OPINION OF ACOBA, J., CONCURRING
IN PART AND DISSENTING IN PART
On March 12, 1996, Plaintiff-Appellant Mualla Atahan (Atahan)(1) filed a complaint against Defendant-Appellee Hidehiro Muramoto (Muramoto), alleging, inter alia:
On or before September 19, 1994, [Muramoto] knew or in the exercise of reasonable care should have known, that the waves, sea and ocean state and/or other aquatic conditions at and in the vicinity of the [p]roperty, were dangerous or potentially dangerous to swimmers or bathers, particularly to those inexperienced tourists and visitors living outside the State of [Hawai`i], including [Atahan].
[Muramoto] herein carelessly and negligently allowed the [p]roperty to be trespassed upon by members of the general public, and carelessly and negligently allowed the [p]roperty to be used as a de facto parking lot for Big Beach [(hereinafter Mkena Beach Park) on the island of Maui], thereby carelessly and negligently representing the [p]roperty to be part of [Mkena] Beach Park, with knowledge or having reason to know that members of the public would so assume [Muramoto]'s property was a parking lot for and a part of the [Mkena] Beach Park . . . .
[Muramoto]'s acts and/or failure to act as herein described, carelessly and negligently encouraged, invited and induced tourists, visitors and members of the public upon the [p]roperty, with [Muramoto] then knowing or having reason to know that persons utilizing the [p]roperty would use same as access to [Mkena Beach Park], and [Muramoto] knowing or being reasonably charged with knowledge that users of said [Mkena] Beach Park were exposed to serious bodily injury and damage at said [Mkena] Beach Park. . . .
(Emphases added.) Atahan alleged "as a direct and proximate result" of Muramoto's "fail[ure] to fence, barricade and block the [p]roperty or take other reasonable steps and precautions to prevent members of the public from trespassing thereon and exposing themselves to injury . . . [Atahan] sustained injuries . . . ."
On March 15, 1996, Atahan filed a "Request to Exempt Case From the Court[-]Annexed Arbitration Program." In this request, Atahan admitted that "[w]hile swimming in the waters fronting [Mkena] . . . Beach Park, . . . [Atahan] was knocked down by a wave and sustained serious permanent injuries." (Emphasis added.)
On July 2, 1997, Atahan filed his pretrial statement. In that pleading, Atahan stated that he
arrived at an open dirt lot located in the area called [Mkena Beach Park]. [Atahan] observed numerous cars parked in that lot and decided to park there to walk to the beach.
The lot where [Atahan] parked [his] vehicle was the Muramoto [p]roperty . . . . [Atahan] got out of [his] car and walked across the Muramoto [p]roperty to the sand. Once on the beach, [he] proceeded north on the sand in the [Khei] direction. . . .
(Emphasis added.) Atahan once again admitted that "he was struck by a wave while swimming in the waters fronting [Mkena Beach] Park . . . ."
On August 20, 1997, Muramoto filed a motion for summary judgment. Affidavits from Muramoto and John C. Patterson (Patterson), a real estate broker familiar with Muramoto's property, were submitted with the summary judgment motion. In his affidavit, Muramoto stated that "[w]hen he purchased the parcel, it was a vacant lot[,]" he "made no changes to it[,]" he "took no action to discourage or encourage people from crossing the parcel[,]" and he "neither asked for nor received any money from people who may have crossed the parcel." Muramoto also averred that he "took no action to try to cause people to swim in the ocean in front of or near the parcel."
In his affidavit, Patterson asserted he "ha[d] not represented [Muramoto] in connection with any real estate transactions[,]" and "as a real estate broker and as an area resident," he was "familiar" with Muramoto's property. Patterson reported that "[a]t the time [Muramoto] purchased the parcel, it was a vacant lot[,]" he "periodically observed cars parked on the parcel, and persons crossing the parcel to access the beach[,]" and he "saw nothing to indicate that [Muramoto] was trying to prevent people from accessing the beach by crossing over his parcel, nor that he was charging a fee for such access." Patterson related that attached to his affidavit was a
true and correct copy of a Tax Map in which [Muramoto's] parcel is labeled, "Lot 3." [Muramoto]'s attorney . . . [had] pointed out the area in the ocean where [Atahan] alleged that he was injured [and that] [t]he area is not in front of [Muramoto's] parcel, but is rather in front of the parcel labeled, "Park - State Property."
On August 28, 1997, Atahan filed his opposition memorandum to Muramoto's motion, reiterating the allegations in his complaint. Atahan did not file any supporting affidavits.
Muramoto filed his "Responsive Pretrial Statement" on August 28, 1997. In his pretrial statement Muramoto indicated that Atahan "ha[d] a separate lawsuit pending against the State of [Hawai`i] and County of Maui arising from the same occurrence." With respect to his property, Muramoto reiterated aversions in his and in Patterson's affidavit.
On September 9, 1997, the second circuit court (the court) held a hearing on the motion for summary judgment. At the conclusion of the hearing, the court stated:
I'm going to grant the motion for summary judgment based on . . . [c]hapter 520 of the [Hawai`i] Revised Statutes [(HRS)] finding that even if there were a common[-]law duty, that [c]hapter 520 excludes the movant from responsibility and liability. However, I'm not finding that there is any liability under even common law.
On September 23, 1997, the court filed a written order granting Muramoto's motion for summary judgment.
Both affidavits from Muramoto and Patterson were properly sworn to and certified, and thus were entitled to be considered with respect to the motion for summary judgment. See Hawai`i Rules of Civil Procedure (HRCP) Rule 56(e). While not sworn to and certified, Atahan's statements that he trespassed onto Muramoto's property and that he was injured in the waters fronting the adjacent parcel and not Muramoto's property may be taken as admissions for the purposes of the summary judgment motion. Facts which are undisputed in the memoranda submitted by both parties constitute "admissions on file" which may be considered with respect to a motion for summary judgment. Gonsalves v. First Ins. Co. of Hawaii, 55 Haw. 155, 161, 516 P.2d 720, 724 (1973) (holding that "`admissions in the brief of the party opposing the motion (for summary judgment) may be used in determining that there is no genuine issue as to any material fact, since they are functionally equivalent to "admissions on file," which are expressly mentioned in [HRCP] Rule 56(c)'" (quoting 10 Wright & Miller, Federal Practice and Procedure: Civil § 2723, at 490 (1973))). See HRCP Rule 56(c).
The majority agrees with the court and holds that "HRS chapter 520 [(1993)] abolished any duty that Muramoto would otherwise have owed to [Atahan] with respect to [his] use of [Muramoto's property] as a place to park [his] car, access [to] the public beach fronting [Muramoto's property, the lot adjacent to Muramoto's property, and the State property], and access [to] the ocean fronting the beach fronting [Mkena Beach Park]." Majority opinion at 15. Because it is undisputed that Atahan was not injured on Muramoto's lot, but "while swimming in ocean waters fronting [Mkena Beach] Park[,]" I must conclude that HRS
chapter 520 does not immunize Muramoto from potential liability to Atahan, and thus I respectfully dissent.
HRS chapter 520 is entitled "Landowner Liability," and HRS § 520-1 states that "[t]he purpose of [HRS chapter 520] is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability towards persons entering thereon for such purposes." The language of HRS chapter 520 makes clear that the land and water areas affected are those "owned" by the owner. The definitions of terms used in HRS chapter 520 are set forth in HRS § 520-2 which provides, in pertinent part:
(1) "Land" means land, roads, water, water courses, private ways and buildings, structures, and machinery or equipment when attached to realty, other than lands owned by the government.
(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant, or person in control of the premises.
(3) "Recreational purpose" includes but is 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.
(Emphases added.)
HRS § 520-3 states, in relevant part, that "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, or activity on such premises to persons entering for such purposes[.]" (Emphases added.)
Further, HRS § 520-4 states:
Liability of owner limited. Except as specifically recognized by or as provided in section 520-6, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose.
(2) Confer upon such 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.
(Emphases added.)
As stated above, HRS § 520-3 expressly relieves an owner of land from a duty of care toward and a duty to warn persons entering "the premises" for "recreational purposes." Similarly, HRS § 520-4 relieves "an owner of land" from ensuring the safety "of the premises," or from owing any duty of care or responsibility toward any person who "use[s] such property."
While "land," as defined in HRS § 520-2 includes "water," there is no indication in the statute that the legislature intended that term to include the ocean itself. Even if the term "water" were broadly construed to include the ocean, the phrase "other than lands owned by the government" would qualify the term and exclude the ocean and the land under it.
It is undisputed "that `[t]he State of [Hawai`i] has care and control of all water and ocean below the high water mark (or vegetation line)[.]'" Littleton v. State, 66 Haw. 55, 65, 656 P.2d 1336, 1344 (1982). See also, Birmingham v. Fodor Travel Publications, Inc., 73 Haw. 359, 376 n.11, 833 P.2d 70, 79 n.11 (1992). Thus, the ocean itself and the land beneath it and seaward of the vegetation line are owned by the government, and by the terms of HRS chapter 520, are expressly exempted from its purview.
HRS chapter 520 also requires that an owner be "the possessor of a fee interest, a tenant, lessee, occupant, or a person in control of the premises" pursuant to HRS § 520-2. Obviously, Muramoto cannot be considered an "owner" of the ocean within the meaning of that defined term.
While the words "recreational purpose" include activities that may take place in the ocean, activities such as "fishing," "swimming," "boating," and "water skiing" may also take place on or in bodies of water other than the ocean. In any event, such recreational purposes are covered only insofar as they take place on premises "other than the land owned by the government." If "water" is construed to include the ocean, the
ocean is water "owned by the government" and thus excluded from the provisions of HRS chapter 520.
Finally, under HRS chapter 520, a landowner's relief from liability extends to the use of the landowner's "property" for recreational activities "on such premises." HRS § 520-3 (emphasis added). Atahan admits his injuries did not take place on Muramoto's lot. Therefore, HRS chapter 520 is simply inapplicable to Muramoto's potential liability.
Support for the foregoing interpretation is found in the apparent model for HRS chapter 520. The Committee of State Officials on Suggested State Legislation of the Council of State Governments developed a model act concerning landowner liability entitled "Public Recreation on Private Lands: Limitations on Liability" (the Model Act). 24 Suggested State Legislation 150 (1965). HRS chapter 520 was apparently derived from, and is substantially similar to the Model Act.
The introduction to the Model Act indicates that it immunizes landowners from liability for occurrences on their property: "The suggested act which follows is designated to encourage availability of private lands by limiting liability of owners[,]" because "in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every
reasonable encouragement should be given to them." Id. (emphases added).
Under the Model Act, the definitions of land are the same as set forth under HRS chapter 520 except for the express exclusion of "lands owned by the government" found in HRS § 520-2: "`Land' means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty." Model Act, § 2(a). It appears that no other state except Hawai`i has specifically exempted "lands owned by the government" from its statutory definition of land. Indeed, much of the case law in other jurisdictions focuses on whether, under their versions of the act, the government is entitled to limited liability for injuries occurring on its property.(2) However, by legislative provision, HRS chapter 520
expressly exempts public "land" from coverage, and thus removes the ocean from the scope of the chapter.
I see nothing in HRS § 520-4(2), cited by the majority, to warrant a different interpretation. That section refers to "owner," "land," and "such property," all of which as defined or apparent from the text, do not confer immunity for injuries in the ocean.
Nor do I find the title of a bill which was the subject of a 1969 committee report persuasive in light of the express provisions of the act. Much as I recognize the desire to extend immunity to non-government entities expressed in Viess v. Sea Enters. Corp., 634 F.Supp. 226 (D. Haw. 1986), I cannot agree that the language of HRS chapter 520 extends so far.
When it granted the motion for summary judgment, the court stated that it was "not finding that there is any liability under even common law." On appeal, the majority does "not reach the question of whether the precedent cited [in its opinion] imposed any relevant duty upon Muramoto with respect to [Atahan]." Majority opinion at 12. Since I believe that HRS chapter 520 is inapplicable and would vacate the court's order granting summary judgment on that basis, I do reach the question of whether the case law in this jurisdiction imposes a duty on Muramoto in favor of Atahan.(3) I conclude it does not, and therefore would remand the case with instructions to the court to enter summary judgment on behalf of Muramoto on the basis that he owed no common-law duty to Atahan.
Hawai`i abolished the common-law distinctions traditionally made in evaluating landowner liability in Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969). There, the Supreme Court of Hawai`i concluded that the City was an "occupier" of the land on which the plaintiff was injured, and rejected the trial court's finding that the plaintiff was "a licensee as a matter of law and therefore not entitled to defendant's duty of ordinary care." Id. The supreme court reasoned that "the common[-]law distinctions between classes of persons have no logical relationship to the exercise of reasonable care for the safety of others[,]" because "`[r]easonable people do not ordinarily vary their conduct depending upon . . . the status of the injured party as a trespasser, licensee, or invitee in order to determine whether the landowner has a duty of care[.]'" Id. at 136, 452 P.2d at 446 (quoting Rowland v. Christian, 70 Cal. Rptr. 97, 104, 443 P.2d 561, 568 (1968)).
Shortly thereafter, the supreme court confirmed its Pickard holding in Gibo v. City and County of Honolulu, 51 Haw. 299, 459 P.2d 198 (1969). The supreme court stated that Pickard "refused to recognize the common[-]law distinctions between licensees and invitees and the different degree of care owed them by an occupier of land[,]" id. at 301, 459 P.2d at 200, and reiterated that "[a]n 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." Id.
Accordingly, both Pickard and Gibo abolished the common-law categories of persons injured on a land owner or occupier's premises for purposes of defining the duty owed to such persons.
The supreme court confronted the issue of non-landowner or non-occupier liability for a premises injury in Geremia v. State, 58 Haw. 502, 503, 573 P.2d 107, 109 (1977), where the plaintiffs sought damages from the State of Hawai`i for the death of their son. The State's involvement with the land consisted of the following:
[W]ith the permission of the landowner, [it] improved a parking area at the intersection of the access road and the trail, erected a direction sign at the intersection of the access road and the main highway, erected a sign warning visitors to lock their cars at the parking lot, improved and maintained the trail itself, and included the Slide on several maps and State[-]sponsored visitor information brochures.
Id. at 504, 573 P.2d at 109-10.
Acknowledging that it "no longer allow[ed] the
common[-]law distinction between invitees and licensees to be determinative of the scope of the occupier's liability," id. at 506, 573 P.2d at 110-11 (citations omitted), the supreme court stated that "the existence of this special rule of liability . . . has no bearing upon the liability of a non-occupier." Id. But, the supreme court pointed out that the State may have owed "a duty of care which has arisen quite independently of the occupier's duty." Id. at 506, 573 P.2d at 111 (emphasis added). We may assume, without expressing an opinion, that the acts of the State in improving the parking area and the trail [to the Slide], erecting signs and including the Slide on official information maps and brochures were sufficient to have enabled the court to find a course of conduct which constituted an invitation to use the Slide. Similarly, we may assume that the State's actions conveyed a representation that would create a false sense of safety in the minds of those who were thereby induced to use the Slide.
Id. at 509, 573 P.2d at 112 (emphases added). According to the supreme court, "one who gratuitously acts to expose another person to danger must observe ordinary care in so doing, notwithstanding that he would have been wholly free from obligation if he had refrained from acting." Id. Thus, under Geremia, liability for a premises injury may be imposed on one who is not an owner or occupier of the premises but whose course of conduct constitutes an invitation or inducement to use the premises.
Five years later, the supreme court decided Kaczmarczyk v. City and County of Honolulu, 65 Haw. 612, 656 P.2d 89 (1982). There, the plaintiffs had filed suit against the State(4) and the City and County of Honolulu after their son drowned in the ocean waters off `Ehukai Beach Park. Id. at 613, 656 P.2d at 91.
The supreme court reiterated the principle that "an occupier of land is under a duty to exercise all reasonable care for the safety of all persons known to be, or reasonably anticipated to be, upon its premises." Id. (citing Pickard, 51 Haw. 134, 452 P.2d 445). It then expanded an occupier's duty, concluding that this responsibility extended "[w]here the premises front upon the ocean . . . to those swimming in the waters along the property's beach frontage." Id., 656 P.2d at 92 (citing Tarshis v. Lahaina Inv. Corp., 480 F.2d 1019 (9th Cir. 1973)). Therefore, the supreme court found a duty was owed by the City to the users of its park who were injured in the ocean along the park's beach frontage:
Undoubtedly, the City would have had a duty to warn users of [`Ehukai] Beach Park of extremely dangerous conditions in the ocean along its beach frontage which were not known or obvious to persons of ordinary intelligence, and which were known or in the exercise of reasonable care ought to have been known to the City.
Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92 (emphases added) (citations omitted).
The Hawai`i Supreme Court issued Littleton two days after Kaczmarczyk. In Littleton, the plaintiff was injured after a telephone pole in the ocean struck her while she was picking seaweed along the shoreline. 66 Haw. at 56, 656 P.2d at 1339. The plaintiff sued both the State and the City and County of Honolulu. The supreme court held that because the State had care and control of the ocean, it owed a duty of care to the plaintiff. Id. at 65, 656 P.2d at 1344. As to the City, the supreme court found it had a statutory duty to clear "debris" from the shore and thus "may be held liable." Id. at 67, 656 P.2d at 1344.
In the alternative, the plaintiff had alleged "responsibility on the part of the City by reason of its having induced, or by its conduct invited its park patrons to make use of the adjoining beach areas in furtherance of their enjoyment of the City's own park premises." Id. at 68, 656 P.2d at 1345. The supreme court found Geremia applicable:
In Geremia, . . . this court observed that a party will be liable in tort where he [or she] voluntarily undertakes a course of affirmative conduct intended to induce another to engage in an action, and creates a false appearance of safety upon which the other relies to his [or her] detriment. And it has also been held that an owner's duty to his [or her] invitees extends to such places in or about the premises as his [or her] invitees may reasonably be expected to go in the course of the visit.
Littleton, 66 Haw. at 68, 656 P.2d at 1345 (emphases added) (citations omitted). The supreme court then indicated that an owner or occupier's duty of care may extend beyond the beach frontage of the subject property to "adjoining beach areas." (Emphasis added.)
In a footnote, the supreme court stated that an invitation to use adjoining beach areas may be "implied":
An invitation may be implied from a continued and general custom in using the premises by the patrons of the business. The nature of the use and the extent of the premises covered by the implied invitation to use may be determined by the continued and general custom of the patrons of the place.
Id. at 69 n.4, 656 P.2d at 1345 n.4 (citing McKinney v. Adams, 66 So. 988 (Fla. 1914(5))).(6) Thus, in Kaczmarczyk the supreme court extended the potential liability of an owner or occupier of beachfront land to include the expected use of ocean waters fronting the subject property. In Littleton, liability was extended to use of adjoining beach areas where the owner or occupier could be said to have invited such use under the Geremia rationale.
In Kamakawiwoole v. State, 6 Haw. App. 235, 239-40, 718 P.2d 1105, 1108-09 (1986), citing Kaczmarczyk and Littleton, this court said that the operation of a public park fronting the public beach and ocean may impliedly constitute an invitation to "swim in the public ocean" and "walk upon the public beach where the accident[s] occurred."
In Birmingham, 73 Haw. 359, 833 P.2d 70, the supreme court further clarified the duty owed to plaintiffs for injuries occurring on the beach and in the ocean. In that case, the plaintiff was injured while body surfing in ocean waters off Kekaha Beach on the island of Kaua`i. 73 Haw. at 363, 833 P.2d at 73. The beach land fronting the ocean was owned by the State. Id. The State transferred this parcel to the County of Kaua`i to use as an addition to Kekaha Beach Park. Id. At the time of the accident, these lands were controlled and managed by the County. Id. The plaintiff brought suit against the State and the County. Id. at 362, 833 P.2d at 72.
The supreme court determined that the State was not in control of the parcels, but as the owner of the ocean and all the beach area up to the high water mark, the supreme court held that under the "Littleton rule," the State owed only a duty as to
"unnatural condition[s]" of which it had "actual or constructive notice." Id. at 378, 833 P.2d at 80.
As to the County, whose liability was based on "being the owner and occupier of Kekaha Beach Park," id. at 380, 833 P.2d at 87, it owed "`a duty to warn users [of the park] . . . of extremely dangerous conditions in the ocean along its beach frontage which were not known or obvious to persons of ordinary intelligence,'" and "`in the exercise of reasonable care ought to have been known to the [occupier].'" Id. (emphasis added) (quoting Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92). Birmingham thus emphasized that as to the ocean, the State's duty was owed only as to "unnatural conditions" and an owner or occupier's duty was owed as to "extremely dangerous conditions."
Since Atahan was not injured on Muramoto's lot, Muramoto did not owe a landowner's or occupier's duty of care for persons injured "upon the premises," Gibo, 51 Haw. at 301, 459 P.2d at 200, as might otherwise be imposed under the rule employed in Pickard, 51 Haw. at 135, 452 P.2d at 466, and Gibo, 51 Haw. at 301, 459 P.2d at 200. Similarly, since Atahan was not injured in the ocean fronting Muramoto's lot, the extension of that duty "to those swimming in the waters along the property's beach frontage," as recognized in Kaczmarczyk, 65 Haw. at 615, 656 P.2d at 92, would not apply in this case. However, duty
might be owed to Atahan for injuries suffered in adjoining beach areas. Littleton, 66 Haw. at 68, 656 P.2d at 1345.
Here, the injury occurred in the ocean fronting Mkena Beach Park. This would make Muramoto a "non-occupier" of the injury site. In such a case, Muramoto's "occupier status [need] not [be] a prerequisite to the existence of the [potential] duty for which the plaintiffs [have] contended[,]" Geremia, 58 Haw. at 508, 573 P.2d at 112. Liability would attach, as stated in Geremia and reiterated in Littleton, if Muramoto "voluntarily undertook a course of affirmative conduct intended to induce the plaintiff to engage in an action, and also created a false appearance of safety upon which the plaintiff relied to his or her detriment." Id.
Atahan did not establish facts by affidavit or otherwise demonstrating Muramoto affirmatively induced or encouraged the public to use his lot as a parking lot for or as access to the beach and ocean abutting the adjacent public park. In contrast to the actions of the State in Geremia, which might be construed as affirmative conduct, Muramoto did nothing to improve facilities for or to publicize use of the ocean fronting the public park. Additionally, Atahan failed to set forth facts showing Muramoto engaged in any conduct which created a false appearance of safety in the ocean where the injury took place. Rather, Atahan's complaint premised liability on Muramoto's failure to prevent cars from parking on his lot and persons like
Atahan from using it to access the ocean, that is, to prevent persons from trespassing on his property.
Atahan concedes in his complaint that he was neither an invitee or licensee. Instead, he admits that he "trespassed" onto Muramoto's land. As the majority points out, "`[t]respassers are persons who are neither suffered nor invited to enter [another's premises].'" Majority opinion at 7 (quoting Mutual Tel. Co. v. Hawaiian Contracting Co., 31 Haw. 296 (1930).(7)
Nothing in the case law reviewed implies that in the absence of Geremia facts an owner or occupier of land owes a duty to prevent trespassing in order to protect against the risk that the trespasser would be injured in the ocean fronting an adjoining parcel. There appears to be no justification for imposing such a duty. "Duty . . . is a legal conclusion which depends upon `the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" Rodrigues v. State, 52 Haw. 156, 170, 472 P.2d 509, 518 (1970) (quoting Prosser, Torts § 53 at 332 (3d ed. 1964)); Tabieros v. Clark Equip. Co., 85 Hawai`i 336, 353, 944 P.2d 1279, 1296 (1997). In this record, I find nothing compelling of a policy nature in the argument put forth by Atahan; that is, that a duty should be imposed on Muramoto to prevent Atahan from doing what Atahan was already legally prohibited from doing.
Not only must Atahan demonstrate that he was "impliedly invited" onto Muramoto's property for purposes of obtaining access to the ocean,(8) but under the test set forth in Birmingham, Atahan must also show that "the ocean conditions were extremely dangerous conditions which were not readily apparent to persons of ordinary intelligence." 73 Haw. at 382-83, 833 P.2d at 82 (internal quotation marks and citation omitted).
Assuming arguendo that there was an implied invitation, there are no facts in the record demonstrating that the ocean conditions which resulted in Atahan's injuries were "extremely dangerous conditions." Id. In his complaint, Atahan alleged only that "the waves, sea and ocean state and/or other aquatic conditions at and in the vicinity of [Muramoto's] [p]roperty, were dangerous or potentially dangerous to swimmers or bathers . . . ." In his pretrial statement, Atahan went further and alleged that "[a]s the owner of ocean front property [Muramoto] knew or in the exercise of due care should have known, that the waves, sea, ocean state and/or other aquatic conditions in front of the neighboring [Mkena Beach Park] were extremely dangerous." Atahan's memorandum in opposition to Muramoto's motion for summary judgment states that Muramoto "fail[ed] to warn [Atahan] and other users of the extremely dangerous (and not apparent) ocean conditions in the waters fronting and/or adjacent to [Muramoto's] [p]roperty and [Mkena Beach Park] . . . ." Despite Atahan's allegations that the ocean conditions were "extremely dangerous" and "not apparent," Atahan provided no factual support for these assertions. He submitted no affidavits or facts tending to demonstrate that the ocean conditions were in fact "extremely dangerous" and "not apparent" to persons of ordinary intelligence. In sum, Atahan failed to satisfy the second requirement of the Birmingham test.
For the foregoing reasons, I dissent from the majority's holding that HRS chapter 520 applies to the facts of this case, and I would vacate the court's order granting summary judgment on that ground. However, I would hold that Muramoto owed Atahan no duty under the common law and would affirm summary judgment on that basis.
1. Although Plaintiff-Appellant Mualla Atahan (Atahan) is one of several
plaintiffs-appellants, for the sake of convenience, I refer only to Atahan.
2. The Supreme Court of Louisiana recognized that the legislature
"adopted, essentially without change" the Model Act. Monteville v. Terrebonne
Parish Consol. Gov't, 567 S.2d 1097, 1101 (La. 1990). It noted, "The purpose of
the Recreational Use Statutes, their legislative history and the state of the law
at the time of the original enactment indicate that the legislature intended to
confer immunity only on owners of private lands. The texts of the statutes are
silent on the subjects of sovereign, state, or governmental immunity." Id. at
1102. Moreover, "[s]ince public lands are always acquired, and usually held, for
the use of the public, it is unlikely that the legislative object in such
legislation was to encourage the state to permit the people to use public
property." Id at 1103 (citations omitted). See Conway v. Town of Wilton, 680
A.2d 242,249-53 (Conn. 1996) (holding that because the legislature's sole motive
in enacting the "Recreational Land Use Act" which "parrot[ed]" the Model Act was
"to encourage private citizens to donate their land" and that "[t]here [was] no
indication that the legislature was seeking to permit a municipality to have
immunity for responsibilities arising out of property that it already owned," it
"decline[d] to read the statute to extend the immunity beyond private
landowners"); See also Stamper v. Kanawha Co. Board of Ed., 445 S.E.2d 238 (W.Va.
1994) ("agree[ing] with the [Louisiana court] that the Model Act was designed to
benefit private landowners" in construing its recreational use statute which was
also an adoption, without change, of the Model Act). Contra Watson v. City of
Omaha, 312 N.W.2d 256 (Neb. 1981) (concluding that since "no limitation [was
placed] upon . . . the definition of `owner' in the Recreation Liability Act, . .
. the intent of the [l]egislature . . . was to grant the same rights and
privileges to governmental and private landowners alike").
3. The majority ends its discussion of the case law with Doe v. Grosvenor
Properties (Hawaii) Ltd., 73 Haw. 158, 829 P.2d 512 (1992), explaining that there,
"the Hawai`i Supreme Court recognized status distinctions[.]" Majority opinion at
11. Because Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 829
P.2d 512 (1992) involved the defendants' tort liability in a third-party assault
case, I do not believe it is applicable to our discussion. In Doe, the issue was whether the defendants negligently failed to
protect the plaintiff, an employee of a tenant in their building, from being
assaulted in an elevator. Id. at 160, 829 P.2d at 514. In deciding the question
of duty, the supreme court explained that "[a]lthough the Pickard rule of
reasonable care regardless of status distinctions continue to define a landowner's
duty of care in this jurisdiction," common-law "status distinctions remain
important in the decision to create exceptions to the general rule that it is
unreasonable to impose a duty to anticipate and control the actions of third
persons." Id. at 163, 829 P.2d at 515. To determine whether a person has established a "special relationship"
under section 314A of the Restatement (Second) of Torts (1965) with another and
thus owed him a duty of protection from the "actions of third persons[,]" the
supreme court decided in Doe that where the definition of an invitee is relevant solely to
determine the scope of Restatement § 314A(3), . . . we
decline to adopt the broader, public invitee definition,
finding that there is no basis upon which to base a duty
to protect where a landholder holds open his land
gratuitously, and does not receive or hope to receive
monetary, commercial, or other tangible benefit from the
invitation. 73 Haw. at 163, 829 P.2d at 515 (citations omitted).
4. On appeal, the lower court's dismissal of the State on statute of
limitations grounds was affirmed.
5. McKinney v. Adams, 66 So. 988, 992 (1914) was erroneously cited as
having been decided in 1944. See Littleton v. State, 66 Haw. 55, 69 n.4, 656 P.2d
1336, 1345 n.4 (1982).
6. The definition of implied invitation in Littleton was from McKinney,
where the plaintiff administratrix of the decedent's estate brought a claim
against the defendant who "was operating and maintaining a certain public
bathhouse and bathing pavilion where suits were furnished for hire or rent." 66
So. at 988. The bathhouse and bathing pavilion "were situated at or near the
waters of the Atlantic Ocean[.]" Id. The decedent "rent[ed] from the . . .
defendant a bathing suit[,]" id. at 989, and then "drowned in the waters of the
Atlantic Ocean near the bathhouse and bathing pavilion . . . ." Id. at 990. In reversing dismissal of the case, the Florida Supreme Court
indicated that one who invites the use of public waters for profit must exercise
due care to prevent injury to his patrons even though the waters are public: Where one assumes to offer the use of public waters
for purposes of profit by establishing bathhouses or
dressing rooms on the shore and furnishing bathing suits
for hire to persons who are expressly or impliedly
invited to use the bathing suits by bathing or swimming
in the public waters, and a patron uses the waters in the
usual and ordinary way consistent with the express or
implied invitation, and without his fault is injured
because of the unsafe condition of the premises on which
patrons are invited to bathe or swim, or because of the
negligence of the proprietor in performing his duties to
patrons, the one so offering the use of the waters for
profit may be liable in damages for such injury. The liability proceeds from the duty imposed by law
upon one who thus assumes to offer the use of public
waters for profit to exercise due care to prevent injury
to patrons who without fault use the waters in the
customary way. . . . Though the waters are public and no
governmental authority be expressly given to so offer
them for use, one who assumes to so offer the use of the
waters also assumes the legal duties and liabilities that
are commensurate with such offer of the use. The nature
of the use fixes the duties and correlative liabilities.
An invitation may be implied from a continued and general
custom in using the premises by the patrons of the
business. The nature of the use and the extent of the
premises covered by an implied invitation to use may be
determined by the continued and general custom of the
patrons of the place. Id. at 992 (emphases added).
7. Under traditional common law, "[t]he observance of due care by an
owner or occupant of premises toward a trespasser requires no affirmative conduct
to render the premises safe for the trespasser's use, but . . . the possessor must
refrain from injuring the trespasser unnecessarily by willful, wanton, or reckless
conduct, or by conduct which is so grossly negligent as to be the equivalent of
wanton or reckless conduct." 62 Am. Jur. 2d Premises Liability § 186, at 554-55
(1990) (footnotes omitted). Thus, "[a]n owner or occupant of premises has been held to owe no duty
to trespassers, to protect them from perils or hazards on adjoining or neighboring
premises over which the defendant has no control . . . ." Id. § 185, at 553
(footnote omitted).
8. Obviously, Muramoto's lot is not a public park or a "de facto park,"
which by its nature may invite or induce users of a park to also use either the
beach and ocean fronting or adjoining it. See Littleton, 66 Haw. at 68, 656 P.2d
at 1345; Kamakawiwoole, 6 Haw. App. at 239, 718 P.2d at 1108. In this regard,
Atahan was plainly not a "public invitee" as were the injured parties in
Kaczmarczyk and Littleton, or characterized as such, as in Kamakawiwoole.
Muramoto's lot was not the location for a hotel or beach resort, whose guests or
customers may be impliedly invited to use adjoining beach and ocean areas.