Armstrong v. Cione, 10805

• Decision Date: 01 June 1987
• Docket Number: No. 10805,10805
• Citation: 69 Haw. 176,738 P.2d 79
• Parties: , Prod.Liab.Rep. (CCH) P 11,543 Adam ARMSTRONG, Petitioner-Appellant, v. Jack CIONE, Respondent-Appellee, and John and Jane Does 1-10, Defendants.
• Court: Hawaii Supreme Court

Page 79

738 P.2d 79

69 Haw. 176, Prod.Liab.Rep. (CCH) P 11,543

Adam ARMSTRONG, Petitioner-Appellant, v. Jack CIONE, Respondent-Appellee and John and Jane Does 1-10, Defendants.

No. 10805.

Supreme Court of Hawai'i.

June 1, 1987.

Reconsideration Denied June 23, 1987.

Syllabus by the Court

1. Where the legislature has not occupied an area of the tort law, the court may fashion an appropriate rule of law.

2. The plain meaning and legislative history of HRS § 663-31 indicates it was not intended to influence strict products liability law.

3. Plaintiff's strict liability claim is not defeated merely because he was found to be 67% negligent and Defendant to be 33% liable.

4. Where shower door was an integral part of leased premises and where there was no evidence that residential landlord installed the door, unsafe condition of the door is not cognizable under the doctrine of strict products liability.

James T. Leavitt, Jr. and Woodruff K. Soldner, for writ and on brief, Honolulu, for petitioner-appellant.

Grant K. Kidani, Shelton, G.W. Jim On, and Paul T. Hoshino, on the answer, Honolulu, for defendant-appellee.

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

LUM, Chief Justice.

Petitioner Adam Armstrong ("Petitioner"), in his Application for Writ of Certiorari, alleges that two errors were committed by the Intermediate Court of Appeals: (1) the court erred in affirming the circuit court's conclusion that the jury did not reach an inconsistent verdict when it found Respondent-Defendant Jack Cione ("Respondent") was negligent in causing Petitioner's injury but did not breach Respondent's implied warranty of habitability; and (2) the court erred in holding that the circuit court's grant of a directed verdict against Petitioner's strict products liability claim was harmless error because our decision in Kaneko v. Hilo Coast Processing, 65 Haw. 447, 654 P.2d 343 (1982), requires application of the modified comparative negligence statute, Hawaii Revised Statutes ("HRS") § 663-31 (1985), to strict products liability claims.

We granted certiorari to review the Intermediate Court of Appeals' decision. Armstrong v. Cione, 736 P.2d 440 (1987). We affirm the Intermediate Court of Appeals as to the first alleged error, but vacate as to the second. Nonetheless, we affirm the circuit court's dismissal of Petitioner's strict product liability claims.

I.

Petitioner was injured when his hand went through the plate glass door of a shower in the one bedroom apartment he was renting from the Respondent. The apartment was part of a larger cooperative called the Waikiki Regent that was constructed in 1959. While the other nine apartments in the building were two bedroom units, Respondent's apartment had been converted to two one- bedroom units. Respondent purchased the two units in 1981, and used one unit, 103-A, for office space and the other, 103-B, for storage.

Respondent eventually cleaned out unit 103-B and rented it to Tom Cesar. Cesar rented the unit until 1982 when his friend, Petitioner, took over the rental of the apartment. Petitioner was already familiar with the premises when he assumed the rental, as he had been a guest of Cesar's on several occasions.

Petitioner was injured on April 12, 1982 while attempting to close the shower door. The door was constructed of three panes of glass, two of which fold into the shower in a V-shaped pattern, pulling the third pane out of the way to permit entry and exit. The shower was built at the time of original construction of the apartment and the panes of glass were of ordinary glass instead of safety glass. Petitioner's hand slipped off the hinged portion of the door while attempting to push the door closed. The impact shattered the glass and cut his right arm.

It is unclear from the testimony at trial whether the parties inspected the apartment at the time Respondent took over the rental. However, Petitioner testified that prior to the accident, the pane of glass in question was visibly cracked. Petitioner also testified the shower door was always difficult to close, although neither tenant reported this to Respondent.

On April 12, 1985, Respondent moved for a directed verdict on all four of Petitioner's theories of liability: negligence, implied warranty of habitability, strict liability in tort, and products liability. Armstrong, at 443. ¹ The trial court eventually granted Respondent's motion except as to the negligence and implied warranty of habitability claims. The lower court in granting the motion with respect to the products liability claim stated, "the Court has re-examined the Bidar vs. Amfac, Inc., [case] and concludes as a matter of law that strict product liability and strict liability do not apply to the facts and circumstances of the case."

The jury returned its verdict on the negligence and warranty of habitability claim. They found Respondent negligent but no breach of the warranty of habitability. Asked to "apportion the fault for Plaintiff's injuries between [the parties,]" the jury assigned 67% to Petitioner and 33% to Respondent. Judgment was entered in favor of Respondent.

On appeal to the intermediate court, Petitioner misconstrued the circuit court, arguing it erred by ruling Respondent was exempt from application of strict products liability as an "occasional seller." Respondent argued, inter alia, that strict products liability does not apply to a landlord for defects in the leased premises.

II.

The Intermediate Court of Appeals held that even if the circuit court did err, it was harmless error. The intermediate court reached this result by holding Kaneko v. Hilo Coast Processing, 65 Haw. at 459-64, 654 P.2d at 351-54, requires application of the modified comparative negligence principles contained in HRS § 663-31 (1985). ² As the court stated:

The Kaneko court does not cite HRS § 663-31; however, it is the only basis for application of the doctrine of comparative negligence in this jurisdiction and the court must have had it in mind. Therefore, effective merger of the two doctrines requires that all the provisions of HRS § 663-31 be applied to strict products liability cases, and the injured plaintiff cannot recover in such cases if the proportion of negligence attributed to him exceeds the proportion of negligence attributed to the defendant. Consequently, the jury's finding that Plaintiff was 67% negligent in causing his injuries defeats any recovery by him for strict products liability and any error by the trial court in directing a verdict on that claim was immaterial.

Armstrong, at 444.

III.

A.

After a careful review of our decision in Kaneko, supra, we hold that the Intermediate Court of Appeals misread and misapplied Kaneko. We hold that Kaneko applies to the instant case. Our omission of citation to HRS § 663-31 in Kaneko was purposive. Since the legislature has not occupied the field of law, we are free to fashion a rule of comparative negligence to suit our original purposes in adopting strict products liability. See Yoshizaki v. Hilo Hospital, 50 Haw. 150, 155 & n. 7, 433 P.2d 220, 224 & n. 7 (1967).

The plain meaning of the words of the statute itself indicates the legislature has not intended to reach this area of law. See note 2, supra; Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. 401, 405, 642 P.2d 930, 933 (1982). Nonetheless, Respondent argues HRS § 663-31 applies given the continued viability of our modified comparative negligence statute in the face of this court's adoption of comparative negligence principles to strict products liability, and the failure of the legislature to modify the statute to specifically except products liability from its application. Respondent does not cite, and our research has not revealed, any indication the legislature intended to enter this area of the tort law. See Conf.Comm.Rep. No. 21-76, in 1976 Senate Journal, at 848 ("the degree of negligence of the injured person ... should be compared against the aggregate negligence of the defendants[.]") (emphasis added); Conf.Comm.Rep. No. 26, in 1976 House Journal, at 1132 (same); Sen.Stand.Comm.Rep. No. 489, in 1975 Senate Journal, at 1020 (purpose of amendment to provide recovery where negligence of plaintiff equal to that of defendant); Hse.Stand.Comm.Rep. No. 722 in 1975 House Journal, at 1309 (same).

Indeed, the legislative history indicates a desire to prevent application of the doctrine of contributory negligence to defeat plaintiffs' common law negligence claim. Wong v. Hawaiian Scenic Tours, 64 Haw. at 405, 642 P.2d at 933; Hse.Stand.Comm.Rep. No. 397, in 1969 House Journal, at 778 (contributory negligence "seems to be unfair and in opposition to the average person's concept of justice"); Sen.Stand.Comm.Rep. No. 849, in 1969 Senate Journal, at 1194. We therefore reject the reasoning of those jurisdictions that have construed the term "negligence" in their respective statutory scheme to apply to strict products liability. ³ Such a construction is not only unjustified in light of the legislative history of HRS § 663-31, but runs counter to the principles that led to our adoption of strict products liability.

In Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970), we adopted strict products liability in this jurisdiction. There we stated:

[T]he public interest in human life and safety requires the maximum possible protection that the law can muster against dangerous defects in products; that by placing the goods on the market the maker and those in the chain of distribution represent to the public that the products are suitable and safe for use; and that the burden of accidental injuries caused by defective chattels should be placed upon those in the chain of distribution as a cost of doing business and as an incentive to guard against such defects. (Footnote omitted).

Stewart, 52 Haw. at 74-75, 470 P.2d at 243.

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