Shaner v. Kraus

NOT FGR PUBLICATION IN WEST'S HAWAI‘I REP()RTS AND PACIFIC REP()RTER

NO.29379
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAITf

DENISE SHANER, as Personal RepreSentative
of the EState of THOMAS B. ROTH; MILDRED L. ROTH;
` PlaintiffS-AppellantS, n cch w
V_ M ' <::":i:»
MICHAEL M. KRAUS; CHRISTIAN KRAUS; DON DIXON;”i
CONTENIA DIXON; JOHN DOES l~lO; JANE DOES 1-lO;
DOE PARTNERSHIPS 1-lO; DOE CORPORATIONS 1-lO;
ROE "NON~PROFIT" CORPORATIONS 1-10;
and ROE GOVERNMENTAL ENTITIES l~10,
DefendantS~AppelleeS

APPEAL FRoM THE cIRcUiT coURT oF THE THIRD c:RcU:T
(cIvIL No. 07~1-0057)

MEMORANDUM OPINION
(By: Foley and FujiSe, JJ.;
Nakamura, C J., concurring Separately)

PlaintiffS~AppellantS DeniSe Shaner, as PerSonal
RepreSentative of the EState of Thomas B. Roth, and Mildred L.
Roth (collectively, PlaintiffS) appeal from the “Final Judgment
in Favor of DefendantS Don Dixon and Contenia Dixon
[collectively, DixonS] and AgainSt [PlaintiffS]" (Final Judgment)
filed on AuguSt 27, 2008 in the Circuit Court of the Third
Circuit1 (circuit court).

PurSuant to the June lO, 2008 "Order Granting [DixonS']
Motion for Summary Judgment on PlaintiffS' FirSt Amended
Complaint Filed March 9, 2007, Filed May l2, 2008" (Order
Granting DixonS' SJ Motion), the circuit court found that Dixons

did not owe a duty of care to ThomaS B. Roth (deceaSed) and

1 The Honorable Greg K. Nakamura preSided.

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entered summary judgment in favor of Dixons and against
Plaintiffs on Plaintiffs' First Amended Complaint.2

On appeal, Plaintiffs contend the circuit court erred

(l) in determining that DiXons did not owe a duty of
care to Thomas B. Roth, deceased (Mr. Roth);

(2) in failing to recognize that genuine issues of
material fact had been submitted by Plaintiffs and Plaintiffs
should have been permitted to proceed to trial on their claims;

(3) in granting Dixons' "Motion for Summary Judgment
on Plaintiffs' First Amended Complaint Filed March 9, 2007" (SJ
Moti@n> filed Aprii 24, 2003,- and '

(4) in denying Plaintiffs' "Motion for Reconsideration
of the Order Granting [Dixons'] Motion for Summary Judgment on
Plaintiffs' First Amended Complaint Filed March 9, 2007, Filed on
April 24, 2008, and/or Motion for Certification Under [HawaiH_
Rules of Civil Procedure (HRCP)] Rule 54(b), and/or Leave to File
an Interlocutory Appeal Pursuant to [Hawaii Revised Statutes
(HRS) §] 64l~l(b), and for Stay of Further Proceedings Pending
the Appeal and/or HRCP Rule 56(f) Request" (Motion for
Reconsideration) filed June 20, 2008.

I. BA£HU3RCHB§D

Dixons hired Tree Works, Inc. (TWI) to remove trees

from their unimproved property located in Pahoa, HawaFi. TWI

specialized in tree removal, including removal of trees near

d

“ On January l8, 2008, all the parties stipulated that Plaintiffs'
First Amended Complaint should be amended to change the erroneously named
Christopher Kraus to Christian Kraus. Plaintiffs filed a motion on

January 3l, 2008 to so amend the First Amended Complaint. On March l7, 2008,
the circuit court filed an "Order Granting Plaintiffs' Motion to Amend
Complaint to Properly Reflect the Legal Name of Christian Kraus, Erroneously

Named as Christopher Kraus." On April 7, 200S, Plaintiffs filed a Second
Amended Complaint, which was identical to the First Amended Complaint except
for the name change of Christopher Kraus to Christian Kraus. There is no

indication in the record that the Second Amended Complaint was served on the
defendants, and none of the defendants filed an answer to the Second Amended
Complaint. However, in the Final Judgment, the circuit court dismissed "all
other claims, counterclaims or cross-claims . . . without prejudice."

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electric lines. TWI employed Mr. Roth, who had experience with
tree removal near electric lines.3

On October 6, 2005, TWI dispatched a crew, including
Mr. Roth, to Dixons' property. The crew understood that they
would be working around live electric lines. During the cleanup
process, Roth was holding a metal hook that was attached to the
crane‘s boom. When the boom, operated by TWI supervisor
Christian Klaus (Christian), touched a live power line, a high
voltage current electrocuted Mr. Roth and killed him.

Plaintiffs filed a Complaint on February 27, 2007 and a
First Amended Complaint on March 9, 2007 against Michael M. Kraus
(Michael), Christian, and Dixons (collectively, Defendants).
After Defendants filed their respective answers4 to the First
Amended Complaint, Dixons filed their SJ Motion. Attached to the
SJ Motion was the deposition of Michael, who was president of
TWI. During questioning, Michael admitted that the tree removal
job was conducted in violation of safety directives specified in
the crane manual.

Plaintiffs filed an opposition memorandum to the SJ
Motion.5 The circuit court thereafter filed the Order Granting
Dixons‘ SJ Motion.

Plaintiffs filed their Motion for Reconsideration,
which the circuit court denied on August 27, 2008. The circuit
court filed the Final Judgment on that same date, and Plaintiffs

timely appealed.

Dixons attempted to hire an excavation company to remove the trees,
but the company refused because of the proximity of electric lines to three
gunpowder trees on the property.

“ Christian also filed a cross~claim against Dixons.
Michael filed a "Petition for Finding of Good Faith Settlement

Relating to Plaintiffs and Defendants [Michael and Christian]" on April 29,
2008, and the circuit court granted the petition.

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II. STANDARD OF REVIEW

On appeal, the grant or denial of summary judgment is
reviewed de novo. See SLate ex rel. Anzai v. City and
County of Honolulu, 99 Hawafi 508, [5l5], 57 P.3d 433,
[440] (2002); Bitney v. Honolulu Police Dep't, 96 Hawafi
243, 250, 30 P.3d 257, 264 (200l).

[S]ummary 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
judgment as a matter of law. 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. The evidence must be viewed in the light
most favorable to the non-moving party. In other
words, we must view all of the evidence and inferences
drawn therefrom in the light most favorable to the
party opposing the motion.

Kshale v. City and County of Honolulu, 104 HawaiH 34l, 344,
90 P.3d 233, 236 (2004) (CitatiOn Omitt€d).

Nuuanu Vallev Ass'n v. City & Countv of Honolulu, ll9 Hawafi 90,
96, 194 P.3d 53l, 537 (2008).
III. DISCUSSION

A. 2 RESTATEMNT (SECOND) OF TORTS §§ 416 & 427
(1965) APPLY TO THESE FACTS PURSUANT TO MAKANEOLE
v. GAMPON, 70 HAW. 501, 777 P.2d 1183 (1989).
Plaintiffs contend the circuit court erred in holding
that the Hawari Supreme Court in Makaneole "did not expressly
adopt the [2 Restatement (Second) of Torts], §§ 416 and 427 as

substantive law."6 Plaintiffs argue that Makaneole endorses

6 In Plaintiffs’ Opening Brief, their "concise statement of points of
error" violates Hawari Rules of Appellate Procedure (HRAP) Rule 28(b)(4)
because Plaintiffs fail to identify "(i) the alleged error committed by the
court or agency; (ii) where in the record the alleged error occurred; and
(iii) where in the record the alleged error was objected to or the manner in
which the alleged error was brought to the attention of the court or agency."
A violation of this rule dictates judicial disregard of non-compliant points.

HRAP 2S(b)(4)(D) ("Points not presented in accordance with this section will
be disregarded, except that the appellate court, at its option, may notice
plain error not presented."). Also, Plaintiffs’ Opening Brief does not

contain an “argument" section, as mandated by HRAP Rule 28(b)(7).
(continued...)

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2 Restatement (Second) of Torts §§ 416 and 427 as "a basis for
imputing liability against the employer of an independent
contractor under Hawaii law."

In Makaneole, Kauai Development Corporation (KDC) hired
Dillingham Construction Corporation (DCC) as a general contractor
to oversee the expansion of the Sheraton Kauai Hotel. 70 Haw. at
502, 777 P.2d at 1184. Makaneole was employed as a carpenter by
DCC. ld; The expansion project involved hoisting large plywood
sheets onto the hotel roof via a crane. ld; Makaneole's expert
testified that the hotel roof had an unusually steep pitch, which
made the project dangerous. lg;

While Makaneole was working on the roof, a part of the
crane struck him and he suffered a head injury. ;Q; at 503~04,
777 P.2d at 1185. Drake Gampon (Gampon) was the crane operator.
;d; at 503, 777 P.2d at l184. Makaneole filed suit, and the
Circuit Court of the Fifth Circuit granted directed verdicts in
favor of KDC and Gampon. 70 Haw. at 501, 777 P.2d at 1183.
Makaneole appealed the directed verdicts to this court, raising

this argument:

Citing Restatement, §§ 416 and 427, Makaneole also
argues that KDC is vicariously liable for [DCC's] negligence
because (1) KDC should have been aware that the roof design
and its unorthodox method of construction created peculiar
risk of harm to him, and (2) crane operation in construction
is inherently dangerous.

Makaneole v. Gampon, 7 Haw. App. 448, 459, 776 P.2d 402, 409,

rev'd in part and aff‘d in part, 70 Haw. 501, 777 P.2d 1183

(1989). This court reversed the directed verdicts. 70 Haw. at
‘(...continued)
However, we may elect to address the merits of an appeal in spite of
HRAP Rule 28(b) violations. Clark v. Arakaki, 118 Hawafi 355, 360 n.5, 191

P,3d l76, 181 n.5 (2008) (internal quotation marks and citation omitted)
(noting a judicial policy of "affording litigants the opportunity to have
their cases heard on the merits, where possible"); O'Conner v. Diocese of
Honolulu, 77 Hawai‘i 383, 386 & n.5, 885 P.2d 36l, 364 & n.5 (1994) (noting
that HRAP 2 permits the appellate courts to suspend HRAP “[i]n the interest of
expediting decision, or for other good cause shown").

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501, 777 P.2d at ll83. On certiorari, ;Q; at 502, 777 P.2d at
1184, the Hawafi Supreme Court stated that this court had erred
in refusing to apply §§ 416 and 427 and in holding that the
workers' compensation statute was the exclusive remedy that
Makaneole would have against his employer. 70 Haw. at 505, 777
P.2d at 1185-86.
The HawaFi Supreme Court reversed this court's holding

that HRS § 386-5 precludes the applicability of §§ 416 and 427,
Makaneole, 70 Haw. at 507, 777 P.2d at 1187. The supreme court
explained that the Hawafi workers' compensation statutes had
been amended to remove the owner of the premises from the
statutory definition of employer, which amendment exposed the

owner to tort liability. ld.

Since the owner of the premises is not an employer,
the owner does not fall within the provisions of HRS § 386-5
which exempts employers from liability to employees.
Accordingly, contrary to the result in [Jones v. Chevron
USA, fnc., 718 P.2d 890 (Wyo. 1986)], the workers'
compensation statutes in the State of Hawaii provide no
basis for disregarding the legal principles laid down in
§§ 416 and 427 of 2 RES'I`ATEIVIENT (SECOND) OF TOR'I`S.

;d# at 507, 777 P.2d at 1187. After clarifying the applicability
of §§ 416 and 427, the Hawafi Supreme Court remanded Makaneole's
case to the circuit court for further proceedings in accordance
with the opinion. 70 Haw. at 507, 777 P.2d at 1187.

Makaneole implicitly endorsed §§ 416 and 427 as viable
legal remedies against employers of independent contractors for
work~related injury or death.7

In the instant case, the circuit court erred in

refusing to apply §§ 416 and 427 under Makaneole on summary

In a subsequent case, the Supreme Court of North Dakota interpreted
Makaneole similarly. §§§ Fleck v. ANG Coal Gasification Co., 522 N W.2d 445,
450~51 (N D. 1994) (noting that Hawafi under Makaneole follows the minority
view, which holds that §§ 416 and 427 protect employees of independent
contractors).

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judgment. Under the de novo standard of review, we apply §§ 416
and 427 to these facts.

B. A MATERIAL ISSUE OF FACT EXISTS AS TO WHETHER
DIXONS OWED A DUTY OF REASONABLE CARE TO M. ROTH
UNDER §§ 416 AND 427.

Plaintiffs contend the evidence raises a material issue
of fact as to whether Dixons owed Mr. Roth a duty of care
pursuant to 2 Restatement (Second) of Torts §§ 416 and/or 427,
which provide as follows:

§ 416. Work Dangerous In Absence Of Special Precautions

One who employs an independent contractor to do work
which the employer should recognize as likely to create
during its progress a peculiar risk of physical harm to
others unless special precautions are taken, is subject to
liability for physical harm caused to them by the failure of
the contractor to exercise reasonable care to take such
precautions, even though the employer has provided for such
precautions in the contract or otherwise.

§ 427. Neqligence As To Danger 1nherent In The Work

One who employs an independent contractor to do work
involving a special danger to others which the employer
knows or has reason to know to be inherent in or normal to
the work, or which he contemplates or has reason to
contemplate when making the contract, is subject to
liability for physical harm caused to such others by the
contractor‘s failure to take reasonable precautions against
such danger.

we agree with Plaintiffs. Viewed in the light most
favorable to Plaintiffs (the non-moving party), the evidence
raised a material issue as to Dixons' duty of care to Mr. Roth
under §§ 416 and 427. Nuuanu valley Ass'n, 119 Hawafi at 96,
194 P.3d at 537.

lt is undisputed that Dixons hired TWI, Mr. Roth's
employer, to cut down and remove gunpowder trees from Dixons'
property. Dixons initially consulted with an excavation company
about removing the gunpowder trees, but the company refused due
to the close proximity of those particular trees to high-voltage
electrical lines. The president of TWl admitted that the tree

removal job was conducted in violation of safety directives

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specified in the crane manual. This evidence raises a material
issue of fact as to Dixons' duty of care to Mr. Roth under §§ 416
and 427.
IV. CONCLUSION

Having found a material issue of fact as to Dixons'
legal duty to Mr. Roth, we vacate the Final Judgment filed on
August 27, 2008 in the Circuit Court of the Third Circuit and
remand this case for further proceedings.8

DATED= Hon@iulu, Hawai‘i, march 19, 2010.

On the briefs:

Laurent J. Remillard, Jr.

Don V. Huynh
(Park Park & Remillard) ` JE) ¢:”
for Plaintiffs-Appellants. ' `

Associate Judge

Terrance M. Revere
Kapono F.H. Kiakona
(Motooka Yamamoto & Revere)

for Defendants-Appellees
Don and Contenia Dixon. Q >2 ..
Associate Judge

We need not address Plaintiffs‘ challenge to the circuit court's
denial of the Motion for Reconsideration.

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