Preview:

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

CHERYL CRICHFIELD and GARY CRICHFIELD, Plaintiffs-Appellants vs. GRAND WAILEA COMPANY, a Domesitc Limited Partnership, Defendant-Appellee, JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; ROE "NON-PROFIT" CORPORATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10, Defendants

NO.

22851

APPEAL FROM THE SECOND CIRCUIT COURT (CIV. NO. 98-0579(1))

JULY 31, 2000

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., AND CIRCUIT COURT JUDGE NAKAMURA, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY LEVINSON, J. The plaintiffs-appellants Cheryl Crichfield ("Cheryl") and Gary Crichfield ("Gary") [collectively, "the Crichfields"] appeal from the second circuit court's order, filed on September 13, 1999, granting summary and final judgment against them and in favor of the defendant-appellee Grand Wailea Company ("Grand Wailea"). On appeal, the Crichfields contend that the circuit

court erroneously granted summary judgment against them and in

favor of Grand Wailea, inasmuch as there was a genuine issue of material fact regarding whether the Crichfields were present on land owned by Grand Wailea for a "recreational purpose," within the meaning of the Hawai#i Recreational Use Statute (HRUS), Hawai#i Revised Statutes (HRS) chapter 520 (1993 & Supp. 1997), see infra section III.A. We vacate the circuit court's order and remand the matter to the circuit court for further proceedings consistent with this opinion.

I.

BACKGROUND

During the first week of September 1997, the Crichfields were registered guests of the Four Seasons Hotel on the island of Maui. On their last scheduled day in Hawai#i, the

Crichfields were walking around the grounds of the Grand Wailea Resort, Hotel, and Spa ("the hotel"), which is located adjacent to the Four Seasons Hotel. The Crichfields left the walking path

in order to get a better look at the fishpond and statuary on the hotel's grounds. While on the grass near the fishpond, Cheryl Lifting her left leg, she pushed When she placed In an Cheryl

decided to remove her slippers.

her left slipper off her foot using her knee.

her left foot back on the ground, she slipped and fell. effort to break her fall, she thrust out her right hand. broke her arm, resulting in severe complications. occurred on September 6, 1997.

The accident

On January 29, 1998, the Crichfields were interviewed by John Reitzel, a representative of Ward North America. He

2

introduced himself to the Crichfields as an independent insurance administrator working on behalf of Grand Wailea. During her

recorded interview with Reitzel, Cheryl described why she and her husband had taken a walk on the grounds of the hotel:
We had taken a scuba diving lesson and finished and decided to walk next door to see the grounds of the Grand Wailea statuary and the pond and had walked on the sidewalk that was adjoining the Four Seasons and walked up that way.

According to Cheryl, the accident took place "[r]ight on the edge of the pond, on the beach[;] there's a very large exotic fish pond with statuary and it was right, right there." the accident as follows:
We left the sidewalk, walked over toward the edge of the pond, um, I stopped to look at, to say something to my husband, I was kind of facing him. Went to take off my shoes, my sandals, because I wanted to walk on the grass. Took one sandal off, put my foot down and as I put my foot down, it felt, it was slick as glass. I started to fall. I've had four hips replaced, I've had my hips replaced four times due to advanced osteoporosis and I did not want to break a hip and I put my arm down to, break my fall. And in doing that, I broke my arm.

She described

At the time of the accident, around 1:00 p.m., it was a "beautiful clear, clear as a bell, beautiful day." In his recorded interview with Reitzel, Gary described the accident as follows:
GARY: Okay, um between the Four Seasons and the Grand Wailea, um, we were staying at the Four Seasons and there's a sidewalk that connects all of the hotels along the beachfront[,] and we walked along that sidewalk towards the Grand Wailea. And like I was saying[,] between them there is a fish pond that has a, grassy area where there is lots of ah bronze sculpturing and statuary[,] and it was at this point, walking across the grass lawn, looking at the statuary and the fish pond[,] that the accident occurred. Okay, can you tell me how the accident happened? Well, we had been, like I mentioned[,] we'd been

. . . . REITZEL: GARY:

3

REITZEL: GARY:

REITZEL: GARY:

looking at the statuary, walking along the grass. The grass up to this point had been perfectly dry. There, and it had been firm and stable, no problems, nothing to indicate that there was a wet spot in this particular area[,] and as we walked from one statute [sic] to the next statute [sic] and we were walking around the ah, the fish pond[,] um, I walked, I was not directly with her. I was a few feet away from her. But she bent down to take her shoes off cause she wanted to walk with her shoes off and took a step . . . , put her foot down[,] and the next thing I knew she was on the ground. Um, and . . . . She was a few feet from you when this happened? Yeah, she was a few feet away[,] so I was looking at her while it happened. Then I watched her bend over and take a shoe off and, and then she put her foot down and put some weight on that foot[,] and then[,] boom, the next thing I knew she was down. As she tells me, that area was just as slick as glass and or as ice, as slippery as, as glass. When you got over to her, did it seem slippery to you? Ummm, that's a good question, I was in such shock at the time. Um, I honestly couldn't answer that. I don't know, I was very, very concerned about her because she was in a lot of pain, instantly in a lot of pain. Um[,] I noticed as soon as she went down she had her arm out, she hit the ground and I knew she did something to the arm because she immediately cradled it to her chest and said, "It's broken, I know it's broken, please get some help." So, I don't remember the area being slick or anything about the footing of the area myself. I couldn't tell you.

(Some ellipsis points added and some in original).

Gary did

observe, however, that the area around Cheryl had become muddy after the police and emergency people arrived and traipsed around her. On April 10, 1998, the Crichfields were interviewed by Chris Walby, a second representative of Ward North America. Cheryl explained further why she and her husband had decided to walk around the grounds of the Grand Wailea on September 6, 1997, 4

as follows:

That morning, Cheryl had become claustrophobic

during a scuba diving lesson and could not continue the lesson. Gary, however, had completed the lesson and had gone scuba diving.
CHERYL: . . . When he had finished with that, he came up to the room because I was very upset that I had, that, that was the one thing I wanted to do up there[,] and I was very angry with myself for being claustrophobic and[,] ah, I had gone back up to the room[,] and he came back up to the room and got me and said let's go for a walk and you know, you can, you'll feel better after we go for a walk and talk. Now, did, so you said you guys took the pathway along the beach to go over to the Grand Wailea? Uh huh. And, ah, did you have any specific plans over there? Is there, um, were you . . . We wanted to, we, Gary said there was some beautiful statuary over there and they had a, a pond that, with some tropical fish in, that he wanted me to see and we just wanted to see what one of the other hotels looked like. . . . And did you do any shopping or anything on the property before this happened? No. We just walked onto the property. Okay. Didn't go anywhere and have anything to drink or eat? No.

. . . . WALBY: CHERYL: WALBY: CHERYL:

. . . . WALBY: CHERYL: WALBY: CHERYL:

(Some ellipsis points added and some in original).

Cheryl also

added that, just prior to taking off her slipper, the last step she took "was squishy" but that she didn't feel any actual moisture on or in her slipper. feeling." Rather, it was "a spongy muddy

At the end of the interview, Walby again asked what

"the purpose [was] for your going to the Grand Wailea," to which Cheryl replied: "To look at the statuary and the pond and just

the different, different location, I wanted to see what another hotel would look like."

5

In his interview with Walby, Gary explained that he had first visited the Grand Wailea two days before the accident because he "had been told there was some beautiful artwork, some bronze sculpturing, to view on the property." He "wandered

around the grass area where these sculptures were and took pictures of them at that time with [his] camera and returned back and told [his] wife[,] `We have to go, we have to go, you have to see this.'" In response to Walby's question, "[S]o was that the

sole purpose of your returning to the Grand Wailea on the date of the accident," Gary responded, "Yes it was." On July 22, 1998, the Crichfields filed a complaint against Grand Wailea and the Doe defendants, in which they asserted claims grounded in negligence, breach of warranty, and strict products liability. On August 27, 1998, Grand Wailea

filed its answer, in which, inter alia, it asserted HRUS as an affirmative defense. The Crichfields filed an amended complaint

on September 23, 1998, which Grand Wailea answered on October 15, 1998, again asserting HRUS as an affirmative defense. Grand

Wailea filed a motion for summary judgment on all of the Crichfields's claims on June 18, 1999. In the motion, Grand

Wailea argued that Cheryl's negligence claim -- and, a fortiori, Gary's derivative claim -- were barred by HRUS and that the breach of warranty and strict products liability claims were not supported by Hawai#i law. Although the Crichfields did not oppose summary judgment on their breach of warranty and products liability claims, they did urge that HRUS did not bar their negligence 6

claim.

The Crichfields argued that, inasmuch as they were now

averring by way of affidavits that their reason for visiting the Grand Wailea was to have lunch at the resort and that their purposes and actions while on the grounds of the Grand Wailea were therefore not "recreational," there remained a genuine issue of material fact that precluded summary judgment. The affidavits upon which the Crichfields relied at the hearing on Grand Wailea's motion for summary judgment had not been signed at the time the hearing was conducted.1 Copies of

the unexecuted affidavits were attached to the Crichfields' memorandum in opposition, and the Crichfields' counsel explained

Cheryl and Gary ultimately executed separate affidavits on July 26, 1999, both of which, in substance, were identical. Cheryl's affidavit averred in relevant part as follows: [] On September 6, 1997, my husband suggested that we eat lunch at one of the restaurants at the Grand Wailea, which was next door to our hotel, the Four Seasons. We had already eaten at the various establishments at the Four Seasons, and had even asked a Four Seasons employee what other restaurants there were to eat at in the area. The employee suggested the Grand Wailea. [] We decided to go to the Grand Wailea to purchase and eat lunch, and on the way to look at the statues my husband had seen earlier. We were on our way to the main building complex of the Grand Wailea when the accident happened. If you face the Grand Wailea from the beach, with your back to the ocean, the Four Seasons is on the right, the area where the accident happened directly in front of you, and the main building complex is to your left. [] No one ever asked me where we were going to eat lunch that day. If they had I would have told them. Our visit was for the purpose of patronizing their business establishment. We were not going there for any recreational purpose, such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, or viewing or enjoying historical, archeological, scenic, or scientific sites. Gary's affidavit contains the same three factual paragraphs, substituting "I" for "my husband."

1

7

in a declaration, also attached to the memorandum, that he had not yet received the executed affidavits back from the mainland. At the hearing on Grand Wailea's motion, conducted on July 22, 1999, the circuit court inquired of the Crichfields' counsel, "How do you expect [the court] to rely on the unsigned affidavits?" The Crichfields' counsel replied that the court had

the discretion to hear argument and defer making a decision until the signed affidavits could be filed. The circuit court then

requested that the parties proceed with oral argument on Grand Wailea's motion for summary judgment. Grand Wailea argued that the affidavits, even if they were admissible as evidence, did not generate a genuine issue of material fact because "[t]his whole idea of lunch never came up until it was asserted in these affidavits in response to our motion for summary judgment" and, therefore, the factual allegations contained in the affidavits were nothing more than "an attempt to retroactively mold their testimony to try to take them out of [HRUS]." In the alternative, Grand Wailea argued that, even if the Crichfields actually subjectively intended, when entering Grand Wailea's property, to purchase lunch, HRUS still applied because "Howard v. United States[, 181 F.3d 1064, 1072-73 (9th Cir. 1999),] says you look at the landowner's intent for opening up the property, not Plaintiff's subjective intent and purpose for being on the property." Grand Wailea reasoned that, inasmuch

as it is the landowner's intent that controls whether the landowner comes within or without the statute, the subjective 8

intent of the plaintiff is immaterial.

Because the Crichfields

did not contest the declaration of the Grand Wailea's executive director of finance, which stated in part that the portion of the grounds on which the accident had occurred was held open to the public for recreational purposes such as walking and viewing the scenic sites, Grand Wailea contended that there was no genuine issue of material fact, that Grand Wailea came within HRUS, and that HRUS immunized Grand Wailea from negligence liability for the accident. In response, the Crichfields argued that the purpose of Grand Wailea's facilities and grounds was to commercially "operate a hotel and restaurant for people to patronize, and that is what [the Crichfields] were going to do." In addition, the

Crichfields argued that Ward North America's interviewers had deliberately avoided asking the Crichfields if they were on the property of Grand Wailea to have lunch. After noting that the accident had occurred on September 6, 1997, the circuit court ruled as follows:
. . . In January of 1998, the recorded statements were taken. There is no question in the Court's mind about what they were there for, which was to view the statues; in other words, what the Court is concluding is that they come specifically within the statute. As to the affidavits, up to now they have not been signed, but even if they were signed, there is no question that today is already July of 1999. If it could be argued that somebody -- I know that you made in your argument that during the recorded statement there was some avoidance asking the question about lunch. The Court is not convinced about that because I read the recorded statements. It appears clear to the Court that there was no trickery, and the reason I mention that is you are now trying to say there is a question of fact in this case concerning the lunch to which your clients are about or will execute affidavits. It probably could be argued at this point they are the ones who are trying to create an

9

issue of fact. From what has been presented to me and considering the statute involved in this case, the Court is going to -- as a matter of law, the Court is going to grant the Defendant's motion for summary judgment.

The Crichfields' affidavits were signed and notarized on July 26, 1999, and were filed on August 2, 1999. The circuit court filed

its order granting summary and final judgment in favor of Grand Wailea and against the Crichfields on September 13, 1999. timely appeal followed. This

II. A.

STANDARDS OF REVIEW

Summary Judgment
We review [a] circuit court's award of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation omitted). As we have often articulated: [s]ummary 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. (citations and internal quotation marks omitted); see Hawai #i Rules of Civil Procedure (HRCP) Rule 56(c) (1990). "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." Hulsman v. Hemmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982) (citations omitted). Konno v. County of Hawai #i, 85 Hawai #i 61, 70, 937 P.2d 397, 406 (1997) (quoting Dunlea v. Dappen, 83 Hawai #i 28, 36, 924 P.2d 196, 204 (1996) (brackets in original). "The evidence must be viewed in the light most favorable to the non-moving party." State ex rel. Bronster v. Yoshina, 84 Hawai #i 179, 186, 932 P.2d 316, 323 (1997) (citing Maguire v. Hilton Hotels Corp., 79 Hawai #i 110, 112, 899 P.2d 393, 395 (1995)). In other words, "we must view all of the evidence and the inferences drawn therefrom in the light most favorable to [the party opposing the motion]." Maguire, 79 Hawai #i at 112, 899 P.2d at 395 (citation omitted).

10

11

Taylor v. Government Employees Ins. Co., 90 Hawai#i 302, 305-06, 978 P.2d 740, 743-44 (1999) (quoting State Farm Mut. Auto. Ins. Co. v. Murata, 88 Hawai#i 284, 287-88, 965 P.2d 1284, 1287-88 (1998) (quoting Estate of Doe v. Paul Revere Ins. Group, 86 Hawai#i 262, 269-70, 948 P.2d 1103, 1110-11 (1997))) (brackets in original). B. Statutory Interpretation
"[T]he interpretation of a statute . . . is a question of law reviewable de novo." . . .Arceo, 84 Hawai #i [at] 10, 928 P.2d [at] 852 . . . (quoting State v. Camara, 81 Hawai #i 324, 329, 916 P.2d 1225, 1230 (1996) (citations omitted)). See also State v. Toyomura, 80 Hawai #i 8, 18, 904 P.2d 893, 903 (1995); State v. Higa, 79 Hawai #i 1, 3, 897 P.2d 928, 930 . . . (1995); State v. Nakata, 76 Hawai #i 360, 365, 878 P.2d 699, 704 . . . (1994). . . . Gray v. Administrative Director of the Court, 84 Hawai #i 138, 144, 931 P.2d 580, 586 (1997) (some brackets added and some in original). See also State v. Soto, 84 Hawai #i 229, 236, 933 P.2d 66, 73 (1997). Furthermore, our statutory construction is guided by established rules: When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose. When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. . . . In construing an ambiguous statute, "[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HRS

Download Crichfield v. Grand Wailea Co. S.Ct..pdf

Hawaii Law