Leary v. Poole

• Decision Date: 25 June 1985
• Docket Number: No. 9779,9779
• Citation: 5 Haw.App. 596,705 P.2d 62
• Parties: Rosemary T. LEARY, as Special Administrator of the Estate of Joseph P. Torrez, Deceased, Sally Torrez and John R. Torrez, survivors of Joseph P. Torrez, Plaintiffs-Appellants, v. Matthew John POOLE, Defendant-Appellee, and City and County of Honolulu; State of Hawaii; Frank's Towing Service, Inc.; John Does 1-5; Mary Does 1-5; Doe Partnerships 1-5; and Doe Corporations 1-5, Defendants. CITY AND COUNTY OF HONOLULU and State of Hawaii, Defendants and Third-Party Plaintiffs, v. Gayle E. PARKS, Third-Party Defendant.
• Court: Hawaii Court of Appeals

Page 62

705 P.2d 62

5 Haw.App. 596

Rosemary T. LEARY, as Special Administrator of the Estate of

Joseph P. Torrez, Deceased, Sally Torrez and John

R. Torrez, survivors of Joseph P.

Torrez, Plaintiffs-Appellants, v. Matthew John POOLE, Defendant-Appellee, and City and County

of Honolulu; State of Hawaii; Frank's Towing Service,

Inc.; John Does 1-5; Mary Does 1-5; Doe Partnerships 1-5;

and Doe Corporations 1-5, Defendants.

CITY AND COUNTY OF HONOLULU and State of Hawaii, Defendants and Third-Party Plaintiffs, v. Gayle E. PARKS, Third-Party Defendant.

No. 9779.

Intermediate Court of Appeals of Hawai'i.

June 25, 1985.

Reconsideration Denied July 11, 1985.

Syllabus by the Court

1. Summary judgment is proper only where the record indicates there is no genuine issue as to any material fact and the

movant clearly demonstrates he should prevail as a matter of law.

2. On a motion for summary judgment the evidence in the record and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion.

3. In reviewing a summary judgment, an appellate court will not examine evidentiary documents not specifically called to the attention of the trial court.

4. Questions of negligence and proximate cause are ordinarily not susceptible to summary adjudication, except where the facts are undisputed or are susceptible of only one reasonable interpretation.

5. Where a reasonable inference from the evidence in the record is that the initial rate of speed of defendant's automobile was unreasonable based on the highway conditions, defendant is not entitled to a summary judgment and the question of his negligence is for jury determination.

6. An actor's negligent conduct is a legal cause of harm to another if (1) his conduct is a substantial factor in bringing about the harm, and (2) there is no rule of law relieving him from liability because of the manner in which his negligence resulted in the harm.

7. Where a tortfeasor claims that a rule of law regarding superseding cause relieves him of liability, foreseeability will determine liability: whether the intervening actor's negligence was foreseeable by him.

8. Where intervening acts or omissions of multiple parties and the factual issues of negligence, proximate cause, and foreseeability are involved, the resolution of the issues by a jury is preferable to summary adjudication.

Dennis K. Ferm, Honolulu (Ian L. Mattoch with him on the brief; Law Offices of Ian L. Mattoch, Honolulu, of counsel), for plaintiffs-appellants.

Dale W. Lee, Honolulu (Bert T. Kobayashi, Jr. and Randall Y. Yamamoto with him on the brief; Kobayashi, Watanabe, Sugita & Kawashima, Honolulu, of counsel), for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

In this appeal plaintiffs Rosemary T. Leary, as Special Administrator of the Estate of Joseph P. Torrez (Torrez), Deceased, and Sally and John R. Torrez, parents of Torrez (collectively Plaintiffs), question the appropriateness of the summary judgment entered in favor of defendant Matthew John Poole (Poole) in a wrongful death action based on negligence. The dispositive issue is whether, on the evidence presented by the motion, negligence and proximate cause remain factual questions for jury determination. We answer yes and reverse.

On the night of October 4, 1979, while Poole was driving a Cadillac coupe from Mililani to Pearl City on Kamehameha Highway, the vehicle collided into and damaged a portion of the guardrail along the highway near Kipapa Gulch. The Cadillac went over the guardrail and came to rest on the opposite side of the guardrail from the highway. Police officers arrived to investigate. Poole was taken to the Pearlridge Hospital for treatment of his injuries while the Cadillac was left at the scene of the accident.

On the next day, employees of Frank's Towing Service, Inc. (Frank's Towing) removed the Cadillac from the scene of the accident. To get the Cadillac on the highway Frank's Towing removed two sections of the guardrail and two supporting posts immediately adjacent to the vehicle. Frank's Towing did not replace the sections of the guardrail or the supporting posts.

About eight weeks later on November 30, 1979, Torrez was fatally injured while a passenger in a Honolulu bound automobile driven by Gayle E. Parks (Parks) on Kamehameha Highway. Parks lost control of the vehicle, which went onto the shoulder of the highway and struck the exposed end of the guardrail, left exposed and unreplaced since Poole's accident.

On November 30, 1981, Plaintiffs filed a wrongful death action against Poole, Frank's Towing, the City and County of Honolulu (City), and the State of Hawaii (State). The complaint alleged that Poole's October 4 collision and Frank's Towing's removal of a portion of the guardrail created a dangerous condition which proximately caused Torrez's fatal injuries. It also alleged that the City's and State's failure to repair or replace the guardrail and to warn of the dangerous condition proximately resulted in Torrez's death. The defendants cross-claimed against each other and the City and State filed third-party complaints against Parks.

On September 23, 1983, the trial court entered a summary judgment "on the Complaint ... in favor of ... Poole and against all Co-Defendants upon their Cross-Claims[.]" ¹ Record, Vol. 3 at 21-22. On December 2, 1983, the trial court entered its order pursuant to Rule 54(b), Hawaii Rules of Civil Procedure (HRCP) (1981), determining "that there is no just reason for delay in entering said Judgment." Id. at 102. Thereafter, Plaintiffs timely appealed. ²

I.

Under Rule 56(c), HRCP (1981), summary judgment is proper only "where, from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law." Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982). See also City & County v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979); Carrington v. Sears, Roebuck & Co., 5 Haw.App. 194, 683 P.2d 1220 (1984). Also, the evidence in the record and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. Fernandes v. Tenbruggencate, 65 Haw. 226, 649 P.2d 1144 (1982); Silver v. George, 64 Haw. 503, 644 P.2d 955 (1982); Kang v. Charles Pankow Associates, 5 Haw.App. 1, 675 P.2d 803 (1984). The same standard is applied on appeal. Id.

In reviewing a summary judgment, an appellate court's consideration of the record is limited to those materials that were considered by the trial court in ruling on the motion. Thus, the court "will not examine evidentiary documents ... not specifically called to the attention of the trial court[.]" Munoz v. Yuen, 66 Haw. 603, 606, 670 P.2d 825, 827 (1983).

Moreover, we are mindful of the precept that "[q]uestions of negligence and proximate cause are ordinarily not susceptible to summary adjudication," except "where the facts are undisputed or are susceptible of only one reasonable interpretation[.]" De Los Santos v. State, 65 Haw. 608, 610, 655 P.2d 869, 871 (1982). See also Bidar v. Amfac, Inc., 66 Haw. 547, 669 P.2d 154 (1983); Lagua v. State, 65 Haw. 211, 649 P.2d 1135 (1982); McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898 (1983).

Applying the foregoing stringent standards, we hold that summary judgment was improper in this case.

II.

In his quest for a summary judgment, Poole relies on alternative theories. First, he claims that he was not negligent in causing the October 4 accident. Viewed in the light most favorable to Plaintiffs, the evidence in the record and the inferences therefrom indicate otherwise.

Plaintiffs appended to their memorandum in opposition excerpts from Poole's deposition testimony. The excerpts show that Poole was driving his employer's Cadillac, which he had driven down Kipapa Gulch approximately a dozen times before. Realizing that his speed was increasing due to the slope, he began to brake the Cadillac. Due to the wet highway, however, the vehicle began to skid and wobble. Poole put the vehicle into a lower gear, and when this proved ineffective decided to "skid [along] the guardrail to slow the car down." Record, Vol. 2 at 112.

We cannot conclude that the only reasonable interpretation of the foregoing evidence is that Poole's actions were reasonable under the circumstances and he was not negligent. Viewed in the light most favorable to Plaintiffs, a reasonable inference from the evidence is that Poole's initial rate of speed was unreasonable based on the highway conditions at the time of the accident.

Clearly, the question of Poole's negligence was for jury determination.

III.

Poole's alternate contention is that, even if his negligence caused the October 4 accident, the intervening negligent acts and omissions of Frank's Towing, the City, the State, and Parks were causes which superseded his prior wrong as the proximate causes of Torrez's death. Plaintiffs assert, on the other hand, that the intervening acts and omissions constituted contributing proximate causes with that of Poole, rather than superseding causes.

We conclude that based on the evidence in the record proximate cause is a factual question for jury determination.

A.

The court in Mitchell v. Branch & Hardy, 45 Haw. 128, 132, 363 P.2d 969, 973 (1961), stated:

The best definition and the most workable test of proximate or legal cause so far suggested seems to be this: "The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his...