Makaneole v. Gampon

• Decision Date: 09 March 1989
• Docket Number: No. 12049,12218,12049
• Citation: Makaneole v. Gampon, 7 Haw.App. 448, 776 P.2d 402 (Haw. App. 1989)
• Parties: George MAKANEOLE, Plaintiff-Appellant, v. Drake GAMPON and Kauai Development Corp. dba Ohbayashi-Gumi, Ltd., Defendants-Appellees, and Norman's Construction, Inc.; N. Murakami, Inc.; Norbub, Inc.; Sheraton Corporation; and John Does 1-50, Defendants, and Dillingham Construction Corporation, dba Hawaiian Dredging & Construction Company, Ltd., Plaintiff-Intervenor-Appellant.
• Court: Hawaii Court of Appeals

Page 402

776 P.2d 402

7 Haw.App. 448

George MAKANEOLE, Plaintiff-Appellant, v.Drake GAMPON and Kauai Development Corp. dba Ohbayashi-Gumi Ltd., Defendants-Appellees and Norman's Construction, Inc.; N. Murakami, Inc.; Norbub Inc.; Sheraton Corporation; and John Does 1-50, Defendants and Dillingham Construction Corporation, dba Hawaiian Dredging & Construction Company, Ltd., Plaintiff-Intervenor-Appellant.

No. 12049, 12218.

Intermediate Court of Appeals of Hawai'i.

March 9, 1989.

Syllabus by the Court

1.In reviewing the lower court's granting of a motion for directed verdictthe appellate court applies the same standard applied by the trial court.

2.A directed verdict may be granted only when after disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiff's favor, it can be said that there is no evidence to support a jury verdict in his favor.

3.If the evidence and all the fair inferences drawn from it, viewed in the light most favorable to the non-moving party, is of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions on a crucial issue, then the motion for directed verdict should be denied and the issue should be submitted to the jury.

4.On a motion for directed verdict more than a scintilla of evidence is required to create a jury question.

5.An employer owes his employees a reasonably safe workplace.

6.Motions for summary judgment and directed verdict are analogous and where the evidence in the case is susceptible of conflicting interpretations neither the motion for summary judgment nor for directed verdict may be granted.

7.The nature and extent of control by an employer of an independent contractor of the independent contractor's performance of the work contracted for is a question of fact to be determined by a consideration of all the circumstances, and both the contractual provisions and the evidence of actual control are relevant.

8.An owner of a work site who retains the right to direct the manner of an independent contractor's performance or assumes affirmative duties with respect to safety owes a duty of reasonable care to an employee of the independent contractor to prevent injury to the employee resulting from a failure to meet that duty of reasonable care.

9.Evidence of violations of provisions of Title 12,chapter 136, of the Administrative Rules of the Department of Labor and Industrial Relations establishing standards for the operation of cranes in construction work, adopted pursuant to the Occupational Safety and Health Law (OSHL), Hawaii Revised Statutes (HRS), chapter 396(1977), is relevant in determining whether an employer failed to provide his independent contractor's employee with a safe place to work.

10.The rule that an employer is liable for injuries resulting from work that creates a peculiar risk of harm or is inherently dangerous is an exception to the general rule that one who employs an independent contractor is not liable for the negligence of the independent contractor or the independent contractor's employees.The exception does not apply to impose vicarious liability on the employer for the independent contractor's negligence.

11.The purpose of the Hawaii Occupational Safety and Health Law, HRS chapter 396, is to encourage employers and employees to reduce on-the-job injuries, and the clear intent of the statute is that an employee is responsible not only for requiring that his employer observe the OSHL regulations, but in observing those regulations himself.

Stanford Masui(Herbert R. Takahashi with him on the briefs and Danny J. Vasconcellos with him on the reply brief, Herbert R. Takahashi, A Law Corp., of counsel), Honolulu, for Makaneole.

Miki Okumura(John R. Lacy with her on the briefs, Goodsill Anderson Quinn & Stifel, of counsel), Honolulu, for Dillingham.

Philip S. Nerney, (Kenneth S. Robbins with him on the brief), Honolulu, for KDC.

Before BURNS, C.J., HEEN, J., and MARIE N. MILKS, Circuit Judge, in place of TANAKA, J., recused.

HEEN, Judge.

In these consolidated cases, Plaintiff-AppellantGeorge Makaneole(Makaneole) appeals from the judgment entered on the circuit court's directed verdicts in favor of Defendants-AppelleesDrake Gampon(Gampon) and Kauai Development Corp. dba Ohbayashi-Gumi, Ltd.(KDC).¹We vacate the judgment and remand for further proceedings.

I.

In our review of the granting of a directed verdict, we apply the same standard employed by the trial court.SeeLussier v. Mau-Van Development, Inc., 4 Haw.App. 359, 667 P.2d 804(1983).

[A] directed verdict may be granted only when after disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiff's favor, it can be said that there is no evidence to support a jury verdict in his favor.

Wakabayashi v. Hertz, 66 Haw. 265, 271, 660 P.2d 1309, 1313(1983)(citations omitted).Put another way, if the evidence and all the fair inferences drawn from it, viewed in the light most favorable to the non-moving party, is of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions on a crucial issue, then the motion should be denied and the issue should be submitted to the jury.Collins v. Greenstein, 61 Haw. 26, 595 P.2d 275(1979).²More than a scintilla of evidence is required to create a jury question.See 9 C. Wright and A. Miller, Federal Practice and Procedure: Civil§ 2524(1971).

II.

On September 18, 1981, Makaneole was employed as a carpenter by Plaintiff-Intervenor-AppellantDillingham Construction Corporation, dba Hawaiian Dredging & Construction Company, Ltd.(Dillingham).KDC was the owner of the Sheraton Kauai Hotel, and had hired Dillingham as the general contractor for the hotel's expansion.Makaneole was injured on the above date while he was working on the roof of the lobby/dining area of the hotel.

The roof was constructed by nailing 4' X 8' X 1 1/2"' plywood sheets adjacent to each other on top of the roof frame to form a base upon which roofing tiles were to be set.A crane was used to raise the plywood sheets, weighing about 200 pounds each, to the roof.The terminal rigging of the crane consisted of a heavy metal "c-clamp" attached to the end of the crane's cable by a loop of rope.When the carpenters were ready for a plywood sheet, a worker on the ground placed a single sheet in the jaws of the c-clamp and tightened the clamp onto the sheet.The plywood sheet was then raised by the crane to a height sufficient to clear the roof, and the boom was swung over to the area on the roof where the workmen were working.The plywood sheet was then removed from the c-clamp, the c-clamp bolt was tightened all the way down, and the boom was raised and swung back to the area of the plywood supply on the ground.

Both Westford Asao (Asao), Dillingham's acting job superintendent on September 18, 1981, and Frank Merritt(Merritt), Makaneole's expert, testified at trial that the unusually steep pitch of the roof made its construction process dangerous.Asao testified that in erecting a normal roof the plywood sheets could be delivered in bundles to the top of the frame, and stored there while individual sheets were being removed and placed.In this case, however, the pitch of the roof would not allow that procedure and the sheets had to be hoisted individually.The evidence also showed that because of the roof's pitch the workmen were required to nail lengths of wood horizontally onto the plywood sheets after they were placed on the frame in order to provide themselves a foothold, and that sawdust and chemicals within the plywood made the workmen's footing very precarious.

On the day of Makaneole's injury, the crane was operated by Gampon under the supervision of Glen Tanaka(Tanaka), a Dillingham employee.Norman's was hired by Dillingham originally as a subcontractor to undertake the crane work for the project.However, when Dillingham later discovered that Norman's was not a licensed contractor, Norman's status was changed, although it is not clear from the record exactly what the new status was.Asao testified that Norman's employees were put on Dillingham's payroll and Norman's was hired as a consultant for "his expertise in the framing" work for the roof.According to Asao, Norman Murakami or Norbub had a contract to rent the crane to Dillingham and was paid a consultant fee at the end of the project.Gampon testified, on the other hand, that he was paid throughout the job by Norman's.The parties agree, however, that Gampon was Norman's employee.

Just prior to Makaneole's injury, Gampon had raised a sheet of plywood to a group of carpenters working on a part of the roof near where Makaneole was working.Because the crane was not located on the same side of the building where the carpenters and Makaneole were working, Gampon could not see them.He manuevered the plywood sheet into position by responding to signals from one of the carpenters on the peak of the roof.After the sheet of plywood had been removed from the c-clamp by the carpenters, Gampon raised the c-clamp and began to swing the boom towards the area where Makaneole was working, not in the direction of the plywood supply, apparently on Tanaka's orders.Shortly after Gampon began to move the boom, something struck Makaneole's head and he was injured.Although no one saw what hit him, it appears that Makaneole was struck by the c-clamp, since it was found on the ground after the accident.Also, it was not determined whether the c-clamp became detached from the cable, striking Makaneole as it fell, or whether it struck Makaneole while it was still attached and then...