F()R PUBLICATI()N lN WEST‘S HAWAI‘I REPORTS AND PACIFIC REP()RTER
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAFI
-~~oOo---
TOE SCHWENKE, as Guardian of the Property of and
NeXt Friend of SOGI SCHWENKE, an Incapacitated Person;
and FAAVAE SCHWENKE and PALOLO SCHWENKE, Minor
Children of SOGI SCHWENKE, an Incapacitated Person,
Plaintiffs~Appellants,
v.
OUTRIGGER HOTELS HAWAII, LLP dba OHANA MAILE
SKY COURT; and WACKENHUT SERVICES, INC.,
Defendants~Appellees,
and
JOHN DOES 1-lO; JANE DOES l-lO; DOE PARTNERSHIPS 1-l0;
DOE CORPORATIONS l~lO; DOE ENTITIES 1-lO; DOE GOVERNMENTAL
ENTITIES 1-lO, and DOE UNINCORPORATED ASSOCIATIONS 1-l0,
Defendants
NO. 283l9
APPEAL FRoM THE c:RcUiT CoURT oF THE FIRsT ciRCUIT
(CIv:L No. 04-1-0670>
MARCH l8, 2010
NAKAMURA, C.J., FOLEY and FUJISE, JJ.
OPINION OF THE COURT BY FOLEY, J.
Plaintiffs-Appellants Toe SchWenke, as Guardian of the
Property of and Next Friend of Sogi SchWenke (Sogi), an
Incapacitated Person; and Faavae Schwenke and Palolo Schwenke,
Minor Children of Sogi, (collectively, Appellants) appeal from
the Judgment entered on December l2, 2006 in the Circuit Court of
After motions for summary
the First Circuit] (circuit court).
judgment were filed by Defendants~Appellees Outrigger Hotels
1 The Honorable Karen S.S. Ahn presided.
F`()R PUBLICATION IN WEST’S HAWAI‘I REP()RTS ANI) PACIFIC REPORTER
Hawaii, LLP dba Ohana Maile Sky Court (Outrigger) and Wackenhut
Services, Inc. (Wackenhut) and granted by the circuit court, the
court entered judgment on all claims set forth in Appellants'
First Amended Complaint in favor of Outrigger and wackenhut and
against Appellants.
On appeal, Appellants contend the circuit court erred
in concluding that neither Wackenhut nor Outrigger had a duty to
protect Sogi from the acts of Cameron Tuupoina (Tuupoina).
Appellants argue that (l) the foreseeability of harm creates a
duty; (2) the possessors of land owe a duty to the public using
an adjacent highway; (3) the landowner assumes a responsibility
for the conduct of a person it allows to enter and use its
property; and (4) public policy supports the imposition of such a
duty. We disagree.
I.
As a result of Tuupoina's jumping from the roof of the
Ohana Maile Sky Court hotel and landing on the roof of Sogi's
vehicle, causing severe injuries to Sogi, Appellants filed a
complaint on April 12, 2004 against Outrigger3 and Wackenhut,3
alleging negligence, failure to warn or guard against a
foreseeable risk of harm, and a breach of a duty of care to Sogi.
On November 4, 2005, Appellants filed the First Amended
Complaint, correcting the date of the accident.
On December 23, 2005, Wackenhut filed a Motion for
Summary Judgment (Wackenhut MSJ). Outrigger filed its Motion for
Summary Judgment (Outrigger MSJ) on December 28, 2005.
Appellants opposed both motions.
The Outrigger MSJ stated the events resulting in
injuries to Sogi as follows:
2 In Outrigger‘s November 22, 2005 answer to the First Amended
Complaint, Outrigger identifies itself as "Outrigger Sky Court Limited
Partnership, dba Ohana Maile Sky Court Hotel." Outrigger admitted that it
managed and operated the Ohana Maile Sky Court.
Wackenhut provided security for Outrigger Hotels.
2
F()R PUBLICATI()N IN \VEST'S HAWAI‘I REP()RTS ANI) PACIFIC REPORTER
On February 4, 2003, at approximately 3:00 p.m.,
[Tuuponial, age 22, entered the Ohana Maile Sky Court at
2058 Kuhio Avenue, Honolulu, Hawaii and went to the 44th
floor of the hotel. [Tuuponia] was not a registered guest
of the hotel. Upon arrival on the 44th floor, [Tuuponia]
entered a stairwell leading to the roof access door. Having
found that the door was locked and secured, [Tuuponia]
managed to grab onto an overhead electrical conduit and
traverse the length of the stairwell to a ventilation grate
which he was able to forcefully remove. From there,
[Tuuponia] moved to the roof parapet from which he threw
himself out over Kuhio Avenue. At that moment, [Sogi] was
stopped in traffic on Kuhio Avenue in the Makai“]Diamond
Head bound lanes when Tuuponia landed on the roof of her
vehicle killing himself and causing serious injury to
[Sogil.
Appellants did not contest Outrigger's description of these
events, which are supported by the evidence. Appellants admitted
that Sogi was not a guest of the Outrigger Ohana Maile Sky Court
Hotel on February 4, 2003 and have not challenged the circuit
court's conclusion that Tuupoina intentionally jumped from the
roof.
On November 29, 2006, the circuit court filed its order
granting the Outrigger MSJ. On December 5, 2006, the circuit
court filed its order granting the Wackenhut MSJ. The circuit
court filed the Judgment on December 12, 2006, and Appellants
timely appealed.
II.
On appeal, the circuit court's decision on a motion for
summary judgment is reviewed de novo. Alvarez Familv Trust v.
AOAO of Kaanapali Alii, 121 HawaFi 474, 481, 221 P.3d 452, 459
(2009).
III.
The circuit court was correct in holding that based on
the undisputed evidence, Appellants failed to carry their burden
of proving the existence of a duty that is an essential element
of a cause of action based on negligence. The undisputed
The Hawaiian word "makai" translates as "toward the sea, in the
direction of the sea." Mary Kawena Pukui & Samuel H. Elbert, Hawaiian
Dictionary 114 (1986). As used in the above conteXt, it would mean the
roadway lane closest to the ocean.
F()R PLFIZI,.ICA'I`I()N IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
evidence was that Tuupoina jumped from the roof. The circuit
court correctly concluded that absent a special relationship
between Sogi and Outrigger or Wackenhut, Outrigger and Wackenhut
did not have a duty to protect Sogi from the acts of a third
party and absent a special relationship between Tuupoina and
Outrigger or Wackenhut, neither Outrigger nor wackenhut had a
duty to prevent Tuupoina from committing suicide.
The first issue for the circuit court to resolve was
whether the facts of this case implicated a duty on the part of
Outrigger or Wackenhut. "A prerequisite to any negligence action
is the existence of a duty owed by the defendant to the
plaintiff. See Knodle v. Waikiki Gatewav Hotel, Inc., 69 Haw.
376, 385, 742 P.2d 377, 383 (1987)." Cuba v. Fernandez, 71 Haw.
627, 631, 801 P.2d 1208, 1211 (1990). Appellants argue it was
foreseeable that a person would jump from the roof of the hotel
and, therefore, Outrigger and Wackenhut had a duty to protect
Sogi from Tuupoina’s suicide. However, foreseeability alone is
not dispositive of a duty‘s existence. The relationship between
the parties is also a necessary consideration. Lee v.
Corregedore, 83 HawaFi 154, 167, 925 P.2d 324, 337 (1996).
For Outrigger and/or Wackenhut to have had a duty to
protect Sogi from the acts of Tuupoina, there must have been a
special relationship between Outrigger or Wackenhut and Tuupoina
or Sogi.
With respect to a duty to control the conduct of others,
Hawaii law follows the Restatement (5econd) of Torts § 315
(1965), which provides:
There is no duty so to control the conduct of a
third person as to prevent him from causing physical
harm to another unless
(a) a special relation exists between the actor
and the third person which imposes a duty upon the
actor to control the third person's conduct, or
(b) a special relation exists between the actor
and the other which gives to the other a right to
protection.
F()R PUIZLICATI()N IN WEST‘S HAWAI‘I REP()RTS AND PACIFIC REPORTER
see WolSk v. State, 68 HaW. 299, 30l, 7ll P.2d l300, 1302
(1986). The "special relations" referred to in § 315 are
defined in Restatement (Second) of Torts § 314A (1965) to
include the following four situations:
(1) A common carrier is under a duty to its
passengers to take reasonable action
(a) to protect them against
unreasonable risk of physical harm, and
(b) to give them first aid after it knows
or has reason to know that they are ill or
injured, and to care for them until they can be
cared for by others.
(2) An innkeeper is under a similar duty to his
guests.
(3) A possessor of land who holds it open to the
public is under a similar duty to members of the
public who enter in response to his invitation.
(4) One who is required by law to take or who
voluntarily takes the custody of another under
circumstances such as to deprive the other of his
normal opportunities for protection is under a similar
duty to the other.
See also Wolsk, 68 Haw. at 302, 711 P.2d at 1302.
Cuba, 71 Haw. at 631~32, 801 P.2d at 1211. The requirement of a
special relation is particularly important in the context of a
suicide.
Generally, an actor will not be held liable for the suicide
of another "because suicide constitutes an independent
intervening act so extraordinary as not to have been
reasonably foreseeable by the original tortfeasor." McPeake
v. William T. Cannon, Esguire, P.C., 381 Pa. Super. 227, 553
A.2d 439, 441 (1989) (citations omitted).
Lee, 33 Hawai‘i at 160, 925 P.zd at 330.
ln a case where the defendant was alleged to have
breached a duty to prevent a person from committing suicide, the
HawaFi Supreme Court held that the defendant must have actual
custody of the suicidal person in order to be charged with a duty
of prevention: "Accordingly, we have followed the Restatement
(Second) of Torts § 314A(4) and recognized a reasonable duty of
care to prevent suicide only on the part of a defendant who had
actual custody of a suicidal person. Figueroa v. State, 61 Haw.
369, 376~80, 604 P.2d ll98, l202~04 (l979)." L€e, 83 HaWafi at
F()l{ l’l,)‘BLlC/\'I`I()N IN WES'I"S HAWAI‘I R_EPORTS AND PACIFIC REPORTER
161, 925 P.2d at 331. In L§e, the HawaFi Supreme Court
addressed the issue of whether a counselor (Corregedore) owed a
duty to a non-custodial client (Perreira) to prevent the client
from committing suicide. ;d; at 156~158, 925 P.2d at 326-28.
The Hawari Supreme Court held that
Corregedore and the State did not have custody nor control
over Perreira, and thus, they did not share a special
relationship sufficient to impose a duty of care on
Corregedore to prevent Perreira‘s suicide. Furthermore,
there are strong public policy considerations that weigh
against recognizing tort liability for Corregedore's failure
to prevent Perreira's suicide.
ld; at 172, 925 P.2d at 342. As in Lee, the facts in the instant
case do not justify imposing a greater duty to control the
actions of a suicidal person whose suicide harms a third person.
In both cases, it would be unreasonable to require a party to be
responsible for the suicide of another absent a custodial
relationship.
Appellants argue that a landowner's duty of reasonable
care for the safety of persons on an adjoining property is
implicated in this case. See Medeiros v. Honomu Sugar Co., 21
Haw. 155, 159 (Haw. Terr. 1912); Whitesell v. Houlton, 2 Haw.
App. 365, 367, 632 P.2d 1077, 1079 (l981); Whittaker V. HOneqger,
284 111. App. 3d 739, 742-43, 674 N.E.2d 1274, 1276 (1996).
However, Appellants have not cited to any authority extending
this duty of reasonable care to encompass the intervening acts of
a third party as they would have us do in the present case.
Appellants argue that there is a public policy to
support the imposition of liability on Outrigger and Wackenhut.
While policy considerations do play a role in the determination
of the existence of a duty, Pulawa v. GTE Hawaiian Tel, 112
HawaiU.3, 12, 143 P.3d l205, 1214 (2006) (quOting Blair V. Ing,
95 Hawafi 247, 259-260, 21 P.3d 452, 464-465 (2001)), the policy
considerations already have been established by prior case law
regarding the duty of a person to control the conduct of a third
F()R I’UBLJICA'I`I,()N IN VVEST'S HAWAI`] REPORTS AND PACIFIC REPORTER
party for the protection of another. See Lee, 83 HawaFi at 165~
172, 925 P.2d at 335-342; Doe v. Grosvenor Properties (Hawaii)
LtQ;, 73 HaW. l58, l67, 829 P.2d 5l2, 517 (l992).
V.
The Judgment filed on December 12, 2006 in the Circuit
Court of the First Circuit is affirmed.
On the briefs:
John R. Myrda1,
Sue V. Hansen, and ii ` jz7`;zz §
Elise Owens Thorn "
(Clay Chapman Crumpton
1wamura & Pulice) 5/é§;nnc/57 _,»-
for Plaintiffs~Appellants. ` !;? l £iZ;z
Dennis E.W. O'Connor,
Michael J; McGuigan, and
Charles R. Prather
(Reinwald O'Connor & Playdon LLP)
for Defendant»Appellee Outrigger
Hotels Hawaii, LLP dba Ohana 62z@Fg@¢/¢2yé%“% § F'
Maile Sky Court.
Mary L. Lucasse and
Devin L. Choy
(Burke McPheeters Bordner & Estes)
for Defendant-Appellee
The Wackenhut Corporation