Gibo v. City and County of Honolulu, 4701

• Citation: 459 P.2d 198,51 Haw. 299
• Decision Date: 26 September 1969
• Docket Number: No. 4701,4701
• Parties: Richard S. GIBO v. CITY AND COUNTY OF HONOLULU.
• Court: Supreme Court of Hawai'i

Page 198

459 P.2d 198

51 Haw. 299

Richard S. GIBO v. CITY AND COUNTY OF HONOLULU.

No. 4701.

Supreme Court of Hawai'i.

Sept. 26, 1969.

Syllabus by the Court

1. An occupier of land owes a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises.

2. Thus, plaintiff's legal status, whether an invitee or a licensee, was not an issue and the trial judge's instruction to the jury that plaintiff was an invitee, if error, was harmless and nonprejudicial under the facts of this case.

3. The general rule is that a defendant is liable in damages to a plaintiff for all injuries proximately caused by his negligence.

4. Where a defendant's negligence causes injuries to a plaintiff and because of the weakened or impaired physical condition plaintiff suffers subsequent injuries, which are not brought about by the negligence of plaintiff, or any efficient intervening cause, defendant's negligence is deemed to be the proximate cause of both the original and subsequent injuries.

5. However, if the subsequent fall is the result of plaintiff's negligence, defendant would not be liable (a) under the theory of avoidable consequence, that is, plaintiff by the use of reasonable care could have avoided the subsequent fall and the resulting injuries and damages; (b) or under the theory that the negligence of defendant was not the proximate cause of the second fall and the consequent injuries and damages because the negligence of plaintiff was the intervening efficient cause.

6. It is error for a trial judge to refuse to give instructions requested which correctly state the law on issues presented unless the points are adequately covered by the instructions given.

7. The City's requested instruction No. 62 correctly stated the law on the issue of liability as to the second fall under the record of the case; and as the issue was not adequately covered by the instructions given, the trial judge erred in his refusal to give the instruction requested.

Wilfred K. Iwai, Deputy Corp. Counsel, Honolulu Hale (Stanley Ling, Corp. Counsel, and W. Bruce Honda, Deputy Corp. Counsel, Honolulu, with him on the briefs), for defendant-appellant.

Daral G. Conklin and Harry T. Tanaka, Honolulu (Blissard & Conklin, Yamaguchi & Tanaka, Honolulu, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., MARUMOTO, ARE and KOBAYSHI, JJ., and MASATO DOI, Circuit Judge, in place of LEVINSON, J., disqualified.

ABE, Justice.

On May 23, 1964, plaintiff accompanied by his wife and Mrs. Nakasone arrived at Maluhia Hospital to identify the body of his decased son. The plaintiff used the ambulance-garage area approach to the morgue instead of the main entrance to the hospital. While walking over the second ambulance stall he slipped, fell and suffered a broken kneecap.

The evidence is uncontradicted that employees of the hospital had knowledge that the public used the garage area as a walkway to an entrance of the hospital. The employees also testified that oil pans had been used to 'catch the oil drippings from the engine part of the ambulance.'

All of the witnesses who were at the scene testified that the oil or oil slick was on the concrete floor of the second stall where plaintiff fell.

Plaintiff underwent surgery and while convalescing at his home he re-injured the same knee when he stumbled over a mango root while manually watering his lawn on crutches.

After a jury trial, the jury returned a verdict for plaintiff for the sum of $78,574.30 ($75,000 general damages and $3,574.30 special damages). Judgment was entered accordingly and defendant appealed.

I.

The first issue is whether the trial judge erred in charging the jury that plaintiff was an invitee of the City and County of Honolulu when he entered the premises of Maluhia Hospital and that the City owed the plaintiff a duty to use ordinary care for his safety.

On the basis of common law distinctions, the City contends that the status of plaintiff, whether an invitee or a licensee, at the time he entered the premises was for the jury's determination and, therefore, the trial judge committed prejudicial error. We hold that error, if any, was non-prejudicial under the facts of this case.

In Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969), decided subsequent to the trial of this case, we refused to recognize the common law distinctions between licensees and invitees and the different degree of care owed them by an occupier of land and said at page 135, 452 P.2d at p. 446:

(A)n 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.

Thus, under Pickard the factual issue is not whether an individual is an invitee or a licensee, but whether he is a person anticipated upon the premises. In this case, the City had knowledge of the use by the public of the ambulance garage area as a walkway, and under the rule of Pickard, the City owed the plaintiff, whether he was an invitee or a licensee, the same duty-a duty to use reasonable or ordinary care for his safety.

Therefore, the trial judge's charge to the jury that the City owed the plaintiff 'the legal duty to exercise ordinary care under the circumstances to keep such premises in a condition reasonably safe' for his use correctly stated the City's duty; and though it was coupled with an instruction that the plaintiff was an invitee as a matter of law, we hold that there was no prejudicial error.

II.

The other issue is whether the trial judge adequately instructed the jury on the question of liability as to the injuries and damages that resulted from the second fall.

The general rule is that a defendant is liable in damages to a plaintiff for all injuries proximately caused by his negligence. Dalton v. Gesser, 72 N.J.Super. 100, 178 A.2d 64 (1962); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla.App.1960); Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 103 A.2d 681 (1954). Then, where a defendant's negligence causes injuries to a plaintiff and because of the weakened or impaired physical condition plaintiff suffers subsequent injuries, which are not brought about by the negligence of plaintiff, or any efficient intervening cause, defendant's negligence is deemed to be the proximate cause of both the original and subsequent injuries. Hemmings v. Weinstein, 151 Conn. 502, 199 A.2d 687 (1964); Pope v. Pinkerton-Hays Lumber Co., supra; Lester v. Hennessey 20 Ill.App.2d 479, 156 N.E.2d 247 (1959); Squires v. Reynolds, 125 Conn. 366, 5 A.2d 877 (1939); Stahl v. So. Michigan Ry., 211 Mich. 350, 178 N.W. 710 (1920); Hartnett v. Tripp, 231 Mass. 382, 121 N.E. 17 (1918).

However, where plaintiff's subsequent injuries are brought about by plaintiff's negligence, defendant is only liable for the original injuries, as proximate cause of defendant's negligence. This result may be reached under the theory of avoidable consequences, that is, plaintiff by the use of reasonable care could have avoided the subsequent fall and the injuries and damages that resulted. Franco v. Fujimoto, 47 Haw. 408, 427, 390 P.2d 740, 751 (1964); Thayer v. Smith, 380 P.2d 852 (Wyo.1963); Anchorage Independent School Dist. v. Stephens, 370 P.2d 531 (Alaska 1962); Southport Transit Co. v. Avondale Marine Ways, 234 F.2d 947 (5th Cir. 1956). Or under the doctrine that the negligence of defendant was not the proximate cause of the second fall and the consequent injuries and damages because the negligence of plaintiff was an efficient intervening cause. Mitchell v. Branch, 45 Haw. 128, 363 P.2d 969 (1961); Wolff v. Light, 156 N.W.2d 175 (N.D.1968); Mitchell v. Four States Machinery Co., 74 Ill.App.2d 59, 220 N.E.2d 109 (1966); Sayre v. Andrews, 259 Iowa 930, 146 N.W.2d 336 (1966); Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla.App.1960).

The City argues that the plaintiff's negligence was the cause of his second fall and that the trial judge committed prejudicial error when he refused to give its requested instructions on the issue of avoidable consequences.

Plaintiff concedes that the doctrine of avoidable consequences is applicable if the plaintiff's negligence caused the second fall but contends that the City was not entitled to any instruction on this issue because there was no evidence to intimate or suggest that plaintiff's negligence was the cause of the second...