Levy v. Kimball
| Decision Date | 27 June 1968 |
| Docket Number | No. 4669,4669 |
| Citation | 50 Haw. 497,443 P.2d 142 |
| Parties | Esther LEVY, Plaintiff-Appellant, v. George P. KIMBALL, Trustee of the Estate of Clifford Kimball, Deceased dba the Halekulani Hotel; Edwin P. Murray, Frank E. Midkiff, Athereton Richards, Richard Lyman, Jr. and Herbert K. Keppeler, Trustees of the Estate of Bernice P. Bishop, Deceased; Halekulani, Inc., a Washington corporation; Sheraton Hawaii Corporation, a Delaware corporation; City and County of Honolulu and State of Hawaii. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. An owner of an easement has the right and the duty to keep it in repair.
2. An owner of an easement is liable in damages for injuries caused by failure to keep the easement in repair.
3. Control over the easement and not ownership of the property determines who is liable for injuries resulting from a failure to maintain and repair the easement.
4. A seawall which is used as a public thoroughfare may be implied in the definition of public highways in R.L.H. 1955 § 142-1.
5. A governmental agency which holds open a public thoroughfare for travel is under a duty to maintain it in a condition safe for travel.
6. The standard of care required of a governmental agency in maintaining a public thoroughfare is that standard of care which might be expected from an ordinarily prudent person under the circumstances. A greater amount of care is required where circumstances are shown that a seawall used as a public thoroughfare had heavy pedestrian traffic and that a person would sustain serious bodily injuries by falling onto rocks below the wall.
Stuart M. Cowan, Greenstein, Cowan & Carlsmith, Honolulu, for plaintiff-appellant.
Roy M. Miyamoto, Deputy Atty. Gen., Honolulu (Bert T. Kobayashi, Atty. Gen., with him on the briefs), for defendants-respondents.
Before RICHARDSON, C. J., MIZUHA, MARUMOTO and ABE, JJ., and DOI, Circuit Judge, for LEVINSON, J., disqualified.
On the afternoon of March 10, 1962, the plaintiff, Mrs. Esther Levy, age 65, a tourist from the mainland, was walking along the beach returning to her room at the Princess Kaiulani Hotel after attending a picnic at the Hawaiian Village Hotel. In front of the Bertha Young property, the only route along the beach open to her was to travel along the top surface of a seawall. While walking on the seawall, the plaintiff tripped and fell off about eight feet upon some rocks below the seawall injuring herself.
Plaintiff testified that her right heel had caught in a 'bad spot'. At the time, she was wearing 'wedgies' which has a nearly flat sole with a slight arch and a narrow heel about two inches high.
The seawall was designed two feet wide at the top surface, thus creating a narrow foot path. Defendant State had acquired an easement over this seawall for the express purpose of providing a path for public travel. Some sections of the surface were very badly deteriorated and the makai edges broken off so that there were only 13 inches in width of usable space. Other sections were described as either smooth or rough aggregate. There was a stone wall about two and a half feet high on the mauka side of the seawall. There was a wire mesh fence about three feet high along the top of the stone wall. There was nothing along the makai side of the seawall. There were no signs in the area giving notice of the condition of the seawall.
The plaintiff brought this action against the defendant State and others, including the Executors of the Estate of Bertha Young; the trustee of the Estate of Clifford Kimball, doing business as The Halekulani Hotel; the Sheraton Hawaii Corporation; the City and County of Honolulu; and certain unnamed persons pursuant to the State Tort Liability Act, R.L.H.1955, Supp.1965, Chapter 245A. All defendants, except the State, were dismissed prior to trial. The case was tried by the court without a jury pursuant to R.L.H.1955, Supp.1965, Chapter 245A-5. The trial court found that defendant was not negligent in maintaining the seawall. The plaintiff filed a motion to reconsider and alter the judgment. The trial court denied the motion. Plaintiff appeals from the judgment and order denying the motion.
It is a well established rule that an owner of and easement has the right and the duty to keep it in repair. Rose v. Peters, 59 Cal.App.2d 833, 139 P.2d 983; Nixon v. Welch, 238 Iowa 34, 24 N.W.2d 476, 169 A.L.R. 1141. The owner of the easement is liable in damages for injuries caused by failure to keep the easement in repair. Richardson v. Kier, 34 Cal. 63, 91 Am.Dec. 681; Wells v. North East Coal Co., 274 Ky. 268, 118 S.W.2d 555, 557; Swingler v. Robinson, Mo.App., 321 S.W.2d 29, 32.
The defendant contends that the non-possessory interest held by it is an easement for a right to use the top of the seawall as a footpath by the general public. Undedr these circumstances, it...
To continue reading
Request your trial
-
Gold Coast Neighborhood Ass'n v. State
...and, thus, it was not a type of property subject to surrender under the statute. The State distinguished this case from Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), in which this court held that a particular seawall constituted a "public highway" within the meaning of HRS § 261-1, bec......
-
Steigman v. Outrigger Enters., Inc.
...of the state was proper. Id. at 37, 586 P.2d at 1041.In Friedrich, the court distinguished that factual scenario from a previous case, Levy v. Kimball. Levy involved a state-controlled seawall that was partially degraded and was anywhere from thirteen inches to two feet wide. 50 Haw. 497, 4......
-
APARTMENT OWNERS v. WAILEA RESORT
...in the locations of the pipes connecting Easements 61, 62, and 63. Third, the Association contended that, under Levy v. Kimball, 50 Haw. 497, 443 P.2d 142 (1968), WRC and the County were liable for the repair and maintenance of the In support of its motion, the Association submitted, by aff......
-
Simon v. Pettit
...Colo. 512, 518, 362 P.2d 402, 405 (1961); Muscolino v. Superior Court, 172 Cal.App.2d 525, 341 P.2d 773, 774 (1959); Levy v. Kimball, 50 Haw. 497, 443 P.2d 142, 144 (1968); Albee v. Town of Yarrow Point, 74 Wash.2d 453, 445 P.2d 340, 344 (1968); Stegman v. City of Fort Thomas, 273 Ky. 309, ......