also responding to a smoke alarm at Little Café Siam, next door. Because the two restaurants shared the same exhaust vent, Oshiro proceeded to the rooftop to determine whether the exhaust fan was functioning.

Before proceeding to the Bally rooftop, where these ducts eventually ended, Oshiro called the security control center to explain that he would be accessing a secured gate to the stairwell.⁴ He then used an electronic swipe card to open the gate and proceeded upstairs.⁵ Normally, the magnetic lock on the gate was wired to a silent alarm system that would signal whether the gate was open or closed, and the lock was monitored in the security control center. That afternoon, however, the alarm for the gate was not functioning properly, and there was no video surveillance of the area. Ala Moana's security and maintenance personnel were the only people with access to these areas and, during the relevant time period, no keys or access cards had been reported lost or stolen.⁶

Oshiro proceeded to unlock a padlock on the hatch that opened onto the rooftop. When he reached the rooftop, he checked the exhaust fan and determined that it was not running. A young woman, later identified as Fry, appeared from behind the fan. Fry was barefoot, dressed in shorts and a tank top, and had grease smeared on her feet, hands, hair and face. She did not appear to have any noticeable injuries.

Oshiro asked Fry what she was doing on the rooftop, and she responded that she was a contractor hired to clean grease from the fan. When Oshiro asked whether security knew she was working on the rooftop, she said, "Yes." When he asked who had contracted her to do the work, Fry responded, "A guy named Joe." These answers struck Oshiro as odd because that type of work typically was not done during business hours, when the restaurants needed the exhaust fans. Oshiro then asked how she had gotten onto the rooftop, but Fry did not answer. He repeated the question two or three times, and she responded, "No, it doesn't matter." Oshiro noticed that Fry was jumpy and seemed nervous.

One to three minutes after first encountering Fry on the rooftop, Oshiro called security to verify her story. As he did, Fry climbed on top of the exhaust duct and began jumping up and down. Oshiro asked her what she was doing, but she did not respond. He then asked her to come down, and she climbed off the duct.

Charles (or Kazu) Yokoyama ("Yokoyama"), a senior maintenance mechanic, joined Oshiro on the rooftop, and Oshiro explained the situation to him. In the meantime, Fry had climbed back onto and started jumping forcefully on the duct. Yokoyama asked her to come down and talk to them, but Fry did not respond. As Fry continued jumping, Yokoyama stepped away to call security.

Fry then told Oshiro that there was a baby in the duct. Oshiro asked her what she was talking about, and Fry responded, "No, nothing. You know, it doesn't matter." At this point, two to five minutes had passed since Oshiro first encountered Fry. Eventually, the force of Fry's jumping caused the sheet metal to collapse inward, creating a hole about six to eight inches high and two feet wide. Fry slid her feet inside the opening and squeezed into the duct as the metal bent under her weight. Upon witnessing this, Oshiro again called security, and asked that a security officer be sent to the roof.

In the meantime, Derek Hangai ("Hangai"), in the security control center, checked Ala Moana's records to determine whether any contractors had been scheduled to work on the rooftop. As he confirmed with the Poi Bowl and Little Café Siam that neither restaurant was aware of any work scheduled that day, Oshiro called to report that Fry had climbed into the exhaust duct. Hangai stated he did not remember whether he asked Lieutenant Henry Tancayo ("Tancayo") or dispatcher Brian Babauta ("Babauta") if he should call emergency services upon learning that Fry had climbed into the duct.

Ala Moana security officer Lukela Bagood ("Bagood") arrived on the rooftop just as Fry was entering the exhaust duct. Bagood had been instructed by his supervisor, Tancayo, to arrest or detain Fry if possible. Bagood relayed to Tancayo that Fry was inside the duct, but he did not recall whether anyone asked if they should call emergency services. Security officer Jowana Lobendahn ("Lobendahn") responded later, at approximately 2:35 p.m. Lobendahn stuck her head into an opening in the duct and attempted to locate Fry. Lobendahn asked Fry if she was injured, and Fry responded "No." Lobendahn then continued to communicate with Fry and told her to stay where she was, but Fry stopped responding. After two or three minutes, however, Oshiro and Yokoyama heard a loud banging from inside the duct, followed by silence.

In an attempt to locate Fry, Lobendahn, Yokoyama, and Oshiro followed the route of the ventilation duct inside the building. Lobendahn went one level down to the Gucci corridor, where she kicked and banged on the duct to see if Fry could hear her. She then returned to the...