Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Grady v. State

Supreme Court of Hawaii

June 7, 2017

MICHAEL PATRICK O'GRADY, individually; and LEILONI O'GRADY, individually, Plaintiffs-Appellants,
v.
STATE OF HAWAI'I and STATE OF HAWAI'I DEPARTMENT OF TRANSPORTATION, Defendants-Appellees, and THE COUNTY OF HAWAI'I; HAWAIIAN ELECTRIC COMPANY; HAWAIIAN ELECTRIC LIGHT COMPANY; HAWAIIAN ELECTRIC INDUSTRIES, INC.; HULU LOLO, INC.; and DOES 1-100, inclusive, Defendants.

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (CAAP-14-0001363; CIV. NO. 07-01-0372)

          Ronald G. Self and Rebecca Copeland for appellants

          Caron M. Inagaki, Randolph R. Slaton, Henry S. Kim, and Robin M. Kishi for appellees

          RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND CIRCUIT COURT JUDGE CRABTREE, IN PLACE OF NAKAYAMA, J., RECUSED

          POLLACK, J.

         This case concerns a negligence action against the State of Hawai'i and the State of Hawai'i Department of Transportation (collectively, the "State") involving a rockfall and related car accident on a state highway. The Circuit Court of the Third Circuit (the "circuit court") determined that, although the State breached a duty of care owed to the plaintiffs, the State was not liable because the plaintiffs failed to prove legal causation. The issues presented on appeal are whether the circuit court erred in holding that the State's breach of its duty of care was not a legal cause of the plaintiffs' injuries and whether the discretionary function exception applies in this case. We conclude that the circuit court misapprehended the relevant standard for evaluating legal causation; accordingly, we remand the case to the circuit court for application of the correct standard. We also address the applicability of the discretionary function exception.

         I. BACKGROUND

         Michael and Leiloni 0'Grady were driving on Route 11 in the County of Hawai'i on March 8, 2007, when a rockfall occurred. A boulder and other material fell onto the highway, and a portion of the rockfall struck the O'Gradys' vehicle, resulting in their injuries.

          At the time of the accident, Route 11 was a public highway that the State was responsible for maintaining. Because of Route 11's location, it fell within the responsibility of the State's Hawai'i District (the "Hawai'i District").

         The State's Rockfall Hazard Rating System project ("Rockfall Hazard Project" or "RHRS project") has included the Hawai'i District since the project's expansion in 2004. The project rates rockfall hazards for danger: Class A sites were determined to be the most dangerous with high potential for rockfalls, Class B sites were less dangerous, and Class C sites raised virtually no concerns. The location of the rockfall in this case (the "accident site") was rated as a Class A site on December 22, 2004, and it remained a Class A site at the time of the March 8, 2007 accident.

         Rockfall hazards that were classified as Class A sites were also assessed using a more detailed rating system. Under this rating system, the accident site in this case received the highest possible score for the differential erosion feature and the differential erosion rates, which concern the geological character of the slope where the slope consists of two different materials resulting in differential erosion. The accident site also received the highest possible score for the block size volume, which concerns the potential mass of the material that was anticipated to fall in the event of a rockfall.

         Prior to March 8, 2007, the State did not have a routine ongoing coordinated system in place to protect against rockfall hazards adjacent to state highways at the time of the accident. Hawai'i District maintenance employees were not trained to identify areas with significant rockfall hazards, and there was minimal integration between the Hawai'i Distict engineer and the State's Rockfall Hazard Project results. From time to time, information from the State's Rockfall Hazard Project may have been shared with the Hawai'i District; however, the Hawai'i District engineer was not aware of the State's Rockfall Hazard Project.

         On December 27, 2007, the O'Gradys filed their first amended complaint for damages in the circuit court. The O'Gradys sought general, special, and exemplary damages against the State under four theories of liability: negligence, dangerous condition of public property, vicarious liability, and loss of consortium.

         A non-jury, bifurcated trial on liability was held by the circuit court in November and December of 2011. After finding that the State owed a duty of care to the O'Gradys and that it had breached this duty, the circuit court determined that the State was not liable to the O'Gradys based on its conclusion that the O'Gradys failed to prove legal causation. The court later issued "Amended Findings of Fact and Conclusions of Law" on May 17, 2012. The circuit court's findings of fact and conclusions of law found that the O'Gradys were injured as a result of the rockfall and that the State was responsible for the maintenance of the road where the accident occurred. The circuit court found that the accident site was initially rated as a Class A site on December 22, 2004, and that a Class A site is one that is determined to be the most dangerous with a high potential for rockfalls. The circuit court also found as follows:

On occasion, the following might have occurred: (a) the State employees may have noticed an area which experienced frequent rockfalls on the roadway or the shoulder, (b) the State employees may have informed the supervisor, (c) the supervisor may have informed the District Engineer, (d) the District Engineer may have asked that a geotechnical engineer come from Honolulu, (e) the geotechnical engineer may have come from Honolulu and undertaken a study, and (f) based upon the study, the State may have obtained the funding to address the rockfall hazard.

         The circuit court determined that in order to reasonably address the danger of rockfalls adjacent to State highways, the Hawai'i District should have

(a) had a system of routine, ongoing maintenance, (b) trained its maintenance personnel to recognize potential rockfall hazards, (c) had the ability to undertake rockfall prevention projects which reasonably fell within a roadway maintenance budget, and (d) consulted regularly with a geotechnical engineer who had information regarding the findings of the RHRS project in order to integrate information held between them.

         The court found that the Hawai'i District did not fulfill the above-listed responsibilities.

         The circuit court made the following additional findings of fact, which are challenged on appeal by the O'Gradys:

6. The purpose of the RHRS was to identify the rockfall hazards adjacent to State highways in order to implement remedial work. The intent was to use the information garnered from the RHRS project to choose large-scale projects which would be funded by the Legislature of the State of Hawai'i (the "Legislature") and with Federal funding.
14.However, Plaintiffs have failed to prove that from December 22, 2004 until March 8, 2007, it was reasonably foreseeable that a rockfall at the Accident Site was so imminent that it was necessary for the State to immediately address the rockfall potential.
15. Plaintiffs failed to present evidence from which it could be reasonably determined what the cost would have been for the work required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007.
16.According to Plaintiffs' expert, Dr. John Lockwood, the scale of the rockfall at the Accident Site on March 8, 2007, was approximately 70 cubic yards of material weighing between 150 to 175 tons. Although the size of the rockfall itself does not necessarily correlate to the scale of work which would have been required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007, a fair inference is that it would have been a large-scale project.
17.The cost of the work performed by Janod, Inc. in advising State personnel on how to bring down the rock at the Accident Site after the March 8, 2007 accident, $1, 453.22, is not an accurate measure of the cost of the work which would have been required to eliminate the rockfall hazard at the Accident Site prior to March 8, 2007. The March 8, 2007 rockfall had significantly altered the Accident Site prior to the remedial work performed after the rockfall.
18. Plaintiffs failed to prove that from December 22, 2004 to March 8, 2007, the Hawai'i District had employees and equipment to eliminate the rockfall hazard at the Accident Site.
19. Plaintiffs failed to prove that from December 22, 2004 to March 8, 2007, the Hawai'i District had the funds available to engage a private entity to eliminate the rockfall hazard at the Accident Site.
20. Plaintiffs failed to prove that if the Hawai'i District performed the actions suggested under Paragraph 13 above, this would have probably resulted in the Hawai'i District taking action to eliminate the rockfall hazard at the Accident Site between December 22, 2004 to March 8, 2007.
21. Plaintiffs have failed to prove that wrongful conduct on the part of the State, if any, was a substantial factor in causing the March 8, 2007 accident and their consequent injuries.

         The circuit court concluded that the State owed "a duty of care to travelers on a state highway to maintain the highway so it is reasonably safe for travel, " which includes "the duty to exercise ordinary care to maintain the areas adjacent to the highway so that the highway is reasonably safe from rockfalls." The court further concluded that the State "breached this duty of care by not having a routine, coordinated system of rockfall mitigation at the operational level in the Hawai'i District from December 22, 2004 to March 8, 2007." Nonetheless, the circuit court determined in conclusion of law ("COL") 4 that the State was not liable to the O'Gradys, based on its conclusion in COL 3 that the O'Gradys "failed to prove by a preponderance of the evidence that this breach of the duty of care was a proximate cause of the March 8, 2007 accident and their consequent injuries."

         The circuit court also concluded the following with regard to the discretionary function exception:

5. Under HRS § 662-15(1), the State is not liable for its acts of its employees in the performance of a "discretionary function". In determining whether the discretionary function exception to liability applies, the issue is whether broad policy considerations are involved rather than operational decisions regarding routine everyday matters. If the former, then the discretionary function exception applies and the State is not liable for the conduct which falls within the exception.
6. Ordinary, everyday maintenance of areas adjacent to a State highway in order to prevent or mitigate rockfalls onto the highway is an operational level activity. The decision to undertake a large-scale rockfall prevention or mitigation project which requires a specific appropriation from the Legislature or Federal funding may fall within the discretionary function exception. However, the State should not escape liability under the discretionary function exception merely by choosing to address rockfalls onto a State highway only with large-scale projects and declining to use routine, everyday maintenance to address the risk.

         The circuit court entered final judgment on December 11, 2014, and the O'Gradys timely appealed. We granted the O'Gradys' request to transfer the appeal to this court.

         II. STANDARDS OF REVIEW

         The circuit court's findings of fact are reviewed under the clearly erroneous standard:

A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed. A finding of fact is also clearly erroneous when the record lacks substantial evidence to support the finding. We have defined ''substantial evidence' as credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.

In re Grievance Arbitration Between State of Haw. Org, of Police Officers, 135 Hawai'i 456, 461-62, 353 P.3d 998, 1003-04 (2015) (quoting Daiichi Haw. Real Estate Corp. v. Lichter, 103 Hawai'i 325, 337, 82 P.3d 411, 423 (2003)).

         Conclusions of law are ordinarily reviewed under the right/wrong standard. Estate of Klink ex rel. Klink v. State, 113 Hawai'i 332, 351, 152 P.3d 504, 523 (2007) . Thus, a conclusion of law that is supported by the trial court's findings of fact and reflects an application of the correct rule of law will not be overturned. Id. However, when a conclusion of law presents mixed questions of fact and law, we review it under the clearly erroneous standard because the court's conclusions are dependent on the facts and circumstances of each individual case. Id.

         III. DISCUSSION

         The O'Gradys raise two points of error on appeal. First, the O'Gradys assert that the circuit court erred in holding that the State's breach of its duty of care was not a legal cause of the O'Gradys' injuries.[1] Second, the O'Gradys assert that the circuit court erred ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.