Gump v. Walmart Stores, Inc., 21670.

Decision Date17 November 1999
Docket NumberNo. 21670.,21670.
Citation93 Haw. 428,5 P.3d 418
PartiesLinda GUMP, Plaintiff-Appellee, v. WALMART STORES, INC., a Delaware corporation, Defendant-Appellant, and KBRL, Inc., a Hawaii corporation, John Does 1-10, Jane Does 1-10, Doe Corporations, Partnerships, Governmental Units or Other Entities 1-20, Defendants.
CourtHawaii Court of Appeals

Wayne S. Sakamoto (Gallagher & Sakamoto) on the opening brief and Howard F. McPheeters and David Y. Suzuki (Burke, Sakai, McPheeters, Iwanaga & Estes) on the reply brief, Honolulu, for defendant-appellant.

Robert D.S. Kim (Kim & Powell), on the briefs, for plaintiff-appellee.


Opinion of the Court by LIM, J.

Defendant-Appellant Walmart Stores Inc. (Wal-Mart1) appeals the April 23, 1998 judgment of the Circuit Court of the Third Circuit adjudging it liable to Plaintiff-Appellee Linda Gump (Gump) for $25,175.00 in damages, $8,585.00 in attorneys' fees and $1,413.22 in costs, and to the state judiciary for $4,213.04 in jury costs; Wal-Mart also appeals appurtenant pretrial and post-trial orders.

We affirm.


On February 15, 1996, Gump was leaving Wal-Mart's Kailua-Kona store when she slipped on a french fry, fell, and was injured. Gump suffered a bone fracture along the side of her right foot.

McDonald's, a franchise restaurant owned and operated by co-defendant KBRL, Inc. (McDonald's), is authorized by Wal-Mart to sell food and beverages on leased premises within the store. The McDonald's restaurant is located near the entrance and exit doors of the store, directly on "action alley." Action alley, the main thoroughfare through Wal-Mart, has the highest amount of customer traffic in the store.

Gump's accident happened on action alley, near the McDonald's restaurant.

Although there is no Wal-Mart policy prohibiting McDonald's patrons from taking food and beverage from the restaurant into the store, McDonald's placed a sign inside its restaurant, which read, "Patrons, please do not leave these premises with food."

On April 19, 1996, Gump filed a Complaint against Wal-Mart and McDonald's alleging negligence (Count I) and reckless conduct (Count II), and seeking damages, including punitive damages.

Wal-Mart and McDonald's answered, denying the material allegations and asserting various defenses, including comparative negligence.

The co-defendants did not exchange cross-claims.

On August 5, 1997, the court issued an Order Setting Trial Date and Pretrial Deadlines ("Pretrial Order"). The Pretrial Order provided, in part:

Attendance at settlement conferences shall be as required by Rule 12.1, Rules of the Circuit Courts. The Court notes particularly Rule 12.1(a)(4) mandating the parties to have attempted to negotiate settlement through an exchange of written bona fide and reasonable offers of settlement prior to the conference. Attendance and authority are extremely important, therefore the parties or attorneys who have complete settlement authority (not authority to settle up to a certain amount) shall be present. Failure to comply with this shall result in the Court imposing appropriate sanctions. The court suffers great inconvenience when clients are not readily available.
The sanctions for non-compliance with this order include those imposed by Rule 12.1(a)(6), and shall, in the appropriate case, include default.

Wal-Mart and McDonald's each filed a motion for summary judgment, on October 2, 1997 and October 6, 1997, respectively. The trial court heard both motions on November 6, 1997. The court denied both motions for summary judgment as to the negligence claim, but granted the motions as to the claim for punitive damages based on reckless conduct.

On November 10, 1997, a settlement conference was held, at which counsel for Wal-Mart advised the court that he had "zero settlement authority." The court sanctioned Wal-Mart $175, which represented one hour of attorneys' fees for opposing counsel, for settlement conference violation under Rule 12.1(a)(6) of the Rules of the Circuit Courts of the State of Hawai`i (HCCR), finding that:

Counsel for [Wal-Mart] had no authority to settle this case and no other person appeared along with counsel for [Wal-Mart] with any settlement authority. This settlement conference was wholly non-productive.

On November 19, 1997, Wal-Mart filed two motions in limine: (1) Motion to Exclude Evidence of or Argument by Counsel of Security Videotape Cameras, and (2) Motion to Exclude Evidence of [four] Prior Accidents (which happened in or near action alley).

On November 21, 1997, Gump notified the court, through her Motion in Limine Regarding Dismissal of KBRL, Inc., that she and McDonald's had reached a settlement, and requested that McDonald's be dismissed from the case.

On November 25, 1997, the court heard argument on Gump's Motion in Limine Regarding Dismissal of KBRL, Inc. and took the matter under advisement. At the same hearing, the court heard argument on Wal-Mart's two pending motions in limine.

Gump and Wal-Mart agreed to exclude the security camera videotape. The court denied Wal-Mart's motion to exclude evidence of the previous accidents.

Trial commenced on November 25, 1997, and in the early morning session of the next day, the court granted Gump's motion to dismiss McDonald's and limited the introduction of evidence relating to McDonald's. Later that same morning, the presentation of evidence was concluded and the parties made their closing arguments. That afternoon, the jury returned its special verdict form, answering as follows:

Question No. 1: Was [Wal-Mart] negligent?
Question No. 2: Was the negligence of [Wal-Mart] a legal cause of (substantial factor in causing) the injury to [Gump]?
Question No. 3: Was [Gump] negligent?
Question No. 4: Was [Gump's] negligence a legal cause of (substantial factor in causing) the injury to [Gump]?
Question No. 5: For each party for whom you found to be a legal cause of [Gump's] injuries, state the percentage fault attributable to each of those parties below:

[Gump]: 5% [Wal-Mart]: 95%

Question No. 6: What are [Gump's] total special and general damages:

Special Damages $ 6,500.00 General Damages $20,000.00

On January 20, 1998, Gump filed a motion, pursuant to Rule 26 of the Hawai`i Arbitration Rules (HAR), requesting sanctions against Wal-Mart for failing to prevail in the trial de novo. On February 18, 1998, after hearing argument on the motion, the court sanctioned Wal-Mart as follows:

Attorney's fees and costs to be awarded against [Wal-Mart] in favor of [Gump].... [Reimbursement to the Judiciary] for the jury trial in the amount of $4,213.04, broken down as follows: $3,792.30 for the jury selection process as well as the jury fees. The hotel bills for the jurors and lodging, food and lodging, $420.74, totaling $4,213.04.

In response to Wal-Mart's objection that "[n]o detailed list of charges has been provided and there is no indication by Plaintiff as to whether this 100 hours of [requested] time were reasonable," the court requested a breakdown of fees from Gump's attorney. The court set a 48-hour deadline for submission of an affidavit itemizing the attorneys' fees.

On February 20, 1998, within the 48-hour period set by the court, Gump filed its attorney's Declaration detailing 135.7 hours of work on the case, totaling $20,355.00 in legal services rendered to Gump. Thereupon, the court set reasonable attorneys' fees and costs at $8,585.00 and $1,413.22, respectively.

On April 29, 1998, Wal-Mart filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for New Trial. On June 1, 1998, the court heard argument and denied the motion.

On June 26, 1998, Wal-Mart filed a timely notice of appeal.


Wal-Mart presents the following questions on appeal:

A. The trial court erred in denying Wal-Mart's Motion for Summary Judgment as to Gump's claim for negligence.
B. The trial court erred in dismissing McDonald's from the action, excluding evidence of McDonald's' negligence at trial, and failing to include McDonald's in the special verdict form for apportionment of liability.
C. The trial court erred in denying Wal-Mart's Motion In Limine to Exclude Evidence of Prior Accidents.
D. The trial court erred in awarding Gump sanctions against Wal-Mart pursuant to HAR Rule 26, for failing to prevail in the trial de novo.
E. The trial court erred in sanctioning Wal-Mart for settlement conference violations.
F. The trial court erred in denying Wal-Mart's Motion for Judgment Notwithstanding the Verdict or in the Alternative, Motion for New Trial, as the jury did not have any evidence from which it could find Wal-Mart negligent.
A. Denial of Motion for Summary Judgment.

Summary judgment is reviewed de novo under the same standard applied by the trial court. McLellan v. Atchison Ins. Agency, Inc., 81 Hawai`i 62, 65, 912 P.2d 559, 562 (App.1996).

Summary judgment is proper where, viewing all evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and that the moving party clearly demonstrates that he or she is entitled to judgment as a matter of law.

Id. at 66, 912 P.2d at 563. "A material fact is one which, if proved, `would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'" Wilder v. Tanouye, 7 Haw.App. 247, 254, 753 P.2d 816, 821 (1988) (quoting Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982)).

Only when the moving party satisfies its initial burden of production does the burden shift to the non-moving party to respond... and demonstrate specific facts as opposed to general allegations that present a genuine issue worthy of trial.

GECC Financial Corp. v. Jaffarian, 79 Hawai`i 516, 521, 904 P.2d 530, 535 (App.1995).

B. Gump's ...

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