Geremia v. State, 5941

• Decision Date: 22 December 1977
• Docket Number: No. 5941,5941
• Citation: 573 P.2d 107,58 Haw. 502
• Parties: Francis John GEREMIA, Constance Louise Geremia, and Hale Kronenberg, as Administrator of the Estate of Samuel John Geremia, Deceased, Plaintiffs-Appellants, v. The STATE of Hawaii, Defendant-Appellee, and The Lihue Plantation Co., Inc., Defendant.
• Court: Hawaii Supreme Court

Page 107

573 P.2d 107

58 Haw. 502

Francis John GEREMIA, Constance Louise Geremia, and Hale Kronenberg, as Administrator of the Estate of Samuel John Geremia, Deceased Plaintiffs-Appellants, v. The STATE of Hawaii, Defendant-Appellee and The Lihue Plantation Co., Inc., Defendant.

No. 5941.

Supreme Court of Hawai'i.

Dec. 22, 1977.

Syllabus by the Court

1. A party is liable in tort when he voluntarily undertakes a course of affirmative conduct intended to induce another to engage in an action, and creates a false appearance of safety upon which the other relies to his or her detriment.

2. The status of occupier of land is not a prerequisite to the existence of an independent duty, on the part of one who voluntarily undertakes a course of affirmative conduct intended to induce another to engage in certain actions upon land occupied by a third person and upon which a known dangerous condition exists, to exercise ordinary care to avoid creating a false impression of safety.

3. The existence of a special rule of liability for occupiers of land has no bearing upon the duty of a non-occupier to take cognizance of dangerous conditions existing on the land of another in discharging a duty of care he owes to a third person.

4. Findings of fact made in a non-jury trial will not be set aside unless clearly erroneous.

5. Additional findings of fact concerning the elements of an alternative theory not considered by the trial court are not necessary when the record is sufficiently clear to allow the court on appeal to determine whether there was sufficient evidence before the trial court from which it could have made the findings essential to the establishment of the plaintiff's claim.

6. Affirmance of a decision on the merits upon an alternative theory not considered by the trial court is proper only when the parties had a full and fair opportunity to develop facts relevant to the decision, and when this opportunity has not been available the proper resolution of the appeal is to remand.

7. Dismissal of an action on the merits may be affirmed upon an alternative theory which is grounded in fundamental legal principles and does not represent a departure from precedent, where the plaintiff's own theory of the case made relevant the evidence which is found lacking in the record.

H. William Burgess, Honolulu, for plaintiffs-appellants.

Nelson S. W. Chang, Deputy Atty. Gen., Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

In this action the parents and administrator of the estate of Samuel John Geremia sought damages for his death. In a bench trial, upon the State's motion for dismissal, the circuit court entered judgment for the State and against the Plaintiffs at the close of the Plaintiffs' case, and the Plaintiffs appealed. We affirm.

The Waipahee, or Slippery, Slide is a portion of a watercourse on the Island of Kauai. The stream cascades down a sloping rock face into a natural pool. Sliding down the rock face into the pool is a sport which has been much enjoyed by residents and visitors for many years. The Slide is located in mountainous terrain, on land which is privately owned, and is reached by a trail of approximately one-third mile originating at a parking area beside a canefield road. The trail, parking area and road are in the same private ownership as the Slide.

On April 5, 1971, Geremia and two companions drowned while swimming at the Slide. Michael and Tom Seage were the two survivors of a party of five boys, all strangers to Kauai, who were there on vacation from work or school in Honolulu and visited the Slide together as the result of reading about it in a brochure given to them at their hotel. Michael testified that Geremia was a strong swimmer, that when they arrived at the Slide the current in the stream was moderate but that it increased suddenly and significantly while they were there, and that he had last seen Geremia going to the aid of another boy who was floundering in the pool at the base of the Slide. He also testified that it had rained a great deal during their stay on Kauai but that it was not raining when the boys arrived at the Slide.

The Plaintiffs introduced evidence that heavy rains had fallen on North Kauai on April 3rd, 4th and 5th which caused some local flooding and called as a witness a State forester who testified that the State was aware that the Slide area was prone to sudden flooding when heavy rains fell in the watershed area upstream from the Slide. This witness testified that he became aware of the flood danger after reading newspaper accounts of two drownings or near drownings at the Slide in 1967 and 1968. He said that in response to these incidents he met with the Kauai Fire Chief and they decided to create a warning sign, what the sign should say, and where it should be located. A sign was erected on the trail to the Slide which read "Waipahee Slide, Danger, Do Not Swim When Rain Is Falling in Upper Stream Areas, Stream May Flood Suddenly ". Both Michael Seage and his brother Tom testified that on the tragic day all five boys had been racing down the trail and had taken a short-cut before reaching the sign. Both of the survivors testified they did not remember seeing the sign and remained firm in their non-recollection despite extensive cross-examination.

There was evidence that the State had, with the permission of the landowner, improved a parking area at the intersection of the access road and the trail, erected a direction sign at the intersection of the access road and the main highway, erected a sign warning visitors to lock their cars at the parking lot, improved and maintained the trail itself, and included the Slide on several official maps and State sponsored visitor information brochures. The State did nothing to alter the natural condition of the stream, the pool, or the Slide itself and had no right to enter upon and occupy or use the land other than an apparently revocable oral license to maintain the trail and the State's installations. The landowner was originally a defendant in this action but was removed by stipulation prior to trial, leaving the State as the only defendant.

The trial court concluded that the State had no control over the Slide pool and that the State's only responsibility, if any, was the maintenance of the trail. The questions presented by this appeal are whether the State owed a duty of care to Geremia and, if so, the nature of the duty.

On the Plaintiffs' theory of this case, the State is liable as an occupier of the land upon which the Waipahee Slide is located. The Plaintiffs seek to cast the State as an occupier by reason of its general land-use powers ¹ and the control it exercised in improving the access to the Slide. Thus analyzed, the liability of the State would be the special liability of a possessor (occupier) of land to his invitees, as stated in Restatement of Torts 2d § 343 (1965). ² The Plaintiffs contend that the State, as an occupier of the land, had a duty of care towards Geremia without regard to whether there was a duty and consequent liability under general tort principles. The State argues that it did not have sufficient indicia of control to be classified as an occupier of the land. ³ We agree that it would be unrealistic to regard the State as a possessor or occupier of the land for the purposes of the rule of law upon which the Plaintiffs rely.

But we cannot dispose of this case by merely denying the relevancy of the special rule of liability which the Plaintiffs urge us to apply. The Plaintiffs also assert, as grounds of liability on the part of the State, that invitations were issued by the State to the public to use the Slide for recreation, that these invitations were issued by the State with knowledge of dangers to which users of the Slide were exposed, that inadequate warnings of and precautions against these dangers were given and taken by the State, that Geremia was induced by such invitations to go to the Slide and that he met his death as the result of his consequent exposure to the known dangers. If a finding of these facts would have supported a conclusion of liability under general principles of tort law, did the Plaintiffs' failure to meet the tests of special liability of an occupier of land deprive them of the right to take their case to the jury?

The special rules as to the liability of an occupier of land to trespassers, licensees and invitees are limitations, not extensions, of conventional tort liability. Harper &amp James, Torts, §§ 27.1, 27.2 (1956). We have held that in assessing the tort liability of an occupier of land we will no longer allow the common law distinction between invitees and licensees to be determinative of the scope of the occupier's liability. Pickard v. City & County, 51 Haw. 134, 452 P.2d 445 (1969), and Gibo v. City & County, 51 Haw. 299, 459 P.2d 198 (1969).

In thus abrogating the distinction between invitees and licensees we have continued to recognize that the control exercised by an occupier over the condition of his land and his opportunity to take precautions against and to warn of known dangers creates a duty of care toward his invitees and licensees. But the existence of this special rule of liability, whatever may be the extensions and limitations of conventional tort liability in the case of an occupier, has no bearing upon the liability of a non-occupier. Circumstances may exist in which a non-occupier must take cognizance of dangerous conditions existing on the land of another in discharging a duty of care which he owes to a third person. The existence of such a dangerous condition, although not under the control of the actor, may be the fact which renders negligent an otherwise blameless act. Thus one who has no duty to correct or warn of a dangerous condition on another's premises may not act in disregard of its existence, in fulfilling a duty of...