Wemple v. Dahman
| Decision Date | 30 January 2004 |
| Docket Number | No. 21497.,21497. |
| Citation | 103 Haw. 385,83 P.3d 100 |
| Parties | Jade WEMPLE, a minor, by her Next Friend, Charles H.Y. DANG, Petitioner-Plaintiff-Appellant/Cross-Appellee, and Dawn Wemple, Plaintiff-Appellee/Cross-Appellee, v. Dean A. DAHMAN; Association of Apartment Owners of Summer Villa; and Fidelity Management, Inc., Respondents-Defendants-Appellees/Cross-Appellees, and Richard T. Yoshida and May H. Yoshida, Respondents-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., Respondents-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, Respondents-Third-Party-Defendants-Appellees/Cross-Appellees. |
| Court | Hawaii Supreme Court |
James J. Bickerton and William W. Saunders, Jr., Honolulu, On the briefs, for petitioner-plaintiff-appellant/cross-appellee Jade Wemple.
John T. Komeiji, Patsy H. Kirio, and Brian A. Kang, Honolulu, On the briefs, for respondents-defendants-appellees/cross-appellees Association of Apartment Owners of Summer Villa and Fidelity Management, Inc.
Lisa A. Ginoza and Christopher J. Cole, Honolulu, On the briefs, for respondents-defendants-appellees/cross-appellants Richard T. Yoshida and May H. Yoshida.
Dean E. Ochiai, Brenda Morris Hoernig, Shannon L. Wack, and Randall Y. Kaya, Honolulu, On the briefs, for respondents-third-party defendants-appellees/cross-appellees 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.
Ralph R. LaFountaine, Michael N. Tanoue, Honolulu, and Kara Moran, On the briefs, for respondents-third-party defendants-appellees/cross-appellees Hideo Yokota and Kiyoko Yokota.
Seth R. Harris, Deputy Corporation Counsel, On the briefs, for amicus curiae City and County of Honolulu.
Plaintiff-Appellant/Cross-Appellee Jade Wemple applied for a writ of certiorari to review the published opinion of the Intermediate Court of Appeals (ICA) in Wemple ex rel. Dang v. Dahman, 102 Hawai`i 27, 72 P.3d 499 (App.2002) [hereinafter, the ICA's opinion or Wemple I ]. The ICA's opinion, 102 Hawaiì 27, 72 P.3d 499 (2002) affirmed the judgment of the first circuit court1 granting the defendants' motion for summary judgment.2
Based on the following, we hold that the circuit court and the ICA erred in granting and upholding defendants' motion for summary judgment because there are genuine issues of material fact which should have been left to the jury.
This is a negligence case arising from a pedestrian-vehicle collision on October 23, 1991. Jade Wemple, then seven years old, ran out from behind a parked car onto a privately owned road adjacent to the Summer Villa Condominium [hereinafter, "SV"] and was struck by a pick-up truck driven by Dean Dahman. Wemple was seriously injured, and filed a lawsuit (by her next friend, Charles H.Y. Dang) together with her mother, Dawn Wemple [hereinafter collectively, the Plaintiffs], against: (1) Dahman, the driver; (2) AOAO; (3) Fidelity Management, Inc. [hereinafter, Fidelity], AOAO's property manager at the time of the accident; and (4) Richard T. Yoshida and May H. Yoshida, (the Yoshidas), Hideo Yokota and Kiyoko Yokota (the Yokotas), Kim Mau, and Gordon F. Liu and Annette K. Liu (the Lius), owners of properties abutting or located in the vicinity of the privately owned road. Hereinafter, all defendants will be collectively referred to as "Defendants," and all defendant property owners—that is, all defendants except Dahman—will be referred to as "Defendant Property Owners."
The Plaintiffs alleged that the Defendant Property Owners were negligent in their maintenance of the private roadway. Specifically, the Plaintiffs alleged that the Defendant Property Owners: failed to sign or otherwise mark the accident site as a pedestrian right of way; failed to place speed bumps, warning signs, or rumble strips on the private roadway; failed to enforce parking restrictions along the private roadway; and failed to take other reasonable steps to control the speed of vehicles along the private roadway. The Plaintiffs also alleged that unidentified Doe Defendants were negligent in parking their cars in an area of the privately owned road marked "no parking."
The Defendant Property Owners argue that they should not be held liable because they owed no duty to the Plaintiffs. They argue that there is a public easement over the private roadway; therefore, they argue, they had no control over the private roadway and owed no duty to maintain or repair the roadway or warn travelers of potential dangers.
The ICA related the relevant facts as follows:
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 [City and County of Honolulu (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 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. 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 [the Council of the City and County of Honolulu] had previously adopted a resolution authorizing the County to resurface privately owned roads that met certain criteria. [See discussion of County Council Resolution No. 81-252, infra.] ... 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 underlying the original road was initially divided among the [various] owners of real property.... The documents also indicate that the County has a fractional ownership...
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