Wemple ex rel. Dang v. Dahman

• Decision Date: 03 June 2002
• Docket Number: No. 21497.,21497.
• Citation: 102 Haw. 27,72 P.3d 499
• Parties: Jade WEMPLE, a minor, by her Next Friend, Charles H.Y. DANG, Plaintiff-Appellant/Cross-Appellee, and Dawn Wemple, Plaintiff-Appellee/Cross-Appellee, v. Dean A. DAHMAN, Association of Apartment Owners of Summer Villa, Fidelity Management, Inc., Defendants-Appellees/Cross-Appellees, and Richard T. Yoshida and May H. Yoshida, Defendants-Appellees/Cross-Appellants, and John Does 2-10, Doe Corporations 2-10, Doe Partnerships 1-10, Doe Governmental Entities 1-10, and Doe Unincorporated Associations 1-10, Defendants; and Association of Apartment Owners of Summer Villa and Fidelity Management, Inc., Third-Party Plaintiffs-Appellees/Cross-Appellees, v. Kim Mau, Gordon F. Liu and Annette K. Liu, individually and as Trustees of the Gordon F. Liu and Annette K. Liu Trust dated June 10, 1992, Hideo Yokota and Kiyoko Yokota, Third-Party Defendants-Appellees/Cross-Appellees.
• Court: Hawaii Court of Appeals

72 P.3d 499

102 Haw. 27

Jade WEMPLE, a minor, by her Next Friend, Charles H.Y. DANG, Plaintiff-Appellant/Cross-Appellee, and Dawn Wemple, Plaintiff-Appellee/Cross-Appellee, v. Dean A. DAHMAN, Association of Apartment Owners of Summer Villa, Fidelity Management, Inc., Defendants-Appellees/Cross-Appellees, and Richard T. Yoshida and May H. Yoshida, Defendants-Appellees/Cross-Appellants, and John Does 2-10, Doe Corporations 2-10, Doe Partnerships 1-10, Doe Governmental Entities 1-10, and Doe Unincorporated Associations 1-10, Defendants; and Association of Apartment Owners of Summer Villa and Fidelity Management, Inc., Third-Party Plaintiffs-Appellees/Cross-Appellees, v. Kim Mau, Gordon F. Liu and Annette K. Liu, individually and as Trustees of the Gordon F. Liu and Annette K. Liu Trust dated June 10, 1992, Hideo Yokota and Kiyoko Yokota, Third-Party Defendants-Appellees/Cross-Appellees.

No. 21497.

Intermediate Court of Appeals of Hawai`i.

June 3, 2002.

As Amended June 10, 2002.

Certiorari Granted July 11, 2002.

James J. Bickerton, Honolulu, Bickerton, Saunders Dang & Bouslog, for Jade (William W. Saunders, Jr. and Alan B. Burdick, Honolulu, with him on the briefs).

John T. Komeiji, Honolulu, Watanabe, Ing & Kawashima, for SV Defendants (Patsy H. Kirio, Honolulu, with him on the brief).

Christopher J. Cole, Honolulu, McCorriston, Miho Miller Mukai, for Non-SV Property Owners the Yoshidas (Richard B. Miller and Lisa M. Ginoza, Honolulu, with him on the briefs).

Brenda Morris Hoernig, Honolulu, Law Office of Dean E. Ochiai, for Non-SV Property Owners Mau and the Lius (Dean E. Ochiai, Leslie R. Kop, and Shannon L. Wack, Honolulu, with her on the brief).

Michael N. Tanoue, Honolulu, Matsumoto, LaFountaine & Chow, for Non-SV Property Owners the Yokotas (Ralph R. LaFountaine, Honolulu, with him on the brief).

BURNS, C.J., WATANABE, and FOLEY, JJ.

Opinion of the Court by WATANABE, J.

This negligence case arises from an October 23, 1991 accident in which Plaintiff Appellant/Cross-Appellee Jade Wemple (Jade), then seven years old, emerged suddenly from behind a van parked on a privately owned road (also referred to as "the road") that ran in front of the Summer Villa condominium (the SV), where she was temporarily residing with her grandmother, and was struck and seriously injured by a pick-up truck driven by Defendant-Appellee/Cross-Appellee Dean A. Dahman (Dahman).

Jade, by her next friend, Charles H.Y. Dang, and Plaintiff-Appellee/Cross-Appellee Dawn Wemple (Dawn), Jade's mother, (collectively, Plaintiffs) subsequently filed a lawsuit¹ against: (1) Dahman; (2) Defendants-Appellees/Cross-Appellees Association of Apartment Owners of the SV (AOAO) and Fidelity Management, Inc. (Fidelity), AOAO's property manager at the time of the accident (AOAO and Fidelity collectively, SV Defendants); and (3) the following owners of properties that abutted or were located in the vicinity of the privately owned road (collectively, Non-SV Property Owners): Defendants-Appellees/Cross-Appellants Richard T. Yoshida (Mr. Yoshida) and May H. Yoshida (collectively, the Yoshidas); and Third-Party Defendants-Appellees/Cross-Appellees Hideo Yokota and Kiyoko Yokota (the Yokotas), Kim Mau (Mau), and Gordon F. Liu and Annette K. Liu (the Lius). (SV Defendants and Non-SV Property Owners will hereafter be collectively referred to as Defendant Property Owners, and Dahman and Defendant Property Owners will hereafter be collectively referred to as Defendants.)

The difficult public policy issue we must decide in this case is whether the owners of a privately owned road that has been open to the general public for at least half a century but has never been statutorily dedicated or surrendered to the county have a duty to maintain the entire privately owned road in a condition reasonably safe for pedestrians and children known to play in the area and to warn travelers on the privately owned road that children may be playing in or crossing the privately owned road. We take judicial notice that in 1981, there were over five hundred of such privately owned roads in the City and County of Honolulu (the County) alone, many of which are major arteries or thoroughfares integral to the public road and transportation system in the County.²

We conclude that where a privately owned road has been impliedly dedicated to the general public as a road easement, is subject to state and county traffic control regulations, and is maintained or repaired by the county, no such duty exists on the part of the owners of the privately owned road since they have no control over the privately owned road. Accordingly, we affirm the February 7, 1995 order of the Circuit Court of the First Circuit (the circuit court), granting SV Defendants' second motion for summary judgment and Non-SV Property Owners' motion for joinder in SV Defendants' second motion for summary judgment.

We also affirm the circuit court's order denying the Yoshidas' motion for summary judgment, which was predicated on the Yoshidas' assertion that the Hawaii Recreational Use Statute (the HRUS), Hawaii Revised Statutes (HRS) chapter 520, immunized them from Plaintiffs' action.

BACKGROUND

A. The Road

The accident that prompted this lawsuit occurred on an unnamed, paved, privately owned road that intersects two perpendicular streets in the Kapahulu area of the County: Olokele Avenue, which runs north to south; and Winam Avenue, which runs east to west. The privately owned road begins on Olokele Avenue, travels diagonally northeast, and ends at Winam Avenue.

The privately owned road has apparently existed since at least prior to 1948 and was originally part of a longer road (the original road) that provided access to a now-defunct artesian well lot. The existence of the privately owned road is shown on a subdivision map included in the record on appeal. Additionally, a May 17, 1948 construction plan for the proposed extension of Olokele Avenue indicates that the extension of Olokele Avenue destroyed part of the original road and separated the privately owned road from the rest of the original road.

On the eastern side of the privately owned road are the properties owned or managed, from south to north, by the Lius, SV Defendants, and the Yoshidas. The Yokotas' property, which does not abut the privately owned road, lies to the east of the property on which the SV sits (the SV site). Mau's property, which also does not abut the privately owned road, appears to have formerly abutted that part of the original road that was destroyed by the Olokele Avenue extension project in 1948. A County sewer easement runs between the SV site and the Yoshidas' property.

Between Olokele Avenue and the western side of the privately owned road is a triangular landscaped area owned by the County. This triangular area is bisected by two five-foot-wide walkways that connect Olokele Avenue to the privately owned road and provide pedestrian access to the properties along the privately owned road. The "mauka³ walkway" leads to the portion of the privately owned road in front of the Yoshidas' property; and the "makai⁴ walkway" leads to the portion of the privately owned road in front of the SV site.

The privately owned road has always remained open to pedestrian and vehicular access by the general public, and no efforts have ever been made by Defendant Property Owners to limit use of the privately owned road to only those vehicles or pedestrians needing access to properties along the privately owned road. In 1983, because the triangular area had been neglected by the County and had become an eyesore and a hazard, with vehicles illegally parked and trash dumped there, AOAO leased the area from the County and landscaped it. AOAO also obtained permission from the County to erect a waist-high hedge and fence around the triangular area to prevent vehicles from parking there.

As part of improvements made to the triangular area, AOAO had three "no parking" signs installed on the portion of the triangular area directly fronting the SV. These signs enabled AOAO to keep the portion of the privately owned road between the SV site and the triangular area fronting the SV clear and passable for fire, police, ambulance, and resident and non-resident traffic. The SV resident manager helped to enforce these "no parking" signs by asking drivers to park their vehicles elsewhere or having violating vehicles towed away.⁵ Prior to 1986, AOAO's lease of the triangular area from the County was apparently canceled due to a technicality. For a short period of time after the lease expired, however, AOAO's gardener continued to maintain the entire triangular area and, thereafter, maintained only the area fronting the SV. The remainder of the triangular area was apparently maintained on a voluntary basis by an SV resident.

In 1986, the County Transportation Department advised AOAO that the "no parking" signs would be removed, unless AOAO obtained authorization from the County's Chief Engineer for the signs to remain. Accordingly, on August 5, 1986, AOAO's then-property manager wrote to the County's Chief Engineer, seeking such authorization. By a letter dated September 8, 1986, the County's Chief Engineer responded, "[W]e have no objections to the retention of the three `[n]o [p]arking' signs on the [County's] parcel[.]"

On July 11, 1990, AOAO's then-property manager requested that the County resurface the part of the privately owned road that fronted the SV. The County Council had previously adopted a resolution authorizing the County to resurface privately owned roads that met certain criteria. See footnote 2, above. The County responded to the request by resurfacing the entire road, not just the portion fronting the SV.

B. The Owners of the Privately Owned Road

It is not known who all the current owners of the privately owned road are. Documents in the record indicate that there are "various owners" and that fee simple ownership of the land...