Friedrich v. Department of Transp.

• Decision Date: 17 November 1978
• Docket Number: No. 5868,5868
• Citation: 586 P.2d 1037,60 Haw. 32
• Parties: William FRIEDRICH, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Hawaii, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1037

586 P.2d 1037

60 Haw. 32

William FRIEDRICH, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, State of Hawaii, Defendant-Appellee.

No. 5868.

Supreme Court of Hawai'i.

Nov. 17, 1978.

Rehearing Denied Jan. 5, 1979.

Syllabus by the Court

1. A conclusion by the trial court with respect to the nature and extent of the duty of care owed by an alleged tortfeasor is reviewable on appeal.

2. An occupier of land is not under a general duty to warn of the presence of known or obvious dangers which are not extreme and which a reasonable person exercising ordinary attention, perception and intelligence can be expected to avoid, absent circumstances which excuse oversight of danger or prevent its avoidance.

3. Where opinion evidence with respect to defendant's exercise of due care is admitted by the trial court, the weight to be accorded to it is to be determined by the court and it is not binding on the court.

Paul E. DiBianco, Honolulu (Hyman M. Greenstein, Honolulu, of counsel), for plaintiff-appellant.

Bert T. Kobayashi, Jr., Honolulu (Kobayashi, Koshiba & Watanabe, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., OGATA, MENOR and KIDWELL, JJ., and BURNS, Circuit Judge, in place of KOBAYASHI, J., disqualified.

KIDWELL, Justice.

Plaintiff-appellant seeks to recover from the State for severe personal injuries suffered when he fell into shallow water from the State-owned pier at Hanalei, Kauai. In a bench trial, the circuit court found that the State had not failed in any duty toward appellant and entered judgment for the State. We affirm.

According to State records in evidence, the original Hanalei pier was built in 1912, with concrete piles and timber framing and decking. It was reconstructed in 1921 to consist of a 12'6 X 540' approach from the beach to a 32'6 X 72'6 pier, and reinforced concrete pile caps, beams and deck replaced the original woodwork. Appellant's accident occurred in 1973, at which time the pier was in a deteriorated condition and had been closed to vehicular traffic since 1966 but was permitted to be used by pedestrians. The trial court's findings with respect to the nature of the surface of the pier inform us only that in certain areas it consisted of rough concrete, but photographs in evidence make it appear that a portion of the interior of the pier was surfaced by sand in the location of old railroad tracks. There were guardrails near steps leading to a boat landing, but along the remainder of the perimeter of the pier and its approach, and at the point of appellant's accident, there were no guardrails. There was curbing along most of the edge of the pier but not at the place of the accident. There is no evidence of any prior injury resulting from falling, diving or jumping from the pier.

In 1961 a film company damaged the pier and left debris on the ocean floor around the pier. At that time the State erected a sign to the effect: "Pier Dangerous Use At Your Own Risk." Such damage and debris was corrected during 1961. No such sign was in place on the date of the accident. There were no signs warning that the water beside the pier was shallow.

The director of the state department of transportation was empowered by HRS § 266-3(c)(1) to promulgate rules and regulations governing shore waters, shores and beaches, which could include safety measures, requirements and practices. No regulations had been issued prior to the accident.

Prior to the accident, appellant had swum from and around the pier on several occasions, had walked out on the pier about five times and had lived in the area of Hanalei Bay for about two and one-half years. Appellant was aware that water would occasionally puddle or collect on the pier. On the day of the accident, appellant was walking slowly around the pier, wearing sandals with rubber soles which had worn smooth. He saw a puddle of water about four to six feet across, so situated that there was an unobstructed dry path in excess of twenty feet wide to the left of the puddle and a strip of dry cement surface about two to three feet wide to the right of the puddle extending to the edge of the pier. Appellant acknowledged that prior to the accident he had avoided stepping into puddles while walking on the pier wearing slippers because it would have been slippery and dangerous. Appellant attempted to pass the puddle along the right side by means of the narrow dry strip along the pier edge, stepped into the side of the puddle, slipped and fell over the edge of the pier. He struck his head on the ocean floor, breaking his neck and resulting in permanent paralysis below the neck.

Appellant attempts to establish liability on the part of the State as the result of its negligence and also its failure to issue regulations. Witnesses testified that the pier was in an unsafe condition for recreational use by reason of the lack of warning signs and guardrails. The trial court found the facts essentially as summarized above, and concluded that the State had not breached any duty of maintenance or care and had used reasonable care to keep the pier reasonably safe for those persons reasonably anticipated to use the pier. The trial court also concluded that appellant had been negligent in choosing his path and that such negligence was equal to or in excess of any possible negligence on the part of the State.

Appellant's principal contention is that the evidentiary facts found by the court with respect to the condition of the pier do not support the trial court's conclusion that the State was not negligent and that appellant was negligent, and that the conclusion is erroneous as a matter of law. Appellant argues that the trial court failed to apply a correct definition of the State's duty of care toward him as a permitted user of the pier for recreational purposes. Although we are bound by the findings of fact, an erroneous conclusion of the trial court with respect to the duty owed by the State to appellant would be reviewable on appeal. Ajirogi v. State, 59 Haw. 515, 583 P.2d 980 (1978); Prosser, Torts at 289 (4th ed. 1971); Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L.Rev. 1.

In Pickard v. City and County, 51 Haw. 134, 452 P.2d 445 (1969), we rejected any distinction between licensees and invitees with respect to the duty owed by an occupier of land. The rule announced in that case, the applicability of which the State has not disputed, is 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." 51 Haw. at 135, 452 P.2d at 446.

The trial court characterized the risk of falling from the pier as an "obvious danger" which appellant realized or should have realized. There is no suggestion in the record that the hazardous conditions which appellant contends were negligently permitted to exist were more apparent to the State than to appellant. We find substantial evidence, including appellant's own testimony, to support the trial court's finding that the danger was in fact obvious to appellant, and that he was fully aware, when he chose his path, both of the conditions which created the risk of his accident and of the risk that he might slip and fall if he stepped into the puddle.

The duty of care which the State, as an occupier of the premises, owed to appellant traditionally does not require the elimination of known or obvious hazards which appellant would reasonably be expected to avoid. Restatement (Second) of Torts § 343A (1965). ¹ As we pointed out in Geremia v. State, 58 Haw. 502, 573 P.2d 107 (1977), if the State invited appellant to...