NORMAN SAMSON and FRANCINE SAMSON, Individually, and as Guardians Prochein Ami of KU'ULEILANI SAMSON, a Minor Petitioners/Plaintiffs-Appellants,
NOLA ANN NAHULU, Respondent/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-10-0000102; CIVIL NO. 08-1-0171-01)
Ronald A. Albu for petitioners
Jonathan L. Ortiz and Wade J. Katano for respondent
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK, AND WILSON, JJ.
This appeal arises from a motor vehicle-pedestrian accident in which a vehicle operated by Respondent-Defendent-Appellee Nola Ann Nahulu ("Nahulu") struck a minor ("Minor") as she crossed Farrington Highway on foot. At trial, the parties disputed Nahulu's speed and whether Minor was in a crosswalk at the time she was hit. A jury returned a unanimous special verdict finding Nahulu not negligent.
Petitioners/Plaintiffs-Appellants Norman Samson and Francine Samson (hereinafter "the Samsons"), individually and as guardians prochein ami of their daughter, Minor, challenge (1) specific jury instructions, (2) the instructions as a whole, which allegedly misstated the standard of care in automobile-pedestrian collisions, (3) the exclusion of certain testimony about Nahulu's speed, and (4) the exclusion of a photograph with markings made or authorized by a witness during his deposition that placed Minor in a crosswalk. The ICA affirmed the Circuit Court of the First Circuit's (circuit court) judgment.
In this case, the jury instructions erroneously focused on a pedestrian's obligation to obey all traffic laws rather than a driver's obligation to avoid collisions. Instruction No. 6 (as modified) quotes from State v. Arena, 46 Haw. 315, 379 P.2d 594 (1963). That case was premised on the existence of contributory negligence, which was eliminated by the passage of Hawaii's comparative fault statute, Hawai'i Revised Statutes (HRS) § 663-31 (1993). Instruction No. 6 (as modified) incorrectly suggested that a driver need not look out for pedestrians violating the law and that civil recovery is not available to a contributorily negligent plaintiff. The giving of the instruction constitutes prejudicial error necessitating a new trial. In addition, the instructions as a whole were prejudicially erroneous.
We hold as follows: (1) Instruction No. 6 (as modified) is erroneous as a matter of law; (2) Arena is overruled to the extent that it is contrary to HRS § 291C-74 (2007) and gives the incorrect impression that a pedestrian forfeits a right to recover from a negligent driver if he or she does not strictly adhere to traffic rules; (3) the jury instructions as a whole misstated the law by improperly focusing on a pedestrian's duties to obey all traffic laws and were prejudicially erroneous; (4) the circuit court erred in excluding certain testimony on Nahulu's speed; and (5) the circuit court erred in excluding the photograph with markings made or authorized by the witness during his deposition.
Accordingly, we vacate the ICA's May 2, 2014 Judgment on Appeal, entered pursuant to its March 31, 2014 Memorandum Opinion, which affirmed the circuit court's August 9, 2010 Judgment and September 29, 2010 Order Denying Plaintiffs' Motion for Judgment Notwithstanding the Verdict and/or, In the Alternative, for New Trial ("JNOV motion"),  and remand the case to the circuit court for a new trial and further proceedings consistent with this opinion.
A. General Factual Background
On July 4, 2005, Nahulu's Honolulu-bound SUV struck Minor in or near a crosswalk as she crossed Farrington Highway near the Jade Street intersection. Prior to the collision, Minor had waited with her friend at a bus stop on the Honolulu-bound side of the road. There is a bus cutout located on the outside of the Honolulu-bound lane for buses to service passengers. At the time of the accident, two buses had pulled into the cutout. The first bus operated by McKenna Benson ("Benson") was forty feet long and the second bus was sixty feet long.
As she approached the intersection from behind the bus cutout in the Honolulu-bound direction, Nahulu saw one bus pull into the bus cutout and began to decelerate. After Benson pulled his bus all the way into the cutout, he looked in his side view mirror to ensure that he had provided enough space for the second bus to pull in. From his perspective, both of the buses appeared as "one long bus" with no part of either bus blocking the lane of traffic; however, he could not recall whether the buses were completely off or partially on the road. Arthur Joao ("Mr. Joao"),  the driver of a pickup truck following behind Nahulu's SUV, and his wife Betty Joao ("Mrs. Joao"), his passenger, stated that the bus was not completely off the road, but did not impede the flow of traffic.
According to Mrs. Joao, after the buses pulled over, the SUV and the Joaos' truck gradually sped up. Nahulu stated that she had not seen anyone in front of the bus nor had she crossed the double solid line prior to impact. Mrs. Joao stated that she did not see anyone in the crosswalk, but could not remember where the crosswalk was located.
Minor's friend was the last person to board Benson's bus. According to Benson, who had an unobstructed view through the front windows of his bus, Minor said goodbye to her friend as she stood near the right front corner of the bumper with her hand on the bus.
Minor testified that she looked both ways before entering a crosswalk in front of the bus; other witnesses provided conflicting testimony. Nahulu testified that Minor entered the road quickly from right in front of the bus without looking, walked diagonally across the road, and was not in a crosswalk when she was hit. Mrs. Joao stated that "[Minor] was looking back over her shoulder towards the bus" as she entered the road close to the front of the bus outside of a crosswalk, but could not remember which side of the crosswalk Minor was on. Mr. Joao stated that "the bus was still moving" when Minor entered the road, looking over her shoulder and yelling as she ran. Benson stated that Minor remained near the front of his stationary bus as she moved diagonally toward the intersection at a brisk pace. He saw Nahulu's SUV approaching in his side view mirror near the left rear tire of his bus, and waved his arm out of the window and yelled in an attempt to stop the SUV. According to Paul Day ("Day"), the driver of a vehicle approaching the intersection in the opposing lane of traffic, Nahulu was "coming around the bus at a good speed[.]"
The witnesses provided conflicting testimony regarding Minor's location at the point of impact. Benson estimated that Minor traveled approximately six to eight feet from the front of the bus before she and the SUV collided in the middle of the Honolulu-bound lane. Day testified that Minor was hit by Nahulu's SUV when she made her way to the driver's corner of the bus. Mr. Joao could not recall whether Minor was in or out of the crosswalk. Mrs. Joao stated that "[Minor] was over the yellow line [in the opposing lane of traffic] when she ran in[to] the [SUV]."
By Benson's account, Minor "jumped a little bit" right before the SUV hit her, the SUV made contact, "then [he] heard skidding of the breaks[, ]" and Minor was sent approximately twenty feet, bouncing or skipping on the pavement, until she finally came to rest in the middle of the Honolulu-bound lane. Mrs. Joao stated that Minor flew back towards the direction she came from, landing partially in front of the Joaos' truck. Day stated that the collision "was a different kind of hit" that caused Minor to "slingshot up into the air" diagonally toward the middle line dividing the lanes rather than forward. He testified that Minor was hit on the passenger side of the SUV, which "was going at a speed where it couldn't stop in time[, ]" and skidded "at least eight feet" after the impact before coming to rest in the crosswalk. He estimated that Minor flew between fifteen to twenty feet and fell diagonally, "almost straight down[, ]" before landing "really hard" and sliding approximately one to two feet before coming to stop "in the middle of what would have been the divider[.]"
Neither Benson nor the Joaos saw Nahulu's SUV attempt to stop or veer to the left prior to the collision; Nahulu stated that after the impact, she veered to the left over the double solid line and came to a stop in the crosswalk. Mrs. Joao testified that the SUV swerved to the left a few feet from the front of the bus as soon as Minor entered the road and "stopped almost simultaneously" in the intersection, just past the bus, in the oncoming lane of traffic. Benson estimated that Nahulu's SUV skidded approximately forty feet and came to rest about ten feet from Minor. Minor alleged severe physical injuries and psychological harm as a result of the accident.
B. Circuit Court Proceedings 
On January 25, 2008, the Samsons filed a complaint in circuit court against Nahulu, alleging negligence, negligent infliction of emotional distress, and loss of consortium.
1. Motions in Limine Excluding Eyewitness Testimony on Speed
The parties filed various motions in limine, contesting the admissibility of certain eyewitness testimony and evidence. Relevant motions include (1) Nahulu's Motion in Limine No. 5 to Exclude Any and All Questions to and Testimony by Lay Witnesses Concerning the Ultimate Issue of Defendant's Alleged Negligence (Motion in Limine No. 5), and (2) Nahulu's Motion in Limine No. 6 to Limit Testimony of Lay Witnesses to Personal Knowledge (Motion in Limine No. 6).
In Motion in Limine No. 5, Nahulu moved to preclude the Samsons from eliciting lay witness testimony on legal conclusions at trial, i.e., that Nahulu was going "too fast[, ]" contending that lay opinions on liability are of no probative value and should be excluded under Hawai'i Rules of Evidence (HRE) Rule 403. The Samsons argued that relevant lay opinion testimony bearing on ultimate issues is not precluded under HRE Rule 701, and that factual questions about conditions and speed, from which inferences may be drawn, are permitted. The circuit court granted Nahulu's motion and precluded testimony that Nahulu was driving "too fast for the conditions" because "it calls in part for a legal conclusion and it's tantamount to testimony opinion that [Nahulu] was negligent."
In Motion in Limine No. 6, Nahulu moved to limit lay witness testimony to personal observations and preclude lay opinions about Nahulu's compliance with traffic laws, including testimony that she was driving "too fast, " pursuant to HRE Rule 403. The Samsons argued under HRE Rule 403 that the evidence was more probative than unduly prejudicial. The court granted and denied the motion in part, precluding speculative testimony about Nahulu's thoughts and violation of traffic laws, while permitting testimony on personal observations.
2. Exclusion of Exhibit 7 and Related Testimony Placing Minor in a Crosswalk
During trial, the court excused the jurors to hold an HRE Rule 104 hearing on the admissibility of Exhibit 7 and related testimony from Benson, the driver of the first bus stopped at the Jade street bus stop in the bus cutout. Exhibit 7 was a photograph of the accident scene that had markings made or authorized by Benson at his deposition, which depicted the point of impact in the middle of a crosswalk on Farrington Highway and the front of his bus in relation to the stop line. At the hearing, Benson confirmed that he had drawn the "X" showing the location of the front of his bus, but testified that someone else had drawn an "X" in the area he had indicated as the point of impact during his deposition. He admitted, however, that although he could not remember during the deposition or the hearing whether a marked crosswalk existed at the time, he had testified in his deposition that Minor had been struck in the area of the second "X."
Thus, at the HRE Rule 104 hearing, Benson could not recall whether the accident occurred in a crosswalk nor whether Exhibit 7 accurately depicted the area at the time of the accident. Several witnesses, including Nahulu, had testified that the crosswalk existed at the time of the collision. In addition, the same photograph showing the crosswalk without Benson's marks had already been admitted into evidence as the Samsons' Exhibit 3-B without objection.
At the conclusion of the hearing, the court excluded Exhibit 7 on the grounds that its admission would be unduly prejudicial because the photograph depicted the collision occurring in the crosswalk despite Benson's inability to remember a crosswalk at the scene or verify the accuracy of the photograph. The court noted that nothing prevented the Samsons from using a different photograph and Benson's testimony to establish the point of impact based on his personal knowledge. In addition, the court rejected the Samsons' proposal for a limiting instruction because it feared the jury could not ignore the fact that Exhibit 7 indicated the point of impact in the crosswalk.
3. Jury Instructions
At issue on certiorari are the Samsons' requested Instruction No. 12, which was refused, and Nahulu's requested Instructions Nos. 1 and 2, which were given, as well as Nahulu's requested Instruction No. 6, which was given as modified. In addition, ...