McKeague v. Talbert

• Citation: 658 P.2d 898,3 Haw.App. 646
• Decision Date: 26 January 1983
• Docket Number: No. 8218,8218
• Parties: Robert McKEAGUE, Plaintiff-Appellee, v. Krin TALBERT, Defendant-Appellant.
• Court: Court of Appeals of Hawai'i

Page 898

658 P.2d 898

3 Haw.App. 646

Robert McKEAGUE, Plaintiff-Appellee, v. Krin TALBERT, Defendant-Appellant.

No. 8218.

Intermediate Court of Appeals of Hawai'i.

Jan. 26, 1983.

As Amended Feb. 9, 1983.

Syllabus by the Court

1. A motion for summary judgment is properly granted where there is no genuine issue of any fact that has the effect of establishing or refuting an essential element of a cause of action or defense asserted by the parties. Questions of negligence are ordinarily not susceptible to summary judgment.

2. In deciding a motion for summary judgment, both the trial court and the reviewing court must view the evidence in the light most favorable to the non-moving party.

3. Hawaii Revised Statutes § 601-7 must be strictly construed and an affidavit in support of a motion to disqualify a presiding judge must contain allegations of a personal bias or prejudice and facts and reasons from which a sane and reasonable mind may fairly infer bias or prejudice.

4. The fact that an attorney appearing before the judge had previously represented a corporation of which the judge was a minority shareholder is not a ground for disqualification where the attorney's representation was for the one matter only and the litigation had already been completed.

5. Where a party does not challenge a juror, for cause or peremptorily, he cannot thereafter complain that on the basis of the juror's responses to the party's voir dire questions the court should have excused the juror.

6. In determining whether a juror should be seated, much is left to the discretion of the trial judge, who is in a much better position to determine whether the juror can give a fair and impartial verdict.

7. A requested instruction which has nothing to do with any of the issues or evidence in the case is properly refused by the court.

8. In determining whether error occurred in instructions to the jury, the charge must be considered as a whole.

9. Where there is evidence of the objective nature of an injury and that the injury and resulting pain is extant at the time of trial, and there is expert testimony that complete recovery would probably not occur until after the date of trial, it can be inferred that the injured person will suffer future pain and suffering and an instruction which allows the jury to award damages for future suffering reasonably probable to be expected is proper.

10. The discretion of the trial court to award pre-judgment interest in all civil cases authorized by Hawaii Revised Statutes § 636-16 cannot be exercised retroactively and a trial court may not award interest to begin at any time prior to the effective date of the statute.

11. An amendment increasing the statutory interest rate cannot be applied retroactively.

David J. Dezzani, Honolulu (Dewey H. Kim, Jr., Honolulu, with him on briefs; Goodsill, Anderson & Quinn, Honolulu, of counsel), for defendant-appellant.

David C. Schutter, Honolulu (Mark R. Thomason, Honolulu, with him on the brief; Schutter & Pavey, Honolulu, of counsel), for plaintiff-appellee.

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

HEEN, Judge.

In this tort action, Krin Talbert (defendant) appeals from an order of the court below granting Robert McKeague's (plaintiff) Motion for Partial Summary Judgment on the issue of liability, the jury award of $100,293.85 damages for personal injuries suffered by plaintiff, and the court's award of interest on the judgment at 8% from the date of injury under Hawaii Revised Statutes (HRS) § 478-2 and § 636-16 (1982 Supp.).

The issues raised on appeal and our answers are as follows:

1. Whether the court erred in granting partial summary judgment to plaintiff on the issue of liability. Yes.

2. Whether the trial judge erred in not disqualifying himself pursuant to HRS § 601-7 and the Canons of Judicial Conduct. No.

3. Whether the court erred in not dismissing a juror on her statement that she would consider plaintiff's obligation to pay attorney's fees in assessing damages, and in not instructing the jury that attorney's fees should not be considered in awarding damages. No.

4. Whether the court erred in instructing the jury that it could consider future pain and suffering in awarding damages. No.

5. Whether the court erred in allowing plaintiff prejudgment interest dating from the time of injury. Yes.

On June 11, 1978, plaintiff was employed as a gas station attendant at Aiea, Oahu. On that day, he had completed servicing a car in one of the lanes and was standing in back of the car while filling out the credit charge slip. At that time, defendant drove into the same service lane and stopped behind plaintiff so that plaintiff was between the two cars. The distance between the two cars was approximately four feet. Defendant's Volkswagen van was still in its automatic gear with the motor running, and defendant had her foot on the brake to keep the van stationary. However, defendant's foot slipped off the brake and onto the gas pedal. Defendant's van moved forward, pinning plaintiff between the cars at his knees and injuring him.

On April 28, 1980, plaintiff filed this action to recover for those injuries. Defendant's answer raised the defenses of contributory negligence and assumption of risk. On September 23, 1980, plaintiff filed a motion for partial summary judgment on the issue of liability. On November 6, 1980, the motion was denied and on November 14, 1980, plaintiff filed a motion for reconsideration. Upon reconsideration, the court granted the motion and, on January 27, 1981, entered summary judgment for plaintiff on liability. Trial was set for February 4, 1981.

On February 3, 1981, the trial judge convened in chambers with all counsel, but without the parties. At that time, defense counsel requested that the trial judge recuse himself from the case because of a past professional relationship with plaintiff's counsel, David C. Schutter. The judge declined to recuse himself. On February 4, 1981, defendant filed a written motion requesting disqualification, accompanied by her affidavit. The record does not indicate that any formal action was taken on this written motion.

The jury returned a verdict of $8,293.85 special damages and $92,000.00 general damages. On February 6, 1981, plaintiff filed a motion asking the court to fix the form of judgment by awarding interest to plaintiff under HRS § 636-16 and § 478-2. The court ordered interest at 8% under HRS § 478-2, as amended, and commencing on the date of the injury under HRS § 636-16. Judgment was entered on February 17, 1981 and defendant filed a Notice of Appeal on February 23, 1981.

1.

At the time of the hearing on the motion for reconsideration, the court had before it defendant's deposition, plaintiff's affidavit, plaintiff's answers to interrogatories, and an affidavit from Michael A. Penick, an ambulance paramedic who was called to the scene of the accident. ¹ The decision of the court turned entirely upon the issue of contributory negligence.

In his affidavit and answers to interrogatories, plaintiff stated that he had just completed putting gas into a customer's car and was standing behind that car filling out the customer's bill, when he heard someone yell, "Look out," and something hit him. He stated he did not see defendant's vehicle before he was hit, had no warning, and no opportunity to get out of the way.

In her deposition, defendant testified that she thought plaintiff saw her or knew she was there before the accident. She stated that she saw him look up at her and continue to write out the bill in the brief period before the accident.

The court found that there was no genuine issue of material fact and that plaintiff was not contributorily negligent. We find from the record that there was a genuine issue of material fact and summary judgment should not have been granted.

A motion for summary judgment is properly granted under Rule 56(c), Hawaii Rules of Civil Procedure (HRCP) (1980) if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lau v. Bautista, 61 Haw. 144, 146-47, 598 P.2d 161, 163 (1979); Anderson v. Oceanic Properties, Inc., 3 Haw.App. 350, 650 P.2d 612 (1982). For purposes of summary judgment, a fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. City and County of Honolulu v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979); Lau v. Bautista, supra; Hunt v. Chang, 60 Haw. 608, 594 P.2d 118 (1979). In deciding the motion, both the trial court and the reviewing court must view the evidence in the light most favorable to the non-moving party. Lau v. Bautista, supra; Costa v. Able, 3 Haw.App. 486, 653 P.2d 101 (1982); Anderson v. Oceanic Properties, Inc., supra; Windward Partners v. Lopes, 3 Haw.App. 30, 640 P.2d 872 (1982). Because its impact is rather drastic, summary judgment must be used with due regard for its purposes and should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2712 (1973). Moreover, questions of negligence are ordinarily not susceptible to summary judgment. 10 Wright & Miller, supra, Civil § 2729 (1973); De Los Santos v. State of Hawaii, 65 Haw. 608, 655 P.2d 869 (1982); Pickering v. State, 57 Haw. 405, 557 P.2d 125 (1976); cf. Tsugawa v. Reinartz, 56 Haw. 67, 527 P.2d 1278 (1974). ²

It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of the opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never...