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Kuahiwinui v. Zelo's Inc.

Intermediate Court of Appeals of Hawaii

December 13, 2017

BERNADINE KUAHIWINUI, Individually and as Personal Representative of the Estate of KRISTERPHER KAUPU-KUAHIWINUI, deceased; and KENNETH KAUPU, Plaintiffs-Appellants,
v.
ZELO'S INC., dba SUSHI & BLUES; TAHITI NUI ENTERPRISES, INC., dba TAHITI NUI; and STATE OF HAWAI'I, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE BUSINESS ENTITIES 1-10; DOE GOVERNMENTAL ENTITIES 1-10; and DOE UNINCORPORATED ASSOCIATIONS 1-10, Defendants. ZELO'S INC., dba SUSHI & BLUES, Third-Party Plaintiff,
v.
SOLOMON MAKUA KUAHIWINUI, Third-Party Defendant. STATE OF HAWAI'I, Third-Party Plaintiff,
v.
SOLOMON KUAHIWINUI and CHRISTOPHER FERGUSON, Third-Party Defendants. SHERYL ANN ACKERMAN, Individually; SHERYL ANN ACKERMAN, as mother of, natural guardian and next friend for BRITNEY ANN HARDSKY, minor; and SHERYL ANN ACKERMAN, as Personal Representative of the Estate of CHRISTOPHER COLE FERGUSON, deceased, Plaintiffs,
v.
SOLOMON MAKUA KUAHIWINUI; JAMES B. EDMONDS; TAHITI NUI ENTERPRISES, INC., dba TAHITI NUI; ZELO'S INC., dba SUSHI & BLUES; STATE OF HAWAI'I; THE COUNTY OF KAUAI, Defendants, and JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10, DOE NON-PROFIT ENTITIES 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants.

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NOS. 08-1-0067 and 08-1-0069)

          James J. Bickerton Nathan P. Roehrig (Bickerton Lee Dang & Sullivan) for Plaintiffs-Appellants.

          Michele-Lynn E. Luke (Kessner Umebayashi Bain & Matsunaga) for Defendant-Appellee Zelo's, Inc. dba Sushi & Blues.

          NAKAMURA, CHIEF JUDGE, AND LEONARD AND REIFURTH, JJ.

          OPINION

          NAKAMURA, CHIEF JUDGE.

         The Hawai'i Supreme Court has established a "common law dram shop negligence [cause of] action" (dram shop cause of action) against liquor licensees based on requirements imposed by Hawai'i's liquor control law. Ono v. Applegate, 62 Haw. 131, 137, 612 P.2d 533, 539 (1980). Based on the statutory requirements, the supreme court has held that a liquor licensee has a duty not to serve alcohol to a person it knows or reasonably should know is under the influence of alcohol. The class of people protected by this legal duty and who may assert this cause of action consists of "innocent third parties." Thus, an innocent third party injured by a drunk driver has a negligence cause of action against a liquor licensee that, preceding the injury, served alcohol to the drunk driver, who it knew or reasonably should have known was intoxicated.

         This appeal presents the question of who falls within the protected class of "innocent third parties" for a dram shop cause of action. In particular, what criteria applies in determining whether a person who accompanied and consumed alcohol with the drunk driver, and later was injured by the drunk driver, qualifies as an innocent third party.

         In this case, Kristerpher Kaupu-Kuahiwinui (Kristerpher) was a passenger in a car driven by Solomon Kuahiwinui (Solomon). Kristerpher was fatally injured in a single-car accident when the car broke through a guardrail, went down an steep embankment, and landed in the Hanalei River. Blood tests conducted after the accident showed that the blood alcohol content of both Kristerpher and Solomon significantly exceeded the legal limit for driving. Prior to the accident, Kristerpher had accompanied Solomon to Sushi & Blues, an establishment owned by Zelo's, Inc. (Zelo's), where they both consumed alcoholic beverages. Kristerpher was 19 years old, under the legal drinking age of 21, and Solomon was 25 years old.

         Kristerpher's mother, individually and on behalf of Kristerpher's estate, and Kristerpher's father brought a dram shop cause of action against Zelo's. Zelo's moved for summary judgment on the ground that Kristerpher was intoxicated at the time of his death and therefore was not within the class of "innocent third parties" protected by the dram shop cause of action. The Circuit Court of the Fifth Circuit (Circuit Court)[1]granted Zelo's motion for summary judgment.

         As explained below, we conclude that whether a person injured by a drunk driver qualifies as an innocent third party does not turn on whether the injured person was intoxicated. Rather, we hold that whether the injured person qualifies as an innocent third party turns on whether the injured person actively contributed to or procured the intoxication of the drunk driver who injured him or her. This holding is consistent with our supreme court's rationale for establishing the dram shop cause of action. It is also consistent with the "complicity" defense to dram shop claims recognized by certain other jurisdictions.[2]

         Whether Kristerpher qualifies as an innocent third party under our test raises genuine issues of material fact. Accordingly, we conclude that the Circuit Court erred in granting Zelo's motion for summary judgment, and we remand the case for further proceedings.

         BACKGROUND

         I.

         This case arises out of a single-car accident that occurred shortly after midnight. At the time of the accident, Solomon was driving the car and Kristerpher and Christopher Ferguson (Ferguson) were passengers in the car. The car failed to negotiate a turn, broke through a metal guardrail, went down a steep embankment, and landed in the Hanalei River. Solomon was able to escape from the vehicle. Kristerpher and Ferguson were unable to escape and drowned.

         At the time of the accident, Kristerpher was 19, Solomon was 25, and Ferguson was 35. Kristerpher and Solomon were cousins, and Ferguson was Kristerpher's family friend. Kristerpher, Solomon, and Ferguson had traveled to Kaua'i to do work on a home owned by James Edmonds (Edmonds). They had worked on Kaua'i for about a week before the accident.

         After finishing work on Friday, the three men, with Edmonds' permission, used Edmonds' car. Solomon, who was the only one with a valid driver's license, was the driver. The three men stopped at a bank to cash their paychecks then headed toward Hanalei. Ferguson purchased a twelve-pack of beer, and they drove to Hanalei Bay. According to Solomon, they spent about two hours at Hanalei Bay, where they drank some but not all of the twelve-pack. Solomon estimated that he drank about two beers, Kristerpher also drank beer, but Solomon was not sure how many, and Ferguson drank the majority of the beer. At Hanalei Bay, the three men also smoked marijuana.

         After leaving Hanalei Bay, the three men went to eat dinner at Sushi & Blues, which was operated by Zelo's. At Sushi & Blues, they were served by Zelo's employee, Serge Bullington (Bullington).

         In his deposition, Bullington testified that he recalled serving Solomon two beers and two shots of "Flaming Dr. Pepper, " a drink consisting of 151-proof rum and Amaretto liqueur, and serving Ferguson two beers, two shots of Flaming Dr. Pepper, and tequila. Bullington denied serving any alcoholic beverage to Kristerpher and said that he only served Kristerpher a Coke. Bullington also stated that the three men did not appear to be intoxicated at any time that he was serving them.

         Solomon testified in his deposition that after arriving at Sushi & Blues, Kristerpher and Ferguson ordered drinks immediately, before their meals came, and Kristerpher drank beer throughout dinner. Kristerpher was not asked for identification. According to Solomon, Kristerpher was happy because this was the first time he had been allowed to order drinks. Ferguson and Kristerpher ordered beer and mixed drinks. Solomon did not order any beer at Sushi & Blues, but he recalled having two drinks after dinner, a Kahlua and Bailey's and a mixed drink that Ferguson ordered and brought back from the bar. The mixed drink that Ferguson ordered contained "some kind of really strong alcohol" that Ferguson said was tequila. Kristerpher ordered more of the mixed drink. A Sushi & Blues receipt found in Kristerpher's wallet after the accident showed a cash sale of one Patron Silver and one Amaretto.

         At some point, the three men left Sushi & Blues. Kristerpher and Solomon went to an establishment called Tahiti Nui, arriving at around 10:30 p.m. Ferguson went back to the car. At Tahiti Nui, Solomon ordered a beer, but before he could finish the beer, a security guard asked him and Kristerpher to leave. Solomon did not see Kristerpher drink anything at Tahiti Nui.

         After leaving Tahiti Nui, Solomon and Kristerpher went back to the car. Ferguson was "kind of asleep already" in the car. The fatal accident occurred while Solomon was driving back to Edmonds' home. After the accident, Solomon was found to have a blood alcohol content (BAC) of 0.13 grams of alcohol per 100 milliliters of blood, Kristerpher's BAC was 0.16 grams of alcohol per 100 milliliters of blood, and Ferguson's BAC was 0.26 grams of alcohol per 100 milliliters of blood. The legal limit for driving is .08 grams of alcohol per 100 milliliters of blood.[3]

         II.

         Kristerpher's mother, Bernadine Kuahiwinui, individually and as personal representative of Kristerpher's estate, and Kristerpher's father, Kenneth Kaupu (collectively, Plaintiffs) sued Zelo's, doing business as Sushi & Blues. In their First Amended Complaint, Plaintiffs, among other things, asserted a negligence dram shop cause of action against Zelo's. Plaintiffs alleged that Zelo's "negligently permitted Kristerpher, Solomon, and [Ferguson] to remain on the premises and served alcoholic beverages to [them], despite the fact that Kristerpher was underage and each of the three young men were visibly intoxicated." Plaintiffs further alleged that Zelo's "knew or reasonably should have known that Kristerpher[] was underage and that Kristerpher, Solomon, and [Ferguson] were under the influence of liquor and/or visibly intoxicated when they were permitted to remain on the premises and were served alcoholic beverages.[4]

         Zelo's moved for summary judgment on Plaintiffs' dram shop claim. Plaintiffs filed a motion in opposition. In its summary judgment pleadings and at the hearing on its motion, Zelo's argued that people who are intoxicated are excluded from the class of "innocent third parties" protected by the dram shop cause of action. Zelo's asserted that because the dram shop cause of action does not protect intoxicated people, and because it was undisputed that Kristerpher was intoxicated at the time of the accident, Zelo's was entitled to summary judgment on Plaintiffs' dram shop claim. The Circuit Court granted Zelo's motion, ruling that Kristerpher was not an "innocent third part[y] . "[5] On June 7, 2013, the Circuit Court filed its Final Judgment in favor of Zelo's and against Plaintiffs on Plaintiffs' dram shop cause of action. This appeal followed.

         DISCUSSION

         I.

         Plaintiffs argue that the Circuit Court erred in granting Zelo's motion for summary judgment on Plaintiffs' dram shop claim. They contend that the "sole basis" for Zelo's motion was that Kristerpher was voluntarily intoxicated when he was fatally injured and therefore was not in the class of innocent third parties protected by the dram shop cause of action. Plaintiffs argue that contrary to Zelo's position, "the law does not deny relief to the victims of a drunk driver merely because they are 'intoxicated.'" Plaintiffs claim that whether Kristerpher was an innocent third party entitled to pursue a dram shop cause of action was a question of fact for the jury, and therefore, the Circuit Court erred in granting Zelo's motion for summary judgment.

         As explained below, we conclude that a person who is intoxicated is not automatically excluded from the class of innocent third parties entitled to pursue a dram shop cause of action. Whether Kristerpher qualifies as an innocent third party in this case does not turn on whether he was intoxicated, but on whether he actively contributed to or procured the intoxication of Solomon, who was driving the car when Kristerpher was fatally injured. Because the question of whether Kristerpher qualifies as an innocent third party raises genuine issues of material fact, we conclude that the Circuit Court erred in granting Zelo's motion for summary judgment.

         II.

         An understanding of the development of the law on Hawai'i's dram shop cause of action is necessary to resolve the question of who should properly fall within the protected class of ...


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