Cootey v. Sun Inv., Inc.

• Decision Date: 05 November 1984
• Docket Number: No. 9168,9168
• Citation: 690 P.2d 1324,6 Haw.App. 268
• Parties: Patrick F. COOTEY and Yvonne M. Cootey, Plaintiffs-Appellants, v. SUN INVESTMENT, INC., and County of Hawaii, Defendants-Appellees, and COUNTY OF HAWAII, a municipal corporation, Third-Party Plaintiff-Appellee, v. JHK TANAKA, INC., Third-Party Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 1324

690 P.2d 1324

6 Haw.App. 268

Patrick F. COOTEY and Yvonne M. Cootey, Plaintiffs-Appellants, v. SUN INVESTMENT, INC., and County of Hawaii, Defendants-Appellees, and COUNTY OF HAWAII, a municipal corporation, Third-Party Plaintiff-Appellee, v. JHK TANAKA, INC., Third-Party Defendant-Appellee.

No. 9168.

Intermediate Court of Appeals of Hawai'i.

Nov. 5, 1984.

Reconsideration Denied Nov. 29, 1984.

Syllabus by the Court

1. In determining whether the trial court erred in granting defendants' motions for directed verdict, the appellate court will consider the evidence and inferences that may be fairly drawn therefrom in the light most favorable to the plaintiff. If the evidence and the inferences viewed in that light are of such character that reasonable persons in the exercise of fair and impartial judgment could have reached different conclusions on the crucial issue, then the appellate court must conclude that the trial court should have denied the motion and submitted the issue to the jury.

2. Municipalities are not responsible for maintenance of drainage improvements in private subdivisions until the municipality has accepted or exercised some manner of legal control over them.

3. A municipality's liability for failure to control the conduct of a third person is to be determined under general tort principles and a municipality is not responsible for the behavior of a third person unless there is a special relationship between the municipality and either the third person who may likely threaten harm to another or the party who is the victim of the harm.

4. Municipalities are vested with the authority to control the development of subdivisions for the benefit of the public at large and generally no liability is imposed upon a municipality by virtue of its negligent enforcement of subdivision laws, ordinances and regulations.

5. In exercising its authority over subdivision development and in controlling the actions of a subdivider, a municipality has a duty not to require or approve installation of drainage facilities which create an unreasonable risk of foreseeable harm to a neighboring landowner.

6. Each possessor of land may interfere with the natural flow of surface water for the development of his land so long as such interference is not unreasonable under the circumstances of the particular case, but he must refrain from conduct which foreseeably causes a neighboring landowner to be exposed to an unreasonable risk of harm.

7. A person who has sustained injuries due to the negligent conduct of another may recover against the tortfeasor provided that the negligent behavior was the legal cause of the injuries suffered.

8. An actor's negligent conduct is a legal cause of harm to another if his conduct is a substantial factor in bringing about the harm and there is no rule of law relieving the actor of liability because of the manner in which his negligence has resulted in the harm.

9. Whether a subdivider's liability arising from development of his land is relieved by the natural topography of the area in general, which, in combination with unusually heavy rains makes plaintiffs' land susceptible to flooding, is dependent upon whether proper investigation would have revealed that plaintiffs' land would be subject to flooding in heavy rain and whether the heavy rains that did occur were foreseeable.

William J. Rosdil, Hilo (Greg K. Nakamura, Hilo, with him on the briefs; William J. Rosdil, Hilo, a law corporation, of counsel), for plaintiffs-appellants.

Carleton B. Reid, Honolulu (John C. Wong, Honolulu, with him on the brief; Davis, Playdon, Reid & Richards, Honolulu, of counsel) for defendant-appellee Sun Inv., Inc.

Sandra E. Pechter, Deputy Corp. Counsel, County of Hawaii, Hilo, for defendant-appellee County of Hawaii.

Kenneth K. Fukunaga, Honolulu (Tom C. Leuteneker, Hilo, with him on the brief; Carlsmith, Carlsmith, Wichman & Case, Honolulu, of counsel), for defendant-appellee JHK Tanaka, Inc.

Colleen K. Hirai, Deputy Corp. Counsel, City & County of Honolulu, Honolulu, Lee A. Ohigashi, Deputy Corp. Counsel, County of Maui, and Warren C.K. Perry, Second Deputy County Atty., County of Kauai, on the brief for City & County of Honolulu, County of Maui, and County of Kauai, respectively, joint amicus curiae.

HEEN, Judge.

In this negligence action for damages caused by the flooding of plaintiffs Patrick F. and Yvonne M. Cootey's (Cooteys) home, Cooteys appeal the action of the trial court denying their motion for directed verdict and granting those of defendants Sun Investment, Inc. (Sun), County of Hawaii (County), and JHK Tanaka, Inc. (Tanaka). ¹

The general question is whether the court erred in granting Defendants' motions and denying Cooteys'. ² The specific question is whether, considering the evidence and the reasonable inferences therefrom in the light most favorable to Cooteys, it can be said that the jury could reasonably have found Defendants, individually or collectively, liable for Cooteys' damages. We answer yes to both questions and reverse.

FACTS

In 1972 Cooteys built a home on their houselot in the Kamuela Lakeland subdivision (Lakeland) on the island of Hawaii. In a letter dated September 27, 1973 (approval letter), County gave tentative approval to Sun to subdivide its 34.284 acre property, also in Kamuela. The approval letter set forth the conditions required for final subdivision approval, such as the construction of drainage facilities, and stated, inter alia, as follows:

2. Subdivider to make following revisions and/or additions to map:

a. Easements.

b. Existing drainage or natural flow of stream.

c. Road "B" and Lots 1 through 13 may be affected by the realignment of the Hawaii Belt Road. Copy of comments from the Highways Division is enclosed for revisions to plat maps.

3. Subdivider to submit following items:

* * *

* * *

c. Drainage calculations and plans for approval by the Department of Public Works and the State Highways Division.

Sun's property is separated from Lakeland by a large pasture (pasture) approximately 320 feet wide. Sun's subdivision was called Puukapu Acres, Unit I (Puukapu Acres), and consisted of 27 houselots averaging 1.1803 acres per lot.

Tanaka is an engineering corporation that represented Sun in obtaining subdivision approval, prepared the construction plans for the subdivision, designed the drainage system, and had general supervision of the construction work. County's final approval of the subdivision based upon Tanaka's detailed plans was given on October 2, 1974.

The topography of the area is such that the elevation of Puukapu Acres is higher than Lakeland and Cooteys' property. Prior to Puukapu Acres' development, surface water that collected thereon and on some of the surrounding area flowed through a natural watercourse within Puukapu Acres and onto the adjoining pasture. From the pasture it flowed onto Lakeland. Tanaka's plans called for a 50-foot-wide roadway to cut across the watercourse. In order to allow the water to continue to flow as it had done, the plans also called for installation of a 15-inch drainpipe to be installed under the road at its intersection with the watercourse. The pipe would carry the surface water, still within the watercourse, from the side of the road away from Lakeland to the nearer side and return it to the same watercourse. The water would continue in the watercourse from the pipe's outlet to the boundary of the subdivision, a distance of approximately 420 feet, and flow onto the pasture. Installation of the subdivision improvements by a contractor engaged by Sun was completed in 1976.

Between December 1978 and March 1980, a part of Cooteys' home was flooded during heavy rains on at least five occasions, ³ because the runoff rain water that had flowed through the drain pipe and the watercourse onto the pasture finally accumulated on Cooteys' property.

On May 5, 1980, Cooteys filed this action for damages against Sun and County. Tanaka was added as a defendant ⁴ in an amended complaint filed on September 8, 1980. The amended complaint alleged that (1) Defendants had failed to design, construct and maintain Puukapu Acres' drainage system in compliance with those laws, rules, regulations and directives relating to the subdivision of lands in Hawaii County; (2) County had failed to properly maintain the drainage system after its completion and dedication; and (3) Developers, through their design and installation of the subdivision improvements, had interfered with the natural flow of surface water over Puukapu Acres in a manner unreasonable under the circumstances. The complaint sought damages for injury to Cooteys' home and personal property and for mental distress. Defendants answered the amended complaint and filed cross-claims against each other.

Jury trial commenced on October 25, 1982, and upon completion of all the evidence all parties moved for directed verdict under Rule 50(a), Hawaii Rules of Civil Procedure (1980). The court granted Defendants' motions and denied Cooteys' motion. Judgment was entered on December 7, 1982, and Cooteys filed their notice of appeal on December 16, 1982. ⁵

STANDARD OF REVIEW

Generally, "on motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue then the motion should be denied and the issue should be submitted to the jury." Young v. Price, 47 Haw. 309, 313, 388 P.2d 203, 206 (1963), reh'g, 48 Haw. 22, 395 P.2d 365 (1964); Collins v. Greenstein, 61 Haw. 26, 595 P.2d 275 (1979); McKenna v. Volkswagenwerk, 57 Haw. 460, 558 P.2d 1018 (1977); Switzer v. Drezen, 2 Haw.App. 96, 626 P.2d 202 (...