Courbat v. Dahana Ranch, Inc., No. 25151.

CourtHawaii Supreme Court
Writing for the CourtLevinson
Citation141 P.3d 427
PartiesLisa COURBAT and Steven Courbat, Plaintiffs-Appellants, v. DAHANA RANCH, INC., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
Decision Date10 July 2006
Docket NumberNo. 25151.

Page 427

141 P.3d 427
Lisa COURBAT and Steven Courbat, Plaintiffs-Appellants,
v.
DAHANA RANCH, INC., Defendant-Appellee, and
John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
No. 25151.
Supreme Court of Hawaii.
July 10, 2006.
As amended on grant of reconsideration in part August 3, 2006.*

Page 428

COPYRIGHT MATERIAL OMITTED

Page 429

Andrew S. Iwashita, Hilo, on the briefs, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.

Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, Honolulu, on the briefs, for the defendant-appellee Dahana Ranch, Inc.

MOON, C.J., LEVINSON and NAKAYAMA, JJ., and DUFFY, J., dissenting, with whom ACOBA, J. joins.

Opinion of the Court by LEVINSON, J.


The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, "the Courbats"] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit

Page 430

court's April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).

On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai`i Revised Statutes (HRS) § 480-2 et seq. (Supp.1998)1 do not apply to the Ranch's business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) (Supp.1994)2 in finding that

Page 431

Lisa's injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.

For the reasons discussed infra in section III.A, we vacate the circuit court's May 13, 2002 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai`i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver "releas[ing] and hold[ing] harmless ... [the] Ranch ... from ... injury to myself ... resulting from my ... being a spectator or participant or while engaged in any such activity in the event[-]related facilities" and stating that the undersigned "acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses."3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was "some kind of release of some sort" and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.

The Ranch's guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa's horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa's horse from the rear while the three horses were in motion, and, when her horse neared Nakoa's horse, Nakoa's horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:

Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide ... ? ...

Page 432

[Lisa]: When I felt that the horse[ ] was getting too close to the horses above me.

Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?

[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.

Q: [T]hose two horses, the guide's horse and the guest's horse, they were to the left of your horse, is that correct, to the front left of you?

[Lisa]: Yes.

Q: You recall which hind leg of the horse kicked you? Was it the right or the left?

[Lisa]: It would be the right one.

Q: And that was a horse which was ridden by the guide or the guest?

[Lisa]: The guide.

Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say "all the horses," yours, the guide's, and the guest that was riding parallel to the guide?

[Lisa]: Just before?

Q: Yes.

[Lisa]: Yes.

Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?

[Lisa]: No.

Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?

[Lisa]: Yes.

Nakoa described the same incident in a January 9, 2002 deposition:

[Nakoa]: ... Everybody was facing the gate, the second gate... . And I was in the back. And because I lots of times don't want to be a part of the ride, I started riding to the right. And then a man came to talk to me and ask me about the horse.

....

Q: On which side of your horse was he at the time?

[Nakoa]: He was on the left side of me.

Q: And were you still moving or were you stopped?

[Nakoa]: We were walking.

....

Q: . . . [H]ad you passed Lisa along the way?....

[Nakoa]: Because of the angle, she was off to my left.

Q: Still in front of you?

[Nakoa]: No. About the same.

....

Q: And when is the next time you notice[ ] Lisa's horse before the injury takes place?

....

[Nakoa]: She was still on the left side of me.

Q: . . . [A]bout how far away do you estimate she was from your horse?

[Nakoa]: You know, 30 feet maybe....

Q: And from that point on, ... were you able to continually observe Lisa riding her horse until the time the injury occurred?

[Nakoa]: Yes. The man was on my left and I was talking to him.

....

Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it's approaching your horse?

[Nakoa]: No, I didn't see her approaching my horse. That's what I'm trying to tell you. She was on the left side of this man and me and we're all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.

Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa's horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and

Page 433

since the incident has complained of ongoing pain and injury to her leg.

The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.

On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.

The Courbats filed a memorandum in opposition to the Ranch's motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa's horse; and (2) that the rebuttable presumption of no negligence on a defendant's part set forth in HRS § 663B-2, see supra note 2, was inapplicable.

The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch's motion and denying the Courbats' motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal.4

II. STANDARDS OF REVIEW

A. Summary Judgment

We review the circuit court's grant or denial of summary judgment de novo....

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

[Hawai`i Cmty. Fed. Credit Union v. Keka, 94 Hawai`i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).

Querubin v. Thronas, 107 Hawai`i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v....

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    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
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    ...inquiry is not a matter this court can dispose of at this stage of the case. See Courbat v. Dahana Ranch, Inc., 111 Hawai‘i 254, 263, 141 P.3d 427, 436 (2006) (noting that the application of an objective 707 F.Supp.2d 1099 reasonable person standard is ordinarily for the trier of fact). On ......
  • Stanton v. Bank of Am., N.A., Civil No. 09–00404 LEK–BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • November 30, 2011
    ...the issue in any way but one.122 Hawai'i 181, 195, 223 P.3d 246, 260 (quoting Courbat v. Dahana Ranch, Inc., 111 Hawai'i 254, 263, 141 P.3d 427, 436 (2006)) (alterations in original) (citations and internal quotation marks omitted). In the instant case, the contents of the 1/31/07 Good Fait......
  • Ryan v. Salisbury, Civ. No. 18-00406 ACK-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 14, 2019
    ...Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1092 (9th Cir.2010) (quoting Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262, 141 P.3d 427, 435 (2006) ). "Whether information is likely to affect a consumer's choice is an objective inquiry, ‘turning on whether the act or omission is......
  • Ryan v. Salisbury, Civ. No. 18-00406 ACK-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 14, 2019
    ...Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1092 (9th Cir.2010) (quoting Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262, 141 P.3d 427, 435 (2006) ). "Whether information is likely to affect a consumer's choice is an objective inquiry, ‘turning on whether the act or omission is......
  • Request a trial to view additional results
114 cases
  • Agustin v. Pnc Financial Serv. Group Inc, No. CV 09-00423SOM/KSC.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • April 15, 2010
    ...inquiry is not a matter this court can dispose of at this stage of the case. See Courbat v. Dahana Ranch, Inc., 111 Hawai‘i 254, 263, 141 P.3d 427, 436 (2006) (noting that the application of an objective 707 F.Supp.2d 1099 reasonable person standard is ordinarily for the trier of fact). On ......
  • Stanton v. Bank of Am., N.A., Civil No. 09–00404 LEK–BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • November 30, 2011
    ...the issue in any way but one.122 Hawai'i 181, 195, 223 P.3d 246, 260 (quoting Courbat v. Dahana Ranch, Inc., 111 Hawai'i 254, 263, 141 P.3d 427, 436 (2006)) (alterations in original) (citations and internal quotation marks omitted). In the instant case, the contents of the 1/31/07 Good Fait......
  • Ryan v. Salisbury, Civ. No. 18-00406 ACK-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 14, 2019
    ...Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1092 (9th Cir.2010) (quoting Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262, 141 P.3d 427, 435 (2006) ). "Whether information is likely to affect a consumer's choice is an objective inquiry, ‘turning on whether the act or omission is......
  • Ryan v. Salisbury, Civ. No. 18-00406 ACK-RT
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 14, 2019
    ...Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1092 (9th Cir.2010) (quoting Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 262, 141 P.3d 427, 435 (2006) ). "Whether information is likely to affect a consumer's choice is an objective inquiry, ‘turning on whether the act or omission is......
  • Request a trial to view additional results

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