Pickering v. State

• Decision Date: 08 December 1976
• Docket Number: No. 5604,5604
• Parties: Sharon PICKERING, Individually, and as guardian ad litem of Mary Pickering, et al., Plaintiffs-Appellants, v. STATE of Hawaii et al., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 125

557 P.2d 125

57 Haw. 405

Sharon PICKERING, Individually, and as guardian ad litem of Mary Pickering, et al., Plaintiffs-Appellants, v. STATE of Hawaii et al., Defendants-Appellees.

No. 5604.

Supreme Court of Hawai'i.

Dec. 8, 1976.

Syllabus by the Court

1. Summary judgment is to be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

2. Issues of negligence are ordinarily not susceptible of summary adjudication; however, where there is no dispute in the evidence before the trial court, the court has the duty to pass upon the question of negligence and proximate cause as a matter of law.

3. Compliance with established statutory and administrative standards are not necessarily conclusive on the issue of negligence.

4. The mere fact that a guardrail is unable to contain a moving motor vehicle is at best a neutral circumstance on the issue of the State's negligence.

5. Evidence outside the trial record may neither be appended nor referred to in the appellate brief unless settled and approved by the trial court pursuant to H.R.C.P., Rule 75(c), and this court cannot consider such evidence for purposes of appellate review.

6. The duty of the State is to design and construct its highways in such a manner as to make them reasonably safe for their intended uses, and thereafter to maintain them in a reasonably safe condition. The State is not required to exercise extraordinary care to guard against unusual accidents.

Warren Price, III, Honolulu, for appellants.

Shirley Smith, Deputy Atty. Gen., Honolulu, for appellees.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and CHANG, Circuit Judge in place of KOBAYASHI, J., disqualified and KATO, Circuit Judge, in place of KIDWELL, J., disqualified.

MENOR, Justice.

This is an appeal by the plaintiffs-appellants from an order granting summary judgment in favor of the defendant State of Hawaii. The State had been made a party defendant in a suit for damages arising from the death of Clifford Pickering in a motor vehicle collision on Kalanianaole Highway on April 17, 1971. The other defendants were Saul C. Keliikoa, a minor and the driver of the automobile which struck Pickering's car, and his parents. The action was initiated in circuit court on behalf of Mr. Pickering's estate, his widow, and his children.

Defendant Saul C. Keliikoa, at 2:45 a. m. on the morning of April 17, 1971, was driving mauka toward Honolulu on Kalanianaole Highway, approaching the Kailua Drive-In Theater. He was sixteen years old, driving a car belonging to Delbert Perry's father, and he had three passengers riding with him-Delbert Perry, Allen Mari and Warren Takahashi-all of whom were asleep. The evening had been taken up in beer-drinking in Ainakoa Park, dropping in on a dance at the University of Hawaii, shooting pool in Kahala, and driving to Kailua. They were homeward bound when the accident occurred.

As he neared the theater, Keliikoa fell asleep at the wheel. The last thing he remembered was the Kailua Drive-In Theater sign. Keliikoa's car veered to the left, hit the median curb approximately 329 feet mauka of the Kapaa Quarry Road intersection (which is located near the Kailua Drive-In Theater), vaulted into the air, landed on top of the median guardrail twelve feet beyond the point of initial contact with the medial strip, demolished a sign erected between the two sides of the guardrail, continued up hill for an additional ninety-eight feet (by which time it was off the guardrail and on the opposite side of highway), and struck Pickering's car. The momentum of Keliikoa's car pushed Pickering's car thirty-three feet beyond the point of impact and continued an additional fourteen feet before coming to a complete stop.

The plaintiffs-appellants based their claim against the State of Hawaii on the alleged negligent design and construction of the median barrier which divided that portion of the highway where the accident occurred. They contended that the manner of design and construction of the medial strip and barrier actually caused the collision by decreasing Keliikoa's reaction distance and by providing a ramping effect which resulted in his vehicle going over the median barrier and into Pickering's lane. The circuit judge dismissed these contentions and ruled that the State was entitled to summary judgment as a matter of law.

Summary judgment is to be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Abraham v. Onorato Garages, 50 Haw. 628, 446 P.2d 821 (1968); Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970). Issues of negligence are ordinarily not susceptible of summary adjudication, 6 Moore's Federal Practice 56.17(42) (2d ed. 1948); however, where there is no dispute in the evidence before the trial court, it has the duty to pass upon the question of negligence and proximate cause as a matter of law. H.R.C.P. Rule 56(c); Struzik v. City and County of Honolulu, 50 Haw. 241, 437 P.2d 880 (1968); Carreira v. Territory of Hawaii, 40 Haw. 513 (1954).

The trial court correctly found that the State was not negligent as a matter of law.

The relevant portion of Kalanianaole Highway was designed and constructed (between 1949 and 1951) in conformity with the design and construction standards established for Federal-aid highways of the federal government. See U. S. Department of Commerce, Bureau of Public Roads, Police and Procedure Memorandum No. 40-2 (1954). The median barrier was designed and constructed between 1966 and 1967. The record shows that the completed relevant median guardrail was approved and accepted by the United States Bureau of Public Roads in 1967. The State asserts that it was designed and constructed in conformity with federal standards. The appellants correctly point out, however, that 'the type of metal to be used, the width of the barrier, the height of the barrier, the depth of the barrier, the placement of the barrier, the height of the medial strip, the substances used in constructing the medial strip, and the actual location of the median barrier on the medial strip' were all engineering decisions not specifically covered by the federal standards. And even assuming that they were, compliance with established statutory and administrative standards are not necessarily conclusive on the issue of negligence. See Restatement of Torts, Second, § 288C (1965); Potter v. Battle Creek Gas Co., 29 Mich.App. 71, 185 N.W.2d 37 (1970); Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485 (1892).

Nevertheless, there is nothing in the record before us, from which the negligence of the State in the design and construction of the guardrail may reasonably be inferred. The relevant portion of the guardrail consisted of two W-section steel rails, approximately two feet apart, bolted to steel I-beam posts spaced nine feet apart. The barrier stood two feet above the central axis of the medial strip which had a curb height of six inches. The medial strip which separated the lane being travelled by Keliikoa and the lane in which the Pickering vehicle was travelling was twelve feet in width. The location of the guardrail in relation to the medial strip was in conformity with federal standards. The scene of the accident was a straight stretch of highway. The mere fact that the guardrail was unable to contain the Keliikoa vehicle, which was travelling at a speed of 40-45 miles per hour immediately prior to the driver falling asleep at...