Myers v. South Seas Corp., s. 15086

• Court: Court of Appeals of Hawai'i
• Citation: 871 P.2d 1235,10 Haw.App. 331
• Docket Number: Nos. 15086,15117,s. 15086
• Parties: Michael S. MYERS, Individually and as Special Administrator of the Estate of Marla Colleen Myers, Deceased, Plaintiff-Appellant, v. SOUTH SEAS CORPORATION, a Hawaii corporation, dba Rudy's Italian Restaurant and Hideaway Lounge, and Outrigger Hotels Hawaii, Inc., dba Outrigger Surf Hotel, Defendants-Appellees, and Lautusi Taua and John Does 1-10, Defendants.
• Decision Date: 14 May 1992

Page 1235

871 P.2d 1235 10 Haw.App. 331 Michael S. MYERS, Individually and as Special Administrator
of the Estate of Marla Colleen Myers, Deceased,
Plaintiff-Appellant,
v.
SOUTH SEAS CORPORATION, a Hawaii corporation, dba Rudy's
Italian Restaurant and Hideaway Lounge, and
Outrigger Hotels Hawaii, Inc., dba
Outrigger Surf Hotel,
Defendants-Appellees,
and
Lautusi Taua and John Does 1-10, Defendants. Nos. 15086, 15117. Intermediate Court of Appeals of Hawai'i. May 14, 1992.
As Amended on Grant of Reconsideration June 1, 1992.
Certiorari Granted June 19, 1992.

Page 1237

Syllabus by the Court

1. In reviewing the trial court's charge to the jury, the instructions must be considered as a whole.

2. The function of jury instructions is to inform the jury of the law applicable to the case.

3. [10 Haw.App. 332] The question on review is not whether the instructions were technically correct but whether the appellant could have suffered prejudice on their account. In determining the sufficiency of a particular instruction, it is not to be considered apart from its context or the rest of the charge.

4. An intoxicated and disorderly tavern patron, who participates in and is injured during an altercation with another patron, is not within the class of persons protected by the liquor licensing statutes.

5. The general rule is that proprietors of bars or taverns owe their customers the duty of exercising reasonable care to protect them from injury at the hands of other patrons.

6. An appellate court will order a new trial when the jury's answers to interrogatories posed on a special verdict form are irreconcilably inconsistent. However, the verdict will not be disturbed if the answers can be reconciled under any theory.

7. The admission of evidence lies within the discretion of the trial court, and the court's decision will be overturned only where there has been a clear abuse of discretion.

8. [10 Haw.App. 333] Abuse of discretion is shown when the court's decision clearly exceeded the bounds of reason or disregarded principles of law.

9. An appellate court has the discretion to grant a new trial on only some of the issues where the issues to be retried are sufficiently separate from the other issues in the case.

[10 Haw.App. 352] Stacy Moniz (David C. Schutter and Paul D. Hicks, with him on the briefs; Schutter & Glickstein, of counsel), Honolulu, for plaintiff-appellant.

David J. Dezzani (Margaret C. Jenkins, with him on the brief; Goodsill Anderson Quinn & Stifel, of counsel), Honolulu, for defendant-appellee South Seas Corp.

Kari A. Wilhelm (Arthur F. Roeca, with her on the brief; Roeca, Louie & Hiraoka, of counsel), Honolulu, for defendant-appellee Outrigger.

Before [10 Haw.App. 331] BURNS, C.J., and HEEN, J., and CRANDALL, Circuit Judge by Reason of Vacancy. ^*

[10 Haw.App. 333] HEEN, Judge.

Plaintiff-Appellant Michael S. Myers (Myers), individually and as special administrator of the estate of Marla Colleen Myers (Marla), appeals from the December 19, 1990 judgment in favor of Defendants-Appellees South Seas Corporation, dba Rudy's Italian Restaurant and Hideaway Lounge (Rudy's), and Outrigger Hotels Hawai'i, Inc. (Outrigger), dba Outrigger Surf Hotel (Hotel), and the February 1, 1991 order denying his motion to amend the judgment or in the alternative

Page 1238

for a new trial. ¹ We vacate the judgment in favor of Rudy's and [10 Haw.App. 334] remand Myers' claim against Rudy's for retrial. We affirm the judgment in favor of Outrigger.

On December 25, 1986, at approximately 2:00 a.m., Marla arrived at Rudy's, which is located in the Hotel, accompanied by Gordon Wesley Sodorff (Sodorff). Defendant Lautusi Taua (Taua) was in Rudy's at the time. Taua had with him a six-foot inflatable Godzilla doll.

Marla and Sodorff went to the bar in Rudy's, where Marla ordered a glass of wine. Before she could be served, Marla began to circulate among the tables greeting friends. Within a very short time, Marla was engaged in an altercation with Taua, during which they were shouting at each other. It is unclear how the altercation started; however, it appears that Marla slapped Taua's doll and knocked it over. Marla returned to the bar, but the two continued to exchange words. Taua approached Marla at the bar and slapped her. Marla slapped back and Taua punched her, knocking her off her bar stool. Taua punched Marla again as she fell. While Marla was on the ground, Taua appeared to stomp on her head. Rudy's bartender, Bruce Spewak (Spewak), and another customer, Brian Dragger (Dragger), pulled Taua away from Marla. Marla then left Rudy's through a back stairway and door leading to the Hotel lobby. Shortly after that, Spewak and [10 Haw.App. 335] Dragger let Taua go, and Taua left through the front door leading to the street.

While the altercation was going on, another patron informed the Hotel's night auditor, who was upstairs in the lobby area, that a fight was occurring in the bar. The night auditor called the Outrigger's private security dispatcher at the Outrigger Prince Kuhio Hotel some four blocks away and requested that security personnel be sent. Although Outrigger, which owns a number of hotels in the Waikiki area, maintained a security staff, it did not station security personnel at each hotel. Instead it maintained a dispatch center for routing its security personnel to its hotels when needed.

Shortly thereafter, Marla entered the lobby and asked the night auditor to call security or the police. The night auditor and Marla were standing in the front entrance of the Hotel waiting for security to arrive when Taua emerged from Rudy's onto the street. The Hotel's front entrance is quite close to Rudy's front entrance.

Taua began walking off carrying his doll, then turned and walked up to Marla and the night auditor. As he approached, Taua twice said to Marla: "Don't ever do that to me again." When he got to Marla, he pushed her. She fell backwards, and her head hit the concrete floor. As Marla lay there, Taua kicked her three or four times.

Outrigger's security guards (guards) arrived as Taua was kicking Marla. Taua walked away, but was stopped and held by the guards until the police arrived.

Marla was confined in a hospital for injuries suffered from Taua's attack. She died several days later when life support systems were removed. Dr. Gonzalo Chong testified that the blows Marla received in either confrontation could have been the cause of her death.

[10 Haw.App. 336] Myers filed the initial complaint on May 18, 1987, and an amended complaint on May

Page 1239

9, 1989. In his second amended settlement conference statement filed on September 12, 1990, Myers outlined his theories of liability as follows:

[Rudy's] a. Negligent sale of alcoholic beverage in violation of Hawai'i Revised Statutes (HRS) § 281-78(a)(2)(B) (1985).

b. Failure to exercise reasonable care to protect its patrons from harm.

c. Failure to provide proper and/or adequate security.

d. Creation of a false appearance of safety upon which [Marla] relied.

e. Negligence.

[Outrigger] a. Failure to provide adequate and proper security.

b. Negligence.

The jury rendered a special verdict in which it found that Outrigger was not negligent and that Rudy's was negligent; however, it found that Rudy's negligence was not "a legal cause of injury to the Plaintiff[.]" Judgment was entered on December 19, 1990. On January 17, 1991, Myers filed a notice of appeal from the judgment.

I.

Myers' first argument on appeal is an attack on the court's charge to the jury. Specifically, Myers argues that the court erred in giving instructions no. 16 (instruction no. 16) and 51 (instruction no. 51) and refusing to give Myers' requested instructions no. 11 (instruction no. 11) and 40 (instruction no. 40).

[10 Haw.App. 337] In reviewing the trial court's charge to the jury, the instructions must be considered as a whole. SGM Partners v. The Profit Co., 8 Haw.App. 86, 793 P.2d 1189, aff'd in part, rev'd in part on other grounds, 71 Haw. 506, 795 P.2d 853 (1990). The function of jury instructions is to inform the jury of the law applicable to the case. Campbell v. Hipawai Corp., 3 Haw.App. 11, 639 P.2d 1119 (1982). The question is not whether the instructions were technically correct but whether the appellant could have suffered prejudice on their account. In re Estate of Lorenzo, 61 Haw. 236, 602 P.2d 521 (1979). In determining the sufficiency of a particular instruction, it is not to be considered apart from its context or the rest of the charge. Id.

We note, at the outset, that we have examined the instructions as a whole and found that they correctly informed the jury of the law of negligence to be applied by them to the evidence. Nevertheless, since we are remanding Myers' claim against Rudy's for retrial, we will discuss Myers' arguments regarding the instructions noted above.

Instructions No. 16 and No. 40

Myers asserts that the trial court erred in giving instruction no. 16 and refusing his instruction no. 40. The instructions, respectively, read as follows:

COURT'S INSTRUCTION NO. 16

Violation of a statute may be considered by you in determining whether, taken together with all of the other evidence in the case, there was negligence on the part of the violator. Whether there was any violation of a statute and the effect thereof is for you to determine.

[10 Haw.App. 338] Under the statutes of the State of Hawai'i, a cocktail lounge operator must exercise reasonable care to prevent or suppress any violent, quarrelsome, disorderly or unlawful conduct of any person on its premises.

[MYERS'] JURY INSTRUCTION NO. 40

At no time under any circumstances shall any bar operator knowingly permit any person under the influence of liquor or disorderly person to be or remain on the bar's premises.

The thrust of Myers' argument is that instruction no. 16 is an incorrect statement of

Page 1240

the law as expressed in HRS § 281-78(b)(2) (1985), while...