Corbett v. Association of Apartment Owners of Wailua Bayview Apartments

• Decision Date: 02 May 1989
• Docket Number: No. 12957,12957
• Citation: 772 P.2d 693,70 Haw. 415
• Parties: Margaret CORBETT, Plaintiff-Appellant, v. ASSOCIATION OF APARTMENT OWNERS OF WAILUA BAYVIEW APARTMENTS, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 693

772 P.2d 693

70 Haw. 415

Margaret CORBETT, Plaintiff-Appellant, v. ASSOCIATION OF APARTMENT OWNERS OF WAILUA BAYVIEW

APARTMENTS, Defendant-Appellee.

No. 12957.

Supreme Court of Hawai'i.

May 2, 1989.

Syllabus by the Court

1. A possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or to warn the users against it.

2. The focus of a jury instruction, with respect to the duty imposed upon possessors of the land as regards injuries of persons using the land, should be upon whether there is an unreasonable risk of harm resulting from the condition on the land. It is error to focus the instructions on whether the condition on the land was "unreasonably dangerous" rather than on whether the condition imposed an unreasonable risk of harm.

Douglas R. Spencer, Honolulu, for appellant.

Jeffrey S. Portnoy, Cades Schutte Fleming & Wright, Honolulu, for appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

PADGETT, Justice.

This is an appeal from a judgment in favor of the defendant/possessor of land pursuant to a jury verdict, in a slip-and-fall case.

Appellant Margaret Corbett allegedly injured herself when she stepped off of a paved sidewalk on appellee's premises and fell. She claims that the cause of her fall was the four- or five-inch difference in height between the paved sidewalk and the adjoining lawn.

The appeal is based upon claimed error in the giving of defendant's proposed jury instructions 38, 40 and 41 over her objection.

Those three instructions read as follows:

DEFENDANT'S PROPOSED INSTRUCTION NO. 38

People can hurt themselves on almost any condition of the premises. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight.

DEFENDANT'S PROPOSED INSTRUCTION NO. 40

"Actual notice" means that the defendant actually knew the condition was unreasonably dangerous. "Constructive notice" of an unreasonably dangerous condition arises by operation of law and may be inferred if the facts indicate a reasonably prudent person would have discovered the dangerous condition in time to remedy it or give warning before the injury occurred.

DEFENDANT'S PROPOSED INSTRUCTION NO. 41

In determining whether the condition was unreasonably dangerous and whether the defendant had actual or constructive notice of the condition, you may consider evidence of the absence of prior accidents or occurrences.

The phrase "unreasonably dangerous" is used five times in these three instructions. Appellant contends, and we agree, that for the purposes of jury instructions, that term is misleading, and should not have been used.

The legal question, of the scope of the duty of a possessor of the land, toward those who come onto the land, with respect to conditions on the land, is a matter with which the courts have had great difficulty in dealing, and which has resulted in many jurisdictions in very complex rules based on the particular status of the person coming on the land. See, for example, 2 RESTATEMENT OF TORTS (Second) §§ 328E through 350, at 170-233 (1965). Some years ago, this court broke with the common-law tradition of classifying the scope of the possessor's duty by the status of the persons injured as invitees, licensees, etc. Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Gibo v. City and County of Honolulu, 51 Haw. 299, 459 P.2d 198 (1969).

However, in discussing the land possessor's negligence in other cases we have, in various contexts, used the term "condition unreasonably dangerous" (Friedrich v. Dept. of Transportation, 60 Haw. 32, 36 n. 1, 586 P.2d 1037, 1040 n. 1 (1978)); "dangerous conditions" (Littleton v. State, 66 Haw. 55, 69, 656 P.2d...