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Winfrey v. GGP Ala Moana LLC

Supreme Court of Hawaii

July 18, 2013

HEATHER R. WINFREY, Individually and As Personal Representative for the Estate of JASMINE ROSE ANNE FRY, and SAMUEL J. FRY, JR., Petitioners/Plaintiffs-Appellants,
GGP ALA MOANA LLC dba ALA MOANA CENTER, Respondent/Defendant-Appellee.


Michael J. Green, Glenn H. Uesugi, and Myles S. Breiner for petitioner.

Patricia M. Napier, Thomas Benedict, and Kimberly A. Vossman for respondent.




I. Introduction

Jasmine Rose Anne Fry ("Fry") somehow accessed the rooftop of Ala Moana Center ("Center"), entered into and became trapped in an exhaust duct above the Makai Market Food Court ("Food Court"), then died from hyperthermia and respiratory compromise. Her parents, Heather R. Winfrey and Samuel J. Fry, Jr. (collectively, "Plaintiffs"), sued GGP Ala Moana LLC dba Ala Moana Center ("Ala Moana"). Before a trial date had been set, Ala Moana moved for summary judgment on the grounds that (1) it did not owe Fry a duty of care because she was a trespasser; and (2) it could not be held liable for its affirmative attempts to render aid. The Circuit Court of the First Circuit ("circuit court") granted summary judgment in favor of Ala Moana on all of Plaintiffs' claims.[1] The Intermediate Court of Appeals ("ICA") affirmed on appeal, concluding that Ala Moana did not owe Fry a legal duty under any theory of liability.

We hold that summary judgment was properly granted on Plaintiffs' general premises liability claims against Ala Moana as a possessor of land because: (1) Ala Moana owed no duty to a person not reasonably anticipated to be on the rooftop and, based on the admissible evidence, Fry could not have reasonably been anticipated to be on the rooftop; (2) even if Ala Moana should have reasonably anticipated Fry' s presence on the rooftop, it still could not be held liable because Fry's entry into the exhaust vent was not reasonably foreseeable; therefore, any breach of its general duty as a possessor of land was not a substantial factor in causing Fry's injuries and/or death; (3) whether or not Fry had the mental capacity to voluntarily enter the exhaust duct is irrelevant to Ala Moana's general premises liability duty; (4) the doctrine of res ipsa loquitor is inapplicable; and (5) Plaintiffs' other theories as to how Fry ended up on the rooftop are speculative and constitute intentional torts for which Ala Moana cannot be held vicariously liable.

We also hold, however, that pursuant to section 338 of the Restatement (Second) of Torts, adopted by this court in Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977), as a possessor of land in immediate control of the heat, smoke, and gasses emanating from stoves in the Food Court into the exhaust duct, and knowing of Fry's presence in dangerous proximity to those forces, Ala Moana had a duty to exercise reasonable care to control those forces to prevent them from doing harm to Fry, even if she was a trespasser. Genuine issues of material fact exist as to (1) whether Ala Moana breached its duty under section 338; and (2) if so, whether such breach was a substantial factor in causing Fry's injuries and/or death.

In addition, we hold that, pursuant to section 314A(3) of the Restatement (Second) of Torts, as a possessor of land who held its land open to the public, Ala Moana had a duty to members of the public who entered the Center in response to its invitation to take reasonable action to give first aid after it knew or had reason to know that such persons were ill or injured, and to care for such persons until they could be cared for by others. Genuine issues of material fact exist to (1) whether Fry was a member of the public who entered the Center in response to Ala Moana's invitation; (2) if so, whether Ala Moana breached its duties under section 314A(3); and (3) if so, whether such breach was a substantial factor in causing Fry's injuries and/or death.

Therefore, we vacate in part and affirm in part the ICA's judgment in favor of Ala Moana, and remand the case to the circuit court for further proceedings consistent with this opinion.

II. Background

A. Factual Background

Reviewing the law d§_ novo and the facts and in the light most favorable to Plaintiffs, pursuant to the standards governing appellate review of summary judgment motions, [2] the following factual background can be gleaned from the evidence in the record.[3]

On Saturday, September 3, 2005, at around five or ten minutes after 2:00 p.m., Cary Oshiro ("Oshiro"), a maintenance worker employed by Ala Moana, responded to a call from the Poi Bowl restaurant at the Food Court indicating its exhaust fan was not working. Oshiro was at Poi Bowl for less than a minute. While there, security officers were also responding to a smoke alarm at Little Cafe Siam, next door. Because the two restaurants shared the same exhaust vent, Oshiro proceeded to the rooftop to determine whether the exhaust fan was functioning.

Before proceeding to the Bally rooftop, where these ducts eventually ended, Oshiro called the security control center to explain that he would be accessing a secured gate to the stairwell.[4] He then used an electronic swipe card to open the gate and proceeded upstairs.[5] Normally, the magnetic lock on the gate was wired to a silent alarm system that would signal whether the gate was open or closed, and the lock was monitored in the security control center. That afternoon, however, the alarm for the gate was not functioning properly, and there was no video surveillance of the area. Ala Moana's security and maintenance personnel were the only people with access to these areas and, during the relevant time period, no keys or access cards had been reported lost or stolen.[6]

Oshiro proceeded to unlock a padlock on the hatch that opened onto the rooftop. When he reached the rooftop, he checked the exhaust fan and determined that it was not running. A young woman, later identified as Fry, appeared from behind the fan. Fry was barefoot, dressed in shorts and a tank top, and had grease smeared on her feet, hands, hair and face. She did not appear to have any noticeable injuries.

Oshiro asked Fry what she was doing on the rooftop, and she responded that she was a contractor hired to clean grease from the fan. When Oshiro asked whether security knew she was working on the rooftop, she said, "Yes." When he asked who had contracted her to do the work, Fry responded, "A guy named Joe." These answers struck Oshiro as odd because that type of work typically was not done during business hours, when the restaurants needed the exhaust fans. Oshiro then asked how she had gotten onto the rooftop, but Fry did not answer. He repeated the question two or three times, and she responded, "No, it doesn't matter." Oshiro noticed that Fry was jumpy and seemed nervous.

One to three minutes after first encountering Fry on the rooftop, Oshiro called security to verify her story. As he did, Fry climbed on top of the exhaust duct and began jumping up and down. Oshiro asked her what she was doing, but she did not respond. He then asked her to come down, and she climbed off the duct.

Charles (or Kazu) Yokoyama ("Yokoyama"), a senior maintenance mechanic, joined Oshiro on the rooftop, and Oshiro explained the situation to him. In the meantime, Fry had climbed back onto and started jumping forcefully on the duct. Yokoyama asked her to come down and talk to them, but Fry did not respond. As Fry continued jumping, Yokoyama stepped away to call security.

Fry then told Oshiro that there was a baby in the duct. Oshiro asked her what she was talking about, and Fry responded, "No, nothing. You know, it doesn't matter." At this point, two to five minutes had passed since Oshiro first encountered Fry. Eventually, the force of Fry's jumping caused the sheet metal to collapse inward, creating a hole about six to eight inches high and two feet wide. Fry slid her feet inside the opening and squeezed into the duct as the metal bent under her weight. Upon witnessing this, Oshiro again called security, and asked that a security officer be sent to the roof.

In the meantime, Derek Hangai ("Hangai"), in the security control center, checked Ala Moana's records to determine whether any contractors had been scheduled to work on the rooftop. As he confirmed with the Poi Bowl and Little Cafe Siam that neither restaurant was aware of any work scheduled that day, Oshiro called to report that Fry had climbed into the exhaust duct. Hangai stated he did not remember whether he asked Lieutenant Henry Tancayo ("Tancayo") or dispatcher Brian Babauta ("Babauta") if he should call emergency services upon learning that Fry had climbed into the duct.

Ala Moana security officer Lukela Bagood ("Bagood") arrived on the rooftop just as Fry was entering the exhaust duct. Bagood had been instructed by his supervisor, Tancayo, to arrest or detain Fry if possible. Bagood relayed to Tancayo that Fry was inside the duct, but he did not recall whether anyone asked if they should call emergency services. Security officer Jowana Lobendahn ("Lobendahn") responded later, at approximately 2:35 p.m. Lobendahn stuck her head into an opening in the duct and attempted to locate Fry. Lobendahn asked Fry if she was injured, and Fry responded "No." Lobendahn then continued to communicate with Fry and told her to stay where she was, but Fry stopped responding. After two or three minutes, however, Oshiro and Yokoyama heard a loud banging from inside the duct, followed by silence.

In an attempt to locate Fry, Lobendahn, Yokoyama, and Oshiro followed the route of the ventilation duct inside the building. Lobendahn went one level down to the Gucci corridor, where she kicked and banged on the duct to see if Fry could hear her. She then returned to the rooftop to see if Bagood could get Fry to respond. Yokoyama ran downstairs to the parking lot level. Oshiro ran to the Food Court where the duct eventually ended. Bagood and Lobendahn remained on the Bally rooftop for around twenty minutes until the control center directed them to Little Cafe Siam.

When Oshiro arrived at Little Cafe Siam, the employees reported that the exhaust duct above the stove was moving. Oshiro saw that someone was pushing at the sheet metal from the inside. After unscrewing the access panel to the duct and opening up the sheet metal, Oshiro noticed that Fry was trapped in a small space in the stove hood, on the other side of a narrow metal bar. Fry was responsive and said something, but Oshiro could not recall what she said. Oshiro could not recall what time he arrived at the restaurant.

Although Oshiro and Yokoyama said that the stoves were off when they arrived at Little Cafe Siam, Lobendahn, who arrived later, stated:

One stove ewa of where the female was located had [four] pots with hot water. [Second] stove directly under the female had [two] large cooking woks that had nothing in it. We had the employees of Cafe Siam remove cooking items out of the way and turned off all stoves and gasses.

In addition, according to Bagood, the stoves and ovens at Poi Bowl were still on when he arrived downstairs.

After restaurant employees were directed to turn off the stoves, Lobendahn pulled down a metal panel underneath Fry so she could get some air, and held her hand in an attempt to reassure her and keep her conscious. Lobendahn asked Fry for her name, age, where she was from, and why she was on the rooftop. Fry responded that her name was Dallas, she was twenty-two years old, and she was from Kona. She said that she had been on the rooftop because she wanted to be free. She also said that she had a miscarriage, but did not want to talk about it because it made her cry. Fry later said that she was sorry, she did not want to die, and please get her out. Lobendahn reassured her that everything was going to be okay and they would get her out.

When patrons were injured, Ala Moana's procedure was to have security call emergency services, which would arrive on scene within a few minutes. Bagood was therefore surprised that when he arrived at the Food Court, emergency service personnel were not already there. In fact, no one from Ala Moana called emergency services until 2:54 p.m.; and when the call was made, it was to inform the Honolulu Police Department ("HPD") that a woman had broken into a duct at Ala Moana Center and was crawling through the duct without authorization. HPD was asked to send an officer to the rooftop in case the woman decided to climb out of the duct. Moments later, however, HPD was informed that the woman was attempting to crawl down the duct into the Food Court, and Ala Moana asked that the officer report to Little Cafe Siam.

At approximately 2:57 p.m., security personnel called Emergency Medical Services ("EMS") to request an ambulance, and to report that an unknown female had gotten into the exhaust fans on the rooftop and had either slipped or fallen down the duct. Security reported that maintenance was attempting to remove the woman from the exhaust duct. EMS called the Honolulu Fire Department ("HFD") to request assistance in extricating Fry from the duct. As EMS was explaining the situation to HFD, an Ala Moana security officer said, "Oh, looks like we got her out, " and then, "You know what ambulance would be good for now. It looks like she's okay, but -...." According to the transcript of this call, Ala Moana security could hear what EMS was relaying to HFD. When EMS told HFD that it was no longer needed because Fry had been removed from the exhaust duct, the security officer did not correct EMS to request that HFD or EMS respond to the scene immediately.

At approximately 3:00 p.m., another call was placed from Ala Moana security, this time directly to HFD, requesting assistance in extricating Fry from the duct. Paramedics arrived on the scene at 3:06 p.m., and HFD arrived at 3:10 p.m. Once EMS, HPD, and HFD arrived, Oshiro, Yokoyama, and Lobendahn stepped away as rescue services personnel attempted to extricate Fry from the duct. Fry was finally removed from the exhaust duct at approximately 4:53 p.m. Upon removal from the duct, she immediately became unresponsive, and was transported to The Queen's Medical Center in critical condition at 5:09 p.m. Fry was asystolic during transport to the hospital, and resuscitation efforts failed. She arrived at the hospital at 5:28 p.m., and was pronounced dead at 5:33 p.m.

An autopsy performed on Fry indicated that the cause of death was the combined effects of hyperthermia and respiratory compromise. Fry was twenty-two years old at the time of her death, and was approximately six to eight weeks pregnant. The autopsy indicated that no internal injuries caused or contributed to Fry's death, although the extrication process left various scrapes and bruises on her skin. In addition, blisters on her skin were consistent with superficial burns from contact with a hot surface. The medical examiner concluded that information regarding the circumstances leading to and surrounding her death suggested an acute psychotic episode of unknown etiology. No stimulant drugs known to cause an acute psychotic episode were detected in Fry's blood or vitreous fluid.

A subsequent investigation by HPD and Ala Moana could not conclusively determine the means by which Fry accessed the Bally rooftop. Upon further examination of the rooftop that afternoon, Fry's belongings, including her ID, toiletries, clothes, perfume, day planner, and purse, were found scattered in three drains on the rooftop. Among the items found was a screwdriver.

Ala Moana personnel did not know of any unauthorized entry or trespass to the rooftop or the ventilation system before this incident. They also did not know how Fry could have gotten to the rooftop other than through the secured gate and hatch. Other evidence indicated, however, that it was possible to access the Bally rooftop from an adjacent building. In response to an interrogatory asking how Fry got to the rooftop, Ala Moana surmised that Fry likely entered areas that were marked for authorized personnel only and climbed on the Center's rooftop until she reached the Bally rooftop by (a) entering a fourth floor hallway near the Godiva store that led to a rooftop door, which was propped open by air conditioning contractors, then traversing the rooftops to the Bally rooftop, or (b) entering a fourth floor hallway that led to a ledge that allowed her to access the rooftop directly across from the Bally rooftop, then climbing across the Neiman Marcus tiled rooftop over to the Bally rooftop.

B. Circuit Court Proceedings

Plaintiffs Heather R. Winfrey, individually and as personal representative for Fry's estate, and Samuel J. Fry, Jr. filed suit against Ala Moana in the Circuit Court of the First Circuit. Plaintiffs asserted claims against Ala Moana for: wrongful death (Count I); negligent failure to provide a safe premises (Count II); negligent failure (a) to properly train or supervise employees, and (b) to care for Fry and her unborn child during the incident (Count III); intentional/negligent infliction of emotional distress (Count IV); and punitive damages (Count V).

Before discovery had been completed and before a trial date had been set, Ala Moana filed the subject motion for summary judgment, arguing, in general, that (1) it did not owe Fry a legal duty because she was a trespasser not reasonably anticipated to be on the Bally rooftop, and (2) it could not be held liable for its attempts to aid Fry after she became stuck in the exhaust duct. Specifically, Ala Moana asserted that there could be no liability arising from its ownership of the property because Fry had been a trespasser, she was not reasonably anticipated to be in a secure area to which only authorized personnel had access, the limited duty owed to trespassers did not apply where there had been no prior history of trespass to the area, and it did not create or maintain the condition that harmed Fry. Ala Moana further argued that it did not have an affirmative duty to intervene to protect Fry from her own actions. Finally, it argued that it could not be held liable for any attempts to aid Fry because the duty to assist an injured person was limited and any attempts to render aid were protected by a Good Samaritan statute, Hawai'i Revised Statutes ("HRS") § 663-1.5.

In opposition, Plaintiffs argued that Ala Moana had implicitly taken custody of Fry because Ala Moana personnel had exclusive control over and access to the rooftop. They claimed that Fry was induced to the rooftop and locked outside by an Ala Moana employee, and that she was suffering from the effects of heat stroke when maintenance and security personnel found her. Plaintiffs argued that Ala Moana had a duty to use reasonable care for the safety of all persons reasonably anticipated on the premises. In addition, they contended that Ala Moana voluntarily undertook to ensure the safety of its customers, and the reasonableness of its actions in rendering aid was a question of fact. They also argued that the doctrine of res ipsa loquitor applied because Fry could not have been locked on the rooftop but for Ala Moana's negligence. Finally, they argued that the circuit court had erred in denying their request for a continuance to conduct additional discovery, including various depositions.[7]

Ala Moana replied, inter alia, that the evidence established that Fry was a trespasser, and that any allegation that she was locked on the rooftop by an Ala Moana employee relied on pure conjecture rather than reasonable inferences. It claimed that Plaintiffs' characterization of the facts distorted the evidence in the record. It reiterated that Ala Moana did not owe a duty based on premises liability because Fry was not reasonably anticipated to be on the rooftop, and that Plaintiffs' other theories of liability were without merit where there was no evidence Ala Moana allowed Fry to access the rooftop and Fry voluntarily broke into the exhaust duct.

After a hearing on this motion, the circuit court orally granted summary judgment in favor of Ala Moana on all claims based on premises liability and intentional conduct. The court declined to grant summary judgment on any remaining claims based on a duty to render aid. It noted that, pursuant to Lundy v. Adamar of New Jersey, 34 F.3d 1173 (3d Cir. 1994), a landowner has a duty to render aid once it becomes aware of a person injured on its property. The court stated that this duty might have required Ala Moana to take affirmative action upon learning of Fry's presence on the rooftop, and it declined to shield Ala Moana from liability through HRS § 663-1.5, a Good Samaritan statute which generally precludes civil liability against a person rendering first aid.

The circuit court entered an order granting summary judgment in favor of Ala Moana on Count II (negligence in failing to provide a safe premises) and part of Count IV (intentional infliction of emotional distress). However, it denied summary judgment on Count I (wrongful death), Count III (negligence in failing to properly train/supervise employees or otherwise care for Fry), part of Count IV (negligent infliction of emotional distress), and Count V (punitive damages) .

In the meantime, Ala Moana filed a motion for reconsideration, arguing that Plaintiffs' remaining claims should be dismissed pursuant to Moyle v. Y&Y Hyup Shin Corp., 118 Hawai'i 385, 191 P.3d 1062 (2008). Ala Moana argued that, based on Moyle, it could not be held liable for its affirmative attempts to render aid absent a showing of gross negligence or wanton acts or omissions. Plaintiffs, however, argued that Moyle was distinguishable because it involved an incident occurring outside the defendant's premises, a criminal act by a third party, and a failure to act by defendant's employees.

Upon considering these arguments, the circuit court entered an order granting summary judgment in favor of Ala Moana on the remaining counts pursuant to Moyle. The court then entered final judgment in favor of Ala Moana on all of Plaintiffs' claims.

C. The ICA Decision

On appeal, Plaintiffs and Ala Moana essentially repeated their arguments to the circuit court. In a summary disposition order ("SDO"), the ICA affirmed the circuit court's final judgment in favor of Ala Moana. The ICA concluded, in relevant part, that Ala Moana did not take Fry into custody based on Plaintiffs' unsupported allegations that Ala Moana employees were responsible for bringing Fry to the rooftop; Ala Moana did not owe a duty of care under a general premises liability theory because the rooftop was secured by a set of locked doors, Fry was not authorized to be on the rooftop, and Plaintiffs produced no evidence that Ala Moana should have reasonably anticipated her presence on the rooftop; Ala Moana did not voluntarily assume a duty of care for Fry's safety; there was no duty to render aid because there was no special relationship between Ala Moana and Fry; and the doctrine of res ipsa loquitur was inapplicable where Fry's death was caused by her own voluntarily actions in entering the exhaust duct against the warnings of Ala Moana employees. In addition, the ICA concluded that the parties' arguments regarding Moyle were moot because summary judgment could be affirmed based on the absence of a duty to render aid under Lee v. Corregedore, 83 Hawai'i 154, 925 P.2d 324 (1996).

D. Issues on Certiorari

Plaintiffs argue to this court that, viewing the facts in the light most favorable to them, the ICA gravely erred in affirming summary judgment because there were genuine issues of material fact as to whether Fry acted voluntarily when she entered the exhaust duct and whether she was reasonably anticipated to be on the rooftop. They argue that the ICA erred in dismissing their theory of res ipsa loquitur because the facts supported an inference that Fry would not have been on the rooftop but for Ala Moana's negligence. Finally, Plaintiffs argue that the ICA erred in concluding that Ala Moana did not owe Fry a ...

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