The Estate of Bruce S. Perdue v. State

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-APR-2024
10:12 AM
Dkt. 159 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

THE ESTATE OF BRUCE S. PERDUE, by its Personal Representative
ROBERT H. PERDUE, ROBERT H. PERDUE, Individually,
GORETTI M. PERDUE, CHRISTIAN PERDUE, and WREN PERDUE,
Plaintiffs-Appellants, v. STATE OF HAWAIʻI,
KAUAʻI ISLAND UTILITY COOPERATIVE,
a domestic agricultural cooperative association, and
HAWAIIAN TELCOM, INC., a domestic corporation, Defendants/Cross-
Claim Plaintiffs/Cross-Claim Defendants-Appellees;
COUNTY OF KAUAʻI, Defendant/Cross-Claim Defendant-Appellee,
JOHN DOES 1-5, et al., Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CC131000351)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Plaintiffs-Appellants the Estate of Bruce S. Perdue,

by its Personal Representative Robert H. Perdue, Robert H.

Perdue, Individually, Goretti M. Perdue, Christian Perdue, and

Wren Perdue (the Perdue Family) appeal from the Circuit Court of
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the Fifth Circuit's 1 October 16, 2018 Second Amended Judgment 2

dismissing all claims as to Defendants/Cross-Claim

Plaintiffs/Cross-Claim Defendants-Appellees State of Hawaiʻi

(State), Kauaʻi Island Utility Cooperative, and Hawaiian Telecom,

Inc., and Defendant/Cross-Claim Defendant-Appellee County of

Kaua‘i.

Briefly, while driving during the early morning on

Kūhiō Highway in Kapa‘a, Kaua‘i, Bruce S. Perdue drove his car off

the paved road and shoulder into a utility pole. He died as a

result of the injuries he sustained in this single-car accident.

The Perdue family filed a complaint for wrongful

death. By stipulation, all claims and cross-claims were

dismissed except for claims by the Perdue Family against the

State.

The State moved for summary judgment, arguing that the

decision not to install guardrails around the utility pole was

within the "discretionary function exception to the . . . waiver

of sovereign immunity" (Discretionary Function Exception) of

1 The Honorable Kathleen N.A. Watanabe presided.
2 Though the Perdue family actually appealed from the January 23, 2018
First Amended Judgment, we entered an order for temporary remand instructing
the circuit court to enter and supplement the record with a second amended
judgment resolving all remaining claims, as we determined we lacked appellate
jurisdiction over the case since the first amended judgment did not resolve
all claims. On temporary remand, the circuit court entered the second
amended judgment. We therefore construe this appeal as from the circuit
court's second amended judgment.

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Hawai‘i Revised Statutes (HRS) § 662-15 (2016). The circuit

court granted summary judgment, and dismissed the entire case.

The Perdue Family moved for reconsideration, which was denied,

and timely appealed.

On appeal, the Perdue Family contends the circuit

court erred in granting the State's motion for summary judgment

and taxing costs. 3

3 The Perdue Family actually raise nine points of error, contending the
circuit court reversibly erred:

(1) in granting summary judgment on the entire complaint when the
State, in its motion for summary judgment (MSJ), argued against only
one possible theory of liability;

(2) in denying their motion for reconsideration;

(3) by omitting from the order granting the MSJ (MSJ Order), and
the Second Amended Judgment, a finding that the State was entitled to
judgment "as a matter of law," and by failing to include a finding in
the Second Amended Judgment that no genuine issue of material fact
existed;

(4) in determining that the "installation" of the utility pole
without a guardrail was a discretionary act requiring broad policy
consideration, though each time the pole was repaired or reinstalled
following a collision was an operational maintenance event;

(5) in disregarding the conflict between the State Tort Liability
Act, HRS § 662-2 (2016), and Hawaiʻi Administrative Rules § 19-127.1-8
(eff. 1994), the latter of which directs the placement of guardrails
and protective barriers next to roadside hazards;

(6) in dismissing potential claim(s) that the State acted
negligently in permitting installation of the utility pole without a
safety investigation, disregarding its accident history, and allowing
the utility pole to remain in its location;

(7) in dismissing potential claim(s) that the State negligently
failed to contact the utility companies concerning the hazard created
by the utility pole or to revoke the permit for its location, given its
accident history;

(continued . . .)

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Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below.

We review the grant or denial of summary judgment de

novo. Ralston v. Yim, 129 Hawaiʻi 46, 55, 292 P.3d 1276, 1285

(2013). "Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Id. (citation and

brackets omitted).

A defendant moving for summary judgment "may satisfy

his or her initial burden of production by either (1) presenting

evidence negating an element of the non-movant's claim, or

(2) demonstrating that the [non-movant] will be unable to carry

his or her burden of proof at trial." Id. at 60, 292 P.3d at

(. . . continued)

(8) in disregarding Hawaiʻi Rules of Civil Procedure Rule 56(d) by
failing to ask the parties whether there were outstanding claims raised
in the complaint that the MSJ did not cover; and

(9) in taxing costs against the Perdue Family after jurisdiction
had already transferred to this court upon the filing of the notice of
appeal.

Because we hold the circuit court erred in granting summary judgment, in
dismissing the entire complaint, and taxing costs, we need not address the
remaining points raised.

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1290. We view the evidence and inferences drawn therefrom in

the light most favorable to the party opposing the motion. Id.

at 56, 292 P.3d at 1286.

Regarding the Discretionary Function Exception of HRS

§ 662-15, "the State bears the burden to assert and prove the

application of the discretionary function exception," and its

scope must be determined "on a case-by-case basis." O'Grady v.

State, 140 Hawai‘i 36, 53-55, 398 P.3d 625, 642-44 (2017).

In determining whether a State action falls within the
discretionary function exception, we consider whether the
challenged conduct involves the effectuation of broad
public policy as opposed to routine, operational level
activity. . . . The exercise of some discretion on the
part of a State official is not necessarily indicative that
the exception applies[.]

Id. at 54, 398 P.3d at 643 (cleaned up).

The State here appears to rely on the need "to

purchase additional right-of-way to accommodate the relocation

of the line of utility poles" as the basis for falling within

the Discretionary Function Exception. But, the State then

acknowledges that it would not be "required to purchase

additional right-of-way if, instead, the utilities purchase

easements on the adjacent private parcels." With this, we

cannot say that the State proved erecting a guardrail in this

case "involve[d] the effectuation of broad public policy" as a

matter of law. See Breed v. Shaner, 57 Haw. 656, 667, 562 P.2d

436, 443 (1977) ("In this situation further facts must be

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adduced on the record to show that the decision to include a

curve or other design feature involved the evaluation of broad

policy factors before the court can decide that the

discretionary function exception applies"); O'Grady, 140 Hawai‘i

at 54, 398 P.3d at 643.

Moreover, Hawai‘i courts have determined that

decisions concerning the repair of an existing defective

guardrail, implementation of a routine rockfall mitigation

system, the location of a road sign, and when to repaint lane

markings are operational level activities; but decisions to

construct a prison or whether to rebuild the collapsed Moanalua

Stream Bridge are discretionary functions. 4 Erecting a guardrail

appears closer to repairing a guardrail, implementing a rockfall

mitigation system, and determining the location of road signs

rather than constructing a prison or rebuilding a collapsed

bridge. And that funding for a government project originates

from a policy-level allocation of resources does not necessarily

make that particular project a policy-level decision. Cf.

Julius Rothschild & Co. v. State, 66 Haw. 76, 80, 655 P.2d 877,

4 See, e.g., O'Grady, 140 Hawai‘i 36, 398 P.3d 625 (rockfall
mitigation); Taylor-Rice v. State, 91 Hawai‘i 60, 979 P.2d 1086 (1999)
(defective guardrail); Rogers v. State, 51 Haw. 293, 459 P.2d 378 (1969)
(road sign location); Julius Rothschild & Co. v. State, 66 Haw. 76, 655 P.2d
877 (1982) (rebuilding collapsed bridge); Breed, 57 Haw. at 667, 562 P.2d at
443 (noting as an example a decision not to construct a prison "require[s]
evaluation of broad policy factors").

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881 (1982) (noting that the legislature must decide whether to

fund reconstruction of the Moanalua Stream Bridge).

Viewing the evidence in the light most favorable to

the Perdue Family, the State failed to establish that the

Discretionary Function Exception applies to erecting a guardrail

in this case as a matter of law. See generally, Ralston, 129

Hawaiʻi at 56, 292 P.3d at 1286; O'Grady, 140 Hawai‘i at 54, 398

P.3d at 643.

Even if the State met its burden of showing that

erecting guardrails here fell under the Discretionary Function

Exception as a matter of law, the State failed to show that the

entire complaint should have been dismissed.

"[M]ultiple claims present the possibility of multiple

recoveries which are not mutually exclusive," however "single

claims may present multiple legal theories of liability, but

seek only one recovery which is mutually exclusive." Elliot

Megdal & Assocs. v. Daio USA Corp., 87 Hawaiʻi 129, 133, 952 P.2d

886, 890 (App. 1998) (emphasis added and citation omitted).

"[W]here the complaint allege[s] more than one ground for

imposing liability on the defendant for the plaintiff's injury,

and the defendant's summary judgment motion attacked only one

ground, summary judgment on the entire claim [i]s unwarranted."

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Kukui Nuts of Hawaii Inc. v. R. Baird & Co., 7 Haw. App. 598,

610, 789 P.2d 501, 510 (1990). Moreover,

where the defendant is the moving party, there is no
genuine issue as to any material fact and the defendant is
entitled to a judgment as a matter of law if, upon viewing
the record in the light most favorable to the plaintiff, it
is clear that the plaintiff would not be entitled to
recover under any discernable theory.

Neilsen v. Am. Honda Motor Co., 92 Hawaiʻi 180, 189, 989 P.2d

264, 273 (App. 1999) (emphases added, citation and brackets

omitted). "Under Hawaiʻi's notice pleading approach, it is no

longer necessary to plead legal theories with precision";

"[p]leadings must be construed liberally . . . as to do

substantial justice." Tokuhisa v. Cutter Mgmt. Co., 122 Hawaiʻi

181, 192, 223 P.3d 246, 257 (App. 2009) (cleaned up).

Here, The State's motion for summary judgment focused

on guardrails. The State argued this case "does not involve a

mere maintenance, repair or upgrade of a guardrail"; rather,

"this case would necessitate an engineering study to determine

whether or not guardrails are a reasonable engineering option."

The State requested the circuit court "recognize that the

decision-making involved in making changes along [Kūhiō] Highway

in the vicinity of the subject accident would require the

exercise of the State's discretionary function." Thus, the

State concluded it was "immune from liability for its act and/or

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omissions in the exercise of that discretion" and was entitled

to summary judgment.

But, the complaint alleged, inter alia, that the

utility pole, "together with the real property on which it was

situate[d], constituted an unreasonable risk of harm" and was

"unreasonably dangerous" to drivers, and that the collective

defendants "failed to adequately protect motorists" from the

"pole and/or [the] unreasonably dangerous condition/risk of harm

created by it." Construed liberally, these allegations do not

suggest the failure to install a guardrail is the only

discernable theory of liability on which the Perdue Family could

prevail. See generally, Tokuhisa, 122 Hawaiʻi at 192, 223 P.3d

at 257; Neilsen, 92 Hawaiʻi at 189, 989 P.2d at 273.

Viewing the evidence presented in the light most

favorable to the Perdue Family, the State failed to meet its

burden of showing that the entire complaint should have been

dismissed as a matter of law based on guardrails. See

generally, Ralston, 129 Hawaiʻi at 56, 60, 292 P.3d at 1286,

1290.

Thus, the circuit court erred in granting summary

judgment and erred in dismissing the entire case. As the State

is no longer the prevailing party, the Perdue Family should not

be taxed costs. Hawai‘i Rules of Civil Procedure Rule 54(d)(1).

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In light of foregoing, we vacate the October 16, 2018

Second Amended Judgment, the May 20, 2016 "Order Granting [the

State]'s Motion for Summary Judgment Filed February 26, 2016,"

and the October 25, 2016 Clerk's Taxation of Costs, and we

remand for further proceedings consistent with this summary

disposition order.

DATED: Honolulu, Hawai‘i, April 16, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
James Krueger,
for Plaintiffs-Appellants. /s/ Karen T. Nakasone
Associate Judge
Robin M. Kishi,
Marie M. Gavigan, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Defendant/Cross-Claim
Plaintiff/Cross-Claim
Defendant-Appellee.

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