87 Hawai'i 273, Ozaki v. Association of Apartment Owners of Discovery Bay

• Citation: 954 P.2d 652
• Decision Date: 22 January 1998
• Docket Number: No. 19194,19194
• Parties: 87 Hawai'i 273 Betty J. OZAKI, Individually and as Special Administrator of the Estate of Cynthia J. Dennis, Deceased, and Teruko K. Dennis, Plaintiffs-Appellants, v. ASSOCIATION OF APARTMENT OWNERS OF DISCOVERY BAY, Timothy W. Walker, Defendants-Appellees, and Peter Moli Sataraka, Does 1-20, Doe Partnerships 1-20, Doe Corporations 1-20, and Doe Governmental Entities 1-20, Defendants.
• Court: Court of Appeals of Hawai'i

Page 652

954 P.2d 652

87 Hawai'i 273

Betty J. OZAKI, Individually and as Special Administrator of the Estate of Cynthia J. Dennis, Deceased, and Teruko K. Dennis, Plaintiffs-Appellants, v. ASSOCIATION OF APARTMENT OWNERS OF DISCOVERY BAY, Timothy W Walker, Defendants-Appellees and Peter Moli Sataraka, Does 1-20, Doe Partnerships 1-20, Doe Corporations 1-20, and Doe Governmental Entities 1-20, Defendants.

No. 19194.

Intermediate Court of Appeals of Hawai'i.

Jan. 22, 1998.

Certiorari Granted Feb. 27, 1998.

David C. Schutter and Mitchell S. Wong, David C. Schutter & Associates, on the briefs, Honolulu, for plaintiffs-appellants.

Robert P. Richards and Tamara M. Gerrard, Reid, Richards & Miyagi, on the brief, Honolulu, for defendants-appellees.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

We hold that Hawai'i Revised Statutes (HRS) § 663-31 (1993), Hawai'i's modified comparative negligence statute, applies only to actions sounding wholly in negligence. Where negligence combines with other grounds of liability to cause injury to a plaintiff, we believe pure comparative negligence principles apply. In our view pure comparative negligence principles are best suited to accomplish a fair and equitable result by distributing a plaintiff's loss in proportion to the respective faults of the parties causing the loss. Under this approach, a plaintiff's negligence would not bar recovery but would reduce the plaintiff's recovery by an amount equal to the degree to which the plaintiff is culpably negligent.

We hold, thus, that where the intentional tortious conduct of Defendant Peter Moli Sataraka (Sataraka), the negligent conduct of Defendants-Appellees Association of Apartment Owners of Discovery Bay (AOAO Discovery Bay) and Timothy J. Walker (Walker), and the negligent conduct of Cynthia J. Dennis (Cynthia), the decedent in this case, all combined to cause Cynthia's death, liability must be apportioned among Sataraka, AOAO Discovery Bay and Walker, and Cynthia in proportion to their respective faults. Additionally, the damages recoverable on behalf of Cynthia's estate by Plaintiff-Appellant Betty J. Ozaki (Ozaki), as Special Administrator of the Estate of Cynthia J. Dennis, and by Plaintiff-Appellant Teruko K. Dennis (Teruko), Cynthia's mother, (collectively Plaintiffs) must be reduced by an amount equal to the degree to which Cynthia was negligent. As a result, we conclude that the first circuit court (the court) erred in applying HRS § 663-31 to bar Plaintiffs' recovery against AOAO Discovery Bay and Walker based on the jury's finding that Cynthia's negligence exceeded AOAO Discovery Bay and Walker's negligence.

We hold, further, that HRS § 663-10.9(2)(A) (1993) did not abolish the joint and several liability of joint tortfeasors for economic and noneconomic damages in actions in which an intentional tort is at least one of the grounds on which liability is found. That being the case here, we conclude that AOAO Discovery Bay and Walker, and Sataraka are jointly and severally liable for Plaintiffs' damages.

With regard to the appeal points which require remand, we hold that (1) expert testimony as to "future earnings" damages, (2) evidence of loss of enjoyment of life, (3) evidence of punitive damages, and (4) instructions as to mental and emotional distress should not have been excluded by the court from the jury's consideration of the estate's damages.

I.

On July 4, 1990, Cynthia was murdered by Sataraka, her paramour, in apartment 3711 of the Discovery Bay condominium complex (the condominium).

Cynthia moved into the apartment in early June 1990. Sataraka moved in with Cynthia during the second week of June but was not a tenant of the condominium. A short time later Sataraka moved out of the apartment. Sataraka, however, continued to visit and spend nights there until a few days before the murder.

Walker, a security guard at the condominium, had seen Sataraka continuously in the building for the month prior to the murder. Walker had observed Sataraka accompanying Cynthia and entering the building via the "enterphone" and by use of a key.

On the night before the murder, Cynthia and Sataraka were both at the same nightclub. Sataraka confronted Cynthia and began talking with her. Cynthia eventually left the nightclub and when Sataraka discovered that Cynthia had left he proceeded to the condominium.

Upon arriving at the condominium at about 2:00 a.m. on July 4, Sataraka attempted to contact Cynthia by way of the enterphone. When no one answered, Sataraka asked Walker if he could wait for Cynthia. Testimony at trial was in dispute as to whether Walker permitted Sataraka to enter the building. Sataraka testified that he asked Walker to let him in and Walker opened the door for him. Detective Vernon Santos, one of the investigating officers from the Honolulu Police Department, similarly reported that Sataraka said the guard permitted him to enter after Sataraka was unable to gain access by using the enterphone. On cross-examination, Sataraka was confronted with his deposition testimony which indicated he obtained access to the building by using the enterphone but because he was unable to reach the door within the ten to fifteen seconds allowed for entry, the guard permitted him to enter. ¹

After entering the building, Sataraka discovered Cynthia was not in her apartment. Sataraka returned to the lobby and conversed with Walker.

At approximately 3:00 a.m., there was a change of security guards and Walker informed his replacement that Sataraka was "waiting for his girlfriend." A short time later, Sataraka returned to apartment 3711. Security cameras revealed that Cynthia arrived at the apartment only minutes after Sataraka arrived. According to Sataraka, Cynthia saw him and began "swearing" at him. She then opened the door to the apartment and Sataraka followed her in.

Cynthia was found dead the next day. The cause of death was determined to be asphyxia, resulting from either suffocation or strangulation. Sataraka was tried and convicted of second degree murder. ²

On October 23, 1991, Ozaki, Cynthia's sister, individually and as Special Administrator of the Estate of Cynthia J. Dennis, and Teruko filed a complaint against AOAO Discovery Bay, Walker, and Sataraka (collectively Defendants). In the complaint, Ozaki, as special administrator, sought general and special damages on behalf of the estate for, inter alia, physical and mental and emotional pain and suffering, future earnings, and loss of the pleasure of being alive. Ozaki, individually, ^{3 3} and Teruko sought damages for, inter alia, emotional and mental distress, loss of consortium, ⁴ and pain and suffering arising out of Cynthia's death. Punitive damages were also sought generally against all Defendants. Among other allegations, the complaint asserted that AOAO Discovery Bay was negligent in providing "security" and that Walker was negligent in "allowing [Sataraka] through a security door and onto an elevator ... which led to [Cynthia's] apartment."

On November 12, 1991, AOAO Discovery Bay and Walker filed an answer to Plaintiffs' complaint and a cross-claim against Sataraka.

In its answer, AOAO Discovery Bay admitted respondeat superior liability for Walker's actions in the course of his employment. Thereafter, AOAO Discovery Bay and Walker were treated as one entity in the trial. ⁵ Because AOAO Discovery Bay and Walker were treated as one entity, we hereafter refer to them collectively as "Discovery Bay."

Plaintiffs obtained an entry of default against Sataraka on their complaint.

Discovery Bay obtained an entry of default against Sataraka on its cross-claim seeking full indemnity or, if Discovery Bay and Sataraka were determined to be joint tortfeasors, judgment against Sataraka for any amount paid by Discovery Bay over and above its pro rata share of the judgment. Later, Discovery Bay obtained a directed verdict against Sataraka on the cross-claim.

On April 11, 1994, the court orally granted, and on April 19, 1994, entered, over Plaintiffs' objections, written orders (1) excluding evidence regarding Plaintiffs' loss of enjoyment of life claim; (2) rejecting testimony of Cynthia's future earnings; and (3) prohibiting reference to punitive damages.

The case proceeded to trial on April 12, 1994. In its instructions, the court charged the jury with Plaintiffs' proposed instructions numbers 10.1 and 14.2 which the court had modified, by deleting any claim for mental suffering and emotional distress. ⁶ The court refused, also over objection, Plaintiffs' proposed instruction number 11 which defined emotional distress. Further, the court refused Plaintiffs' proposed verdict form and adopted, with modification, Discovery Bay's special verdict form. ⁷

On May 2, 1994, the jury returned its verdict, finding that "[AOAO Discovery Bay] and/or Walker" were negligent and that Cynthia was also negligent. The jury apportioned the fault in causing Plaintiffs' damages as 92% to the intentional conduct of Sataraka and as 8% to the negligent conduct of others. The jury further apportioned the 8% negligent conduct as 3% to "[AOAO Discovery Bay] and/or Walker" and 5% to Cynthia.

The pertinent part of the special verdict form, with the jury's answers, stated:

Question No. 6. Apportion the percentage of fault giving rise to the injury and/or damage to Plaintiffs in the spaces provided below:

A. Intentional Conduct of Peter Sataraka 92 %

B. Negligent Conduct of all other parties 8 %

Total percentages of lines A and B above must equal 100%.

Question No. 7. Using the "Negligence" figure from line B, above, apportion the percentage of negligence giving rise to the injury and/or damage to the Plaintiffs in the spaces provided below. Please note that the total percentages listed below must equal the percentage of the negligence [sic] conduct attributed to all parties on line B, Question No. 6.

A. Defendants AOAO Discovery Bay and/or Walker...