Silva v. City and County of Honolulu

• Decision Date: 10 August 2007
• Docket Number: No. 27385.,27385.
• Citation: 165 P.3d 247
• Parties: Lorin SILVA and Carol Silva, individually and as personal representative of the Estate of Kevin Silva, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Agencies 1-10, Defendants.
• Court: Hawaii Supreme Court

165 P.3d 247

Lorin SILVA and Carol Silva, individually and as personal representative of the Estate of Kevin Silva, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Agencies 1-10, Defendants.

No. 27385.

Supreme Court of Hawai`i.

August 10, 2007.

[165 P.3d 248]

Dennis W. Potts, Honolulu, and Todd W. Eddins, on the briefs, for the plaintiffs-appellants Lorin and Carol Silva.

Moana A. Yost, Deputy Corporation, counsel (DCC), for the defendant-appellee City and County of Honolulu.

James Krueger, Haiku, for the amicus curiae Consumer Lawyers of Hawai`i.

Jane E. Lovell, DCC, for the amicus curiae County of Maui.

MOON, C.J., LEVINSON, NAKAYAMA, and DUFFY, JJ., and Circuit Judge CHANG, in place of ACOBA, J., Recused.

Opinion of the Court by LEVINSON, J.

The plaintiffs-appellants Lorin and Carol Silva [hereinafter, collectively, "the Plaintiffs"] appeal from the first circuit court's June 14, 2005 judgment, the Honorable Randal K.O. Lee presiding, in favor of the defendant-appellee City and County of Honolulu [hereinafter, "the County"] and against the Plaintiffs, effectively dismissing their complaint.

On appeal to this court, the Plaintiffs contend that: (1) Hawai`i Revised Statutes (HRS) § 663-3(b) (Supp.1997)<sup>1</sup> is the controlling statute of limitations in wrongful death actions against the County, not HRS § 46-72 (Supp.1998);<sup>2</sup> (2) in any case, the "Plaintiffs substantially complied with the provisions of HRS § 46-72"; (3) the notice period "should have been tolled until . . . a personal representative was appointed to represent . . . [the Plaintiffs' decedent son Kevin's] estate" [hereinafter, "the estate"]; and (4) "[t]he application of HRS § 46-72 to the instant case . . . violates the Equal Protection Clauses of . . . the Hawai`i Constitution and the . . . United States Constitution."

We conclude that the Plaintiffs' first three points are meritless, but on the basis of their fourth point, as discussed infra in section III.D, we vacate the circuit court's judgment and remand for further proceedings.

I. BACKGROUND

In this appeal, we consider whether the notice-of-claim requirement set forth in HRS § 46-72, supra note 2, as applied to the circumstances of this case, operates as a legal bar to the County's liability for Kevin's death.

On September 7, 2004, Carol filed a petition in the circuit court sitting in probate, the Honorable Colleen K. Hirai presiding, for adjudication of intestacy and appointment of a personal representative for the estate. Effective upon its January 21, 2005 order, the probate court granted Carol's petition and appointed her the estate's personal representative. On February 22, 2005, Lorin (individually) and Carol (individually and as the estate's personal representative) filed a complaint in the circuit court, the Honorable Randal K.O. Lee presiding, against, inter alia, the County for damages arising out of Kevin's death.

The Plaintiffs alleged that, on July 4, 2004, Honolulu Police Department (HPD) officers, "acting within the course and scope of their employment by" the County, arrested Kevin in the vicinity of Kpapa Neighborhood Park. The Plaintiffs further alleged the following facts: (1) that Kevin "sustained severe and life threatening physical injuries as a result of the conduct of one or more of the [HPD] officers who arrested him" and that "the police knew or should have known that he needed immediate medical attention"; (2) that Kevin, however, "was not provided with any medical treatment" until "his physical condition deteriorated further"; (3) that Kevin died the same day at Wahiaw General Hospital as a result of the injuries inflicted by the HPD officers and by unnamed Doe defendants and the officers' failure to provide Kevin with timely medical care; (4) that, on July 6 and 7, 2004, at least three articles in Honolulu newspapers discussed the incident and Carol's consequent grief; (5) that, on August 17, 2004, the Plaintiffs' attorney, Dennis W. Potts, wrote two letters to HPD Detective Sheryl Sunia, which stated in relevant part:

RE: My Client: Kevin Silva Date of Death: July 4, 2004

. . . .

We [(the Plaintiffs' counsel)] are writing this letter . . . due to our understanding that you are conducting an internal investigation at HPD into the circumstances surrounding the death of Kevin . . . on July 4, 2004 in Wahiaw[]. . . . [W]e have been retained by [Kevin]'s family to conduct an investigation into the circumstances surrounding his death. As part of this investigation we do intend . . . to review and/or listen to the HPD dispatch tapes relating to [Kevin]'s arrest, detention and ultimate death.

We are therefore writing this letter to request that these dispatch tapes not be destroyed or discarded and that they be held intact until . . . our review of these tapes.

. . . .

RE: My Client: Kevin Silva Date of Death: July 4, 2004

. . . .

. . . [T]he request made in my prior letter encompasses not only the dispatch tapes, but any and all communications, dispatch logs or printouts relating thereto . . .

(emphases in original); (6) that, on August 25, 2004, Potts wrote a letter to the County's then-corporation counsel, David Z. Arakawa, which read in relevant part:

RE: Kevin Silva; Date of Death: July 4, 2004

. . . .

. . . [W]e are investigating the circumstances surrounding the death of Kevin . . . in police custody . . . on July 4, 2004. We ha[ve] previously written to . . . Detective . . . Sunia, who is apparently conducting an internal investigation into the circumstances surrounding [Kevin]'s death, requesting that all HPD dispatch tapes, and any and all communications, dispatch logs or printouts relating thereto be preserved pending the completion of our investigation.

We are enclosing herewith the two letters that I sent to Detective Sunia in this regard.

. . . We are . . . making the same request of your office that we made of HPD . . . .

(emphasis in original); (7) that, on April 13, 2005, Potts sent a letter to the County's Department of the Corporation Counsel concerning Kevin's death and describing itself as a "notice of claim" within the meaning of HRS § 46-72, Kahale v. City & County of Honolulu, 104 Hawai`i 341, 90 P.3d 233 (2004), and Salavea v. City & County of Honolulu, 55 Haw. 216, 517 P.2d 51 (1973). Citing the Plaintiffs' complaint and his letters to Detective Sunia and Arakawa, supposedly attached, Potts asserted that

the attached documents provide you with all of the available information regarding [Kevin]'s death and the claims of [the e]state against the . . . County . . . which we have at the present time . . . . [T]he [e]state . . . is at this time seeking . . . $500,000.00 as . . . damages resulting from his death at Wahiaw[] General Hospital on July 4, 2004. [Kevin]'s death appears to have been caused by injuries that he received at K[ ]papa [Neighborhood] Park . . . as the result of an altercation with persons using that park as well as injuries that he received subsequent to his arrest caused by employees of [HPD]. These injuries included traumatic injuries to his head and body . . . caused by the manner in which he was restrained . . . . In addition, [the e]state is claiming that [Kevin] was not provided with timely medical care by employees of [HPD] once it became known or should have become known to them that he had sustained life threatening injuries . . . .

On March 22, 2005, the County filed a motion to dismiss the Plaintiffs' complaint on the ground, inter alia, that the Plaintiffs had not complied with HRS § 46-72. (Citing Kahale, 104 Hawai`i at 343, 90 P.3d at 235; Albert v. Dietz, 283 F.Supp. 854 (D.Haw. 1968); Oakley v. State, 54 Haw. 210, 220, 505 P.2d 1182, 1187 (1973) (Abe, J., concurring).)

On April 25, 2005, the Plaintiffs filed a memorandum in opposition to the County's motion, which advanced several alternative arguments: (1) that (a) their letters to Detective Sunia and Arakawa, their ostensible "notice of claim," "the highly publicized nature of [the] case," and/or HPD's Internal Affairs investigation complied with the notice requirement in and of themselves or (b) HRS § 46-72 should be liberally construed to recognize that the County was adequately "`protect[ed] . . . against fraud arising out of stale claims'" (emphasis omitted) (citing Cochran v. Pflueger Autos., Inc., 72 Haw. 460, 821 P.2d 934 (1991); Levi v. Univ. of Hawaii, 67 Haw. 90, 679 P.2d 129 (1984); Shibuya v. Architects Hawaii Ltd., 65 Haw. 26, 647 P.2d 276 (1982)); (2) that HRS § 46-72 was tolled pending appointment of a personal representative; (3) that HRS § 663-3(b), see supra note 1, which sets forth a two-year limitation period, is the controlling statute and that HRS § 46-72, which only concerns "injury" cases, is of no consequence to the present wrongful death matter (quoting Kahale, 104 Hawai`i at 346, 90 P.3d at 238); and (4) that HRS § 46-72, as applied to the Plaintiffs, contravenes the equal protection clauses of the United States and Hawai`i constitutions insofar as "no rational basis exists for the disparate treatment of claimants when a case of wrongful death involving the [County, as opposed to the state,] arises" (quoting Kahale, 104 Hawai`i at 353-54, 90 P.3d at 245-46 (Acoba, J., concurring and dissenting)).³

During a hearing conducted on May 4, 2005, the circuit court reasoned in relevant part as follows:

Kahale . . . overruled Salavea . . . and held that HRS § 46-72 provides the statute of limitations that governs tort claims against the counties . . . . The real question in this case is whether or not notice was actually given to the [County] within . . . six[]month[s] . . . . In Oakley . . ., the Supreme Court indicated that ["]the basic purpose of the statutory requirement of filing a written notice o[f] claim [ . . . ] is to inform the municipal authorities [`]when, where,...