Pulawa v. Gte Hawaiian Tel
| Decision Date | 14 September 2006 |
| Docket Number | No. 26715.,26715. |
| Parties | Benjamin N. PULAWA, III; Danelle L. Pulawa, individually and as Prochein Ami of Darcie L. Pulawa, and Benjamin N. Pulawa, IV, minor children, v. GTE HAWAIIAN TEL; E.E. Black, Defendants and Third-Party Plaintiffs-Appellees, and Universal Electric, Ltd., fka Occ-Electrical, Ltd., Third-Party Defendants-Appellees, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, Doe Governmental Entities 1-10, and Doe Non-Profit Entities 1-10, Defendants. |
| Court | Hawaii Supreme Court |
Kenneth T. Okamoto and John D. Zalewski, Honolulu (of Price Okamoto Himeno & Lum), and Dan S. Ikehara (of the Law Offices of Dan S. Ikehara), on the briefs, for plaintiffs-appellants.
Jeffrey H.K. Sia, Diane W. Wong, J. Thomas Weber, and Ronald M. Shigekane (of Ayabe Chong, Nishimoto, Sia & Nakamura), on the briefs, Honolulu, for defendants and third-party plaintiffs-appellee GTE Hawaiian Tel and E.E. Black.
Keith K. Hiraoka and April Luria (of Roeca, Louie & Hiraoka), on the record, Honolulu, for third-party defendant-appellee Universal Electric, Ltd.
Plaintiffs-appellants Benjamin Pulawa, III (Pulawa) and Danelle Pulawa, individually and as Prochein Ami for Darcie Pulawa and Benjamin Pulawa, IV [hereinafter, collectively, the plaintiffs or the Pulawas],1 initiated the instant action for negligence arising out of an incident in which Pulawa, a construction superintendent, was seriously injured as a result of being struck in the head by a hardened bag of cement that was propelled into the air during the course of excavation work. The plaintiffs alleged that defendants-appellees E.E. Black, an excavation and duct line contractor, and GTE Hawaiian Tel (GTE), which had contracted with E.E. Black to conduct excavation and duct line work, were responsible for burying the cement bag approximately two to three years prior to the subject incident during the course of installing a telephone duct line in the same approximate area where Pulawa was overseeing excavation work in connection with a subsequent project.
The plaintiffs appeal from that portion of the Circuit Court of the First Circuit's May 25, 2004 final judgment2 entered pursuant to an order granting summary judgment in favor of E.E. Black and GTE. Essentially, the circuit court ruled that E.E. Black did not owe a legal duty of care to Pulawa. The plaintiffs also challenge that portion of the circuit court's order denying in part their motion to disallow costs.
For the reasons discussed below, we affirm the circuit court's May 25, 2004 final judgment.
The relevant facts of the instant case involve two separate construction projects in the Kaka`ako Improvement District in Honolulu, Hawaii. The first project was conducted in 1993-1994 by E.E. Black. The second project was conducted in 1995-1996 by O`ahu Construction Company (OCC), during which Pulawa sustained his injuries.
Sometime in 1993, GTE hired E.E. Black to install underground telephone lines along Kamake`e Street in the Kaka`ako Improvement District [hereinafter, the underground duct line project]. E.E. Black was responsible for furnishing all of the materials and labor, as well as for performing all of the necessary work for the project. Although a GTE engineer served as an inspector for the project, GTE hired Engineers Surveyors Hawai`i (ESH) to also provide inspection work for the project.
The underground duct line project involved certain excavation and backfill work. According to GTE's "Standard Specifications for Placing Underground Telephone Lines," which "are intended to govern the work on all contracts awarded for placement of underground telephone systems by GTE ... throughout the State of Hawai`i," "[a]ll wood and debris shall be removed from [the excavated] trench before backfilling[,]" and "[b]ackfill material shall be free of wood, paper or other objectionable material." The GTE inspector testified that the purpose of the foregoing requirements was to prevent "settlement and/or street failure." An E.E. Black foreman agreed that inappropriate backfill could lead to settlement and/or street failure. The ESH inspector also testified that improper backfill could potentially pose a danger to "equipment used by a future contractor" as well as to the safety of future contractors.
E.E. Black began excavation at the intersection of Kamake`e and Kona Streets on or about October 21, 1993. E.E. Black then backfilled the excavated area, using "select borrow" backfill material, on December 22, 1993. "Select borrow" is a type of backfill material, where the largest pieces of material used as backfill are no more than one inch in diameter.
During the underground duct line project, E.E. Black used "hand mixed" cement in order to make small repairs or patch existing sewer lines in the areas of construction. An ESH inspector witnessed E.E. Black mixing cement at the job site approximately ten times during the course of the project. E.E. Black's use of cement during the underground duct line project was acknowledged by an E.E. Black project engineer.
According to a "contract set of plans" that E.E. Black apparently utilized during its project, the fact that "there would be future underground work along Kamake`e Street" "[a]fter E.E. Black performed its work" was reflected on those plans. E.E. Black's project appeared to have concluded sometime in early 1994.
Sometime in 1995, OCC began work on the installation of water and electrical lines, as well as widening roads and constructing new sidewalks and pavement in the Kaka`ako Improvement District. As part of the project, OCC was required to perform excavation work. On August 20, 1996, during the course of the excavation work, it appears that OCC encountered the GTE duct line that E.E. Black had previously installed. On that day, Pulawa, a construction superintendent employed by OCC, was overseeing the excavation work being performed by three other OCC employees at the intersection of Kamake`e and Kona Streets. One employee was operating a loader,3 the second was operating a backhoe,4 and the third employee was acting as a grade checker. The backhoe operator was excavating a trench and placing the excavated material somewhere near the trench. The loader operator would then pick up the material and deposit it in a dump truck. Because of the limited space in the excavation area, the loader operator would have to drive over the pile of excavated material in order to place the scooped-up material into the dump truck. The loader operator would then reverse back over the pile and repeat the process until the excavated material was removed.
While removing the excavated material as described above, the loader operator indicated that he heard a "whoosh" sound as he was reversing over the pile of excavated material and saw what appeared to be a "rock" being propelled from the left rear tire of the loader, striking Pulawa on the head. When the accident occurred, Pulawa was apparently standing approximately fifteen to twenty feet away from the loader. According to the loader operator, he later believed that the "rock" was "a half bag of concrete." Another OCC employee described the "rock" as having "pieces of cement bag embedded in it." During the discovery process, it was apparently revealed that the "rock" was "a 30-pound chunk of hardened cement" "in a cement bag with brown packaging and plastic wrapping." As a result of the accident, Pulawa sustained severe head injuries, including a depressed and open skull fracture.
On August 19, 1998, the plaintiffs filed a complaint against GTE, E.E. Black, and Morrison Knudsen Corporation/Walter & SCI Construction (USA) (Morrison Knudsen).5 On April 12, 2000, the plaintiffs filed a first amended complaint, adding M. Sakuma Electrical, Inc. (Sakuma), a construction company, as a defendant and dismissing Morrison Knudsen as a defendant.6 The plaintiffs alleged that the "rock" that struck Pulawa was "a piece of cement [that] originated from a discarded bag of hardened cement which was left in the area [of the accident] or abandoned." The plaintiffs further alleged:
8. Defendants GTE, E.E. Black and/or [Sakuma] performed work in the area [of the accident] or project site prior to [OCC]. Said [d]efendants negligently failed to pick up, clean up or remove the cement bag after completion of their work or portion of work at the job site.
9. Said [d]efendants knew or should have known that the failure to remove a cement bag, or properly clean up the job site, would create a hazardous condition or threaten the safety of other workers on the job site, and therefore the [d]efendants had the duty to remove the cement bag after completion of their portion of work.
The first amended complaint set forth two counts against GTE, E.E. Black, and Sakuma: (1) negligence (Count I); and (2) loss of consortium (Count II). The loss of consortium claim was asserted by Danelle Pulawa on behalf of herself and the Pulawas' two minor children.
On April 5, 2001, Sakuma moved for summary judgment, contending that there was no evidence that the trench excavated by OCC was in the same location where Sakuma had conducted an excavation project sometime in 1994, two years prior to the subject accident. Specifically, Sakuma claimed that "its project area was across the street from the site where [Pulawa] was working and where the cement bag was apparently uncovered." (Emphasis omitted.) On May 8, 2001, the plaintiffs filed a statement of no opposition to Sakuma's motion for summary judgment. On May 9, 2001, E.E. Black and GTE filed their memorandum in...
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