Steigman v. OUTRIGGER ENTERPRISES, INC.

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Electronically Filed
Supreme Court
SCWC-28473
15-DEC-2011
12:40 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

MICHELE R. STEIGMAN, Petitioner-Plaintiff-Appellant,

v.

OUTRIGGER ENTERPRISES, INC., dba OHANA SURF HOTEL,
Respondent-Defendant-Appellee.

NO. SCWC-28473

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 28473; CIV. NO. 05-1-0274)

DECEMBER 15, 2011

RECKTENWALD, C.J., NAKAYAMA AND DUFFY, JJ.,
AND CIRCUIT JUDGE WILSON, ASSIGNED BY REASON OF VACANCY;
AND ACOBA, J., CONCURRING SEPARATELY

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioner-Plaintiff-Appellant Michele R. Steigman

brought this tort action to recover damages after suffering a

slip-and-fall accident while she was a guest of Respondent-

Defendant-Appellee Outrigger Enterprises’ Ohana Surf Hotel. The

case went to trial, and a jury found that Outrigger was not

negligent.1 Steigman’s appeal to the Intermediate Court of

1
The Honorable Victoria S. Marks presided.
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Appeals (“ICA”) resulted in a Summary Disposition Order affirming

the trial court’s final judgment.

Steigman’s application for writ of certiorari presents

a question of first impression, namely, whether Hawaii’s

comparative negligence statute nullifies the common law tort

defense barring recovery for plaintiffs injured by known or

obvious dangers. Prior to the legislative enactment of

comparative negligence, the courts of this state applied the rule

of contributory negligence, and an injured plaintiff was denied

recovery upon a showing that her negligence contributed to her

own injury. Torres v. Northwest Engineering Co., 86 Hawai#i 383,

399 n.8, 949 P.2d 1004, 1020 n.8 (Haw. App. 1997). Then, “[a]

legislative perception of unfairness in the common law doctrine

of contributory negligence led to the passage of our modified

comparative negligence statute in 1969.” Wong v. Hawaiian Scenic

Tours, Ltd., 64 Haw. 401, 403-04, 642 P.2d 930, 932 (1982). The

statute, Hawai#i Revised Statutes (HRS) § 663-31, states, in

relevant part:
Contributory negligence shall not bar recovery in any action
by any person or the person’s legal representative to
recover damages for negligence resulting in death or in
injury to person or property, if such negligence was not
greater than the negligence of the person or in the case of
more than one person, the aggregate negligence of such
persons against whom recovery is sought, but any damages
allowed shall be diminished in proportion to the amount of
negligence attributable to the person for whose injury,
damage or death recovery is made.

HRS § 663-31(a) (1993). This statute eliminates contributory

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negligence, and instead provides that an injured plaintiff may

recover against a defendant even if her negligence contributed to

her own injury, as long as her negligence is not greater than

that of the defendant.

Steigman contends that the traditional known or obvious

danger defense conflicts with the Legislature’s intent behind the

comparative negligence statute. We agree. We therefore hold

that in Hawai#i, the known or obvious danger defense is no longer

viable as a complete bar to an injured plaintiff’s claim in the

context of premises liability.

I. BACKGROUND

Steigman’s application poses two questions. She asks

whether, as a matter of law, the known or obvious danger defense

is inconsistent with comparative negligence, and whether, as

applied in her case, the jury instruction on the defense was

properly given. We answer her first question in the affirmative,

eliminating the need to consider her second question; thus a

thorough review of the details of her case and the evidence

presented over eight full days of trial is unnecessary.

Nonetheless, this case is illustrative of the difficulty in

applying the known or obvious danger defense. As such, a brief

review of the facts of this case follows.

A. Trial Proceedings

In 2003, Steigman and her family were guests of the

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Ohana Surf Hotel in Honolulu. On the afternoon of March 6,

Steigman and her family got caught in a rainstorm and returned to

their hotel room to dry off. When Steigman went on the lanai2 to

get a chair, she slipped, slid across the balcony, and sustained

injury to her foot when it got trapped under the lanai railing.

Steigman filed this lawsuit against Outrigger alleging

negligence. At trial, Steigman presented evidence to prove that

the hotel lanai was unsafe. An expert witness testified that the

lanai’s surface did not have the friction coefficient required by

industry standards for exterior surfaces. Steigman’s daughter

testified that the lanai had a glossy surface, so it was

difficult to determine by sight alone whether it was wet or dry.

Steigman also presented evidence that an Outrigger employee had

suffered a similar slip-and-fall accident on a lanai at the

hotel, and therefore Outrigger knew of the dangerous condition.

Throughout the trial, Outrigger argued that Steigman’s injury was

caused solely by Steigman’s own negligence because the wet lanai

presented a known or obvious danger of being slippery, and she

chose to confront that danger.

At the conclusion of the trial, Outrigger proposed the

following jury instruction: “A danger is open and obvious when a

party either knew or should have known of it. Whether the

2
“Lanai” is a Hawaiian word meaning “porch, veranda, [or] balcony.”
Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 193 (rev. ed. 1986).

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Plaintiff actually discovered the danger is irrelevant.” The

court refused Outrigger’s instruction and proposed the following

instruction, fashioned after the Restatement (Second) of Torts:
A hotel operator is not liable to its guests for
physical harm caused to them by any activity or condition in
the hotel whose danger is known or obvious to them, unless
the hotel operator should anticipate the harm despite such
knowledge or obviousness.
The word “known” denotes not only knowledge of
the existence of the condition or activity itself, but also
appreciation of the danger it involves. Thus the condition
or activity must not only be known to exist, but it must
also be recognized that it is dangerous, and the probability
and gravity of the threatened harm must be appreciated.
“Obvious” means that both the condition and the risk are
apparent to and would be recognized by a reasonable man, in
the position of the guest, exercising ordinary perception,
intelligence, and judgment.

Steigmen’s counsel objected to this instruction on the grounds

that it was not supported by the evidence and that it conflicted

with this state’s comparative negligence statute. The court

replied “Okay. And the Court’s giving it because [of] the fact

that it was raining, and the plaintiff knew it was raining.”

The court provided the jury with a special verdict

form. The first question asked “Was defendant Outrigger

Enterprises, Inc., doing business as Ohana Surf Hotel,

negligent?” The jury answered “no”. As instructed by the form,

the jury did not answer any further questions. The trial court

entered a final judgment in favor of Outrigger, and ordered

Steigman to pay Outrigger $29,722.30 for costs.

B. The ICA’s June 8, 2010 Summary Disposition Order

On appeal before the ICA, Steigman asserted five points

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of error. Three points of error are no longer relevant to this

appeal. The remaining two of the points of error concerned the

known or obvious danger instruction: Steigman argued that the

facts of her case did not support the instruction, and that the

instruction fundamentally conflicts with Hawaii’s comparative

negligence statute.

On November 16, 2010, the ICA filed a Summary

Disposition Order affirming the trial court’s judgment. Steigman

v. Outrigger Enterprises, Inc., No. 28473, 2010 WL 4621838 (App.

Nov. 16, 2010) (SDO). Therein the ICA affirmed the trial court’s

judgment on all five points of error. With regard to the known

or obvious danger arguments, the ICA held that the instruction

was proper because there was substantial evidence to support the

jury’s finding. Steigman, 2010 WL 4621838 at *7 n.5. The court

also held that “there is no inherent conflict between the known

or obvious doctrine and the comparative negligence statute,”

because the finding of a known or obvious danger completely

absolves a landowner of his duty to people on his premises.

Steigman, 2010 WL 4621838 at *6. The ICA’s reasoning was as

follows:
[I]f the finder of fact determines that the hazard falls
within the known or obvious doctrine, the question of
comparative negligence is never reached as the defendant
owes no duty to the plaintiff, and accordingly, cannot be
negligent as a matter of law. In the absence of a legal duty
owed to the plaintiff, there is no negligence to compare
under HRS § 663-31.

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Steigman, 2010 WL 4621838 at *6.

On December 16, 2010, the ICA filed its Judgment on

Appeal. On February 10, 2011, Steigman filed a timely

application for writ of certiorari. This court accepted

Steigman’s application on March 23, 2011 and heard oral argument

on May 5, 2011.

II. STANDARD OF REVIEW

“Questions of statutory interpretation are questions of

law reviewable de novo.” Hawaii Government Employees Ass’n,

AFSCME Local 152, AFL-CIO v. Lingle, 124 Hawai#i 197, 201-02, 239

P.3d 1, 5-6 (2010) (quoting Gump v. Wal-Mart Stores, Inc., 93

Hawai#i 417, 420, 5 P.3d 407, 410 (2000)).

III. DISCUSSION

The case at bar presents a question of first

impression. However, the central core of the question is

familiar, in that it requires this court to reexamine a

traditional, judge-made rule of tort law in modern context, an

analysis this court has previously undertaken. For example,

until 1969, the state followed the common law rule that a

landowner’s duty to a visitor was determined by the visitor’s

purpose for being on the land; a landowner owed a high duty of

care to visitors on the land for business purposes, called

“invitees,” but a smaller scope of duty to visitors there for

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non-business purposes, called “licensees.” W. Page Keeton, et

al., Prosser and Keeton on the Law of Torts §§ 60 and 61, at 412

and 419 (5th ed. 1984). Then in 1969, this court abandoned the

common law invitee/licensee distinctions and defined premises

duty as follows: “an 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.” Pickard v. City and County of

Honolulu, 51 Haw. 134, 135, 452 P.2d 445, 446 (1969). The court

advanced two justifications for the change. First, courts had

difficulty applying the common law classifications consistently.

The court quoted language from the United States Supreme Court,

noting that
[i]n an effort to do justice in an industrialized urban
society, with its complex economic and individual
relationships, modern common-law courts have found it
necessary to formulate increasingly subtle verbal
refinements, to create subclassifications among traditional
common-law categories, and to delineate fine gradations in
the standards of care which the landowner owes to each. Yet
even within a single jurisdiction, the classifications and
subclassifications bred by the common law have produced
confusion and conflict.

Id. at 135-36, 452 P.2d at 446 (quoting Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. 625, 630-31 (1959)).

The second justification for the change was that the

distinctions had ceased to comport with modern values. The court

quoted Rowland v. Christian, a California Supreme Court decision,

which states that

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

Id. at 136, 452 P.2d at 446 (quoting Rowland v. Christian, 443

P.2d 561, 568 (Cal. 1968)).

We believe that these justifications from the Pickard

case apply in this case: we observe that courts have difficulty

applying the known or obvious danger defense consistently, and

that the defense is incompatible with the modern policy values

that tort law seeks to effect. Furthermore, we believe that the

known or obvious danger defense is inconsistent with the

legislative intent behind our state’s comparative negligence

statute. And finally, we note that the majority of states to

consider the question have abolished the use of the known or

obvious danger defense as a complete bar to an injured

plaintiff’s recovery.

A. The Known Or Obvious Danger Defense Frustrates The
Legislative Intent Behind Comparative Negligence

To resolve Steigman’s question, this court must

interpret our state’s comparative negligence statute. The

statute, HRS § 663-31, provides:

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(a) Contributory negligence shall not bar recovery in any
action by any person or the person’s legal representative to
recover damages for negligence resulting in death or in
injury to person or property, if such negligence was not
greater than the negligence of the person or in the case of
more than one person, the aggregate negligence of such
persons against whom recovery is sought, but any damages
allowed shall be diminished in proportion to the amount of
negligence attributable to the person for whose injury,
damage or death recovery is made.

(b) In any action to which subsection (a) of this section
applies, the court, in a nonjury trial, shall make findings
of fact or, in a jury trial, the jury shall return a special
verdict which shall state:

(1) The amount of the damages which would have been
recoverable if there had been no contributory
negligence; and

(2) The degree of negligence of each party, expressed
as a percentage.

(c) Upon the making of the findings of fact or the return of
a special verdict, as is contemplated by subsection (b)
above, the court shall reduce the amount of the award in
proportion to the amount of negligence attributable to the
person for whose injury, damage or death recovery is made;
provided that if the said proportion is greater than the
negligence of the person or in the case of more than one
person, the aggregate negligence of such persons against
whom recovery is sought, the court will enter a judgment for
the defendant.

(d) The court shall instruct the jury regarding the law of
comparative negligence where appropriate.

HRS § 663-31 (1993). The statute is structured as follows:

subsection (a) of the statute mandates that a plaintiff’s

negligence will not completely bar recovery for that plaintiff,

as long as her negligence was not greater than the defendant’s.

Subsection (b) requires a special verdict form from the jury with

findings of the total amount of damages and the percent of

negligence of each party. Subsection (c) guides the court in

administering the recovery, and subsection (d) permits the court

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to instruct the jury about comparative negligence where

appropriate. The plain language of the statute does not

expressly include or exclude actions involving known or obvious

dangers. Our task then, in order to answer Steigman’s question,

is to effect the legislative intent behind the statute. Hawaii

Government Employees Ass’n, AFSCME Local 152, AFL-CIO v. Lingle,

124 Hawai#i at 202, 239 P.3d at 6 (2010).

This court examined the legislative purpose behind the

comparative negligence statute in a past case. In Wong v.

Hawaiian Scenic Tours, Ltd., the estate and parents of Wesley Wai

Leong Wong brought suit against the City and County of Honolulu

(“the City”) and Hawaiian Scenic Tours after Wesley was fatally

struck by a school bus. 64 Haw. 401, 402, 642 P.2d 930, 931

(1982). At trial, the jury determined that Hawaiian Scenic Tours

was eighty percent at fault, the City was six percent at fault,

and Wesley was fourteen percent at fault. Id. at 403, 642 P.2d

at 931. The City appealed, arguing that Wesley could not recover

any damages from the City because the jury found it to be less at

fault than Wesley. Id. The supreme court noted that in the time

between the accident and the appeal, the Legislature had modified

the statute to explicitly permit a plaintiff to recover against

joint tortfeasors if their combined negligence was greater than

the plaintiff’s. Id. at 402 n.1, 642 P.2d at 931 n.1. However,

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the version of the statute that was in place at the time of the

accident contained no such provision; therefore the court

investigated the legislative intent behind the statute in order

to resolve the City’s appeal. Id. As this court wrote:
[t]he legislative modification of the doctrine of
contributory negligence in 1969 sought to temper a phase of
the common law deemed inconsistent with contemporary notions
of fairness. Its purpose was to allow one partly at fault
in an accident resulting in injury to be recompensed for the
damages attributable to the fault of another if the former’s
negligence was not the primary cause of the accident.

Id. at 405, 642 P.2d at 933. Informing this interpretation is a

committee report which stated that allowing a plaintiff’s

contributory negligence to completely bar her recovery “seems to

be unfair and in opposition to the average person’s concept of

justice.” Id. at 404 n.2, 642 P.2d at 932 n.2. The supreme

court held that the City remained liable even though the jury

found that the plaintiff was more at fault than the City, because

the point of the statute was to allow a plaintiff’s recovery as

long as the plaintiff was not the primary cause of the accident.

Id. at 406, 642 P.2d at 933.

Applying this legislative intent to the known or

obvious danger defense is straightforward. Under the known or

obvious danger defense, a plaintiff cannot recover if the

plaintiff is injured due to a known or obvious danger. Friedrich

v. Department of Transp., 60 Haw. 32, 36, 586 P.2d 1037, 1040

(1978) (superseded, in non-relevant part, by statute). This

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defense operates as a complete bar; a plaintiff may not recover

even if she was extremely cautious in confronting the danger, and

a defendant may not be held liable even if he knew the danger had

a high likelihood to lead to injury but did nothing to correct

it. Id. at 36 n.1, 586 P.2d at 1040 n.1 (citing 2 Harper and

James, Torts, s 27.13 (1956)).

The known or obvious danger defense is “in opposition to

the average person’s concept of justice” because it mandates that

a plaintiff must go uncompensated for her injuries, even if she

acted with precaution and the defendant did not. The defense is

incompatible with the state’s comparative negligence statute

because it denies a plaintiff the opportunity to have her fault

compared with the fault of the defendant. As such, the known or

obvious danger defense conflicts with the intent of the

Legislature that the courts apply comparative negligence in the

place of “unfair” common law doctrines.

B. The Known Or Obvious Danger Defense Yields Inconsistent
Results

There are few reported cases applying the known or

obvious danger defense in this jurisdiction, however, among those

cases, the difficulty in applying the defense is apparent. For

example, in Friedrich this court affirmed the award of summary

judgment to the state under the known or obvious danger defense.

Friedrich, 60 Haw. at 32, 586 P.2d at 1038. The plaintiff in

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that case was walking down a state-owned pier in Hanalei Bay on

Kaua#i when he slipped and fell over the edge, severely injuring

himself. Id. at 34, 586 P.2d at 1039. As described in this

court’s opinion, the pier was at least 26 feet wide. Id. at 32,

586 P.2d at 1038. This court held that the danger of falling

over the edge was known to the plaintiff, and therefore summary

judgment in favor of the state was proper. Id. at 37, 586 P.2d

at 1041.

In Friedrich, the court distinguished that factual

scenario from a previous case, Levy v. Kimball. Levy involved a

state-controlled seawall that was partially degraded and was

anywhere from thirteen inches to two feet wide. 50 Haw. 497,

498, 443 P.2d at 142, 144 (1968). A tourist walked along the

seawall and the heel of her shoe got stuck in a “bad spot.” Id.

at 498, 443 P.2d at 143. She fell off the side of the seawall

onto rocks eight feet below, sustaining injury. Id. In that

case, this court reversed the trial court’s judgment for the

state, holding that the state was liable for the plaintiff’s

injury. Id. at 500, 443 P.2d at 145. There was no argument

based on the known or obvious characteristics of the seawall,

even though there is reference to a “bad spot” that may have been

conspicuous, and even though the very act of walking along a

degraded, two-foot wide seawall could be described as obviously

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dangerous.

Friedrich distinguished Levy, and instead of solely

focusing on whether the danger was known or obvious, the court

included in the analysis the question of whether the plaintiff

could have avoided injury. Friedrich, 60 Haw. at 37, 586 P.2d at

1041. The court found no liability for the state in Friedrich

because the plaintiff chose a route that placed him close to the

pier’s edge. Id. This result is the opposite of the holding in

Levy but, according to the court, that was warranted because

there was no proof that the plaintiff in Levy had a choice of a

different route. Id. at 37, 586 P.2d at 1041. The end result is

incongruous: the danger of walking on a 26-foot wide pier falls

under the known or obvious defense, even though the danger of

crossing a degraded two-foot seawall did not.

Another case involving a known or obvious danger, Bidar

v. Amfac, 66 Haw. 547, 669 P.2d 154 (1983), is quite similar to

the case at bar and illustrates the difficulty in knowing whether

the known or obvious danger test applies. In Bidar, the

plaintiff, an elderly tourist, was a guest of a hotel on Maui.

Id. at 549, 669 P.2d at 157. She used the toilet in the hotel

bathroom, and then tried to use the towel bar mounted on an

adjacent wall to help pull herself up. Id. The towel bar tore

loose from the wall, and plaintiff fell down to the ground,

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fracturing her hip and wrist. Id. Plaintiff filed suit and the

hotel moved for summary judgment, arguing that it had no duty to

provide a towel rack capable of supporting the guest’s weight.

Id. at 549-50, 669 P.2d at 157. The trial court agreed and

granted summary judgment. Id. at 551, 669 P.2d at 158. On

appeal this court reversed, holding that liability turned on the

foreseeability of injury, an issue unsuitable for summary

adjudication. Id. at 554, 669 P.2d at 160. In his dissent,

Judge Spencer, assigned by reason of vacancy, wrote that he would

affirm the grant of summary judgment because the towel bar is a

known or obvious danger when used to support the weight of a

person. Id. at 560, 669 P.2d at 163.

Bidar, Friedrich, and Levy show that the application of

the known or obvious danger defense has been inconsistent here in

Hawai#i. They also illustrate a large obstacle in applying the

defense: it can be difficult to even define the danger that led

to the injury and to determine whether the known or obvious

danger defense should even apply. In Friedrich, the pier was

deemed a known or obvious danger not because of any

characteristic of the pier itself, but rather because of the way

the plaintiff chose to walk on it. Friedrich, 60 Haw. at 35-36,

586 P.2d at 1040. The court distinguished the disintegrating,

narrow ledge of the Levy case because there the plaintiff did not

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have another available route. Id. at 37, 586 P.2d at 1041. In

Bidar, one Judge dissented because he believed the known or

obvious danger defense should have controlled the outcome of the

case. Bidar, 66 Haw. at 560, 669 P.2d at 163.

Defining the danger in the case at bar presents a

similar challenge. Outrigger seemed to define the danger as a

wet lanai, which most people would recognize as being potentially

dangerous, and argued that it is not liable for any injury

suffered by Steigman when she chose to encounter that known or

obvious danger. Plaintiff defined the dangerous condition as the

surface of the lanai. She offered evidence that the lanai’s

surface did not have the level of slip resistance established by

hotel industry standards, and that it was finished with a glossy

coating that made it difficult to tell if the surface was wet.

Plaintiff argued that a slippery lanai surface was not a known or

obvious condition, because an average person could not determine

how dangerous it would be to walk on the lanai. The trial court

disagreed with Steigman’s argument. The court stated that

Outrigger was entitled to the known or obvious danger defense

because of “the fact that it was raining, and the plaintiff knew

it was raining.”

Defining the known or obvious danger as a wet balcony

leads to an antithetical result. When it rains, exterior

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surfaces may become wet, and industry standards requiring non-

slip surfaces are established to provide a safe environment even

when wet. Allowing landowners to escape liability for injuries

caused when guests slip on an untreated surface because the

surface was wet—despite the fact that the standards exist to

protect people, should the surfaces become wet—is

counterproductive. This would provide no incentive for

landowners to maintain premises in compliance with safety

standards even when the dangers of non-compliance are readily

foreseeable. Also, plaintiffs would be unable to recover when

injured while premises were in their most dangerous state, even

when they could not possibly have known that the surfaces do not

comply with ordinary safety standards.

As past cases and the case at bar illustrate, the known

or obvious danger defense presents many difficulties to the

courts. We note also that courts of our sister states have

similarly struggled, and therefore the defense has come under

significant criticism. See Woodard v. ERP Operating Ltd. P’ship,

351 F.Supp.2d 708, 713 (E.D. Mich. 2005) (“The ‘open and obvious’

doctrine is one of the most litigated areas of Michigan premises

liability law. Despite the fact that Michigan courts have

decided hundreds of cases involving the doctrine, inconsistent

applications of the doctrine have resulted in a confusing

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jurisprudence.”) (footnote omitted); Rogers v. Spirit Cruises,

Inc., 760 N.Y.S.2d 280, 282 (App. Term 2003) (characterizing the

rule as “ancient” and “oft-criticized”); Groleau v. Bjornson Oil

Co., Inc., 676 N.W.2d 763, 773 (N.D. 2004) (Maring, J.,

dissenting in part and concurring in part) (“Therefore, the

common law ‘no duty’ rule or ‘open and obvious’ doctrine has

endured much criticism from both courts and commentators.”);

O’Donnell v. City of Casper, 696 P.2d 1278, 1282 (Wyo. 1985)

(“This court has not been consistent in its application of the

obvious danger rule since comparative negligence.”). We

acknowledge the difficulties our courts and the courts of other

jurisdictions have experienced in applying the known or obvious

defense, and we believe it would be prudent to prevent Hawai#i

courts from further embedding this problematic doctrine into our

case law.

C. The Known Or Obvious Danger Defense Is Incompatible with
Public Policy

The Mississippi Supreme Court’s analysis of the known

or obvious danger and tort policy is instructive. As that court

explained:
This Court should discourage unreasonably dangerous
conditions rather than fostering them in their obvious
forms. It is anomalous to find that a defendant has a duty
to provide reasonably safe premises and at the same time
deny a plaintiff recovery from a breach of that same duty.
The party in the best position to eliminate a dangerous
condition should be burdened with that responsibility. If a
dangerous condition is obvious to the plaintiff, then surely

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it is obvious to the defendant as well. The defendant,
accordingly, should alleviate the danger.

Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). The

Kentucky Supreme Court recently agreed with Mississippi’s

analysis. They cited Mississippi’s reasoning for support that

abolishing the known or obvious danger defense in favor of

comparative negligence “makes good policy sense.” Kentucky River

Medical Center v. McIntosh, 319 S.W.3d 385, 391-92 (Ky. 2010).

This is because a landowner’s duty “is predicated upon [his]

superior knowledge concerning the dangers of his property,” which

places the landowner in a better position to anticipate and take

action to prevent injury. Id. at 392 (quoting Janis v. Nash

Finch Co., 780 N.W.2d 497, 502 (S.D. 2010)).

Approaching torts from a policy perspective is germane

to Hawai#i jurisprudence; as this court has written, “tort law is

primarily designed to vindicate social policy.” Francis v. Lee

Enterprises, Inc., 89 Hawai#i 234, 239, 971 P.2d 707, 712 (1999)

(citing W. Page Keeton, et al., Prosser and Keeton on the Law of

Torts § 1, at 5-6 (5th ed. 1984)) (emphasis omitted). One social

policy enacted through the tort system is compensating injured

plaintiffs. Fonseca v. Pacific Const. Co., 54 Haw. 578, 584, 513

P.2d 156, 160 (1973) (“a basic premise of tort law is to give

adequate protection to persons injured through the unreasonable

conduct of others. . . .”). When enacted as a complete bar, the

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known or obvious defense precludes an injured plaintiff from

recovering from even an unreasonable landowner, and opposes this

important social policy. Second, tort law seeks to prevent

injury where possible by providing incentive to deter negligent

acts. See Smith v. Cutter Biological, Inc., 72 Hawai#i 416, 435,

823 P.2d 717, 727 (1991). Allowing a landowner to escape

liability as a matter of law, even when he has not reasonably

maintained his premises, provides no such incentive. We

therefore conclude that considerations of public policy counsel

against permitting the continuation of the known or obvious

defense.

D. In Abolishing The Known Or Obvious Danger Defense, Hawai#i
Joins The Majority Of States That Have Considered The
Question

Hawai#i is not the first jurisdiction to abolish the

known or obvious danger defense. Of the states that have

directly considered the question of how the advent of comparative

negligence modified the known or obvious defense, the majority

held that the known or obvious character of a danger does not

automatically absolve a landowner of liability.3 The analysis

typically follows one of two tacks.

3
A minority of states to consider the issue have retained the known
or obvious danger defense as a complete bar to recovery. See O’Sullivan v.
Shaw, 726 N.E.2d 951, 956-57 (Mass. 2000); Harrington v. Syufy Enterprises,
931 P.2d 1378, 1380 (Nev. 1997); Armstrong v. Best Buy Co., Inc., 788 N.E.2d
1088, 1089 (Ohio 2003).

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The courts that have found the defense incompatible

with comparative negligence have analyzed the known or obvious

characteristic of the danger either as a component of the

landowner’s duty, or as a factor to consider when weighing each

party’s negligence. The former states, following either their

own statutes or the Restatement (Second) of Torts, held that the

known or obvious defense is not a complete bar to recovery

because the known or obvious characteristic of the danger may not

always defeat a landowner’s duty. These states include

Illinois4, Kentucky5, Michigan6, Missouri7, New Mexico8, Utah9, and

Tennessee10. The latter states held that factfinders should

consider the known or obvious quality of a danger as a component

of comparative fault, and entirely abolished the defense. These

4
Ward v. K Mart Corp., 554 N.E.2d 223, 228 (Ill. 1990).

5
Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 390
(Ky. 2010).

6
Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384, 389 (Mich. 2001).

7
Harris v. Niehaus, 856 S.W.2d 222, 226 (Mo. 1993).

8
Klopp v. Wackenhut Corp., 824 P.2d 293, 295 (N.M. 1992).

9
Hale v. Beckstead, 116 P.3d 263, 267 (Utah 2005).

10
Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998)
(overruled on other grounds).

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states include Idaho11, Mississippi12, Oregon13, Texas14, and

Wyoming15.

1. States Analyzing The Known Or Obvious Danger Defense As
An Aspect Of Duty

Some states that have struck the known or obvious

danger defense as a complete bar to liability have held that such

a bar is incompatible with landowner duty. These states

typically adopt the analysis of the Restatement (Second) of

Torts, which provides:
(1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition on
the land whose danger is known or obvious to them, unless
the possessor should anticipate the harm despite such
knowledge or obviousness.

(2) In determining whether the possessor should anticipate
harm from a known or obvious danger, the fact that the
invitee is entitled to make use of public land, or of the
facilities of a public utility, is a factor of importance
indicating that the harm should be anticipated.

Restatement (Second) of Torts § 343A (1965). Under this

framework, the fact that a danger is known or obvious does not

eliminate liability as a matter of law. Instead, a landowner has

a duty, and comparative negligence principles apply, when the

landowner should anticipate harm from a known or obvious danger

11
Harrison v. Taylor, 768 P.2d 1321, 1326 (Idaho 1989).

12
Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994).

13
Woolston v. Wells, 687 P.2d 144, 149-50 (Or. 1984).

14
Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex. 1978).

15
O’Donnell v. City of Casper, 696 P.2d 1278, 1284 (Wyo. 1985).

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on his land.

The case of Ward v. K Mart Corp., 554 N.E.2d 223 (Ill.

1990), provides illustration. In Ward, the plaintiff was exiting

a K Mart department store carrying a large item he had just

purchased when he walked into a concrete post located directly

outside the store’s exit. Id. at 224. The case went to trial,

and a jury delivered a verdict in favor of the plaintiff, but

reduced the damages 20% to account for the plaintiff’s

comparative negligence. Id. at 226. However, the circuit court

judge entered a judgment for the defendant notwithstanding the

jury’s verdict, finding that the store owed the plaintiff no duty

because the post was open and obvious. Id. at 224. A fractured

appellate court affirmed, and the plaintiff appealed to the

Supreme Court of Illinois. Id. The supreme court reinstated the

jury’s verdict, and held that the open and obvious character of

the danger did not automatically negate the store’s duty to the

plaintiff. Id. Instead of an inflexible rule that denied

recovery to all injured plaintiffs, the court held that a more

nuanced analysis of the circumstances of injury is necessary, in

order to determine whether K Mart could have anticipated that the

pole would cause plaintiff’s injury. Id. In this case, the

court believed it was foreseeable that a customer may be injured

by the concrete post, so the store had a duty to prevent such

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injury. Id.

The court’s analysis turned on the notion that the

ability of a plaintiff to recognize a danger depends heavily on

the circumstances in which the plaintiff confronts that danger.

As the court noted:
there is perhaps no condition the danger of which is so
obvious that all customers under all circumstances would
necessarily see and realize the danger in the absence of
contributory negligence, and this is particularly true if
the further principle so often repeated is accepted that the
customer or business invitee is entitled to assume that the
premises are reasonably safe for his use.

Id. at 230 (quoting W. Page Keeton, Personal Injuries Resulting

from Open and Obvious Conditions, 100 U.Pa.L.Rev. 629, 642

(1952)). Thus, the fact that a condition is known or obvious is

not an absolute bar to recovery, and instead courts of that

jurisdiction must engage a more thorough analysis. Id. at 299.

(“Whether in fact the condition itself served as adequate notice

of its presence or whether additional precautions were required

to satisfy the defendant’s duty are questions properly left to

the trier of fact. The trier of fact may also consider whether

the plaintiff was in fact guilty of negligence contributing in

whole or in part to his injury, and adjust the verdict

accordingly.”)

Other jurisdictions share the Illinois Supreme Court’s

view that the known or obvious defense may not be a complete bar

to a plaintiff’s claim, but rather that a landowner has a duty to

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protect against, and may be held liable for, foreseeable injuries

due to a known or obvious danger. Kentucky River Medical Center

v. McIntosh, 319 S.W.3d 385, 390 (Ky. 2010) (“By concluding that

a danger was open and obvious, we can conclude that the invitee

was negligent for falling victim to it, unless for some reason

‘to a reasonable man in his position the advantages of

[encountering the danger] would outweigh the apparent risk.’ But

this does not necessarily mean that the land possessor was not

also negligent for failing to fix an unreasonable danger in the

first place. Under our rule of comparative fault, the defendant

should be held responsible for his own negligence, if any.”)

(citation omitted); Coln v. City of Savannah, 966 S.W.2d 34, 36

(Tenn. 1998) (overruled on other grounds) (“As in any negligence

action, we think a risk is unreasonable and gives rise to a duty

to act with due care if the foreseeable probability and gravity

of harm posed by a defendant’s conduct outweigh the burden upon

the defendant to engage in alternative conduct that would prevent

the harm. Applying this analysis, if the foreseeability and

gravity of harm posed by the defendant’s conduct, even if ‘open

and obvious,’ outweigh the burden upon the defendant to engage in

alternative conduct, the defendant has a duty to act with

reasonable care and the comparative fault principles apply. . .

.”) (citations omitted); Hale v. Beckstead, 116 P.3d 263, 269

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(Utah 2005) (“The open and obvious danger rule in particular

simply defines the reasonable care that possessors of land must

show toward invitees. Under that definition, a possessor of land

must protect invitees against dangers of which they are unaware,

may forget, or may reasonably encounter despite the obviousness

of the danger.”)

To summarize, in states following the Restatement, the

fact that a plaintiff was injured due to a known or obvious

danger does not automatically bar the plaintiff’s claim; in those

states, a landowner retains a duty to the plaintiff if the

plaintiff’s injury was foreseeable.

2. States Analyzing The Known Or Obvious Danger Defense As
An Element Of Comparative Fault

Other jurisdictions have abolished the known or obvious

danger defense entirely due to its incompatibility with

comparative negligence. The case considered by the Supreme Court

of Wyoming, one of the first to abolish the doctrine, provides an

apt illustration. In O’Donnell v. City of Casper, 696 P.2d 1278

(Wyo. 1985), that court considered the case of a motorcyclist who

sustained injuries when his motorcycle slipped on loose gravel on

one of the City’s streets. Id. at 1280. The trial court found

that the gravel was open and obvious, and granted the City’s

motion for summary judgment on the ground that the City owed no

duty to warn of an obvious danger. Id. at 1281. On appeal, the

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Supreme Court of Wyoming held that this was error, and reasoned

that:
[t]he City may have been negligent by not properly
maintaining the streets, and the negligence of the City, if
any, should be compared with the negligence of appellant.
Because appellant knew of the obviously dangerous condition
of the road he may very well have been negligent, but that
is for the trier of fact to determine, and the relative
degree of negligence is all important under comparative
negligence. Gone are the days when a scintilla of negligence
by the plaintiff will bar recovery.

Id. at 1283-84. Courts of other jurisdictions have agreed that

the defense is irreconcilable with comparative negligence.

Woolston v. Wells, 687 P.2d 144, 149 (Or. 1984) (“Instructing the

jury that defendant has no liability because of actions of the

plaintiff, or that defendant is liable only if a reasonable

person entering the land would not realize a danger or would not

protect himself against it, frustrates the purpose of instituting

a system of comparative fault.”); Parker v. Highland Park, Inc.,

565 S.W.2d 512, 518 (Tex. 1978) (“[Comparative Negligence]

replaced the harsh system of absolute victory or total defeat of

an action by such doctrines as contributory negligence, voluntary

assumption of risk, and also the included doctrine known as

no-duty. [. . .] The survival of no-duty (plaintiff’s knowledge

and appreciation) as a total bar is incompatible with the

legislative purpose of the comparative negligence statute.”).

In states where the known or obvious danger defense has

been abolished, the jury considers the known or obvious character

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of the danger as one of the many factors relevant to determining

each party’s comparative negligence. Joseph v. City of New

Orleans, 842 So. 2d 420, 423 (La. Ct. App. 2003) (“Simply stated,

the open and obvious nature of the defect is merely another

factor to be weighed in the risk-utility balance.”); Parker v.

Highland Park, Inc., 565 S.W.2d 512, 517 (Tex. 1978) (“The

reasonableness of an actor’s conduct under the circumstances will

be determined under principles of contributory negligence.”);

Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994) (“We now

abolish the so-called ‘open and obvious’ defense and apply our

true comparative negligence doctrine. The jury found that there

was negligence in the case at hand; the trial judge erred in

construing the open and obvious defense as a complete bar when it

really is only a mitigation of damages on a comparative

negligence basis under [the state’s comparative negligence

statute].”).

In summary, in states where the known or obvious

defense has been completely abolished, the jury need not make a

finding regarding whether the danger was known or obvious because

such a determination does not operate as an absolute bar to a

plaintiff’s recovery. Instead, a jury may consider all the facts

and circumstances of the injury, and apportion liability by

comparing the fault of the landowner and the injured plaintiff.

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E. The Known Or Obvious Defense Is No Longer Viable In Premises
Liability Actions

We now hold that the known or obvious defense is not

viable in Hawai#i, thus joining the states described in Section

III.D.2, supra. In so holding, we reject the Restatement view

followed by the states as described in Section III.D.1, supra.

As explained above, the Restatement view permits a plaintiff to

recover for an injury caused by a known or obvious danger only

when her injury was foreseeable. We believe that such a position

does not execute the legislative intent behind our state’s

comparative negligence statute. We further believe that the rule

is inconsistent with the case law of this state because it

requires the trial judge to usurp duties which should be reserved

for the factfinder.

First, as discussed above, Hawaii’s Comparative

Negligence statute “sought to temper a phase of the common law

deemed inconsistent with contemporary notions of fairness.”

Wong v. Hawaiian Scenic Tours, Ltd., 64 Haw. at 405, 642 P.2d at

933. The legislative purpose of the statute was “to allow one

partly at fault in an accident resulting in injury to be

recompensed for the damages attributable to the fault of another

if the former’s negligence was not the primary cause of the

accident.” Id. Applying the absolute logic of the Restatement

precludes an injured plaintiff from recovery based on the Judge’s

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conclusions that a danger was known or obvious and that injury

was not foreseeable. This would not afford an opportunity for

the plaintiff’s fault to be compared to the fault of the

landowner. In precluding such comparison, the Restatement would

not permit the plaintiff “to be recompensed for the damages

attributable to the fault of another if the former’s negligence

was not the primary cause of the accident.”

Second, in rejecting the Restatement view, we join the

states that have abolished the known or obvious danger defense in

part to affirm the proper role of the jury as factfinder. Those

states noted that the determination of whether the known or

obvious danger defense applied had been an element of duty

analysis, and therefore had fallen to the judge. Many states

expressed concern that a judge would decide such a fact-intensive

issue. For example, in Harrison v. Taylor, 768 P.2d 1321 (Idaho

1989), the Idaho Supreme Court considered a slip-and-fall case in

which plaintiff was injured due to a fault in a sidewalk in front

of a store. Id. at 1322. The trial court judge found the

sidewalk’s condition to be open and obvious, and granted the

store’s motion for summary judgment. Id. at 1323. The supreme

court felt it was inappropriate for such a critical question of

fact to be decided by a judge without involvement of a jury. Id.

at 1328. The court explained:

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[t]his discussion points up the major flaw with granting
defendants’ summary judgment motion based on the open and
obvious danger doctrine-a judge not a jury, is thereby
ruling on quintessential issues of fact such as whether the
injured party knew, or should have known of the danger, the
obviousness of the danger, whether there was a justifiable
reason for confronting the danger, and so on. However,
today’s opinion will correct this problem area in our law.

Id. Other jurisdictions have expressed similar concerns. Cox v.

J.C. Penney Co., Inc., 741 S.W.2d 28, 30 (Mo. 1987) (“Under

comparative fault, we leave to juries the responsibility to

assess the relative fault of the parties in tort actions.

Respondent’s duty argument fails in this context because it

pretermits jury assessment of respondent’s fault for failure to

maintain the premises in a reasonably safe condition.”)

We share these concerns. In Hawai#i, the existence of

a duty is a question of law. Bidar v. Amfac, Inc., 66 Haw. 547,

552, 669 P.2d 154, 158 (1983). Accordingly, if this court were

to retain the known or obvious danger defense as defeating a

landowner’s duty, it would fall to the judge to decide whether

the defense applies. That result is undesirable. As our review

of the known or obvious cases shows, the characterization of the

danger as known or obvious is fact-intensive and depends on the

circumstances involved in each case. We believe such an

assessment should be reserved for the jury, unless reasonable

minds could not differ. See id. at 554, 669 P.2d at 160 (noting

that the question of breach must be resolved by a jury if the

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court is left with “a definite impression that reasonable minds

could draw different inferences from the facts and arrive at

conflicting conclusions on relevant factual issues.”)

IV. CONCLUSION

We hold that the known or obvious danger defense is

inconsistent with the legislative intent behind Hawaii’s

comparative negligence statute. The known or obvious danger

defense yields inconsistent results and is incompatible with the

policy values underlying Hawaii’s tort law. Accordingly, we hold

that the known or obvious danger defense is no longer viable in

Hawai#i. We reject the Restatement’s retention of the doctrine

as a factor in determining the landowner’s duty, and instead hold

that courts of this state may consider any known or obvious

characteristics of the danger as factors in the larger

comparative negligence analysis. The Intermediate Court of

Appeals’ December 16, 2010 judgment on appeal and the Circuit

Court of the First Circuit’s March 6, 2007 judgment are vacated.

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This case is remanded to the trial court for proceedings

consistent with this opinion.

Janice P. Kim /s/ Mark E. Recktenwald
for Petitioner-
Plaintiff-Appellant /s/ Paula A. Nakayama

Dennis E. W. O’Connor and /s/ James E. Duffy, Jr.
Michael J. McGuigan of
O’Connor Playdon & Guben, /s/ Michael D. Wilson
LLP for Respondent-
Defendant-Appellee

Arthur Y. Park and
John C. McLaren for
Amicus Curiae Hawai#i
Association for Justice

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