Rapoza v. Willocks Construction Corporation
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***NOT FOR PUBLICATION
NO. 22052
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________
CHARLES L. RAPOZA, as Special Administrator of the Estate of
CHARLES L. RAPOZA, JR., Deceased; CHARLA PUA LINDSEY, as Next
Friend of CHAE-LYNN KEALAPUA LINDSEY; CHARLES RAPOZA, SR.;
THERESA HOLICEK; and CASEY SOUZA, Plaintiffs-Appellants
vs.
WILLOCKS CONSTRUCTION CORPORATION, a Hawai#i corporation,
Defendants-Appellees
and
JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10;
and DOE ENTITIES 1-10, Defendants
(CIV. NO. 96-026K)
---------------------------------------------------------------CHARLES L. RAPOZA, as Special Administrator of the Estate of
CHARLES L. RAPOZA, JR., Deceased; CHARLA PUA LINDSEY, as Next
Friend of CHAE-LYNN KEALAPUA LINDSEY; CHARLES RAPOZA, SR.;
THERESA HOLICEK; and CASEY SOUZA, Plaintiffs-Appellants
vs.
KARL MILTON TAFT; JON GOMES; JON GOMES & ASSOCIATES, INC., a
Hawai#i corporation; ABRAHAM LEE; ABE LEE DEVELOPMENT, INC., a
Hawai#i corporation; KALAOA DEVELOPMENT, INC., a Hawai#i
corporation; KALAOA JOINT VENTURE, a Hawai#i General Partnership
in Dissolution; KALAOA PARTNERS, INC., a Hawai#i corporation;
HAWAII ELECTRIC LIGHT COMPANY, INC., a Hawai#i corporation,
Defendants-Appellees
and
JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants
and
JON GOMES, JON GOMES & ASSOCIATES, INC., ABRAHAM LEE,
ABE LEE DEVELOPMENT, INC., KALAOA DEVELOPMENT, INC.,
KALAOA JOINT VENTURE, DBA KALAOA PARTNERS,
Third-Party Plaintiffs-Appellees
vs.
***NOT FOR PUBLICATION
WILLOCKS CONSTRUCTION CORPORATION, a Hawai#i corporation,
Third-Party Defendant-Appellee
and
JOHN DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; and DOE ENTITIES 1-10,
Third-Party Defendants
(CIV. NO. 96-286K)
_________________________________________________________________
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NOS. 96-026K & 96-286K)
MEMORANDUM OPINION
(By: Acoba, J.; With Moon, C.J., Levinson,
Nakayama, and Duffy, JJ., Concurring)
Plaintiffs-Appellants Charles L. Rapoza, as Special
Administrator of the Estate of Charles L. Rapoza, Jr., Deceased,
Charla Pua Lindsey, as next of Friend of Chae-Lynn Kealapua
Lindsey, Charles Rapoza, Sr., Theresa Holicek, and Casey Souza
(Plaintiffs) appeal from:
(1) the final judgement filed on
October 14, 1998; (2) the judgment filed on April 14, 1998;
(3) the February 13, 1998 order granting the motion for summary
judgment filed by Defendant-Appellee Karl Milton Taft (Taft) on
November 20, 1997; (4) the March 27, 1998 findings of fact,
conclusions of law and order granting the motion for summary
judgment of the complaint filed by Third-Party Plaintiff-Appellee
Abraham Lee on November 15, 1996; (5) the October 16, 1998 order
granting the motion for costs against Plaintiffs filed by
Defendant-Appellee Willocks Construction Corporation (Willocks);1
1
No party addresses the appeal from this order.
argument was presented, this issue is not addressed.
2
As no discernible
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(6) the December 23, 1998 order granting in part and denying in
part the motions for costs filed June 12, 1998, by DefendantAppellee Jon Gomes (Gomes) (decision rendered by court on July 1,
1998);2 and (7) the July 1, 1998 stipulation and order regarding
the taxation of costs3 against Plaintiffs and in favor of Taft.4
For the reasons stated herein, the February 13, 1998
order granting defendant Taft’s motion for summary judgment and
the October 14, 1998 final judgment of the third circuit court
(the court)5 are vacated and the case is remanded in accordance
with this decision.
I.
This wrongful death action arose from the death by
electrocution on November 16, 1994 of Charles Rapoza, Jr.
(Rapoza), a nineteen-year-old construction worker employed by
Tri-S Corporation (Tri-S).
Tri-S was a drilling subcontractor to
Willocks, the general contractor for construction of a
subdivision in North Kona, Hawai#i.
The property was owned by
2
As no discernible
3
As no discernible
No party addresses the appeal from this order.
argument was presented, this issue is not addressed.
No party addresses the appeal from this order.
argument was presented, this issue is not addressed.
4
On August 18, 2003, Willocks filed a Notice of Order Granting Ex
Parte Petition for Omnibus Order Staying All Proceedings. Therefore, pursuant
to the order granting the stay by the third circuit court in S.P. No. 03-10029, “all actions or proceedings in which The Home Insurance Company,
(including Home Indemnity Company and City Insurance Company), was a party or
obligated to defend a party, [were] stayed for six (6) months from the date of
said Order.” A notice of waiver of stay of proceedings was filed on
December 5, 2003.
5
The Honorable Riki May Amano presided over the case.
3
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Gomes.
Gomes entered into a contract with Willocks for
construction of the subdivision improvements.
Willocks had
subcontracted with Tri-S to drill ten dry wells with a drill rig
in the subdivision for a fixed price per dry well.
Tri-S’s drill rig, a Watson 3000, was mounted on the
rear of a large truck.
Attached to the turntable on the truck
was a boom which the operator (who was seated on the rig) could
move by hydraulics both vertically and horizontally.
During
actual drilling, the operator maintained the boom in the vertical
position.
In its vertical position, the top of the boom was
forty-five-plus feet above ground.
The rig also included a
clamshell type device called a “grabber,” which was attached to
the boom’s lower end.
The grabber was used at intervals to
remove dirt and rocks from the dry well being drilled, and to
place the material on the ground near the well.
During this phase, it was necessary for the operator to
position the boom out of the vertical position in order to place
the dirt and rocks at an appropriate location on the ground.
It
was also necessary to position the boom out of the vertical
position when the drill bit (“core barrel”) was removed from the
dry well to discharge dirt and rock from the inside of the core
barrel.
The horizontal distance between the 7200 volt lines of
Defendant-Appellee Hawaii Electric Light Company (HELCO) and dry
4
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wells 2, 3 and 10 were 6’4”, 7’4”, and 17.9’, respectively.
Because of this proximity, the boom length, the height of the
wires of thirty-four feet, and the drill rig dimensions,
Plaintiffs contend that it was not possible to drill any of these
three dry wells unless the drill rig was positioned such that its
boom, when out of the vertical position, could contact adjoining
power wires during grabber operations.
At and before the accident, Hawaii’s Occupational
Safety Health Act (HOSHA) and the federal Occupational Safety
Health Act (OSHA)6 regulations prohibited the operation of
machinery, any part of which was capable, in operation, of coming
within ten feet of high voltage wires, unless the wires were deenergized or insulated.
141-3(d)(6)(C).7
Hawai#i Administrative Rules (HAR) § 12-
The HOSHA regulations also required that the
“owners of the lines or their authorized representatives be
notified and provided with all pertinent information.”
HAR § 12-
6
Although subsequent quotations from transcripts or briefs may
refer to OSHA violations, all incidents related to the November 16, 1994
accident fall within the purview of HOSHA, HRS chapter 396.
7
HAR § 12-141-3(d)(6)(C) states in relevant part:
Safety-related work practices . . . . (d) Special
precautions against electric shock. (6) Proximity of highvoltage lines. (C) The operation, erection, or
transportation of any tools, machinery, or equipment[,] any
part of which is capable of vertical, lateral, or winging
motion shall not be performed if, at any time, it is
possible to bring the tools, machinery, or equipment within
10 feet of high-voltage lines unless the procedures of
subparagraph (F) below are followed. (F) Accidental contact
with high-voltage lines shall be guarded against either by
(i) The erection of mechanical barriers to prevent physical
contact with high-voltage conductors; or (ii) Deenergizing
the high-voltage conductors, and grounding where necessary.
5
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136-2(o)(14)(C)(15).8
Neither Willocks nor Tri-S notified HELCO prior to
drilling dry wells 2, 3 and 10.
The 7200 volt wires next to the
wells were neither de-energized nor insulated during Tri-S’s
drilling of the dry wells.
The HOSHA regulation required a
warning plate on the drill-rig stating that it was prohibited
from operating the machinery if any part of the drill rig could
come within ten feet of high-voltage wires.
plate was installed on the drill rig.
8
No such warning
See HAR § 12-136-2(o)(9).9
HAR § 12-136-2(o)(14)(C)(15) states in relevant part:
Before the commencement of operations near electrical lines,
the owners of the lines or their authorized representative
shall be notified and provided with all pertinent
information. The cooperation of the owner shall be
requested.
In their opening brief, Plaintiffs quote HAR § 12-136-2(C)(15)
which does not seem to exist as cited, but the HAR language is substantially
similar to HAR § 12-136-2(o)(14)(C)(15). The opening brief quotes HAR § 12136-2(C)(15) as follows:
Before the commencement of operations with a derrick near
electrical lines, the employer shall notify the owners of
the lines or their authorized representative and provide it
with all pertinent information. The cooperation of the
owner shall be requested.
In their opening brief, Plaintiffs interpret this regulation to require that
“the OSHA ‘employers,’ before drilling near electrical lines, notify the line
owner, and provide it with pertinent information.”
9
HAR § 12-136-2(o)(9) states in relevant part:
The owner, agent, or employer responsible for the operation
of equipment shall post and maintain in plain view of the
operator on each crane, derrick . . . [or] drilling-rig
. . . durable warning signs legible at 12 feet. One sign
shall read: “This Equipment Shall be Positioned, Equipped,
or Protected So That No Part Shall Be Capable of Coming
Within Ten Feet of High-Voltage Lines.”
6
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Tri-S began drilling operations sometime during 19891990.
To the knowledge of Taft, Tri-S’s president, during the
four to five years of Tri-S’s operation prior to the accident,
Tri-S’s drill rigs, on numerous occasions, drilled within ten
feet of energized, uninsulated high voltage wires.
To the
knowledge of Taft and his senior operator, Robert Delima
(Delima), no one at Tri-S during this period ever requested HELCO
to de-energize or insulate its high voltage wires.
Glenn Ermitano (Ermitano) and his groundman
(assistant), Rapoza, were instructed to work on the dry wells in
question.
After observing HELCO’s 7200 volt wires and the
proximity of some dry wells, Rapoza recommended to Ermitano that
HELCO be contacted to have the wires de-energized.
It was,
however, a decision to be made by Ermitano.
Willocks’ general superintendent, Robert Hons (Hons),
instructed Ermitano and the Willocks foreman that Ermitano had
two options -- (1) drill next to the energized, uninsulated
wires, or (2) Willocks would dig the dry wells with its backhoe.
Ermitano elected the first option at dry wells 2, 3 and 10.
On November 16, 1994, when the operator of the rig at
well 10 leaned the boom to discharge the dirt, a cable on the
boom contacted a wire or came close enough to the wire to cause
an arc, causing Rapoza to be electrocuted.
HOSHA issued eight citations to Tri-S for violations of
the OSHA regulations (five related to electrical safety
7
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violations in connection with Rapoza’s electrocution).
On February 12, 1996, Plaintiffs filed a wrongful death
complaint (Civil No. 96-026K) against Willocks for negligence.
On November 15, 1996, Plaintiffs filed a complaint (Civil No. 960286K) against Taft, Jon Gomes,10 Abraham Lee,11 Kalaoa
Development,12 and HELCO for negligence.
[The defendants in
these two proceedings are collectively referred to herein as
“Defendants.”]
Civil Nos. 96-026K and 96-0286K were consolidated
for discovery and trial.
Additionally, some of the claims were
resolved by summary judgment, by voluntary dismissal, and by
settlement.
On December 29, 1997, the court orally granted
Taft’s motion for summary judgment, finding that Taft was the
employer of Rapoza and not a co-employee, therefore he was
immunized from liability for wilfull and wanton misconduct under
Hawai#i Revised Statutes (HRS) § 386-8 91993).13
After a jury
trial, the claims against Willocks and the Gomes defendants were
decided by special verdict, finding that Willocks and the Gomes
defendants were not negligent.
10
The complaint was also filed against Jon Gomes & Associates.
11
The complaint was also filed against Lee Abe Development, Inc.
12
The complaint was also filed against Kalaoa joint Venture, Kalaoa
Partners, and Kalaoa Partners, Inc.
13
HRS 386-8 (1993) states in relevant part: “[a]nother employee of
the same employer shall not be relieved of his liability as a third party, if
the personal injury is caused by his wilful and wanton misconduct.”
8
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II.
On appeal Plaintiffs contend that the court erred when:
(1) the court granted Taft’s motion for summary judgment; (2) the
court refused to permit Plaintiffs to introduce evidence of TriS’ HOSHA citations by limiting the testimony of Melvin Han (Han),
HOSHA’s compliance officer; (3) the court admitted hearsay
evidence by Willocks’ general superintendent that HOSHA did not
cite Willocks for the accident; (4) the court refused to permit
Plaintiffs to impeach Taft with evidence that HOSHA had not
determined Tri-S’ drill rig was operated in compliance with HOSHA
regulations; (5) the court abused its discretion when it denied
Plaintiffs’ motion for mistrial; (6) the court refused to give
jury instructions regarding (a) arguments made by Gomes based on
Hons’ testimony (Plaintiffs’ instruction 43), (b) ultrahazardous
activity, and (c) the force and effect of law of OSHA
regulations; and (7) the court gave instructions (a) that
violation of the law was insufficient to find negligence,
(b) that complete control over their work by Tri-S or Willocks
would relieve Willocks and Gomes of liability, and (c) that
Plaintiffs were required to prove Defendants had a duty to
Rapoza.
III.
The court improperly granted Taft’s motion for summary
judgment.
As mentioned, the case against Taft was dismissed by
summary judgment entered on February 13, 1999, therefore Taft did
9
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not participate as a defendant at trial.
Taft moved for summary
judgment on the ground that as sole owner of Tri-S, he was an
employer14 of Rapoza and not a co-employee15 of Rapoza and the
“undisputed fact [is] that Defendant Taft was not at the job site
on the day of the accident nor did he direct Ermitano’s or
Rapoza’s work on that fateful day.”
The court found that, based
on Taft’s affidavit, he was the sole shareholder and owned 100%
of Tri-S and was its president and chief officer, and, that, “all
of the allegations made against [Taft], even if deemed to be
true, are made against him with respect to his duties as the
employer of [Rapoza].”
The court thus concluded that Taft was
the employer and therefore immune from suit under HRS § 386-5
(1993).16
The court inter alia made the following conclusions of
14
HRS § 386-1 (1993) states in relevant part as follows:
“Employee” means any individual in the employment of
another person.
. . . .
“Employment” does not include the following service:
. . . .
(8)
Service performed by an individual for a
corporation if the individual owns at least
fifty per cent [sic] of the corporation[.]”
15
See supra note 12.
16
HRS § 386-5 (1993) states in relevant part that
[t]he rights and remedies herein granted to an employee or the
employee’s dependents on account of a work injury suffered by the
employee shall exclude all other liability of the employer to the
employee, the employee’s legal representative, spouse, dependents,
next of kin, or anyone else entitled to recover damages from the
employer, at common law or otherwise, on account of the injury,
except for sexual harassment or sexual assault and infliction of
emotional distress or invasion of privacy related thereto, in
which case a civil action may also be brought.
(Emphasis added).
10
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law:
6. All of the allegations made against Defendant Karl
Milton Taft, even if deemed to be true, are made against him
with respect to his duties as the employer of the Decedent.
The Court concludes that within the workers’ compensation
context, Defendant Karl Milton Taft is deemed the employer
in this suit brought against him by the Plaintiffs and is
therefore immune from suit for Decedent’s work accident
death.
7. Under Hawaii’s workers’ compensation law, an “employee”
means any individual in the employment of another person.
Hawai #i Revised Statutes Section 386-1.
8. Under Hawaii Revised Statutes Section 386-1(8),
employment does not include service performed by an
individual for a corporation if the individual owns at least
fifty per cent [sic] of the corporation.
9. Accordingly, for purposes of Hawaii’s workers
compensation law, Defendant Karl Milton Taft is not an
employee of Tri-S Corporation and not a co-employee of the
Decedent, and those claiming under him cannot bring an
action against Defendant Karl Milton Taft for wilful and
wanton misconduct pursuant to Hawaii Revised Statutes
Section 386-8 under the co-employee immunity exception.
10. The Court has considered the case of Iddings v. MeeLee, 82 Haw. 1 (1996) and concludes that it is
distinguishable from the case against Defendant Karl Milton
Taft in that: (a) the defendant in Iddings did not own the
employer entity unlike the case at bar where Defendant Taft
had complete ownership and control of the employer entity
and was its President; (b) the defendant in Iddings was a
supervisory co-employee of the injured employee unlike the
case at bar where Defendant Taft is not an employee of Tri-S
Corporation for purposes of Hawaii’s workers’ compensation
law; and (c) the defendant in Iddings had supervisory
control for only one area of the employer’s workplace unlike
the case at bar where Defendant Taft had total control over
the employer entity of Tri-S Corporation and therefore was
the only person responsible for carrying out the duty of the
employer to provide a safe workplace for every aspect of
Tri-S Corporation, and therefore, in the context of this
action brought by Plaintiffs, Defendant Taft was the
employer and is immune from suit.
(Emphases added).
“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.”
11
Konno v. County
***NOT FOR PUBLICATION
of Haw., 85 Hawai#i 61, 70, 937 P.2d 397, 406 (1997) (citations
and internal quotation marks omitted); see also Hawai#i Rules of
Civil Procedure (HRCP) Rule 56(c) (2003).
On appeal Plaintiffs argue:
(1) that Tri-S and not
Taft was Rapoza’s employer under HRS § 386-5 because (a) Taft
admitted he was an employee of Tri-S, (b) Taft was the principal
supervisory person at Tri-S responsible for providing a safe work
place for Rapoza, and (c) under Iddings v. Mee-Lee, 82 Hawai#i 1,
919 P.2d 263 (1996), HRS § 386-5 does not extend to an employee;
(2) Taft was a co-employee of Rapoza because (a) at trial Taft
stated that his wife owned all the Tri-S stock at the time of the
accident, (b) the HRS § 386-1 exclusion of owners of corporate
stocks from the definition of “employment” was to permit
corporate owners to opt out of mandatory workers’ compensation
insurance coverage, but not to immunize them, and (c) at the time
of the incident Taft was a covered employee under Tri-S workers’
compensation policy.
In response, Taft maintains that, as to item (1)(a), in
its answer it admitted Taft was the president and manager of TriS, and a fellow employee of Rapoza, but denied allegations of
wilful and wanton conduct under HRS § 386-8, and raised as a
defense the exclusive remedy powers of HRS chapter 386.
Taft
argued below that he was an employee in the “general sense of
corporate tax and labor laws.”
With respect to Plaintiffs’ arguments to 1(b), 1(c) and
2(b) and 2(c), the following applies.
12
To reiterate, HRS § 386-1
***NOT FOR PUBLICATION
(1993) states in relevant part that “‘[e]mployee’ means any
individual in the employment of another person.”
added.)
(Emphasis
HRS §§ 386-1 and 386-1(8) (1993) state that employment
is
any service performed by an individual for another person
under any contract of hire or apprenticeship, express or
implied, oral or written, whether lawfully or unlawfully
entered into. It includes service of public officials,
whether elected or under any appointment or contract of hire
express or implied.
“Employment” does not include the following service:
. . . .
(8)
Service performed by an individual for a
corporation if the individual owns at least
fifty per cent [sic] of the corporation;
provided that no employer shall require an
employee to incorporate as a condition of
employment.”
(Emphasis added.)
Focusing on these statutes alone, Taft was not engaged
in “employment” as defined in HRS § 386-1 and therefore would not
appear to fall within the definition of “employee.”
However, in
determining whether a person is an employer so as to be immune
from suit, this court indicated in Iddings that resort must be
had to the definition of an “employer.”
Under the dissent’s position, Dr. Mee-Lee, as a
“supervisory” employee, would be entitled to immunity under
HRS § 386-5 and would therefore be immune from Iddings’s
action against him. The dissent’s position, however, is in
conflict with the plain meaning of the language of HRS §
386-5 because the immunity accorded by HRS § 386-5 extends
only to “employers.” HRS § 386-5 provides in pertinent part
that “[t]he rights and remedies herein granted to an
employee . . . on account of a work injury suffered by the
employee shall exclude all other liability of the employer
to the employee” (emphasis added). “Employer” is defined in
HRS § 386–1 (1993) as “any person having one or more person
in the person’s employment.” (Emphasis added.)
“Employment” is defined in HRS § 386–1 as “any service
performed by an individual for another person under any
contract of hire or apprenticeship, express or implied, oral
13
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or written, whether lawfully or unlawfully entered into.”
(Emphasis added.) Therefore, under the definitional scheme
set out in HRS § 386-1, in order to qualify as an employer,
a person must be the recipient of services pursuant to a
“contract of hire or apprenticeship.
82 Hawai#i at 15, 919 P.2d at 277 (Underscored emphases added.)
(Italicized emphases in original.)
Therefore, in order to be
considered an employer under chapter 386, “a person must be the
recipient of services pursuant to a ‘contract of hire or
apprenticeship.’”
Id.
Here, there is no evidence that Taft was
the employer of Rapoza within the foregoing definition.
Rather,
the uncontroverted fact in the record is that “[a]t the time of
his death, RAPOZA was employed by Tri-S Corporation.”
Therefore,
on the record, Tri-S and not Taft was the employer of Rapoza.
On
the other hand, Iddings held that a co-employee in a supervisory
capacity may be subject to HRS § 386-8 liability for wilful and
wanton misconduct.
Id.
Morever, the legislative history comports with this
interpretation of HRS § 386-1.
Plaintiffs maintain that the
purpose of HRS § 386-1 was to permit certain shareholders to
choose to avoid coverage under a workers’ compensation policy.
The relevant legislative history states that
[t]he purpose of this bill is to exclude the following from
the definition of “employment” as it applies to worker’s
compensation coverage: . . . Service by an individual for a
corporation if the individual owns at least 51 percent of
that corporation and elects to waive coverage . . . . This
measure would relieve majority owners of corporations from
the cost burden of workers’ compensation, consistent with
the exclusion of other businesses [sic] owners, such as sole
proprietors and partners. It is not the intent of your
committee to create a loophole for employers to exempt
themselves from protecting their employees from work-related
accidents and fatalities.”
14
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Stand. Comm. Rep. No. 305, in 1993 House Journal, at 1087
(emphases added).
Hence, the legislature clarified that the
fifty percent ownership exception from the definition of
“employment” under HRS § 386-1(8) allows majority stockholders to
exclude themselves from otherwise mandatory workers’ compensation
coverage, and not “for employers to exempt themselves from
protecting their employees from work-related injuries and
fatalities.”
at 1087.
Stand. Comm. Rep. No. 305, in 1993 House Journal,
Because the record on summary judgment failed to
establish that Taft was the employer of Rapoza, Taft was not
immunized under HRS § 386-5, and summary judgment should not have
been granted on that ground.
Under the circumstances, the other points raised by
Plaintiffs need not be addressed.
Accordingly, is is concluded
that the court erred in granting Taft’s motion for summary
judgment.
IV.
A.
The court properly refused to permit Han to testify to
certain safety matters.
Prior to Han testifying, the court ruled
on motions in limine filed by Defendants.
The court granted
Willocks’ motion in limine to prevent the trial testimony of Han
15
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(motion in limine 2)17 “on a limited way.”
The basis of the
court’s ruling was that evidence relating to “any OSHA violation”
is “expressly prohibited by [HRS § 396-14].”18
The court
permitted Plaintiffs to ask Han questions regarding “his
knowledge and[,] based upon what he does[,] . . . whether certain
laws were in effect at the time of the accident,” if the proper
foundation was laid.
The court, however prohibited Han from
“hypothesiz[ing] about anything relating to the facts of this
case.”
The court instructed Han “not to get into the area of any
OSHA violation[]” and stated, “It is my opinion and I am ruling
that they are expressly prohibited by statute.”
Han testified that he was employed as a compliance
officer for eleven years by the Department of Labor and
17
Willocks argued in its motion in limine that (1) Han was
prohibited from testifying under HRS § 396-14 (1993)
“with respect to any knowledge that he may have obtained
during his Department’s investigation of any matter
associated with the litigation at hand . . . [and] with
respect to any investigation that anyone from his Department
may have conducted with respect to this litigation and
events discovered during his Department’s investigation that
are, in any way, connected to the subject matter of the
instant industrial accident[,]”
(boldfaced emphasis in original), and (2) Han was prohibited from testifying
as to his interpretation of what the law is or should be because he was a lay
witness.
18
According to HRS § 396-14,
[n]o record or determination of any administrative
proceeding under this chapter or any statement or report of
any kind obtained, received, or prepared in connection with
the administration or enforcement of this chapter shall be
admitted or used, whether as evidence or as discovery, in
any civil action growing out of any matter mentioned in the
record, determination, statement, or report other than an
action for enforcement or review under this chapter.
(Quotation marks omitted.)
16
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Industrial Relations Division of Occupational Safety and Health.
He also testified that he served as a manager for the division
for a period of time, three or four years prior to 1998.
testified to his prior work history and education.
Han
He also
testified that the HOSHA was established in 1970 and as to its
purpose.
Han explained minimal requirements for employers as to
HOSHA safety and training programs.
The court ruled that the
“only thing” Plaintiffs could elicit from Han was “the law” and
that Han could not “testify about investigations” or
“hypothesize” about “information . . . for which foundation has
not properly been laid” and Plaintiffs “cannot lay the
foundation[.]”
“The law” referred to the HOSHA safety standards
and regulations.
Plaintiffs argue that, if the court had allowed Han to
testify, Han would have testified to the following safety matters
concerning drilling in proximity to high voltage wires when both
a general contractor and a subcontractor are on the job site:
(1) how a Task Hazard Analysis19 should be performed by Willocks
and Tri-S regarding electrical safety;20 (2) the purpose of
19
According to Han, a task hazard analysis is an assessment of the
work to be performed in relation to the hazard. The analysis is intended to
identify the hazards on the job site and to advise the employees as to the
proper precautions to be taken.
20
The objectionable question was, “Can you describe in some detail
for the jury how the . . . general contractor go[es] about performing the task
hazard analysis to determine whether it’s safe to operate the machinery by the
wires?
17
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performing a Task Hazard Analysis;21 (3) what should be analyzed
in performing the Task Hazard Analysis;22 (4) information
required to carry out the Task Hazard Analysis;23 (5) whether
knowledge of the radius of a drill rig’s boom is required to
carry out the Task Hazard Analysis;24 (6) what is to be
determined in carrying out the Task Hazard Analysis;25 (7) the
machinery proximity to wires to de-energize or insulate them;26
(8) in applying the Task Hazard Analysis, the fail-safe distance
for operation of machinery next to wires;27 (9) the HOSHA
Administrator’s application of regulations regarding proximity to
21
Plaintiffs asked Han, “Now in the context of operating machinery
on a construction site, what end is to be sought in carrying out the task
hazard analysis to see if the machinery’s too close to the wires?”
22
Plaintiffs’ question to Han was, “In carrying out the task hazard
analysis in connection with machinery next to high voltage wires[,] what is it
that’s required to be analyzed? In other words what should [sic] a general
contractor suppose to find out as a result of his analysis?”
23
Plaintiffs’ question to Han was, “[C]an you tell the jury what
type or kinds of information are required . . . in order for the general
contractor to carry out the task hazard analysis?”
24
Plaintiffs asked, “[H]ave you had occasion in your investigations
and your compliance work to determine whether or not certain employers have
gained the necessary experience before an accident, the necessary information
to carry out a proper task hazard analysis?”
25
Plaintiffs inquired, “[W]hat would I have determined with my
proper task hazard analysis?” The court sustained the objection by Willocks.
26
The question to Han that was objected to was, “[C]an you tell the
jury, in performing the task hazard analysis, how close you can put machinery
next to high-voltage wires without being required to de-energize or insulate
the wires?” The court sustained Willocks’ objection.
27
Plaintiffs asked whether “in doing the task [hazard] analysis,
. . . there is involved in any of the regulations relating to electrical
safety a fail safety distance for operating machinery next to wires[.]” The
court sustained Willocks’ objection to the form and substance of the question
(i.e., calls for legal conclusion, irrelevant, overly broad, calls for
speculation; improper hypothetical).
18
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wires;28 and (10) whether placement of a drill rig capable, in
operation, of contacting high voltage wires complies with HOSHA
standards.29
Willocks’ attorney objected to a question posed to Han
by Plaintiffs’ attorney, and the subsequent colloquy was taken
outside the presence of the jury.30
Willocks’ attorney objected
to the question stating that the question was “irrelevant, beyond
the scope, and in violation of 396-14.”
The court excused the
jury and asked Plaintiffs’ attorney for his offer of proof.
Plaintiffs’ attorney responded, inter alia, that he intended to
28
Plaintiff asked, “Now does this section[, chapter 10-141 of
Exhibit number 109, HOSHA electrical regulations,] deal with how close you can
place machinery next to high-voltage wires without having to de-energize or
insulate wires?” The court held that the question was leading. When
Plaintiff attempted to rephrase by asking Han whether he “[w]ould . . . please
advise the jury of your office’s administrative interpretation and application
of the section in 141-3 relating to how close you can place machinery to highvoltage wires without having to de-energize or insulate the wires,” the court
sustained objections by all Defendants, stating that “the question call[ed]
for hearsay, lack[ed] foundation and call[ed] for a legal conclusion.”
29
Plaintiff asked,
If I were a general contractor and I had a sub about to
operate a drill rig – in proximity to high-voltage wires, if
the drill rig were positioned on the ground so that its boom
could possibly come in contact with . . . high-voltage
wires, and I didn’t de-energize and I didn’t insulate, would
I be in compliance with the Hawai #i OSHA laws?
The court sustained Willocks’ objection that the question was an improper
hypothetical and called for a legal conclusion and interpretation of the
statute.
30
Plaintiffs’ attorney asked:
Q: Are you generally familiar with the, uh, Watson
3000 drill rig?
A: Yes.
Q: How?
A: In a number of my inspections, uh - [Willocks’ attorney]: Objection - A: - - I have seen - [Willocks’ attorney]: [Y]our Honor; irrelevant, beyond
the scope, and in violation of 396-14.
19
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pose a hypothetical to Han and ask him “questions concerning
whether or not the general contractor, whether the subcontractor,
and whether the injured employee substantially complied with his
understanding of the laws, OSHA laws, which he has been enforcing
for eleven years.”
The court permitted Plaintiffs to make an
offer of proof.
Willocks and Gomes argued that because Han was not
designated as an expert witness, he was not permitted to give
opinion testimony.
See Hawai#i Rules of Evidence (HRE) Rule 701.
Gomes also argued that Plaintiffs’ question called for “improper
lay testimony[.]”
The court ruled that Han had not been offered
as an expert witness, therefore it had sustained the objections.
After the court ruled, Plaintiffs were allowed to make
a further offer of proof.
For example, Plaintiffs indicated that
they intended to have Han testify that Willocks and Tri-S
(1) failed to insure that the drill rig had the required warning
sign placed in plain view of the operator, (2) failed to comply
with HOSHA standards for cranes, as the drill rig could function
as a crane, (3) failed to comply with HOSHA’s fail-safe ten feet
requirement in drilling wells 2, 3, and 10, (4) failed to inquire
whether Rapoza’s work might bring him into contact with high
voltage circuits, and (5) failed to perform a task hazard
analysis.
Plaintiffs stated that Han was to testify that,
under Hawaii’s OSHA law[,] . . . it was illegal for the
subcontractor [and] general contractor to require or permit
the operation of the Watson 3000 on dry wells 2, 3, and 10
because not only was it possible for any part of the boom to
come within ten feet, the beam [sic] could touch the wire in
20
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all three cases, and he is gonna say that that was not a
substantial compliance.
(Emphases added.)
Defendants reiterated their objections.
B.
“Admission of opinion evidence is a matter largely
within the discretion of the trial court, and only an abuse of
that discretion can result in possible reversal.”
Sherry v.
Asing, 56 Haw. 135, 149, 531 P.2d 648, 658 (1975) (quoting Unitec
Corp. v. Beatty Safway Scaffold Co. of Or., 358 F.2d 470, 477-78
(9th Cir. 1966)).
court.
Han’s testimony was properly limited by the
Plaintiffs did not designate Han as a potential expert
witness in their final naming of witnesses.
Moreover, Plaintiffs
did not identify Han as a potential expert witness or disclose
any of his expected opinions.
Additionally, as a result of an order granting a motion
to compel answers to interrogatories, Plaintiffs were required to
disclose each person whom they intended to call as an expert
witness at the trial and disclose their respective opinions by
the close of business on October 13, 1997.
Plaintiffs never
supplemented their disclosure of expert witnesses’ identities and
opinions, as required by HRCP Rule 26(e)(1)(B), nor did they move
the court to add Han as an expert witness pursuant to Rules of
the Circuit Court of the State of Hawai#i Rule 12(o) regarding
adding additional witnesses.
Consequently, Han’s testimony was
21
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properly limited to testimony as a lay witness.
Plaintiffs did
not properly designate Han as an expert witness and, as such, Han
could not testify as to his opinions of the HOSHA regulations and
hypothetical situations.
Although Han was allowed to testify as a lay person,
the court again properly limited his testimony.
As a lay
witness, Han’s testimony was limited under HRE Rule 701.
HRE
Rule 701 states that a non-expert witness’s testimony in the form
of opinions or inferences are limited to those opinions or
inferences that are:
(1) rationally based on the perception of
the witness; and (2) helpful to the clear understanding of the
witness’s testimony or the determination of a fact in issue.
But, Plaintiffs failed to establish that Han’s testimony was
rationally based on any perception of Willocks’ or Tri-S’s
actions in connection with the accident.
The lengthy offer of proof demonstrated that Han would
be asked to “hypothesize about . . . the facts of this case.”
The plain language of HRS § 396-14 would not bar a hypothetical
question concerning the case.
But, Han was not designated as an
expert and therefore could not render an opinion with respect to
any hypothetical.
Accordingly, the court did not abuse its
discretion in limiting Han’s testimony.
V.
The court did err in admitting testimony by Hons to the
22
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effect that HOSHA did not cite Willocks for the accident.
During
trial,31 the court excluded evidence, based on HRS § 396-14,
(1) that Tri-S had violated HOSHA regulations related to
electrical safety in connection with the accident, (2) that HOSHA
had cited Tri-S for these violations, and (3) that Tri-S had
agreed to pay fines for certain of these violations.
At trial,
however, the court overruled Plaintiffs’ hearsay objection and
permitted Hons to testify that Willocks had not been cited by
HOSHA for violations of OSHA regulations.
The direct examination
of Hons in relevant part proceeded accordingly,
Q: Was Willocks ever cited by OSHA on this project?
[Plaintiffs’ attorney]: Objection. Calling for
hearsay, Your Honor.
The Court: Overruled.
[Willocks’ attorney]: Q: Let me restate the question.
Was Willocks Construction Company ever cited by OSHA for any
violations of OSHA regulations on this project?
A: No.
Q: For this accident?
A: No.
Plaintiffs argue that Hons’ testimony that Willocks was not cited
by OSHA was inadmissible hearsay because the jury could infer
from Hons’ testimony that Willocks had not violated any OSHA
regulations.
Plaintiffs contend that (1) the testimony supports
a false and prejudicial “inference” that in the view of HOSHA no
31
Plaintiffs state that prior to trial the court limited evidence
relating to the OSHA citations based on HRS § 396-14. However this statement
is inaccurate. Prior to trial, the court granted Willocks’ Motion in Limine
prohibiting introduction of and reference to citations issued to Tri-S based
on relevancy (motion in limine 1) pursuant to HRE Rules 401 and 402. It was
only during trial, upon Willocks’ motion in limine to prevent the trial
testimony of Han (motion in limine 2) that the court, “on a limited way,”
granted the motion based on HRS § 396-14.
23
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violation took place, and that (2) such testimony involved a
“hearsay ‘determination’ under HRS § 396-14 not to cite
Willocks.”
Defendant Gomes asserts that Hons’ response that
Willocks was not “cited by OSHA for any violations” was not
hearsay because Hons, as general superintendent of the project,
testified that if Willocks were cited by OSHA he would become
aware of the citation.32
Therefore, Willocks argues, the
disputed question sought information based upon Mr. Hons’
personal knowledge.
When determining whether Hons’ testimony was hearsay or
not,
[d]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard.
State v. Crisostomo, 94 Hawai#i 282, 287, 12 P.3d 873, 878
(2000); see also Kealoha v. County of Hawaii, 74 Haw. 308, 319,
844 P.2d 670, 676 (1993).
The requirements of the rules dealing
with hearsay are such that application of the particular rules
can yield only one correct result.
32
Crisostomo, 94 Hawai#i at
Willocks attorney asked Hons:
Q: If an OSHA citation is issued to your company,
would you become aware of it?
A: Yes.
Q: How?
A: Uh, Jack [Willocks, shareholder of Willocks
Construction,] would call me or I would receive the –- the
citation at the project or Norman [Sakai, foreman,] would
receive it on the project and would refer it to me.
(Emphasis added.)
24
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287, 12 P.3d at 878; see also HRE Rule 802 (1993) (providing in
pertinent part that "[h]earsay is not admissible except as
provided by these rules").
Thus, where the admissibility of
evidence is determined by application of the hearsay rule, there
can be only one correct result, and "the appropriate standard for
appellate review is the right/wrong standard."
Crisostomo, 94
Hawai#i at 287, 12 P.3d at 878 (quoting State v. Moore, 82 Hawai#i
202, 217, 921 P.2d 122, 37 (1996)).
Hons testimony was not hearsay.
not admissible.
HRE Rule 802.
Generally, hearsay is
Hearsay, according to HRE
Rule 801(3), is a “statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”
Specifically, a statement is defined as “(A) an oral or written
assertion, or (B) a nonverbal conduct of a person, if it is
intended by the person as an assertion.”
(emphasis added).
It is not evident from the question whether
hearsay was being elicited.
written assertion.
HRE Rule 801(1)
There is no evidence of an oral or
If what was sought to be elicited was
“nonverbal conduct” of HOSHA, there is no indication of such
conduct by HOSHA or that, if it existed, such “conduct” was
intended by HOSHA as an assertion that Willocks had not committed
a violation.
Plaintiffs objected to Hons’ testimony based on HRS §
396-14 the day after Hons had completed his testimony.
25
***NOT FOR PUBLICATION
Plaintiffs’ attorney stated,
I would also move for curative instruction relating to Mr.
Bobby Hons’ answer yesterday when in a leading question.
. . . [Willocks’ attorney] asked him, did you get cited by
OHSA, and he said no. You recall that I made an objection.
The answer was permitted over my objection. And the reason
I’m asking for this curative instruction is in light of
Section 396-14, no determination of OSHA is to be used in
any respect in a civil matter. A determination to cite or
not to cite.
(Emphasis added.)
The court denied Plaintiffs’ request for the
curative instruction.
To reiterate, HRS § 396-14 provides that
[n]o record or determination of any administrative
proceeding under this chapter or any statement or report of
any kind obtained, received, or prepared in connection with
the administration or enforcement of this chapter shall be
admitted or used, whether as evidence or as discovery, in
any civil action growing out of any matter mentioned in the
record, determination, statement, or report other than an
action for enforcement or review under this chapter.
(Emphases added.)
“The interpretation of a statute is a question
of law reviewable de novo.”
897 P.3d 941, 945 (1995).
Sato v. Tawata, 79 Hawai#i 14, 17,
In Richardson v. City & County of
Honolulu, 76 Hawai#i 46, 68-69, 868 P.2d 1193, 1215-16 (1994),
this court held that
[o]ur primary duty in interpreting and applying statutes is
to ascertain and give effect to the legislature’s intention
to the fullest degree. Although the intention of the
legislature is to be obtained primarily from the language of
the statute itself, we have rejected an approach to
statutory construction which limits us to the words of a
statute[,] . . . for when aid to construction of the meaning
of words as used in the statute, is available, there
certainly can be no rule of law which forbids its use,
however clear the words may appear on superficial
examination.
Thus, the plain language rule of statutory
construction, does not preclude an examination of sources
other than the language of the statute itself even when the
language appears clear upon perfunctory review. Were this
not the case, a court may be unable to adequately discern
the underlying policy which the legislature seeks to
promulgate and, thus, would be unable to determine if a
literal construction would produce an absurd or unjust
result, inconsistent with the policies of the statute.
26
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(Emphasis added.) (Citations omitted.)
According to the
legislative history of the pertinent language in HRS § 396-14,33
[t]he purpose of this bill is to prohibit the use of any
statement, report or record prepared or obtained by the
labor department in the course of its administration of the
industrial safety law in any civil suit arising out of any
accident or incident mentioned in the statement, report or
record except in cases involving the enforcement or review
of the safety law.
Effective enforcement of the industrial safety law
requires a thorough and exhaustive investigation of each
industrial accident. Such an investigation is difficult to
attain unless witnesses are assured that information and
statement given to the department of labor will be held
confidential and not be disclosed in any civil suit arising
out of the accident involved.
This proposal, if adopted will encourage workers and
other witnesses to candidly report on any accident and in
turn assist the labor department in achieving better safety
measures.
Sen. Stand. Comm. Rep. No. 970, in 1969 Senate Journal, at 1254
(emphases added).
The non-issuance of a citation does not fall within the
express prohibitions of HRS § 396-14.
However, the question of
whether HOSHA cited Willocks or not was irrelevant to whether
Willocks was or was not negligent in the civil case.
Given the
legislative intent of insulating HOSHA investigatory matters from
disclosure in civil cases, both the issuance of a citation or
lack of issuance must be excluded.
33
In the civil case the failure
HRS § 396-14 was enacted in 1972 when it was codified within the
HOSHA, HRS chapter 396. Prior to 1972, however, the language prohibiting
evidence obtained in an administrative proceeding already existed within
chapter 96, section 1 of the Hawai #i Revised Statutes. Specifically, “[n]o
record or determination of any administrative proceedings under this chapter
[Chapter 96, Industrial Safety] or any statement or report of any kind
obtained or received in connection with the administration or enforcement of
this chapter shall be admitted or used as evidence in any civil action growing
out of any matter mentioned in the record[,]” was enacted within chapter 96
relating to industrial safety in 1969. 1969 Haw. Sess. L. Act 70.
27
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to adhere to HOSHA regulations was to be determined by the jury.
It was therefore error to admit evidence that no citation was
issued, as it would have been to admit evidence of HOSHA
citations imposed on Tri-S.
Admission of such evidence allowed Defendants to argue,
in effect that because no citation had been issued, there had
been no violation of the regulations.34
During closing argument
Willocks’ attorney argued to the jury that “OSHA did their
investigation and Willocks wasn’t cited . . . if there is a
violation, OSHA will cite.
added.)
They didn’t do it.”
(Emphasis
Gomes’ attorney also argued to the jury that “[t]hey
[(OSHA)] did not cite Willocks.
is as the Plaintiffs suggest?”
Now how can that be if the law
In light of HRS § 396-14, no
evidence, argument, or instruction regarding the HOSHA
investigation or HOSHA actions should have been allowed at trial.
Therefore, the court erred in admitting Hons’ testimony
34
Plaintiffs state in their opening brief that “the trial court
permitted . . . Hons, to testify, over Plaintiffs’ objection, that Willocks
had not been cited by HOSHA for violation of OSHA regulations in connection
with its investigation of the accident.” (Emphasis added). Willocks,
however, states that “[t]here is no evidence that an administrative proceeding
was ever conducted to decide whether Willocks violated any of OSHA’s
regulations.” Still, Plaintiffs argue in their reply brief that “the obvious
purpose in Willocks’ counsel’s eliciting the above testimony from the answer
implied statements that (1) the OSHA administrators did not interpret OSHA’s
failsafe 10’ rule in accordance with its plain meaning, and (2) after its
investigation of the accident, OSHA determined that no violation of its 10’
rule was involved in the accident.”
Moreover, the admission of this statement enabled Willocks’
attorney to argue, as noted above, that “OSHA did their investigation and
Willocks wasn’t cited[;] . . . if there is a violation, OSHA will cite. They
didn’t do it.” (Emphasis added). Statements made in court bind parties as
judicial admissions. HRE Rule 803(a)(1); see also Myers v. Cohen, 67 Haw.
389, 394, 688 P.2d 1145, 1149 (1984). Because Willocks’ attorney stated that
the citations were not issued to Willocks following an investigation, Willocks
is bound by the representation that an investigation took place.
28
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that Willocks was not cited for HOSHA violations.
VI.
The court did not err when it barred impeachment of
Taft by prohibiting the introduction of HOSHA citations issued to
Tri-S, but it should have stricken Taft’s reference to the HOSHA
investigation.
Plaintiffs asked Taft:
Q: [Y]ou were generally familiar in November of 1994
with the OSHA regulations that related to electrical safety
having to do with the operation of machinery next to power
wires?
A: Yes.
Q: And based upon your having gone out to the site on
November 18 th and the conversations you have had with Glenn
Ermitano, did you determine that the rig was placed at the
site where the accident happened in violation of the OSHA
electrical safety regulation?
A: The OSHA inspector at that time said it was all
right.
(Emphasis added.)
Although Taft’s answer was nonresponsive and
volunteered information, Plaintiffs did not object to Taft’s
answer, nor did they move to strike it.
The day after Taft’s
alleged non-responsive answer was given, but still during Taft’s
cross-examination, Plaintiffs orally moved to reconsider the
court’s prior ruling on Defendant’s motion in limine 1 to exclude
at trial any evidence of OSHA citations issued to Tri-S.
Ultimately, the court reaffirmed its earlier ruling on the motion
in limine 1 prohibiting evidence of the Tri-S OSHA citations,
thus the proposed impeachment evidence was still barred.
Plaintiffs argue that the result of Taft’s non-
29
***NOT FOR PUBLICATION
responsive answer resulted in several improper inferences by the
jury which were:
(1) that “the OSHA inspector did not interpret
the OSHA regulations to prohibit the accident placement of the
drill rig to violate OSHA’s fail-safe 10’ rule”; and (2) that
“the OSHA inspector probably interpreted the OSHA 10’
[regulation] in a manner consistent with Mr. Hons’ interpretation
of the OSHA rule – that the machinery capable of contact with
high voltage wires could be operated as long as the operator did
not come within 10’ of the wires.”
Thus, they contend that the
court erred in refusing to permit them to impeach Taft with
evidence of the OSHA citation because Taft’s response was nonresponsive, prejudicial, and at variance with his pretrial
deposition testimony and the truth.
As Plaintiffs did not object to Taft’s response or move
to strike the response, this point of error may “be
disregarded[.]”
HRAP Rule 28(b)(4).
Plain error may be
recognized at the discretion of the court.
HRAP Rule 28(b)(4);
see also State v. Fox, 70 Haw. 46, 54, 760 P.2d 670, 675 (1988).
However, because this case is remanded on other grounds, it is
sufficient to note that no reference should have been made to the
HOSHA investigation and the court should have stricken such
testimony.
VII.
It follows from the analysis of Hons’ testimony, see
supra, that the court abused its discretion when it denied
30
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Plaintiffs’ motion for mistrial.
Plaintiffs argue that the
combined effect of the grounds asserted, at the time of the
motion for mistrial, was that the jury would likely be permitted
to decide the negligence issue against Willocks based upon a
combination of false suggestions and inferences provided to them.
"A motion for mistrial should be granted when there is
an occurrence of such character and magnitude that a party is
denied the right to a fair trial."
Kawamata Farms, Inc. v.
United Agri Prods., 86 Hawai#i 214, 246, 948 P.2d 1055, 1086
(1997) (quoting Aga v. Hundahl, 78 Hawai#i 230, 245, 891 P.2d
1022, 1037 (1995)).
“Appellate review of a trial court’s ruling
on a motion for mistrial is under the abuse of discretion
standard.”
Id.
Furthermore, “[a]s in all actions involving
discretion . . . [the a]ppellant must show that the trial court’s
decision clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment of a party litigant.”
Johnson v. Robert’s Hawaii Tour,
Inc., 4 Haw. App. 175, 179, 664 P.2d 262, 266 (1983) (internal
quotation marks omitted).
Plaintiffs claim that the court’s following actions
were prejudicial and denied Plaintiffs a fair trial:
(1) Plaintiffs’ principal basis for its claim of negligence
against Willocks was the failure of Willocks and its
subcontractor, Tri-S, to comply with the OSHA electrical safety
regulation; (2) the heart of Plaintiffs’ and Defendents’ case of
31
***NOT FOR PUBLICATION
negligence turned on the meaning and interpretation of the HOSHA
electrical safety regulations; (3) the court’s refusal to permit
Han to testify to Willocks’ and Tri-S’s violations of electrical
safety regulations; (4) the court’s refusal to permit the jury to
view relevant OSHA electrical safety regulations (Plaintiffs’
exhibits 109 and 150), which were admitted into evidence but the
jury was not permitted to view; (5) the court’s allowance of
Hons’ testimony that HOSHA did not cite Willocks for a violation
of OSHA regulations in connection with the accident, raising an
inference that HOSHA did not consider operation of the drill rig
to violate the ten-foot fail safe rule and that HOSHA did not
interpret its fail-safe rule in accordance with its plain
meaning; (6) the court’s failure to reconsider its prohibition of
Plaintiffs’ exhibits 119 and 120 (Tri-S’s OSHA citations and
stipulation/settlement agreement), and the court’s refusal to
permit Plaintffs to impeach Taft with evidence that the OSHA
inspector considered placement of the drill rig to violate the
fail safe rule; and (7) the court’s use of HRS § 396-14 to
exclude HOSHA’s determination that Tri-S violated OSHA
regulations, and permitting testimonial evidence that HOSHA did
not cite Willocks for violations.
Plaintiffs fail to present
discernable arguments as to items (1), (2) and (4) or facts to
show prejudice therefor.
The remaining grounds have essentially
been discussed supra.
As mentioned, the court erred with respect to
32
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permitting Hons’ to testify that Willocks had not received any
citation.
The substance of Plaintiffs’ claim of negligence was
that Willocks failed to “conform to certain standards of conduct
for protection of others against unforeseeable risks[.]”
Evidence that Willocks was not issued a HOSHA citation was error.
Because of the inference that Willocks had not violated the
regulation which might be drawn from such testimony, such
testimony resulted in “substantial detriment” to Plaintiffs.
Johnson, 4 Haw. App. At 179, 664 P.2d at 266.
Thus, by allowing
Hons to so testify, the court “denied [Plaintiffs] the right to a
fair trial.”
Kawamata Farms, 86 Hawai#i at 245, 948 P.3d at
1086.
VIII.
Plaintiffs argue that the court erred when it refused
to give Plaintiffs’ instruction no. 43.35
35
“When jury
Plaintiff’s instruction no. 43 stated as follows:
In his final argument, Mr. Robert Crudele[, counsel
for Gomes,] argued: (1) The OSHA inspector, in his
investigation of the accident giving rise to this case,
determined that the Watson 3000 was not placed too close to
the high voltage wires when drilling next to the dry well
number 10, and (2) that the OSHA inspector, by not citing
Willocks, in effect, did not interpret the section 12-1413(d)(6)(C) to mean that the Watson 3000 could not be
operated if any part of it could possibly come within 10’ of
high voltage wires.
Both of these arguments were based upon a false
premise. In fact, the OSHA inspector made no such
determination or interpretation of section 12-1413(d)(6)(C), and you are to disregard both such arguments of
Mr. Crudele.
(Emphasis added.)
33
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instructions or the omission thereof are at issue on appeal, the
standard of review is whether, when read and considered as a
whole, the instructions given are prejudicially insufficient,
erroneous, inconsistent, or misleading.”
Tabieros v. Clark
Equip. Co., 85 Hawai#i 336, 350, 944 P.2d 1279, 1293 (1997).
“Erroneous instructions are presumptively harmful and are a
ground for reversal unless it affirmatively appears from the
record as a whole that the error was not prejudicial.”
Id.
(citing State v. Arceo, 84 Hawai#i 1, 11, 928 P.2d 843, 853
(1996)).
As discussed earlier, reference to the HOSHA
investigation would be barred by HRS § 396-14, therefore
reference to the investigation in closing argument would also be
barred.
The day after Hons had completed his testimony,
Plaintiffs orally requested a curative instruction relating to
Hons’ testimony that HOSHA did not cite Willocks.
denied the motion for a curative instruction.
The court
While the court
did not err in rejecting proposed instruction no. 43, it should
have given a curative instruction as had been requested the day
after Hon testified.
IX.
The court did not err when it refused to give the jury
instructions on ultrahazardous activity.
Plaintiffs contend that
the evidence demonstrated at trial that drilling in proximity to
energized, uninsulated wires was an ultrahazardous activity.
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Specifically, Plaintiffs argue that due to the (1) proximity of
the three dry wells to HELCO’s wires, (2) the respective heights
of the boom and wires, (3) the drill rig’s dimensions, and
(4) the boom radius, when the boom leaned out of the vertical
position during operation, it was capable of contact with the
wires on all three dry wells, thus creating an ultrahazardous
activity.
They maintain that under section 519 of Restatement
(2d) of Torts (1977) (Restatement), the activity was abnormally
dangerous and ultrahazardous, subjecting Defendants to strict
liability.
Therefore, Plaintiffs contend that the court erred by
refusing to instruct the jury on ultrahazardous activity.
Whether or not an activity constitutes an “abnormally
dangerous” or “ultrahazardous” activity is purely a question of
law for the court and not the jury to decide.
comment l.
Restatement § 520,
When applying the standard of review for jury
instructions as stated above, the denial of the ultrahazardous
instruction was not error.36
Specifically, the instructions
would not have been proper as the drilling of dry wells was not
an ultrahazardous activity within the meaning of the Restatement
§ 519.
The Restatement provides:
36
Gomes contends that Plaintiffs failed to “reference any activity
characterized as constituting an “ultrahazardous” activity. Therefore, Gomes
argues that Plaintiffs failed to notify him of such a claim. Takaki v. Allied
Mach. Corp., 87 Hawai #i 57, 65, 951 P.2d 507, 515 (1998). As such, Plaintiffs
should be barred from asserting this claim against Gomes. As notice pleading
should be liberally construed, however, Plaintiffs were not required to “set
out in detail the facts upon which [they] base[] [their] claim.” Hall v. Kim,
53 Haw. 215, 219, 491 P.2d 541, 544 (1971) (internal quotation marks omitted)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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(1)
(2)
One who carries on an abnormally dangerous activity is
subject to liability for harm to the person, land or
chattel or another resulting form the activity,
although he has exercised the utmost care to prevent
the harm.
This strict liability is limited to the kind of harm,
the possibility of which makes the activity abnormally
dangerous.
(Emphasis added).
The rule is applicable only to activities that
are carried out with all reasonable care and that are of such a
utility that the risk involved cannot be regarded as so great or
so unreasonable as to make the activity an act of negligence
merely to carry on the activity.
Restatement § 520, comment b.
When determining whether an activity is abnormally
dangerous, the following factors are to be considered; however it
is not necessary that each of the factors be present.
(1)
(2)
(3)
(4)
(5)
(6)
existence of a high degree of risk of some harm to the
person, land or chattels of others;
likelihood that the harm that results from it will be
great;
inability to eliminate the risk by the exercise of
reasonable care;
extent to which the activity is not a matter of common
usage;
inappropriateness of the activity to the place where
it is carried on; and
extent to which its value to the community is
outweighed by its dangerous attributes.
Restatement § 520, comment f (emphasis added).
Most ordinary activities can be made entirely safe
through the exercise of reasonable care and when safety cannot be
attained by the exercise of due care there is reason to regard
the danger as an abnormal one.
Restatement § 520, comment h.
Because the hazard from high voltage lines may be avoided in
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several ways, the drilling of dry wells near high voltage power
lines, in and of itself, cannot be deemed an activity that would
be abnormally dangerous when “carried out with all reasonable
care.”
Restatement § 520, comment b.
Therefore, the court did
not err in refusing this instruction.
X.
The court erred by failing to instruct the jury that
the HOSHA regulations had the force and effect of law.
Plaintiffs contend that the trial court erred in refusing to
instruct the jury that HOSHA regulations have the force and
effect of law.
Specifically, the court deleted the words “under
Hawaii law” from Plaintiffs’ instructions nos. 19-22 and 27-29.
The court also refused Plaintiffs’ instruction no. 23 which
stated, “Hawaii’s OSHA Regulations promulgated by the Department
of Labor and Industrial Relations of the State of Hawaii have the
force and effect of law throughout the State.”
The jury,
however, was given the Court’s instruction no. 4.4,37 which
stated that a violation of the law may be evidence of negligence.
Plaintiffs contend that although that instruction was given, it
37
Court’s jury instruction no. 4.4 stated as follows:
The violation of a law may be evidence of negligence,
but the fact the law was violated is not sufficient, by
itself, to establish negligence. The violation of the law
must be considered along with all the other evidence in this
case in deciding the issue of negligence.
Whether there was a violation of a law is for you to
determine.
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did not advise the jury that the violation of HOSHA regulations
could be considered evidence of negligence.
The court deleted
the words “under Hawaii law” in order to be consistent with other
instructions which also articulate Hawai#i law but are not
prefaced with the words “under Hawai#i law”.
As Plaintiffs objected to the omission of the words
“under Hawaii law,” this court is obligated to determine whether
error occurred based on whether the “instructions given are
prejudicially insufficient, erroneous, inconsistent, or
misleading.
Tabieros, 85 Hawai#i at 350, 944 P.2d at 1293.
The
court’s giving of court’s instruction no. 4.4, which stated that
the a “violation of law may be evidence of negligence[,]”
necessitated a designation of what the “law” was.
It is not
reasonable to assume that the jury would be able to distinguish
which jury instructions were “laws” that would be evidence of
negligence.
Therefore, the court erred in omitting modifying
language in instructions no. 19, 20, 21, 22, 27, 28 and 29
because the omission of “under Hawaii law” rendered those
instructions “prejudicially insufficient . . . [and] misleading.”
See Tabieros, 85 Hawai#i at 350, 944 P.2d at 1293.
XI.
The court did not err in instructing the jury that a
violation of law was insufficient, by itself, to establish
negligence.
Plaintiffs argue that Court’s instruction no. 4.4,
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as modified, see supra n.36, was erroneous and highly
prejudicial, mandating reversal.
Plaintiffs submit that a
violation of law, by itself, is sufficient to establish
negligence.
Although Plaintiffs state that instruction no. 4.4,
as modified, was given over Plaintiffs’ objection, nowhere during
settlement of instruction 4.4. (modified) is Plaintiffs’
objection noted.
Therefore, because Plaintiffs failed to raise
the argument at trial, it is deemed to have been waived on
appeal.
State v. Moses, 102 Hawai#i 449, 456, 77 P.2d 940, 947,
reconsideration denied, Oct. 23, 2003 (document not yet
available).
In any event, instruction no. 4.4 is a correct
statement of the law.38
XII.
The court gave Willocks’ instruction no. 11
(instruction no. 11) over Plaintiffs’ objections.
Instruction
no. 11 states, “One who hires an independent contractor to
perform work is not liable for injuries to the independent
contractor’s employees resulting from the work where the
38
Hawai #i case law does not state that a violation of law, by
itself, is sufficient to establish all the elements of negligence. See State
v. Tabigne, 88 Hawai #i 296, 304, 966 P.2d 608, 616 (1998) (holding that juries
may consider violations of statutory standards as evidence of negligence); see
also Michel v. Valdastri, Ltd., 59 Haw. 53, 55, 575 P.2d 1299, 1301 (1978)
(holding that defendant’s failure to conform to standards established by law
. . . is admissible as evidence of negligence)”; Sherry v. Asing, 56 Haw. 135,
149, 531 P.2d 648, 658 (1975) (holding that violation of an ordinance was an
“appropriate question of fact for the jury to decide in connection with the
issue of negligence”); Young v. Honolulu Constr. & Draying Co., Ltd., 34 Haw.
426, 435 (1938) (holding that the violation of an ordinance prescribing duty
“is evidence of negligence sufficient to require the question of negligence to
be submitted to the jury”). Moreover, the cases cited by Plaintiffs do not
support their proposition that the law is that “a violation of law, by itself,
is sufficient to establish negligence.”
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independent contractor exercised complete direction and control
over the performance of the work.”
Plaintiffs argue that
instruction no. 11 was contrary to the holding in Makaneole v.
Gampon, 70 Haw. 501, 777 P.2d 1183 (1989) [hereinafter “Makaneole
II”], and the instruction conflicted with Plaintiffs’ instruction
no. 5, the Peculiar Risk instruction (instruction no. 5), given
by the court.
Instruction no. 5 states that
[o]ne who employs an independent contractor to do work which
the employer should recognize as likely to create during its
progress a peculiar risk of physical harm to others unless
special precautions are taken, is subject to liability for
physical harm caused to them by the failure of the
contractor to exercise reasonable care to take such
precautions, even though the employer has provided for such
precautions in the contract or otherwise.
Plaintiffs also argue in their reply brief that 1) “[t]he jury
was not told which was the controlling instruction or which
instruction was the general rule and which the exception; nor
were they told whether Willocks’ [instruction n]o. 11 controlled
or the negligent instructions given[,]” and (2) “the jury may
very well have decided both the negligence claim and special
precaution claims against Willocks based on Instruction No. 11,
which was heavily stressed by Willocks’ counsel in closing
argument.”
Both Willocks and Gomes assert that Willocks
instruction no. 11 did not conflict with Makaneole.39
In Makaneole, an employee of a subcontractor,
Dillingham Construction Corp. (Dillingham), was struck and
39
Both Willocks and Gomes argue that the jury determined that the
risk presented under the facts of this case did not rise to the level of a
“peculiar risk.” Therefore, “there could be no peculiar risk liability [under
instruction 11,] absent the presence of a peculiar risk [under instruction
5].”
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injured by a clamp designed to transport plywood attached to a
crane that was maneuvered by a fellow employee at a hotel job
site.
Makaneole sued, inter alia, the owner of the hotel, Kauai
Development Corp. (KDC) and his fellow employee, Drake Gampon
(Gampon), who operated the crane.
In Makaneole v. Gampom, 7 Haw.
App. 448, 776 P.2d 402 (1989) [hereinafter “Makaneole I”], the
Intermediate Court of Appeals (ICA) cited to Taira v. Oahu Sugar
Co., 1 Haw. App. 208, 616 P.2d 1026 (1980), which “held that one
who hires an independent contractor to perform work is not liable
for injuries to the independent contractor’s employee resulting
from that work where the independent contractor exercised
complete direction and control over the performance of the work.”
7 Haw. App. at 454, 776 P.2d at 407.
The ICA indicated that the
question of control was at issue in Makaneole I, and that the ICA
had previously held that the employers on the jobsite to oversee
the contractor’s performance was sufficient to raise a genuine
issue of fact as to control for summary judgment purposes.
In part III.C. of the opinion, the ICA considered
Makaneole’s argument that KDC was vicariously liable for
Dillingham’s negligence under Restatement §§ 416 and 427 which
represented “the same general rule, that the employer remains
liable for injuries resulting from dangers which he should
contemplate at the time that he enters into the contract, and
cannot shift to the contractor the responsibility for such
dangers, or for taking precautions against them.”
Id. at 459,
776 P.2d at 409-10 (quoting Restatement, § 416 comment a) (citing
Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 898 (Wyo. 1986)).
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The ICA noted that “[t]he principles expressed by Restatement §§
416 and 427 represent exceptions to the general rule that one who
employs an independent contractor is not liable for the
negligence of the independent contractor or the independent
contractor’s employees.”
Id. (emphasis added); see also Van
Arsdale v. Hollinger, 437 P.2d 508 (Cal. 1968).40
However, the
ICA observed that “most of the courts that have considered the
question whether the exception applies to the independent
contractor’s employee who is injured on the job have refused to
apply it in those circumstances.”
Makaneole I, 7 Haw. App. at
459, 776 P.2d at 410 (citing Jones, 718 P.2d at 899).
The
rationale for not applying the exception was that, inter alia,
“[t]he owner should not have to pay for injuries caused by the
contractor when the worker’s compensation system already covers
those injuries.”
Id. at 460, 776 P.2d at 410.
In Makaneole II, this court indicated that under HRS §
386-5 the “owner of the premises is not an employer[,]” thus,
“the owner does not fall within the provisions of HRS § 386-5
which exempts employers from liability to employees.”
II, 70 Haw. at 508, 777 P.2d at 1187.
Makaneole
Thus, this court concluded
that “statutes in the State of Hawaii provide no basis for
disregarding the legal principles laid down in §§ 416 and 427 of
2 RESTATEMENT (SECOND) of TORTS” and reversed part III.C. of
40
Van Arsdale’s holding regarding the peculiar risk doctrine has
been overruled in Privette v. Superior Court, 854 P.2d 721, 726 (Cal. 1993).
The California Supreme Court, applying the California labor code, stated that
“[e]ven when work performed by an independent contractor poses a special or
peculiar risk of harm . . . the person who hired the contractor will not be
liable for injury to others if the injury results from the contractor’s
‘collateral’ or ‘casual’ negligence.” Id. at 726.
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Makaneole I.
Id.
Hence, §§ 416 and 427 of the Restatement apply in
Hawai#i and are viewed as “exceptions” to the otherwise “general
rule” expressed in Taira.
On remand it is not certain whether
the evidence will warrant an instruction on the peculiar risk
doctrine, but in the event similar instructions are proposed, the
foregoing analysis applies.
XIII.
Plaintiffs argue that the court erred in giving
Defendant Gomes’ instruction no. 2 because it may have given the
jury the mistaken impression that Plaintiffs were obliged to
prove to them certain facts which would create a duty or
obligation.
Gomes instruction no. 2 states in relevant part that
“[t]o prevail in a negligence claim, Plaintiffs must prove the
necessary elements of negligence which are as follows: (1) Duty,
or obligation, recognized by law, requiring defendant to conform
to certain standards of conduct for protection of others against
unforeseeable risks.”
(Emphasis added.)
Apparently, Gomes
misstated a quotation from W. Prosser, Handbook of the Law of
Torts, § 30 (4th ed. 1971), by substituting the word
“unforeseeable” in place of “unreasonable.”
instruction, if used, must be corrected.
On remand, the
Otherwise, other
instructions, such as Willocks’ instruction no. 1 and Gomes’
instructions no. 15 and 18, clarified what “duty” meant.
There
were other jury instructions which informed the jury of the duty
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defendants owed to Rapoza.
Specifically, Willocks’ proposed jury
instruction no. 1, as modified, stated that “Defendants had a
duty to provide a reasonably safe place to work.
This duty runs
to whomever the Defendants require or permit to perform work on
the premises.”
Gomes’ proposed instruction no. 18, given over
Plaintiffs’ objection, also instructed the jury that “[a]n owner
or occupier of land is not under a general duty to warn of the
presence of known or obvious dangers which are not extreme and
which a reasonable person exercising ordinary attention,
perception and intelligence can be expected to avoid.”
The court
also instructed the jury that “[a]n owner or occupier of the
property owes a duty of reasonable care to all persons
anticipated to be on the premises.”
XIV.
Based on the foregoing, the February 13, 1998 order
granting Defendant Taft’s motion for summary judgment and the
October 14, 1998 final judgment are vacated and the case remanded
in accordance with this decision.
DATED:
Honolulu, Hawai#i, January 2, 2004.
On the briefs:
George W. Ashford of
Ashford and Associates for
plaintiffs-appellants
Gregory K. Markham and
Keith K Kato of Chee and Markham
for defendant-appellee Willocks
Construction Corporation
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Robert J. Crudele,
Brian J. De Lima and
Howard H. Shiroma of
Crudele Delima and Shiroma
for defendant-appellee
Jon Gomes, et al.
David W. Lo and
M. Tyler Pottenger for
defendant-appellee
Karl Milton Taft
I concur in the result.
45
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