83 Hawai'i 78, Rapoza v. Parnell

• Decision Date: 28 August 1996
• Docket Number: No. 17344,17344
• Citation: 924 P.2d 572
• Parties: 83 Hawai'i 78 Fulton A. RAPOZA, Jr., Plaintiff-Appellant, v. Sean D. PARNELL, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 572

924 P.2d 572

83 Hawai'i 78

Fulton A. RAPOZA, Jr., Plaintiff-Appellant, v. Sean D. PARNELL, Defendant-Appellee.

No. 17344.

Intermediate Court of Appeals of Hawai'i.

Aug. 28, 1996.

As Amended Sept. 3, 1996.

Syllabus by the Court

Plaintiff sustained injuries when an automobile driven by Defendant struck Plaintiff. At the time of the accident, Plaintiff claimed that he was standing on the side of the road; in contrast, Defendant and a passenger in Defendant's car maintained that Plaintiff was standing in the middle of the road. When Plaintiff was transported to the hospital, Plaintiff's blood alcohol content was measured at 0.273 grams per deciliter.

Plaintiff filed a negligence lawsuit against Defendant. At trial, Defendant called an expert witness to testify about Plaintiff's blood alcohol content and the effect that alcohol had on Plaintiff on the day of the accident. Plaintiff moved to exclude this evidence, but the trial court denied this motion. Plaintiff also requested that the trial court give proposed jury instructions on the law of comparative negligence and the last clear chance doctrine; the trial court refused this request. In the end, the jury found both parties negligent: Plaintiff 72% negligent and Defendant 28% negligent; and the trial court entered judgment in favor of the Defendant. Plaintiff appealed.

This opinion decides that: (1) the last clear chance doctrine is abolished in Hawai'i; (2) the trial court should have instructed the jury on the law of comparative negligence; and (3) the trial court did not err in allowing Defendant's expert witness to testify about Plaintiff's alcohol consumption.

Lawrence W. Cohn (Cohn, Sogi & Smith, of counsel), on the briefs, Kailua-Kona, for plaintiff-appellant.

Jeffrey H. K. Sia and Rhonda A. Nishimura (Libkuman, Ventura, Ayabe, Chong & Nishimoto, of counsel), on the brief, Honolulu, for defendant-appellee.

Before WATANABE, ACOBA and KIRIMITSU, JJ.

KIRIMITSU, Judge.

In this pedestrian/automobile accident case, plaintiff-appellant Fulton A. Rapoza, Jr. (Plaintiff), appeals from the July 6, 1993 judgment entered in favor of defendant-appellee Sean D. Parnell (Defendant) and the August 3, 1993 order denying Plaintiff's motion for new trial. For the reasons set forth below, we vacate the judgment and remand for a new trial.

I. BACKGROUND

On August 18, 1989, at 3:00 p.m., Plaintiff got off from work at the King Kamehameha Hotel and walked a block or two to a bar called The Office. At The Office, Plaintiff had a beer with a friend, Kip Taylor (Taylor). Taylor invited Plaintiff to dinner at Taylor's house, and Plaintiff accepted this invitation. On the way to dinner, Taylor drove Plaintiff to a nearby liquor store where they bought two regular-sized bottles of wine.

At about 6:00 or 7:00 p.m., Taylor and Plaintiff arrived at Taylor's home. During the course of the evening, Plaintiff drank wine. At about 11:30 p.m., Plaintiff asked Taylor for a ride home, but Taylor refused. Plaintiff then left, intending to walk or hitchhike home.

A little after midnight, Plaintiff was walking northbound on Kuakini Highway. Meanwhile, Defendant was driving with three passengers, northbound on Kuakini Highway--heading in the same direction as Plaintiff.

According to a police report, at approximately 12:15 a.m., Defendant's automobile struck Plaintiff. At the time of the accident, Plaintiff claimed that he was on the side of the road, while Defendant and one of the passengers maintained that Plaintiff was in the middle of the road. Defendant maintains that when he saw Plaintiff in the middle of the road, Defendant slammed on his brakes, causing his car to spin and eventually strike Plaintiff. ¹ Plaintiff was transported to Kona Hospital where his blood alcohol content was measured at 0.273 grams per deciliter.

On December 19, 1990, Plaintiff filed a negligence lawsuit against Defendant. At trial, Defendant called Bernice E. Coleman, M.D. (Dr. Coleman) as an expert witness on the effect that alcohol has on a person. Dr. Coleman testified about the amount of alcohol in Plaintiff's blood at the time of the accident and the effect that alcohol had on Plaintiff's body. At trial, Plaintiff moved to exclude Dr. Coleman's testimony because, inter alia, Dr. Coleman could not link the effect of alcohol to the cause of the accident. The trial court denied this motion.

During trial, Plaintiff also requested that the trial court give to the jury Plaintiff's proposed instructions on the law of comparative negligence and the last clear chance doctrine; the trial court refused this request.

Pursuant to a special verdict form, the jury found both parties negligent: Plaintiff 72% negligent and Defendant 28% negligent. On July 6, 1993, the trial court entered a judgment in favor of the Defendant. On July 8, 1993, Plaintiff filed a motion for a new trial, which was denied on August 3, 1993. Thereafter, Plaintiff filed a timely appeal.

II. DISCUSSION

On appeal, Plaintiff challenges: (1) the trial court's refusal to give certain requested jury instructions on the last clear chance doctrine and the law of comparative negligence; (2) the trial court's decision to allow Defendant's expert witness to testify about Plaintiff's alcohol consumption. We address each challenge in order.

A. The Trial Court Did Not Err in Refusing to Give Plaintiff's Requested Jury Instruction Number 3 But Erred in Refusing to Give Plaintiff's Requested Jury Instruction Number 4.

1. Standard of review

"When jury 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." Craft v. Peebles, 78 Hawai'i 287, 302, 893 P.2d 138, 153 (1995) (internal quotation marks and citations omitted).

2. Plaintiff's jury instruction number 3

Plaintiff contends that the trial court erred in refusing to give Plaintiff's jury instruction number 3 regarding the last clear chance doctrine. ² However, Defendant counters that the last clear chance doctrine does not apply in the instant case because the doctrine was abolished by the legislature when it enacted a modified comparative negligence statute in 1969--today codified as Hawai'i Revised Statutes (HRS) § 663-31 (1993). ³

In order to determine whether the last clear chance doctrine is still viable in Hawai'i, we review the history behind the enactment of HRS § 663-31.

Prior to the adoption of HRS § 663-31, all claims of negligence in Hawai'i were subject to the common law defense of contributory negligence. Armstrong v. Cione, 6 Haw.App. 652, 657, 736 P.2d 440, 444 (citing Pacheco v. Hilo Elec. Light Co., 55 Haw. 375, 520 P.2d 62 (1974)), aff'd on other grounds, 69 Haw. 176, 738 P.2d 79 (1987). Under this contributory negligence defense, the plaintiff's contributory fault completely barred his or her recovery for negligence. Pacheco, 55 Haw. at 382, 520 P.2d at 67 (citation omitted).

An exception to the defense of contributory negligence was the common law doctrine of last clear chance--a doctrine judicially created to mitigate the harsh results of contributory negligence. Prosser, Law of Torts § 65, at 438 (3d ed. 1964). ⁴

[The last clear chance] doctrine states that even where the injured party was negligent in the first instance, his [or her] negligence will not defeat recovery 'if it be shown that the defendant might have avoided the injury by the exercise of ordinary care and reasonable prudence.' Ferreira v. Honolulu R.T. and L., Co., 16 Haw. 615, 620 (1905). In order for the rule to apply, it must appear that either the plaintiff was in actual peril and unable to extricate himself [or herself], or in immediate danger of getting into a perilous situation to the knowledge of the defendant. Furthermore, there must have been a reasonable opportunity thereafter for the defendant to have averted the injury.

Silva v. Oishi, 52 Haw. 129, 132, 471 P.2d 524, 526 (1970). In other words, according to the last clear chance doctrine, if the defendant had the last clear chance to avoid the accident but failed to do so, the defendant would be liable for negligence.

In 1969, the legislature enacted Hawai'i's modified comparative negligence statute and, consequently, abolished the common law doctrine of contributory negligence. 1969 Haw. Sess. L. Act 277, § 1 at 422-23. The legislature abrogated the doctrine of contributory negligence because it believed the doctrine was "unfair." Hse. Stand. Comm. Rep. No. 397, in 1969 House Journal, at 778; Sen. Stand. Comm. Rep. No. 849, in 1969 Senate Journal, at 1194. In enacting this modified comparative negligence statute, the legislature "sought to temper a phase of the common law deemed inconsistent with contemporary notions of fairness." Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933 (1982) (per curiam).

Today, Hawai'i's modified comparative negligence statute, HRS § 663-31, bars a plaintiff's recovery only if the plaintiff's negligence is greater than the negligence of all defendants involved. If recovery is not barred, HRS § 663-31 then reduces the plaintiff's recovery against the defendant or defendants by the proportion of fault of the negligent plaintiff. The purpose of this statute is " 'to allow one party at fault in an accident resulting in injury to be recompensed for the damages attributable to the fault of another if the former's negligence was not the primary cause of the accident.' " Mist v. Westin Hotels, Inc., 69 Haw. 192, 195, 738 P.2d 85, 90 (1987) (quoting Wong, 64 Haw. at 405, 642 P.2d at 933).

Nothing in the language or legislative history of HRS § 663-31 explicitly abolishes the last clear chance doctrine. However, because the purpose of the last clear chance doctrine is to mitigate the harsh results of contributory negligence and because the justification for the last clear chance doctrine no longer exists...