Warshaw v. Rockresorts, Inc.

• Decision Date: 31 March 1977
• Docket Number: No. 5679,5679
• Parties: Ruth L. WARSHAW and Sam S. Warshaw, Plaintiffs-Appellants, v. ROCKRESORTS, INC., and Eastern Pacific, Inc., a Delaware Corporation dba Mauna Kea Beach Hotel, Defendants and Third-Party Plaintiffs-Appellees, v. VIKING CORPORATION OF SOUTH BEND, INDIANA, an Indiana Corporation, formerly known as Versal, Inc., Third-Party Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 428

562 P.2d 428

57 Haw. 645

Ruth L. WARSHAW and Sam S. Warshaw, Plaintiffs-Appellants, v. ROCKRESORTS, INC., and Eastern Pacific, Inc., a Delaware

Corporation dba Mauna Kea Beach Hotel, Defendants and Third-Party Plaintiffs-Appellees, v. VIKING CORPORATION OF SOUTH BEND, INDIANA, an Indiana

Corporation, formerly known as Versal, Inc.,

Third-Party Defendant-Appellee.

No. 5679.

Supreme Court of Hawai'i.

March 31, 1977.

Syllabus by the Court

1. Under HRS 622-5, the statutory business records exception ot the hearsay rule, if the evidence is relevant and if the statutory requirements for admissibility have been met, the admission of the evidence is within the discretion of a trial court.

2. A trial court would abuse its discretion by ruling that an entry based on facts observed and reported by one without a business duty to observe and report the facts is admissible as proof of the facts.

3. When an offer of proof includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected without commission of error.

4. Before evidence of previous accidents may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown by the proponent of the evidence that the condition under which the alleged previous accidents occurred were the same or substantially similar to the one in question. The strictness of this requirement of similarity of conditions is much relaxed, however, when the purpose of the offered evidence is to show notice, since all that is required here is that the previous accident should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident.

Hyman M. Greenstein, James A. Wagner, Honolulu, for plaintiffs-appellants.

William L. Fleming, Peter C. P. Char, Cades Schutte Fleming & Wright, Honolulu, for Rockresorts, Inc.

Joseph Schneider, Conklin & Schneider, Honolulu, for Viking Corp.

Before RICHARDSON, C. J., OGATA, J., and KAWAKAMI, Circuit Judge, for KOBAYASHI, J., disqualified, CHANG, Circuit Judge, for MENOR, J., disqualified, and KATO, Circuit Judge, for KIDWELL, J., disqualified.

RICHARDSON, Chief Justice.

This appeal presents the question of whether or not evidence of prior accidents was property excluded by the trial court. ¹

On the afternoon of February 12, 1971, Ruth Warshaw was seriously injured in a golf cart accident at the Mauna Kea Beach Hotel's golf course. She and her husband sought damages from Rockresorts, Inc., and Eastern Pacific, Inc., dba Mauna Kea Beach Hotel (hereinafter both corporations are referred to as Mauna Kea) under the theory of negligence with respect to the design of the golf course and the continued use of allegedly defective golf carts. She and her husband also sought damages from Mauna Kea and Viking Corporation of South Bend, Indiana (hereinafter Viking), the manufacturer of the golf cart, under the theories of breach of warranty and strict liability with respect to the rental and sale of the allegedly defective golf cart. ²

The case was tried and submitted to the jury under all of the Warshaws' theories. The jury found that neither Mauna Kea nor Viking was liable to the Warshaws. It additionally found that Ruth Warshaw was negligent and her negligence was a proximate cause of her injuries. Judgment was entered in conformity with the verdict. The following description of the accident will assist in understanding the discussion of the question presented.

On the day of the accident, Mrs. Garth, accompanied by Mrs. Warshaw, was driving on the golf cart path from the elevated tee of the 18th hole toward the fairway below. The path descended at a slope of seven to nine degrees and was approximately 500 feet long. Three ninety degree turns were located on the path, and each turn's outer radius was bordered by a lava rock wall. Five speed bumps were located across the upper portions of the path to require drivers to slow down.

The golf cart rented by the women from Mauna Kea had been purchased from Viking. It had three wheels, was powered by batteries, steered with a tiller and accelerated and breaked with a single 'L' shaped pedal pivoting at the convergence of the two sides of the 'L'. The cart was accelerated by applying foot pressure to the top of the pedal thereby disengaging an automatic internal expanding brake. After acceleration the cart was brought to a stop by releasing foot pressure from the top of the pedal. A quick release produced a quick stop while a gradual release produced a gradual stop. The cart could also be quickly stopped by applying heel pressure to the base of the pedal.

Mrs. Garth stopped at four of the five speed bumps and proceeded over each. The testimony of Mrs. Garth and Mrs. Warshaw as to what occurred at the final speed bump was conflicting. Mrs. Garth testified that Mrs. Warshaw attempted to show her how to negotiate the speed bump without stopping. She said that Mrs. Warshaw extended her left foot, touched the throttle, and the cart picked up speed. Mrs. Warshaw said she never placed her foot on the accelerator portion of the pedal.

Both women agreed as to what occurred after the cart passed the last speed bump. The cart picked up speed, and they attempted to stop it by heeling the pedal. After nothing happened Mrs. Garth yelled 'we have no brakes.' The cart glanced off the lava rock wall bordering the last turn's outer radius, and both women were thrown out of the cart.

I

During the pretrial conference the Warshaws sought permission to offer sixty-two accident reports into evidence. The reports were prepared by Mauna Kea's employees and described golf cart accidents that occurred between 1967 and the Warshaw accident. Each report was offered to prove that an accident occurred. All of the defendants objected on the grounds that the reports were irrelevant, immaterial, prejudicial, would unduly consume time and contained inadmissible hearsay. They additionally objected because the similarity of the prior accidents to the Warshaw accident could not be shown or could not be shown by competent evidence. The trial court ruled that the reports were inadmissible and indicated that its concern was about the objection based on hearsay and the Warshaws' failure to show sufficient similarity. We address the subsidiary question of whether the trial court erred in excluding the reports.

The Warshaws contended that the fact that each accident occurred was relevant to show that Viking golf carts were inappropriate for the golf course, the use of the carts on the course created a dangerous situation and Mauna Kea knew or should have known of the danger. We would concur if the conditions of the previous accidents were shown to be sufficiently similar to the conditions of the Warshaw accident. The degree of similarity required is discussed after our discussion of the exclusion of the reports on the ground that they contained inadmissible hearsay.

The Warshaws conceded that all the reports contained hearsay statements of a Mauna Kea employee, and many reports contained double hearsay, a statement of a person involved in a golf cart accident within a statement of a Mauna Kea employee. All the statements in each report were offered to circumstantially prove that an accident occurred. Each statement would have been circumstantial proof that an accident occurred only if it had been admitted for the truth of the matter asserted. But the Warshaws inconsistently claimed that statements of persons involved in golf cart accidents are not offered for the truth of the matters asserted. Because these statements were offered for no purpose other than to circumstantially prove that an accident occurred, we consider their admissibility for the truth of the matters asserted despite the Warshaws' inconsistent claim. Otherwise, these statements are immaterial, therefore inadmissible.

The Warshaws offered each report solely under the statutory business records exception to the hearsay rule. HRS § 622-5 (Supp.1975), ³ provides that:

A record of an act, condition, or event shall insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court or person having authority to hear, receive and examine evidence, the sources of information, method, and time of preparation were such as to justify its admission.

The term 'business' includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

This is the Uniform Business Records as Evidence Act (modified).

If Harold Ragland, Mauna Kea's director of golf activities, had been given the opportunity, he would have testified to the identity and mode of preparation of the reports. Ragland did testify that as a regular course of business his office was required to make and forward a report of every accident that occurred on the golf course. The reports served as verification of claims by or against Mauna Kea and promoted the efficient operation of the golf course. They were prepared soon after each accident. We conclude that, insofar as relevant, the reports satisfied the statutory requirements for admissibility, but the statute gives authority to a trial court to exclude the evidence if it is not of the opinion that the sources of information method and time of preparation were such as to justify its admission. Under the statute, if the evidence is relevant and if the statutory requirements for admissibility have been met, the admission of the evidence is within the discretion of a trial court. The trial court should consider the need for the evidence...