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Bernhardt v. County of Hawaii

United States District Court, D. Hawaii

September 11, 2019

KYRA BERNHARDT, in her individual capacity and as personal representative of the Estate of Gene Bernhardt, Plaintiff,
v.
COUNTY OF HAWAI‘I, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COUNTS 5-10

          Derrick K. Watson United States District Judge

         Defendants Stanley Kaina and the County of Hawai‘i (collectively, Defendants) move for dismissal of Counts 5-10 of the Complaint on a single ground: Plaintiff failed to comply with the two-year pre-suit notice requirement of Hawai‘i Revised Statutes Section 46-72 (Section 46-72). Plaintiff responds with two principal arguments: (1) that Section 46-72 does not apply according to its terms because the alleged injury-causing incident did not occur on a street, alley, sidewalk, or other public place; and (2) even if it did, she provided the requisite notice to the County of Hawai‘i (County) within two years of the accrual of her claims. While the Court agrees that Section 46-72 does not apply to each of Counts 5-10, the Court disagrees that Plaintiff timely provided notice to the County pursuant to Section 46-72. As a result, the motion to dismiss, Dkt. No. 9, is GRANTED IN PART and DENIED IN PART, as more fully described below.

         BACKGROUND

         I. The Complaint

         Plaintiff Kyra Bernhardt (Plaintiff), in her individual capacity and as the personal representative of the Estate of Gene Bernhardt, initiated this case with the filing of the Complaint on April 24, 2019. Plaintiff alleges the following facts pertinent to the instant motion to dismiss.

         In the days prior to April 29, 2017, Gene Bernhardt (Bernhardt) set up a makeshift camp site on his property located at 35-311 Papaaloa Road, Papaaloa, Hawai‘i. Compl. at ¶¶ 6, 9, 16, Dkt. No.1. Bernhardt's property bordered the road and part of his camp site obstructed the road. Id. at ¶ 16. The camp site was covered by a tarpaulin, and Bernhardt slowly added more belongings from his residence to the site. Id. On April 29, 2017, Bernhardt encountered three males and a female in a grey SUV. Id. at ¶ 17. The individuals in the SUV brandished a handgun, threatening to kill Bernhardt for leaving things in their way. Id.

         The Complaint does not allege how the encounter between Bernhardt and the individuals in the SUV came to an end. Instead, the Complaint alleges that, after the encounter, the individuals in the SUV bumped into Stanley Kaina (Kaina), a Hawai‘i Police Department Officer, and falsely reported that Bernhardt had threatened and pointed a rifle at them when they asked him to clear the road. Id. at ¶¶ 4, 17. The Complaint further alleges that Bernhardt feared for his life and texted Plaintiff, his wife, to that effect, asking her to call 911. Id. at ¶ 18. Heeding Bernhardt's request, Plaintiff spoke with Police Lieutenant J. Grantz (Grantz) twice, once at roughly 3:19 p.m. and again at 3:33 p.m. Id. at ¶ 19. During these two conversations, Plaintiff asked Grantz to check on Bernhardt and told him, inter alia, that Bernhardt had post-traumatic stress disorder (PTSD), had not been sleeping for a few days, and was upset because vandals had cut a diesel line on his property and brandished a handgun. Id. at ¶ 21.

         At about 3:39 p.m., Grantz turned on his recording device and drove to Bernhardt's property, arriving roughly six minutes later. Id. at ¶ 27. At the property, Grantz was met by Kaina and Officer J. Pacheco. Id. at ¶ 28. Grantz observed that there were a lot of household items abutting the road. Id. at ¶ 29. At some point, Grantz talked with Bernhardt. Id. at ¶ 31. Using profanity, Bernhardt told Grantz about the encounter with the individuals in the SUV, telling Grantz to do his job by looking for them. Id. at ¶ 32. At some point, Bernhardt stated that he was going to feed his animals. Id. at ¶ 36. Also at some unalleged point, Bernhardt picked up a crossbow and iPad he owned from the top of a trash can, “as if to leave the area.” Id. at ¶ 39. Then, 15 minutes and 39-40 seconds into “the recording[, ]”[1] Kaina fired three shots in rapid succession and Bernhardt is heard moaning and falling to the ground. Id. at ¶ 40. In a statement, Grantz reported that Bernhardt was “about seven feet away” when the shots were fired. Id. at ¶ 46. The Complaint further alleges that, at the time Bernhardt was shot, he had turned past Grantz, was directly facing Kaina, and his upper body was bent over at the waist. Id. at ¶ 50.

         In the Complaint, Plaintiff asserts claims against the County, Kaina, and various Jane/John Doe persons and entities. While 10 total causes of action are asserted in the Complaint, because the instant motion to dismiss relates only to Counts 5-10, the Court summarizes only those claims herein. Count 5 is for wrongful death, and accuses Defendants of engaging in conduct with malice and intent to injure Bernhardt. Count 6 is for negligent training and supervision against the County. Count 7 is for negligence, accusing Defendants of breaching a duty of care to Plaintiff. Count 8 is for gross negligence, accusing Defendants of acting with reckless disregard that caused injury to Plaintiff. Count 9 is for intentional infliction of emotional distress, accusing Defendants of intentional conduct beyond the bounds of decency. Finally, Count 10 is for negligent infliction of emotional distress, accusing Defendants of negligent conduct that caused Plaintiff to suffer emotional distress.

         II. The Motion to Dismiss

         The motion to dismiss seeks dismissal of Counts 5-10 pursuant to Federal Rule of Civil Procedure 12(b)(1) due to an asserted lack of subject matter jurisdiction. Dkt. No. 9. Defendants argue that such dismissal is appropriate because Plaintiff failed to comply with Section 46-72. More specifically, Defendants assert that, pursuant to Section 46-72, in order to recover damages from the County, a party must first provide notice of a claim within two years of an injury's accrual. Defendants assert that Plaintiff failed to do this, given that the alleged incident occurred on April 29, 2017 and, as of May 8, 2019, the County had received no notice of Plaintiff's claims.

         In opposition to the motion to dismiss, Plaintiff responds with three arguments. Dkt. No. 20. First, Plaintiff argues that she complied with Section 46-72 because her claims did not accrue until early December 2018 “after she formed a reasonable belief that she had a cause of action against the County and the shooter for wrongfully killing her husband” and because notice of her claims was then provided to the County on May 17, 2019, only a few months later. Second, Plaintiff argues that Section 46-72 does not apply to the alleged facts of this case because Bernhardt was shot on his own property, rather than a street, avenue, alley, sidewalk, or other public place. Third, Plaintiff argues that Section 46-72 only requires notice where negligence is alleged and therefore does not cover the intentional or reckless claims alleged in the Complaint.

         After a reply in support of the motion to dismiss was filed, Dkt. No. 21, the Court elected to decide the motion without a hearing, Dkt. No. 22. This Order now follows.

         STANDARD ...


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