NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 16-APR-2024 10:12 AM Dkt. 159 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
THE ESTATE OF BRUCE S. PERDUE, by its Personal Representative ROBERT H. PERDUE, ROBERT H. PERDUE, Individually, GORETTI M. PERDUE, CHRISTIAN PERDUE, and WREN PERDUE, Plaintiffs-Appellants, v. STATE OF HAWAIʻI, KAUAʻI ISLAND UTILITY COOPERATIVE, a domestic agricultural cooperative association, and HAWAIIAN TELCOM, INC., a domestic corporation, Defendants/Cross- Claim Plaintiffs/Cross-Claim Defendants-Appellees; COUNTY OF KAUAʻI, Defendant/Cross-Claim Defendant-Appellee, JOHN DOES 1-5, et al., Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CC131000351)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiffs-Appellants the Estate of Bruce S. Perdue,
by its Personal Representative Robert H. Perdue, Robert H.
Perdue, Individually, Goretti M. Perdue, Christian Perdue, and
Wren Perdue (the Perdue Family) appeal from the Circuit Court of NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
the Fifth Circuit's 1 October 16, 2018 Second Amended Judgment 2
dismissing all claims as to Defendants/Cross-Claim
Plaintiffs/Cross-Claim Defendants-Appellees State of Hawaiʻi
(State), Kauaʻi Island Utility Cooperative, and Hawaiian Telecom,
Inc., and Defendant/Cross-Claim Defendant-Appellee County of
Kaua‘i.
Briefly, while driving during the early morning on
Kūhiō Highway in Kapa‘a, Kaua‘i, Bruce S. Perdue drove his car off
the paved road and shoulder into a utility pole. He died as a
result of the injuries he sustained in this single-car accident.
The Perdue family filed a complaint for wrongful
death. By stipulation, all claims and cross-claims were
dismissed except for claims by the Perdue Family against the
State.
The State moved for summary judgment, arguing that the
decision not to install guardrails around the utility pole was
within the "discretionary function exception to the . . . waiver
of sovereign immunity" (Discretionary Function Exception) of
1 The Honorable Kathleen N.A. Watanabe presided. 2 Though the Perdue family actually appealed from the January 23, 2018 First Amended Judgment, we entered an order for temporary remand instructing the circuit court to enter and supplement the record with a second amended judgment resolving all remaining claims, as we determined we lacked appellate jurisdiction over the case since the first amended judgment did not resolve all claims. On temporary remand, the circuit court entered the second amended judgment. We therefore construe this appeal as from the circuit court's second amended judgment.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Hawai‘i Revised Statutes (HRS) § 662-15 (2016). The circuit
court granted summary judgment, and dismissed the entire case.
The Perdue Family moved for reconsideration, which was denied,
and timely appealed.
On appeal, the Perdue Family contends the circuit
court erred in granting the State's motion for summary judgment
and taxing costs. 3
3 The Perdue Family actually raise nine points of error, contending the circuit court reversibly erred:
(1) in granting summary judgment on the entire complaint when the State, in its motion for summary judgment (MSJ), argued against only one possible theory of liability;
(2) in denying their motion for reconsideration;
(3) by omitting from the order granting the MSJ (MSJ Order), and the Second Amended Judgment, a finding that the State was entitled to judgment "as a matter of law," and by failing to include a finding in the Second Amended Judgment that no genuine issue of material fact existed;
(4) in determining that the "installation" of the utility pole without a guardrail was a discretionary act requiring broad policy consideration, though each time the pole was repaired or reinstalled following a collision was an operational maintenance event;
(5) in disregarding the conflict between the State Tort Liability Act, HRS § 662-2 (2016), and Hawaiʻi Administrative Rules § 19-127.1-8 (eff. 1994), the latter of which directs the placement of guardrails and protective barriers next to roadside hazards;
(6) in dismissing potential claim(s) that the State acted negligently in permitting installation of the utility pole without a safety investigation, disregarding its accident history, and allowing the utility pole to remain in its location;
(7) in dismissing potential claim(s) that the State negligently failed to contact the utility companies concerning the hazard created by the utility pole or to revoke the permit for its location, given its accident history;
(continued . . .)
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below.
We review the grant or denial of summary judgment de
novo. Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d 1276, 1285
(2013). "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." Id. (citation and
brackets omitted).
A defendant moving for summary judgment "may satisfy
his or her initial burden of production by either (1) presenting
evidence negating an element of the non-movant's claim, or
(2) demonstrating that the [non-movant] will be unable to carry
his or her burden of proof at trial." Id. at 60, 292 P.3d at
(. . . continued)
(8) in disregarding Hawaiʻi Rules of Civil Procedure Rule 56(d) by failing to ask the parties whether there were outstanding claims raised in the complaint that the MSJ did not cover; and
(9) in taxing costs against the Perdue Family after jurisdiction had already transferred to this court upon the filing of the notice of appeal.
Because we hold the circuit court erred in granting summary judgment, in dismissing the entire complaint, and taxing costs, we need not address the remaining points raised.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
1290. We view the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion. Id.
at 56, 292 P.3d at 1286.
Regarding the Discretionary Function Exception of HRS
§ 662-15, "the State bears the burden to assert and prove the
application of the discretionary function exception," and its
scope must be determined "on a case-by-case basis." O'Grady v.
State, 140 Hawai‘i 36, 53-55, 398 P.3d 625, 642-44 (2017).
In determining whether a State action falls within the discretionary function exception, we consider whether the challenged conduct involves the effectuation of broad public policy as opposed to routine, operational level activity. . . .
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 16-APR-2024 10:12 AM Dkt. 159 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
THE ESTATE OF BRUCE S. PERDUE, by its Personal Representative ROBERT H. PERDUE, ROBERT H. PERDUE, Individually, GORETTI M. PERDUE, CHRISTIAN PERDUE, and WREN PERDUE, Plaintiffs-Appellants, v. STATE OF HAWAIʻI, KAUAʻI ISLAND UTILITY COOPERATIVE, a domestic agricultural cooperative association, and HAWAIIAN TELCOM, INC., a domestic corporation, Defendants/Cross- Claim Plaintiffs/Cross-Claim Defendants-Appellees; COUNTY OF KAUAʻI, Defendant/Cross-Claim Defendant-Appellee, JOHN DOES 1-5, et al., Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CC131000351)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiffs-Appellants the Estate of Bruce S. Perdue,
by its Personal Representative Robert H. Perdue, Robert H.
Perdue, Individually, Goretti M. Perdue, Christian Perdue, and
Wren Perdue (the Perdue Family) appeal from the Circuit Court of NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
the Fifth Circuit's 1 October 16, 2018 Second Amended Judgment 2
dismissing all claims as to Defendants/Cross-Claim
Plaintiffs/Cross-Claim Defendants-Appellees State of Hawaiʻi
(State), Kauaʻi Island Utility Cooperative, and Hawaiian Telecom,
Inc., and Defendant/Cross-Claim Defendant-Appellee County of
Kaua‘i.
Briefly, while driving during the early morning on
Kūhiō Highway in Kapa‘a, Kaua‘i, Bruce S. Perdue drove his car off
the paved road and shoulder into a utility pole. He died as a
result of the injuries he sustained in this single-car accident.
The Perdue family filed a complaint for wrongful
death. By stipulation, all claims and cross-claims were
dismissed except for claims by the Perdue Family against the
State.
The State moved for summary judgment, arguing that the
decision not to install guardrails around the utility pole was
within the "discretionary function exception to the . . . waiver
of sovereign immunity" (Discretionary Function Exception) of
1 The Honorable Kathleen N.A. Watanabe presided. 2 Though the Perdue family actually appealed from the January 23, 2018 First Amended Judgment, we entered an order for temporary remand instructing the circuit court to enter and supplement the record with a second amended judgment resolving all remaining claims, as we determined we lacked appellate jurisdiction over the case since the first amended judgment did not resolve all claims. On temporary remand, the circuit court entered the second amended judgment. We therefore construe this appeal as from the circuit court's second amended judgment.
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Hawai‘i Revised Statutes (HRS) § 662-15 (2016). The circuit
court granted summary judgment, and dismissed the entire case.
The Perdue Family moved for reconsideration, which was denied,
and timely appealed.
On appeal, the Perdue Family contends the circuit
court erred in granting the State's motion for summary judgment
and taxing costs. 3
3 The Perdue Family actually raise nine points of error, contending the circuit court reversibly erred:
(1) in granting summary judgment on the entire complaint when the State, in its motion for summary judgment (MSJ), argued against only one possible theory of liability;
(2) in denying their motion for reconsideration;
(3) by omitting from the order granting the MSJ (MSJ Order), and the Second Amended Judgment, a finding that the State was entitled to judgment "as a matter of law," and by failing to include a finding in the Second Amended Judgment that no genuine issue of material fact existed;
(4) in determining that the "installation" of the utility pole without a guardrail was a discretionary act requiring broad policy consideration, though each time the pole was repaired or reinstalled following a collision was an operational maintenance event;
(5) in disregarding the conflict between the State Tort Liability Act, HRS § 662-2 (2016), and Hawaiʻi Administrative Rules § 19-127.1-8 (eff. 1994), the latter of which directs the placement of guardrails and protective barriers next to roadside hazards;
(6) in dismissing potential claim(s) that the State acted negligently in permitting installation of the utility pole without a safety investigation, disregarding its accident history, and allowing the utility pole to remain in its location;
(7) in dismissing potential claim(s) that the State negligently failed to contact the utility companies concerning the hazard created by the utility pole or to revoke the permit for its location, given its accident history;
(continued . . .)
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below.
We review the grant or denial of summary judgment de
novo. Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d 1276, 1285
(2013). "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." Id. (citation and
brackets omitted).
A defendant moving for summary judgment "may satisfy
his or her initial burden of production by either (1) presenting
evidence negating an element of the non-movant's claim, or
(2) demonstrating that the [non-movant] will be unable to carry
his or her burden of proof at trial." Id. at 60, 292 P.3d at
(. . . continued)
(8) in disregarding Hawaiʻi Rules of Civil Procedure Rule 56(d) by failing to ask the parties whether there were outstanding claims raised in the complaint that the MSJ did not cover; and
(9) in taxing costs against the Perdue Family after jurisdiction had already transferred to this court upon the filing of the notice of appeal.
Because we hold the circuit court erred in granting summary judgment, in dismissing the entire complaint, and taxing costs, we need not address the remaining points raised.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
1290. We view the evidence and inferences drawn therefrom in
the light most favorable to the party opposing the motion. Id.
at 56, 292 P.3d at 1286.
Regarding the Discretionary Function Exception of HRS
§ 662-15, "the State bears the burden to assert and prove the
application of the discretionary function exception," and its
scope must be determined "on a case-by-case basis." O'Grady v.
State, 140 Hawai‘i 36, 53-55, 398 P.3d 625, 642-44 (2017).
In determining whether a State action falls within the discretionary function exception, we consider whether the challenged conduct involves the effectuation of broad public policy as opposed to routine, operational level activity. . . . The exercise of some discretion on the part of a State official is not necessarily indicative that the exception applies[.]
Id. at 54, 398 P.3d at 643 (cleaned up).
The State here appears to rely on the need "to
purchase additional right-of-way to accommodate the relocation
of the line of utility poles" as the basis for falling within
the Discretionary Function Exception. But, the State then
acknowledges that it would not be "required to purchase
additional right-of-way if, instead, the utilities purchase
easements on the adjacent private parcels." With this, we
cannot say that the State proved erecting a guardrail in this
case "involve[d] the effectuation of broad public policy" as a
matter of law. See Breed v. Shaner, 57 Haw. 656, 667, 562 P.2d
436, 443 (1977) ("In this situation further facts must be
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
adduced on the record to show that the decision to include a
curve or other design feature involved the evaluation of broad
policy factors before the court can decide that the
discretionary function exception applies"); O'Grady, 140 Hawai‘i
at 54, 398 P.3d at 643.
Moreover, Hawai‘i courts have determined that
decisions concerning the repair of an existing defective
guardrail, implementation of a routine rockfall mitigation
system, the location of a road sign, and when to repaint lane
markings are operational level activities; but decisions to
construct a prison or whether to rebuild the collapsed Moanalua
Stream Bridge are discretionary functions. 4 Erecting a guardrail
appears closer to repairing a guardrail, implementing a rockfall
mitigation system, and determining the location of road signs
rather than constructing a prison or rebuilding a collapsed
bridge. And that funding for a government project originates
from a policy-level allocation of resources does not necessarily
make that particular project a policy-level decision. Cf.
Julius Rothschild & Co. v. State, 66 Haw. 76, 80, 655 P.2d 877,
4 See, e.g., O'Grady, 140 Hawai‘i 36, 398 P.3d 625 (rockfall mitigation); Taylor-Rice v. State, 91 Hawai‘i 60, 979 P.2d 1086 (1999) (defective guardrail); Rogers v. State, 51 Haw. 293, 459 P.2d 378 (1969) (road sign location); Julius Rothschild & Co. v. State, 66 Haw. 76, 655 P.2d 877 (1982) (rebuilding collapsed bridge); Breed, 57 Haw. at 667, 562 P.2d at 443 (noting as an example a decision not to construct a prison "require[s] evaluation of broad policy factors").
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
881 (1982) (noting that the legislature must decide whether to
fund reconstruction of the Moanalua Stream Bridge).
Viewing the evidence in the light most favorable to
the Perdue Family, the State failed to establish that the
Discretionary Function Exception applies to erecting a guardrail
in this case as a matter of law. See generally, Ralston, 129
Hawaiʻi at 56, 292 P.3d at 1286; O'Grady, 140 Hawai‘i at 54, 398
P.3d at 643.
Even if the State met its burden of showing that
erecting guardrails here fell under the Discretionary Function
Exception as a matter of law, the State failed to show that the
entire complaint should have been dismissed.
"[M]ultiple claims present the possibility of multiple
recoveries which are not mutually exclusive," however "single
claims may present multiple legal theories of liability, but
seek only one recovery which is mutually exclusive." Elliot
Megdal & Assocs. v. Daio USA Corp., 87 Hawaiʻi 129, 133, 952 P.2d
886, 890 (App. 1998) (emphasis added and citation omitted).
"[W]here the complaint allege[s] more than one ground for
imposing liability on the defendant for the plaintiff's injury,
and the defendant's summary judgment motion attacked only one
ground, summary judgment on the entire claim [i]s unwarranted."
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Kukui Nuts of Hawaii Inc. v. R. Baird & Co., 7 Haw. App. 598,
610, 789 P.2d 501, 510 (1990). Moreover,
where the defendant is the moving party, there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law if, upon viewing the record in the light most favorable to the plaintiff, it is clear that the plaintiff would not be entitled to recover under any discernable theory.
Neilsen v. Am. Honda Motor Co., 92 Hawaiʻi 180, 189, 989 P.2d
264, 273 (App. 1999) (emphases added, citation and brackets
omitted). "Under Hawaiʻi's notice pleading approach, it is no
longer necessary to plead legal theories with precision";
"[p]leadings must be construed liberally . . . as to do
substantial justice." Tokuhisa v. Cutter Mgmt. Co., 122 Hawaiʻi
181, 192, 223 P.3d 246, 257 (App. 2009) (cleaned up).
Here, The State's motion for summary judgment focused
on guardrails. The State argued this case "does not involve a
mere maintenance, repair or upgrade of a guardrail"; rather,
"this case would necessitate an engineering study to determine
whether or not guardrails are a reasonable engineering option."
The State requested the circuit court "recognize that the
decision-making involved in making changes along [Kūhiō] Highway
in the vicinity of the subject accident would require the
exercise of the State's discretionary function." Thus, the
State concluded it was "immune from liability for its act and/or
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
omissions in the exercise of that discretion" and was entitled
to summary judgment.
But, the complaint alleged, inter alia, that the
utility pole, "together with the real property on which it was
situate[d], constituted an unreasonable risk of harm" and was
"unreasonably dangerous" to drivers, and that the collective
defendants "failed to adequately protect motorists" from the
"pole and/or [the] unreasonably dangerous condition/risk of harm
created by it." Construed liberally, these allegations do not
suggest the failure to install a guardrail is the only
discernable theory of liability on which the Perdue Family could
prevail. See generally, Tokuhisa, 122 Hawaiʻi at 192, 223 P.3d
at 257; Neilsen, 92 Hawaiʻi at 189, 989 P.2d at 273.
Viewing the evidence presented in the light most
favorable to the Perdue Family, the State failed to meet its
burden of showing that the entire complaint should have been
dismissed as a matter of law based on guardrails. See
generally, Ralston, 129 Hawaiʻi at 56, 60, 292 P.3d at 1286,
1290.
Thus, the circuit court erred in granting summary
judgment and erred in dismissing the entire case. As the State
is no longer the prevailing party, the Perdue Family should not
be taxed costs. Hawai‘i Rules of Civil Procedure Rule 54(d)(1).
9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
In light of foregoing, we vacate the October 16, 2018
Second Amended Judgment, the May 20, 2016 "Order Granting [the
State]'s Motion for Summary Judgment Filed February 26, 2016,"
and the October 25, 2016 Clerk's Taxation of Costs, and we
remand for further proceedings consistent with this summary
disposition order.
DATED: Honolulu, Hawai‘i, April 16, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge James Krueger, for Plaintiffs-Appellants. /s/ Karen T. Nakasone Associate Judge Robin M. Kishi, Marie M. Gavigan, /s/ Sonja M.P. McCullen Deputy Attorneys General, Associate Judge for Defendant/Cross-Claim Plaintiff/Cross-Claim Defendant-Appellee.