O'Grady v. State

• Citation: 398 P.3d 625
• Decision Date: 07 June 2017
• Docket Number: SCAP-14-0001363
• Parties: Michael Patrick O'GRADY, individually; and Leiloni O'Grady, individually, Plaintiffs-Appellants, v. STATE of Hawai‘i and State of Hawai‘i Department of Transportation, Defendants-Appellees, and The County of Hawai‘i; Hawaiian Electric Company; Hawaiian Electric Light Company; Hawaiian Electric Industries, Inc.; Hulu Lolo, Inc.; and Does 1—100, inclusive, Defendants.
• Court: Hawaii Supreme Court

398 P.3d 625

Michael Patrick O'GRADY, individually; and Leiloni O'Grady, individually, Plaintiffs-Appellants,

v. STATE of Hawai‘i and State of Hawai‘i Department of Transportation, Defendants-Appellees,andThe County of Hawai‘i; Hawaiian Electric Company; Hawaiian Electric Light Company; Hawaiian Electric Industries, Inc.; Hulu Lolo, Inc.; and Does 1—100, inclusive, Defendants.

SCAP-14-0001363

Supreme Court of Hawai‘i.

JUNE 7, 2017

As Amended June 22, 2017

Ronald G. Self and Rebecca A. Copeland for appellants.

Caron M. Inagaki, Randolph R. Slaton, Henry S. Kim, and Robin M. Kishi, Honolulu, for appellees State of Hawai‘i and State of Hawai‘i Department of Transportation.

RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND CIRCUIT COURT JUDGE CRABTREE, IN PLACE OF NAKAYAMA, J., RECUSED

OPINION OF THE COURT BY POLLACK, J.

This case concerns a negligence action against the State of Hawai‘i and the State of Hawai‘i Department of Transportation (collectively, the "State") involving a rockfall and related car accident on a state highway. The Circuit Court of the Third Circuit (the "circuit court") determined that, although the State breached a duty of care owed to the plaintiffs, the State was not liable because the plaintiffs failed to prove legal causation. The issues presented on appeal are whether the circuit court erred in holding that the State's breach of its duty of care was not a legal cause of the plaintiffs' injuries and whether the discretionary function exception applies in this case. We conclude that the circuit court misapprehended the relevant standard for evaluating legal causation; accordingly, we remand the case to the circuit court for application of the correct standard. We also address the applicability of the discretionary function exception.

I. BACKGROUND

Michael and Leiloni O'Grady were driving on Route 11 in the County of Hawai‘i on March 8, 2007, when a rockfall occurred. A boulder and other material fell onto the highway, and a portion of the rockfall struck the O'Gradys' vehicle, resulting in their injuries.

At the time of the accident, Route 11 was a public highway that the State was responsible for maintaining. Because of Route 11's location, it fell within the responsibility of the State's Hawai‘i District (the "Hawai‘i District").

The State's Rockfall Hazard Rating System project ("Rockfall Hazard Project" or "RHRS project") has included the Hawai‘i District since the project's expansion in 2004. The project rates rockfall hazards for danger: Class A sites were determined to be the most dangerous with high potential for rockfalls, Class B sites were less dangerous, and Class C sites raised virtually no concerns. The location of the rockfall in this case (the "accident site") was rated as a Class A site on December 22, 2004, and it remained a Class A site at the time of the March 8, 2007 accident.

Rockfall hazards that were classified as Class A sites were also assessed using a more detailed rating system. Under this rating system, the accident site in this case received the highest possible score for the differential erosion feature and the differential erosion rates, which concern the geological character of the slope where the slope consists of two different materials resulting in differential erosion. The accident site also received the highest possible score for the block size volume, which concerns the potential mass of the material that was anticipated to fall in the event of a rockfall.

Prior to March 8, 2007, the State did not have a routine ongoing coordinated system in place to protect against rockfall hazards adjacent to state highways at the time of the accident. Hawai‘i District maintenance employees were not trained to identify areas with significant rockfall hazards, and there was minimal integration between the Hawai‘i District engineer and the State's Rockfall Hazard Project results. From time to time, information from the State's Rockfall Hazard Project may have been shared with the Hawai‘i District; however, the Hawai‘i District engineer was not aware of the State's Rockfall Hazard Project.

On December 27, 2007, the O'Gradys filed their first amended complaint for damages in the circuit court. The O'Gradys sought general, special, and exemplary damages against the State under four theories of liability: negligence, dangerous condition of public property, vicarious liability, and loss of consortium.

A non-jury, bifurcated trial on liability was held by the circuit court in November and December of 2011. After finding that the State owed a duty of care to the O'Gradys and that it had breached this duty, the circuit court determined that the State was not liable to the O'Gradys based on its conclusion that the O'Gradys failed to prove legal causation. The court later issued "Amended Findings of Fact and Conclusions of Law" on May 17, 2012. The circuit court's findings of fact and conclusions of law found that the O'Gradys were injured as a result of the rockfall and that the State was responsible for the maintenance of the road where the accident occurred. The circuit court found that the accident site was initially rated as a Class A site on December 22, 2004, and that a Class A site is one that is determined to be the most dangerous with a high potential for rockfalls. The circuit court also found as follows:

On occasion, the following might have occurred: (a) the State employees may have noticed an area which experienced frequent rockfalls on the roadway or the shoulder, (b) the State employees may have informed the supervisor, (c) the supervisor may have informed the District Engineer, (d) the District Engineer may have asked that a geotechnical engineer come from Honolulu, (e) the geotechnical engineer may have come from Honolulu and undertaken a study, and (f) based upon the study, the State may have obtained the funding to address the rockfall hazard.

The circuit court determined that in order to reasonably address the danger of rockfalls adjacent to State highways, the Hawai‘i District should have

(a) had a system of routine, ongoing maintenance, (b) trained its maintenance personnel to recognize potential rockfall hazards, (c) had the ability to undertake rockfall prevention projects which reasonably fell within a roadway maintenance budget, and (d) consulted regularly with a geotechnical engineer who had information regarding the findings of the RHRS project in order to integrate information held between them.

The court found that the Hawai‘i District did not fulfill the above-listed responsibilities.

The circuit court made the following additional findings of fact, which are challenged on appeal by the O'Gradys:

6. The purpose of the RHRS was to identify the rockfall hazards adjacent to State highways in order to implement remedial work. The intent was to use the information garnered from the RHRS project to choose large-scale projects which would be funded by the Legislature of the State of Hawai‘i (the "Legislature") and with Federal funding.....

14. However, Plaintiffs have failed to prove that from December 22, 2004 until March 8, 2007, it was reasonably foreseeable that a rockfall at the Accident Site was so imminent that it was necessary for the State to immediately address the rockfall potential.

15. Plaintiffs failed to present evidence from which it could be reasonably determined what the cost would have been for the work required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007.

16. According to Plaintiffs' expert, Dr. John Lockwood, the scale of the rockfall at the Accident Site on March 8, 2007, was approximately 70 cubic yards of material weighing between 150 to 175 tons. Although the size of the rockfall itself does not necessarily correlate to the scale of work which would have been required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007, a fair inference is that it would have been a large-scale project.

17. The cost of the work performed by Janod, Inc. in advising State personnel on how to bring down the rock at the Accident Site after the March 8, 2007 accident, $1,453.22, is not an accurate measure of the cost of the work which would have been required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007. The March 8, 2007 rockfall had significantly altered the Accident Site prior to the remedial work performed after the rockfall.

18. Plaintiffs failed to prove that from December 22, 2004 to March 8, 2007, the Hawai‘i District had employees and equipment to eliminate the rockfall hazard at the Accident Site.

19. Plaintiffs failed to prove that from December 22, 2004 to March 8, 2007, the Hawai‘i District had the funds available to engage a private entity to eliminate the rockfall hazard at the Accident Site.

20. Plaintiffs failed to prove that if the Hawai‘i District performed the actions suggested under Paragraph 13 above, this would have probably resulted in the Hawai‘i District taking action to eliminate the rockfall hazard at the Accident Site between December 22, 2004 to March 8, 2007.

21. Plaintiffs have failed to prove that wrongful conduct on the part of the State, if any, was a substantial factor in causing the March 8, 2007 accident and their consequent injuries.

The circuit court concluded that the State owed "a duty of care to travelers on a state highway to maintain the highway so it is reasonably safe for travel," which includes "the duty to exercise ordinary care to maintain the areas adjacent to the highway so that the highway is reasonably safe from rockfalls." The court further concluded that the State "breached this duty of care by not having a routine, coordinated system of rockfall mitigation at the operational level in the Hawai‘i District from December 22, 2004 to March 8, 2007." Nonetheless, the circuit court determined in conclusion of law ("COL") 4 that the State was not liable to the O'Gradys, based on its conclusion in COL 3 that the O'Gradys "failed...