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Ah Mook Sang v. Clark

Supreme Court of Hawai‘i

September 3, 2013

Tracy AH MOOK SANG, as the Personal Representative of the Estate of Makamae Ah Mook Sang, Deceased, Tracy Ah Mook Sang, individually, and Jason Ah Mook Sang, individually, Plaintiffs-Appellants,
Michael CLARK, Denise Clark, and Eden Pacific Properties, Inc., Defendants-Appellees.

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Thomas M. Otake, (Diane K. Agor-Otake with him on the briefs), Honolulu, for plaintiffs-appellants.

Jonathan L. Ortiz, (Wade J. Katano, Honolulu, and Christine S. Prepose-Kamihara with him on the briefs), for defendants-appellees.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., Circuit Judge ALM, in place of ACOBA, J., recused, and Circuit Judge AYABE, in place of POLLACK, J., recused.



[130 Hawai'i 285] Makamae Ah Mook Sang, according to the allegations in the complaint in this case, was fifteen years old on July 29, 2009 when she attended a house party hosted by Michael Clark, then twenty-five years old. Once there, Makamae was allegedly served and encouraged to drink large amounts of hard liquor. At some point during the night, she allegedly began to feel ill and then became unconscious, yet neither Michael nor his mother Denise Clark, with whom he lived and who was present on the property at the time, rendered or summoned any aid. The next morning, Michael then allegedly assisted in loading Makamae's apparently still-unconscious body into her friend's car and simply directed the friend to leave the property. According to medical personnel, by that time Makamae had likely already died of acute alcohol intoxication.

Makamae's parents, Tracy, individually and as personal representative of Makamae's estate, and Jason, individually (collectively, the Ah Mook Sangs), brought the present negligence action against Michael, Denise, and Eden Pacific Properties, Inc. (collectively, the Clarks). They seek damages under Hawai‘i Revised Statutes (HRS) § 663-3, Hawaii's wrongful death statute, as well as for claims of emotional distress and loss of consortium due to Makamae's death.

After the Circuit Court of the First Circuit [1] granted the Clarks' motion to dismiss the Ah Mook Sangs' complaint for failure to state a claim and entered judgment thereon, the Ah Mook Sangs appealed. The appeal is now before this court pursuant to our order granting the Ah Mook Sangs' application for transfer of the case from the Intermediate Court of Appeals (ICA).

This appeal requires us to consider whether a social host who invites a minor onto his or her property and then directly serves alcohol to the minor owes a duty of care to prevent foreseeable injuries resulting from consumption of the alcohol, or to render or summon aid if injuries have occurred, while the minor remains on the property as a guest. While this court has previously decided cases addressing civil liability for alcohol-related injuries, we conclude, based on the discussion that follows, that those cases are factually distinguishable from the situation presented by this case. We also conclude that the statute enacted to create a right of action founded on social host liability does not apply in a case such as this where the intoxicated minor has not caused damage or injury to an innocent third party.

Accordingly, we hold that a social host in the circumstances presented in this case owes a duty of care to a minor when the host has placed the minor in a position of peril and does not act to prevent foreseeable harm to the minor that may thereby result, and when the host does not act to aid the minor in the event that harm has occurred. We therefore vacate the order and judgment of the circuit court and remand for further proceedings in this case.

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[130 Hawai'i 286]I. BACKGROUND

A. Factual Background

Because this case is on appeal from a grant of a motion to dismiss the complaint, the facts alleged in the complaint are deemed to be true and viewed in the light most favorable to the Ah Mook Sangs. See, e.g., Buscher v. Boning, 114 Hawai‘i 202, 212, 159 P.3d 814, 824 (2007) (quoting Wong v. Cayetano, 111 Hawai‘i 462, 476, 143 P.3d 1, 15 (2006)).

On July 29, 2009, twenty-five-year-old Michael hosted a party at his residence in Honolulu. Denise, who is Michael's mother, also resided at the house and was present on the property during the party. The house was owned by Eden and Anne Clark, who is Denise's mother and Michael's grandmother. Denise is listed as the registered agent, president, and owner of Eden, a real estate company registered in the State of Hawai‘i as a for-profit domestic corporation.

In advance of the July 29 party, Michael purchased alcohol and invited female guests he knew to be under twenty-one years of age, including fifteen-year-old Makamae.

On July 29, Makamae arrived at the party at approximately 10:00 p.m. with an eighteen-year-old friend, who drove, and two other underage females. While at the party during the night of July 29 and early morning hours of July 30, Michael provided large amounts of alcoholic beverages, including hard liquor, to Makamae and the other underage female guests. Michael also organized and facilitated drinking games during the party and encouraged the guests, including Makamae, to participate. Due to consumption of the large amount of alcohol provided by Michael during the party, Makamae became visibly sick and unconscious; however, at no time on July 29 or 30, 2009 did Michael or Denise render aid to Makamae, call an ambulance, or otherwise seek medical attention.

At approximately 10:00 a.m. on July 30, Michael assisted in loading Makamae's body into the car of the friend who had driven and told her to leave the property; she drove straight to the emergency room at Straub Hospital and arrived there at approximately 10:55 a.m. Makamae was pronounced dead at 11:22 a.m., although it appeared that she was already deceased prior to that time. Jason was contacted by Straub Hospital personnel and rushed to the emergency room but arrived after Makamae had been pronounced dead; Tracy was on the mainland at the time and received the news via telephone. An autopsy revealed that Makamae's blood alcohol level at the time of death was .433 grams per deciliter, and the cause of her death was determined to be acute alcohol intoxication. The Ah Mook Sangs also alleged that Makamae did not consume any alcohol on July 29 and 30, 2009 other than what was provided to her by Michael at the party.

B. Procedural Background

The Ah Mook Sangs filed their complaint on November 4, 2010, alleging that the Clarks negligently caused Makamae's death, seeking damages pursuant to HRS § 663-3.[2] [130 Hawai'i 287]

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The Ah Mook Sangs also sought punitive damages.

Michael and Denise filed individual answers on December 9, 2010 and their motion to dismiss the Ah Mook Sangs' complaint for failure to state a claim upon which relief can be granted on February 10, 2011. Eden, which was represented by separate counsel at that time, filed its answer on December 23, 2010 and a joinder in the motion to dismiss on February 22, 2011. In support of the motion to dismiss, the Clarks began by noting that the Ah Mook Sangs' claims were based on the concept of social host liability; under that theory of liability, the Clarks would be held " legally responsible for Makamae's alcohol consumption and ultimate death." Specifically, the Ah Mook Sangs alleged that Michael, " an adult, negligently provided alcoholic beverages to a minor, Makamae, while she was a guest at his property[,]" and that Denise " was ‘ present’ at the property while her son, [Michael], was providing alcohol to minors." As the alter-ego of Denise, Eden would be responsible under joint enterprise or agency liability.

While the Clarks acknowledged that the Ah Mook Sangs' claims were grounded in HRS § 663-3, Hawaii's wrongful death statute, the Clarks argued that Hawaii's common law does not recognize a plaintiff's claim for damages based on the concept of social host liability. Moreover, although the Clarks recognized that the Hawai‘i Legislature created a limited exception to the common law in HRS § 663-41[3] by allowing claims against social hosts when the host's intoxicated guest who is under twenty-one years of age causes injury or damage to innocent third parties, they emphasized that the intoxicated minor guest has no similar claim against the host under that statute. The Clarks thus also argued that Tracy and Jason are barred from bringing their individual claims because those claims are derivative of the claims brought by Makamae pursuant to HRS § 663-3.

In opposition, the Ah Mook Sangs primarily distinguished the Hawai‘i cases cited by the Clarks as involving situations where intoxicated persons left the property where they consumed the alcohol and then injured themselves or others at a different location. In this case, however, the Ah Mook Sangs stressed that Makamae never left the Clarks' property and thus argued that the Clarks should be held liable because Makamae became ill and died while on their property due to their negligence.

The Ah Mook Sangs argued that, according to this court's opinion in Blair v. Ing, 95 Hawai‘i 247, 259-60, 21 P.3d 452, 464-65 (2001), whether one owes a legal duty to another must be decided on a case-by-case basis and should be determined by consideration of several different factors:

[w]hether a special relationship exists ..., the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered injury, the closeness of the connection between the defendants' conduct and the injury suffered, the moral blame attached to the defendants, the policy of preventing harm, the extent of the burden to the defendants and consequences to the community of imposing a [130 Hawai'i 288]

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duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk insured.

(Quoting Blair, 95 Hawai‘i at 260, 21 P.3d at 465 (quoting Lee v. Corregedore, 83 Hawai‘i 154, 164, 925 P.2d 324, 334 (1996))). Based on their analysis of these factors, the Ah Mook Sangs argued that " a legal duty to protect Makamae Ah Mook Sang against injury, and to render aid when injured, should be imposed on [the Clarks] for so long as she was on their property." The Ah Mook Sangs further pointed out that a denial of the motion to dismiss would not render this case incompatible with the existing Hawai‘i cases on dram shop liability and social host liability because of the key factual distinction in this case that Makamae never left the property and thus never caused injury to herself or to others in a different location. Rather, her injuries and death occurred on the subject property in this case, and the Clarks both provided the alcohol that gave rise to Makamae's distress while still on the property and thereafter failed to render or summon aid that could have remedied the distress they caused.[4]

The Ah Mook Sangs also argued that HRS § 663-41 does not preclude their claims. The Ah Mook Sangs acknowledged that HRS § 663-41 plainly applies to provide a claim by an innocent third party who has suffered injury or damage caused by an intoxicated person under twenty-one years of age as against a person over twenty-one years of age who either sold or furnished alcoholic beverages to the minor or owned, occupied, or controlled the premises where alcoholic beverages were consumed by any minor, knew of the consumption, and reasonably could have prohibited or prevented the consumption. The Ah Mook Sangs recognized that pursuant to HRS § 663-41(c), the intoxicated minor cannot bring his or her own claim against the provider of alcohol or occupier of the premises where the alcohol was consumed; however, because no third parties were injured in this case, the Ah Mook Sangs' claims were not brought under HRS § 663-41 and therefore could not be precluded by it. The Ah Mook Sangs also looked to the legislative history of the bill that became HRS § 663-41 and noted from both House and Senate committee reports that the bill was intended to impose civil liability on adults who provide alcoholic beverages to minors who then injure third parties.

In a reply memorandum in further support of the motion to dismiss, the Clarks reiterated that there is no Hawai‘i case holding that a person who furnishes alcohol to an intoxicated minor is civilly liable for the minor's injuries, and they contested the Ah Mook Sangs' assertion that they could be held liable because Makamae's injuries occurred on their property as opposed to some other location away from the property. The Clarks also argued that resort to the legislative history of HRS § 663-41 is unnecessary because that statute unambiguously provides that the intoxicated person under the age of twenty-one who causes an injury or damage cannot bring a claim against the adult furnisher or seller of the alcohol. Moreover, because the Clarks could not be liable for furnishing alcohol on their property, they argued that there was as a result no liability under HRS § 663-41(c) or existing Hawai‘i case law for any failure to render aid. The Clarks also argued that the Ah Mook Sangs did not allege facts in the complaint to support the assertion that a special relationship existed between Makamae and the Clarks requiring them to have affirmatively acted to prevent Makamae from harm.

On March 24, 2011, the circuit court held a hearing on the motion to dismiss; the parties argued based on their written submissions, and the court granted the motion, ruling as follows:

It's— it's absolutely crystal clear that this is a tragedy of indescribable proportions for you folks. Anyone who is a parent certainly I think can relate to a certain [130 Hawai'i 289]

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extent but really cannot comprehend unless they've been in your shoes. So I make this decision because this is a court of law.
What clearly happened in this situation shouldn't have happened and basically I'm constrained by what the facts are that are before me in the record. And I'm also constrained to apply the law that's before me regardless of whether or not perhaps it would certainly be arguable, and even there may be a consensus, that what happened to your daughter in this particular case was something that should be condoned in any way because I don't think anyone looking at the situation would be able to do so.
And so based upon what I have before me, the [c]ourt is going to respectfully adopt the arguments and authorities relied upon by defendant and I will be granting the motion. All right. I fully appreciate and do respect the arguments that Mr. Otake has made on your behalf. I'm familiar with Mr. Otake for some time and he's [ ] a very, very good and very skilled lawyer, and he's doing everything he possibly can on your behalf. But the application of the law, as this [c]ourt sees it, unfortunately from your standpoint, results in an outcome that I know that you do not want at this stage of the proceedings.
Doesn't mean that I'm 100 percent correct. That's why there's a process involved here and I full well expect and encourage you folks to consider appealing this particular ruling. Because if I am wrong, I would full well expect the appellate court to point out precisely why and remand this matter for further proceedings. But that's— that's for another day.
Basically, when this [c]ourt views this particular situation and I apply the standards that I must apply and I view the facts that are alleged in the complaint and all reasonable inferences there are drawn therefrom as true, this [c]ourt cannot find that there is a cause of action that survives based upon the application of the law. The cases Ono [ v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980) ], Bertelmann [ v. Taas Assocs., 69 Haw. 95, 735 P.2d 930 (1987) ], Johns [t] on [ v. KFC Nat'l Mgmt. Co., 71 Haw. 229, 788 P.2d 159 (1990) ], Winters [ v. Silver Fox Bar, 71 Haw. 524, 797 P.2d 51 (1990) ], the F[aulk v. Suzuki Motor Co., 9 Haw.App. 490, 851 P.2d 332 (1993),] decision, there's probably a couple others out there, basically there's a line of cases which stand precisely for the propositions that Mr. Ortiz articulated.
And it doesn't mean that necessarily that it's as it should be, but basically the law is what it is. And under this [c]ourt's analysis simply as a matter of law, given the jurisprudence here in this state, the cause of action that is being advanced, whatever it's called, ultimately comes down to social host liability which is not recognized as a matter of law here. And if the decedent did not have a cause of action, then any other claims by survivors are purely derivative of that and also necessarily must fail.
I find significant that there is no legal authority for the proposition that the plaintiffs have asked this [c]ourt to adopt in imposing a duty on defendants in this case or essentially recognizing a cause of action that otherwise has not been recognized by any court, at least certainly by the Hawai‘i courts. And I'll just sort of note that my view of the statute, the statute I believe is clear, is sufficiently clear, I don't believe there is ambiguity there.
And based upon my obligations to apply that and the plain language thereof, I believe that cause of action by the decedent in this particular case is not permitted and has been expressly prohibited. And absent an express indication by the Legislature or an appellate court here that— that this is incorrect, this is the state of the law.
And I would note that, as I stated earlier, that while— while this certainly, if we took a broader moral view of right and wrong here, clearly what happened here was wrong. And assuming that— that the facts are as alleged, and no one, no one I don't think ...

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