77 Hawai'i 282, Montalvo v. Lapez
| Decision Date | 12 October 1994 |
| Docket Number | No. 16913,16913 |
| Citation | 77 Hawaii 282,884 P.2d 345 |
| Parties | 77 Hawai'i 282 Obidio T. MONTALVO, Plaintiff-Appellee/Cross-Appellant, v. John LAPEZ, City and County of Honolulu, Defendants-Appellants/Cross-Appellees, and Doe Defendants 1-25, Defendants. Obidio T. MONTALVO, Plaintiff, v. Daniel MAKEKAU, I. Doi Hauling Contractors, Inc., and Doe Defendants 1-25, Defendants. |
| Court | Hawaii Supreme Court |
David C. Schutter (Mitchell S. Wong, with him on the briefs), Honolulu, for plaintiff-appellee/cross-appellant.
Before MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and WEIL, Circuit Judge, in place of KLEIN, J., recused.
Defendants - appellants / cross - appellees John Lapez and the City and County of Honolulu (collectively, the City) appeal from a jury verdict in the First Circuit Court awarding $770,000.00 in damages against the City in favor of plaintiff-appellee/cross-appellant Obidio Montalvo resulting from a multi-vehicle rearend accident caused by the negligent operation of a City refuse truck. 1
On appeal, the City asserts that the trial court erred by: (1) improperly instructing the jury in several respects; (2) restricting the scope of the special verdict form; (3) denying its motion for remittitur or new trial; and (4) admitting irrelevant documents into evidence. On his cross-appeal, Montalvo asserts that the trial court erred by excluding expert testimony on hedonic damages, 2 and therefore, if the case is remanded for further proceedings, he should be allowed to present such expert testimony.
We vacate the trial court's judgment and remand for a new trial. With respect to Montalvo's cross-appeal, we affirm the trial court's decision to exclude expert testimony on hedonic damages.
On November 29, 1988, Montalvo was injured in a rearend, chain reaction automobile accident caused by the negligent operation of a City refuse truck driven by Lapez [hereinafter, the 1988 City accident or the City accident]. As a result of the accident, Montalvo allegedly hit his head and lost consciousness. X-rays taken at Straub Hospital's emergency room revealed instability in Montalvo's lower spine and a congenital condition known as spondylolisthesis--a condition that makes one susceptible to back injuries.
The record indicates that, prior to the 1988 City accident, Montalvo had been involved in several other accidents dating back to the mid-1960s. His first automobile accident occurred in 1964, wherein he injured his back, broke an arm, sustained burns, and was hospitalized for a month.
In 1980, Montalvo was involved in another automobile accident when a vehicle struck him at high speed. Among other injuries, Montalvo reinjured his back and fractured his pelvis. Montalvo underwent surgery and remained in the hospital for four months.
On June 27, 1987, Montalvo was again injured when a twenty-five ton dump truck, driven by Daniel Makekau, rearended him, throwing his body into the windshield [hereinafter, "the 1987 Makekau accident"]. Shortly after the 1987 Makekau accident, Montalvo began experiencing ringing in his ears, blurred vision, and pain to his head, neck, and back. Subsequently, he underwent surgery in March 1988 to remove a disc in his neck.
Montalvo was also the victim of two assaults prior to the 1988 City accident. On December 24, 1987, an unknown culprit assaulted Montalvo from behind, apparently hitting and kicking him several times in the spine and hip. According to hospital records, he was treated for back and hip pain. On April 15, 1988, Montalvo was struck in the face by his girlfriend during a domestic dispute,
[77 Hawai'i 285] aggravating the pain from his recent neck surgery.
After the 1988 City accident, Montalvo allegedly aggravated his condition on several different occasions. His medical records indicate that he
On July 18, 1989, Montalvo's doctor noted that Montalvo told him he "had to push [his] car off the road and change a flat," complaining that "my back and neck are killing me." Again, on March 27, 1990, the medical record reads,
A medical record entry of May 21, 1991 indicates that
[Montalvo] did recently attempt to go fishing with one of his friends; however, once the surf became rough he ended up down in the hatch of the boat as his back and neck became quite painful. He also has increased pain in his neck when attempting to work on his automobile.
On July 6, 1991, a CAT scan revealed a bulging disc in Montalvo's lower back. Based on his doctor's recommendation, Montalvo underwent surgery on November 11, 1991.
At trial, Montalvo testified that he experiences pain continuously. He also testified that he is unable to work, can no longer engage in sex, can no longer participate in recreational activities, such as swimming or horseback riding, can sit for only twenty minutes, and can stand for only thirty minutes at a time without discomfort.
On September 5, 1989, Montalvo filed a negligence action against the City and Lapez. The City eventually admitted liability for the accident but contested the amount of damages legally caused by its negligence.
Earlier, on June 20, 1989, Montalvo had filed suit against Makekau and Makekau's employer, seeking damages arising from the 1987 Makekau accident. On a motion for summary judgment, the trial court ruled that Makekau was negligent, leaving for trial the issue of damages. The circuit court consolidated the City and the Makekau suits for trial to apportion damages. Trial was to commence on November 5, 1993. However, on the eve of trial, the Makekau suit was settled; thus, trial proceeded against the City. The trial court instructed the jury as follows:
In this case, the defendants have admitted that they were at fault for the November 29, 1988 accident. Therefore, the only question for you to decide is what are the injuries and damages legally caused by the [1988 City refuse truck] accident, and, in addition thereto, the nature and extent of such injuries and damages.
Prior to trial, the court granted the City's motion in limine to exclude Montalvo's expert's testimony regarding hedonic damages, which denial forms the basis of Montalvo's cross-appeal.
On November 13, 1993, the jury awarded Montalvo $170,000.00 in special damages and $600,000.00 in general damages. After the trial court denied its motion for new trial, or in the alternative, for remittitur, the City appealed.
The City contends that the trial court committed eight errors: 3 (1) failing to instruct the jury on contributory negligence; (2) failing to instruct the jury on legal causation; (3) restricting the scope of the special verdict form, and in turn, restricting the jury's consideration of the issue of apportionment; (4) rejecting the City's request for special interrogatories on the verdict form regarding apportionment of damages for past injuries; (5)
[77 Hawai'i 286] failing to instruct the jury that ; (6) instructing the jury regarding the City's liability for alleged "negligent medical or hospital treatment or care"; (7) admitting into evidence extensive documentation concerning Montalvo's failed business venture; and (8) denying the City's request for remittitur or new trial. We address each contention in turn. 4
The City asserts that the trial court erred when it refused, over its objection, to give the following pattern court jury instructions on contributory negligence:
In this case, in addition to denying that any negligence on its part legally caused injury to the plaintiff, the defendants claim that the plaintiff himself was negligent and that plaintiff's own negligence was a legal cause of the plaintiffs' injuries. Where a plaintiff's own negligence is a legal cause of his injury, this is called "contributory negligence."
The burden is on the defendants to prove by a preponderance of the evidence any contributory negligence on the part of the plaintiff.
In this case, the plaintiff is suing the defendant for injuries resulting from the accident of November 29, 1988.
The jury must determine whether any of the parties in this case were negligent and whether such negligence on the part of a party was a legal cause of the plaintiff's injuries. If you find that the defendant's negligence was a legal cause of the plaintiff's injuries, you must determine the total amount of compensation to said plaintiff due to the injuries suffered, whether or not you find that the plaintiff's own negligence was also a legal cause of his injuries. In the event you find that both defendants and plaintiff were negligent, and that the negligence of each was a legal cause of the injuries, you must determine the degree to which the negligence of each party contributed to the injuries, in terms of percentages.
...
To continue reading
Request your trial
-
Nevins v. Ohio Dept. of Transp.
...system of justice.'" (Emphasis sic.) Goldfuss, supra, at 121, 679 N.E.2d at 1103 (quoting Montalvo v. Lapez [1994], 77 Hawaii 282, 884 P.2d 345 [Nakayama, J., concurring in part and dissenting in part]). For the foregoing reasons, I would overrule plaintiffs' second cross-assignment of erro......
-
Shanghai Inv. Co., Inc. v. Alteka Co., Ltd., No. 20709.
...affect the integrity of the trial court's findings of fact; and (3) whether the issue is of great public import. Montalvo v. Lapez, 77 Hawai`i 282, 290, 884 P.2d 345, 353 (1994) (quoting State v. Fox, 70 Haw. 46, 56 n. 2, 760 P.2d 670, 676 n. 2 (1988) (citing Jorgensen v. Mark Constr., Inc.......
-
Moyle v. Y & Y Hyup Shin, Corp.
...(dissenting opinion) also seems to discount the UCATA's telescoping mechanism. Justice Nakayama maintains that Montalvo v. Lapez, 77 Hawai`i 282, 884 P.2d 345 (1994), offers this court guidance regarding the propriety of the circuit court's inclusion of Tupuola on the special verdict form. ......
-
Anderson By and Through Anderson/Couvillon v. Nebraska Dept. of Social Services
...Livingston v. U.S., 817 F.Supp. 601 (E.D.N.C.1993); Sterner v. Wesley College, Inc., 747 F.Supp. 263 (D.Del.1990); Montalvo v. Lapez, 77 Hawai'i 282, 884 P.2d 345 (1994); Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994......