Wong v. Hawaiian Scenic Tours, Ltd.

• Citation: 642 P.2d 930,64 Haw. 401
• Decision Date: 24 March 1982
• Docket Number: No. 7047,7047
• Parties: Randolph W. T. WONG, Administrator of the Estate of Wesley Wai Leong Wong, Deceased; Richard J. H. Wong and Elsie K. A. Wong, individually, Plaintiffs-Appellees, v. HAWAIIAN SCENIC TOURS, LTD., a Hawaii corporation, doing business as Kaneohe School Bus Service, and John Does, Doe Partnerships and Doe Corporations I through X, Defendants, and City and County of Honolulu, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 930

642 P.2d 930

64 Haw. 401

Randolph W. T. WONG, Administrator of the Estate of Wesley Wai Leong Wong, Deceased; Richard J. H. Wong and Elsie K. A. Wong, individually Plaintiffs-Appellees, v. HAWAIIAN SCENIC TOURS, LTD., a Hawaii corporation, doing business as Kaneohe School Bus Service, and John Does, Doe Partnerships and Doe Corporations I through X, Defendants and City and County of Honolulu, Defendant-Appellant.

No. 7047.

Supreme Court of Hawai'i.

March 24, 1982.

Syllabus by the Court

1. The legislative modification of the doctrine of contributory negligence in 1969 sought to temper a phase of the common law deemed inconsistent with contemporary notions of fairness. Its purpose was to allow one partly at fault in an accident resulting in injury to be recompensed for the damages attributable to the fault of another if the former's negligence was not the primary cause of the accident.

2. The judicial construction of the comparative negligence statute of Wisconsin is not in harmony with the spirit and policy of the comparative negligence statute of Hawaii, and the Wisconsin construction cannot serve as a guide to the interpretation of the Hawaii law.

3. HRS § 1-17 provides that words appearing in a statute in the singular or plural number signify both the singular and plural numbers. Hence, the phrase "the negligence of the person against whom recovery is sought" as it appears in HRS § 663-31 is construed to mean "the negligence of the persons against whom recovery is sought."

Arthur Ripley, Jr., Honolulu (Edmund L. Lee, Jr., Deputy Corp. Counsel, Honolulu, on the briefs), for defendant-appellant.

Paul E. DiBianco, Honolulu (Darwin L. D. Ching, Honolulu, with him on the brief; Paul E. DiBianco, A Law Corp., Honolulu, of counsel), for plaintiffs-appellees.

Before RICHARDSON, C. J., NAKAMURA, J., MARUMOTO, Retired Justice, in Place of LUM, J., Disqualified, and OGATA and MENOR, Retired Justices, Assigned by Reason of Vacancies.

PER CURIAM.

The question presented for decision is whether the circuit court erred in applying our comparative negligence law, HRS § 663-31, as it read on May 2, 1975 when Wesley Wai Leong Wong was struck and fatally injured by a school bus owned by Defendant Hawaiian Scenic Tours, Ltd. (Hawaiian Scenic), a joint tort-feasor with Defendant-appellant City and County of Honolulu (the City). ¹ We conclude the court below was correct in permitting recovery against the City, despite findings by the trial jury that Wesley Wai Leong Wong's negligence was a causative factor in the fatal mishap and his share of the fault exceeded the City's. For in the aggregate, the negligence of the City and Hawaiian Scenic was greater than that of the decedent.

I.

The wrongful death action brought by Randolph W. T. Wong as administrator of the decedent's estate and by Richard J. H. Wong and Elsie K. A. Wong on behalf of themselves as parents of the decedent averred that the negligent operation of the school bus and the City's faulty adjustment and utilization of a traffic control device were responsible for Wesley Wai Leong Wong's death. The putative joint tortfeasors denied allegations of wrongdoing on their part and alleged the decedent's own negligence led to his death. The City further averred that if other negligent conduct was implicated, the bus company's negligence was the active and primary cause of the fatal accident. Plaintiffs-appellees, however, settled their claims against Hawaiian Scenic and proceeded to trial against the City alone.

At the close of trial before a jury, a special verdict premised on interrogatories propounded by the court was returned. The jury, inter alia, found the fatal event was brought on by the combined fault of the City, Hawaiian Scenic, and the decedent. It further ascribed six percent of the culpable negligence to the City, eighty percent to Hawaiian Scenic, and fourteen percent to the decedent. And its evaluation of the total damages accruing to plaintiffs-appellees amounted to $260,800, of which $100,000 was allocated to the decedent's estate and $160,800 to his parents. The City's post-trial efforts to have judgment entered in its favor despite the jury's verdict were overruled, and a judgment reflecting the foregoing findings was entered by the circuit court.

The City's principal thesis on appeal is that the clear, plain, and unambiguous provisions of the pertinent statute precluded the entry of judgment against a tort-feasor whose negligence was not as great as that of the decedent.

II.

A legislative perception of unfairness in the common law doctrine of contributory negligence led to the passage of our modified comparative negligence statute in 1969. ² Although the measure served to ameliorate the harshness of an aspect of the common law by permitting the recovery of tort damages by a plaintiff whose negligence was not as great as the defendant's, it did not deal specifically with a significant problem-how comparison of negligence should be effected in a situation where there were multiple defendants, each responsible in part for the injury. ³ The City urges us to follow the judicially adopted Wisconsin rule and compare the decedent's negligence with that of each defendant on an individual basis. ⁴ Plaintiffs-appellees argue we should measure the decedent's negligence against the aggregate negligence of the defendants as the courts of Arkansas and Massachusetts have done. ⁵

The City maintains our comparative negligence statute was derived from Wisconsin and we are thus obliged to follow the prior construction of the pertinent language by its highest court. We are reminded "(i)t is elementary that the adoption by the ... legislature ... of a statute of another jurisdiction carries with it the judicial interpretation of the statute by that jurisdiction. (Territory v. Ota, 36 Haw. 80; Carter v. Gear, 16 Haw. 242, aff'd 197 U.S. 348, 25 S.Ct. 491, 49 L.Ed. 787.)" In re Sawyer, 41 Haw. 270, 273 (1956). We do not doubt the pioneering Wisconsin legislation served as the prototype for the Hawaii law; ⁶ nor do we denigrate the value of the foregoing canon of statutory construction in an appropriate setting. Still, we cannot accept the interpretation of the Wisconsin law inasmuch as there are clear indications that our legislature adopted the statutory language but not the judicial gloss. ⁷

The legislative modification of the doctrine of contributory negligence in 1969 sought to temper a phase of the common law deemed inconsistent with contemporary notions of fairness. Its purpose was to allow one partly at fault in an accident resulting in injury to be recompensed for the damages attributable to the fault of another if the former's negligence was not the primary cause of the accident. But the Wisconsin statute as interpreted by the highest court of that state effectively forecloses a plaintiff's recovery of the full measure of damages ascribable to the negligence of others in some situations where his negligence is not the major causative factor. ⁸ Hence, the judicial treatment of the Wisconsin statute is "not in harmony with the spirit or policy of the laws" of Hawaii, and we reject it as a guide to interpretation. See note 7 supra. Moreover, we note that serious misgivings about the relevant construction have been registered by the Wisconsin court itself. ⁹

We believe this is an appropriate occasion for the application of HRS § 1-17, which provides inter alia, that words appearing in a statute "in the singular or plural number signify both the singular and plural number." ¹⁰ We thus construe the phrase "the negligence of the person against whom recovery is sought" to mean "the negligence of the persons against whom recovery is sought."

Affirmed.

1 On May 2, 1975 HRS § 663-31, since amended, provided as follows:

Contributory negligence no bar; comparative negligence; findings of fact and special verdicts. (a) Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.

(b) In any action to which subsection (a) of this section applies, the court, in a nonjury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:

(1) The amount of the...