Bhakta v. County of Maui
| Decision Date | 30 December 2005 |
| Docket Number | No. 24780.,24780. |
| Citation | 124 P.3d 943 |
| Parties | Jyotsna BHAKTA, Individually and as Personal Representative of the Estate of Mitesh Bhakta, Deceased; Nikhil Bhakta, a minor, by his Next Friend, Candace Turner; Dewal Shah, Individually and as Personal Representative of the Estate of Meghal Shah, Deceased; Daxa Bhakta, Individually and as Personal Representative of the Estate of Bhupendra Bhakta, Deceased; Cathy M. Arends, Individually and as Personal Representative of the Estate of Donald Arends, Deceased, Plaintiffs-Appellants, v. COUNTY OF MAUI, State of Hawai`i, Defendants-Appellees, and John Does 1-5, John Doe Corporations 1-5, John Doe Partnerships 1-5, Roe Non-Profit Corporations 1-5, and Roe Governmental Agencies 1-5, Defendants. |
| Court | Hawaii Supreme Court |
Arnold T. Phillips II, on the briefs, for plaintiffs-appellants.
Miriam P. Loui and Marcie C.L. Laderta, Deputy Attorneys General, on the briefs, for defendant-appellee State of Hawai`i.
This negligence action arises out of the drowning deaths of four men, Meghal Shah, Mitesh Bhakta, Bhupendra Bhakta, and Donald Arends [hereinafter, collectively, the decedents], at Ke`anae Landing on the north shore of the island of Maui, Hawai`i (between P`ia and Hana). On May 5, 1999, plaintiffs-appellants Dewal Shah (Dewal), Jyotsna Bhakta (Jyotsna), Daxa Bhakta (Daxa), and Cathy Arends (Cathy), the wives of the decedents [hereinafter, collectively, the widows], filed their first amended complaint, individually and as personal representatives of their respective husband's estate, and Nikhil Bhakta, the son of Mitesh Bhakta [hereinafter, the widows, the decedents' estates, and Nikhil Bhakta are collectively referred to as Plaintiffs], alleging negligence against the County of Maui (the County), the State of Hawai`i, and Doe defendants. Following a jury-waived trial, the Circuit Court of the Second Circuit, the Honorable Artemio C. Baxa presiding, entered final judgment on November 21, 2001 in favor of defendant-appellee State of Hawai`i (the State).1
Plaintiffs appeal from the final judgment entered in favor of the State, challenging the trial court's: (1) December 26, 2000 order denying their motion for summary judgment; and (2) November 5, 2001 findings of fact (FOF), conclusions of law (COL), and order. On appeal, Plaintiffs raise ten points of error, discussed infra, essentially raising issues regarding the State's duty to warn the Plaintiffs of, and failure to protect them from, the dangerous ocean and man-made conditions at Ke`anae Landing, as well as evidentiary matters. Plaintiffs challenge approximately fifty of the 115 FOFs and COLs issued by the trial court.2 For the reasons discussed below, Plaintiffs' contentions lack merit. Accordingly, we affirm the trial court's final judgment.
As explained in greater detail below, the events on January 30, 1997 leading to the drowning of the decedents began when Meghal Shah (Meghal), a tourist from Georgia, was allegedly swept into the ocean while standing at the Ke`anae Landing area. Besides the individuals who were with him [hereinafter, the Georgia Group], other individuals passing by on the highway [hereinafter, the Utah group] and local residents living nearby congregated at the landing area to help.
The State owns the land upon which Ke`anae Landing is located. Originally constructed around 1917, Ke`anae Landing consisted of a wooden pier and was once a commercial wharf, but the pier was destroyed during a tidal wave in 1946.
Today, Ke`anae Landing, considered a historical site, consists of an upper landing area with concrete stairs descending approximately six feet to a lower concrete landing area at the edge of the ocean. The upper landing area is constructed atop the natural lava rock coastline, approximately six feet above sea level. A small, unmarked, and unpaved dirt area is located adjacent to the upper landing area where vehicles can pull off the road and park. According to the trial testimony, surfers and divers now use Ke`anae Landing as an access to the ocean and, periodically, small boats are launched from the landing area.
On the afternoon of January 30, 1997 (at a little after 2:00 p.m.), married couples Meghal and Dewal,3 Mitesh Bhakta (Mitesh) and Jyotsna, Bhupendra (Bhupendra) Bhakta and Daxa [hereinafter, collectively, the Georgia group] arrived at Ke`anae Landing. They were residents of Georgia, vacationing in Hawai`i, and had been sightseeing at various locations on Maui before arriving at Ke`anae Landing. They parked their van in the dirt area adjacent to the upper landing area, exited the vehicle, and took several photographs of the ocean and the landing area.
Meghal then walked down a concrete pathway leading to the upper landing area; Dewal followed him. Meghal asked Dewal to take a picture of him while he stood in front of a pylon or boat tie structure located on the pathway. Meghal then walked down the stairs leading to the lower landing area. Dewal began to follow him, but turned and ran back to the pathway after some water splashed on her. When Dewal looked back towards the lower landing area, she could no longer see Meghal. Subsequently, Dewal went down the pathway and stopped, whereupon she saw Meghal in the water and told the rest of the Georgia group.4 At that point, Mitesh and Bhupendra went down to the lower platform to assist Meghal as he attempted to swim back onto the landing area. As Mitesh and Bhupendra were trying to help Meghal, the water pulled Meghal away from the landing area. At some point, Mitesh jumped into the water. When Mitesh reached Meghal, he grabbed Meghal on one side and started pulling Meghal toward the lower platform. At that point, Daxa went down to the lower platform to give Bhupendra some rope that she had found. Dewal then saw Bhupendra throw the rope to Mitesh, who was able to grab onto it. Once Dewal saw Mitesh and Bhupendra pulling Meghal, who, by that time, was not responding, she headed away from the landing area.
While Mitesh and Bhupendra were helping Meghal, Jyotsna and Daxa headed away from Ke`anae Landing in search of assistance. Daxa flagged down a van passing on the highway adjacent to Ke`anae Landing that was occupied by two married couples: Donald and Cathy Arends and Billy and Pauline Crump. Following in a second van were two other married couples: C. Wayne and Carene Erickson and Stephen and Judy Kenyon. All four couples were visiting from Utah [hereinafter, collectively, the Utah group].
After parking their vans, Donald Arends (Donald), a fireman, immediately rushed to the landing area. By this time, Meghal had stopped swimming and was floating face down in the water, and Mitesh and others were pulling Meghal onto the lower platform.
While members of the Utah and Georgia groups were helping Meghal, local Maui residents Harry "Bobo" Pahukoa, III (Bobo), J.D. Pahukoa (J.D.), Sam Holi (Sam), Guy Akiu (Guy), and Ben "Kimo" Morton (Kimo) were at the residence of Harry Pahukoa, II, which is located about a quarter-mile from Ke`anae Landing.5 Sometime in the afternoon of January 30, 1997, a tour van driver came up to the Pahukoa residence, shouting for someone to call "911." Sam immediately drove to Ke`anae Landing with Kimo and J.D., arriving in less than thirty seconds, and they all proceeded to the lower platform to help bring Meghal out of the water. At this point, several members of the Georgia group, the Utah group, and the three Maui men (Sam, Kimo, and J.D.) were on the lower platform attempting to help Meghal.
Once Meghal was pulled onto the lower platform, Sam suggested that they move Meghal up to higher ground. However, at that same instant, Donald called out that he knew how to perform cardio-pulmonary resuscitation (CPR) and went down to the lower platform. As Donald began to perform CPR, a wave struck the landing area, sweeping everyone who was on or near the lower platform into the ocean, that is, Meghal, Mitesh, Bhupendra, Donald, Cathy, Billy, Sam, J.D., and Kimo.
While the above-described events were occurring, Bobo and Guy were still at the Pahukoa residence as Bobo was getting some rope and two life vests before heading to the landing area. At some point, Bobo's friend, J.J. Hueo (J.J.), also arrived at Ke`anae Landing with his surfboard. By the time Bobo, Guy, and J.J. reached the landing area, all of the nine people referred to above were in the water.
Bobo was able to pull his brother, J.D., out of the water with the rope. Bobo then jumped into the water, wearing one life vest and carrying the other. Bobo swam over to Donald and one of the Georgia men and gave them the life vests. Bobo then rescued Billy and brought him to the upper landing area where the others could hold onto him. A few minutes later, Bobo re-entered the water, taking J.J.'s surfboard, and rescued Cathy.
Unfortunately, Bobo and the other Maui residents could rescue only J.D., Billy and Cathy; Meghal, Mitesh, Bhupendra, and Donald either drowned or sustained fatal injuries from being thrown onto the rocks by the waves.
According to the trial court's undisputed FOFs, the ocean and weather conditions on January 30, 1997 were as follows:
60. At 8:16 a.m. on January 30, 1997, the Maui Civil Defense Agency issued High Surf Advisory # 3, which stated as follows:
61. At 11:45 a.m. on January 30, 1997, the Maui...
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