DiCenzo v. Izawa

• Decision Date: 18 July 1986
• Docket Number: No. 10719,10719
• Citation: 723 P.2d 171,68 Haw. 528
• Parties: Irma DiCENZO, Plaintiff-Appellant, Cross-Appellee, and Jesse Kahikina, Plaintiff, v. Helen M. IZAWA, Defendant-Appellee, Cross-Appellant, and Eugene Sheiniuk, Defendant.
• Court: Hawaii Supreme Court

Page 171

723 P.2d 171

68 Haw. 528

Irma DiCENZO, Plaintiff-Appellant, Cross-Appellee and Jesse Kahikina, Plaintiff, v. Helen M. IZAWA, Defendant-Appellee, Cross-Appellant and Eugene Sheiniuk, Defendant.

No. 10719.

Supreme Court of Hawai'i.

July 18, 1986.

Syllabus by the Court

1. The provisions pertaining to discovery in the Hawaii Rules of Civil Procedure were adopted to put an end to the "sporting theory of justice," by which the result depends on the fortuitous availability of evidence or the skill and strategy of counsel. Thus, they reflect a basic philosophy that prior to trial every party to a civil action is entitled to the disclosure of all relevant information in the possession of any person, unless the information is privileged.

2. The attorney-client privilege is bottomed on assumptions that lawyers can act effectively only if they are fully advised of the facts by the parties they represent and disclosure will be promoted if the client knows that what he tells his lawyer cannot be extorted from the lawyer. But since it works to suppress otherwise relevant evidence and forestall a search for truth, the limitations which restrict the scope of its operation must be assiduously heeded. Put another way, the privilege must be strictly limited to the purpose for which it exists.

3. The attorney-client privilege may be invoked to prevent the disclosure of confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. It may apply to communications between the client or his representative and his lawyer or his lawyer's representative and to those between the client and a representative of the client.

4. A proper application of the attorney-client privilege requires preliminary judicial inquiry into the existence and validity of the privilege, and the burden of establishing this rests with the claimant. An ipse dixit claim of privilege does not suffice. Otherwise, meaningful inquiry into the existence of an attorney-client privilege, which turns largely on the client's subjective belief that it exists, and the character of the communication, which must be intended as confidential, would be foreclosed.

5. It is not wholly correct to say that a communication from insured to insurer is the same as a communication of client to attorney. The insurance carrier is more than a mere agent transmitting the policyholder's statement to the attorney hired to defend the insured. Unlike an attorney, the insurer may use the policyholder's statement for purposes inimical to his interests. The possible use of the statement for a purpose adverse to the interest of the insured is inconsistent with the claim of privilege on his behalf.

6. Rule 49(a) of the Hawaii Rules of Civil Procedure governs when a jury is asked to return a special verdict in the form of a special written finding upon each issue of fact. The rule mandates that the trial court provide such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.

7. The trial court's instructions should explain the law of the case, point out the essentials to be proved on one side or the other, and bring into view the relation of the particular evidence adduced to the particular issues involved.

8. Courts applying the "sudden emergency" rule or doctrine define "emergency" as "a sudden or unexpected event or combination of circumstances which calls for immediate action." The rationale for the rule is that the actor is left no time for adequate thought, or is reasonably so disturbed or excited that he cannot weigh alternative courses of action, and must make a speedy decision based very largely upon impulse or guess. When these conditions prevail, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect.

9. The appearance of a sudden emergency does not invoke a different standard of care than that applied in any other negligence case. The conduct required is still that of a reasonable person under the circumstances, as they would appear to one who was using proper care, and the emergency is to be considered only as one of the circumstances. In other words, the doctrine of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence.

10. An emergency of his own making does not shield the negligent person from liability; and when one engages in an activity in which emergencies are likely to arise, he must be prepared to meet them.

11. The existence of a sudden or unexpected combination of circumstances calling for immediate action is related to the environmental details incident to the circumstances surrounding the defendant's conduct. Any jury instruction on a purported emergency, therefore, should be included in the explanatory instruction given in connection with the clause of the basic negligence instruction advising the jury that the conduct in question must be considered in the light of all the surrounding circumstances.

12. Repetitious instructions should be avoided; trial courts should strive to reduce the number of instructions and give a fair and complete single instruction on each issue.

13. Instructions expounding the sudden emergency doctrine have a tendency to elevate its principles above what is required to be proven in a negligence action. For even the wording of a well-drawn instruction intimates that ordinary rules of negligence do not apply to the circumstances constituting the claimed sudden emergency.

14. The orderly disposal of negligence cases would be best served by applying uniform principles of negligence under all circumstances.

15. It would be a rare situation indeed where it would be error to fail to give a sudden emergency instruction because the usual instruction on negligence sufficiently covers what a reasonably prudent person would do under all circumstances, including those of sudden emergency.

16. Inasmuch as the risk of prejudicial error in instructing the jury on the sudden emergency doctrine exceeds by far the possibility of error in not doing so, the wiser course of action would be to withhold sudden emergency instructions. It would be foolhardy to jeopardize the outcome of trial by giving an instruction adding little to the basic jury charge that must be given in any negligence action.

17. Circumstances purportedly constituting an emergency are properly matters for argument by counsel.

Michael D. Wilson (Peter C. Wolff, Jr., with him on briefs; Hart, Wolff & Wilson, of counsel), Honolulu, for plaintiff-appellant, cross-appellee.

Kathy K. Higham (David A. Nakashima, with her on briefs; Rush, Moore, Craven, Kim & Stricklin, of counsel), Honolulu, for defendant-appellee, cross-appellant.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

The plaintiff in an action for damages stemming from an automobile accident appeals from a judgment of the Circuit Court of the First Circuit in favor of the defendant. We vacate the judgment and remand the case for a new trial because a review of the record discloses the commission of reversible error by the trial court. In our opinion the court erred in ruling that a statement given by the defendant to a representative of her insurer was not subject to discovery and in instructing the jury on an "emergency situation" purportedly confronted by the defendant. ¹

I.

The accident leading to the suit occurred on April 12, 1982 on Kalanianaole Highway when a car being driven toward Waimanalo by the plaintiff, Irma DiCenzo, collided with one being driven in the opposite direction by the defendant, Helen Izawa. The collision took place after Ms. Izawa's car jumped the four-lane divided highway's grass medial strip and barged into the Waimanalo-bound traffic lanes. Other than the foregoing, the dispositive facts were disputed at trial.

Ms. Izawa attributed the erratic movement of her vehicle to the sudden, unexpected appearance of another car in the lane of traffic in which she was travelling. A blue station wagon, she claimed, suddenly swerved in and out of her lane. When the station wagon cut in front of her again, she "just had to turn left to avoid [a] collision." She recalled that when she "applied the brakes [she] lossed [sic] control because [her car] started to skid." Her further recollection, though hazy, was that she saw a car, presumably the plaintiff's, approaching from the opposite direction as she braked, but "at that point, [her] car started to skid across the medial strip." She professed scant memory of what happened thereafter because "it was happening so quickly" and she "panicked" when "the car started to skid." Evidence given by others established that the car went over the medial strip, struck Mrs. DiCenzo's blue Datsun, crossed two traffic lanes, crashed into a metal guardrail, and turned over. Mrs. DiCenzo suffered extensive injuries as a consequence of the two-car collision in which her two-door sedan was hit on the driver's side.

Mrs. DiCenzo testified that she had driven her daughters to school in Kailua and was on the way home to Waimanalo with her mother when the mishap occurred. She said she first saw the white car that subsequently struck her car on the other side of the highway as she started to drive up a slight incline in the road near the Maunawili Elementary School. She noticed the vehicle as she "look[ed] at a flow of traffic coming down that incline" and saw it "swerving in its own lane." "Then," she said, "the white vehicle accelerated across the medial strip and struck us." Mrs. DiCenzo was positive "that there wasn't a car that cut off [the white] car" as claimed by Ms. Izawa. And "[w]hen [Mrs....