Ah Mook Sang v. Clark.

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Electronically Filed
Supreme Court
SCAP-11-0000536
03-SEP-2013
08:10 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

TRACY AH MOOK SANG, as the Personal Representative
of THE ESTATE OF MAKAMAE AH MOOK SANG, Deceased,
TRACY AH MOOK SANG, individually, and
JASON AH MOOK SANG, individually,
Plaintiffs-Appellants,

vs.

MICHAEL CLARK, DENISE CLARK, and EDEN PACIFIC PROPERTIES, INC.,
Defendants-Appellees.

SCAP-11-0000536

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-11-0000536; CIV. NO. 10-1-2358-11)

SEPTEMBER 3, 2013

RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED,
AND CIRCUIT JUDGE AYABE, IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY NAKAYAMA, J.

Makamae Ah Mook Sang, according to the allegations in

the complaint in this case, was fifteen years old on July 29,

2009 when she attended a house party hosted by Michael Clark,
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then twenty-five years old. Once there, Makamae was allegedly

served and encouraged to drink large amounts of hard liquor. At

some point during the night, she allegedly began to feel ill and

then became unconscious, yet neither Michael nor his mother

Denise Clark, with whom he lived and who was present on the

property at the time, rendered or summoned any aid. The next

morning, Michael then allegedly assisted in loading Makamae’s

apparently still-unconscious body into her friend’s car and

simply directed the friend to leave the property. According to

medical personnel, by that time Makamae had likely already died

of acute alcohol intoxication.

Makamae’s parents, Tracy, individually and as personal

representative of Makamae’s estate, and Jason, individually

(collectively, the Ah Mook Sangs), brought the present negligence

action against Michael, Denise, and Eden Pacific Properties, Inc.

(collectively, the Clarks). They seek damages under Hawai#i

Revised Statutes (HRS) § 663-3, Hawaii’s wrongful death statute,

as well as for claims of emotional distress and loss of

consortium due to Makamae’s death.

After the Circuit Court of the First Circuit1 granted

the Clarks’ motion to dismiss the Ah Mook Sangs’ complaint for

failure to state a claim and entered judgment thereon, the Ah

1
The Honorable Rom A. Trader presided.

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Mook Sangs appealed. The appeal is now before this court

pursuant to our order granting the Ah Mook Sangs’ application for

transfer of the case from the Intermediate Court of Appeals

(ICA).

This appeal requires us to consider whether a social

host who invites a minor onto his or her property and then

directly serves alcohol to the minor owes a duty of care to

prevent foreseeable injuries resulting from consumption of the

alcohol, or to render or summon aid if injuries have occurred,

while the minor remains on the property as a guest. While this

court has previously decided cases addressing civil liability for

alcohol-related injuries, we conclude, based on the discussion

that follows, that those cases are factually distinguishable from

the situation presented by this case. We also conclude that the

statute enacted to create a right of action founded on social

host liability does not apply in a case such as this where the

intoxicated minor has not caused damage or injury to an innocent

third party.

Accordingly, we hold that a social host in the

circumstances presented in this case owes a duty of care to a

minor when the host has placed the minor in a position of peril

and does not act to prevent foreseeable harm to the minor that

may thereby result, and when the host does not act to aid the

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minor in the event that harm has occurred. We therefore vacate

the order and judgment of the circuit court and remand for

further proceedings in this case.

I. BACKGROUND

A. Factual Background

Because this case is on appeal from a grant of a motion

to dismiss the complaint, the facts alleged in the complaint are

deemed to be true and viewed in the light most favorable to the

Ah Mook Sangs. See, e.g., Buscher v. Boning, 114 Hawai#i 202,

212, 159 P.3d 814, 824 (2007) (quoting Wong v. Cayetano, 111

Hawai#i 462, 476, 143 P.3d 1, 15 (2006)).

On July 29, 2009, twenty-five-year-old Michael hosted a

party at his residence in Honolulu. Denise, who is Michael’s

mother, also resided at the house and was present on the property

during the party. The house was owned by Eden and Anne Clark,

who is Denise’s mother and Michael’s grandmother. Denise is

listed as the registered agent, president, and owner of Eden, a

real estate company registered in the State of Hawai#i as a for-

profit domestic corporation.

In advance of the July 29 party, Michael purchased

alcohol and invited female guests he knew to be under twenty-one

years of age, including fifteen-year-old Makamae.

On July 29, Makamae arrived at the party at

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approximately 10:00 p.m. with an eighteen-year-old friend, who

drove, and two other underage females. While at the party during

the night of July 29 and early morning hours of July 30, Michael

provided large amounts of alcoholic beverages, including hard

liquor, to Makamae and the other underage female guests. Michael

also organized and facilitated drinking games during the party

and encouraged the guests, including Makamae, to participate.

Due to consumption of the large amount of alcohol provided by

Michael during the party, Makamae became visibly sick and

unconscious; however, at no time on July 29 or 30, 2009 did

Michael or Denise render aid to Makamae, call an ambulance, or

otherwise seek medical attention.

At approximately 10:00 a.m. on July 30, Michael

assisted in loading Makamae’s body into the car of the friend who

had driven and told her to leave the property; she drove straight

to the emergency room at Straub Hospital and arrived there at

approximately 10:55 a.m. Makamae was pronounced dead at 11:22

a.m., although it appeared that she was already deceased prior to

that time. Jason was contacted by Straub Hospital personnel and

rushed to the emergency room but arrived after Makamae had been

pronounced dead; Tracy was on the mainland at the time and

received the news via telephone. An autopsy revealed that

Makamae’s blood alcohol level at the time of death was .433 grams

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per deciliter, and the cause of her death was determined to be

acute alcohol intoxication. The Ah Mook Sangs also alleged that

Makamae did not consume any alcohol on July 29 and 30, 2009 other

than what was provided to her by Michael at the party.

B. Procedural Background

The Ah Mook Sangs filed their complaint on November 4,

2010, alleging that the Clarks negligently caused Makamae’s

death, seeking damages pursuant to HRS § 663-3.2 The Ah Mook

2
HRS § 663-3 (Supp. 2009) provided then, as it does now:

Death by wrongful act. (a) When the death of a
person is caused by the wrongful act, neglect, or
default of any person, the deceased’s legal
representative, or any of the persons enumerated in
subsection (b), may maintain an action against the
person causing the death or against the person
responsible for the death. The action shall be
maintained on behalf of the persons enumerated in
subsection (b), except that the legal representative
may recover on behalf of the estate the reasonable
expenses of the deceased’s last illness and burial.
(b) In any action under this section, such
damages may be given as under the circumstances shall
be deemed fair and just compensation, with reference
to the pecuniary injury and loss of love and
affection, including:
(1) Loss of society, companionship, comfort,
consortium, or protection;
(2) Loss of marital care, attention, advice,
or counsel;
(3) Loss of care, attention, advice, or
counsel of a reciprocal beneficiary as
defined in chapter 572C;
(4) Loss of filial care or attention; or
(5) Loss of parental care, training, guidance,
or education, suffered as a result of the
death of the person;
by the surviving spouse, reciprocal beneficiary,
children, father, mother, and by any person wholly or
partly dependent upon the deceased person. The jury
or court sitting without jury shall allocate the
damages to the persons entitled thereto in its verdict
(continued...)

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Sangs also sought punitive damages.

Michael and Denise filed individual answers on December

9, 2010 and their motion to dismiss the Ah Mook Sangs’ complaint

for failure to state a claim upon which relief can be granted on

February 10, 2011. Eden, which was represented by separate

counsel at that time, filed its answer on December 23, 2010 and a

joinder in the motion to dismiss on February 22, 2011. In

support of the motion to dismiss, the Clarks began by noting that

the Ah Mook Sangs’ claims were based on the concept of social

host liability; under that theory of liability, the Clarks would

be held “legally responsible for Makamae’s alcohol consumption

and ultimate death.” Specifically, the Ah Mook Sangs alleged

that Michael, “an adult, negligently provided alcoholic beverages

to a minor, Makamae, while she was a guest at his property[,]”

and that Denise “was ‘present’ at the property while her son,

[Michael], was providing alcohol to minors.” As the alter-ego of

Denise, Eden would be responsible under joint enterprise or

agency liability.

While the Clarks acknowledged that the Ah Mook Sangs’

2
(...continued)
or judgment, and any damages recovered under this
section, except for reasonable expenses of last
illness and burial, shall not constitute a part of the
estate of the deceased. Any action brought under this
section shall be commenced within two years from the
date of death of the injured person, except as
otherwise provided.

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claims were grounded in HRS § 663-3, Hawaii’s wrongful death

statute, the Clarks argued that Hawaii’s common law does not

recognize a plaintiff’s claim for damages based on the concept of

social host liability. Moreover, although the Clarks recognized

that the Hawai#i Legislature created a limited exception to the

common law in HRS § 663-413 by allowing claims against social

hosts when the host’s intoxicated guest who is under twenty-one

years of age causes injury or damage to innocent third parties,

they emphasized that the intoxicated minor guest has no similar

claim against the host under that statute. The Clarks thus also

argued that Tracy and Jason are barred from bringing their

individual claims because those claims are derivative of the

claims brought by Makamae pursuant to HRS § 663-3.

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HRS § 663-41 (Supp. 2009) provided then, as it does now:

Right of action. (a) Any person twenty-one
years or older who:
(1) Sells, furnishes, or provides alcoholic
beverages to a person under the age of
twenty-one years; or
(2) Owns, occupies, or controls premises on
which alcoholic beverages are consumed by
any person under twenty-one years of age,
and who knows of alcohol consumption by
persons under twenty-one years of age on
such premises, and who reasonably could
have prohibited or prevented such alcohol
consumption;
shall be liable for all injuries or damages caused by
the intoxicated person under twenty-one years of age.
(b) This section shall not apply to sales
licensed under chapter 281.
(c) An intoxicated person under the age of
twenty-one years who causes an injury or damage shall
have no right of action under this part.

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In opposition, the Ah Mook Sangs primarily

distinguished the Hawai#i cases cited by the Clarks as involving

situations where intoxicated persons left the property where they

consumed the alcohol and then injured themselves or others at a

different location. In this case, however, the Ah Mook Sangs

stressed that Makamae never left the Clarks’ property and thus

argued that the Clarks should be held liable because Makamae

became ill and died while on their property due to their

negligence.

The Ah Mook Sangs argued that, according to this

court’s opinion in Blair v. Ing, 95 Hawai#i 247, 259-60, 21 P.3d

452, 464-65 (2001), whether one owes a legal duty to another must

be decided on a case-by-case basis and should be determined by

consideration of several different factors:
[w]hether a special relationship exists . . ., the
foreseeability of harm to the injured party, the
degree of certainty that the injured party suffered
injury, the closeness of the connection between the
defendants’ conduct and the injury suffered, the moral
blame attached to the defendants, the policy of
preventing harm, the extent of the burden to the
defendants and consequences to the community of
imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and
prevalence of insurance for the risk insured.

(Quoting Blair, 95 Hawai#i at 260, 21 P.3d at 465 (quoting Lee v.

Corregedore, 83 Hawai#i 154, 164, 925 P.2d 324, 334 (1996))).

Based on their analysis of these factors, the Ah Mook Sangs

argued that “a legal duty to protect Makamae Ah Mook Sang against

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injury, and to render aid when injured, should be imposed on [the

Clarks] for so long as she was on their property.” The Ah Mook

Sangs further pointed out that a denial of the motion to dismiss

would not render this case incompatible with the existing Hawai#i

cases on dram shop liability and social host liability because of

the key factual distinction in this case that Makamae never left

the property and thus never caused injury to herself or to others

in a different location. Rather, her injuries and death occurred

on the subject property in this case, and the Clarks both

provided the alcohol that gave rise to Makamae’s distress while

still on the property and thereafter failed to render or summon

aid that could have remedied the distress they caused.4

The Ah Mook Sangs also argued that HRS § 663-41 does

not preclude their claims. The Ah Mook Sangs acknowledged that

HRS § 663-41 plainly applies to provide a claim by an innocent

third party who has suffered injury or damage caused by an

intoxicated person under twenty-one years of age as against a

person over twenty-one years of age who either sold or furnished

alcoholic beverages to the minor or owned, occupied, or

controlled the premises where alcoholic beverages were consumed

4
Regarding this point, the Ah Mook Sangs argued: “[A]lthough the
act of allowing an intoxicated uninjured individual to leave your property is
not necessarily morally acceptable, it is much more atrocious to injure
someone on your property due to your providing such person with excessive
amounts of alcohol and not render aid while death by alcohol poisoning occurs
to that individual on your property.”

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by any minor, knew of the consumption, and reasonably could have

prohibited or prevented the consumption. The Ah Mook Sangs

recognized that pursuant to HRS § 663-41(c), the intoxicated

minor cannot bring his or her own claim against the provider of

alcohol or occupier of the premises where the alcohol was

consumed; however, because no third parties were injured in this

case, the Ah Mook Sangs’ claims were not brought under HRS § 663-

41 and therefore could not be precluded by it. The Ah Mook Sangs

also looked to the legislative history of the bill that became

HRS § 663-41 and noted from both House and Senate committee

reports that the bill was intended to impose civil liability on

adults who provide alcoholic beverages to minors who then injure

third parties.

In a reply memorandum in further support of the motion

to dismiss, the Clarks reiterated that there is no Hawai#i case

holding that a person who furnishes alcohol to an intoxicated

minor is civilly liable for the minor’s injuries, and they

contested the Ah Mook Sangs’ assertion that they could be held

liable because Makamae’s injuries occurred on their property as

opposed to some other location away from the property. The

Clarks also argued that resort to the legislative history of HRS

§ 663-41 is unnecessary because that statute unambiguously

provides that the intoxicated person under the age of twenty-one

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who causes an injury or damage cannot bring a claim against the

adult furnisher or seller of the alcohol. Moreover, because the

Clarks could not be liable for furnishing alcohol on their

property, they argued that there was as a result no liability

under HRS § 663-41(c) or existing Hawai#i case law for any

failure to render aid. The Clarks also argued that the Ah Mook

Sangs did not allege facts in the complaint to support the

assertion that a special relationship existed between Makamae and

the Clarks requiring them to have affirmatively acted to prevent

Makamae from harm.

On March 24, 2011, the circuit court held a hearing on

the motion to dismiss; the parties argued based on their written

submissions, and the court granted the motion, ruling as follows:
It’s -- it’s absolutely crystal clear that this
is a tragedy of indescribable proportions for you
folks. Anyone who is a parent certainly I think can
relate to a certain extent but really cannot
comprehend unless they’ve been in your shoes. So I
make this decision because this is a court of law.
What clearly happened in this situation
shouldn’t have happened and basically I’m constrained
by what the facts are that are before me in the
record. And I’m also constrained to apply the law
that’s before me regardless of whether or not perhaps
it would certainly be arguable, and even there may be
a consensus, that what happened to your daughter in
this particular case was something that should be
condoned in any way because I don’t think anyone
looking at the situation would be able to do so.
And so based upon what I have before me, the
[c]ourt is going to respectfully adopt the arguments
and authorities relied upon by defendant and I wil be
granting the motion. All right. I fully appreciate
and do respect the arguments that Mr. Otake has made
on your behalf. I’m familiar with Mr. Otake for some
time and he’s [] a very, very good and very skilled
lawyer, and he’s doing everything he possibly can on

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your behalf. But the application of the law, as this
[c]ourt sees it, unfortunately from your standpoint,
results in an outcome that I know that you do not want
at this stage of the proceedings.
Doesn’t mean that I’m 100 percent correct.
That’s why there’s a process involved here and I full
well expect and encourage you folks to consider
appealing this particular ruling. Because if I am
wrong, I would full well expect the appellate court to
point out precisely why and remand this matter for
further proceedings. But that’s -- that’s for another
day.
Basically, when this [c]ourt views this
particular situation and I apply the standards that I
must apply and I view the facts that are alleged in
the complaint and all reasonable inferences there are
drawn therefrom as true, this [c]ourt cannot find that
there is a cause of action that survives based upon
the application of the law. The cases Ono [v.
Applegate, 62 Haw. 131, 612 P.2d 533 (1980)],
Bertelmann [v. Taas Assocs., 69 Haw. 95, 735 P.2d 930
(1987)], Johns[t]on [v. KFC Nat’l Mgmt. Co., 71 Haw.
229, 788 P.2d 159 (1990)], Winters [v. Silver Fox Bar,
71 Haw. 524, 797 P.2d 51 (1990)], the F[aulk v. Suzuki
Motor Co., 9 Haw. App. 490, 851 P.2d 332 (1993),]
decision, there’s probably a couple others out there,
basically there’s a line of cases which stand
precisely for the propositions that Mr. Ortiz
articulated.
And it doesn’t mean that necessarily that it’s
as it should be, but basically the law is what it is.
And under this [c]ourt’s analysis simply as a matter
of law, given the jurisprudence here in this state,
the cause of action that is being advanced, whatever
it’s called, ultimately comes down to social host
liability which is not recognized as a matter of law
here. And if the decedent did not have a cause of
action, then any other claims by survivors are purely
derivative of that and also necessarily must fail.
I find significant that there is no legal
authority for the proposition that the plaintiffs have
asked this [c]ourt to adopt in imposing a duty on
defendants in this case or essentially recognizing a
cause of action that otherwise has not been recognized
by any court, at least certainly by the Hawai#i
courts. And I’ll just sort of note that my view of
the statute, the statute I believe is clear, is
sufficiently clear, I don’t believe there is ambiguity
there.
And based upon my obligations to apply that and
the plain language thereof, I believe that cause of
action by the decedent in this particular case is not
permitted and has been expressly prohibited. And
absent an express indication by the Legislature or an
appellate court here that -- that this is incorrect,
this is the state of the law.

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And I would note that, as I stated earlier, that
while -- while this certainly, if we took a broader
moral view of right and wrong here, clearly what
happened here was wrong. And assuming that -- that
the facts are as alleged, and no one, no one I don’t
think could defend the actions of the defendants here.
But that is not my role.
So based upon that the [c]ourt has to expressly
reject the arguments proffered by the plaintiffs. In
this particular case I do not find there’s any special
duty that exists here and I don’t believe that the
circumstances that exist, albeit to include the
presence of an underage child in the presence of
adults who are knowingly providing alcohol, assuming
all those facts are correct, rises to the level of
creating a special relationship and therefore any
special duties from it.

Pursuant to the circuit court’s ruling, an order

granting the motion to dismiss was filed on May 17, 2011, and

judgment was entered on June 28, 2011. The Ah Mook Sangs timely

appealed on July 13, 2011.

After briefing in the ICA was completed, the Ah Mook

Sangs filed an application for transfer of the case to this

court; the application was accepted on December 11, 2012 pursuant

to HRS § 602-58(b)(1).5

5
HRS § 602-58 (Supp. 2011) provided then, as it does now, in
pertinent part:

(b) The supreme court, in a manner and within the time
provided by the rules of court, may grant an
application to transfer any case within the
jurisdiction of the intermediate appellate court to
the supreme court upon the grounds that the case
involves:

(1) A question of first impression or a novel legal
question[.]

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II. STANDARDS OF REVIEW

A. Motion to Dismiss

A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
or her claim that would entitle him or her to relief.
We must therefore view a plaintiff’s complaint in a
light most favorable to him or her in order to
determine whether the allegations contained therein
could warrant relief under any alternative theory.
For this reason, in reviewing a circuit court’s order
dismissing a complaint . . . our consideration is
strictly limited to the allegations of the complaint,
and we must deem those allegations to be true.

Touchette v. Ganal, 82 Hawai#i 293, 298, 922 P.2d 347, 352 (1996)

(quoting Baehr v. Lewin, 74 Haw. 530, 545, 852 P.2d 44, 52

(1993)) (brackets and internal citations omitted).

B. Statutory Interpretation

The interpretation of a statute is a question of law

reviewable de novo. Kaleikini v. Yoshioka, 128 Hawai#i 53, 67,

283 P.3d 60, 74 (2012) (quoting First Ins. Co. of Haw. v. A & B

Props., 126 Hawai#i 406, 414, 271 P.3d 1165, 1173 (2012)). The

following settled principles guide our interpretation of

statutes:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation to ascertain and give effect to the
intention of the legislature, which is to be obtained
primarily from the language contained in the statute
itself. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
And fifth, in construing an ambiguous statute, the

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meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning.

State v. Silver, 125 Hawai#i 1, 4, 249 P.3d 1141, 1144 (2011)

(quoting Haw. Gov’t Emps. Ass’n, AFSCME Local 152, AFL-CIO v.

Lingle, 124 Hawai#i 197, 202, 239 P.3d 1, 6 (2010)) (internal

citations omitted).

C. Duty of Care

“This court addresses whether a defendant owes a duty

of care to a particular plaintiff as a question of law under the

right/wrong standard.” Blair, 95 Hawai#i at 253, 21 P.3d at 458

(citing Corregedore, 83 Hawai#i at 158, 925 P.2d at 328). “Under

the right/wrong standard, we examine the facts and answer the

question without being required to give any weight to the trial

court’s answer to it.” Corregedore, 83 Hawai#i at 158, 925 P.2d

at 328 (quoting State v. Meyer, 78 Hawai#i 308, 311, 893 P.2d

159, 162 (1995)) (internal quotation marks omitted).

III. DISCUSSION

On appeal, the Ah Mook Sangs challenge the circuit

court’s dismissal of their complaint for failure to state a

claim. Specifically, at issue in this case is whether the Ah

Mook Sangs may pursue their claims for damages for Makamae’s

injuries and death against the Clarks as social hosts or

noncommercial suppliers of alcohol. While this court has had

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occasion in the past to discuss liability for injuries resulting

from the provision and consumption of alcohol in both commercial

and noncommercial settings, the unique facts of the present case

require us to distinguish it from those previous cases.

Accordingly, in this case, we must then determine whether the

Clarks owed Makamae any legal duty while she was on their

property as a social guest.

A. Whether a legal duty is owed to a plaintiff must be
determined on a case-by-case basis

It is well settled that a negligence action lies only

where there is a duty of care owed by the defendant to the

plaintiff. See Tabieros v. Clark Equip. Co., 85 Hawai#i 336,

353, 944 P.2d 1279, 1296 (1997) (quoting Bidar v. AMFAC, Inc., 66

Haw. 547, 551, 669 P.2d 154, 158 (1983)). The existence of a

duty in a particular case, however, depends on the facts and

circumstances attendant to that case. As we have previously

stated:
In considering whether to impose a duty of reasonable
care on a defendant, we recognize that duty is not
sacrosanct in itself, but only an expression of the
sum total of those considerations of policy which lead
the law to say that the particular plaintiff is
entitled to protection. Legal duties are not
discoverable facts of nature, but merely conclusory
expressions that, in cases of a particular type,
liability should be imposed for damage done. In
determining whether or not a duty is owed, we must
weigh the considerations of policy which favor the
appellants’ recovery against those which favor
limiting the appellees’ liability. The question of
whether one owes a duty to another must be decided on
a case-by-case basis.

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Corregedore, 83 Hawai#i at 166, 925 P.2d at 336 (internal

citations omitted).

B. Previous Hawai#i cases concerning dram shop and social host
liability are distinguishable and do not foreclose the existence
of a duty in this case

Both parties have cited to a series of Hawai#i cases

addressing the liability of furnishers of alcohol in both

commercial (dram shop liability) and noncommercial (social host

liability) settings. The Ah Mook Sangs argue that these cases

are all distinguishable from the instant case and do not address

the exact factual situation presented here, while the Clarks

argue that these cases are directly on point and therefore that

liability is foreclosed because this court has never recognized

the liability of a social host for injuries sustained by an

intoxicated minor.

This series of cases begins with the seminal Hawai#i

case on dram shop liability, Ono v. Applegate, 62 Haw. 131, 612

P.2d 533 (1980). In Ono, this court allowed an innocent third

party injured by an intoxicated tavern customer to recover from

the tavern that had provided liquor to the customer. Id. at 136,

612 P.2d at 538.

Thereafter, in Bertelmann v. Taas Associates, 69 Haw.

95, 735 P.2d 930 (1987), this court declined to extend Ono to

allow recovery directly by the intoxicated tavern customer. In

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that case, the decedent had been drinking alcoholic beverages at

a hotel; after leaving, the decedent died from injuries sustained

in a one-car accident. Id. at 96, 735 P.2d at 931. Although the

decedent’s survivors specifically brought their action under Ono,

the circuit court dismissed their complaint. Id. at 99, 735 P.2d

at 933. This court affirmed the dismissal on the basis of the

well-settled common law principle that “[d]runken persons who

harm themselves are solely responsible for their voluntary

intoxication and cannot prevail under a common law or statutory

basis.” Id. at 100, 735 P.2d at 933 (citing Wright v. Moffit,

437 A.2d 554 (Del. 1981)).

In Feliciano v. Waikiki Deep Water, Inc., this court

held that, without more, “aggressive sales of drinks” by a

hostess bar to an “unsophisticated” nineteen-year-old plaintiff

“d[id] not constitute affirmative acts that would create

liability to the consumer on the part of the bar or tavern.” 69

Haw. 605, 608, 752 P.2d 1076, 1079 (1988). Because Feliciano

“apparently paid for the drinks and voluntarily drank them[,]”

this court concluded that the bar could not be held liable for

Feliciano’s subsequent injuries. Id.

Subsequently, this court first addressed the potential

liability of a noncommercial social host in Johnston v. KFC

National Management Co., 71 Haw. 229, 788 P.2d 159 (1990). In

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Johnston, a group of Kentucky Fried Chicken employees held a

Christmas party at which they consumed alcohol. Id. at 230, 788

P.2d at 160. After that party, a group of employees moved to the

home of employee Andrea Cui to continue the party; the employees

partied on the Cui premises but outside the home, and Cui’s

parents were asleep inside the home. Id. at 231, 788 P.2d at

160. After leaving the Cui residence, Sandra Joan Parks, the

tortfeasor, drove into oncoming traffic on Kapi#olani Boulevard

and collided with a moped operated by plaintiff Donna Johnston.

Id. at 231, 788 P.2d at 160-61. The circuit court entered

summary judgment in favor of the defendants on the ground that

they owed no duty to Johnston. Id. at 231-32, 788 P.2d at 161.

This court affirmed, following the lead of the majority of other

jurisdictions in not “impos[ing] a duty upon a social host to

protect third parties from risk of injuries that may be caused by

an adult who is provided and served alcohol beverages.” Id. at

234, 788 P.2d at 162. We also noted that “our legislature ha[d]

not enacted any statute imposing liability upon social hosts or

establishing standards of conduct for social hosts upon which

this court may hold a social host civilly liable for a breach of

duty to protect third persons from risks of injury from drunk

driving accidents.” Id. at 236-37, 788 P.2d at 163 (internal

quotation marks omitted).

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Shortly thereafter, in an opinion answering a certified

question from the United States District Court for the District

of Hawai#i, this court held in Winters v. Silver Fox Bar that a

minor who purchases alcohol from a commercial supplier cannot

thereafter bring suit against the supplier for injuries sustained

by the minor himself or herself. 71 Haw. 524, 525, 797 P.2d 51,

51-52 (1990). In Winters, a bar in downtown Honolulu sold

alcohol to eighteen-year-old Daniel Ferris in violation of the

liquor control statute6; after leaving the bar, Ferris lost

control of his car and died. Id. at 525-26, 797 P.2d at 52.

This court emphasized that because the Legislature had prohibited

minors from purchasing or otherwise acquiring alcohol, it would

be inconsistent with “legislative intent or public policy . . .

to allow the cause of action sought by Appellant insofar as

decedent’s own conduct of purchasing liquor was an activity which

our legislature expressly intended to prohibit and penalize.”

Id. at 730, 797 P.2d at 54.

Most recently, in Reyes v. Kuboyama, this court held

that the liquor control statute does impose a duty of care on a

commercial liquor store operator to innocent third parties when

the operator sells alcohol to a minor. 76 Hawai#i 137, 144-45,

6
Thus, as we noted, Ferris also obtained alcohol in violation of
related statutory provisions under which he could have been found guilty of a
petty misdemeanor. Winters, 71 Haw. at 526 & nn.4-5, 797 P.2d at 52 & nn.4-5.

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870 P.2d 1281, 1288-89 (1994).

While these cases previously decided by this court7

have established certain general principles for cases involving

either potential dram shop or social host liability, we note that

this case is not governed by the holdings of the cases discussed

supra. This case does not concern the provision of alcohol in a

commercial setting and is therefore distinguishable from Ono,

Bertelmann, Feliciano, Winters, and Reyes in that respect.

Unlike Ono, Johnston, and Reyes, as well as innumerable liquor

liability cases nationwide, this case does not concern a claim

against a supplier of alcohol by a third party injured by an

intoxicated guest or customer of the supplier. Moreover,

Johnston, the only prior case discussing social host liability,

is inapposite as it did not involve a claim by a guest directly

against the host, but by a third party subsequently injured by

one of the guests; additionally, the intoxicated guest in that

case was an adult of legal drinking age who voluntarily consumed

alcohol and then operated an automobile on public roads.

As alleged, this case involves a fifteen-year-old minor

who was a social guest at a party hosted by a twenty-five-year-

old adult; the host knew minors were present and knowingly served

7
In one case decided by the ICA, that court held on the authority
of Johnston that a social host did not have a duty to protect innocent third
parties from injury caused by an intoxicated adult guest of the social host.
See Faulk v. Suzuki Motor Co., 9 Haw. App. 490, 851 P.2d 332 (1993).

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them alcoholic beverages and encouraged them to drink. Further,

when the guest became visibly sick due to consumption of the

alcohol, the host made no attempt to render or summon aid.

Instead, the guest was left unconscious overnight; in the

morning, the host loaded the guest’s still unconscious (and

probably already deceased at this point, according to Straub

Hospital personnel) body into her friend’s car and simply

directed the friend to leave the property. The cause of the

guest’s death was determined to be the ingestion itself of a

large quantity of alcohol at the party, not from injuries

sustained in the course of any activity subsequent to the party.

This is a set of facts not addressed by any of our

previous cases; therefore, the conclusion that the Clarks may

have owed a duty of care to Makamae is not foreclosed by applying

the holdings of any of those cases. As the Ah Mook Sangs also

urge us to do, we must follow the guidance set forth in Blair and

determine whether a duty of care exists based on the facts and

circumstances of this particular case.

C. Analysis of the Blair factors weighs in favor of imposing a
duty of care in this case

As noted, whether to impose a duty of care in any given

case “requires the balancing of several factors in light of the

policies favoring recovery versus those limiting liability.”

Blair, 95 Hawai#i at 260, 21 P.3d at 465. Although quoted supra,

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those factors are repeated here for convenience for the purpose

of analyzing whether to impose a duty on the Clarks in this case:
whether a special relationship exists . . ., the
foreseeability of harm to the injured party, the
degree of certainty that the injured party suffered
injury, the closesness of the connection between the
defendants’ conduct and the injury suffered, the moral
blame attached to the defendants, the policy of
preventing harm, the extent of the burden to the
defendants and consequences to the community of
imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved.

Id. (quoting Corregedore, 83 Hawai#i at 164, 925 P.2d at 334).

The Ah Mook Sangs submit that each of these factors weighs in

their favor and therefore that this court should conclude that

the Clarks had a legal duty to protect Makamae against injury,

and at least to render aid when injured, “for at least so long as

she was on their property.” The Clarks argue in response that

Blair is inapplicable and only “set[s] forth factors to assist in

determining the duty owed by an attorney to beneficiaries of a

trust.” The Ah Mook Sangs have responded that there is no such

limitation in Blair, and they also note that the Blair factors

were earlier mentioned in Corregedore, a wrongful death case.

1. Existence of a special relationship

Whether a special relationship existed between Makamae

and the Clarks features heavily in this case. On appeal, the Ah

Mook Sangs argue that the circuit court erred (1) by concluding

there was no special relationship between Makamae and the Clarks

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and (2) by concluding that the Clarks did not owe a legal duty to

Makamae due to the absence of a special relationship, as the

existence of a special relationship is only one of the

aforementioned Blair factors.

The Clarks note, and we must agree, that it is a

settled rule of law that a person generally has no duty to act

affirmatively to protect or rescue another from harm, even when

the harm is foreseeable and when assistance can be provided

without any risk of peril to the would-be rescuer. (Citing

Corregedore, 83 Hawai#i at 159, 925 P.2d at 329). Even awareness

that action “is necessary for another’s aid or protection does

not of itself impose upon him or her a duty to take such action.”

(Quoting Corregedore, 83 Hawai#i at 159, 925 P.2d at 329 (citing

Restatement (Second) of Torts § 314 (1965))) (brackets and

emphasis removed). However, an exception to this general rule

arises when a special relationship exists between the actor and

the individual facing harm. (Citing Corregedore, 83 Hawai#i at

159, 925 P.2d at 329). As an exception to the general rule, it

is thus true that “[i]f there is no special relationship, then

there is no duty.” (Citing Corregedore, 83 Hawai#i at 160, 925

P.2d at 329) (emphasis removed).

The general, oft-quoted definition of special

relationships is found in the Restatement (Second) of Torts, and

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reads as follows:
(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.

Restatement (Second) of Torts § 314A (1965). In a comment to

section 314A, it is stated that “[t]he relations listed are not

intended to be exclusive, and are not necessarily the only ones

in which a duty of affirmative action for the aid or protection

of another may be found.” Id. § 314A cmt. b.8 The Ah Mook Sangs

also refer to the following relevant Restatement sections to aid

us in our analysis:
If the actor does an act, and subsequently realizes or
should realize that it has created an unreasonable risk of
causing physical harm to another, he is under a duty to
exercise reasonable care to prevent the risk from taking
effect.

8
Other comments to section 314A provide that “[t]he rules stated in
this Section apply only where the relation exists between the parties, and the
risk of harm, or of further harm, arises in the course of that relation[,]”
Restatement (Second) of Torts § 314A cmt. c (1965), and that “[t]he defendant
is not liable where he neither knows nor should know of the unreasonable risk,
or of the illness or injury.” Id. § 314A cmt. d. Thus, conversely, the
Restatement would appear to support the position that a defendant can be found
liable where a special relationship exists and the defendant knows or should
know of the unreasonable risk of injury to the person requiring protection.

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Id. § 321(1).9
If the actor knows or has reason to know that by his
conduct, whether tortious or innocent, he has caused such
bodily harm to another as to make him helpless and in danger
of further harm, the actor is under a duty to exercise
reasonable care to prevent such further harm.

Id. § 322.10

In addition to the principles set forth in the quoted

Restatement sections, the Ah Mook Sangs submit that “a possessor

of land who invites someone onto his/her property holds a special

9
Comment a to section 321 provides:

The rule stated in Subsection (1) applies whenever the
actor realizes or should realize that his act has
created a condition which involves an unreasonable
risk of harm to another, or is leading to consequences
which involve such a risk. The rule applies whether
the original act is tortious or innocent. If the act
is negligent, the actor’s responsibility continues in
the form of a duty to exercise reasonable care to
avert the consequences which he recognizes or should
recognize as likely to follow. But even where he has
had no reason to believe, at the time of the act, that
it would involve any unreasonable risk of physical
harm to another, he is under a duty to exercise
reasonable care when, because of a change of
circumstances, or further knowledge of the situation
which he has acquired, he realizes or should realize
that he has created such a risk.
10
Comment a to section 322 provides:

The rule stated in this Section applies not only where
the actor’s original conduct is tortious, but also
where it is entirely innocent. If his act, or an
instrumentality within his control, has inflicted upon
another such harm that the other is helpless and in
danger, and a reasonable man would recognize the
necessity of aiding or protecting him to avert further
harm, the actor is under a duty to take such action
even though he may not have been originally at fault.
This is true even though the contributory negligence
of the person injured would disable him from
maintaining any action for the original harm resulting
from the actor’s original conduct.

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relationship with the person on his/her property for so long as

that person is on the property.” See Gibo v. City & Cnty. of

Honolulu, 51 Haw. 299, 301, 459 P.2d 198, 200 (1969); see also

Pickard v. City & Cnty. of Honolulu, 51 Haw. 134, 135, 452 P.2d

445, 446 (1969) (“[A]n occupier of land has a duty to use

reasonable care for the safety of all persons reasonably

anticipated to be upon the premises, regardless of the legal

status of the individual.”).

Taking all of these authorities together, we can

conclude that by providing large amounts of hard liquor to a

fifteen-year-old minor, Michael Clark knew or should have known

that he created an unreasonable risk of physical harm to Makamae

and thus assumed the duty to prevent the harm from occurring.

Having failed to prevent physical harm from occurring, and in

fact having caused the harm, Michael had the duty to prevent

further harm from occurring. Thus, while Michael otherwise would

have had no duty to protect Makamae from physical harm, his

affirmative acts of providing alcohol and failing to render or

summon aid after Makamae became visibly ill while on his property

and at his party placed him into a relationship with Makamae in

which he owed her a duty of reasonable care.

Even as the Ah Mook Sangs acknowledged, however, the

presence or absence of a special relationship is not the only

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factor in determining whether a duty to the plaintiff exists,

according to Blair. Accordingly, as we are urged to do by the Ah

Mook Sangs, we discuss the remainder of the Blair factors.

2. Foreseeability of harm to the injured individual

As alleged, Michael provided large amounts of hard

liquor to fifteen-year-old Makamae; consequently, Makamae became

visibly ill and eventually unconscious while the party was still

ongoing. We agree with the Ah Mook Sangs that Michael’s actions

in providing the alcohol and encouraging Makamae and others to

drink created a clearly foreseeable risk of the resultant

physical harm. Accordingly, this factor weighs in favor of the

Ah Mook Sangs.

3. The degree of certainty that the injured party suffered
injury

From the allegations in the complaint, it is certain

that Makamae was not conscious as she was driven away from the

Clark residence on the morning of July 30, 2009; indeed,

according to Straub Hospital personnel, she was probably already

deceased at that time. Further, as Makamae became visibly ill,

was in serious distress, and became unconscious during the party,

the Clarks were or should have been aware of the fact that

Makamae was injured and in need of assistance. This factor also

weighs in favor of the Ah Mook Sangs.

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4. The closeness of the connection between the defendants’
conduct and the injury sustained

An important fact in this case is that Makamae died of

acute alcohol intoxication, or alcohol poisoning. Unlike most

other cases to which the parties have cited, Makamae’s injuries

were not caused by an automobile accident, physical altercation,

or some other incident separate and apart from the social

gathering. Here, Michael provided large amounts of hard liquor

to Makamae; as a direct result of ingesting that alcohol, Makamae

became ill, then unconscious, and died. Further, the Ah Mook

Sangs allege that the Clarks’ inaction subsequent to Makamae’s

ingestion of alcohol in failing to render or summon aid also

contributed to her eventual death. Accordingly, the direct

connection between the Clarks’ acts and omissions and Makamae’s

injuries and death weighs this factor in favor of the Ah Mook

Sangs.

5. The moral blame attached to the defendants

While the concept of moral blame can be difficult to

qualify, the Ah Mook Sangs submit that it is not only immoral but

also criminal for a twenty-five-year-old to provide any amount of

alcohol to a fifteen-year-old minor. (Citing HRS § 712-1250.5

(Supp. 2008)11). The Ah Mook Sangs further argue that “fail[ing]

11
HRS § 712-1250.5 provided then, as it does now, in pertinent part:

(continued...)

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to take reasonable steps to prevent further harm” and “fail[ing]

to render any aid to the 15 year old when she is dying of alcohol

poisoning is atrocious.” Based on the allegations of the

complaint, the series of events involving Michael’s invitation of

Makamae to his residence for the party, provision of alcohol to

Makamae, and failure to render assistance when the alcohol caused

her to become ill is sufficient for this factor to weigh in favor

of the Ah Mook Sangs.

6. The policy of preventing harm

Generally speaking, an actor should always pursue a

course of action that tends to eliminate or minimize harm to

others. In this case, as the hosts of the party and the

occupiers of the property where the party took place, the onus of

preventing harm to guests, particularly minors such as Makamae,

11
(...continued)
Promoting intoxicating liquor to a person under
the age of twenty-one. (1) A person, including any
licensee as defined in section 281-1, commits the
offense of promoting intoxicating liquor to a person
under the age of twenty-one if the person knowingly:
(a) Sells or offers for sale, influences the
sale, serves, delivers, or gives to a
person intoxicating liquor, and the person
receiving the intoxicating liquor is a
person under the age of twenty-one; or
(b) Permits a person to possess intoxicating
liquor while on property under his
control, and the person possessing the
intoxicating liquor is a person under the
age of twenty-one.

. . .

(4) Promoting intoxicating liquor to a person
under the age of twenty-one is a misdemeanor.

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lay solely with the Clarks. Thus, as the Ah Mook Sangs argue,

“imposing a legal duty on an adult possessor of land who chooses

to serve a minor alcohol on his/her property for at least as long

as said minor remains on his/her property would, inter alia,

discourage and punish such reprehensible actions on the part of

adults and help curb problems resulting from consumption of

alcohol by minors.” Under the circumstances of this case, this

factor weighs in favor of the Ah Mook Sangs.

7. The extent of the burden to the defendants and
consequences of imposing a duty to exercise care with resulting
liability for breach

As also mentioned in discussing the previous factor,

the Clarks were in complete control of the property, the party,

and the supply and provision of the alcohol. Accordingly, should

they decide to take the risk in choosing to violate the law in

serving alcohol to minors, it seems fair that they should bear

the burden of exercising care for the safety of those minors

while on the property and the consequence of liability for breach

of that duty. Again, under the circumstances of this case, this

factor weighs in favor of the Ah Mook Sangs.

8. The availability, cost, and prevalence of insurance for
the risk involved

As the Ah Mook Sangs note, this factor should not weigh

heavily in the overall Blair analysis because the availability or

unavailability of liability insurance should not affect whether a

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defendant owes a duty of care to a plaintiff in a particular

situation. The Ah Mook Sangs assert that insurance will likely

not cover liability for injuries caused as a result of provision

of alcohol to a minor but stress that the unavailability of

coverage could directly derive from the unlawfulness of the

provision.

However, based on the procedural posture of this case,

there is actually no information in the record before us

regarding the availability and cost of liability insurance for

the harm that has occurred in this case. Because such

information may yet be forthcoming, and in light of our

conclusion that the other factors weigh in favor of the Ah Mook

Sangs, we need not conclusively address this factor.

9. Conclusion

Our review of the factors set forth in Blair (by way of

Corregedore) demonstrates that, with only the exception of the

final factor, the interest in imposing a duty of care weighs

heavily in favor of the Ah Mook Sangs.

Consequently, in light of the facts and circumstances

of this case as alleged in the Ah Mook Sangs’ complaint, we are

convinced that the Clarks owed a legal duty to Makamae while she

was on their property to protect her from harm and, failing that,

to render or summon aid once harm occurred.

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D. HRS § 663-41 also does not preclude the Ah Mook Sangs’
claims in this case

The Clarks argued in their motion to dismiss that the

Ah Mook Sangs’ claims were barred by application of HRS § 663-41

because that statute specifically prohibits claims for damages by

intoxicated persons under twenty-one years of age. The circuit

court based its decision to dismiss the complaint in part on this

statute. Also quoted in footnote 3, HRS § 663-41 reads as

follows:

Right of action. (a) Any person twenty-one years or
older who:
(1) Sells, furnishes, or provides alcoholic
beverages to a person under the age of twenty-
one years; or
(2) Owns, occupies, or controls premises on which
alcoholic beverages are consumed by any person
under twenty-one years of age, and who knows of
alcohol consumption by persons under twenty-one
years of age on such premises, and who
reasonably could have prohibited or prevented
such alcohol consumption;
shall be liable for all injuries or damages caused by the
intoxicated person under twenty-one years of age.
(b) This section shall not apply to sales licensed
under chapter 281.
(c) An intoxicated person under the age of twenty-
one years who causes an injury or damage shall have no right
of action under this part.

The Clarks thus maintain that pursuant to the plain language of

subsection (c) of the statute, the Ah Mook Sangs are expressly

barred from seeking any damages for Makamae’s injuries.

As the Ah Mook Sangs contend, and as we have stated

previously with regard to the interpretation of statutes, “our

foremost obligation is to ascertain and give effect to the

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intention of the legislature, which is to be obtained primarily

from the language contained in the statute itself.” Lingle v.

Haw. Gov’t Emps. Ass’n, 107 Hawai#i 178, 183, 111 P.3d 587, 592

(2005) (quoting Guth v. Freeland, 96 Hawai#i 147, 149-50, 28 P.3d

982, 984-85 (2001)). Further, “we must read statutory language

in the context of the entire statute and construe it in a manner

consistent with its purpose.” Id. Moreover, “[t]he legislature

is presumed not to intend an absurd result, and legislation will

be construed to avoid, if possible, inconsistency, contradiction,

and illogicality.” State v. Arceo, 84 Hawai#i 1, 19, 928 P.2d

843, 861 (1996) (internal quotation marks, citation, and brackets

omitted).

Both parties agree that the purpose of HRS § 663-41 is

to allow claims by third parties against adult noncommercial

suppliers of alcohol (or occupiers of premises where alcohol was

consumed) in cases where the adult supplied alcohol to a minor

who then became intoxicated and injured the third party. This is

provided for by subsection (a) of the statute. What the parties

dispute is the import of subsection (c), which provides that

“[the intoxicated minor] who causes an injury or damage shall

have no right of action under this part.”

The Clarks argue, as they did to the circuit court,

that subsection (c) completely bars a claim by an intoxicated

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person under the age of twenty-one who causes any injury or

damage, regardless of whether that injury or damage is to the

minor himself or herself or to a third party. They argue that

this prohibition is also consistent with cases such as Bertelmann

and Winters “that preclude minors from a cause of action for

injuries or damages caused by their voluntary intoxication.” On

the other hand, the Ah Mook Sangs argue, as they also did to the

circuit court, that their claims were not brought “under this

part” as specified in subsection (c) and therefore are not barred

by the statute. They also argue that the Legislature did not

intend for this statute to prohibit claims when injuries are

sustained solely by the intoxicated minor. Such a dispute about

the meaning of the statute suggests that there may be an

ambiguity; at the very least, the parties offer conflicting views

as to how the statute should be read.

We may thus examine the legislative history of Senate

Bill 1234, the bill signed into law as Act 69 in 2003 and

codified as HRS § 663-41, to further ascertain the intent of the

Hawai#i Legislature that passed the bill. In its report on the

bill, the Senate Committee on Human Services stated, in pertinent

part:
Your Committee finds that underage drinkers pose a danger to
themselves and others, particularly when they drink and
drive. High school students from around the country report
that one-third to one-half of those who wish to drink obtain
alcoholic beverages from adults. In 2000, MADD-Hawaii

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sponsored a Hawaii Youth Summit. The leading recommendation
from the youth representatives to the Hawaii Summit was to
increase the education and liability of parents and other
adults relating to providing alcohol to minors. This
measure would impose civil third-party liability on adults
who provide alcoholic beverages to a person under twenty-one
years of age who subsequently injures or kills another.

S. Stand. Comm. Rep. No. 462, in 2003 Senate Journal, at 1219

(emphases added). The Senate Committee on Judiciary and Hawaiian

Affairs then stated, in pertinent part: “Your Committee finds

that underage drinking is a serious problem in Hawaii. . . . In

the past five years, an average of twenty-six fatalities resulted

from crashes involving drivers fifteen to twenty years old, many

of these were alcohol related.” S. Stand. Comm. Rep. No. 632, in

2003 Senate Journal, at 1294. From these reports, we can

understand that the intent of the Legislature in passing this

bill was to address the serious problem of underage drinking

where an adult host supplied alcohol or the premises where

alcohol was consumed and the intoxicated minor thereafter caused

injury or damage to an innocent third party, most likely by

driving drunk.

Thus, returning to the text of the statute, the

inclusion of the phrases “caused by” in subsection (a) and

“causes” in subsection (c) is significant. Cause is defined as

“[t]o bring about or effect.” Black’s Law Dictionary 251 (9th

ed. 2009). If the intoxicated minor “causes” injury or damage as

envisioned in subsection (c), then the intoxicated minor was an

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actor who “br[ought] about” injury or damage; as the committee

reports indicate, the “injury or damage” targeted by the bill is

that of the third parties who are injured or suffer property

damage due to accidents caused by such intoxicated minors. The

bill addresses liability of adult social hosts to innocent third

parties injured by the intoxicated minors they have hosted; it

thus becomes clear that subsection (c) was intended to prevent

the intoxicated minor from bringing a claim against the adult

host for any injuries sustained when the minor also had a role in

injuring the third party. It is often the case that a statutory

claim may be barred when the conduct giving rise to that claim is

prohibited by some other statute. The public policy at play in

such cases is that the would-be claimant should not be allowed to

derive any benefit from having engaged in prohibited conduct.

Given this understanding of the statute, there is

actually no indication that it was meant to encompass the factual

situation at issue in this case: when the injury is inflicted

directly upon the minor by the host through the provision of

alcohol, and the claim is only between the minor and the host.

If the Legislature had wished to prohibit the claim made in this

case through HRS § 663-41 by referring to injuries sustained by

the intoxicated minor himself or herself, it could have, for

example, used the word “sustained” or enacted another subsection

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or separate statute altogether clearly barring first-party injury

claims against social hosts. Because we do not read the statute

to include injuries sustained by the intoxicated minor absent

injury or damage to a third party, we conclude that HRS § 663-41

does not bar the claims made by the Ah Mook Sangs in this case.

IV. CONCLUSION

Based on the foregoing, we vacate the circuit court’s

May 17, 2011 order and June 28, 2011 judgment and remand this

case for further proceedings.

Thomas M. Otake /s/ Mark E. Recktenwald
(Diane K. Agor-Otake with
him on the briefs) for /s/ Paula A. Nakayama
plaintiffs-appellants
/s/ Sabrina S. McKenna
Jonathan L. Ortiz
(Wade J. Katano and /s/ Steven S. Alm
Christine S. Prepose-
Kamihara with him on the /s/ Bert I. Ayabe
briefs) for defendants-
appellees

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