Chambers v. City and County of Honolulu

406 P.2d 380, 48 Haw. 539, 1965 Haw. LEXIS 48

• Court: Hawaii Supreme Court
• Decided: October 7, 1965
• Docket: 4388
• Status: Published

Opinions

OPINION OF THE COURT BY

MIZUHA, J.

On October 31, 1958, at or about 7:00 P.M., plaintiffappellee Earlene Chambers, while walking on the road shoulder on the mauka (north) side of Kapiolani Boulevard on which the Donald Duck Drive Inn at 2840 Kapiolani Boulevard fronts, fell and injured herself because of a depression or hole in the pavement.

The plaintiff filed suit on September 29, 1959, against the defendant-appellant, City and County of Honolulu, which in turn filed a third-party complaint against the third-party defendant-appellee, the owner of Donald Duck Drive Inn, Bernice Miyasato. Plaintiff did not seek any relief from the third-party defendant. At the conclusion of the trial, appellant submitted the factual issues as to negligence and liability of the third-party defendant to the trial court along with the issues of law. Plaintiff’s claim against defendant-appellant went to the jury, which returned a verdict for the plaintiff-appellee against the defendant-appellant in the sum of $15,000 in special and general damages. The trial court subsequently ruled in favor of the third-party defendant against the third-party plaintiff. Judgment in favor of plaintiff and third-party defendant was entered May 25, 1962, from which the defendant-appellant appeals.

Plaintiff-appellee admits that she knew of the defects in the road shoulder, having lived in the area for four months prior to the accident at an apartment located at 2882 Kapiolani Boulevard adjacent to the drive-inn. On the particular evening when plaintiff fell, she was unable to see the area under her feet as she walked since the lighting was not very good. She testified that “it is the only place to walk, so that is where I was walking to mail a letter.” She was wearing black low-heeled sandals with a strap, and had stopped wearing high heels because of the holes in this area.

The road shoulder abutting the Donald Duck Drive Inn is owned by the defendant-appellant, the City and County of Honolulu, and about 50 to 100 vehicles use the road shoulder daily either as an ingress and egress to and from the drive-inn or to stop and turn around.

PART I

Appellant contends that the trial court erred in denying its motion for a directed verdict on the ground that the appellee was guilty of contributory negligence as a matter of law.

The record indicates that the question of contributory negligence arises from a set of facts from which reasonable men might draw different conclusions or inferences. The basis for determining whether there was sufficient evidence to submit the issue of contributory negligence to the jury is set out in Young v. Price, 47 Haw. 309, 313, 388 P.2d 203, 206; Young v. Price, 48 Haw. 22, 24, 395 P.2d 365, 367, as follows: “[O]n motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue should be submitted to the jury.”

Plaintiff’s testimony was to the effect that despite the fact that she took the necessary precautions on account of the holes in the area, she fell because the holes blended with the black top surface and the inadequate lighting made it impossible to see all of them at night. This was an urban area. There was no other place to walk. The contention that a verdict should have been directed is not based on any theory that, as a matter of law, it was imprudent for a pedestrian to attempt to pass this way at night. We cannot say that reasonable persons in the exercise of fair and impartial judgment may not reach different conclusions as to whether this plaintiff exercised the care which a reasonably prudent person would exercise under the circumstances. Martin v. Gilmore, 358 S.W.2d 462, 466-67 (Mo. 1962). Where “reasonable men might differ on the facts or the inferences which may be reasonably drawn from the facts, the question of negligence is left to the jury under proper instructions, * * Carreira v. Territory, 40 Haw. 513, 517. This is equally true where contributory negligence is the issue. Young v. Price, supra; Ferrage v. Honolulu R. I. & L. Co., 24 Haw. 87, 91. The trial court did not err in its refusal to direct a verdict in defendant’s favor.

Appellant’s third specification of error reads:

“3. The Trial Court erred in refusing over objection Appellant’s instructions 27, 28,¹ 29, 30, 31, 32, 33 and 48. (Trial Record pp 249, 250). Said instructions state in essence that an abutting landowner who makes special use of a sidewalk for his own benefit, owes a duty of due care to maintain the area in a reasonably safe condition for pedestrians travelling over the area.”

This specification of error does not properly present any matter for consideration and disposition by this court. It violates Rule 3(b) (4) of the rules of this court which requires that the specification shall set out the part referred to totidem verbis together with the objections urged at the trial. Kealoha v. Tanaka, 45 Haw. 457, 463, 370 P.2d 468, 472; You Goo Ho v. Dr. Edmund T. K. Ing, 43 Haw. 330, 332.

Furthermore, we question whether the abutting owner’s liability was of any significance in relation to the question submitted to the jury, which concerned solely the defendant-appellant’s liability to plaintiff. In any event, we have reviewed the instructions and find they are inapplicable to the facts and not responsive to the evidence herein. They are incomplete, and ambiguous, and would have confused and misled the jury. Collins v. Shishido, 48 Haw. 411, 405 P.2d 323, rehearing denied 48 Haw. 538, 405 P.2d 338. (See discussion on court’s findings and “special use doctrine” in Part II of this opinion.)

PART II

As to the third-party defendant, appellant specifies as error the trial court’s findings of fact, conclusions of law and judgment that she was not negligent in the maintenance and care of the road shoulder fronting her business.

Appellant argues that the road shoulder took the place of a sidewalk and was being used by third-party defendant as an entrance to the drive-inn as well as a parking place for her patrons. This, it is contended, constituted a special use making the abutting owner liable for any injuries sustained from defects of the road shoulder, citing, among others, Hughes v. City of New York, 236 N.Y.S.2d 446; Wylie v. City of New York, 286 App. Div. 720, 146 N.Y.S. 2d 207; Prange v. McLaughlin, 115 N.J.L. 116, 178 Atl. 782. The cases relied on by the appellant where the defect was caused by special use are distinguishable on the facts. Failure to properly maintain specially constructed driveways, or permitting trucks to drive over a sidewalk not designed for such purpose, formed the basis of a finding of negligence in the foregoing cases.

In the absence of a statute or ordinance, the owner or occupant of land abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the sidewalk in a safe condition. Winston v. Hansell, 160 Cal. App. 2d 570, 325 P.2d 569; Sexton v. Brooks, 39 Cal. 2d 153, 245 P.2d 496; Major v. Fraser, 78 Nev. 14, 368 P.2d 369; City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160. See Re Taxes Victoria Ward, 33 Haw. 235.

But an abutting owner of property may be liable for injuries to users of the sidewalk resulting from a defective or dangerous condition thereof which is created by or arises from his own acts or conduct constituting negligence or a misuse under the circumstances. Barker v. Kroger Grocery & Baking Co., 107 F.2d 530, cert. denied, 309 U.S. 656; Belk-Mathews Co. v. Thompson, 94 Ga. App. 331, 94 S.E.2d 516; Clair v. City of Kansas City, 180 Kan. 409, 304 P.2d 468; Smith v. City of Corning, New York, 14 App. Div. 2d 27, 217 N.Y.S.2d 149; Rollins v. Satterfield, 254 S.W.2d 925 (Ky. 1953).

Where a sidewalk is specially constructed for the benefit of the abutting property or serves a use independent of the ordinary use for which the sidewalk was originally designed, the owner or occupant of the abutting property owes a duty to the public to maintain the sidewalk in a reasonably safe condition, and hence he may be liable for a defective or dangerous condition created by such special use of the sidewalk. Barker v. Kroger Grocery & Baking Co., supra; Merriam v. Anacostia Nat’l Bank, 101 App. D.C. 190, 247 F.2d 596; Hippodrome Amusement Co. v. Carius, 175 Ky. 783, 195 S.W. 113; Hughes v. City of New York, supra.

But, there are cases in which courts have held' that the abutting owner is not liable although the sidewalk was specially used by customers of the business. In Adams v. Grapotte, 69 S.W.2d 460 (Tex. Civ. App. 1934), the court stated at page 462: “It is true that sidewalks are built primarily for pedestrians, and not for vehicular traffic, but it does not follow that vehicles have not the same right to pass over them as a means of access to places of business abutting thereon that pedestrians have to walk longitudinally upon them.” In affirming, the Texas Supreme Court added: “Defendant committed no unusual, wrongful, or unlawful act which caused the hole or depression here involved. It certainly was not unusual, wrongful, or unlawful for him to conduct his garage business in the way that he did. It is true that many cars passed over this sidewalk as his invitees, but such fact simply shows the degree or quantity of use — not an unusual use in a legal sense, and not a wrongful or unlawful use.” Grapotte v. Adams, 130 Texas 587, 590, 111 S.W.2d 690, 691-92; City of Bessemer v. Brantley, supra. See Lee v. City of Baton Rouge, 243 La. 850, 147 So. 2d 868; Winston v. Hansell, supra.

Appellant has not complied with the requirements of Rule 3(b)(4) of this court which states: “In all cases, when findings are specified as error, the specification shall state as particularly as may be, wherein the findings of fact and conclusions of law are alleged to be erroneous.” Appellant does not specify any particular finding as erroneous, nor does it cite any portion of the evidence which conflicts with the findings of fact of the trial court. Appellant assumes that the “special use doctrine,” which was invoked to find third-party liability under the facts in Hughes v. City of New York, supra, and Wylie v. City of New York, supra, and other similar cases, is applicable and therefore the trial court’s conclusion of law from the facts was erroneous.

It is unnecessary for us to determine the ramifications of liability under the “special use doctrine,” since the trial court did not find that the road shoulder was constructed nor was it used specially for the benefit of the third-party defendant. The trial court found, not only that the patrons of third-party defendant crossed the road shoulder to gain access to third-party defendant’s place of business, but also that the road shoulder was used by members of the general public as a place to stop, park their vehicles, or turn around. The trial court was unable to find any evidence that “the third party defendant, Bernice Miyasato, placed any obstructions in the City-owned area, or made any alterations for her use or benefit or that she or her employees or any agents or invitees of hers caused the depression or hole in the pavement which caused plaintiff’s injuries.”

There is no evidence in the record that the third-party defendant or her predecessors in interest specifically graded and paved the road shoulder in a manner suitable to a driveway for her special use. Cf., Hughes v. City of New York, supra. Likewise, there is no evidence that the defective condition resulted solely from the use of the area by the patrons of the drive-inn. The general public also used it as indicated by the third-party defendant in her testimony.²

After a careful review of the evidence, we cannot say that the use of the road shoulder was a special use for the third-party defendant. The findings of the trial court are fully supported by the evidence and they “shall not be set aside unless clearly erroneous.” H.R.C.P., Rule 52(a); Filipino Fed’n of America, Inc. v. Cubico, 46 Haw. 353, 380 P.2d 488; Peine v. Murphy, 46 Haw. 233, 377 P.2d 708. Based on such findings the trial court properly concluded that the appellant was not entitled to judgment against third-party defendant.

David H. C. Lee, Deputy Corporation Counsel (Stanley Y. F. Ling, Corporation Counsel, and Raymond J. Tam, Deputy Corporation Counsel, with Corporation Counsel on reply brief), for defendant-third party plaintiff-appellant. Yoshio Shigezawa (Walter G. Chuck on the brief) for third party defendant-appellee. Harriet Bouslog (also on the brief) for plaintiff-appellee.

Appellant’s fourth specification of error was abandoned during argument.

Affirmed.

1 The record indicates that Appellant’s Instruction No. 28 was withdrawn and No. 48 substituted.

2 “Q [By Appellant’s Counsel], Could you tell us, back in October of 195S, tbe average number of vehicles that drove into your lot each day?

“A [By Third-Party Defendant] You mean the hours that I opened until I closed?

“Q Yes.

“A It is awfully hard for me to say that. The reason why is that the people that do go by they use that as a place of turning also, and how many cars that come in there I really cannot say.” (Tr. p. 206)