IN THE SUPREME COURT OF THE STATE OF HAWAI`I
---oOo---
BETTY J. OZAKI, Individually and as Special Administrator of
the Estate of CYNTHIA J. DENNIS, Deceased, and TERUKO K. DENNIS, Respondents-Appellants, v. ASSOCIATION OF APARTMENT OWNERS OF DISCOVERY BAY; TIMOTHY W. WALKER; PETER MOLI SATARAKA, Petitioners-Appellees, and DOES 1-20; DOE PARTNERSHIPS 1-20; DOE CORPORATIONS 1-20; and DOE GOVERNMENTAL ENTITIES 1-20, Defendants
NO. 19194
MOTION FOR RECONSIDERATION OR CLARIFICATION
(CIV. NO. 91-3551)
MAY 4, 1998
MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.
The plaintiffs-appellants-respondents' motion, filed on April 24, 1998, for reconsideration, or, in the alternative, for clarification of the opinion of the court in the above-captioned matter, filed on April 14, 1998, is hereby granted in part. The opinion of the court, filed on April 14, 1998, is clarified by amendment as follows (boldfaced language is added):
1. Pages 11 and 12 (last paragraph of section III):
HRS § 663-31 provides in relevant part that "if the [proportion of negligence attributable to the person, for whose injury, damage, or death recovery is sought,] is greater than the negligence of the person or . . . the aggregate negligence of such persons against whom recovery is sought, the court will enter judgment for the defendant." Thus, by its plain language, the statute requires that judgment be entered in favor of Discovery Bay, inasmuch as the jury's special verdict apportioned greater fault to Dennis than to Discovery Bay.(1) There is no discernible reason why Discovery Bay should lose the protection of HRS § 663-31 merely because its codefendant committed an intentional tort. The public policy underlying the decision to permit recovery in strict product liability actions subject only to reduction to the extent of the purely comparative degree of a plaintiff's contributory negligence -- i.e., the "desire to create economic incentives for safer products," see Armstrong, 69 Haw. at 182, 738 P.2d at 83 --, as reflected in Hao, Armstrong, and Kaneko, simply has no bearing on the facts of this case. Thus, insofar as HRS § 663-31 governs the plaintiffs' negligence claim against Discovery Bay, the construct of pure comparative negligence is inapplicable thereto.
2. Page 12, "CONCLUSION" (section IV):
IV. CONCLUSION
Based on the foregoing discussion, inasmuch as the jury found Discovery Bay's negligence to be less than that of Dennis, the circuit court correctly granted Discovery Bay's motion for final judgment pursuant to the special verdict. We therefore reverse the ICA's opinion in this respect and affirm the circuit court's judgment and consequent order. In all other respects not inconsistent with this opinion, the ICA's decision is affirmed.
The plaintiffs-appellants-respondents' motion is denied in all other respects.
The clerk of the Court is directed to incorporate the foregoing changes into the original opinion.
David C. Schutter and
Mitchell S. Wong for
respondents-appellants
1. 5 In light of the fact that the circuit court correctly entered final judgment in favor of Discovery Bay and against the plaintiffs pursuant to the jury's special verdict, it follows tautologically that Discovery Bay and Sataraka are not "joint tortfeasors" within the meaning of HRS § 663-11, see supra note 4, because Discovery Bay and Sataraka cannot be "jointly or severally liable" to the plaintiffs for the injuries arising out of Dennis's death. The definition of "joint tortfeasors" set forth in HRS § 663-11 "is based on liability." Saranillio v. Silva, 78 Hawai`i 1, 10, 889 P.2d 685, 694, reconsideration denied, 78 Hawai`i 421, 895 P.2d 172 (1995). In this connection, "[t]he basis of liability is not relevant, nor is the relationship among those liable for the tort. . . . The point is that both [tortfeasors] are (at least) 'severally' liable for the same injury to the plaintiff." Id. (some emphasis and brackets added and some in original) (citations and internal quotation signals omitted). And a tortfeasor, such as Discovery Bay, cannot be jointly and/or severally liable with another unless "[t]he person who has been harmed can sue and recover from both . . . ." Black's Law Dictionary 914 (6th ed. 1990) (emphasis added); see id. at 915 (defining "liable" in relevant part to mean "compellable to make . . . compensation" and "accountable for or chargeable with").
Had the jury, for example, apportioned ninety-two percent of the total fault to the intentional conduct of Sataraka, five percent to the negligent conduct of Discovery Bay, and three percent to the negligent conduct of Dennis, the result would be quite different. Under those circumstances, HRS § 663-31(a) would not bar the plaintiffs from recovering against Discovery Bay because Dennis's negligence would not have been "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 . . . ." See supra note 1. Thus, Sataraka and Discovery Bay would be "joint tortfeasors" within the meaning of HRS § 663-11, and Discovery Bay would be liable for its pro rata share of the plaintiffs' economic damages pursuant to HRS §§ 663-10.9(1) and (3). See supra note 4; see also Tabieros v. Clark Equip. Co., 85 Hawai`i 336, 397-98 & n.52, 944 P.2d 1279, 1340-41 & n.52 (1997); HRS § 663-12 (1993).