NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CIVIL NO. 06-1-224)
Katharine M. Nohr Preston Easley Richard K. Griffith for Plaintiff-Appellant.
Jeffrey H.K. Sia Ronald m. Shigekane Diane W. Wong (Ayabe, Chong, Nishimoto, Sia & Nakamura, LLLP) for Defendant-Appellee.
Nakamura, Chief Judge, and Foley and Leonard, JJ.
In this personal injury case, Plaintiff-Appellant Reginald Kealoha (Kealoha) appeals from the Judgment entered in the Circuit Court of the Third Circuit (Circuit Court) in favor of Defendant-Appellee Kahului Trucking & Storage Inc. dba A&B Fleet Services (A&B Fleet Services). A&B Fleet Services had been hired by Kealoha's employer, Young Brothers Ltd. (Young Brothers), to attach a top handler to a 30-ton Hi-Lift, so that it could be used to lift 40-foot shipping containers. Kealoha was injured when a shipping container being lifted broke lose and fell on his left foot and ankle.
The Circuit Court's Judgment was entered pursuant to orders granting two separate motions for summary judgment filed by A&B Fleet Services. The first motion for summary judgment was based on the lack of causation. The second motion was based on the alternative ground that A&B Fleet Services did not owe a duty of care to Kealoha.
On appeal, Kealoha claims that the Circuit Court erred in determining on summary judgment that (1) there was no causal connection between A&B Fleet Services' alleged negligence and Kealoha's injuries; and (2) A&B Fleet Services did not owe Kealoha a duty of care. We conclude that there are genuine issues of material fact regarding whether A&B Fleet Services owed Kealoha a duty of care and whether A&B Fleet Services' alleged negligence caused Kealoha's injuries. We therefore vacate the Circuit Court's Judgment and remand the case for further proceedings.
Kealoha was employed by Young Brothers as a longshoremen at Young Brothers' marine terminal in Kawaihae, Hawai'i. On the day Kealoha was injured, Young Brothers requested that A&B Fleet Services connect Top Handler #102 to Hi-Lift #215. Top Handler #102 is an attachment that permits Hi-Lift #215, a 30-ton forklift, to lift large shipping containers from the top. Top Handler #102 was designed to permit the use of an electrical indicator light warning system when attached to compatible Hi-Lifts. The indicator light system would inform the Hi-Lift operator, through indicator lights on the Hi-Lift dashboard, whether Top Handler #102 was fully engaged with, and securely attached to, the container being lifted. Because the Top Handler #102/Hi-Lift #215 combination did not permit the use of the indicator light system, the operator of Hi-Lift #215 had to rely on mechanical "green flag" indicators located at the ends of Top Handler #102 to determine if Top Handler #102 was fully engaged.
On the day in question, A&B Fleet Services attached Top Handler #102 to Hi-Lift # 215. While the Top Handler #102/Hi-Lift #215 combination was being used to move an empty 40-foot shipping container, the container broke loose and fell to the ground, crushing Kealoha's left foot and ankle.
Young Brothers purchased the Hi-Lift #215, a Hyster brand 30-ton lift truck, in 1980. Hi-Lift #215 is a forklift which can be converted into a machine that can be used to lift and transport large shipping containers by removing the Hi-Lift's forks and connecting a top handler attachment. To transport the shipping containers, the Hi-Lift operator lowers the top handler onto the top of the container and aligns four locking mechanisms (twist locks) on the top handler with pockets located at the four corners of the container. Once the twist locks are aligned and seated in the corners of the container, the Hi-Lift operator pulls a lever which causes the twist locks to turn. Once the twist locks have rotated ninety degrees, they are fully engaged and the top handler is securely attached to the container.
As a safety mechanism, the left and right ends of Top Handler #102 have mechanical "green flag" indicators, which turn synchronously with the turning of the twist locks to become displayed and visible to the Hi-Lift operator. When the green flags are fully displayed, it indicates that the twist locks have turned ninety degrees and are fully engaged.
Top Handler #102 was purchased by Young Brothers in the mid-1980s, after it had purchased Hi-Lift #215. Top Handler #102 was equipped with an orange cord and plug that could be plugged into newer-model Hi-Lifts, which unlike Hi-Lift #215 had indicator lights mounted within their dashboards. When the orange cord from Top Handler #102 was connected to such Hi-Lift models, two green indicator lights on the dashboard would activate and light up when the twist locks were fully engaged. The indicator lights served as an additional safety feature beyond the mechanical green flags to indicate to the Hi-Lift operator that the twist locks were fully engaged.
The indicator lights could not be used in the Top Handler #102/Hi-Lift # 215 combination. Hi-Lift #215 was not equipped with an outlet to which the orange cord on Top Handler #102 could be connected and did not have indicator lights on its dashboard. Hi-Lift #215 was sold with a prior generation top handler attachment that had indicator lights on a panel that could be attached to or separated from the Hi-Lift.
Young Brothers had routinely used top handlers attached to 30-ton Hi-Lifts with no indicator lights. Young Brothers Lead Operator Quinten Chong (Chong) recalled that this combination had been used at Kawaiahae terminal (where Kealoha was employed) since at least 1990, when Chong was first stationed there. Chong did not experience problems resulting from the lack of indicator lights with this combination or the use of the mechanical green flag indicators.
Originally, Young Brothers employees had attached the top handlers to the 30-ton Hi-Lifts. Sometime after 1990, Young Brothers decided to outsource the task of attaching and disconnecting the top handler to outside mechanics or contractors, such as A&B Fleet Services. In 2005, Young Brothers began using A&B Fleet Services to perform the task of attaching the top handlers to the Hi-Lifts at its Kawaihae terminal. Prior to that time, Young Brother had used another company, HT&T, to attach and detach the top handlers. Young Brothers, HT&T, and A&B Fleet Services had all connected Top Handler #102 to Hi-Lift #215, resulting in a combination with no indicator lights, during the time period each was performing this task.
Attaching and removing the top handler was the most common task A&B Fleet Services performed for Young Brothers. There was no written contract between Young Brothers and A&B Fleet Services regarding these services. When Young Brothers needed to attach the top handler, it would call A&B Fleet Services and arrange to meet at the terminal. A&B Fleet Services did not have or refer to the manufacturer's service manual to determine how to connect Top Handler #102 to Hi-Lift #215. In attaching the top handler, the A&B Fleet Services mechanic would check with the Hi-Lift operator to make sure that the top handler was functioning, which would include checking the alignment of the mechanical green flags, before leaving.
On March 26, 2006, Young Brothers requested that A&B Fleet Services connect Top Handler #102 to Hi-Lift #215. Hi-Lift #215, a 30-ton Hi-Lift, was the only Hi-Lift available for use at the time. None of Young Brothers' 30-ton Hi-Lifts were equipped with indicator lights. Young Brothers had a 35-ton Hi-Lift that was equipped with indicator lights to which Top Handler #102 could be attached, but Young Brothers did not request this combination. Because Hi-Lift #215 was not equipped with indicator lights, the orange ...