Viveiros v. State

513 P.2d 487, 54 Haw. 611, 1973 Haw. LEXIS 230

• Court: Hawaii Supreme Court
• Decided: August 16, 1973
• Docket: 5303
• Status: Published

Opinions

OPINION OF THE COURT BY

RICHARDSON, C.J.

This appeal arises out of a civil action brought by plaintiffs-appellants against the State of Hawaii under HRS § 662 commonly known as the State Tort Liability Act. Trial by the court without a jury¹ was held in the first circuit on March 23, 1972. The trial judge found that the State of Hawaii was negligent in failing to provide supervision at a program sponsored by Kailua High School during regular school hours. The trial court further found that the injuries suffered by plaintiff, Jo Ann Viveiros, were a result of the State’s negligent omission. The State has not appealed these findings. General damages of $15,000.00 and special damages of $180.84 were assessed. Pursuant to HRS § 663-31 (Supp. 1972), the trial judge determined that defendant was 75% negligent and that plaintiff, Jo Ann Viveiros, was 25% negligent for “failing to leave the scene prior to her being injured.” On April 24, 1972 a judgment was filed in favor of plaintiffs for $11,250.00 general damages and $180.84 special damages together with costs of $180.39. In open court, the trial judge denied plaintiffs’ attorney’s fees, presumably on the authority of HRS § 662-12. The present appeal is from the trial judge’s findings on general damages, comparative negligence and, tangentially, on the denial of attorney’s fees.

The facts reveal that on December 3, 1970 at about 9:30 a.m., a school sponsored “light show” created by students began in a lecture hall at Kailua High School. At this time, an educational assistant acting as a supervisor was the only staff member present in the auditorium. Soon after the show started, this supervisor departed to observe a 15 to 20 minute coffee break. Though the show was to be supervised by three or four teachers, due to a mix-up, the hall was left in the hands of the students who were producing the light show.

At approximately 9:30 a.m. plaintiff Jo Ann Viveiros, age 15, along with two friends paid the 25^ admission fee and entered the darkened hall to observe the performance. They could not find seating, so they stood in the aisle. Although the audience was quiet at the time plaintiff entered, a few minutes later a small group in a corner of the hall became “noisy”. A student in charge of the production told the group to keep quiet or “the teachers would come in”. Plaintiff was standing about thirty-five feet away from this group and did not feel any concern for her safety, although at this point she knew that no teachers were present.

Shortly after the announcement, plaintiff and two other students were struck by metal objects apparently thrown by the rowdy group. Plaintiff suffered permanent damage to her left eye. Glasses will not correct her vision, because of the severe injury to the macula area of the inner eye. She does have normal vision with both eyes open, although her damaged eye will not improve beyond 20-200. She has suffered severe impairment to her depth perception within three feet, though her peripheral vision appears normal.

We subscribe to the rule that a child is only required to use that degree of care appropriate to his age, experience and mental capacity. Fraga v. Hoffschlaeger Co. 26 Haw. 557, aff’d, 290 F.146 (1922); Grace v. Kumalaa, 47 Haw. 281, 386 P.2d 372 (1963). We must reverse the finding by the trial judge that plaintiff was 25% negligent if we find that she conformed to the above standard by remaining in the auditorium after she discovered that the event was unsupervised.

At the time the isolated group of students became boisterous, Jo Ann was standing approximately thirty-five feet in front of them. The record reveals that the group was merely vocal. There is no mention made in the record of threats being shouted or evidence that objects were being thrown during the concert. Apparently none of Jo Ann’s peers felt endangered, because no one was shown to have left the program once the group became boisterous. Jo Ann did not fear for her safety possibly because she harbored the reasonable belief that she was in no imminent physical danger.

We agree with the reasoning in Ridge v. Boulder Creek Union Junior-Senior High School District, 60 Cal. App. 2d 453, 460, 140 P.2d 990, 993-94 (1943). In this case, a 17 year old student was found not guilty of contributory negligence for using a power saw without its guard causing injury to himself. The court reasoned that:

Knowledge that danger exists is not knowledge of the amount o£ danger necessary to charge a person with negligence in assuming the risk caused by such danger. The doing of an act with appreciation of the amount of danger in addition to mere appreciation of the danger is necessary in order to say as a matter of law that a person is negligent.

Since Jo Ann could not reasonably anticipate that she was in danger of physical harm nor appreciate the amount of danger, we must find that the trial judge erred in finding her 25% negligent. In our view, plaintiff conducted herself as a reasonable person would have under the same conditions.

Plaintiff prays for a partial new trial on the issue of damages or in the alternative for this court to make its own award of damages.

In Cozine v. Hawaiian Catamaran, Ltd., 49 Haw. 267, 414 P.2d 428 (1966), we said that:

The power to limit the new trial to the question of damages of course exists, but whether we should do so rests in our judicial discretion. (Citations omitted.)

See also Young v. Price, 49 Haw. 314, 424 P.2d 107 (1966).

We shall not disturb the findings of the trial court on the issue of damages nor remand for a partial new trial unless we find that the measure of damages was clearly erroneous under Rule 52 (a) H.R.C.P. This count’s interpretation of Rule 52 (a) was made quite clear in Low v. Honolulu Rapid Transit, 50 Haw. 582, 445 P.2d 372 (1968), and has been reiterated in numerous cases since.² In Low we held that:

H.R.C.P., Rule 52 (a) states that “ jTjindings of fact shall not be set aside unless clearly erroneous.” A finding is not “clearly erroneous” unless the reviewing court is driven irrefragably to the conclusion that all objective appraisals of the evidence would result in a different finding. Id. at 586, 445 P.2d at 376.

R. Charles Bochen (.Kenneth R. Kupchak with him on the briefs, Damon Shigekane Key if Char, of counsel) , for plaintiffs-appellants.

We have carefully studied the transcript of the proceedings below, and we note that the testimony of plaintiffs’ and defendant’s medical expert witnesses regarding the extent of plaintiff’s injuries are often in conflict.³ Given this state of the record the trial judge, as trier of the facts, appears to us to have based his award on substantial if conflicting evidence. We therefore hold that the trial court’s finding as to the amount of Miss Viveiros’ damages was not clearly erroneous. Although $15,000 may seem to be slight compensation for the loss of one eye, the record shows conflicting evidence as to the degree of that loss (see footnote 3). The trial judge has the advantage of this court in receiving evidence first hand and weighing it accordingly. We feel no compulsion to second guess the trier of fact in this situation.

Since we view HRS § 662-12 as a statute that gives the trial court discretion in awarding attorney’s fees, we must necessarily sustain the denial of such allowance.

Affirmed in part, reversed in part, and remanded to the circuit court for entry of a final judgment in conformance with this opinion.

Shirley Smith, Deputy Attorney General, (George Pai, Attorney General, with her on the brief), for defendant-appellee.

1 HRS § 662-5 reads as follows:

§ 662-5 Jury. Any action against the State under this chapter shall be tried by the court without a jury.

2 See Siko v. Seguirant, 51 Haw. 118, 452 P.2d 447 (1969); Ed Klein, Inc. v. Hotel Kaimana, Inc., 51 Haw. 268, 457 P.2d 210 (1969); First Hawaiian Bank v. Smith, 52 Haw. 591, 483 P.2d 185 (1971); Imperial Finance Corp.,v. Finance Factors, Ltd., 53 Haw. 203, 490 P.2d 662 (1971).

3 For example, defendant’s medical expert testified that plaintiff’s functional impairment would be more serious if the injury had affected her peripheral rather than her central vision. Asked the same question, plaintiffs’ expert said he would rather lose peripheral vision; that this loss would lead to less functional impairment. Defendant’s expert also testified that plaintiff would be able to live a normal life visually with "few exceptions”. Plaintiffs’ doctor tended to maximize Jo Ann’s functional difficulties. Both witnesses were also at odds over the effect of deviation or eyeball drift and on the question of the degree of loss of depth perception. They did agree that Jo Ann suffered a serious injury to her left eye.