Kobashigawa v. Silva
| Decision Date | 26 April 2013 |
| Docket Number | No. SCWC–30639.,SCWC–30639. |
| Citation | 300 P.3d 579,129 Hawai'i 313 |
| Parties | Lisa KOBASHIGAWA, as Personal Representative of the Estate of William S. Kobashigawa, Deceased, and Earl Kobashigawa and Gail Pei, as Co–Trustees of the Margaret M. Kobashigawa Revocable Living Trust and as Assignees of Margaret M. Kobashigawa, Deceased, Respondents/Plaintiffs–Appellants, v. Joseph M.K. SILVA, Defendant, and City and County of Honolulu, Petitioner/Defendant–Appellee. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
Traci Rei Morita, for petitioner.
Arthur Y. Park, Patricia Kim Park, and John C. McLaren for respondents.
When a trial judge makes an unequivocal ruling that evidence is admissible at trial, the party that had sought to exclude such evidence by means of a motion in limine need not renew its objection when that evidence is introduced at trial in order to preserve the objection for appellate review.
In this case, Respondents/Plaintiffs–Appellants Lisa Kobashigawa and Margaret M. Kobashigawa (collectively, the Kobashigawas) brought a negligence action against Defendant Joseph M.K. Silva and Petitioner/Defendant–Appellee City and County of Honolulu (the City) for damages arising from a tragic incident in which William S. Kobashigawa was struck and killed while crossing a mid-block crosswalk shortly before sunrise during his morning walk. Although the Kobashigawas settled their claims against Silva, they proceeded to trial against the City; the jury found the City not liable. On appeal, the Intermediate Court of Appeals (ICA) vacated the jury verdict and remanded for a new trial, concluding that the circuit court plainly erred in giving a cautionary jury instruction that permitted the jury to consider evidence of the Kobashigawas' motive in filing suit and in allowing the City to comment on such motive in its closing argument.
In its application to this court, the City focuses on the cautionary jury instruction, as the ICA did, and argues to this court that the ICA gravely erred in concluding that (1) the instruction was an erroneous statement of the law and (2) the circuit court's issuance of the instruction satisfied the test for plain error review. In their response to the application, the Kobashigawas maintain that the instruction was an erroneous statement of law because a plaintiff's motive in bringing an otherwise valid lawsuit is generally irrelevant to resolution of the merits of the lawsuit. The Kobashigawas also argue that the ICA's application of plain error review did not constitute grave error, although they reiterate the argument made to the ICA that they were not required to make additional objections subsequent to the hearing on their pretrial motions in limine in order to preserve their claimed errors for appeal.
Although we agree with the ICA's ultimate conclusion that the circuit court's cautionary jury instruction regarding motive was a prejudicially erroneous statement of the law, we disagree with its conclusions that the Kobashigawas failed to preserve their objections to the admission of irrelevant evidence concerning their motive in filing suit and that such failure required it to resort to plain error review. Accordingly, as modified by this opinion, we affirm the ICA's judgment vacating the circuit court's judgment and remanding the case for a new trial.
A. Factual Background and Pre–Trial Proceedings
On December 22, 2005, shortly before sunrise at approximately 5:45 a.m., William was in the act of crossing a marked mid-block pedestrian crosswalk on Kamehameha Highway in Kâne‘ohe when he was struck and killed by a truck driven by Silva. Kobashigawa v. Silva, 126 Hawai‘i 62, 64, 266 P.3d 470, 472 (App.2011).
On April 21, 2006, Lisa, William's daughter,2 and Margaret, William's wife, filed a complaint against Silva in the Circuit Court of the First Circuit 3 alleging negligence and negligent infliction of emotional distress and seeking special and general damages. On March 5, 2007, the Kobashigawas filed a First Amended Complaint adding the City as a defendant. The Kobashigawas' negligence claim against the City “included defective design and/or maintenance of Kamehameha Highway, including the pedestrian crosswalk and the surrounding trees, street signs and/or street lights at or near the crosswalk.” Kobashigawa, 126 Hawai‘i at 64, 266 P.3d at 472. On March 22, 2007, Silva then filed a cross-claim against the City, alleging that it was solely responsible for William's death. On March 18, 2008, the Kobashigawas filed the operative Second Amended Complaint against Silva and the City, realleging negligence and negligent infliction of emotional distress and adding a claim of loss of consortium and services as to Margaret only.
Gina Bailey was the only eyewitness to the accident, and she was deposed by the City on June 14, 2009. In addition to her recollection of what happened at the scene of the accident, she testified in pertinent part as follows:
Q After the date of the accident, did you talk to anybody from the pedestrian's family?
A Yes. That day, the police called me. He said that the family would like to speak to me, and they gave me the daughter's phone number. And I called her, thinking maybe she wanted to know about how her father died, if he said any last words, if he was suffering, anything like that, and I told her who I was, and the first thing out of her mouth was, “Would you be willing to testify if we sued?”
Q Any other thing in that conversation?
A No. I pretty much hung up, after that. I was so mad. She saw her father's death with money signs in her eyes.[ 4]
Q And after that—do you recall the daughter's name?
A I don't.
Q After that conversation, did you have any other conversations with this daughter or any member of his family?
A I did not.
Q And you knew this was the daughter because she identified herself when you called?
Bailey also stated that she remembered making the call one day after the accident. Because Bailey no longer lived in Hawai‘i, had moved to California, and was in the United States Navy and expected to be deployed overseas shortly thereafter, she would be unable to appear at trial; subsequently, the City designated Bailey's entire deposition transcript for use at trial, and Silva designated portions of the transcript.
On September 21, 2009, the Kobashigawas filed their Motion in Limine No. 1 seeking an order barring evidence and argument “by efendants speculating on [the Kobashigawas'] motives for pursuing the instant action, including, but not limited to, that [the Kobashigawas] have pursued claims against efendants for pecuniary reasons, i.e., [in] order to recover monetary damages against wealthy or ‘deep pocket’ defendants in the case.” The Kobashigawas also filed their Motion in Limine No. 4 objecting to admission of certain parts of Bailey's deposition testimony. At a hearing on the motions on October 5, 2009, the circuit court denied Motion in Limine No. 1 and indicated its intent to give a cautionary instruction to the jury that such evidence could only be considered in determining bias, interest, or motive on the part of the Kobashigawas in filing suit:
THE COURT: [...] With that, the [c]ourt will confirm its ruling, will deny the motiondoes intend to issue a cautionary, which I will provide the parties with copies of what the [c]ourt has sort of drafted and then we can sort of visit this sufficiency or propriety of the way those are drafted at a later point. But basically, the [c]ourt does intend to sort of limit its consideration, any bias, interest or motive, if any is shown.
All right. So with that, that dispenses of plaintiff's number one.
With respect to Motion in Limine No. 4, the court granted the motion in part as to certain of Bailey's statements that called for speculation and denied the remainder of the motion.
Jury trial began on October 8, 2009. Meanwhile, the Kobashigawas reached a settlement with Silva; on October 9, 2009, the circuit court granted his petition for determination of good faith settlement filed on September 22, 2009 and dismissed all claims against him with prejudice. Thus, trial proceeded with the Kobashigawas as plaintiffs and the City as the sole remaining defendant. At trial, after Bailey's deposition testimony was read into evidence during the Kobashigawas' case-in-chief, the court read its cautionary instruction to the jury:
You have heard testimony from one witness about certain statements attributed to a Kobashigawa family member following Mr. Kobashigawa's death. Your consideration of this evidence is limited to determining the existence or absence of any possible bias, interest or motive, if any, by plaintiffs in bringing this lawsuit and not for any other purpose. Specifically, you may not consider this evidence of negative character or negative conduct by plaintiffs or for any other purpose.
Later in the Kobashigawas' case-in-chief, Gail Pei, William's daughter and Lisa's sister, testified and disputed Bailey's allegations as to what was said during the phone call:
Q All right. Now, there also has been a deposition read from a Gina Bailey—
A Uh-huh.
Q —who said she called the house the day after she was given a number by the police to call the house to speak to a daughter.
A Uh-huh.
Q Did you speak to her?
A The day after? No, no, not at all.
Q Do you know if any of your sisters spoke to her?
A No one even mentioned her name, no.
Q Okay. The day after your father's death, that would have been December 23, 2005. Who was at the house?
A All of us were at my parents' house, but we were just so busy because the telephone was ringing off the hook. It was from the media and some—I don't know—some insurance person tried calling my mother. And it was crazy.
Q Okay. And so—but in all of those phone...
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