***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Electronically Filed Supreme Court SCWC-29851 19-AUG-2013 10:39 AM
SCWC-29851
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
FRANCISCO ABADILLA, JR., Respondent/Plaintiff-Appellant,
vs.
SANFORD IWATA, Petitioner/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 29851; CIVIL NO. 07-1-36)
MEMORANDUM OPINION (By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)
We hold that inasmuch as the Circuit Court of the Third
Circuit (the court)1 granted summary judgment to Petitioner/
Defendant-Appellee Sanford Iwata (Defendant) apparently as to all
theories of liability and with respect to all his capacities
alleged in the amended complaint, in focusing on negligence and
on wilful and wanton misconduct in Defendant’s position as a co-
employee of Respondent/Plaintiff-Appellant Francisco Abadilla,
1 The Honorable Greg K. Nakamura presided. ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Jr. (Plaintiff), the Intermediate Court of Appeals (ICA) erred in
vacating summary judgment without determining whether summary
judgment was appropriately granted or not with respect to the
other said theories of liability and the other capacities of
Defendant.
Defendant seeks review of the March 15, 2013 ICA
judgment filed pursuant to its January 31, 2013 Memorandum
Opinion, and the Order of Correction filed on March 15, 2013,
vacating and remanding the Final Judgment filed by the court
entered on April 28, 2009.
I.
A.
The essential facts taken from the ICA’s opinion
follow.2 “[Plaintiff] was employed by Sanford’s Service Center,
Inc. (SSC). . . . SSC operated a rock quarry . . . and was in the
business of supplying gravel, cinder, and soil. [Defendant] was
the president and general manager of SSC and a co-employee of [Plaintiff]. [Defendant’s] duties included serving as a
supervisor, mechanic, job estimator, laborer, trainer, safety
compliance officer, equipment operator, and driver. [Defendant]
was responsible for safety training and compliance and took care
of ‘most of the maintenance and the field work.’ As the operator
of the rock quarry, SSC was governed by federal Mine Safety
2 For ease of reading, regular font is used for the long quotes in this section.
2 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Health Administration (MSHA) regulations, and [Defendant] held a
mining training certificate.” Abadilla v. Iwata, No. 29851, 2013
WL 377301, at *1 (App. Jan. 31, 2013) (mem.).
“As part of its business, SSC owned and used a[n] . . .
[Impactor] to crush larger rocks into smaller rocks or aggregate.
[Plaintiff] was trained by [Defendant] regarding the maintenance
of the Impactor. The Impactor crushed rocks as follows: Rocks
were fed by a chute into the inner chamber of the Impactor, which
contained a rotating impeller shaft to which metal bars [(known
as “blow bars”)] were attached. . . . [T]he rotating impeller
would hit the rocks against fixed breaker plates causing the
rocks to fracture into smaller pieces. The metal bars were held
in place with wedges or chocks designed to prevent them from
coming out during operation. The chamber was lined with high-
chrome tiles that were bolted down. While in operation, the
cover to the chamber was kept closed[.]” Id.
“During a prior incident which occurred several months before [Plaintiff] sustained his injuries . . . , the Impactor
malfunctioned and ‘exploded,’ causing major damage to the
Impactor.” Id. at *2. “After the explosion, [Plaintiff]
observed that the cover to the Impactor had opened up, and that
pieces of the bar assembly were ‘all over the place.’ Jack Lee
(Lee), an employee of SSC, believed that the explosion occurred
when one of the blow bars ‘got loose’ in the Impactor. As a
result of the malfunction/explosion, the impeller shaft, blow
bars, and other parts of the machine were cracked or damaged and
3 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
a metal piece attached to the impeller shaft had broken off.”
Id.
“There is no indication that [Defendant] or SSC sought
assistance from the manufacturer of the Impactor . . . or others
in determining the exact cause of the Impactor’s malfunction/
explosion. The damage to the Impactor was repaired in-house by
SSC with the assistance of an outside welder[.]” Id. “At
[Defendant’s] direction, [the welder] welded a metal piece . . .
onto the impeller shaft and fixed other cracks[.]” Id. “The
welds were not tested[.]” Id.
“[Plaintiff] and other employees were instructed to
weld worn locking wedges holding the metal bars in place, rather
than replacing them with new locking wedges and bolts.
[Plaintiff] warned [Defendant] that this practice was unsafe.”
Id. “[A] foreman at the company that previously owned the
Impactor . . . explained that welding the wedges . . . would
limit their usefulness and that the parts . . . would probably not ‘stay tight.’” Id.
“After the Impactor was placed back into service, . . .
the bearings holding the impeller shaft would run hot.
[Defendant] was aware of this[.]” Id. “[Defendant] instructed
[Plaintiff] to grease the Impactor every thirty minutes while the
machine was running to get a better coverage with the grease, and
so that the greasing would not slow down the process of crushing
rock. [Defendant’s] instruction was contrary to MSHA
regulations, which generally require that maintenance and repair
4 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
on a machine only be performed after the power is off[.]” Id.
“It was also contrary to the operating manual for the Impactor
[that] . . . warned against over-lubrication because ‘[t]oo much
lubrication will cause abnormally high operating temperatures.’
[Defendant] was not aware of these . . . MSHA regulations and the
operating manual.” Id.
“On the day that [Plaintiff] was injured, he was
greasing the Impactor while it was running in accordance with
[Defendant’s] instructions. . . . [T]he Impactor again ‘exploded’
and metal parts from within the Impactor flew outside the
machine. [Plaintiff] was hit in the stomach by metal parts or
pieces that broke off and were expelled from the Impactor,
allegedly causing severe bodily injuries.” Id. at *3. A co-
worker “observed that the cover to the Impactor had been blown
open during the explosion. Metal parts . . . to the impeller
shaft had broken off, and . . . metal pieces . . . of the blow
bars as well as the wedges or chocks, were outside the machine on the ground. [The co-worker] concluded that a blow bar that came
loose or cracked caused the Impactor to explode, because a metal
piece that fell inside the Impactor would cause damage to the
machine.” Id. “Prior to the explosion . . . one or two of the
locks designed to hold the cover to the Impactor in place were
missing or broken. According to [Plaintiff], . . . the parts
that had been welded after the prior malfunction incident came
apart while the Impactor was running.” Id.
5 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
B.
Plaintiff filed an amended complaint on March 17, 2008.
In pertinent part, the complaint stated: Count I
2. [Defendant] has been . . . employed by [SSC]. . . . . 8. Defendants3 knew or should have known on and prior to May 17, 2005, that the impactor machine used by [Plaintiff] on property under their ownership and/or possession and/or control was mechanically unfit for use and was unsafe. The injuries and damages alleged in paragraph 7, above, occurred as a direct and legal result of Defendants’ negligence, jointly and severally, in providing a defective impactor machine for use by [Plaintiff] and/or said Defendants’ negligence, jointly and severally, in permitting a hazard known to them to exist on property under their ownership and/or possession and/or control. . . . .
Count III
13. Plaintiff incorporates by reference the allegations contained in Counts I and II, above. 14. At all times material to this Complaint, [Defendant] and [Plaintiff] were employed by [SSC] and were co-employees. 15. At all times material . . . [Defendant] was President of [SSC], and was charged with responsibility for providing inspection and/or maintenance and/or repair of heavy equipment and machinery, including the subject impactor machine[.] 16. At all times material . . . [Defendant] was responsible for supervising [Plaintiff] and for ensuring proper safety procedures were followed in the operation, maintenance and repair of the heavy equipment and machinery, including the [impactor.] 17. [Defendant] and [Doe] were also responsible . . . to ensure that operators of heavy equipment and machinery used by [SSC] were properly trained to operate heavy equipment and machinery. 18. [Defendant] . . . negligently failed to properly inspect and/or maintain and/or repair the [impactor] and/or to ensure that only properly trained personnel operated the [impactor.] 19. As a direct and legal result of the negligence of [Defendant] and/or Doe . . ., [Plaintiff] . . . suffered . . . injuries and damages[.] . . . .
Count V
22. Plaintiff incorporates by reference the
3 Other “Defendants” referred to unnamed “Doe” defendants.
6 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
allegations contained in Counts I-IV, above. 23. The above described conduct of [Defendant] and/or [Doe] was committed recklessly and/or wantonly and/or in a grossly negligent manner and/or with a conscious indifference to the safety of [Plaintiff.]
(Emphases added.)
II.
1.
On the motion for summary judgment as to Count I, Defendant argued that pursuant to HRS § 386-8 (1993)4 and Iddings
v. Mee-Lee, 82 Hawai#i 1, 919 P.2d 263 (1996), “employer immunity
from negligence actions . . . is furthered by extension of
immunity to co-employee suits based on negligence[,]” and thus,
Defendant, as a co-employee, was immune from suit by Plaintiff.
(Emphasis omitted.) Additionally, Defendant submitted an
affidavit indicating “the impactor . . . is owned by [SSC,]” “he
did not provide the impactor . . . to [Plaintiff,]” and “the
property upon which [Plaintiff] . . . was allegedly injured was
owned, possessed and/or controlled by [SSC.]” Plaintiff briefly responded as to Count I that “[t]o
the extent that [Defendant] is moving to dismiss any claims other
than those based on negligence of a co-employee, he should be
denied.”
4 HRS § 386-8 states, in relevant part, that “[a]nother employee of the same employer shall not be relieved of his liability as a third party, if the personal injury is caused by his wilful and wanton misconduct.”
7 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
In his Reply, Defendant pointed out that as to “claims
against [Defendant] . . . on his alleged negligence as a co-
employee[, Defendant] does not oppose the dismissal of such
claims pursuant to [HRS] § 386-8[,]” and that Plaintiff “failed
to come forward with specific facts showing . . . there remains a
genuine issue of fact with respect to” Defendant “not provid[ing]
the impactor[,]” and Defendant “not own[ing], possess[ing],
and/or control[ling] the property on which the accident
occurred.”
2.
On the motion for summary judgment as to Count III,
Defendant maintained that based on Iddings, he had immunity from
suit as a co-employee for negligently (1) inspecting,
maintaining, or repairing the impactor, and (2) ensuring properly
trained personnel operated the impactor. Defendant also argued
that the allegation that as president of SSC, Defendant was
liable for the conduct described above in (1) and (2), and for (3) supervising Plaintiff, and (4) ensuring safety procedures was
followed in the operation, maintenance, and repair of the
machinery, was barred by case law.
In his Memorandum, Defendant stated that “[c]ourts
around the country have ruled that supervisory employees cannot
be sued for a failure to provide a safe work place to the injured
employee. The employer owes a non[-]delegable duty to provide a
safe work environment. . . . The duty of proper supervision is a
8 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
duty owed by a corporate officer or supervisory employee to the
employer, not to a fellow employee.”
According to Defendant, “[t]he rationale of this
principle ‘is that workers’ compensation is the exclusive remedy
against an employer and, if there is a failure of an officer or
employee to perform a duty owed to the employer, the employee’s
recourse is solely against the employer. When an officer or
supervisor fails to perform the employer’s duty, the failure is
that of the employer, not the officer or supervisor.’” (Quoting
Laffin v. Chemical Supply Co., 253 N.W.2d 51, 53 (Wis. 1977).)
Defendant thus maintained he was entitled to summary judgment
because any failures must be attributable to SSC, and not
In response, Plaintiff maintained that “Defendant
undertook certain responsibilities that transcended his duties as
a corporate officer.” Defendant’s Response to Interrogatory
states that “[his] duties and responsibilities are Mechanic (registered), supervisor . . . , trainer . . . [and] [s]afety
compliance.” (Emphases omitted.) Additionally, a report by SSC
to the MSHA states that Defendant is the “Person with Overall
Responsibility for a Health and Safety Program in All of the
Operator’s Mines.”
In a further interrogatory, Defendant answered that he
was one of the persons “responsible for the inspection and/or
maintenance and/or repair of the subject machine[.]” Emphasis
omitted.) According to Plaintiff, Defendant “was the employee of
9 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
SSC who had specific, admitted responsibilities [for] which
Plaintiff is alleging he was grossly negligent[.]”
With respect to the non-delegable duty of providing a
safe workplace, Plaintiff contended that Athas v. Hill, 476 A.2d
710 (Ct. App. Md. 1984), cited by Defendant, holds that “if a
corporate office or supervisory employee is also a coemployee,
the injured employee may maintain an action against the officer
or employee. But if the officer or supervisor is merely acting
on behalf of the employer in his capacity as a corporate officer,
a personal action against him may not be maintained.”5 He also
stated that Kruse v. Schieve, 213 N.W.2d 64 (Wis. 1973), cited by
Defendant, indicated that “‘[i]f the corporate officer . . . had
not personally directed the particular operation to be done in a
particular manner, there would have been no basis for holding
that he had become a coemployee and owed a common-law duty to a
fellow employee under the circumstances.’” (Quoting Kruse, 213
N.W.2d at 68.) On December 8, 2008, the court granted Defendant
summary judgment on Counts I and III.
In his Motion for Summary Judgment on Count V,
Defendant argued that to impose punitive damages against
Defendant, “Plaintiff must prove by clear and convincing
evidence, that there was a positive element of conscious wrong
5 The quote in Athas could not be located based on the citation.
10 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
doing, on the part of Defendant.” According to Defendant,
“Plaintiff does not allege any positive element of conscious
wrongdoing” because Plaintiff alleges negligent acts, negligent
omissions, and carrying on abnormally dangerous activity.
(Emphasis in original.) Further, Defendant reiterated that he
did not provide the impactor, own or possess the property on
which the incident took place, and was not responsible for
fulfilling the non-delegable duty of SSC to provide a safe place
to work or safe machinery.
In his Memorandum in Opposition, Plaintiff maintained
that, based on the court’s Instruction No. 8.12, a defendant is
subject to punitive damages when he “acted intentionally,
willfully, wantonly, oppressively, or with gross negligence.”
Further, Instruction No. 8.13 defines “wilful” as,
inter alia, “indifference to . . . natural consequences.”
Plaintiff asserted that Defendant was indifferent to the natural
consequences of welding broken parts rather than using new parts, failing to disclose to the manufacturer’s representative the
prior explosion and makeshift repairs, failing to disclose to the
MSHA inspector the prior explosion, and ordering greasing of the
impactor while it ran.
Attached to Plaintiff’s memorandum was a declaration by
Plaintiff which indicated Defendant had contact with Plaintiff in
connection with the incident, and that welding used parts caused
the impactor to explode. The declaration stated, in part, that:
11 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
5. [Defendant] showed [Plaintiff] how to apply grease while the impactor was running, and in fact, ordered me to do so. 6. [Defendant] told [Plaintiff] to grease the impactor while it was still running so that it would not slow down the process of crushing rock. . . . . 8. Prior to [Plaintiff’s] accident, the impactor exploded resulting in the shaft, blow bars and other parts breaking. . . . 9. [Defendant] also instructed me and other employees to weld worn locking wedges in place instead of replacing the used and worn locking wedges and its locking bolts with new and safer locking wedges and bolts after [Plaintiff] informed [Defendant] on numerous occasions that these new wedges and bolts were needed because the worn parts were unsafe. . . . 10. After the aforesaid parts were welded, the impactor did not run smoothly but would vibrate and the bearings holding the shaft would run hot. [Defendant] was aware of this. That is the reason why [Defendant] instructed [Plaintiff] to apply grease to the machine continuously . . . . 11. . . . photographs of the impactor . . . showed the shaft, blow bars and other parts of the impactor discussed above after the explosion. Those photographs show that the shaft assembly broke where it had previously been welded by the other employee and the outside welding contractor . . . . . . . . 17. In [Plaintiff’s] opinion, the cause of the explosion was because the parts that were previously repaired by welding came apart while the impactor was running.
In his Reply, Defendant contends “[Plaintiff] fail[ed]
to respond by affidavit or otherwise setting forth specific facts
showing a genuine issue of material fact with respect to his
claim for punitive damages[,]” and that instructions are not
court-approved. (Citing K.M. Young & Assocs. v. Cieslik, 4 Haw.
App. 657, 675 P.2d 793 (1983).) Rather, he maintains “[i]n
contrast, to justify an award of punitive damages, ‘a positive
element of conscious wrongdoing is always required . . .,’”
(citing Masaki v. General Motors Corp., 71 Haw. 1, 7, 780 P.2d
566, 570-571 (1989)), and Defendant “did not own or provide the .
. . impactor[,]” “did not own, possess or control the property
12 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
upon which the accident occurred[,] and “[t]he duties that were
alleged breached . . . as the basis of Count III . . . were non[-
]delegable duties of [SCC] and . . . not duties . . . owed by
[Defendant].”
On December 8, 2008, the court granted summary judgment
in favor of Defendant as to Count V.
III.
The ICA issued its Memorandum Opinion on January 31,
2013, and vacated the court’s grant of summary judgment against
Plaintiff as to Counts I, III, and V of the First Amended
Complaint. Abadilla, 2013 WL 377301, at *1. In its analysis,
the ICA first stated that there was no dispute that Plaintiff
sustained a work-related injury and Defendant was Plaintiff’s co-
employee. Id. at *4. Under Iddings, the ICA noted, Hawai#i’s
workers’ compensation law, HRS Chapter 386, bars suits by an
injured worker against co-employees on a theory of negligence.
Id. However, it held that, also pursuant to Iddings, HRS §§ 386-5 (1993) and 386-8 do not bar suit and establishment of
liability on a theory of wilful and wanton misconduct. Id.
Thus, the ICA focused in its decision on “whether there were
genuine issues of material fact concerning whether Plaintiff was
injured as the result of [Defendant’s] wilful and wanton
misconduct.” Id.
The ICA reviewed the test set out by this court in
Iddings for the “wilful and wanton misconduct” exception to co-
employee immunity in HRS § 386-8, and applying the test to the
13 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
facts of the instant case, as well as analogizing to the facts in
Iddings, the ICA concluded that “when the evidence is viewed in
the light most favorable to Plaintiff, there were genuine issues
of material fact regarding whether [Defendant] engaged in wilful
and wanton misconduct . . . .” Id. at *5. The ICA thus held,
“the [ c]ourt erred in granting summary judgment in favor of
[Defendant] on Counts I and III.” Id. at *7.
The ICA next addressed Count V, quoting this court’s
statement in Iddings that “‘tortious conduct meriting the
imposition of punitive damages and tortious conduct falling
within the exception to co-employee immunity in HRS § 386-8 are
measured by similar terms[.]’” Id. at *7 (quoting Iddings, 82
Hawai#i at 9 n.6, 919 F.2d at 271 n.6). On this basis, the ICA
concluded that “[b]ased on our analysis that there were genuine
issues of material fact regarding whether [Defendant] engaged in
wilful and wanton misconduct which caused [Plaintiff’s] injuries,
we conclude that there were also genuine issues of material fact regarding [Plaintiff’s] claim for punitive damages.” Id.
The ICA vacated the court’s judgment as to Counts I,
III, and V. Id.
IV.
Defendant presents the following questions in his
Application: 1. Whether the ICA erred in vacating the entry of judgement against [Plaintiff] on Count I (negligent providing a defective impactor machine and negligent permitting a hazard known to exist on the premises) of the first amended complaint.
14 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
2. Whether the ICA erred in vacating the entry of judgment against [Plaintiff] on Count III (negligent failed to properly inspect and/or maintain and/or repair the subject impactor machine and negligent failed to ensure that only properly trained personnel operated the subject impactor machine) of the first amended complaint.
3. Whether the ICA erred in vacating the entry of judgment against [Plaintiff] on Count V (punitive damages) of the first amended complaint.
On April 29, 2013, Plaintiff filed an “Answer” which very briefly and generally argued that Defendant failed to cite
“grave errors of law or fact or obvious inconsistencies with
controlling case law, [and that] Defendant essentially argued”
the ICA “did not interpret or apply Iddings[], 82 Hawai#i 1, 919
P.2d 263 [], as Petitioner argued.”
On May 6, 2013, Defendant filed a Reply essentially
reiterating his positions before the court and the ICA.
V.
The standard to apply on a motion for summary judgment
is as follows: Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.
Ralston v. Yim, 129 Hawai#i 46, 55-56, 292 P.3d 1276, 1285-86
(2013) (quoting First Ins. Co. of Hawai#i v. A & B Props., Inc.,
15 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
126 Hawai#i 406, 413–14, 271 P.3d 1165, 1172–73 (2012)) (emphasis
added)(citations and brackets omitted). “‘On appeal, the
standard of review for the granting of summary judgment is
identical to that applicable to the trial court’s consideration
of the motion.’” Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu)
Ltd. P’ship, 115 Hawai#i 201, 211, 166 P.3d 961, 971 (2007)
(quoting Lansdell v. County of Kaua#i, 110 Hawai‘i 189, 194, 130
P.3d 1054, 1059 (2006)) (citation omitted). Thus, “in reviewing
summary judgment decisions an appellate court steps into the
shoes of the trial court and applies the same legal standard as
the trial court applied.” Id. (quoting id.) (other citation
omitted).
VI.
With respect to the first question, Defendant makes
three arguments concerning Count I.
Defendant first argues that he “did not provide the impactor machine for use by [Plaintiff] or own the property on
which it was operated.” According to Defendant, Plaintiff
“concedes that he was employed by SSC and that the subject . . .
machine was owned by SSC at the [relevant] time[.]” [Id.]
Defendant “did not provide the . . . machine for use by
[Plaintiff]” and Defendant “did not own, possess or control the
property on which [Plaintiff] was working[,]” but was “possessed
and/or controlled by SSC, [Plaintiff’s] employer.” Indeed, the
16 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
amended complaint alleged that at the time of the incident the
“machine [was] owned by [SSC] which was being used to crush rock
on property owned by Doe Defendants.” Thus, Defendant is correct
insofar as the complaint did not allege that Defendant, in his
individual capacity, owned the machine. Rather, it was averred
that SSC owned the machine and that “Doe Defendants” rather than
[Defendant] owned the premises.
The ICA did not determine whether there were any
genuine issues of material fact regarding Defendant’s declaration
that he did not own the impactor, that he did not provide the
impactor, and that he did not own or possess the property on
which the incident took place, in connection with the
allegations. If there were no genuine issues of material fact
regarding these issues, then Defendant would be entitled to
summary judgment as to such claims of liability. Thus, insofar
as the ICA vacated summary judgment, see Abadilla, 2013 WL
377301, at *7, it did so without deciding to what extent such acts were encompassed within its holding. The ICA did not make
any determination as to whether there were genuine issues of
material fact or if these issues were determined by law in
vacating the court’s summary judgment order as to Count I in its
entirety.
Second, Defendant argues “[HRS] § 386-8 precludes
claims for negligence against [Defendant]” because Plaintiff and
17 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
Defendant “were employed by SSC and were co-employees.” He cites
to that part of the statute which reads as follows: When a work injury for which compensation is payable under this chapter has been sustained under the circumstances creating in some person other than the employer or another employee of the employer acting in the course of his employment a legal liability to pay damages on account thereof; the injured employee or his dependents . . . may claim compensation under this chapter and recover damages from such third person.
(Emphasis in original) (Citing HRS § 386-8). Further, he states
that the Hawai#i Supreme Court has declared that: [O]ne of the primary purposes underlying the implementation of a workers’ compensation scheme in Hawai#i was to eliminate suits based on negligence in the work-place and to spread the costs of work-related injuries over the industry.
(Citing Iddings v. Mee-Lee, 82 Hawai#i 1, 7-8, 919 P.2d 263, 269-
270 (1996).)
Defendant maintains that “since [Plaintiff’s] claims in
Count I against his co-employee [Defendant] are based solely on
[Defendant’s] negligence[,]” “[t]he ICA erred in vacating the
entry of judgment against [Plaintiff] on Count I[.]” To the
contrary, the ICA held that Defendant, as a co-employee of Plaintiff, was protected from liability based on a theory of
negligence. Abadilla, 2013 WL 377301, at *7. However, the ICA
made no separate determination as to whether a genuine issue of
material fact existed regarding whether Defendant was liable to
Plaintiff based on a theory of negligence in a capacity other
than that as co-employee, such as President of SSC or owner of
the land where the incident occurred.
18 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
C.
Third, Defendant alleges he “is entitled to judgment
with respect to Count I” on the ground that “any genuine issue of
material fact related to . . . the alleged improper repair and
maintenance of the Impactor and the alleged improper instruction
to grease the machine while running is not pertinent to [the]
allegation in Count I . . . and permitting a [] hazard . . . on
property allegedly under his ownership, possession, or control.”
However, the ICA did not determine whether there were genuine
issues of material fact regarding whether Defendant owned the
impactor, provided the impactor to Plaintiff, or owned or
possessed the property in question or if these issues were
determined by law in its vacation of the court’s summary judgment
order as to Count I in its entirety.
VII.
With respect to the second question, Defendant
maintains “[t]he ICA erred in vacating the entry of judgment against [Plaintiff] on Count III[.]” His first contention is
that HRS § 386-8 precludes claims for negligence with respect to
“inspect[ing] and/or maintain[ing] and/or repair[ing] the . . .
machine; and/or ensur[ing] . . . properly train[ing] personnel
[who] operated the . . . impactor[.]” Defendant points out that
Plaintiff “merely asserts a claim for negligence in Count II” and
Defendant, “as a co-employee of [Plaintiff], is immune from
19 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
negligence actions.” (Quoting Iddings, 82 Hawai#i 1, 919 P.2d
263.)
Additionally, according to Defendant, Plaintiff
“alleges in Count III” that Defendant, as president of SSC, “was
responsible for carrying out the employer’s general obligation of
providing a reasonably safe place to work and furnish reasonably
safe . . . machinery.” As noted before, Defendant maintained
that “‘workers’ compensation is the exclusive remedy against an
employer and, if there is a failure of an officer or employee to
perform a duty owed to the employer, the employee’s recourse
[such as plaintiff’s] is solely against the employer [such as
SSC].’” (Citing Laffin, 253 N.W.2d at 53.) Thus, Defendant
argues the “supervisory employees cannot be sued for a failure to
provide a safe work place to the injured employee.” “[T]he
duties [Plaintiff] alleges that [Defendant] breached were duties
owed by SSC and not a co-employee.”
This argument was raised in Defendant’s memorandum in support of his motions for summary judgment at trial and in his
Answering Brief before the ICA. However, the ICA did not decide
whether genuine issues of material fact existed as to this
defense or whether the defense failed as a matter of law in
vacating the court’s summary judgment order in its entirety.
Further, with respect to Count III, Defendant argues
that Plaintiff’s “arguments of wilful and wanton misconduct on
the part of [Defendant] is misplaced.” Defendant asserts that
20 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
“Defendant’s knowledge of the risk of injury to [Plaintiff]
stemming from the alleged improper repair and maintenance of the
Impactor and the alleged improper instruction to . . . grease the
machine while running has no bearing on this case because there
is no evidence” that the alleged misconduct “caused the machine
to malfunction.” According to Defendant, he “established that
there was no evidence to support [Plaintiff’s] assertion that”
these matters “caused the Impactor to malfunction,” because
Plaintiff presented no expert testimony or evidence to establish”
liability that these matters “caused the Impactor to
malfunction.”
Defendant declares that “[Plaintiff’s] concession that
he essentially did not know whether the repair or maintenance of
the machine caused his injuries were made after the trial court
initially heard [Defendant’s] motion for summary judgment and
gave [Plaintiff] approximately 5 months to supplement his
position[.]” Rather, Defendant points out that Plaintiff “relies on his own lay opinion that ‘the cause of the explosion was
because the parts that were previously repaired by welding came
apart while the impactor was running.’”
This argument was raised before the court in
Defendant’s memorandum in support of his motion for summary
judgment and in Defendant’s Answering Brief before the ICA.
However, the ICA did not expressly determine whether genuine
issues of material fact remained as to this defense, or whether
21 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
the defense failed as a matter of law in vacating the court’s
summary judgment order as to Count III in its entirety.
VIII.
Finally, Defendant asserts “the ICA erred in vacating
the entry of judgment against [Plaintiff] on Count V (punitive
damages).” As to this claim, Defendant argues that Plaintiff
“does not allege a positive element of conscious wrongdoing on
the part of [Defendant].” Defendant maintains a “claim of wilful
and wanton misconduct” is “[in]sufficient to preserve . . .
punitive damages.” Moreover, Defendant declares Plaintiff is
“incapable of presenting evidence to support his claim of wilful
and wanton misconduct” by Defendant on the grounds set forth
above.
Based on Iddings, wilful and wanton conduct of a co-
employee may give rise to punitive damages. Iddings, 82 Hawai#i
at 8, 919 P.2d at 270. Accordingly, as to Count V, the ICA did
not gravely err in deciding summary judgment must be vacated as to that count inasmuch as the ICA decided genuine issues of
material fact existed for such conduct.
IX.
The court entered summary judgment orders on Counts I,
III and V. Accordingly, the court orders granted summary
judgment for Defendant on all theories of liability and in all
capacities alleged in the amended complaint with respect to the
said counts. In its holding, the ICA vacated the summary
22 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
judgment orders in their entirety. Abadilla, 2013 WL 377301, at
*7. However, the ICA only decided that there were genuine issues
of material fact regarding the alleged wilful and wanton conduct
of Defendant in his capacity as a co-employee. Presumably, this
is because the ICA determined that under Iddings, HRS § 386-8
allowed actions against a co-employee for wilful and wanton
misconduct. Id. at *5.
Hence, the ICA did not decide whether genuine issues of
material fact existed or not regarding the other theories of
liability alleged and other capacities in which Defendant acted,
as alleged in the amended complaint.6 Yet, the ICA vacated the
entirety of the orders granting summary judgment on Counts I and
III. See id., at *7. In doing so, the ICA did not address, for
example, Defendant’s argument that he was not liable as an
officer or as a supervisor for furnishing a safe place to work
and reasonably safe machinery, or that there was no expert
testimony that the alleged acts of Defendant caused the Impactor to malfunction. As to this last defense, it is also unclear
whether the question of wilful and wanton misconduct would be
abrogated by the question of causation, i.e. whether the conduct
of Defendant was not the cause of the impactor exploding, as
posed by the Defendant. Therefore, the case is remanded to the
6 Defendant was “the president and general manager of SSC and co- employee of [Plaintiff],” who served as “supervisor, mechanic, job estimator, laborer, trainer, safety compliance officer, equipment operator, and driver[,]” and “responsible for safety training and compliance and . . . ‘most of the maintenance and the field work.’” Abadilla, 2013 WL 377301, at *1.
23 ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
ICA to decide, wilful and wanton liability aside, 1) what other
theories of liability, if any, were subject to summary judgment
and 2) in what capacities, that of co-employee aside, Defendant
was entitled to summary judgment, if any.
DATED: Honolulu, Hawai#i, August 19, 2013.
Gregory K. Markham, /s/ Mark E. Recktenwald Keith K. Kato, for petitioner /s/ Paula A. Nakayama
Steven K. Hisaka, /s/ Simeon R. Acoba, Jr. for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack