Murakami v. County of Maui

731 P.2d 787, 69 Haw. 43

• Court: Hawaii Supreme Court
• Decided: January 29, 1987
• Docket: NO. 10706
• Status: Published

Opinion

Per Curiam.

This case is before us on a writ of certiorari from a judgment by the Intermediate Court of Appeals (ICA) reversing a judgment in favor of the appellee and ordering a new trial.

We granted certiorari because of a sentence contained in the ICA’s opinion: “In our view, that part of the Sherry v. Asing dicta and of the cases it cites as authority are wrong.” Murakami v. County of Maui, 6 Haw. App. 516, 522, 730 P.2d 342, 346 (1986), first sentence (footnote omitted).

While we agree with the ICA that in the circumstances of this case, the giving of the instruction based upon Sherry v. Asing, 56 Haw. 135, 152, 531 P.2d 648 (1975), was error, we do not agree that the statement of this court in Sherry that

[i]n the absence of eyewitness testimony or physical evidence, or both, to the contrary, a person who suffers from retrograde amnesia as a result of an accident and is, therefore, unable to testify to the events of the accident is entitled to an instruction stating that he is presumed to have been exercising due care at the time of the accident and is not held to a high degree of proof as would be a plaintiff who could describe the occurrence himself[.]

James Krueger and Timothy P. McNulty on the writ for petitioners. Howard M. Fukushima, Deputy Corporation Counsel, on the supplemental brief for respondent.

is wrong or is not good law. Our overruling of the sentence from the ICA quoted above does not, however, change the result in the case. The judgment of the ICA reversing and remanding the judgment of the circuit court for a new trial is affirmed.