Struzik v. City and County of Honolulu

• Decision Date: 21 February 1968
• Docket Number: No. 4572,4572
• Citation: 50 Haw. 241,437 P.2d 880
• Parties: Antoinette F. STRUZIK, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU and Mr. and Mrs. John J. Toledo, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 880

437 P.2d 880

50 Haw. 241

Antoinette F. STRUZIK, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU and Mr. and Mrs. John J. Toledo Defendants-Appellees.

No. 4572.

Supreme Court of Hawai'i.

Feb. 21. 1968.

Syllabus by the Court

1. A defendant is liable for his negligence act although the negligence of another is also a substantial factor in causing injuries to a plaintiff, if his negligence was a proximate cause.

2. The issue of proximate cause is a question of fact for the jury, unless there is no conflict in the evidence and only one inference can be drawn from the facts, in which latter event it becomes the duty of the court to pass upon this question.

3. Under the facts of this case the issue of proximate cause was within the province of the jury.

4. Error committed in the trial court that was invited by a party cannot be urged in this court by that party.

5. The action of a trial judge on a motion for new trial is within his discretion and is reviewable only for abuse of discretion.

6. The Rules of Civil Procedure are to be liberally construed to promote justice, and a trial judge in the exercise of his discretion may depart from a literal application of Rule 51(e) when such action is necessary to prevent a miscarriage of justice and grant a new trial.

7. The owner of land abutting a public sidewalk, solely by reason of being an abutter, does not owe to the public a common law duty to keep the sidewalk in a safe condition.

8. A statute or an ordinance which requires an abutting owner to construct or maintain in proper repair a sidewalk adjoining his premises does not, in the absence of specific provisions imposing a tort liability to the public for noncompliance, impose upon him a duty to the public to comply with the statute, or subject him to damages for injuries sustained by a member of the public because of a defect in the sidewalk.

Norman Chung and Bert Kobayashi, Jr., Honolulu (Chung, Vitousek, Chuck & Fujiyama, Honolulu, of counsel, and Charles M. Tonaki, Honolulu, on the briefs) for plaintiff-appellant.

William Yim, Deputy Corp. Counsel (Stanley Ling, Corp. Counsel, and Roy Y. Kawamoto, Deputy Corp. Counsel, Honolulu, on the brief) for defendant-appellee City & County of Honolulu.

John A. Chanin and James S. Campbell, Honolulu (Smith, Wild, Beebe & Cades, Honolulu, of counsel), for appellees Toledo. Bernaldo D. Bicoy, Honolulu, for appellees Toledo, appeared but did not argue.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ. ABE, Justice.

Plaintiff-appellant stepped into a hole in the unpaved portion of a sidewalk area between the sidewalk and the street curb in the City and County of Honolulu, fell and suffered personal injuries.

She brought this action alleging that the City and County of Honolulu (hereinafter called the 'City'), Mr. and Mrs. Toledo and other defendants were under a duty to maintain the sidewalk area in a safe condition and that they negligently allowed a hole or depression to exist therein, as a result of which plaintiff was injured. The presence of other parties to this suit is not material to the disposition of this appeal.

The case was submitted to the jury with instructions which had been requested by appellant for special verdicts on specific issues. ¹ The jury thereupon found both the City and the Toledos to have been negligent. It further found that the negligence of the City was not the proximate cause of plaintiff's injuries and that the negligence of defendants Totedos was the sole proximate cause of such injuries. The Toledos alone were held liable for the injuries suffered by plaintiff, and a verdict was returned against them for the full amount of plaintiff's damages.

Plaintiff and defendants Toledos filed motions for judgment against the City, notwithstanding the verdict, and in the alternative, for a new trial. Plaintiff withdrew her motion for a new trial and a consolidated hearing on the motions was held. The trial judge denied both motions for judgment notwithstanding the verdict, but granted the Toledos a new trial.

On this appeal, appellant alleges error on the part of the trial judge in denying her motion for judgment against the City notwithstanding the verdict and in granting the Toledos' motion for new trial.

1. As to denial of motion for judgment against the City notwithstanding the verdict:

Appellant contends that the jury's special findings of negligence on the part of both the City and the Toledos are inconsistent with its findings that the negligence of the Toledos was the sole proximate cause of the plaintiff's injuries. She argues that both appellees had violated their duties with respect to the single depression into which she stepped. She also argues that where there is only one cause of an injury and two parties violate legal duties in allowing the cause to exist, and this violation results in injury, it is inconsistent to say that the negligence of one is, but the negligence of the other is not, the proximate cause of such injury.

As authority for that proposition, appellant cites Restatement of Torts, Section 439:

'If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.' (Emphasis added.)

That section states a well-settled rule of law that recovery for personal injuries does not depend on proof that the defendant's negligence was the sole cause of such injuries. A defendant is not relieved of liability for his negligent act although the conduct of another is also a substantial factor in bringing about the injuries suffered by the plaintiff. Kendrick v. Piper Aircraft Corporation, 265 F.2d 482, 485 (3d Cir.1959); Prosser, Torts, 3d ed., § 41, p. 243. It must be noted, however, that a necessary prerequsite to any such theory of liability is the element of proximate cause. This is to say that, while a defendant may be held liable for damages caused by his negligence despite the fact tht the conduct of another concurs in bringing about the harm, he may not be held liable unless his negligence is found, in the first place, to have been a proximate cause of the plaintiff's injuries. Negligence and proximate cause are, of course, separate and distinct elements and both must be proved to impose liability on a defendant. Mitchell v. Branch and Hardy, 45 Haw. 128, 363 P.2d 969 (1961); 65 C.J.S. Negligence § 104.

Further, appellant contends that the evidence before the trial court was sufficient for th judge to find as a matter of law that the negligence of the City was a proximate cause of plaintiff's injuries. As a general proposition, proximate cause is a question of fact for the jury. Ward v. Inter-Island S. N. Co., 22 Haw. 66 (1914). However, where there is no conflict in the evidence and only one inference can be drawn from the facts, e.e., where reasonable men could not differ on the issue, it becomes the duty of the court to pass upon the question of proximate cause as a matter of law. Carreira v. Territory, 40 Haw. 513 (1954).

The fact that liability could have been imposed on both defendants does not make such a finding mandatory. The jury in the instant case was instructed at the request of appellant that they could find the City negligent on either or both of the following two grounds: ² (1) its failure to have a sufficient staff to provide proper and reasonable care and continuing supervision of its sidewalks; or (2) its failure to discover and with reasonable diligence correct the defect in the sidewalk which caused plaintiff to fall and injure herself. The jury, under the instruction, may have found the City negligent only in failing to maintain a sufficient staff to provide proper and reasonable care and continuing supervision of its sidewalks. Indeed, the record contains evidence to sustain such a finding. The jury may also have found that there was no causal connection between the plaintiff's injuries and the City's failure to maintain a sufficient staff. Reasonable men can differ on the answer to the question whether such negligence was a proximate cause of the appellant's injuries. In this case, the issue of proximate cause was within the province of the jury and not of the trial judge. Carreira v. Territory, supra.

For the foregoing reasons, we hold that the trial judge committed no prejudicial error in denying plaintiff's motion for judgment notwithstanding the verdict.

It should also be noted that appellant had requested the two instructions in question. Even assuming that the verdict of the jury was erroneous, appellant, having invited the error by requesting the trial court to give those two instructions to the jury, should not be permitted to avail herself of the error. Condron v. Harl, 46 Haw. 66, 374 P.2d 613 (1962); Madden v. Madden 44 Haw. 442, 355 P.2d 33 (1960); Glover v. Fong, 42 Haw. 560 (1958).

2. As to granting a new trial to the Toledos:

Appellant also contends that the trial judge committed error in granting the Toledos' motion for a new trial in violation of Rule 51(e), H.R.C.P., the pertinent parts of which read as follows:

'Rule 51. Instructions to jury.

(e) INSTRUCTIONS AND OBJECTIONS. * * * No party may assign as error the giving or refusal to give, or the modification of, an instruction, * * * unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * *'

It should be noted that federal courts have held that this rule applies to motions for new trial as well as to questions of appellate jurisdiction. See Schirra v. Delaware, L. & W. R. Co., 103 F.Supp. 812 (D.C.Pa.1952); Rosenholm v. Farm Bureau Mut. Auto. Ins. Co., 7 F.R.D. 21 (D.C.Pa.1947); ...