Doe v. Grosvenor Properties (Hawaii) Ltd.

• Decision Date: 27 March 1992
• Docket Number: No. 15156,15156
• Citation: 829 P.2d 512,73 Haw. 158
• Parties: Jane DOE, Plaintiff-Appellant, v. GROSVENOR PROPERTIES (HAWAII) LTD.; Grosvenor International (Hawaii) Ltd.; Freeman Guards Inc., a California Corporation; Westinghouse Electric Corporation, a Pennsylvania Corporation, Defendants-Appellees, and 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

Page 512

829 P.2d 512

73 Haw. 158

Jane DOE, Plaintiff-Appellant, v. GROSVENOR PROPERTIES (HAWAII) LTD.; Grosvenor International (Hawaii) Ltd.; Freeman Guards Inc., a California Corporation; Westinghouse Electric Corporation, a Pennsylvania Corporation, Defendants-Appellees and 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. 15156.

Supreme Court of Hawai'i.

March 27, 1992.

Syllabus by the Court

1. A ruling on a motion for summary judgment is reviewed de novo, and the question before the reviewing court is whether there are any genuine issues of material fact raised by the record or whether the movant was entitled to judgment as a matter of law.

2. A negligence action lies only where there is a duty owed by the defendant to the plaintiff.

3. Whether defendant owes a duty to the plaintiff is a question of law.

4. Whether a duty exists is a question of fairness that involves a weighing of the nature of the risk, the magnitude of the burden of guarding against the risk, and the public interest in the proposed solution.

5. There is generally no duty to protect others from the criminal actions of third persons.

6. Although employee of tenant of an office building could be classified as a business invitee under Restatement (Second) of Torts § 314A(3), building manager, as agent of the building landlord, had no duty under that section to protect plaintiff where nothing in defendant's situation showed that it would be fair to impose a duty to protect, or that defendant should have foreseen the attack.

7. Landlord's control over the land, or the absence thereof, does not itself create a duty to protect.

8. Even though landlord-tenant relationship between plaintiff and defendant who operated office building differed from the traditional landlord-tenant relationship in that the common areas of building were open to the public at large, nothing in defendant's situation showed that it would be fair to impose a duty to protect, or that defendant should have foreseen the attack.

9. One claiming damages for injuries occasioned by alleged negligence on the part of the defendant has the burden of proving a prima facie case of negligence by a preponderance of the evidence.

Plaintiff failed to show that defendant had undertaken any duty which might have fallen under § 324A of the Restatement (Second) of Torts.

Henry N. Kitamura, Shim, Tam, Kirimitsu, Kitamura & Chang (Paula A. Nakayama with him, on the briefs), Honolulu, for plaintiff-appellant.

William S. Miller, Goodsill, Anderson, Quinn & Stifel (Lennes N. Omuro, with him on the brief) Honolulu, for defendants-appellees Grosvenor Properties (Hawaii), Ltd. and Grosvenor Intern. (Hawaii), Ltd.

William W. Ramos-Saunders, Bickerton, Ramos-Saunders & Dang (James J. Bickerton, with him on the brief) Honolulu, for defendant-appellee Westinghouse Elec. Corp.

LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI and MOON, JJ.

LUM, Chief Justice.

Plaintiff-appellant Jane Doe (plaintiff) appeals the order of the Circuit Court of the First Circuit, granting the motions for summary judgment of defendants-appellees Grosvenor Properties, Ltd. and Grosvenor International, Ltd. (Grosvenor), as well as Westinghouse Electric Corporation (Westinghouse), on plaintiff's claim that defendants negligently failed to protect her from being assaulted in the elevator of the Dillingham Transportation Building. Grosvenor and Westinghouse argued in the court below that they had no duty to protect plaintiff from the criminal acts of plaintiff's assailant. We agree, and affirm.

I.

Plaintiff was a legal secretary working in Dillingham Transportation Building. During her lunch hour on September 9, 1987, she picked up some laundry for her employer and entered the makai elevator from the lobby of the Dillingham Transportation Building. An unknown male also entered the elevator at the same time. The elevator reportedly stalled between the first and second floors, whereupon the man pressed a button on the elevator control panel, took out a knife, and robbed and sexually assaulted plaintiff. The man then pressed a button on the control panel and after the elevator opened on the second floor, he exited, escaping down a stairwell.

The Dillingham Transportation Building is an office building open to the public. The building and elevators are managed by Grosvenor Properties, Ltd., which is wholly owned by Grosvenor International, Ltd. Prior to the assault on appellant, Grosvenor had received no complaints concerning the security of the building elevators, and had no reports of any violent crimes on the premises or of suspicious individuals in the common areas of the building.

At the time of the assault, Westinghouse Electric Corporation was under contract with Grosvenor to maintain and repair the building elevators. Two days before the assault, at Grosvenor's request, Westinghouse inspected the subject elevator for any problems that might cause the elevator to stop between floors and reported that the car and controller were operating normally. Westinghouse also spent another hour examining the alarm bell and corrected a problem caused by a loose wire. On the day of the assault, the elevator was being operated pursuant to a valid permit issued by the Bureau of Boilers and Elevators, State of Hawaii. The stop button and alarm in the elevator were not connected, and were not required to be connected under the applicable rules and regulations. One month after the incident, Westinghouse connected the elevator alarm bell and stop button.

II.

A ruling on a motion for summary judgment is reviewed de novo, and the question before the reviewing court is whether there are any genuine issues of material fact raised by the record or whether the movant was entitled to judgment as a matter of law. First Hawaiian Bank v. Weeks, 70 Haw. 392, 772 P.2d 1187 (1989); Namauu v. City & County, 62 Haw. 358, 614 P.2d 943 (1980).

"It is fundamental that a negligence action lies only where there is a duty owed by the defendant to the plaintiff." Bidar v. Amfac, Inc., 66 Haw. 547, 551, 669 P.2d 154, 158 (1983). Whether there is a relationship between the parties such that the community will impose a legal obligation on the defendant for the benefit of the plaintiff, is entirely a question of law. Id. at 552, 669 P.2d at 158.

A.

In King v. Ilikai Properties, Inc., 2 Haw.App. 359, 632 P.2d 657 (1981), the Court of Appeals noted that whether a duty exists is a question of fairness that involves a weighing of the nature of the risk, the magnitude of the burden of guarding against the risk, and the public interest in the proposed solution. Id. at 363, 632 P.2d 657; see also Johnston v. KFC National Management Co., 71 Haw. 229, 232, 788 P.2d 159, 161 (1990). Under ordinary circumstances, criminal acts are not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk. W. Page Keeton, et. al., Prosser and Keeton on Torts, § 33 (5th ed. 1984). Thus, courts have generally declined to impose a duty to protect another against the criminal acts of a third party. Seibel v. City & County, 61 Haw. 253, 257, 602 P.2d 532, 536 (1979); see Restatement (Second) of Torts § 315 at 122 (1965); see generally Note, Knodle v. Waikiki Gateway Hotel, Inc.: Imposing a Duty to Protect Against Third Party Criminal Conduct on the Premises, 11 U.Haw.L.Rev. 231 (1989) (discussing the duty of a possessor of land to protect others from third party criminal acts under the decisions of the Hawaii Supreme Court).

In Pickard v. City & County, 51 Haw. 134, 452 P.2d 445 (1969) we held that an "occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual." Id. at 135, 452 P.2d at 446. Although the Pickard rule of reasonable care regardless of status distinctions continues to define a landowner's duty of care in this jurisdiction, status distinctions remain important in the decision to create exceptions to the general rule that it is unreasonable to impose a duty to anticipate and control the actions of third persons. Imposing a Duty to Protect, supra at 237. Exceptions to the general rule that there is no duty to protect may arise when justified by the existence of some special relationship between the parties. Restatement (Second) of Torts, § 315 (1965); see, e.g., Cuba v. Fernandez, 71 Haw. 627, 631-32, 801 P.2d 1208 (1990). Section 314A of the Restatement sets forth a non-exclusive list of special relationships upon which a court may find a duty to protect. Restatement (Second) of Torts, § 314A cmt. b (1965). The section provides:

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Plaintiff claims that a duty to protect should have been imposed on Grosvenor under § 314A(3). Restatement (Second) § 314A(3) describes the relationship existing between a possessor of land and his invitee. See Restatement (Second) of Torts § 314A cmt. c (1965) (rules stated in this Section apply only where the relation exists between the parties and a possessor of land is not...