The summary provided below is general information only and is not intended to be used as legal advice. This information may not be relied on for any reason and may not be current or accurate. If you wish an exact statement of the current law in Hawaii on the subjects covered please call Poelman & Langa at 808-242-7222.

Hawaii Law Regarding Liability Arising Out Of Possession Of Land

A. Possessors of Land Owe The Same Duty to All Visitors

Hawaii has rejected the traditional common law rule imposing varying degrees of duties upon possessors of land based on the classification of persons coming upon the land. The traditional classifications, which may be found in the Restatement of Torts (Second) §343, were trespassers, licensees (social guests) and invitees (business guests). Each was owed in turn a greater obligation by the possessor of the land.

In 1969 Hawaii adopted as its rule of modern Common Law a uniform duty imposed upon possessors of land to use reasonable care for the safety of all persons reasonably anticipated to come upon the land

1. Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445
   Pickard went to the Hauula Courthouse and obtained permission to use the restroom from an officer on duty there. The restroom light switch was not working, but being familiar with the layout of the restroom, plaintiff proceeded into the room. He unexpectedly fell through a hole in the floor, suffering injuries for which he sought compensation from the defendant, for failure to exercise ordinary care in maintaining the premises in a safe condition and in providing adequate warning of the hazard in the unlighted restroom. Defendant contended that such duty was not owed to a mere licensee and in the alternative, that plaintiff was contributorily negligent when he entered the restroom in darkness and when the entries were allegedly blocked by lumber and other objects.

   The trial judge instructed the jury that plaintiff was a licensee as a matter of law and further instructed them that defendant's only duty was 'not to harm him willfully or wantonly, or to expose him to danger by active negligence.' Plaintiff appeals from the order entering the verdict for defendant.

   Pickard was given another trial where the instructions to the jury would have to be modified to reflect the change in the law announced by the Supreme Court.

   While the rule was established to be less favorable to possessors of land, as in the case where the injured party is a licensee, in many cases it benefits a business possessor, since the most common persons to claim against businesses are customers. Customers would have been categorized as invitees whose presence on the land at gave rise under the common law to the duty to make the land safe or warn of any dangerous condition on the premises. In Hawaii a business can now argue to the jury that its conduct is to be measured by the same standard as their own would be. Although the argument would have to be phrased, "the same as any one who is sued by a person who receives a guest in their home" rather than referring to the jurors directly.

2. Gibo v. City & County of Honolulu, 51 Haw. 299. 459 P.2d 19
   Gibo, accompanied by his wife and Mrs. Nakasone arrived at Maluhia Hospital to identify the body of his deceased son. The plaintiff used the ambulance-garage area approach to the morgue instead of the main entrance to the hospital. While walking over the second ambulance stall he slipped, fell and suffered a broken kneecap.

   The evidence is uncontradicted that employees of the hospital had knowledge that the public used the garage area as a walkway to an entrance of the hospital. The employees also testified that oil pans had been used to 'catch the oil drippings from the engine part of the ambulance.'

   All of the witnesses who were at the scene testified that the oil or oil slick was on the concrete floor of the second stall where plaintiff fell.

   Plaintiff underwent surgery and while convalescing at his home he re-injured the same knee when he stumbled over a mango root while manually watering his lawn on crutches. 459 P.2d 198, 51 Haw. 299, Gibo v. City and County of Honolulu, (Hawaii 1969)

   After a jury trial, the jury returned a verdict for plaintiff for the sum of $78,574.30 ($75,000 general damages and $3,574.30 special damages). Judgment was entered accordingly and defendant appealed.

   The instructions regarding duty were affirmed based on the Pickard decision as was the liability decision. However, the city was given a new trial as to damages since the court decided it was for the jury to determine whether the second injury was a result of the first accident or plaintiff's own negligence. It was held that the jury should have been instructed on the law applicable to successive accidents, which we discussed above.

3. Richardson v. Sports Shinko Waikiki Corp., 76 Haw. 494, 880 P.2d 169 (1994)
   The Supreme Court affirmed the verdict in this recent case where the jury found in favor of the hotel and against the guest who injured herself on a staple embedded in a meeting room rug. The following excerpts from that decision are very helpful in gaining an understanding of the duty imposed by the law of Hawaii on possessors of land, and an example of evidence used to support the hotel's defense that it met its duty under one set of circumstances:
   . . . the controlling law in this jurisdiction is well-settled. Hawaii no longer follows the common law scheme that categorized a premises owner's duty to those coming onto his or her land based on the status of the visitor (e.g., trespasser, licensee, invitee). Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 416, 772 P.2d 693, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1989) (citations omitted). Instead, the general rule with respect to all landowners is that " [a] possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it." Corbett, 70 Haw. at 415, 772 P.2d at 693 (emphasis added); see also Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d 377, 384 (1987). Thus, when reasonable steps are taken to eliminate the unreasonable risk of harm, no duty to warn remains.

   Based on a thorough review of the record and viewing the evidence presented in the light most favorable to Sport Shinko, we cannot say as a matter of law that Sport Shinko failed to take reasonable steps to eliminate the risk posed by the staples in the carpet. Evidence was presented that: (1) vacuuming was the best way to detect debris in the carpet because the carpet's pattern made visual inspection difficult; (2) the carpet in the Akala Room was regularly cleaned and vacuumed during the day and night prior to the accident; (3) Virgo, the night janitor, vacuumed the carpet thoroughly each night, picking up fewer and fewer staples until he could detect no more staples; (4) Virgo was satisfied that no staples were left in the carpet prior to the accident; and (5) there were no complaints or reports of staples in the Akala Room prior to the time of Mrs. Richardson's injury.

B. Open and Obvious Conditions Do Not Give Rise to Any Duty

1. Friedrich v. Department of Transportation, 60 Haw. 32 at 36 (1978),
   The Supreme Court of Hawaii upheld a judge's decision that no duty was breached, writing:
   [T]he duty of care which . . . an occupier of the premises, owed to appellant traditionally does not require the elimination of known or obvious hazards which appellant would reasonably be expected to avoid. Restatement (Second) of Torts § 343A (1965). . . . The obviousness of a risk substitutes for an express warning and satisfies this obligation. Where the government maintains land upon which the public are invited and entitled to enter, it " may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid." Restatement (Second) of Torts § 343A, Comment g (1965). (Emphasis added.)

   Thus, even if a dangerous condition is established to have existed, the plaintiff must show it was of a type that an ordinarily careful customer (one who is watching where they are about to walk and wearing corrective lenses if needed,) would not have recognized before the defendant is subjected to any duty to act with respect to remedying the condition or warning of it.

   The court described the history of the deteriorated condition of the pier involved in Friedrich and then the other facts of the case were summarized as follows:

   [Friedrich] was aware that water would occasionally puddle or collect on the pier. On the day of the accident, [Friedrich] was walking slowly around the pier, wearing sandals with rubber soles which had worn smooth. He saw a puddle of water about four to six feet across, so situated that there was an unobstructed dry path in excess of twenty feet wide to the left of the puddle and a strip of dry cement surface about two to three feet wide to the right of the puddle extending to the edge of the pier. [Friedrich] acknowledged that prior to the accident he had avoided stepping into puddles while walking on the pier wearing slippers because it would have been slippery and dangerous. Appellant attempted to pass the puddle along the right side by means of the narrow dry strip along the pier edge, stepped into the side of the puddle, slipped and fell over the edge of the pier. He struck his head on the ocean floor, breaking his neck and resulting in permanent paralysis below the neck.

   The temptation to make bad law to permit recovery for very serious injuries was resisted by both the trial judge and the Supreme Court in this case. Defendants can thus increase the strength of this decision by directing the attention of the court to the significance of the injuries in the case with the case being defended presently.

2. Harris v. State, 1 Haw.App. 554, 623 P.2d 446 (1981)
   Mary Harris was involuntarily committed to Kaneohe State Hospital in November, 1973 for treatment of alcoholism. She was subsequently transferred to the Waipa Ward at Kaneohe State Hospital, a division exclusively for the care and treatment of recovering alcoholics. At that time, there were approximately 18 to 20 people in the ward in various stages of recovering from alcoholism. It is operated by Alcoholics Anonymous, a national organization devoted to the treatment of alcoholism. As part of its rehabilitative program, the residents-patients of Waipa Ward inter alia assumed responsibility for keeping the premises clean and presentable and meal preparations. There is evidence that these responsibilities included daily mopping of the floors and the cleaning of the bathroom facilities as well as washing dishes after meals. Some groundwork was also done by the patients under supervision by State employees. The tasks were divided among the residents-patients. Heavy maintenance of the facility including painting, electrical work, carpentry, grounds upkeep and movement of furniture was done by employees of the State of Hawaii upon request to the State's maintenance clerk, by the patients or the resident manager, who was usually a former patient.

   In July of 1974, the appellant broke her knee when she slipped and fell on the floor near the water cooler as she was walking across the corridor to the dining area to wipe off a table. She was hospitalized for approximately one week and underwent surgery. She was returned to Kaneohe State Hospital where she remained in a cast for a month and was confined to a wheelchair. She eventually progressed in her treatment until she was able to walk assisted by a cane. However, in December of 1974 on the evening of her discharge, as she was walking towards an automobile while being assisted by another patient (who died prior to trial), she apparently slipped and fell in the parking lot and sustained additional injuries, breaking her leg and elbow. This action was brought seeking damages from the State of Hawaii for negligently causing the injuries incurred by the appellant in the two falls. At the close of the plaintiff's case, the State filed a Rule 41(b), Hawaii Rules of Civil Procedures (HRCP), motion to dismiss. The trial court granted the motion and entered its findings of fact and judgment thereon.

   The court held that no duty arose for obvious conditions and also held that the duty to correct or warn of conditions that are not obvious does not arise until the possessor of land has notice of the condition.

   To support recovery in an action where an owner or occupant is charged with negligence, it must be shown that the owner or occupant knows or should have known of the hazard or defect which caused the injury. Liability cannot be imposed where a landlord or an owner or occupant of premises has not been put on actual or constructive notice of the unsafe condition or defect that causes plaintiff injury. 62 Am.Jur.2d, Premises Liability, s 27 at 258 and cases cited therein. See also, Kellett v. City & County of Honolulu, 35 Haw. 447 (1940); McCrorey v. Heilpern, 170 Conn. 220, 365 A.2d 1057 (1976); Young v. Mager, 41 Ohio App.2d 60, 322 N.E.2d 130 (1974). Further, negligence law does not require an owner or occupant to be an insurer against all accidents that occur on the premises. Generally, no liability is incurred for every "trivial departure from perfection." 62 Am.Jur.2d, Premises Liability, s 23 at 254.

C. Only Unreasonable Risks Cause A Duty to Arise

1. Bidar v. AMFAC, Inc., 66 Haw. 547 at 559 (1983):
   . . . People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care of themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he is aware of their presence at the time. And if they have no unusual features and are in a place where he would naturally look for them, he may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge; hence the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff himself may have been. If an invitee has a cramp at the head of a flight of stairs and falls down it, his own freedom from fault will not help him to a recovery.

   The facts in Bidar were described by the court as follows:
   

   The plaintiff, a sixty-seven year old visitor from Madison, Wisconsin, checked into the Kaanapali Beach Hotel on June 4, 1977 with a tour group composed of senior citizens. On June 7, 1977, fifteen minutes before the group's scheduled departure from Lahaina, she decided to go to the bathroom of the hotel room she had been occupying for three days. In rising from her sitting position after using the toilet, she grabbed a towel bar affixed to an adjacent wall and attempted to pull herself up. But the bar tore loose from the wall before she was able to bring herself to a full upright position. This caused her to lose her balance, fall, and become wedged between the toilet and the bathtub. As a result, she sustained a fractured hip and a fractured wrist.
   The court upheld the grant of summary judgment on the question of product liability in the hotel's favor but also ruled that the question of any negligence in the location and stability of the towel bar were for a jury to decide.

2. Corbett v. AOAO Wailua Bayview Apartments, 70 Haw. 415 (1989)
   [T]he substance of our many cases, dealing with possessors of land, and their duty toward persons using the land, is that, if a condition exists upon the land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn the users against it. (Emphasis added.)
   

   In Corbett the Supreme Court stated the facts as follows:

   Appellant Margaret Corbett allegedly injured herself when she stepped off of a paved sidewalk on appellee's premises and fell. She claims that the cause of her fall was the four- or five-inch difference in height between the paved sidewalk and the adjoining lawn.

   The jury found in favor of the defendant landowners but the case was remanded for a new trial because the Supreme Court thought that the jury instructions should focus the juror's attention not on the dangerousness of the condition but instead on the character of the risk of harm as reasonable or unreasonable. As a result jury instructions must now discuss unreasonable risk of harm and will tend to shy away form discussion of the dangerousness of the condition, It remains important for defense counsel to argue the dangerousness of the condition and to relate reasonableness of the risk of harm to dangerousness of the condition to the jury since this is a proven important consideration for jurors.

   The sum total of these cases may be described as follows:
   

   Before the law will permit liability to be imposed upon a possessor of land a Plaintiff's first burden is to establish the existence of a condition presenting an unreasonable risk of harm to ordinarily careful and reasonably anticipated users of the possessor's premises. Plaintiff's second burden is to prove that Defendant knew or in the exercise of reasonable care should have known of the condition and the likelihood that the ordinarily careful user would not discover it. The third burden of Plaintiff is then to establish that the Defendant did not take reasonable steps to eliminate the risk or warn against it. Only if all three of these burdens have been carried can a possessor of land be found to have breached his duty to a user of the land who was injured by some condition occurring on the land.

   
   
   

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