Breed v. Shaner, 5736

• Citation: 562 P.2d 436,57 Haw. 656
• Decision Date: 01 April 1977
• Docket Number: No. 5736,5736
• Parties: Magdalena Maria BREED, a minor, by her next friend, Antonius Maria Breed, and Antonius Maria Breed, Individually, Plaintiffs-Appellant, v. Steven SHANER et al., Defendants-Appellees.
• Court: Supreme Court of Hawai'i

Page 436

562 P.2d 436

57 Haw. 656

Magdalena Maria BREED, a minor, by her next friend, Antonius Maria Breed, and Antonius Maria Breed Individually, Plaintiffs-Appellant, v. Steven SHANER et al., Defendants-Appellees.

No. 5736.

Supreme Court of Hawai'i.

April 1, 1977.

Syllabus by the Court

1. The County of Hawaii is not entitled to a non-jury trial under Hawaii Revised Statutes § 662-5.

2. The existence of any duties in the County for the negligent design, construction, maintenance or inspection of the highway depends upon the extent of authority and control the County exercised over the highway.

3. For a reasonable period of time after the transfer of jurisdiction the transferring County remains potentially liable for injuries caused by pre-transfer defects.

4. Whether the injury was caused by the negligence of the transferring County or of the transferee, or of both, or neither was a jury question.

5. The responsible government has a duty to keep its highways in reasonably safe condition.

6. The responsible government has a duty to design a highway to be safe for travel by people exercising ordinary care.

7. Where the design of the highway is defective or becomes inadequate the responsible government must either warn the users of the highway of the danger or correct it.

8. The State Tort Liability Act should be liberally construed to effectuate its purpose.

9. The primary factor in determining whether a certain activity should be considered a discretionary function is whether the decision at issue involved the evaluation of broad policy factors.

10. The act is not intended to provide a vehicle to review policy decisions by State officials of employees in the form of a negligence suit.

Christopher P. McKenzie, Honolulu (Gould & McKenzie, Honolulu, of counsel), for plaintiffs-appellants.

Stephen G. Bess, Asst. Corp. Counsel, Hilo, for defendant-appellee, County of Hawaii.

William W. Milks, Deputy Atty. Gen., Honolulu, for defendant-appellee, State of Hawaii.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and KIDWELL, JJ., and KATO, Circuit Judge, in place of MENOR, J., disqualified.

KOBAYASHI, Justice.

Plaintiffs Magdalena Maria Breed, a minor, by her next friend, Antonius Maria Breed, and Antonius Maria Breed, individually, (plaintiffs) brought an action for damages suffered by Magdalena Maria Breed in an automobile accident against Steven Shaner, Frank Shaner, Sherry Harris (Harris), State of Hawaii (State), County of Hawaii (County) and 12 John Does. The State and County cross-claimed against each other. Defendants Steven Shaner, Frank Shaner and Sherry Harris were dismissed by stipulation. Upon pretrial motions, trial court ordered any claim that may be against the County be heard by the Court without a jury; it subsequently granted the County summary judgment against plaintiffs' complaint and State's cross-claim, and the State partial summary judgment. Plaintiffs were granted interlocutory appeal from these orders. We reverse.

ISSUES

1. Is the County of Hawaii entitled to a non-jury trial under Hawaii Revised Statutes § 662-5?

2. Does the pre-accident transfer of jurisdiction by the County of Hawaii to the State of Hawaii of the portion of the highway here in question bar a finding of liability against the County as a matter of law?

3. Is the State of Hawaii exempted from liability as a matter of law for the design of the highway here in question, under the discretionary function exception to the State Tort Liability Act, HRS § 662-15(1)?

STATEMENT OF THE CASE

On August 29, 1970, plaintiff Magdalena Maria Breed (Ms. Breed) was a passenger, along with defendant Steven Shaner, in a motor vehicle being driven by defendant Harris. They were traveling from Kona towards Waimea, County of Hawaii, Hawaii, on a public road known as Mamalahoa Highway, Route 19D. Approximately 9.3 Miles from the Waimea Police Station the vehicle went out of control and turned over. Ms. Breed sustained injuries from the accident. The portion of the highway upon which the accident occurred will be referred to as 'highway'.

A letter dated January 16, 1970, from the Chief of Police, County of Hawaii, to Charles L. Schuster, Hawaii District Engineer, Department of Transportation, Highways Division (Mr. Schuster), states in part:

Our records show that there have been 17 accidents on Route 19-D, about 9.3 miles Kona from the Waimea Police Station from January, 1967, to this date.

This is the first curve after coming off the wide and improved section of the Keaumoku stretch from Kona going towards Waimea.

In the 17 accidents, two persons were killed and 27 were injured. Five accidents were property damage only accidents, and two classified as night time accidents.

All of the accidents occurred in about the same manner. They were all going in the Waimea direction and either ran off the road or overturned at the curve.

Both the County and the State acknowledge that the highway was hazardous at the time of the accident.

There is no evidence indicating who originally designed the highway when it was first constructed in the early 1900's. However, the County carried responsibilities for the highway from the time it was built until June 30, 1969. During that period it had the authority to realign the highway. On July 1, 1969, the State accepted jurisdiction of the highway and has repaired and maintained it since.

The record shows that both the State and County made improvements to the segment of road which includes the area on which the accident occurred. During the early 1930's the highway was designated as part of the Federal-Aid Highway system. Prior to 1938 the Territorial Highway Department proposed realignment of the road and the plan was partially implemented in 1938 and 1953. However, the improvements proposed for the section of the highway involved here were never carried out. The highway was resurfaced under State contract in 1968. ¹ After the transfer of jurisdiction, Mr. Schuster recommended realignment of the highway to the chief engineer for the Highways Division.

The State contends that prior to July 1, 1969, there existed no authority to prevent the County from improving the highway. The Hawaii County Department of Public Works could have submitted a project proposal on its own initiative. in 1968 the Hawaii County Council requested an estimate for realigning the highway from the County Department of Public Works.

Previously, in 1966, the County performed road construction on another part of the road that was transferred to the State in 1969. The County road department flattened out a portion of the road.

The legal ownership of the highway is in dispute. The County contends that the State acquired ownership by virtue of the July 1, 1969, transfer of jurisdiction. The State maintains that the ownership of the highway is not established, though conceding that it acquired the responsibility to repair and maintain the road after the July 1, 1969, transfer of jurisdiction.

OPINION

I. IS THE COUNTY OF HAWAII ENTITLED TO A NON-JURY TRIAL UNDER HAWAII REVISED STATUTES § 662-5?

The trial court ordered the claims against the County to be heard without a jury pursuant to the County's motion on the theory that Salavea v. City and County of Honolulu, 55 Haw. 216, 517 P.2d 51 (1973), extended the scope of the State Tort Liability Act, HRS Chapter 662, to the County. Since the entry of the order this court decided Orso v. City and County of Honolulu, 56 Haw. 241, 534 P.2d 489 (1975), which limited the holding of Salavea to the applicability of HRS § 662-4, the statute of limitations provision, to the City and County of Honolulu. Orso is dispositive of the issue presented here; Salavea is not authority to support a total extension of the State Tory Liability Act to the County.

II. DOES THE PRE-ACCIDENT TRANSFER OF JURISDICTION BY THE COUNTY OF HAWAII TO THE STATE OF HAWAII OF THE HIGHWAY HERE IN QUESTION BAR A FINDING OF LIABILITY AGAINST THE COUNTY AS A MATTER OF LAW?

Plaintiffs alleged in their amended complaint that '. . . County of Hawaii negligently designed, constructed, maintained and inspected and/or (is) otherwise responsible for the road, highway and areas adjacent thereto in the vicinity of where the . . . accident occurred.' The trial court apparently accepted the County's contention that the transfer of jurisdiction of the highway to the State, effective July 1, 1969, established a bar for the County from any liability for the design, construction, maintenance, inspection or other responsibility it may have had for the highway. We are of the opinion that the record does show that there is a genuine issue as to a material fact and that the County is not entitled to judgment as a matter of law. Technicolor Inc. v. Tgraeger, 57 Haw. 113, 551 P.2d 163 (1976); Gum v. Nakamura, 57 Haw. 39, 549 P.2d 471 (1976).

The test to be applied by this court on review of summary judgment was stated in Technicolor, Inc. v. Traeger, supra, at 118-19, 551 P.2d at 168, as follows:

'. . . the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion. (Citations omitted.) Further, in considering the validity of the granting of summary judgment under H.R.C.P. Rule 56(c), the appellate court must determine whether any genuine issue as to a material fact was raised and, if not raised, whether the moving party was entitled to judgment as a matter of law.' (Citation omitted.)

The existence of any duties in the County for the negligent design, construction, maintenance or inspection of the highway prior to July 1, 1969, depends upon the extent of authority and control the County exercised over the highway. Levy v. Kimball, 80 Haw. 497, 443 P.2d 142 (1968); see In re Taxes Victoria Ward, 33 Haw. 235 (193...