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Lisa Kobashigawa, As Personal Representative of the Estate of William v. Joseph M. K. Silva and City and County of Honolulu

December 2, 2011

LISA KOBASHIGAWA, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM S. KOBASHIGAWA, DECEASED, AND EARL KOBASHIGAWA AND GAIL PEI, AS CO-TRUSTEES OF THE MARGARET M. KOBASHIGAWA REVOCABLE LIVING TRUST AND AS ASSIGNEES OF MARGARET M. KOBASHIGAWA, DECEASED, PLAINTIFFS-APPELLANTS,
v.
JOSEPH M. K. SILVA AND CITY AND COUNTY OF HONOLULU, DEFENDANTS-APPELLEES, AND 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



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 06-1-0682)

The opinion of the court was delivered by: Foley, J.

FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

FOLEY, PRESIDING J., LEONARD AND REIFURTH, JJ.

OPINION OF THE COURT BY FOLEY, J.

Plaintiffs-Appellants Lisa Kobashigawa, as Personal Representative of the Estate of William S. Kobashigawa, Deceased, and Earl Kobashigawa and Gail Pei, as Co-Trustees of the Margaret M. Kobashigawa Revocable Living Trust and as Assignees of Margaret M. Kobashigawa, Deceased, (collectively, Kobashigawas) appeal from the Judgment Pursuant to Special Verdict filed on March 25, 2010 in the Circuit Court of the First Circuit (circuit court).*fn1 The circuit court entered judgment in favor of Defendant-Appellee City and County of Honolulu (City) and against Kobashigawas on all counts in Kobashigawas' Second Amended Complaint.

On appeal, Kobashigawas contend:

(1) The circuit court erred in denying Kobashigawas' Motion in Limine No. 1 (MIL No. 1) and partially denying Kobashigawas' Motion in Limine No. 4 (MIL No. 4), as such denial permitted irrelevant and highly prejudicial evidence and argument on Kobashigawas' motive for bringing suit.

(2) The circuit court committed reversible error by allowing the admission of portions of the deposition testimony of Gina Bailey (Bailey), a witness to the accident, because her testimony contained irrelevant evidence that prejudiced the substantial rights of Kobashigawas and the fairness of the proceeding.

(3) The cautionary jury instruction given by the circuit court after the reading of Bailey's deposition constituted reversible error because it misstated the law and prejudiced the substantial rights of Kobashigawas.

(4) The circuit court erred in allowing City, in closing argument, to comment on Kobashigawas' motive for bringing suit.

(5) The circuit court erred in filing a Judgment

Pursuant to Special Verdict and partially granting City's Motion for Taxation of Costs because of the above-stated reversible error.

I.

This case arises out of an collision on December 22, 2005 between a motor vehicle and William S. Kobashigawa (Mr. Kobashigawa), a pedestrian, that resulted in the death of Mr. Kobashigawa. Kobashigawas alleged that Mr. Kobashigawa was in a pedestrian crosswalk on Kamehameha Highway in Kaneohe, Hawaii, ...


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