FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2021
02:42 PM
Dkt. 69 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
JESSICA L. JACOBS and JOHN N. JACOBS,
Plaintiffs-Appellants,
v.
BILLY CASPER GOLF, LLC; BANK OF HAWAII, AS TRUSTEE OF THE
KUKUIOLONO PARK TRUST ESTATE; KUKUIOLONO PARK AND GOLF COURSE;
KUKUIOLONO PARK TRUST ESTATE; KUKUIOLONO MANAGEMENT, LLC,
Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; ROE "NON-PROFIT" CORPORATIONS 1-10;
and ROE GOVERNMENTAL ENTITIES 1-10, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 14-1-0212)
SEPTEMBER 29, 2021
GINOZA, C.J., WADSWORTH AND NAKASONE, JJ.
OPINION OF THE COURT BY WADSWORTH, J.
Plaintiffs-Appellants Jessica L. Jacobs (Jessica) and
John N. Jacobs (John) (collectively, the Jacobses) appeal from
the November 29, 2016 Final Judgment (Judgment), entered by the
Circuit Court of the Fifth Circuit (Circuit Court), in favor of
Defendants-Appellees Billy Casper Golf, LLC (BCG); Bank of
Hawaii, as Trustee of the Kukuiolono Park Trust Estate (BoH);
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Kukuiolono Park and Golf Course (KPGC); Kukuiolono Park Trust
Estate; and Kukuiolono Management, LLC (KM) (collectively, the
KPGC Defendants).1/ The Jacobses also challenge the Circuit
Court's October 11, 2016 "Order Granting [the KPGC] Defendants'
Motion for Summary Judgment, Filed 07/20/16" (Order Granting
Summary Judgment).2/
On appeal, the Jacobses contend that the Circuit Court
erred in granting summary judgment against them and in favor of
the KPGC Defendants. The Jacobses argue there were genuine
issues of material fact as to whether the Hawai#i Recreational
Use Statute (HRUS), Hawaii Revised Statutes (HRS) Chapter 520,
quoted infra, immunized the KPGC Defendants from tort liability
for the Jacobses' personal injuries.
We hold that the Circuit Court correctly concluded
there was no genuine issue of material fact that: (1) the KPGC
Defendants were "owners" of land as defined by the HRUS for
purposes of applying the statute's immunity provisions; and (2)
on the day she was injured, Jessica was on the KPGC premises for
a "recreational purpose," within the meaning of the HRUS.
We further hold, however, that the Circuit Court erred in
concluding there were no genuine issues of material fact as to
whether the KPGC Defendants knowingly created or perpetuated, and
wilfully or maliciously failed to guard or warn against, an
alleged dangerous condition on the KPGC premises. Accordingly,
we vacate the Judgment and remand the case to the Circuit Court
for further proceedings consistent with this opinion.
I. Background
This appeal arises out of a personal injury lawsuit
brought by Jessica and her husband John against the KPGC
Defendants. The following facts are undisputed: On February 16,
2013, at about 5:30 p.m., Jessica entered the grounds of
1/
The Honorable Kathleen N.A. Watanabe presided.
2/
The Jacobses filed their notice of appeal on November 9, 2016,
after the Circuit Court's announcement of its decision by way of the Order
Granting Summary Judgment, but before entry of the Final Judgment. Pursuant
to Hawai#i Rules of Appellate Procedure Rule 4(a)(2), the notice of appeal is
deemed filed immediately after entry of the Final Judgment.
2
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Kukuiolono Park and Golf Course, in Kalâheo, Kauai, by car.
There was no charge to enter, and Jessica did not purchase
anything at KPGC that day. As she had done on prior occasions,
Jessica went to KPGC that day to feed or water chickens on the
park grounds. Jessica parked her car in a parking lot adjacent
to a grassy area of the golf course – an area that is bordered by
trees and other vegetation. Jessica was standing in the grassy
area on the right side of her car, when she was struck by a large
tree branch that fell on her. Jessica suffered a fractured left
ankle that required surgery and rehabilitation treatment.
On October 28, 2014, Jessica and John filed a Complaint
against the KPGC Defendants. Jessica asserted a claim for
negligence and John asserted a claim for loss of consortium. On
January 2, 2015, Jessica and John filed a First Amended Complaint
alleging the same claims.
Following discovery, on July 20, 2016, the KPGC
Defendants filed a motion for summary judgment. The KPGC
Defendants argued that the Jacobses' personal injury claims were
barred by the HRUS as a matter of law. In support of their
motion, the KPGC Defendants submitted various declarations,
deposition excerpts and documents to establish the requisites for
invoking the liability protections of the HRUS. Based on this
evidence, the KPGC Defendants argued that: (1) KPGC was open to
the public; (2) KPGC was open for "recreational purposes"; (3)
admission to KPGC was without charge; (4) the KPGC Defendants did
not engage in a "wilful or malicious" failure to guard or warn
against a dangerous condition; (5) Jessica was not the KPGC
Defendants' "house guest"; and (6) all of the KPGC Defendants
were entitled to summary judgment because they were all "owners"
within the meaning of the HRUS.
On September 16, 2016, the Jacobses filed their
memorandum in opposition to the KPGC Defendants' motion for
summary judgment. In support of their opposition, the Jacobses
argued that there were genuine issues of material fact as to
whether the HRUS immunized the KPGC Defendants from the Jacobses'
personal injury claims, which precluded summary judgment. The
Jacobses submitted various declarations, deposition excerpts and
3
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
documents to demonstrate the facts that presented a genuine issue
for trial. Based on this evidence, the Jacobses argued that: (1)
"wilful or malicious" conduct was a question of fact for the jury
and was not appropriate for summary judgment; (2) there was a
genuine issue of material fact as to whether the KPGC Defendants'
alleged failure to guard or warn was wilful or malicious; (3) the
KPGC Defendants were not within the class of "owners" that the
HRUS was meant to protect; and (4) Jessica's feeding of chickens
(or cats) at KPGC was not a recreational purpose under the HRUS.
On September 22, 2016, the KPGC Defendants filed a
reply memorandum in support of their motion for summary judgment.
On September 27, 2016, the motion for summary judgment
was heard by the Circuit Court. Following extensive oral
argument by both sides, the Circuit Court granted the motion for
summary judgment. On October 11, 2016, the Circuit Court entered
the written Order Granting Summary Judgment.
On November 29, 2016, the Circuit Court entered the
Judgment. The Jacobses filed a timely notice of appeal.
II. Points of Error
The Jacobses raise five points of error on appeal,3/
contending that:
1. The Circuit Court's grant of summary judgment was
in error because the court applied the KPGC Defendants'
"self-styled five-prong test, which is not a valid legal standard
under Hawai#i law."
2. The Circuit Court erred in not considering whether
any of the KPGC Defendants is "an 'owner' as contemplated under
[HRS] § 520-2 before granting all [of the KPGC Defendants]
immunity from liability."
3. The Circuit Court erred in finding that Jessica's
activity at KPGC on the date of the incident "was for a
'recreational purpose' as contemplated under [HRS] § 520-2."
4. "Whether [the KPGC Defendants'] conduct was wilful
or malicious is an issue of fact for the jury and not appropriate
3/
The Jacobses' points of error have been reordered for
organizational clarity.
4
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for summary . . . adjudication."
5. Even if wilful or malicious conduct was an
appropriate issue for summary adjudication, the Circuit Court
erred "in failing to consider whether [the KPGC Defendants']
conduct was wilful or malicious for failing to warn or guard
against a dangerous condition that they created or perpetuated
. . . ."
III. Standards of Review
A. Summary Judgment
An appellate court reviews a trial court's grant or
denial of summary judgment de novo using the same standard
applied by the trial court. Nozawa v. Operating Eng'rs Local
Union No. 3, 142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018)
(citing Adams v. CDM Media USA, Inc., 135 Hawai#i 1, 12, 346 P.3d
70, 81 (2015)). "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."
Id. at 342, 418 P.3d at 1198 (quoting Adams, 135 Hawai#i at 12,
346 P.3d at 81) (brackets omitted). "A fact is material if proof
of that fact would have the effect of establishing or refuting
one of the essential elements of a cause of action or defense
asserted by the parties." Id. (quoting Adams, 135 Hawai#i at 12,
346 P.3d at 81).
The moving party has the burden to establish that
summary judgment is proper. Id. (citing French v. Haw. Pizza
Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054 (2004)).
"Once a summary judgment movant has satisfied its initial burden
of producing support for its claim that there is no genuine issue
of material fact, the party opposing summary judgment must
'demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial.'" Id. (quoting
Lales v. Wholesale Motors Co., 133 Hawai#i 332, 359, 328 P.3d
341, 368 (2014)) (brackets omitted). "The evidence must be
viewed in the light most favorable to the non-moving party." Id.
5
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81) (brackets
omitted).
B. Statutory Interpretation
"The interpretation of a statute is a question of law
reviewable de novo." McLaren v. Paradise Inn Hawaii LLC, 132
Hawai#i 320, 327, 321 P.3d 671, 678 (2014) (citing Lindinha v.
Hilo Coast Processing Co., 104 Hawai#i 164, 171, 86 P.3d 973, 980
(2004)). When construing a statute, we apply well-settled
principles of statutory construction:
We first examine the language of the statute itself. [State
v. ]Choy Foo, 142 Hawai#i [65, ]72, 414 P.3d [117, ]124[
(2018)]. If the language is plain and unambiguous, we must
give effect to its plain and obvious meaning. Id. Also,
implicit in statutory construction is our foremost
obligation to ascertain and give effect to the intention of
the legislature, which is obtained primarily from the
language of the statute itself. Id. Finally, when there is
doubt, doubleness of meaning, or indistinctiveness or
uncertainty of an expression used in a statute, an ambiguity
exists. Id. When there is ambiguity, the meaning of
ambiguous words may be sought by examining the context or
resorting to extrinsic aids to determine legislative intent.
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals, 114
Hawai#i 184, 194, 159 P.3d 143, 153 (2007).
State v. Carlton, 146 Hawai#i 16, 22, 455 P.3d 356, 362 (2019).
IV. Discussion
A. The Hawai#i Recreational Use Statute
The statutorily defined purpose of the HRUS is "to
encourage owners of land to make land and water areas available
to the public for recreational purposes by limiting their
liability toward persons entering thereon for such purposes."
HRS § 520–1 (2006). "The heart of [the] HRUS immunizes an owner
of land from liability to any person who enters or uses the
owner's land for recreational purposes[.]" Crichfield v. Grand
Wailea Co., 93 Hawai#i 477, 484, 6 P.3d 349, 356 (2000).
Specifically, HRS §§ 520–3 and 520-4 (2006) limit the
legal duties and liabilities of landowners as follows:
§ 520–3 Duty of care of owner limited. Except as
specifically recognized or provided in section 520–6, an
owner of land owes no duty of care to keep the premises safe
for entry or use by others for recreational purposes, or to
give any warning of a dangerous condition, use, structure,
6
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
or activity on such premises to persons entering for such
purposes, or to persons entering for a purpose in response
to a recreational user who requires assistance, either
direct or indirect, including but not limited to rescue,
medical care, or other form of assistance.
§ 520–4 Liability of owner limited. (a) Except as
specifically recognized by or provided in section 520–6, an
owner of land who either directly or indirectly invites or
permits without charge any person to use the property for
recreational purposes does not:
(1) Extend any assurance that the premises are safe
for any purpose;
(2) Confer upon the person the legal status of an
invitee or licensee to whom a duty of care is
owed;
(3) Assume responsibility for, or incur liability
for, any injury to person or property caused by
an act of omission or commission of such
persons; and
(4) Assume responsibility for, or incur liability
for, any injury to person or persons who enter
the premises in response to an injured
recreational user.
(b) An owner of land who is required or compelled to
provide access or parking for such access through or across
the owner's property because of state or county land use,
zoning, or planning law, ordinance, rule, ruling, or order,
to reach property used for recreation purposes, or as part
of a habitat conservation plan, or safe harbor agreement,
shall be afforded the same protection as to such access,
including parking for such access, as an owner of land who
invites or permits any person to use that owner's property
for recreational purposes under subsection (a).
In turn, HRS § 520-6 (2006) states:
§ 520-6 Persons using land. Nothing in this chapter
shall be construed to:
(1) Create a duty of care or ground of liability for
injury to persons or property.
(2) Relieve any person using the land of another for
recreational purposes from any obligation which
the person may have in the absence of this
chapter to exercise care in the person's use of
such land and in the person's activities
thereon, or from the legal consequences of
failure to employ such care.
The immunity conferred by the HRUS is not absolute; it
does not extend in three circumstances:
§ 520-5 Exceptions to limitations. Nothing in this
chapter limits in any way any liability which otherwise
exists:
7
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(1) For wilful or malicious failure to guard or warn
against a dangerous condition, use, or structure
which the owner knowingly creates or perpetuates
and for wilful or malicious failure to guard or
warn against a dangerous activity which the
owner knowingly pursues or perpetuates.
(2) For injury suffered in any case where the owner
of land charges the person or persons who enter
or go on the land for the recreational use
thereof, except that in the case of land leased
to the State or a political subdivision thereof,
any consideration received by the owner for such
lease shall not be deemed a charge within the
meaning of this section.
(3) For injuries suffered by a house guest while on
the owner's premises, even though the injuries
were incurred by the house guest while engaged
in one or more of the activities designated in
section [520-2].
HRS § 520-5 (2006).4/
The Hawai#i Supreme Court has summarized the immunity
provided by the HRUS as follows:
[The] HRUS confers upon the "owner" of land immunity from
negligence liability to any person—who is neither "charged"
for the right to be present nor a "house guest"—injured on
the land while that person is using the owner's land for a
"recreational purpose." In other words, if a person is
injured on an "owner's" land, but that person was not on the
land for a "recreational purpose," HRUS does not, by its
plain language, immunize the "owner" from tort liability.
Moreover, pursuant to HRS § 520–5, an "owner" is not immune
from tort liability, if: (1) the injury results from the
owner's wilful or malicious failure to guard against or warn
of either a dangerous condition, use, or structure that the
owner knowingly created or perpetuated, or a dangerous
activity that the owner knowingly pursued or perpetuated;
(2) the owner "charged" the recreational user a fee or price
of admission for the use of the land; or (3) the injury was
suffered by a "house guest."
Crichfield, 93 Hawai#i at 485, 6 P.3d at 357; see Thompson v.
Kyo-Ya Co., 112 Hawai#i 472, 477, 146 P.3d 1049, 1054 (2006).
B. "Five-Prong Test"
In their motion for summary judgment, the KPGC
Defendants urged the Circuit Court to apply a "five-prong test"
in determining whether they were immune from tort liability under
the HRUS as a matter of law. The five prongs, derived primarily
4/
The Jacobses did not contend below, and do not contend on appeal,
that Jessica was charged a fee for entry into KPGC or that she was a "house
guest." Thus, of the three circumstances identified in HRS § 520-5, only HRS
§ 520-5(1) is at issue.
8
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
from the language of the HRUS, were as follows: (1) "HRUS
requires land to be open to the public"; (2) "HRUS requires that
the land must be open for 'recreational purposes'"; (3) "HRUS
requires that admission to the property be 'without charge'"; (4)
"HRUS requires that Defendants not be 'willful5/ or malicious'"
(footnote added); and (5) "HRUS requires that Plaintiff not be
Defendants' 'house guest[.]'" In their motion for summary
judgment, the KPGC Defendants also quoted the applicable parts of
the relevant statute for each of the respective prongs. The KPGC
Defendants argued that they had satisfied each of these
requirements based on the declarations, deposition excerpts, and
documentary evidence submitted with their motion and were thus
entitled to summary judgment as a matter of law.
Following oral argument at the hearing of the motion,
the Circuit Court stated in relevant part:
The Court has reviewed all of your respective
pleadings, and, of course, in this motion before the Court,
we're talking about the recreational use statute in the
state, which is codified under Chapter 520 of the Hawaii
Revised Statutes.
And this Court having reviewed your pleadings, having
listened to all of your arguments this afternoon, the Court
finds that the defendants in their motion have met --
clearly met all of the five prongs of the recreational use
statute.
The Court finds that there are no genuine issues as to
any material facts, and therefore, the Court is granting the
Defendants' motion for summary judgment.
The court subsequently entered the written Order
Granting Summary Judgment, which made no reference to the
purported "five prongs" and simply stated in part,
The Court, having reviewed and considered all of the
oral and written submissions of the parties and the records
and files herein, and good cause appearing therefore,
. . . .
IT IS HEREBY ORDERED that "Defendants' Motion for
Summary Judgment" is hereby granted on all claims and causes
of action.
5/
"The term 'wilful' has two accepted spellings, 'wilful' and
'willful.'" Iddings v. Mee-Lee, 82 Hawai#i 1, 3 n.1, 919 P.2d 263, 265 n.1
(1996) (citing the American Heritage Dictionary 922 (3d ed. 1994)).
9
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, the Jacobses contend that the Circuit Court
erred in granting summary judgment based on the KPGC Defendants'
five-prong test. The crux of the Jacobses' argument is that the
court's analysis under the five-prong test did not include
consideration of whether any of the KPGC Defendants was an
"owner" of land, as defined in HRS § 520-2 (quoted infra), for
purposes of the HRUS.
We agree that in considering the summary judgment
motion, the Circuit Court was required to determine whether the
KPGC Defendants were "owners" for purposes of the HRUS. However,
based on the record, and as further explained below, we conclude
that the Circuit Court did in fact consider this issue and
determined there was no genuine issue of material fact that the
KPGC Defendants were such "owners." Thus, we do not adopt the
so-called five-prong test, but conclude that the Circuit Court
did not err in referencing the test, as it appears from the
record that the court based its ruling on the statutory
requirements of the HRUS and not solely on the test.
C. "Owner" of Land
As specified in HRS §§ 520–3 and 520-4, the HRUS
immunizes an "owner" of land from liability to persons who enter
or use the owner's land for recreational purposes. Crichfield,
93 Hawai#i at 484, 6 P.3d at 356. The HRUS defines "owner" as
"the possessor of a fee interest, a tenant, lessee, occupant, or
person in control of the premises." HRS § 520-2.
As noted above, the Jacobses contend that the trial
court erred in not considering whether any of the KPGC Defendants
was an "owner" for purposes of the HRUS, before granting all of
the KPGC Defendants immunity from liability. We disagree.
Although the Order Granting Summary Judgment did not
explicitly state that each of the KPGC Defendants was an "owner"
within the meaning of the HRUS, the order did make clear that the
Circuit Court "reviewed and considered all of the oral and
written submissions of the parties and the records and files
herein . . . ." The submissions of the parties addressed in
detail the Jacobses' argument that the KPGC Defendants were not
10
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
"'owners' that the HRUS was meant to protect." The issue was
also the subject of extensive oral argument, and related
questions by the Circuit Court, at the hearing of the motion for
summary judgment. We are satisfied based on the record that the
Circuit Court, in granting summary judgment, considered whether
each of the KPGC Defendants was an "owner" within the meaning of
the HRUS, and determined there was no genuine issue of material
fact regarding this mixed issue of law and fact, i.e., that each
was an "owner."
Nevertheless, we must determine whether the Circuit
Court erred in reaching this conclusion, as it is a prerequisite
to the liability protections of the HRUS, and thus a foundational
issue for the court's grant of summary judgment. The Jacobses
argue that "[t]he HRUS does not confer immunity upon the trustee
of the landowner, or the owner's property manager, or their
subsidiary or subcontractor, especially when these entities have
assumed paid fiduciary or contractual duties to care for and
maintain the property in a safe condition." They further argue:
[The KPGC Defendants] are not titled "owners", "tenants" or
"lessees" and they are not "persons" and therefore, none of
the [KPGC Defendants] can be [a] "person in control of the
premises." We are left with the issue of whether any or all
[of the KPGC Defendants] are "occupants" under the HRUS's
definition of "owner[.]"
We address these arguments below with respect to each
of the KPGC Defendants.
1. Kukuiolono Park Trust Estate
Under the HRUS, an "owner" includes the "possessor of a
fee interest" in the property at issue. HRS § 520-2. In
examining the language of the HRUS, we note that it does not
define the term "possessor."
To effectuate a statute's plain language, its words "must
'be taken in their ordinary and familiar signification, and
regard is to be had to their general and popular use.'" See
State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138, 1144
(2015) (quoting In re Taxes of Johnson, 44 Haw. 519, 530,
356 P.2d 1028, 1034 (1960)); see also HRS § 1–14 (2009). "In
conducting a plain meaning analysis, 'this court may resort
to legal or other well accepted dictionaries as one way to
determine the ordinary meaning of certain terms not
statutorily defined.'" Guyton, 135 Hawai#i at 378, 351 P.3d
11
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
at 1144 (quoting State v. Pali, 129 Hawai#i 363, 370, 300
P.3d 1022, 1029 (2013)).
Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 449–50, 420
P.3d 370, 380–81 (2018).
Black's Law Dictionary defines "possessor" as
"[s]omeone who has possession of real or personal property[.]"
Black's Law Dictionary 1410 (11th ed. 2019). A "legal possessor"
is defined as "[o]ne with the legal right to possess property, .
. . as contrasted with the legal owner who holds legal title."
Id.
Here, in support of their motion for summary judgment,
the KPGC Defendants submitted the Declaration of Carol Tom (Tom),
a Bank of Hawaii employee who has served as the trust officer for
the Kukuiolono Park Trust for over five years. Tom authenticated
an attached trust deed (the 1918 Trust Deed), as well as an
attached compilation trust deed, reflecting the 1918 conveyance
of the property at issue from Walter D. McBryde to Bank of
Hawaii's predecessor in interest, Hawaiian Trust Company,
Limited, as trustee, to be held in trust as the Kukuiolono Park
Trust Estate for the purpose, among others, of establishing a
public park on Kauai. Tom explained in her declaration that
"[t]he original [1918 Trust Deed] conveyed the property to
Hawaiian Trust Company as Trustee; however, Hawaiian Trust
Company and Bank of Hawaii merged in 1997 and as the successor in
interest, Bank of Hawaii became the Trustee."
There was no dispute below, and there is none on
appeal, that the Kukuiolono Park Trust Estate qualifies as a
"possessor of the fee interest" in KPGC, where Jessica was
injured. During the hearing on the motion for summary judgment,
the Jacobses stated: "The owner is the trust that's been set up
by Walter McBride. It's the Kukuiolono Trust, your honor."
This asserted legal conclusion, however, is imprecise.
Under Hawai#i law, a trustee holds legal title to property
for the equitable benefit of the trust's beneficiaries,
thereby dividing legal and equitable interest in the trust
property. See Welsh v. Campbell, 41 Haw. 106, 107 (1955)).
But a trust is, nevertheless, a single bundle of interests,
irrespective of its particular parts, for the benefit of the
trust's beneficiaries. See James v. Gerber Products Co.,
483 F.2d 944, 949 (6th Cir. 1973) ("Separating the legal and
12
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
beneficial incidents of ownership in the property is a mere
technical argument since there is only one interest at stake
and that is the beneficiary's.").
Coon v. City & Cty. of Honolulu, 98 Hawai#i 233, 260, 47 P.3d
348, 375 (2002); see also Restatement (Third) of Trusts § 3(2)
(2003) ("The property held in trust is the trust property.); id.
cmt. b ("The term 'trust property' denotes things or the
interests in things that are held in trust. . . . When it is
desired to refer to the trust property as a whole, the term
'trust estate' is often used.").
In the circumstances here, where BoH, as trustee, holds
KPGC in trust for the benefit of the public, we conclude that
Kukuiolono Park Trust Estate qualifies as a "possessor of the fee
interest" in KPGC for purposes of the HRUS. The liability
protections of the HRUS would be meaningless if a trustee who
holds legal title to trust property were protected, but the trust
itself were not. Kukuiolono Park Trust Estate thus falls within
the definition of "owner," as provided in the HRUS. The Circuit
Court did not err in treating it as such for purposes of applying
the immunity provisions of the HRUS.6/
2. Bank of Hawaii, as Trustee of the Kukuiolono Park
Trust Estate
Under the HRUS, an "owner" includes "[an] occupant, or
person in control of the premises." HRS § 520-2. In examining
the language of the HRUS, we observe that it does not define the
term "occupant" or further describe "control of the premises."
Black's Law Dictionary defines "occupant" as "[s]omeone
who has possessory rights in, or control over, certain property
or premises." Black's Law Dictionary 1298 (11th ed. 2019). This
same source defines "control" as "the power or authority to
manage, direct, or oversee"; "[t]o exercise power or influence
6/
The KPGC Defendants asserted below and maintain on appeal that
KPGC is not a legal entity and "is just a name of the location." The Jacobses
do not appear to dispute this assertion; they simply note that the management
agreement between BCG and BoH (see infra) contains a paragraph headed "Park
Status as a Private Operating Foundation and a Charitable Organization." That
paragraph states that the Kukuiolono Park Trust Estate is recognized as a tax-
exempt charitable organization and a private operating foundation under
applicable provisions of the Internal Revenue Code.
13
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
over"; "[t]o regulate or govern[.]" Black's Law Dictionary 1298
(11th ed. 2019). Thus, an "owner" within the meaning of the HRUS
includes a person who has possessory rights in, or control over
(i.e., the power or authority to manage, direct, or oversee), the
premises.
Here, the Tom declaration establishes that BoH serves
as the trustee of the Kukuiolono Park Trust Estate, and in that
capacity, "exercises (in conjunction with [KM]) control over
Kukuiolono Park." In addition, the terms of the 1918 Trust Deed
provide:
[S]aid trustee and its successors in trust shall have large
discretionary powers as to the management of said Kukuiolono
Park Trust Estate and that there be no restrictions placed
upon it or them other than that they act in good faith in
all their business management . . . . {S]aid trustee and its
sucessors in trust shall have power to sell, lease or
exchange or otherwise deal with all or any part of said
Kukuiolono Park Trust Estate as such prices and terms and
conditions and in such manner as it or they may deem best
. . . .
There was no dispute below, and there is none on
appeal, that BoH, as trustee, has the power or authority to
manage, direct, or oversee KPGC. Rather, the Jacobses contend
that the KPGC Defendants, including BoH, are not "persons," and
thus none of them can be a "person in control of the premises."
In making this argument, the Jacobses ignore HRS § 1-19
(2009), which states in relevant part:
The word "person" . . . signif[ies] not only
individuals, but corporations, firms, associations,
societies, communities, assemblies, inhabitants of a
district, or neighborhood, or persons known or unknown, and
the public generally, where it appears, from the subject
matter, the sense and connection in which such words are
used, that such construction is intended.
As a corporate trustee, BoH is a "person" within the
meaning of the HRUS. The KPGC Defendants thus carried their
initial burden of showing, and there were no genuine issues of
material fact, that BoH was a "person in control of" KPGC.
Accordingly, the Circuit Court did not err in concluding that BoH
was an "owner" as defined by the HRUS for purposes of applying
14
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the statute's immunity provisions.7/
3. Kukuiolono Management, LLC and Billy Casper Golf,
LLC
As previously stated, for purposes of the HRUS, an
"owner" includes "[an] occupant, or person in control of the
premises." HRS § 520-2.
In support of their motion for summary judgment, the
KPGC Defendants submitted the Declaration of Phil Scot (Scot),
the Chairman of the Kukuiolono Park Board of Directors, which
oversees matters relating to KPGC. Scot authenticated an
attached management agreement and amendments (Management
Agreement) showing that in 2008, BoH retained BCG to manage KPGC.
Scot also authenticated an attached agreement between BCG and its
wholly-owned limited liability company KM (Delegation Agreement)
showing that certain management duties of BCG with respect to the
park were delegated to KM, with the consent of BoH. Pursuant to
the Management Agreement, BCG had the "exclusive right and
responsibility to operate, manage and maintain the Park." In
accordance with Paragraph 13G of the Management Agreement, BCG
delegated certain of its duties and obligations under the
Agreement to KM, while reserving BCG's right to exercise at any
time any of such duties and obligations. Further, Scot stated in
his declaration that "[KM] has managed the Park from at least
2011 to present[.]" Similarly, Tom stated in her declaration
that "[BoH] . . . exercises (in conjunction with [KM]) control
over Kukuiolono Park."
There was no dispute below, and there is none on
appeal, that BCG has the power to manage KPGC, and does so in
part through KM, which exercises such power pursuant to the
Delegation Agreement. Rather, the Jacobses contend that BCG and
KM are not "persons" (see supra) and thus none of them can be a
"person in control of the premises." This argument fails in
light of HRS § 1-19, which defines persons to include
7/
In light of our conclusion, we need not address whether BoH, as a
trustee holding trust property for the benefit of the public, is also a
"possessor of a fee interest" in KPGC.
15
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
corporations, firms, and associations. See supra. Limited
liability companies such as BCG and KM share sufficient features
with these entities to come within the definition of a "person"
under the HRUS. See HRS § 428-111(b) (2004) ("Unless its
articles of organization provide otherwise, a limited liability
company has the same powers as an individual to do all things
necessary or convenient to carry on its business or affairs
. . . ."); HRS § 428-201 (2004) ("A limited liability company is
a legal entity distinct from its members.")
The Jacobses also argue that "[a] strict construction
of the HRUS does not support the broadening of the definition of
'owner' to include . . . property managers and subcontractors who
have breached their fiduciary and contractual obligations to keep
KPGC in a safe condition." The Jacobses assert that immunizing
the KPGC Defendants, "who have no authority to undo the bequest
of the late Walter McBryde to open his land to the public," will
not further the legislative intent of the HRUS, but instead,
"will create a windfall of blanket immunity that was not
intended."
These arguments fail in light of the plain language of
the HRUS defining an owner to include an occupant or person in
control of the premises. The KPGC Defendants established, and
the Jacobses presented no genuine issue of material fact, that
BCG and KM had the power to manage KPGC pursuant to the
Management Agreement and the Delegation Agreement. As such, BCG
and KM were occupants or persons in control of the premises (see
supra), and thus "owners" as defined by the HRUS. See supra.
Case law in other jurisdictions with analogous
recreational use statutes supports our conclusion. For example,
in Smith v. Sno Eagles Snowmobile Club, Inc., 823 F.2d 1193 (7th
Cir. 1987), the Seventh Circuit affirmed the district court's
grant of summary judgment in favor of a snowmobile club and a
snowmobile trail grooming (i.e., maintenance) organization under
Wisconsin's recreational use statute. The court reasoned:
We agree with the district court's determination that the
term "occupant" in [Wisconsin Statutes] section 29.68
applies to [the snowmobile club and the trail grooming
organization] to the extent they constructed and groomed Two
16
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
East Trail. If we were to circumscribe and interpret
"occupant" as one in actual possession or exclusive control
the term would be indistinguishable from owner. This would
negate and defeat the very intent of the Wisconsin
legislature to open up as much land as possible for
recreational use when it enacted section 29.68 and added the
recreational activity of snowmobiling in 1970.
Id. at 1198. In concluding that the two organizations
constituted "occupants," the court also noted that they "occupied
the trail 'with a degree of permanence.'" Id. at 1197.
In Stanton v. Lackawanna Energy, Ltd., the Supreme
Court of Pennsylvania affirmed a superior court order directing a
trial court to enter summary judgment in favor of a utility
easement holder under the state's recreational use statute. 886
A.2d 667, 678 (Pa. 2005). In reaching this conclusion, the
supreme court considered whether a utility easement holder was an
"occupant" within the meaning of the state's recreational use
statute. The court stated:
The [Recreational Use of Land and Water Act] does not
provide specific definitions for the terms "occupant" or
"person in control of the premises." However, "occupant" is
commonly defined as "one who has possessory rights in, or
control over, certain property or premises." Black's Law
Dictionary, 8th ed. (2004), at 1108. The term "control" is
commonly defined as "the power or authority to manage,
direct, or oversee[.]"
Id. at 676. The court reasoned: "Based upon these commonly
accepted meanings of the relevant terms, [the utility] clearly is
an occupant of the property in question, as it regularly
maintained the electrical facilities on the property and used a
dirt road along its utility line, on the land contained within
its easement." Id. "These activities demonstrate that [the
utility] has possessory rights in and daily control over its
easement." Id. The court explained, "[i]n other words, [the
utility] has authority to manage the land and regulate its use."
Id.
Similarly, in Robinson v. Illinois Power Co., 789
N.E.2d 792 (Ill. App. Ct. 2003), the court determined that "[o]ne
who exercises control over property can be said to occupy it."
Id. at 794. The court ruled that the defendant power company
constituted an occupant within the meaning of the Snowmobile
Registration and Safety Act, where the power company "installed
17
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and owned the pole and wires, and maintained them for 55 years."
Id.; see also Fagerhus v. Host Marriott Corp., 795 A.2d 221, 231
(Md. Ct. Spec. App. 2002) ("We view this language [defining an
'owner' as 'the possessor of a fee interest, a tenant, lessee,
occupant or person in control of the premises'] as more clearly
encompassing a property manager, in that 'person[s] in control of
the premises' undoubtedly describes those with a contractual duty
to manage and maintain the premises for the landowner.").
Here, as in Smith, the term "occupant" applies to BCG
and KM, to the extent they have managed and maintained KPGC
pursuant to the Management Agreement and the Delegation
Agreement. Indeed, the KPGC Defendants produced evidence that
the two LLCs have been responsible for the day-to-day management
of KPGC since 2008, i.e., they have occupied the premises with "a
degree of permanence." 823 F.2d at 1197. Additionally, like the
"occupants" in Stanton and Robinson, BCG and KM have "exercise[d]
control over [the] property" and have had the "authority to
manage the land." See Stanton, 886 A.2d at 676; Robinson, 789
N.E.2d at 794.
Our construction of the term "owner" as including
property managers such as BCG and KM is also consistent with the
history and purpose of the HRUS, because it preserves the
incentive for property owners to make land available for
recreational use. A contrary construction would undermine that
goal.
If a managing agent is held to be more responsible to a
recreational user than a landowner, the end result
necessarily will undermine the intent and purpose of the
[state recreational use statute]. There can be no doubt
that indemnity agreements between the landowner and managing
agent either exist or will be created in the future to keep
the managing agent free from liability. The net effect is
to return liability to the landowner. This in turn will
serve only to make private landowners again fear liability
and prevent them from permitting or acquiescing in the use
of their lands for recreational purposes.
Fagerhus, 795 A.2d at 232.
Construing the term "owner" based on the language of
the HRUS, its history, and its purpose, we hold that a property
manager such as BCG and KM with a contractual duty to manage and
maintain premises that a landowner makes available for
18
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
recreational use is an "owner" entitled to invoke the protections
of the HRUS. There is no dispute in this case that BCG and KM
had the power to manage KPGC under the terms of the Management
Agreement and the Delegation Agreement. In these circumstances,
the Circuit Court did not err in concluding that BCG and KM were
"owners" as defined by the HRUS for purposes of applying the
statute's immunity provisions.
D. Recreational Purpose
The Jacobses contend that "[Jessica's] feeding of
chickens or cats was not a recreational activity as contemplated
under the HRUS and[,] therefore, immunity from liability does not
apply." The KPGC Defendants disagree, arguing that Jessica
"indisputably [had] a 'recreational purpose'" on the day of the
incident, and the undisputed facts epitomize the type of case
that is appropriate for granting summary judgment to a landowner
under the HRUS.
The HRUS defines "[r]ecreational purpose" as
"includ[ing] but . . . not limited to any of the following, or
any combination thereof: hunting, fishing, swimming, boating,
camping, picnicking, hiking, pleasure driving, nature study,
water skiing, winter sports, and viewing or enjoying historical,
archaeological, scenic, or scientific sites." HRS § 520-2.
The Jacobses acknowledge that "the activities listed
[in the above statutory definition] are not exhaustive," but
contend that "their common thread is that the participant derives
a certain amount of enjoyment, or health and/or educational
benefit from each activity." The Jacobses argue that "[Jessica]
was not feeding the chickens and cats for the purposes of her
enjoyment or other personal enlightenment" – that she testified
in deposition that "she was 'conflicted' by the activity of
feeding wild animals[.]" Notably, the Jacobses do not contend
that Jessica was at KPGC on the day of the incident for a
commercial or work-related purpose. Thus, we must determine
whether the activity of feeding or watering wildlife in these
circumstances constitutes an unenumerated "recreational purpose"
under the HRUS.
19
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In two seminal cases, the Hawai#i Supreme Court has
construed the meaning of "recreational user"8/ and "recreational
purpose" as used in the HRUS. In Crichfield, the court
considered whether HRUS conferred liability protection on a
hotel, where one of the plaintiffs was injured while viewing
statuary and a fishpond, and both plaintiffs alleged they had
entered the hotel grounds with the subjective intent of having
lunch at one of the hotel's restaurants. 93 Hawai#i at 480-82, 6
P.3d at 352-53. Construing the HRUS, the court explained:
By its plain language, [the] HRUS does not apply if a person
is entering or using the land for a non-recreational
purpose—i.e., for a commercial purpose, such as purchasing
or consuming a meal. [The] HRUS is ambiguous, however,
regarding the standpoint or perspective from which a
"recreational purpose" is ascertained. Without resort to
extrinsic interpretive aids, we are therefore unwilling to
hold, as the Ninth Circuit did in Howard[ v. United States,
181 F.3d 1064 (9th Cir. 1999)], that the subjective intent
prompting a person to enter or use another's land is
immaterial to the question whether HRS § 520–3 relieves a
landowner of any duty to the person to keep the premises
safe for "entry or use."
Id. at 487, 6 P.3d at 359. The court concluded that "neither the
subjective intent of the landowner in holding open the property
nor the subjective intent of the entrant in visiting the property
w[as] necessarily dispositive as to whether the plaintiff was a
recreational user for the purposes of the HRUS." Thompson v.
Kyo-Ya Co., 112 Hawai#i 472, 477, 146 P.3d 1049, 1054 (2006)
(citing Crichfield, 93 Hawai#i at 487-88, 6 P.3d at 359-60). The
court further concluded that "the commercial purpose of having
lunch at the hotel was a non-recreational use of the property
and, in vacating the grant of summary judgment in favor of the
hotel, weighed the intent of the landowner and the intent of the
entrant and concluded that the plaintiffs' allegations of a
commercial purpose with the hotel raised a genuine issue of
material fact." Id. (citing Crichfield, 93 Hawai#i at 487-88, 6
P.3d at 359-60).
8/
For purposes of the HRUS, "'[r]ecreational user' means any person
who is on or about the premises that the owner of land either directly or
indirectly invites or permits, without charge, entry onto the property for
recreational purposes." HRS § 520-2.
20
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In Thompson, the supreme court considered "whether [the
plaintiff] was on the [defendant hotel's] property as a
'recreational user' for 'recreational purposes' under the HRUS
when she was engaged in a traditionally recreational activity but
with the subjective intent of doing so for vocational or
occupational reasons."9/ Id. at 476, 146 P.3d at 1053 (footnote
omitted). The court noted that "[i]n most suits where a HRUS
defense has been invoked, the question whether a party is a
recreational user has been outcome-dispositive." Id. at 477, 146
P.3d at 1054. After reviewing the legislative history cited in
Critchfield, the Thompson court stated:
This court should, therefore, approach the analysis of
whether a HRUS defense is available to the [defendant hotel]
in the present matter by seeking an outcome that
"encourage[s] the recreational use of our state's resources
by limiting landowners' liability to recreational users and,
thereby, promot[es] the use and enjoyment of Hawaii's
resources" by "encourag[ing] wider access to lands and
waters for ... fishing and other activities," while
respecting traditional duties owed by landowners to
non-recreational entrants.
Id. at 479-80, 146 P.3d at 1056-57. The court concluded that
"[the plaintiff's] status on the [defendant hotel's] property
fell as a matter of law within the ambit of HRS ch. 520 as a
recreational user, inasmuch as she was engaged in 'an activity in
pursuit of the use of the property for recreational purposes'"
and therefore, "the [defendant hotel] was immunized from her
negligence claims under the HRUS." Id. at 481, 146 P.3d at 1058.
The court further ruled that the circuit court had correctly
entered summary judgment in favor of the defendant hotel, and
noted that "unlike Crichfield, there is no danger in the present
matter that this ruling will allow owners to exploit the HRUS to
avoid liability for activities related to them or from which they
benefit." Id. at 481-82, 146 P.3d at 1058-59.
In Thompson, the supreme court also relied in part on
Palmer v. United States, 945 F.2d 1134 (9th Cir. 1991), in which
the Ninth Circuit construed the term "recreational purpose" as
9/
The plaintiff, a certified scuba instructor, was injured on the
hotel's "unlit beach-access path" when exiting the water and returning to her
vehicle. Thompson, 112 Hawai#i at 473, 146 P.3d at 1050.
21
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
set out in the HRUS. In Palmer, the court affirmed a district
court decision that the HRUS immunized a federal military
recreational facility from negligence claims asserted by the
plaintiff grandfather who slipped and fell at a swimming pool
while watching over his granddaughters. Id. at 1135. The
plaintiff argued that the HRUS did not apply because "he was
engaged in the non-recreational activity of supervising his
grandchildren and was not permitted to use the swimming pool."
Id. at 1136. Rejecting this argument, the court reasoned:
Even assuming that watching over one's own grandchildren is
not a recreational activity, [the plaintiff's] services
conferred no benefit upon the [recreational facility]. He
was not there for the [facility's] purposes, but rather to
facilitate his grandchildren's authorized use of the
pool. . . . He was allowed on the property for his
granddaughters' recreational purposes, which is the type of
permissive use the HRUS seeks to encourage.
Moreover, [the plaintiff's] behavior was consistent with
relaxation and recreation. He was lounging in the sun. We
therefore conclude that he was engaged in a recreational
activity for purposes of the HRUS. By affording immunity in
this situation, the purpose of the HRUS to encourage
landowners to make their recreational property available for
use is served.
Id. at 1136-37 (citations omitted).
Here, unlike the plaintiffs in Critchfield and
Thompson, the Jacobses do not assert that Jessica was at KPGC on
the day of the incident for a commercial or work-related purpose.
Rather, there is no genuine issue of material fact that Jessica
visited KPGC that day for the purpose of feeding or watering
wildlife. The Jacobses argue that this was not a recreational
purpose under the HRUS because Jessica was "conflicted" about,
and thus did not derive enjoyment or enlightenment from, this
activity. However, this "enjoyment" standard finds no support in
the statutory text of the HRUS or the case law that has construed
it. Indeed, the Jacobses' asserted standard would conflict with
the plain language of HRS § 520-2 and its enumerated recreational
purposes, where, for example, the entrant visiting property that
is held open for a recreational purpose such as swimming or
boating does not enjoy the activity because the water is rough or
the person is injured, i.e., the very circumstance that may
trigger the liability protections of the HRUS. This position
22
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
would encourage land closures, contrary to the legislature's
intent to encourage landowners to allow entry to individuals
wishing to "use . . . the owner's land for recreational purposes—
i.e., the recreational enjoyment of the natural resources that
are an inextricable part of Hawaii's land and waters."
Crichfield, 93 Hawai#i at 489, 6 P.3d at 361 (internal quotation
marks omitted). Moreover, while Jessica testified that she was
"conflicted" about feeding wildlife, there is no dispute that,
like the plaintiff in Palmer, she "conferred no benefit" on KPGC
and that feeding wildlife is "consistent with," 945 F.2d at 1136-
37, recreational purposes such as "nature study" or "viewing
. . . scenic . . . sights." HRS § 520-2. If hunting and fishing
are recreational purposes under the HRUS, then surely caring for
wildlife can also be such a purpose in these circumstances.10/
See Thompson, 112 Hawai#i at 487, 146 P.3d at 1064 (Acoba, J.
concurring) ("Because the [HRUS] enumerates activities within the
scope of the general reference to 'recreational purpose,' it is
easily discerned that scuba diving is similar in nature to such
water sports as swimming, fishing or boating. The 'term
"includes" is ordinarily a term of enlargement, not of
limitation; a statutory definition of [a] thing as "including"
certain things does not necessarily impose a meaning limited to
inclusion.'" (quoting Schwab v. Ariyoshi, 58 Haw. 25, 35, 564
P.2d 135, 141 (1977))).
We therefore hold that the Circuit Court correctly
concluded there was no genuine issue of material fact that on the
day of the incident, Jessica was on the KPGC premises for a
recreational purpose.
E. "Wilful or Malicious" Failure to Guard Against or Warn
Pursuant to HRS § 520–5(1), an "owner" is not immune
from tort liability, if the injury results from the owner's
"wilful or malicious failure to guard or warn against" either "a
dangerous condition, use, or structure which the owner knowingly
10/
Jessica also testified and there is no dispute that she intended
to take a photograph while at KPGC on the day of the incident, another
activity that is consistent with recreational purposes such as "nature study"
or "viewing . . . scenic . . . sights." HRS § 520-2.
23
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
creates or perpetuates," or "a dangerous activity that the owner
knowingly pursues or perpetuates." See Crichfield, 93 Hawai#i at
485, 6 P.3d at 357 (quoting HRS § 520-5 (1993)).
The Jacobses make a two-fold argument based on this
provision of the HRUS. First, they contend that "[w]hether [the
KPGC Defendants'] conduct was wilful or malicious under the HRUS
is clearly a question of fact for the jury and[,] therefore,
precludes summary judgment." Second, the Jacobses argue that
"[e]ven if the issue of whether [the KPGC Defendants'] conduct
was wilful or malicious was subject to summary judgment
adjudication, there exist genuine issues of material fact
regarding whether [the KPGC Defendants'] conduct was wilful or
malicious under the HRUS's exception to immunity[.]"
We address each of these arguments in turn, below.
1. Summary Judgment Not Precluded
Contrary to the Jacobses's first argument, whether an
owner's failure to act is wilful or malicious under the HRUS is
not always an issue of fact for the jury that precludes summary
judgment. If the movant owner asserts that it did not act
wilfully or maliciously in failing to guard against or warn in
the circumstances identified in HRS § 520-5, and satisfies its
initial burden of producing evidentiary support for its
assertion, then "the party opposing summary judgment must
'demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial.'" Nozawa, 142
Hawai#i at 342, 418 P.3d at 1198 (quoting Lales, 133 Hawai#i at
359, 328 P.3d at 368). If the non-moving party fails to do so,
the issue can be determined by summary judgment.
Indeed, the supreme court has affirmed summary judgment
in favor of defendants in other contexts involving the
defendants' alleged wilful or malicious conduct. See, e.g.,
Ass'n of Apartment Owners of Newtown Meadows ex rel. its Bd. of
Directors v. Venture 15, Inc., 115 Hawai#i 232, 298, 167 P.3d
225, 291 (2007) ("Inasmuch as the AOAO has not shown 'a positive
element of conscious wrongdoing' in order to justify an award of
punitive damages against Royal, Lee, and Liu, we hold that the
24
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
circuit court did not err in granting summary judgment in favor
of Royal, Lee, and Liu on the AOAO's claims for punitive
damages." (citation omitted)); Arquette v. State, 128 Hawai#i
423, 437, 290 P.3d 493, 507 (2012) (in the malicious prosecution
context, "[b]are allegations or factually unsupported conclusions
are insufficient to raise a genuine issue of material fact, and
therefore, insufficient to reverse a grant of summary judgment")
(quoting Wong v. Cayetano, 111 Hawai#i 462, 483, 143 P.3d 1, 22
(2006)) (internal quotation marks omitted)).
2. Issues of Fact in this Case
The Jacobses also contend that the Circuit Court erred
in granting summary judgment in favor of the KPGC Defendants
because there was a genuine issue of material fact as to whether
the Jacobses' injuries resulted from the KPGC Defendants' wilful
or malicious failure to guard or warn against a dangerous
condition that they knowingly created or perpetuated, i.e., vine-
laden trees and branches abutting the golf course and park that
were prone to breakage in high winds, leading to the failure of
even large branches.
The KPGC Defendants argue in response that under
prevailing case law, "if someone is injured by a 'natural
condition[,]' then the landowner cannot be deemed to be 'willful
or malicious[.]'" (Emphasis omitted.) At least two federal
courts construing the HRUS have concluded that even a wilful or
malicious failure to guard or warn against a dangerous natural
condition – i.e., dangerous ocean surf – is not actionable under
HRS § 520–5 because a natural danger is not one that the
landowner "knowingly creates or perpetuates." See Covington v.
United States (Covington II), 916 F. Supp. 1511, 1522 (D. Haw.
1996), aff'd, Nos. 96-15205, CV-94-00330-ACK, 1997 WL 408040 (9th
Cir. July 17, 1997); Viess v. Sea Enters. Corp., 634 F. Supp.
226, 231 (D. Haw. 1986). Relying on Covington II and Viess, the
KPGC Defendants argue that "[t]he trees, branches, and wind were
obviously natural conditions" and the "natural forest area of
Kukuiolono Park is very similar to the natural ocean[.]"
(Emphases omitted.)
25
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Here, however, the evidence submitted by the Jacobses
indicated that the tree branch that fell on Jessica was not in
the middle of the forest, but near the edge of a parking lot, and
unlike ocean surf, dangerous trees or limbs that border public
spaces and access ways can be pruned. In opposing the summary
judgment motion, the Jacobses submitted the declaration of a
certified arborist, Jim Campbell (Campbell), who inspected the
area where the branch failed and injured Jessica, as well as the
portion of the tree branch that remained. According to Campbell,
the branch that failed originated from a tree that was lying on
the ground, "just inside the tree/vegetation line fronting an
area commonly used by the public for parking, relaxing and
feeding wild chickens etc. . . . The branch was overgrown with
vines that add extra weight and act as a sail to catch wind."
Campbell opined:
Trees bordering parking areas used by the public require
periodic inspections and maintenance as needed to mitigate
hazardous conditions that may pose a high risk compromising
safety.
. . . [T]he branch that failed should have been pruned to
reduce over all length thus reducing weight stress,
providing a margin of safety for the public in the nearby
area.
In addition, photographs of the branch that purportedly fell on
Jessica appear to show the branch covered in vines.
On this record, we cannot conclude as a matter of law
that the KPGC Defendants could not at least have perpetuated the
allegedly dangerous condition at issue in this case, i.e., vine-
covered trees and branches that were prone to break in high
winds, and which bordered a public parking lot and access area of
KPGC. Rather, the KPGC Defendants may be held liable to the
extent that they knowingly created or perpetuated, and wilfully
or maliciously failed to guard or warn against, this alleged
danger. The HRUS permits such liability because it is not based
merely on negligence. See Covington v. United States, 902 F.
Supp. 1207, 1213 (D. Haw. 1995).
The HRUS does not define the terms "wilful" or
"malicious," and the Hawai#i Supreme Court has not construed
these terms in the context of the HRUS. Black's Law Dictionary
26
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
defines "willful" in relevant part as follows:
Voluntary and intentional, but not necessarily malicious. A
voluntary act becomes willful, in law, only when it involves
conscious wrong or evil purpose on the part of the actor, or
at least inexcusable carelessness, whether the act is right
or wrong.
Black's Law Dictionary 1916 (11th ed. 2019); see State v.
Villiarimo, 132 Hawai#i 209, 222 n.17, 320 P.3d 874, 887 n.17
(2014) (citing Black's definition of "willful" in interpreting
HRS § 706-625(3)); Iddings, 82 Hawai#i at 7, 919 P.2d at 269
(interpreting the "wilful and wanton" misconduct exception to co-
employee immunity under HRS § 386-8: "'Willful' is defined in
pertinent part as '[p]remeditated; malicious; done with evil
intent, or with a bad motive or purpose, or with indifference to
the natural consequences; unlawful; without legal
justification'") (citing Black's Law Dictionary 1599 (6th ed.
1990) (emphasis omitted)).
"Malicious" is defined as: "1. Substantially certain
to cause injury[;] 2. [w]ithout just cause or excuse." Black's
Law Dictionary 1146 (11th ed. 2019); see Awakuni v. Awana, 115
Hawai#i 126, 141, 165 P.3d 1027, 1042 (2007) (citing Black's
definition of "malicious" in interpreting HRS § 26-35.5(b)).
"Malice" is defined as "[t]he intent, without justification or
excuse, to commit a wrongful act[,]" "[r]eckless disregard of the
law or of a person's legal rights[,]" and "[i]ll will; wickedness
of heart."11/ Black's Law Dictionary 1145-46 (11th ed. 2019); see
Awakuni, 115 Hawai#i at 141, 165 P.3d at 1042 (citing Black's
definition of "malice").
With these definitions in mind, we turn to the evidence
that was submitted as to whether the KPGC Defendants wilfully or
maliciously failed to guard or warn against the condition at
issue. The KPGC Defendants produced evidence that the KPGC trust
spends approximately $400,000 per year on employees' salaries and
wages, including "substantial amounts . . . on landscaping,
11/
Similarly, a "malicious injury" is defined as "[a]n injury
resulting from a willful act committed with knowledge that it is likely to
injure another or with reckless disregard of the consequences." Black's Law
Dictionary 939 (11th ed. 2019).
27
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
maintenance, and club house staff[.]" In addition, Scot stated
in his declaration that "from 1982 to present, the Park has
continuously employed a general manager and numerous landscapers
and maintenance workers to take care of the Park, including the
golfing[.]" Scot further stated that from 1982 to the present:
(1) "if there were any accidents at the Park where someone was
injured, as the Chairman of the Board, I was informed of that
accident by the general manager[,]" and (2) "there was never a
report to me of any other accidents or incidents at the Park in
which a tree or tree branch struck or hit anyone."
The Jacobses, however, contend that other evidence
creates a genuine issue of material fact as to whether the KPGC
Defendants' alleged failure to guard or warn was wilful or
malicious. In addition to the Campbell declaration (see supra),
the Jacobses submitted the deposition testimony of Cedric
DeFabian (DeFabian), a groundskeeper at KPGC. DeFabian testified
that prior to Jessica's injury, he had to move or trim tree limbs
that broke due to high winds three to four times a year; some had
"a lot of vines on them[.]"
The Jacobses also submitted the deposition testimony of
Patrick Hunt (Hunt), the former general manager of KPGC who
retired in 2015. Hunt testified in part as follows:
Q. Do you have any guidelines for when to trim certain
trees or branches?
A. We trim our coconut trees when they get coconuts on
'em so no one would get hit in the head with a coconut.
Q. What about for the trees that are bordering the
grass areas and the parking lots?
A. . . . If it encroached, a danger to cars or people
walking, then we'd cut 'em back.
Q. So only if they're encroaching?
A. Right.
Q. Then you would trim?
A. Yeah.
Hunt stated that during his eight years at KPGC, he recalled four
to five trees that had fallen, one due to wind and others because
they were old. Hunt also testified that the wind was "very, very
28
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
strong" on the day that the branch fell on Jessica.
Viewed in the light most favorable to the Jacobses, as
the non-moving parties, the evidence they submitted raises a
factual issue as to whether the KPGC Defendants knew of the
alleged dangerous condition, i.e., vine-covered trees and
branches that were prone to break in high winds, and which
bordered a public parking lot and access area of KPGC. See
Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198. In particular,
DeFabian testified that he had to move or trim tree limbs, some
with "a lot of vines on them," that broke due to high winds three
to four times a year. Hunt testified that he recalled four to
five trees that had fallen during his tenure at KPGC, at least
one due to wind. The evidence also raises a factual issue as to
whether the KPGC Defendants knew that visitors to the park were
likely to be injured by objects, such as branches, falling from
trees bordering public spaces. Hunt testified, for example, that
"[w]e trim our coconut trees . . . so no one would get hit in the
head with a coconut." In their answering brief, the KPGC
Defendants assert: "Everyone, including [Jessica], knows that
branches of trees can blow down in high winds. She should have
been more vigilant." (Emphasis omitted.) Yet, with knowledge of
this danger, at least according to Hunt, KPGC managers allegedly
took no action to trim vine-covered trees bordering the grass
areas and parking lots or to warn visitors of the danger of
falling branches on windy days. Thus, the evidence submitted by
the Jacobses, when viewed in the light most favorable to them,
raises a factual issue as to whether the KPGC Defendants
consciously failed to act to avoid a recognized danger that they
knowingly perpetuated. See id. at 342, 418 P.3d at 1198.
In light of this evidence, we conclude there is a
genuine issue of material fact as to whether the KPGC Defendants
knowingly perpetuated, and wilfully or maliciously failed to
guard or warn against, the alleged danger posed by vine-covered
trees and branches that were prone to break in high winds, and
which bordered a public parking lot and access area of KPGC. We
note, however, that the Jacobses must ultimately prove that the
KPGC Defendants knowingly created or perpetuated this alleged
29
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
danger, and that their alleged failure to act to avoid the danger
was wilful or malicious. To establish liability, the Jacobses
must also prove that the alleged failure to guard or warn against
the danger actually caused the Jacobses' harm.
IV. Conclusion
For the reasons discussed above, we vacate the Final
Judgment, entered on November 29, 2016, by the Circuit Court of
the Fifth Circuit. We remand the case to the Circuit Court for
further proceedings consistent with this opinion.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Sue V. Hansen
for Plaintiffs-Appellants /s/ Clyde J. Wadsworth
Associate Judge
Chad P. Love, /s/ Karen T. Nakasone
Barbara Kirschenbaum, and Associate Judge
Chuck T. Narikiyo
(Love & Kirschenbaum)
for Defendants-Appellees
30