King v. Ilikai Properties, Inc.
| Decision Date | 24 August 1981 |
| Docket Number | I-,D,J,No. 7166,7166 |
| Parties | Jean I. KING and Miriam R. M. Kelley, Plaintiffs-Appellants, v. ILIKAI PROPERTIES, INC., a Delaware Corporation, Western International Hotels Company, a Delaware Corporation, United Airlines, Inc., a Delaware Corporation, Association of Owners of the Ilikai Apartment Building, and Melvin Shigeta, Defendants-Appellees, and John Doe Corporationohn Doe Partnershipohn Doe Joint Ventures,efendants. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Where disposition of a case involving multiple claims or multiple parties is embodied in several orders, no one of which embraces the entire controversy but which collectively do so, the date of entry of the last of the series of orders is the date of entry of final judgment for the purpose of determining the timeliness of an appeal. Rules 54(b) and 73(a), Hawaii Rules of Civil Procedure.
2. A summary judgment is appropriate only when no genuine issue of material fact is presented, and the case can be decided solely as a matter of law.
3. Generally, a hotel has no duty to protect persons who are not guests of the hotel from criminal acts of third parties.
4. In the absence of some special relationship or circumstance, a landlord has no duty to protect tenants from a criminal attack by third parties.
5. When an appellant does not set forth in his brief the manner in which the alleged errors were raised at the trial court, in violation of Supreme Court Rule 3(b)(5), this court may decline to consider such matters.
Wayne D. Parsons, Honolulu, for plaintiffs-appellees.
Roy F. Hughes, Libkuman, Ventura, Moon & Ayabe, Honolulu, for defendant-appellee Ilikai.
Roy Vitousek, III, Honolulu (Stephen B. MacDonald, Cades, Schutte, Fleming & Wright, Honolulu, on brief), for defendant-appellee Ass'n of Owners.
Carlton B. Reid, Honolulu (Robert P. Richards, Davis, Playdon & Gerson, Honolulu, on brief), for defendant-appellee Shigeta.
Before HAYASHI, C. J., PADGETT, J., and WAKATSUKI, Circuit Judge, in place of BURNS, J., disqualified.
This appeal is taken from the order granting summary judgment for each of the defendants-appellees.
There are two issues raised on this appeal: (1) whether this court has jurisdiction over this appeal involving multiple parties where the notice of appeal was filed on the same day that summary judgment was entered for the last of the three defendants-appellees; and (2) whether the court below erred in granting summary judgment for the defendants-appellees. We hold that this court has jurisdiction to hear the appeal and affirm the orders granting summary judgment for the defendants-appellees.
On January 11, 1977, at approximately 11:30 p. m., plaintiffs-appellants, Jean I. King (King) and Miriam R.M. Kelley (Kelley), were assaulted and robbed by three unidentified persons in Room 821 of the Ilikai Tower Building. Room 821 was owned by Melvin Shigeta (Shigeta) who had leased the room to King. At the time of this incident, Kelley was spending the night with King. The assailants gained access to Room 821 when King opened the door to the room believing that she was about to receive a message from the hotel desk.
At the time of the assault, the Tower Building of the Ilikai Hotel was operated as a hotel by Ilikai Properties, Inc. (Ilikai) and it also contained private condominium units. The Association of Owners of the Ilikai Apartment Building (Association) was comprised of owners of condominium units in the Tower Building, and the unit owned by Shigeta was included in the Association.
On March 23, 1977, plaintiffs-appellants filed suit against Defendants-Appellees Ilikai, Shigeta, and various John Does, alleging that the injuries they sustained in the assault were proximately caused by the failure of Ilikai, Shigeta, and various John Does to make the premises safe. On June 13, 1977, Shigeta cross-claimed against Ilikai. Subsequently, on July 21, 1978, the Association was identified by the plaintiffs-appellants as one of the John Doe corporations named in the complaint.
On May 15, 1978, Ilikai filed a motion for summary judgment against plaintiffs-appellants and Shigeta. On August 10, 1978, the court entered an order granting summary judgment in favor of Ilikai and against plaintiffs-appellants and Shigeta. On July 17, 1978, Shigeta filed motion for summary judgment against plaintiffs-appellants and on August 16, 1978, the court entered an order granting summary judgment for Shigeta. On August 22, 1978, Association filed a motion for summary judgment against the plaintiffs-appellants, and on September 8, 1978, the court entered an order granting summary judgment for Association and against plaintiffs-appellants. On September 8, 1978, plaintiffs-appellants filed a notice of appeal from the orders granting summary judgment for Ilikai, Shigeta, and Association. A separate judgment in favor of the Association embodying the same ruling set out in the September 8, 1978, order granting summary judgment was filed in the clerk's office on September 27, 1978. No other judgment in this form was filed for any of the other defendants-appellees.
The defendants-appellees argue that this court lacks jurisdiction to hear this appeal because plaintiffs-appellants' appeal was prematurely filed. They contend that the September 8, 1978, order for summary judgment filed in favor of the Association does not operate as a final, appealable order because a separate entry of judgment was not filed until September 27, 1978.
We have recently had several opportunities to address the question of whether an appeal has been timely filed. See Sturkie v. Han, 2 Haw.App. ---, 627 P.2d 296 (1981); Employees' Retirement System v. Big Island Realty, Inc., 2 Haw.App. ---, 627 P.2d 304 (1981); Price v. Christman, 2 Haw.App. ---, 629 P.2d 633 (1981); Jacob Young Soo Park v. Romeo A. Esperanza, 2 Haw.App. ---, 629 P.2d 644 (1981).
We are at a loss to understand the need for a separate entry of judgment on behalf of the Association only, when the order granting summary judgment filed on September 8, 1978 comported with the standards required for the entry of such a judgment. It was a written order signed by the judge granting the order and duly filed in the clerk's office on the same day. Marn v. Reynolds, 44 Haw. 655, 361 P.2d 383 (1961). In all respects, it was and is a final, appealable order that also operated as final adjudication of all the claims of the parties. Rule 54(b), Hawaii Rules of Civil Procedure; Sturkie v. Han, supra; Jacob Young Soo Park v. Romeo A. Esperanza, supra. See also City and County v. Midkiff, 57 Haw. 273, 554 P.2d 233 (1976), wherein the supreme court held that:
When ... the trial court's disposition of a case involving multiple claims or multiple parties is embodied in several orders, no one of which embraces the entire controversy but which collectively do so, it is a necessary inference from Rule 54(b) that the order collectively constitute a final judgment and that entry of the last of the series of orders gives finality and appealability to all.
On review of a motion granting summary judgment, viewing the evidence and logical inferences derived therefrom in the light most favorable to the plaintiffs-appellants, we must be satisfied that no genuine issues of material fact exist so that the moving party is entitled to judgment as a matter of law. Lau v. Bautista, 61 Haw. 144, 598 P.2d 161 (1979); Hugh Menefee v. Hale Kekoa Joint Ventures, 2 Haw.App. ---, 631 P.2d 597 (1981).
We have carefully reviewed the record and conclude that there is no genuine issue of material fact; and, therefore, the only issue is whether the defendants-appellees are entitled to judgment as a matter of law.
Ilikai argues that it had no duty to protect the plaintiffs-appellants from acts committed by third parties, citing provisions of Restatement (Second) of Torts § 315 (1965) There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
b) a special relation exists between the actor and the other which gives to the other a right to protection.
"Special...
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