Winfrey v. GGP Ala Moana LLC.  Â

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-30589
18-JUL-2013
08:47 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

--—o0o---
________________________________________________________________

HEATHER R. WINFREY, Individually and As Personal Representative
for the Estate of JASMINE ROSE ANNE FRY, and SAMUEL J. FRY, JR.,
Petitioners/Plaintiffs-Appellants,

vs.

GGP ALA MOANA LLC dba ALA MOANA CENTER,
Respondent/Defendant-Appellee.
________________________________________________________________

SCWC-30589

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30589; CIV. NO. 06-1-0017)

JULY 18, 2013

RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ., AND
CIRCUIT JUDGE TRADER, ASSIGNED BY REASON OF VACANCY;
WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY

OPINION OF THE COURT BY MCKENNA, J.

I. Introduction

Jasmine Rose Anne Fry (“Fry”) somehow accessed the

rooftop of Ala Moana Center (“Center”), entered into and became

trapped in an exhaust duct above the Makai Market Food Court

(“Food Court”), then died from hyperthermia and respiratory
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compromise. Her parents, Heather R. Winfrey and Samuel J. Fry,

Jr. (collectively, “Plaintiffs”), sued GGP Ala Moana LLC dba Ala

Moana Center (“Ala Moana”). Before a trial date had been set,

Ala Moana moved for summary judgment on the grounds that (1) it

did not owe Fry a duty of care because she was a trespasser; and

(2) it could not be held liable for its affirmative attempts to

render aid. The Circuit Court of the First Circuit (“circuit

court”) granted summary judgment in favor of Ala Moana on all of

Plaintiffs’ claims.1 The Intermediate Court of Appeals (“ICA”)

affirmed on appeal, concluding that Ala Moana did not owe Fry a

legal duty under any theory of liability.

We hold that summary judgment was properly granted on

Plaintiffs’ general premises liability claims against Ala Moana

as a possessor of land because: (1) Ala Moana owed no duty to a

person not reasonably anticipated to be on the rooftop and, based

on the admissible evidence, Fry could not have reasonably been

anticipated to be on the rooftop; (2) even if Ala Moana should

have reasonably anticipated Fry’s presence on the rooftop, it

still could not be held liable because Fry’s entry into the

exhaust vent was not reasonably foreseeable; therefore, any

breach of its general duty as a possessor of land was not a

substantial factor in causing Fry’s injuries and/or death; (3)

1
The Honorable Gary W.B. Chang presided.

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whether or not Fry had the mental capacity to voluntarily enter

the exhaust duct is irrelevant to Ala Moana’s general premises

liability duty; (4) the doctrine of res ipsa loquitor is

inapplicable; and (5) Plaintiffs’ other theories as to how Fry

ended up on the rooftop are speculative and constitute

intentional torts for which Ala Moana cannot be held vicariously

liable.

We also hold, however, that pursuant to section 338 of

the Restatement (Second) of Torts, adopted by this court in

Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977), as a

possessor of land in immediate control of the heat, smoke, and

gasses emanating from stoves in the Food Court into the exhaust

duct, and knowing of Fry’s presence in dangerous proximity to

those forces, Ala Moana had a duty to exercise reasonable care to

control those forces to prevent them from doing harm to Fry, even

if she was a trespasser. Genuine issues of material fact exist

as to (1) whether Ala Moana breached its duty under section 338;

and (2) if so, whether such breach was a substantial factor in

causing Fry’s injuries and/or death.

In addition, we hold that, pursuant to section 314A(3)

of the Restatement (Second) of Torts, as a possessor of land who

held its land open to the public, Ala Moana had a duty to members

of the public who entered the Center in response to its

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invitation to take reasonable action to give first aid after it

knew or had reason to know that such persons were ill or injured,

and to care for such persons until they could be cared for by

others. Genuine issues of material fact exist to (1) whether Fry

was a member of the public who entered the Center in response to

Ala Moana’s invitation; (2) if so, whether Ala Moana breached its

duties under section 314A(3); and (3) if so, whether such breach

was a substantial factor in causing Fry’s injuries and/or death.

Therefore, we vacate in part and affirm in part the

ICA’s judgment in favor of Ala Moana, and remand the case to the

circuit court for further proceedings consistent with this

opinion.

II. Background

A. Factual Background

Reviewing the law de novo and the facts and in the

light most favorable to Plaintiffs, pursuant to the standards

governing appellate review of summary judgment motions,2 the

following factual background can be gleaned from the evidence in

the record.3

2
See Section III, infra.

3
Ala Moana’s former counsel had initially filed a motion for
summary judgment. Substitute counsel withdrew this motion without prejudice,
then later filed a revised motion. Portions of this factual background are
contained in submissions from the withdrawn motion for summary judgment.

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On Saturday, September 3, 2005, at around five or ten

minutes after 2:00 p.m., Cary Oshiro (“Oshiro”), a maintenance

worker employed by Ala Moana, responded to a call from the Poi

Bowl restaurant at the Food Court indicating its exhaust fan was

not working. Oshiro was at Poi Bowl for less than a minute.

While there, security officers were also responding to a smoke

alarm at Little Café Siam, next door. Because the two

restaurants shared the same exhaust vent, Oshiro proceeded to the

rooftop to determine whether the exhaust fan was functioning.

Before proceeding to the Bally rooftop, where these

ducts eventually ended, Oshiro called the security control center

to explain that he would be accessing a secured gate to the

stairwell.4 He then used an electronic swipe card to open the

gate and proceeded upstairs.5 Normally, the magnetic lock on the

gate was wired to a silent alarm system that would signal whether

the gate was open or closed, and the lock was monitored in the

security control center. That afternoon, however, the alarm for

4
According to Ala Moana’s unwritten policies and procedures,
employees were required to call the control center before accessing any of the
rooftops or other secured areas of the Center. On one occasion, over ten
years ago, an employee forgot to call security before accessing one of the
magnetic locks and the alarm went off.

5
The metal gate leading to the stairwell could be opened by either
a Matco security key or a swipe card, both of which were individually numbered
or coded so that the owner could be identified if a key were lost. If a swipe
card were used, certain data would be recorded including the identity of the
card holder and time of access. If a traditional key were used, no data would
be recorded.

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the gate was not functioning properly, and there was no video

surveillance of the area. Ala Moana’s security and maintenance

personnel were the only people with access to these areas and,

during the relevant time period, no keys or access cards had been

reported lost or stolen.6

Oshiro proceeded to unlock a padlock on the hatch that

opened onto the rooftop. When he reached the rooftop, he checked

the exhaust fan and determined that it was not running. A young

woman, later identified as Fry, appeared from behind the fan.

Fry was barefoot, dressed in shorts and a tank top, and had

grease smeared on her feet, hands, hair and face. She did not

appear to have any noticeable injuries.

Oshiro asked Fry what she was doing on the rooftop, and

she responded that she was a contractor hired to clean grease

from the fan. When Oshiro asked whether security knew she was

working on the rooftop, she said, “Yes.” When he asked who had

contracted her to do the work, Fry responded, “A guy named Joe.”

These answers struck Oshiro as odd because that type of work

typically was not done during business hours, when the

restaurants needed the exhaust fans. Oshiro then asked how she

had gotten onto the rooftop, but Fry did not answer. He repeated

6
When Ala Moana personnel or contractors accessed the rooftop, they
would leave the gate slightly ajar until they completed their work, and they
would again call security once they left the area and closed the gate.
Additionally, the padlock on the hatch would be left open when contractors or
personnel were working on the roof.
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the question two or three times, and she responded, “No, it

doesn’t matter.” Oshiro noticed that Fry was jumpy and seemed

nervous.

One to three minutes after first encountering Fry on

the rooftop, Oshiro called security to verify her story. As he

did, Fry climbed on top of the exhaust duct and began jumping up

and down. Oshiro asked her what she was doing, but she did not

respond. He then asked her to come down, and she climbed off the

duct.

Charles (or Kazu) Yokoyama (“Yokoyama”), a senior

maintenance mechanic, joined Oshiro on the rooftop, and Oshiro

explained the situation to him. In the meantime, Fry had climbed

back onto and started jumping forcefully on the duct. Yokoyama

asked her to come down and talk to them, but Fry did not respond.

As Fry continued jumping, Yokoyama stepped away to call security.

Fry then told Oshiro that there was a baby in the duct.

Oshiro asked her what she was talking about, and Fry responded,

“No, nothing. You know, it doesn’t matter.” At this point, two

to five minutes had passed since Oshiro first encountered Fry.

Eventually, the force of Fry’s jumping caused the sheet metal to

collapse inward, creating a hole about six to eight inches high

and two feet wide. Fry slid her feet inside the opening and

squeezed into the duct as the metal bent under her weight. Upon

witnessing this, Oshiro again called security, and asked that a
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security officer be sent to the roof.

In the meantime, Derek Hangai (“Hangai”), in the

security control center, checked Ala Moana’s records to determine

whether any contractors had been scheduled to work on the

rooftop. As he confirmed with the Poi Bowl and Little Café Siam

that neither restaurant was aware of any work scheduled that day,

Oshiro called to report that Fry had climbed into the exhaust

duct. Hangai stated he did not remember whether he asked

Lieutenant Henry Tancayo (“Tancayo”) or dispatcher Brian Babauta

(“Babauta”) if he should call emergency services upon learning

that Fry had climbed into the duct.

Ala Moana security officer Lukela Bagood (“Bagood”)

arrived on the rooftop just as Fry was entering the exhaust duct.

Bagood had been instructed by his supervisor, Tancayo, to arrest

or detain Fry if possible. Bagood relayed to Tancayo that Fry

was inside the duct, but he did not recall whether anyone asked

if they should call emergency services. Security officer Jowana

Lobendahn (“Lobendahn”) responded later, at approximately 2:35

p.m. Lobendahn stuck her head into an opening in the duct and

attempted to locate Fry. Lobendahn asked Fry if she was injured,

and Fry responded “No.” Lobendahn then continued to communicate

with Fry and told her to stay where she was, but Fry stopped

responding. After two or three minutes, however, Oshiro and

Yokoyama heard a loud banging from inside the duct, followed by
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silence.

In an attempt to locate Fry, Lobendahn, Yokoyama, and

Oshiro followed the route of the ventilation duct inside the

building. Lobendahn went one level down to the Gucci corridor,

where she kicked and banged on the duct to see if Fry could hear

her. She then returned to the rooftop to see if Bagood could get

Fry to respond. Yokoyama ran downstairs to the parking lot

level. Oshiro ran to the Food Court where the duct eventually

ended. Bagood and Lobendahn remained on the Bally rooftop for

around twenty minutes until the control center directed them to

Little Café Siam.

When Oshiro arrived at Little Café Siam, the employees

reported that the exhaust duct above the stove was moving.

Oshiro saw that someone was pushing at the sheet metal from the

inside. After unscrewing the access panel to the duct and

opening up the sheet metal, Oshiro noticed that Fry was trapped

in a small space in the stove hood, on the other side of a narrow

metal bar. Fry was responsive and said something, but Oshiro

could not recall what she said. Oshiro could not recall what

time he arrived at the restaurant.

Although Oshiro and Yokoyama said that the stoves were

off when they arrived at Little Café Siam, Lobendahn, who arrived

later, stated:
One stove ewa of where the female was located had [four]

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pots with hot water. [Second] stove directly under the
female had [two] large cooking woks that had nothing in it.
We had the employees of Café Siam remove cooking items out
of the way and turned off all stoves and gasses.

In addition, according to Bagood, the stoves and ovens at Poi

Bowl were still on when he arrived downstairs.

After restaurant employees were directed to turn off

the stoves, Lobendahn pulled down a metal panel underneath Fry so

she could get some air, and held her hand in an attempt to

reassure her and keep her conscious. Lobendahn asked Fry for her

name, age, where she was from, and why she was on the rooftop.

Fry responded that her name was Dallas, she was twenty-two years

old, and she was from Kona. She said that she had been on the

rooftop because she wanted to be free. She also said that she

had a miscarriage, but did not want to talk about it because it

made her cry. Fry later said that she was sorry, she did not

want to die, and please get her out. Lobendahn reassured her

that everything was going to be okay and they would get her out.

When patrons were injured, Ala Moana’s procedure was to

have security call emergency services, which would arrive on

scene within a few minutes. Bagood was therefore surprised that

when he arrived at the Food Court, emergency service personnel

were not already there. In fact, no one from Ala Moana called

emergency services until 2:54 p.m.; and when the call was made,

it was to inform the Honolulu Police Department (“HPD”) that a

woman had broken into a duct at Ala Moana Center and was crawling
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through the duct without authorization. HPD was asked to send an

officer to the rooftop in case the woman decided to climb out of

the duct. Moments later, however, HPD was informed that the

woman was attempting to crawl down the duct into the Food Court,

and Ala Moana asked that the officer report to Little Café Siam.

At approximately 2:57 p.m., security personnel called

Emergency Medical Services (“EMS”) to request an ambulance, and

to report that an unknown female had gotten into the exhaust fans

on the rooftop and had either slipped or fallen down the duct.

Security reported that maintenance was attempting to remove the

woman from the exhaust duct. EMS called the Honolulu Fire

Department (“HFD”) to request assistance in extricating Fry from

the duct. As EMS was explaining the situation to HFD, an Ala

Moana security officer said, “Oh, looks like we got her out,” and

then, “You know what ambulance would be good for now. It looks

like she’s okay, but –....” According to the transcript of this

call, Ala Moana security could hear what EMS was relaying to HFD.

When EMS told HFD that it was no longer needed because Fry had

been removed from the exhaust duct, the security officer did not

correct EMS to request that HFD or EMS respond to the scene

immediately.

At approximately 3:00 p.m., another call was placed

from Ala Moana security, this time directly to HFD, requesting

assistance in extricating Fry from the duct. Paramedics arrived
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on the scene at 3:06 p.m., and HFD arrived at 3:10 p.m. Once

EMS, HPD, and HFD arrived, Oshiro, Yokoyama, and Lobendahn

stepped away as rescue services personnel attempted to extricate

Fry from the duct. Fry was finally removed from the exhaust duct

at approximately 4:53 p.m. Upon removal from the duct, she

immediately became unresponsive, and was transported to The

Queen’s Medical Center in critical condition at 5:09 p.m. Fry

was asystolic during transport to the hospital, and resuscitation

efforts failed. She arrived at the hospital at 5:28 p.m., and

was pronounced dead at 5:33 p.m.

An autopsy performed on Fry indicated that the cause of

death was the combined effects of hyperthermia and respiratory

compromise. Fry was twenty-two years old at the time of her

death, and was approximately six to eight weeks pregnant. The

autopsy indicated that no internal injuries caused or contributed

to Fry’s death, although the extrication process left various

scrapes and bruises on her skin. In addition, blisters on her

skin were consistent with superficial burns from contact with a

hot surface. The medical examiner concluded that information

regarding the circumstances leading to and surrounding her death

suggested an acute psychotic episode of unknown etiology. No

stimulant drugs known to cause an acute psychotic episode were

detected in Fry’s blood or vitreous fluid.

A subsequent investigation by HPD and Ala Moana could
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not conclusively determine the means by which Fry accessed the

Bally rooftop. Upon further examination of the rooftop that

afternoon, Fry’s belongings, including her ID, toiletries,

clothes, perfume, day planner, and purse, were found scattered in

three drains on the rooftop. Among the items found was a

screwdriver.

Ala Moana personnel did not know of any unauthorized

entry or trespass to the rooftop or the ventilation system before

this incident. They also did not know how Fry could have gotten

to the rooftop other than through the secured gate and hatch.

Other evidence indicated, however, that it was possible to access

the Bally rooftop from an adjacent building. In response to an

interrogatory asking how Fry got to the rooftop, Ala Moana

surmised that Fry likely entered areas that were marked for

authorized personnel only and climbed on the Center’s rooftop

until she reached the Bally rooftop by (a) entering a fourth

floor hallway near the Godiva store that led to a rooftop door,

which was propped open by air conditioning contractors, then

traversing the rooftops to the Bally rooftop, or (b) entering a

fourth floor hallway that led to a ledge that allowed her to

access the rooftop directly across from the Bally rooftop, then

climbing across the Neiman Marcus tiled rooftop over to the Bally

rooftop.

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B. Circuit Court Proceedings

Plaintiffs Heather R. Winfrey, individually and as

personal representative for Fry’s estate, and Samuel J. Fry, Jr.

filed suit against Ala Moana in the Circuit Court of the First

Circuit. Plaintiffs asserted claims against Ala Moana for:

wrongful death (Count I); negligent failure to provide a safe

premises (Count II); negligent failure (a) to properly train or

supervise employees, and (b) to care for Fry and her unborn child

during the incident (Count III); intentional/negligent infliction

of emotional distress (Count IV); and punitive damages (Count V).

Before discovery had been completed and before a trial

date had been set, Ala Moana filed the subject motion for summary

judgment, arguing, in general, that (1) it did not owe Fry a

legal duty because she was a trespasser not reasonably

anticipated to be on the Bally rooftop, and (2) it could not be

held liable for its attempts to aid Fry after she became stuck in

the exhaust duct. Specifically, Ala Moana asserted that there

could be no liability arising from its ownership of the property

because Fry had been a trespasser, she was not reasonably

anticipated to be in a secure area to which only authorized

personnel had access, the limited duty owed to trespassers did

not apply where there had been no prior history of trespass to

the area, and it did not create or maintain the condition that

harmed Fry. Ala Moana further argued that it did not have an
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affirmative duty to intervene to protect Fry from her own

actions. Finally, it argued that it could not be held liable for

any attempts to aid Fry because the duty to assist an injured

person was limited and any attempts to render aid were protected

by a Good Samaritan statute, Hawai#i Revised Statutes (“HRS”) §

663-1.5.

In opposition, Plaintiffs argued that Ala Moana had

implicitly taken custody of Fry because Ala Moana personnel had

exclusive control over and access to the rooftop. They claimed

that Fry was induced to the rooftop and locked outside by an Ala

Moana employee, and that she was suffering from the effects of

heat stroke when maintenance and security personnel found her.

Plaintiffs argued that Ala Moana had a duty to use reasonable

care for the safety of all persons reasonably anticipated on the

premises. In addition, they contended that Ala Moana voluntarily

undertook to ensure the safety of its customers, and the

reasonableness of its actions in rendering aid was a question of

fact. They also argued that the doctrine of res ipsa loquitor

applied because Fry could not have been locked on the rooftop but

for Ala Moana’s negligence. Finally, they argued that the

circuit court had erred in denying their request for a

continuance to conduct additional discovery, including various

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depositions.7

Ala Moana replied, inter alia, that the evidence

established that Fry was a trespasser, and that any allegation

that she was locked on the rooftop by an Ala Moana employee

relied on pure conjecture rather than reasonable inferences. It

claimed that Plaintiffs’ characterization of the facts distorted

the evidence in the record. It reiterated that Ala Moana did not

owe a duty based on premises liability because Fry was not

reasonably anticipated to be on the rooftop, and that Plaintiffs’

other theories of liability were without merit where there was no

evidence Ala Moana allowed Fry to access the rooftop and Fry

voluntarily broke into the exhaust duct.

After a hearing on this motion, the circuit court

orally granted summary judgment in favor of Ala Moana on all

claims based on premises liability and intentional conduct. The

court declined to grant summary judgment on any remaining claims

based on a duty to render aid. It noted that, pursuant to Lundy

v. Adamar of New Jersey, 34 F.3d 1173 (3d Cir. 1994), a landowner

has a duty to render aid once it becomes aware of a person

7
In opposing Ala Moana’s motion for summary judgment, Plaintiffs
explained that they had been unable to depose all of the relevant individuals
involved in the incident—including security officers who responded to the
incident or dispatched emergency services from the control center, the ranking
administrator who answered Plaintiffs’ interrogatories, and Ala Moana’s Chief
of Security. Before the ICA, Plaintiffs again raised the issue of incomplete
discovery. Plaintiffs do not specifically raise this issue in their
application for writ of certiorari; based on the analysis below, incomplete
discovery is relevant to some but not other issues arising from Plaintiffs’
theories of liability.
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injured on its property. The court stated that this duty might

have required Ala Moana to take affirmative action upon learning

of Fry’s presence on the rooftop, and it declined to shield Ala

Moana from liability through HRS § 663-1.5, a Good Samaritan

statute which generally precludes civil liability against a

person rendering first aid.

The circuit court entered an order granting summary

judgment in favor of Ala Moana on Count II (negligence in failing

to provide a safe premises) and part of Count IV (intentional

infliction of emotional distress). However, it denied summary

judgment on Count I (wrongful death), Count III (negligence in

failing to properly train/supervise employees or otherwise care

for Fry), part of Count IV (negligent infliction of emotional

distress), and Count V (punitive damages).

In the meantime, Ala Moana filed a motion for

reconsideration, arguing that Plaintiffs’ remaining claims should

be dismissed pursuant to Moyle v. Y&Y Hyup Shin Corp., 118

Hawai#i 385, 191 P.3d 1062 (2008). Ala Moana argued that, based

on Moyle, it could not be held liable for its affirmative

attempts to render aid absent a showing of gross negligence or

wanton acts or omissions. Plaintiffs, however, argued that Moyle

was distinguishable because it involved an incident occurring

outside the defendant’s premises, a criminal act by a third

party, and a failure to act by defendant’s employees.
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Upon considering these arguments, the circuit court

entered an order granting summary judgment in favor of Ala Moana

on the remaining counts pursuant to Moyle. The court then

entered final judgment in favor of Ala Moana on all of

Plaintiffs’ claims.

C. The ICA Decision

On appeal, Plaintiffs and Ala Moana essentially

repeated their arguments to the circuit court. In a summary

disposition order (“SDO”), the ICA affirmed the circuit court’s

final judgment in favor of Ala Moana. The ICA concluded, in

relevant part, that Ala Moana did not take Fry into custody based

on Plaintiffs’ unsupported allegations that Ala Moana employees

were responsible for bringing Fry to the rooftop; Ala Moana did

not owe a duty of care under a general premises liability theory

because the rooftop was secured by a set of locked doors, Fry was

not authorized to be on the rooftop, and Plaintiffs produced no

evidence that Ala Moana should have reasonably anticipated her

presence on the rooftop; Ala Moana did not voluntarily assume a

duty of care for Fry’s safety; there was no duty to render aid

because there was no special relationship between Ala Moana and

Fry; and the doctrine of res ipsa loquitur was inapplicable where

Fry’s death was caused by her own voluntarily actions in entering

the exhaust duct against the warnings of Ala Moana employees. In
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addition, the ICA concluded that the parties’ arguments regarding

Moyle were moot because summary judgment could be affirmed based

on the absence of a duty to render aid under Lee v. Corregedore,

83 Hawai#i 154, 925 P.2d 324 (1996).

D. Issues on Certiorari

Plaintiffs argue to this court that, viewing the facts

in the light most favorable to them, the ICA gravely erred in

affirming summary judgment because there were genuine issues of

material fact as to whether Fry acted voluntarily when she

entered the exhaust duct and whether she was reasonably

anticipated to be on the rooftop. They argue that the ICA erred

in dismissing their theory of res ipsa loquitur because the facts

supported an inference that Fry would not have been on the

rooftop but for Ala Moana’s negligence. Finally, Plaintiffs

argue that the ICA erred in concluding that Ala Moana did not owe

Fry a special-relationship duty to protect or warn against

dangers, which it knew or should have known posed a substantial

risk of harm and over which it exercised immediate control.

Ala Moana, on the other hand, contends that Plaintiffs’

legal theories are grounded in baseless assumptions rather than

admissible facts. It argues that the ICA properly concluded that

Fry was not authorized to be on the rooftop, that she voluntarily

entered the exhaust duct, and that her presence could not have
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been reasonably anticipated by Ala Moana. Ala Moana also

maintains that it did not owe a duty of care under a theory of

general premises liability; there was no special relationship

which would trigger a duty to render aid; and the duty to protect

against forces over which a possessor of land is in immediate

control was inapplicable.

III. Standard of Review

A motion for summary judgment is reviewed de novo,

under the same standard applied by the trial court. State v.

Tradewinds Elec. Serv. & Contracting, 80 Hawai#i 218, 222, 908

P.2d 1204, 1208 (1995). See Hawai#i Rules of Civil Procedure

(“HRCP”) Rule 56. “Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Pacific Int’l Serv. Corp. v. Hurip, 76 Hawai#i 209, 213, 873 P.2d

88, 92 (1994) (citation omitted). A fact is material if proof of

that fact would have the effect of establishing or refuting an

essential element of a cause of action asserted by one of the

parties. Guajardo v. AIG Hawai#i Ins. Co., 118 Hawai#i 196, 201,

187 P.3d 580, 585 (2008).

On a motion for summary judgment, the court must view
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the evidence in the light most favorable to the non-moving party.

First Ins. Co. of Hawai#i v. Sariaslani, 80 Hawai#i 491, 494, 911

P.2d 126, 129 (1996). “[T]he court is permitted to draw only

those inferences of which the evidence is reasonably susceptible

and it may not resort to speculation.” Pioneer Mill Co. v. Dow,

90 Hawai#i 289, 295, 978 P.2d 727, 733 (1999) (citation omitted).

The burden lies upon the moving party to show that no

genuine issue of material fact exists with respect to the

essential elements of the claim and that, based on the undisputed

facts, he is entitled to judgment as a matter of law.

Sariaslani, 80 Hawai#i at 493, 911 P.2d at 128. Only once the

moving party has satisfied its initial burden of production does

the burden shift to the non-moving party to show specific facts

that present a genuine issue for trial. Id.

When a summary judgment motion is filed before the

discovery deadline, a HRCP Rule 56(f) continuance provides the

means by which a non-moving party can assure that she has had

adequate time to conduct discovery before the motion is decided.

Ralston v. Yim, 129 Hawai#i 46, 63, 292 P.3d 1276, 1293 (2013).

IV. Discussion

A negligence action lies only where there is a duty

owed by the defendant to the plaintiff. Birmingham v. Fodor’s

Travel Publ’ns, 73 Haw. 359, 366, 833 P.2d 70, 74 (1992). The
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existence of a duty is a question of law, which this court

reviews de novo. Id.

In recognizing the existence of a duty, this court is

guided by several basic principles:
First, the existence of a duty, that is, whether such a relation
exists between the parties that the community will impose a legal
obligation upon one for the benefit of the other—or, more simply,
whether the interest of a plaintiff who has suffered invasion is
entitled to legal protection at the expense of a defendant—is
entirely a question of law. Second, whether a duty exists is a
question of fairness that involves a weighing of the nature of the
risk, and the public interest in the proposed solution. Third, we
will not impose a new duty upon members of our society without any
logical, sound, and compelling reasons taking into consideration
the social and human relationships of our society.

Hao v. Campbell Estate, 76 Hawai#i 77, 80, 869 P.2d 216, 219

(1994) (citations, internal quotation marks, and brackets

omitted).

A. General Premises Liability Claim

An occupier of land has a duty to use reasonable care

for the safety of all persons reasonably anticipated to be on the

premises, regardless of the status of the individual as invitee,

licensee, or trespasser. Pickard v. City & Cnty of Honolulu, 51

Haw. 134, 135, 452 P.2d 445, 446 (1969) (remanding for new trial

based on duty owed to visitor to courthouse, who used restroom

with broken light switch and fell through a hole in the floor).

See also Gibo v. City & Cnty of Honolulu, 51 Haw. 299, 301, 459

P.2d 198, 200 (1969) (holding that hospital had a duty to

maintain premises in a reasonably safe condition for plaintiff
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who entered through ambulance garage rather than main entrance).8

For the following reasons, Ala Moana was entitled to

summary judgment on Plaintiffs’ general premises liability claim.

First, based on the evidence adduced, Fry could not

have been reasonably anticipated to be on the rooftop. Even if

Ala Moana’s interrogatory answer as to how Fry reached the

rooftop is considered, there had been no other unauthorized

entries onto the rooftop; therefore, Fry’s presence on the Bally

rooftop could not have been reasonably anticipated.

Second, even if there were factual issues as to whether

Ala Moana should have reasonably anticipated Fry’s presence on

the rooftop, Plaintiffs would not be able to prevail on a general

premises liability claim because the requisite causation would

not exist. In this regard, it is well-established that the

elements of a negligence claim are:

8
Other jurisdictions have similarly recognized that landowners owe
a duty to exercise care for the safety of persons reasonably anticipated on
their premises. See, e.g., Stewart v. DuPlessis, 191 N.E.2d 622, 625-26 (Ill.
Ct. App. 1963) (holding that contractor had duty to exercise ordinary care to
avoid injury where the facts indicated that children were reasonably
anticipated on construction site); Duxworth v. Pat Caffey Contractor, 209
So.2d 497, 500 (La. Ct. App. 1968) (holding that contractor could be held
liable for negligence where he left heavy trailer unsecured in street even
though foreman knew that children played on the trailer); L.A.C. v. Ward
Parkway Shopping Ctr. Co., 75 S.W.3d 247, 257-58 (Mo. 2002) (en banc) (holding
that owners and managers of mall had a duty to take reasonable care to protect
business invitees where reports of prior incidents against female victims
indicated that criminal activity alleged by plaintiff was foreseeable). But
see Craig v. Bailey Bros. Realty, 697 S.E.2d 888, 893-94 (Ga. Ct. App. 2010)
(holding that child was not anticipated trespasser on owner’s property,
railroad crossties did not constitute attractive nuisance, and owners
therefore were not liable on premises liability claim); Pride v. Cleveland
State Univ., 657 N.E.2d 878, 881 (Ohio Ct. Cl. 1995) (holding that university,
which did not know of hazardous condition in ventilation shaft until after
plaintiff was injured, did not breach duty of reasonable care).
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1. A duty, or obligation, recognized by the law, requiring
the defendant to conform to a certain standard of conduct,
for the protection of others against unreasonable risks;

2. A failure on the defendant's part to conform to the
standard required: a breach of the duty;

3. A reasonably close causal connection between the conduct
and the resulting injury[;] and

4. Actual loss or damage resulting to the interests of
another.

Knodle v. Waikiki Gateway Hotel, 69 Haw. 376, 384-85, 742 P.2d

377, 383 (1987) (quoting W.P. Keeton, Prosser and Keeton on the

Law of Torts § 30, at 164-65 (5th ed. 1984)) (brackets and

ellipses omitted). In other words, even if (1) and (2) were

established, there would be no “reasonably close causal

connection between” Ala Moana’s alleged breach of duty in

creating a condition that allowed Fry access to the rooftop and

her subsequent injuries and/or death, because the existence of

the exhaust duct on the rooftop did not create a unreasonable

risk of harm, and because Fry’s forced entry therein was not

reasonably foreseeable. Therefore, the requisite causation

element could not be met as a matter of law.

Third, although Plaintiffs argue that questions of fact

exist as to whether Fry “voluntarily” entered the exhaust duct in

light of her mental capacity at the time of the incident, any

such questions of fact are irrelevant to whether Ala Moana

breached its general duty as an occupier of land. Again, even if

Ala Moana could have reasonably anticipated Fry’s entry into the

rooftop area, it could not have “reasonably” anticipated Fry’s
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entry into the exhaust duct.

Fourth, contrary to Plaintiffs’ assertion, the doctrine

of res ipsa loquitur does not create an inference of negligence

under the circumstances of this case. Res ipsa loquitur permits

an inference of negligence when the thing that produced a

person’s injury is under the control and management of the

defendant, and the injury could not have occurred in the ordinary

course of events but for the defendant’s failure to exercise due

care. Carlos v. MTL, 77 Hawai#i 269, 277, 883 P.2d 691, 699

(App. 1994) (citing Turner v. Willis, 59 Haw. 319, 324-25, 582

P.2d 710, 714 (1978)).9 Where an accident could have occurred in

the normal course without negligence, or where two equally

plausible inferences can be drawn as to whether the accident was

caused by negligence, the doctrine is not applicable. Id. at

278, 883 P.2d at 700. To invoke the doctrine of res ipsa

loquitur, the plaintiff must present substantial evidence that

9
This court has explained the rationale of the doctrine as follows:
[T]he doctrine of res ipsa loquitur asserts that whenever a
thing that produced an injury is shown to have been under
the control and management of the defendant and the
occurrence is such as in the ordinary course of events does
not happen if due care has been exercised, the fact of the
injury itself will be deemed to afford sufficient evidence
to support a recovery in the absence of any explanation by
the defendant tending to show that the injury was not due to
his want of care. *** The presumption of negligence herein
considered is of course a rebuttable presumption. It
imports merely that the plaintiff has made out a prima facie
case which entitled him to a favorable finding unless the
defendant introduces evidence to meet and offset its effect.
Ciacci v. Woolley, 33 Haw. 247, 257-58 (Haw. Terr. 1934) (citation and
internal quotation marks omitted).

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(1) the injury was of the kind that ordinarily does not occur in

the absence of negligence, (2) the injury was caused by an agency

or instrumentality in the exclusive control of the defendant, and

(3) the injury was not due to any voluntary action or

contribution by the plaintiff. Medina v. Figuered, 3 Haw. App.

186, 188, 647 P.2d 292, 294 (1982) (citing Prosser, Law of Torts

§ 39 at 214 (1978)). Without even addressing the second two

elements, Fry’s injury was one that could have occurred without

Ala Moana’s negligence. Res ipsa loquitur is simply

inapplicable.

Finally, Plaintiffs argue that Ala Moana could be

negligent under a claim of general premises liability because

genuine issues of material fact exist as to whether Fry was

induced to the rooftop and locked outside by an employee or agent

of Ala Moana. Initially, such a theory is entirely speculative;

a court is permitted to draw only those inferences of which the

evidence is reasonably susceptible, and may not resort to

speculation. Pioneer Mill Co., 90 Hawai#i at 295, 978 P.2d at

733. In addition, however, even if admissible evidence supported

such a theory, Ala Moana could not be held liable for such

intentional torts. “Under the theory of respondeat superior, an

employer may be liable for the negligent acts of its employees

that occur within the scope of their employment.” Wong-Leong v.

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Hawaiian Indep. Refinery, 76 Hawai#i 433, 438, 879 P.2d 538, 543

(1994) (citations omitted). Contrary to Plaintiffs contentions,

vicarious liability would not extend to intentional torts

committed by Ala Moana’s employees or agents.

For all of the reasons above, Ala Moana was entitled to

summary judgment on Plaintiffs’ general premises liability claim.

B. Special Duties Owed by Ala Moana

Even if Ala Moana could not be held liable on

Plaintiffs’ claim of general premises liability, genuine issues

of material fact exist as to whether Ala Moana breached two

distinct duties based on (1) its immediate control over a force

to which Fry was in dangerous proximity, and (2) Fry’s entry onto

the property in response to Ala Moana’s invitation to the public.

1. Duty to Control Force To Prevent Harm

The first of these duties was addressed in Farrior v.

Payton, 57 Haw. 620, 562 P.2d 779. In Farrior, plaintiffs

brought a civil action against dog owners for injuries sustained

when, in an attempt to avoid a perceived attack by defendants’

German shepherd dog, they fell ten feet off a natural rock wall.

57 Haw. at 625, 562 P.2d at 783-84. Citing section 338 of the

Restatement (Second) of Torts, this court held that defendants

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owed a duty to control the dog to prevent harm to individuals on

their property even if, as in the plaintiffs’ case, those

individuals were trespassers.10 Id. at 629, 562 P.2d at 785-86.

The Restatement (Second) of Torts § 338 provides:
§ 338. Controllable Forces Dangerous to Known Trespassers

A possessor of land who is in immediate control of a force,
and knows or has reason to know of the presence of
trespassers in dangerous proximity to it, is subject to
liability for physical harm thereby caused to them by his
failure to exercise reasonable care

(a) so to control the force as to prevent it from doing harm
to them, or

(b) to give a warning which is reasonably adequate to enable
them to protect themselves.

(Emphasis added.)

Ala Moana argues that Farrior is distinguishable

because the injury in that case was caused by a moving force

(i.e., a charging German shepherd dog), and this court declined

to distinguish between the defendants’ duty as landowners and

their duty as the persons in immediate control of the animal. 57

Haw. at 633, 562 P.2d at 787. See Restatement (Second) of Torts

§ 338, comment b (“The rule stated in this Section applies to any

moving force over which the possessor is in immediate control, in

so far as the force is connected with a condition created or

maintained by him. This is so irrespective of whether the

10
We noted, however, “[t]he nature and extent of the [plaintiffs’]
duty as landowners, as distinct from [the son=s] duty as the person in charge
of the dog, to persons who might intrude upon the makai portion of their
property under the circumstances of this case, was not briefed or argued and
we will not anticipate the question.” 57 Haw. at 633, 562 P.2d at 787.

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particular force is actually set in motion by him, by a force of

nature, or by a third party with or without his consent.”).

We conclude, however, that the heat, smoke and gasses

emanating from the stoves and through the ventilation system

constituted moving forces to which Fry was in dangerous proximity

and over which Ala Moana exercised immediate control. Further,

as in Farrior, Fry’s status as a trespasser on the rooftop and in

the exhaust duct is irrelevant. Ala Moana employees knew of

Fry’s presence inside the exhaust duct, which was connected to

the stoves in the Food Court, and they were in immediate control

of those forces. The admissible evidence in the record creates

genuine issues of material fact as to whether Ala Moana exercised

reasonable care to turn off the stoves to prevent harm to Fry

while she was trapped inside the duct, and whether the failure to

do so was a substantial factor in causing her injuries and/or

death.

Therefore, we hold that, pursuant to section 338 of the

Restatement (Second) of Torts, adopted by this court in Farrior,

as a possessor of land in immediate control of the heat, smoke,

and gasses emanating from stoves in the Food Court into the

exhaust duct, and knowing of Fry’s presence in dangerous

proximity to those forces, Ala Moana had a duty to exercise

reasonable care to control those forces to prevent them from

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doing harm to Fry. Genuine issues of material fact exist as to:

(1) whether Ala Moana breached this duty; and (2) if so, whether

such breach was a substantial factor in causing Fry’s injuries

and/or death.

2. Duty to Aid Based on Special Relationship

The second duty is one which arises out of the

Restatement (Second) of Torts § 314A, which provides:
§ 314A. Special Relations Giving Rise To Duty To Aid Or Protect.

(1) A common carrier is under a duty to its passengers to
take reasonable action

(a) to protect them against unreasonable risk of
physical harm, and

(b) to give them first aid after it knows or has
reason to know that they are ill or injured, and to
care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is
under a similar duty to members of the public who enter in
response to his invitation.

(4) One who is required by law to take or who voluntarily
takes the custody of another under circumstances such as to
deprive the other of his normal opportunities for protection
is under a similar duty to the other.

(Emphasis added.)

Generally, the law does not recognize an affirmative

duty to intervene and protect another person from harm. Lee, 83

Hawai#i at 159, 925 P.2d at 329. Section 314A, however,

recognizes a duty to aid or protect in certain circumstances. In

this regard, Plaintiffs assert possible liability based on

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subsection (4). Ala Moana did not, however, owe Fry a duty of

care based on subsection (4) because Ala Moana did not

voluntarily take custody of Fry. Compare Lee, 83 Hawai#i at 160-

65, 925 P.2d at 330-35 (declining to impose duty to prevent

suicide of veteran who received counseling from defendant but was

not in defendant’s actual custody), with Hayworth v. State, 60

Haw. 557, 563, 592 P.2d 820, 824 (1979) (recognizing that the

state owes a duty to protect a prisoner in its custody from

unreasonable risk of physical harm), and Figueroa v. State, 61

Haw. 369, 376, 604 P.2d 1198, 1202 (1979) (recognizing that the

state owes a duty to exercise reasonable care in its supervision

of a juvenile committed to a detention home).

Ala Moana is, however, a possessor of land held open to

the public, triggering subsection (3). If Fry entered the Center

in response to Ala Moana’s invitation, then Ala Moana had a duty

under subsection (3) to take reasonable action to give Fry first

aid after it knew that she was ill or injured, and to care for

her until she could be cared for by others.

In this regard, the Third Circuit’s decision in Lundy

v. Adamar of New Jersey, 34 F.3d 1173, is instructive. In Lundy,

the plaintiff suffered a heart attack while he was at a casino

and claimed that the casino owed a duty to provide medical care.

34 F.3d at 1178-79. The Third Circuit concluded that the casino

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owed patrons a duty to take reasonable action to give first aid

during a medical emergency. Id. at 1178 (“[T]he existence of a

relationship between the victim and one in a position to render

aid may create a duty to render assistance.”). Citing commentary

to section 314A, the court explained that this duty required a

landowner to procure appropriate medical care as soon as the need

for such care became apparent and to provide such first aid as

the landowner’s employees were reasonably capable of giving. Id.

at 1179.

Considering the relationship between the owner of a

shopping center and members of the public who enter the property

pursuant to invitation, there are “logical, sound, and compelling

reasons” for imposing a duty under these circumstances. Hao, 76

Hawai#i at 80, 869 P.2d at 219. It is not difficult to imagine

situations in which a member of the public, invited to a shopping

center, becomes ill or injured in an area not otherwise open to

the public. For example, a young child could wander into the

kitchen of a restaurant, and accidentally injure himself on a hot

stove. A mentally impaired individual could wander into a

construction site at a hotel, and fall through a rickety

floorboard. A patron could, while having a heart attack, stagger

into a restricted area. The law should not automatically absolve

a shopping center owner from taking reasonable action to aid

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possible or actual customers based on entry into restricted

areas.

As this court articulated in Pickard, “the common law

distinctions between classes of persons have no logical

relationship to the exercise of reasonable care for the safety of

others.” 51 Haw. at 135, 452 P.2d at 446. In elaborating on the

reason for abolishing such distinctions, we explained:
A man’s life or limb does not become less worthy of
protection by the law nor a loss less worthy of
compensation under the law because he has come upon
the land of another without permission or with
permission but without business purpose. Reasonable
people do not ordinarily vary their conduct depending
upon such matters, and to focus upon the status of the
injured party as a trespasser, licensee, or invitee in
order to determine the question whether the landowner
has a duty of care, is contrary to our modern social
mores and humanitarian values. The common law rules
obscure rather than illuminate the proper
considerations which should govern determination of
the question of duty.

51 Haw. at 136, 452 P.2d at 446 (citation and internal quotation

marks omitted).

Despite Ala Moana’s contentions that Fry was a

trespasser, we hereby recognize the duty to aid under section

314A(3). We note that this duty to aid is distinct from the duty

under Pickard toward those reasonably anticipated to be on the

premises. Thus, although Fry was found in a restricted area of

the Center, Ala Moana was not absolved from its duty to aid if

Fry entered the Center in response to Ala Moana’s invitation to

the public and subsequently became injured or ill on the

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property.

Accordingly, we hold that, pursuant to section 314A of

the Restatement (Second) of Torts, as a possessor of land who

held its land open to the public, Ala Moana owed members of the

public who entered the Center in response to its invitation a

duty to take reasonable action to give first aid after it knew or

had reason to know that such persons were ill or injured, and to

care for such persons until they could be cared for by others.

Genuine issues of material fact exist to: (1) whether Fry was a

member of the public who entered the Center in response to Ala

Moana’s invitation; (2) if so, whether Ala Moana breached its

duties under section 314A(3); and (3) if so, whether such breach

was a substantial factor in causing Fry’s injuries and/or death.

C. Good Samaritan Statutes and Moyle are Inapplicable

Finally, we address Ala Moana’s reliance upon Good

Samaritan statutes and Moyle to argue that it is not subject to

liability based on any attempts to render aid.

First, HRS § 663-1.5(a) provides:
(a) Any person who in good faith renders emergency care,
without remuneration or expectation of remuneration, at the
scene of an accident or emergency to a victim of the
accident or emergency shall not be liable for any civil
damages resulting from the person’s acts or omissions,
except for such damages as may result from the person’s
gross negligence or wanton acts or omissions.
....

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Next, HRS § 663-1.6 provides:
(a) Any person at the scene of a crime who knows that a
victim of the crime is suffering from serious physical harm
shall obtain or attempt to obtain aid from law enforcement
or medical personnel if the person can do so without danger
or peril to any person. Any person who violates this
subsection is guilty of a petty misdemeanor.

(b) Any person who provides reasonable assistance in
compliance with subsection (a) shall not be liable in civil
damages unless the person’s acts constitute gross negligence
or wanton acts or omissions, or unless the person receives
or expects to receive remuneration. Nothing contained in
this subsection shall alter existing law with respect to
tort liability of a physician licensed to practice under the
laws of this State committed in the ordinary course of the
physician’s practice.

(c) Any person who fails to provide reasonable assistance in
compliance with subsection (a) shall not be liable for any
civil damages.

The circuit court granted summary judgment, in part,

based on Moyle, 118 Hawai#i 385, 191 P.3d 1062, which addressed

these statutes. The ICA declared the circuit court’s ruling on

this issue moot, based on its conclusion that Ala Moana did not

owe Fry a duty to aid. We conclude, however, that Ala Moana is

not shielded by these Good Samaritan statutes or by Moyle.

In Moyle, a patron filed suit against the owners of a

night club after being assaulted and robbed by another patron in

front of the club. 118 Hawai#i at 388, 191 P.3d at 1066. Citing

HRS § 663-1.6, the club owners argued that they did not have an

affirmative duty to aid the patron. 118 Hawai#i at 394, 191 P.3d

at 1072. This court held that, pursuant to HRS § 663-1.6, the

club owners could not be held liable for allegedly failing to

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call the police or provide medical aid upon learning of an

ongoing assault.11 Id. at 394, 191 P.3d at 1072. Other

decisions of this court have similarly held that an individual

cannot be held liable for failure to aid or protect against the

criminal acts of a third party. See, e.g., Wolsk v. State, 68

Haw. 299, 301, 711 P.2d 1300, 1302 (1986) (citing Restatement

(Second) of Torts §§ 314A and 315, and holding that State did not

have duty to warn or protect campers in state park from criminal

conduct of third persons not under its control); Kau v. City &

Cnty. of Honolulu, 6 Haw. App. 370, 374, 722 P.2d 1043, 1047

(1986) (holding that City had no duty to protect patrons of golf

course from criminal acts of third parties), Doe v. Grosvenor

Props., 73 Haw. 158, 162-63, 839 P.2d 512, 515 (1992) (explaining

that “status distinctions remain important in the decision to

create exceptions to the general rule that it is unreasonable to

impose a duty to anticipate and control the actions of third

persons”).

The present case, however, did not involve criminal

actions by a third party. Thus, HRS § 663-1.6 and Moyle do not

11
In Moyle, we recognized that owners of a night club had a special-
relationship duty to protect patrons (i.e., business invitees) from reasonably
foreseeable criminal acts by a third party. 118 Hawai#i at 392, 191 P.3d at
1069. However, we distinguished this from a claim based upon the owners’
failure to render aid and concluded that, pursuant to HRS § 663-1.6, a person
who failed to provide reasonable assistance to the victim of a crime could not
be held liable for civil damages. Id. at 394-95, 191 P.3d at 1072.

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apply. Further, HRS § 663-1.5(a) absolves bystanders providing

first aid from liability, and does not address this situation, in

which Ala Moana had an affirmative duty to act.

Therefore, the Good Samaritan statutes and Moyle do not

absolve Ala Moana of its duties.

V. Conclusion

Based on the foregoing analysis, we affirm in part and

vacate in part the ICA’s judgment in favor of Ala Moana, and

remand the case to the circuit court for further proceedings

consistent with this opinion.

Michael J. Green, /s/ Mark E. Recktenwald
Glenn H. Uesugi,
and Myles S. Breiner /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Patricia M. Napier,
Thomas Benedict, /s/ Rom A. Trader
and Kimberly A. Vossman
for respondent

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