Birmingham v. Fodor's Travel Publications, Inc.

Decision Date20 July 1992
Docket NumberNos. 15263 and 15384,s. 15263 and 15384
Citation833 P.2d 70,73 Haw. 359
CourtHawaii Supreme Court
Parties, Prod.Liab.Rep. (CCH) P 13,322, 20 Media L. Rep. 1521 Joseph BIRMINGHAM and Gail Birmingham, Plaintiffs-Appellants, v. FODOR'S TRAVEL PUBLICATIONS, INC., a New York corporation, Defendant-Appellee, and State of Hawaii, County of Kauai, John Does 1-10, Doe Partnerships 1-10, and Doe Corporations 1-10, Jointly and Severally, Defendants. Joseph BIRMINGHAM and Gail Birmingham, Plaintiffs-Appellants, v. STATE of Hawaii and County of Kauai, Defendants-Appellees, and Fodor's Travel Publications, Inc., a New York corporation, John Does 1-10, Doe Partnerships 1-10, and Doe Corporations 1-10, Jointly and Severally, Defendants.

Syllabus by the Court

1. A negligence action lies only where there is a duty owed by the defendant to the plaintiff. The existence of a duty, that is, whether such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other--or, more simply, whether the interest of the plaintiff who has suffered invasion was entitled to legal protection at the expense of the defendant--is entirely a question of law.

2. A new duty should not be imposed upon members of our society without any logical, sound, and compelling reasons, taking into consideration the social and human relationships of our society.

3. There are compelling policy reasons that militate against imposing a duty on a publisher to warn of the accuracy of its publication, absent authorship or warranty of the publication's contents.

4. A publisher of a work of general circulation, that neither authors nor guarantees the contents of its publication, has no duty to warn the reading public of the accuracy of the contents of its publication.

5. The general rule in this jurisdiction is that an appellate court will not address a legal theory not raised by the appellant in the court below. However, where the legal theory not raised was encompassed by a legal theory presented to the court below, and the court below considered the presented theory in rendering its order, the appellate court may, in its discretion, address the legal theory raised on appeal.

6. Products liability is a form of strict liability.

7. Unless the alleged cause of an injury can be considered a "product," the injured party has no cause of action based on strict/products liability.

8. Books and magazines are not rendered defective by their contents, the purpose of whose "design" is "to be read."

9. The purposes served by products liability law are focused on the tangible world and do not take into consideration the unique characteristics of ideas and expressions.

10. A publication--specifically, the information contained within it--is not a "product" for purposes of a products liability action.

11. The State of Hawaii is the owner and occupier of the ocean waters and shoreline fronting beach land up to the high wash of the waves.

12. The State, as owner and occupier of the ocean water and all the beach area up to the high water mark adjacent to a municipal beach park, owes a duty to persons injured as a result of water-related activities if: (1) the condition causing the injury is a dangerous unnatural condition in the area of the water-related activity; and (2) the State has actual or constructive knowledge of the condition. If there is a dangerous unnatural condition and the State has actual or constructive knowledge of the condition, then the State has a duty to warn the public engaging in water-related activities of the condition.

13. A wave is a naturally occurring phenomenon of the ocean--not a man-made object such as floating poles, logs, and pilings. A wave may be a dangerous condition of the ocean, but by its very nature, cannot be an unnatural condition.

14. The County of Kauai, as an occupier of land, has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon its premises.

15. The County of Kauai, as an occupier of land fronting the shoreline of the ocean, has a duty to warn users of "extremely dangerous" conditions in the ocean along its beach frontage which were known or in the exercise of reasonable care ought to have been known to it.

16. The County of Kauai, as an occupier of land fronting the beach and ocean, which induces or invites a business or public invitee onto its land to engage in an action on the adjoining public beach or ocean, may owe a duty to warn the invitee of the dangers involved in engaging in the action.

17. Where there are genuine issues of material fact regarding (1) whether the plaintiffs were impliedly invited onto the beach by the County of Kauai, and (2) whether the ocean conditions off the beach were "extremely dangerous" conditions not readily apparent to persons of ordinary intelligence, summary adjudication is inappropriate.

Thomas L. Mui (Chang, Mui & Chock, of counsel), Honolulu, for plaintiffs-appellants.

Edward J. Bybee (Nelson S.W. Chang with him on the brief; Bybee, Chang & Rulon, of counsel), Honolulu, for defendant-appellee Fodor's Travel Publications, Inc.

Wesley F. Fong, Deputy Atty. Gen. (Norma Desantis Titcomb with him on the brief), Department of Atty. Gen., Honolulu, for defendant-appellee State of Hawaii.

Harvey E. Henderson, Jr. (Michael H. Tsuchida with him on the brief; Moon, O'Connor, Tam & Yuen, of counsel), Honolulu, for defendant-appellee County of Kauai.

Before LUM, C.J., and WAKATSUKI, MOON, KLEIN and LEVINSON, JJ.

LEVINSON, Justice.

The plaintiffs-appellants Joseph and Gail Birmingham (the Birminghams) appeal orders entered March 13, 1991, June 4, 1991, and June 10, 1991, granting summary judgment on their negligence claims in favor of the defendants-appellees Fodor's Travel Publications, Inc. (Fodor's), State of Hawaii (State), and County of Kauai (County). On the record before us, we answer the following question: Did Fodor's, the State and/or the County owe the Birminghams a duty to warn of ocean surf conditions? For the reasons set forth in this opinion, we answer in the negative as to Fodor's and the State. As to the County, we find that there are genuine issues of material fact precluding summary judgment. Accordingly, we affirm the circuit court's orders as to Fodor's and the State, and reverse and remand as to the County.

I.

Fodor's is a publisher of travel guides and has published over 700 different travel titles world-wide since 1949. Fodor's does not author these publications, accepting writings from different travel writers regarding their personal observations and comments on locations they visit throughout the world. In 1987, Fodor's published Fodor's Hawaii 1988 (the Guide), a travel guide to the Hawaiian Islands. The Guide was compiled, researched, and edited by an international team of travel writers, field correspondents, and editors, and has been published world-wide. The Guide provides numerous descriptions of various locations and subjects to apprise the general public of choices regarding travel to and activities in the Hawaiian Islands. Fodor's neither expressly guarantees, warrants, nor endorses the locations and subjects as to which the Guide provides descriptions and information.

In February 1988, the Birminghams bought a copy of the Guide in Texas, in preparation for their honeymoon trip to Hawaii. The Birminghams were especially interested in information on the Island of Kauai. Based on information derived from the Guide, specifically the section on Kekaha Beach, 1 the Birminghams decided to go to Kekaha Beach to body surf, swim, and relax. Shortly after arriving at Kekaha Beach on March 15, 1988, Joseph Birmingham (Joseph) sustained personal injuries from body surfing in ocean waters off Kekaha Beach. The beach land fronting the ocean waters where the body surfing accident occurred is owned by the State but has never been designated or used as a State park. This parcel (the Kekaha Beach Addition) consists of approximately 30.70 acres of land and was set aside on April 3, 1951, by Executive Order No. 1425, to be controlled and managed by the County for use as an addition to the Kekaha Beach Park.

The bulk of Kekaha Beach Park is located on the mauka (mountain) side of Kaumualii Highway; the Kekaha Beach Addition is on the makai (ocean) side. Kekaha Beach Park is owned and operated by the County. After the transfer of the Kekaha Beach Addition to the County, the State has never exercised any control, management, or maintenance over the area. The State has not improved or built on Kekaha Beach. The only indication of the State's presence anywhere near Kekaha Beach is a sign reading, "Danger--Keep Off," posted near a pile of rocks, and some trash cans located within the State's highway easement. Neither the sign nor the trash cans regulate activity at Kekaha Beach Park. Thus, the County was in sole control and management of Kekaha Beach Park, including the Kekaha Beach Addition, at the time of Joseph's accident.

On February 26, 1990, the Birminghams filed a complaint against Fodor's, the State, and the County. The complaint alleged that: (1) the "Defendants and/or any of them, owned, leased, operated, maintained, cared for, controlled and/or permitted, recommended, encouraged and invited to be used by" the Birminghams, and other members of the public, Kekaha Beach and the adjacent waters; (2) the defendants collectively knew, or in the exercise of reasonable care should have known, that the wave and water conditions along Kekaha Beach were dangerous to swimmers; (3) the defendants failed to warn the Birminghams of these dangerous conditions; and (4) as a result of their failure to warn the Birminghams, the defendants were negligent, legally causing the Birminghams' alleged injuries and damages.

On December 28, 1990, Fodor's moved for summary judgment, contending that, as a matter of law, it owed no duty to the Birminghams. Fodor's claimed that the...

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