BERNADINE KUAHIWINUI, Individually and as Personal Representative of the Estate of KRISTERPHER KAUPU-KUAHIWINUI, deceased; and KENNETH KAUPU, Plaintiffs-Appellants,
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,
SOLOMON MAKUA KUAHIWINUI, Third-Party Defendant. STATE OF HAWAI'I, Third-Party Plaintiff,
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,
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.
FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NOS.
08-1-0067 and 08-1-0069)
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
NAKAMURA, CHIEF JUDGE, AND LEONARD AND REIFURTH, JJ.
NAKAMURA, CHIEF JUDGE.
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.
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.
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.
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)granted Zelo's motion for
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
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
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.
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.
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
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
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.
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.
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.
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.
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.
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] . " 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.
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.
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
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 ...