Crichfield v. Grand Wailea Co., No. 22851.

• Decision Date: 31 July 2000
• Docket Number: No. 22851.
• Citation: 93 Haw. 477,6 P.3d 349
• Parties: Cheryl CRICHFIELD and Gary Crichfield, Plaintiffs-Appellants v. GRAND WAILEA COMPANY, a Domesitc Limited Partnership, Defendant-Appellee, John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

6 P.3d 349

93 Haw. 477

Cheryl CRICHFIELD and Gary Crichfield, Plaintiffs-Appellants v. GRAND WAILEA COMPANY, a Domesitc Limited Partnership, Defendant-Appellee, John Does 1-10; Jane Does 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-Profit" Corporations 1-10; and Roe Governmental Entities 1-10, Defendants.

No. 22851.

Supreme Court of Hawai`i.

July 31, 2000.

Reconsideration Denied August 23, 2000.

Roy K.S. Chang and Harvey M. Demetrakopoulos, on the briefs, Honolulu, for the plaintiff-appellants Cheryl Crichfield and Gary Crichfield.

Patricia M. NaPier, Normand R. Lezy, and Tonya C. Kong, of Goodsill, Anderson, Quinn & Stifel, on the briefs, Honolulu, for the defendant-appellee Grand Wailea Company.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Court Judge NAKAMURA, Assigned By Reason of Vacancy.

Opinion of the Court by LEVINSON, J.

The plaintiffs-appellants Cheryl Crichfield ("Cheryl") and Gary Crichfield ("Gary") [collectively, "the Crichfields"] appeal from the second circuit court's order, filed on September 13, 1999, granting summary and final judgment against them and in favor of the defendant-appellee Grand Wailea Company ("Grand Wailea"). On appeal, the Crichfields contend that the circuit court erroneously granted summary judgment against them and in favor of Grand Wailea, inasmuch as there was a genuine issue of material fact regarding whether the Crichfields were present on land owned by Grand Wailea for a "recreational purpose," within the meaning of the Hawai`i Recreational Use Statute (HRUS), Hawai`i Revised Statutes (HRS) chapter 520 (1993 & Supp.1997), see infra section III.A.

We vacate the circuit court's order and remand the matter to the circuit court for further proceedings consistent with this opinion.

I. BACKGROUND

During the first week of September 1997, the Crichfields were registered guests of the Four Seasons Hotel on the island of Maui. On their last scheduled day in Hawai`i, the Crichfields were walking around the grounds of the Grand Wailea Resort, Hotel, and Spa ("the hotel"), which is located adjacent to the Four Seasons Hotel. The Crichfields left the walking path in order to get a better look at the fishpond and statuary on the hotel's grounds. While on the grass near the fishpond, Cheryl decided to remove her slippers. Lifting her left leg, she pushed her left slipper off her foot using her knee. When she placed her left foot back on the ground, she slipped and fell. In an effort to break her fall, she thrust out her right hand. Cheryl broke her arm, resulting in severe complications. The accident occurred on September 6, 1997.

On January 29, 1998, the Crichfields were interviewed by John Reitzel, a representative of Ward North America. He introduced himself to the Crichfields as an independent insurance administrator working on behalf of Grand Wailea. During her recorded interview with Reitzel, Cheryl described why she and her husband had taken a walk on the grounds of the hotel:

We had taken a scuba diving lesson and finished and decided to walk next door to see the grounds of the Grand Wailea statuary and the pond and had walked on the sidewalk that was adjoining the Four Seasons and walked up that way.

According to Cheryl, the accident took place "[r]ight on the edge of the pond, on the beach[;] there's a very large exotic fish pond with statuary and it was right, right there." She described the accident as follows:

We left the sidewalk, walked over toward the edge of the pond, um, I stopped to look at, to say something to my husband, I was kind of facing him. Went to take off my shoes, my sandals, because I wanted to walk on the grass. Took one sandal off, put my foot down and as I put my foot down, it felt, it was slick as glass. I started to fall. I've had four hips replaced, I've had my hips replaced four times due to advanced osteoporosis and I did not want to break a hip and I put my arm down to, break my fall. And in doing that, I broke my arm.

At the time of the accident, around 1:00 p.m., it was a "beautiful clear, clear as a bell, beautiful day."

In his recorded interview with Reitzel, Gary described the accident as follows:

GARY: Okay, um between the Four Seasons and the Grand Wailea, um, we were staying at the Four Seasons and there's a sidewalk that connects all of the hotels along the beachfront[,] and we walked along that sidewalk towards the Grand Wailea. And like I was saying[,] between them there is a fish pond that has a, grassy area where there is lots of ah bronze sculpturing and statuary[,] and it was at this point, walking across the grass lawn, looking at the statuary and the fish pond[,] that the accident occurred.

....

REITZEL: Okay, can you tell me how the accident happened?

GARY: Well, we had been, like I mentioned[,] we'd been looking at the statuary, walking along the grass. The grass up to this point had been perfectly dry. There, and it had been firm and stable, no problems, nothing to indicate that there was a wet spot in this particular area[,] and as we walked from one statute [sic] to the next statute [sic] and we were walking around the ah, the fish pond[,] um, I walked, I was not directly with her. I was a few feet away from her. But she bent down to take her shoes off cause she wanted to walk with her shoes off and took a step ..., put her foot down[,] and the next thing I knew she was on the ground. Um, and....

REITZEL: She was a few feet from you when this happened?

GARY: Yeah, she was a few feet away[,] so I was looking at her while it happened. Then I watched her bend over and take a shoe off and, and then she put her foot down and put some weight on that foot[,] and then[,] boom, the next thing I knew she was down. As she tells me, that area was just as slick as glass and or as ice, as slippery as, as glass.

REITZEL: When you got over to her, did it seem slippery to you?

GARY: Ummm, that's a good question, I was in such shock at the time. Um, I honestly couldn't answer that. I don't know, I was very, very concerned about her because she was in a lot of pain, instantly in a lot of pain. Um[,] I noticed as soon as she went down she had her arm out, she hit the ground and I knew she did something to the arm because she immediately cradled it to her chest and said, "It's broken, I know it's broken, please get some help." So, I don't remember the area being slick or anything about the footing of the area myself. I couldn't tell you.

(Some ellipsis points added and some in original). Gary did observe, however, that the area around Cheryl had become muddy after the police and emergency people arrived and traipsed around her.

On April 10, 1998, the Crichfields were interviewed by Chris Walby, a second representative of Ward North America. Cheryl explained further why she and her husband had decided to walk around the grounds of the Grand Wailea on September 6, 1997, as follows: That morning, Cheryl had become claustrophobic during a scuba diving lesson and could not continue the lesson. Gary, however, had completed the lesson and had gone scuba diving.

CHERYL: ... When he had finished with that, he came up to the room because I was very upset that I had, that, that was the one thing I wanted to do up there[,] and I was very angry with myself for being claustrophobic and[,] ah, I had gone back up to the room[,] and he came back up to the room and got me and said let's go for a walk and you know, you can, you'll feel better after we go for a walk and talk.

....

WALBY: Now, did, so you said you guys took the pathway along the beach to go over to the Grand Wailea?

CHERYL: Uh huh.

WALBY: And, ah, did you have any specific plans over there? Is there, um, were you...

CHERYL: We wanted to, we, Gary said there was some beautiful statuary over there and they had a, a pond that, with some tropical fish in, that he wanted me to see and we just wanted to see what one of the other hotels looked like.

....

WALBY: ... And did you do any shopping or anything on the property before this happened?

CHERYL: No. We just walked onto the property.

WALBY: Okay. Didn't go anywhere and have anything to drink or eat?

CHERYL: No.

(Some ellipsis points added and some in original). Cheryl also added that, just prior to taking off her slipper, the last step she took "was squishy" but that she didn't feel any actual moisture on or in her slipper. Rather, it was "a spongy muddy feeling." At the end of the interview, Walby again asked what "the purpose [was] for your going to the Grand Wailea," to which Cheryl replied: "To look at the statuary and the pond and just the different, different location, I wanted to see what another hotel would look like."

In his interview with Walby, Gary explained that he had first visited the Grand Wailea two days before the accident because he "had been told there was some beautiful artwork, some bronze sculpturing, to view on the property." He "wandered around the grass area where these sculptures were and took pictures of them at that time with [his] camera and returned back and told [his] wife[,] `We have to go, we have to go, you have to see this.'" In response to Walby's question, "[S]o was that the sole purpose of your returning to the Grand Wailea on the date of the accident," Gary responded, "Yes it was."

On July 22, 1998, the Crichfields filed a complaint against Grand Wailea and the Doe defendants, in which they asserted claims grounded in negligence, breach of warranty, and strict products liability. On August 27, 1998, Grand Wailea filed its answer, in which, inter alia, it asserted HRUS as an affirmative defense. The Crichfields filed an amended complaint on September 23, 1998, which Grand Wailea answered on October 15, 1998, again asserting HRUS as an affirmative defense. Grand Wailea filed a motion for summary judgment on all of the Crichfields's claims on June 18, 1999. In the motion, Grand Wailea argued that Cheryl's negligence claim—and, a fortiori, Gary's derivative...