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Genya Scroggin and David James Scroggin v. Mandarin Oriental Management (Usa) Inc. Dba

February 21, 2013

GENYA SCROGGIN AND DAVID JAMES SCROGGIN,
PLAINTIFFS-APPELLANTS,
v.
MANDARIN ORIENTAL MANAGEMENT (USA) INC. DBA KAHALA MANDARIN ORIENTAL HAWAII,
DEFENDANT-APPELLEE, AND JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, AND DOE ENTITIES 1-10,
DEFENDANTS



APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 07-1-0110)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER

(By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)

Plaintiffs-Appellants Genya Scroggin and David Scroggin (collectively "the Scroggins") appeal from the Amended Judgment filed in the Circuit Court of the First Circuit (Circuit Court), on April 15, 2009, in favor of Defendant-Appellee Mandarin Oriental Management (USA) Inc. dba Kahala Mandarin Oriental Hawaii (the Mandarin), against the Scroggins.*fn1 The Scroggins raise four points of error on appeal:

(1) The jury verdict was incomplete because the Circuit Court failed to instruct the jury on strict liability and because the Special Verdict Form erroneously instructed the jury to stop deliberating if the jury found Mandarin was not negligent;

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

(2) The trial court's refusal to take judicial notice of the regulations governing restaurants prevented the jury from considering the appropriate standards of care;

(3) Inadmissible character evidence was admitted against the Scroggins causing extreme prejudice, confusion of the issues, and creating the risk that the jury would "punish" the Scroggins; and

(4) The Circuit Court erroneously prohibited the Scroggins from admitting photographs of Mrs. Scroggins injuries and from showing properly authenticated photographs to the jury. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the Scroggins' points of error as follows:

(1) The Scroggins filed a four-page, three-count,

complaint stemming from purported injuries allegedly suffered after eating certain food (later identified as chicken wings) at the Mandarin. Two of the three counts were based on "strict liability" and the third count asserted a claim based on negligence. No counts were dismissed or otherwise disposed of prior to the jury trial that was conducted in February of 2009. As plaintiffs' counsel had withdrawn and/or was fired by the Scroggins, the Scroggins were self-represented at trial. Although mindful that this court's ability to address plain error is to be exercised sparingly (see Okada Trucking Co., Ltd. v. Bd. of Water Supply, 97 Hawaii 450, 458, 40 P.3d 73, 81 (2002)), we must conclude that the Circuit Court plainly erred in failing to provide the jury with any instruction whatsoever concerning the Scroggins' strict liability claims. The Scroggins did not propose any jury instructions or additions to the special verdict form, and did not raise an objection to the Circuit Court's omission of instructions or interrogatories concerning strict liability. Instead, when asked if the special verdict form was acceptable, Mr. Scroggin informed the court, "[w]e're going with whatever the Court recommends on these items."

We are mindful, however, that the "function served by jury instructions is to inform the jury of the law applicable to the current case." Tittle v. Hurlbutt, 53 Haw. 526, 530, 497 P.2d 1354, 1357 (1972). It has been often stated that "[t]he boundaries of the trial judge's discretion in performing this function are defined by the obligation to give sufficient instructions and the opposing imperative against cumulative instructions." See id. "[E]ven the complete failure to object to a jury instruction does not prevent an appellate court from taking cognizance of the trial court's error if the error is plain and may result in a miscarriage of justice." Montalvo v. Lapez, 77 Hawaii 282, 288, 884 P.2d 345, 351 (1994) (quoting Turner v. Willis, 59 Haw. 319, 324, 582 P.2d 710, 714 (1978)). Similarly, trial courts are vested with "complete discretion" in determining the use and form of interrogatories to the jury, "provided that the questions asked are adequate to obtain a jury determination of all factual issues essential to judgment." Id. at 292, 884 P.2d at 355 (citations and internal quotation marks omitted). Plain error may be noticed as follows:

In civil cases, the plain error rule is only invoked when 'justice so requires.' We have taken three factors into account in deciding whether our discretionary power to notice plain error ought to be exercised in civil cases: (1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the ...


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