Messier v. Association of Apartment Owners of Mt. Terrace

• Decision Date: 20 January 1987
• Docket Number: No. 10855,KAISER-AETNA,10855
• Citation: 6 Haw.App. 525,735 P.2d 939
• Parties: Robert MESSIER, Plaintiff-Appellant, v. ASSOCIATION OF APARTMENT OWNERS OF MT. TERRACE, Defendant/Cross-Appellee, and Kaiser-Aetna, Defendant-Appellee/Cross-Appellant, and John Does 1-10; John Doe Corporations 1-10; and John Doe Partnerships 1-10, Defendants, and, through its Successor in Interest, Kacor Development Company, Third-Party Plaintiff/Appellee/Cross-Appellant, v. DILLINGHAM CORPORATION, individually, and doing business as Hawaiian Dredging & Construction Company, Third-Party Defendant/Additional Third-Party Plaintiff/Appellee/Cross- Appellant/Cross-Appellee, v. DAVID G. STRINGER & ASSOCIATES, LTD.; Hawaii Welding Company, Ltd.; and David T. Ishikawa, Trustee for the Creditors and Shareholders of Hawaii Welding Company, Ltd., Additional Third-Party Defendants.
• Court: Hawaii Court of Appeals

Page 939

735 P.2d 939

6 Haw.App. 525

Robert MESSIER, Plaintiff-Appellant, v. ASSOCIATION OF APARTMENT OWNERS OF MT. TERRACE,

Defendant/Cross-Appellee,

and

Kaiser-Aetna, Defendant-Appellee/Cross-Appellant,

and

John Does 1-10; John Doe Corporations 1-10; and John Doe

Partnerships 1-10, Defendants,

and

KAISER-AETNA, through its Successor in Interest, Kacor

Development Company, Third-Party Plaintiff/Appellee/Cross-Appellant, v. DILLINGHAM CORPORATION, individually, and doing business as

Hawaiian Dredging & Construction Company,

Third-Party Defendant/Additional

Third-Party Plaintiff/Appellee/Cross- Appellant/Cross-Appellee, v. DAVID G. STRINGER & ASSOCIATES, LTD.; Hawaii Welding

Company, Ltd.; and David T. Ishikawa, Trustee for the

Creditors and Shareholders of Hawaii Welding Company, Ltd.,

Additional Third-Party Defendants.

No. 10855.

Intermediate Court of Appeals of Hawai'i.

Jan. 20, 1987.

Syllabus by the Court

1. The trial court abused its discretion in granting the defendants' motion to strike the plaintiff's amended pretrial statement which was filed one month before trial and added new witnesses, and denying plaintiff's motion to add those witnesses as critical witnesses, where plaintiff's counsel's explanation for the tardiness in naming the witnesses showed good cause and defendants were not unduly prejudiced.

2. Under Rule 56, Hawaii Rules of Civil Procedure (HRCP) (1980), a motion for summary judgment may be filed at any time. Conflicts between Rule 7(f), Rules of Circuit Court (RCC) (1984), which prohibits the filing of motions affecting substantive issues more than 60 days after the filing of a responsive pretrial statement, and Rule 56 must, under Rule 32, RCC (1971), be resolved in favor of Rule 56.

3. The standard of review of a summary judgment is whether there is any genuine issue of material fact in the record and whether the movant is entitled to judgment as a matter of law. The facts in the record and the inferences to be drawn from them are viewed in the light most favorable to the non-moving party.

4. In deciding whether the doctrine of strict liability applies to an allegedly defective or dangerous product, the court should take into account the policy considerations underlying the doctrine along with the Restatement (Second) of Torts, § 402A, the Model Uniform Products Liability Act, and 5. Strict products liability will not be applied to a building where plaintiff alleges that the building was a defective and dangerous product because the metal panel which caused his injury was loose or inadequately fastened to the building's roof.

applicable case law, rather than relying strictly on dictionary definitions.

6. Questions of negligence are not ordinarily susceptible to summary judgment.

7. Liability of a developer of a building to third persons for injuries allegedly caused by the negligence of an architect and/or a contractor employed by the developer to design and construct the building is dependent upon whether the developer has exercised such control over the architect or contractor in the performance of their contracts as to make them the developer's agents or employees.

8. The exclusive liability provision of the Worker's Compensation Statute, Hawaii Revised Statutes § 386-5 (1985), precludes only those actions against the employer which arise "on account" of the employee's injury. It does not preclude a third party's claim for indemnity based upon contract or some other independent duty existing between the employer and the third-party claimant.

Burt L. Snyder, Honolulu, for Messier.

Lyle Y. Harada (James Kawashima and John T. Komeiji with him on brief; Kobayashi, Watanabe, Sugita & Kawashima, of counsel), Honolulu, for Association.

William S. Hunt (Sheryl L. Nicholson with him on briefs; Paul, Johnson & Alston, of counsel), Honolulu, for Kaiser.

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

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

HEEN, Judge.

In this personal injury action based upon strict products liability and negligence, Plaintiff-Appellant Robert Messier (Messier) appeals from the judgments below in favor of Defendant/Third-Party Plaintiff/Appellee/Cross-Appellant Kaiser-Aetna (Kaiser) ¹ and Third-Party Defendant/Additional Third-Party Plaintiff/Appellee/Cross-Appellant/Cross-Appellee Dillingham Corporation (Dillingham), doing business as Hawaiian Dredging & Construction Co. Kaiser appeals from the dismissal of its third-party complaint against Dillingham, and both Kaiser and Dillingham appeal from the dismissal of their indemnity claims against Defendant/Cross-Appellee Association of Apartment Owners of Mt. Terrace (Association), an unincorporated association.

The questions raised in this appeal and our answers are as follows:

(1) Did the trial court err in granting Kaiser's motion to strike Messier's Amended Pretrial Statement and denying Messier's motion to add critical witnesses? Yes.

(2) Did the trial court err in granting Kaiser's and Dillingham's motions for summary judgment? ² The trial court correctly granted summary judgment as to Messier's products liability claim, but erred in doing so as to his negligence claim.

(3) Did the trial court err in dismissing Kaiser's third-party indemnity claim against Dillingham? Yes.

(4) Did the trial court err in dismissing Kaiser's and Dillingham's indemnity claims against Association? No.

FACTS

The Mt. Terrace condominium apartment building (hereafter the building) was developed in 1973 by Kaiser in the Maunalua Bay area of Honolulu. On or about December 8, 1981, Messier, an employee and general manager of Association, was allegedly working on the roof of the building during a rainstorm when a metal panel which had been attached to the roof became dislodged by the storm and struck and injured him. Messier received worker's compensation benefits under Hawaii Revised Statutes (HRS) chapter 386 (1985).

Messier filed suit against Association and Kaiser alleging that "the building was in a dangerous and defective condition, namely a metal panel located on the roof was loose or otherwise inadequately secured[.]" The complaint charged Association was negligent in "failing to maintain and repair" the building and that Kaiser was negligent in "failing to adequately design and construct" the building. The complaint was dismissed as to Association on its motion asserting that Messier's claim against it was barred under HRS § 386-5. ³ Kaiser answered the complaint and cross-claimed against Association, alleging that Association's negligence was the cause of Messier's injuries. Kaiser also filed a third-party complaint for indemnity against Dillingham, Kaiser's general contractor for the building, alleging that Messier's injuries were caused by, inter alia, Dillingham's negligence. Dillingham answered Kaiser's third-party complaint and filed a cross-claim for indemnity against Kaiser and Association alleging that Messier's injuries were caused by their negligence. ⁴ Dillingham also filed third-party complaints against David G. Stringer & Assoc., Ltd. (Stringer), the architectural firm that designed the building, Hawaii Welding Co., Ltd. (Hawaii Welding), which allegedly installed the metal panel as Dillingham's subcontractor, and David T. Ishikawa, Hawaii Welding's trustee in dissolution. ⁵ Association's motion for summary judgment on Kaiser's and Dillingham's cross-claims was denied.

Trial was scheduled for June 17, 1985, and discovery was to be completed by May 17, 1985. By December 14, 1984, pretrial statements had been filed on behalf of Messier, Dillingham, Kaiser, and Association. On May 16, 1985, the eve of discovery cutoff and one month before trial, Messier filed a First Amended Pretrial Statement (Pretrial Statement) which identified for the first time a mechanical engineer, a structural engineer (hereafter collectively engineers), and an economist as his expert witnesses, and other witnesses whom Messier intended to call at trial. ⁶ The engineers were Messier's only experts on the issue of liability.

Asserting that Messier's late naming of the expert witnesses violated Rule 12(a)(2) of the Rules of the Circuit Court (RCC) (1984), ⁷ and was prejudicial, Kaiser moved On June 17, 1985, the trial court orally ordered that all the defendants would be allowed to file dispositive motions on Messier's claims. ⁹ Consequently, on June 18, 1985, Kaiser filed a motion for summary judgment on Messier's claims, Dillingham filed a motion to dismiss "all claims" against it, and Association filed a "Motion to Dismiss Cross-Claims." After a hearing, the motions were granted.

                to strike the Pretrial Statement or, in the alternative, to exclude the tardily named witnesses or continue the trial.  Dillingham and Association joined in the motion.  On May 23, 1985, Messier filed a motion to add critical witnesses under Rule 12(a)(15), RCC. 8  On June 28, 1985, Messier's motion was denied and Kaiser's [6 Haw.App. 530] motion to strike the Pretrial Statement was granted.  Messier's motion for reconsideration was denied by an order entered on July 25, 1985
                

Messier, Kaiser, and Dillingham timely appealed. ¹⁰ The appeals will be discussed seriatim.

MESSIER'S APPEAL

I.

The first question raised in Messier's appeal is whether the lower court abused its discretion in granting Kaiser's motion to strike Messier's Pretrial Statement and denying his motion to add critical witnesses. As noted above, both motions were based on Rule 12, RCC. Inasmuch as both motions involve the question whether Messier should have been allowed to present the witnesses' testimony at trial, they will be considered together.

Rule 12, RCC, deals with pretrial matters and establishes the posture of a case for trial. Sanctions imposed by the trial court under that rule are reviewable under the abuse of discretion standard. See GLA, Inc. v. Spengler, 1 Haw.App. 647, 623 P.2d...