Fredricksen v. Dyas

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JAN-2021
07:54 AM
Dkt. 329 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARIA M. FREDRICKSEN, Plaintiff-Appellant, v.
KALE C. DYAS, Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE "NON-PROFIT" CORPORATIONS 1-10;
and DOE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 14-1-1686-08)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Wadsworth and Nakasone, JJ.)

This appeal arises out of a personal injury lawsuit
brought by Plaintiff-Appellant Maria M. Fredricksen (Fredricksen)
against Defendant-Appellee Kale C. Dyas (Dyas). Fredricksen
appeals from the November 15, 2016 Final Judgment, entered by the
Circuit Court of the First Circuit (circuit court),1/ pursuant to
a jury verdict in favor of Dyas and against Fredricksen.
On appeal, Fredricksen contends that the circuit court
erred in: (1) failing to instruct the jury on Hawaii Revised
Statutes (HRS) § 291C-32(a)(1)(A) (2007),2/ after taking judicial

1/
The Honorable Jeanette H. Castagnetti presided.
2/
HRS § 291C-32(a)(1)(A) states:

Vehicular traffic facing a circular green signal may proceed
straight through or turn right or left unless a sign at the
place prohibits either such turn. But vehicular traffic,
including vehicles turning right or left, shall yield the
right-of-way to other vehicles and to pedestrians lawfully
(continued...)
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notice of the statute; (2) denying Fredricksen's motions for a
mistrial and a new trial; (3) refusing to give several of
Fredricksen's proposed jury instructions and requested standard
jury instructions; (4) granting Dyas's motion for judgment as a
matter of law on Fredricksen's claim for punitive damages;3/ and
(5) awarding Dyas costs pursuant to Hawai#i Rules of Civil
Procedure (HRCP) Rule 68.
We affirm the Final Judgment for the reasons set forth
below.

I. Background

On June 24, 2012, Fredricksen and Dyas were involved in
a motor vehicle collision at the intersection of Waialae and 6th
Avenues (the Intersection) in Honolulu. On August 5, 2014,
Fredricksen filed a complaint against Dyas arising out of the
collision, alleging claims for negligence, negligent infliction
of emotional distress, and punitive damages.
A jury trial commenced on July 25, 2016. At trial,
Fredricksen testified as follows. On June 24, 2012, she was
traveling ewa (westbound) toward town on Waialae Avenue. She saw
one car coming toward her (eastbound) in the center oncoming
lane. The closer she got to that car, the less she was able to
see "directly behind [it]," but she was still able to see
"farther back." As Fredricksen approached the Intersection, the
light was green. Intending to turn left onto 6th Avenue,
Fredricksen put on her left blinker, slowed down and came to a
complete stop at the Intersection. When she stopped, "at least
[her front] bumper was into [the crosswalk;]" the front of her
car was not behind the stop line. The car that had been coming
toward her also came to a complete stop at the Intersection,
facing Fredricksen, with its left blinker on. Fredricksen

2/
(...continued)
within the intersection or an adjacent crosswalk at the time
such signal is exhibited.
3/
"[A] claim for punitive damages is not an independent tort, but is
purely incidental to a separate cause of action." Ross v. Stouffer Hotel Co.
(Hawai#i), 76 Hawai#i 454, 466, 879 P.2d 1037, 1049 (1994) (citing Kang v.
Harrington, 59 Haw. 652, 660, 587 P.2d 295, 291 (1978)).

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acknowledged that the car facing her "truncated [her] view. It
didn't appear to block the lane but there was only so much of it
that [she] could see. . . . [I]t blocked the vision past town
side . . . past the rear end." Fredricksen also acknowledged
that she "had an obligation as a left-turning vehicle at an
intersection to maintain a look out to make sure that a vehicle
was not approaching from the opposite direction close enough to
constitute a hazard[.]" She did not see any vehicle approaching
either in the curb lane or from behind the car that was stopped
in front of her. Once that car began to make its left turn,
Fredricksen also started her turn onto 6th Avenue. She looked to
see if there was any traffic coming toward her in the curb lane,
she saw none, and she made her left turn "in an arc." She did
not see Dyas's vehicle prior to the collision. Fredricksen's
vehicle was in the Intersection at the time of the collision.
Dyas testified at trial as follows. On the day of the
collision, Dyas took a left turn out of a McDonald's parking lot
onto Waialae Avenue, heading east. He crossed Waialae to the
center lane, immediately signaled to make a lane change, and
slowly proceeded into the right, eastbound lane. Dyas estimated
his speed at the time to be around 25-30 miles per hour, where
the posted speed limit was 25 miles per hour. As Dyas approached
the Intersection, he observed a green light and a stopped car
with a left-turn signal on, ahead of him in the left, eastbound
lane. At some distance from the Intersection, Dyas took his foot
off the gas pedal and lightly placed the ball of his foot on the
brake pedal. Dyas acknowledged that he knew it was possible
there may have been another car on the other side of the stopped
car making a left turn from the opposite direction. When Dyas
entered the Intersection, he collided with Fredricksen's car,
which was "diagonally coming right at [him]" from his left.
At the close of Fredricksen's case on August 2, 2016,
it appears that Dyas orally moved for judgment as a matter of law
on the issue of punitive damages.4/ Following a weekend break in
the trial, the circuit court orally granted the motion on

4/
The transcript of Dyas's oral motion and any related argument is
not part of the record on appeal.

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August 5, 2016.
Both parties called their own accident reconstruction
experts to testify as to their analyses of the collision. A
significant point of contention arose from the testimony of
Robert Anderson (Anderson), Dyas's accident reconstruction
expert. During direct examination on August 5, 2016, and as
further set out below, Anderson testified as to when a
left-turning vehicle at an intersection must yield the right of
way to oncoming traffic.
On August 6, 2016, Fredricksen orally moved for a
mistrial, arguing that Anderson's testimony constituted an
improper legal conclusion and a violation of the circuit court's
motion-in-limine (MIL) rulings barring expert testimony on
opinions that were not previously disclosed.5/ On August 8, 2016,
the circuit court denied the motion for mistrial, but ruled that
Anderson's testimony was improper, ordered it stricken, and gave
the jury a curative instruction.
On August 6, 2016, the circuit court also settled jury
instructions with the parties. During the conference, a
significant point of contention arose as to whether the jury
should be instructed on the language of HRS § 291C-32(a)(1)(A).
After hearing argument from both parties, the circuit court took
judicial notice of the statute,6/ but refused Fredricksen's

5/
Fredricksen's MIL 12 sought to "limit the testimony of [Dyas's]
experts to their reports and oral deposition testimony to the extent that the
testimony supplements their reports." The circuit court granted Fredricksen's
MIL 12.
Dyas's MIL 3 sought to preclude Fredricksen's experts from
providing opinions that were not already previously disclosed in their expert
reports and/or within their deposition testimony. The circuit court granted
Dyas's MIL 3.
6/
The circuit court took judicial notice of HRS § 291C-32(a)(1)(A)
in the following exchange with Fredricksen's counsel:

THE COURT: . . . Your question is whether or not [HRS
§ 291C-32(a)(1)(A)] can specifically be referenced?
[FREDRICKSEN'S COUNSEL]: That's one.
THE COURT: Okay.

[FREDRICKSEN'S COUNSEL]: And the other is is the Court
going to take judicial notice of the statute for the record?
(continued...)

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proposed jury instruction 10, which substantially restated the
language of the statute.7/ Instead, the circuit court allowed
Fredricksen's proposed jury instruction 6, as modified by the
court, concluding that it was for the jury to decide who was
obligated to yield the right of way under the facts and
circumstances of the case. As given to the jury, the relevant
portion of this instruction stated: "The driver of a vehicle
approaching an intersection must yield the right-of-way to a
vehicle that has lawfully entered the intersection and must
exercise reasonable care to avoid a collision with another
vehicle lawfully in the intersection."
On August 9, 2016, the jury returned a verdict in favor
of Dyas. In response to Question No. 1 on the special verdict
form – "By a preponderance of evidence, was [Dyas] negligent?" –
the jury answered "No."
On August 22, 2016, Fredricksen filed a motion for
mistrial, judgment as a matter of law as to liability and a new
trial on damages, or new trial. Fredricksen argued that
Anderson's challenged testimony constituted an improper opinion
on an ultimate issue and a violation of the circuit court's MIL
rulings. Dyas opposed the motion, and a hearing was held on
October 7, 2016. The circuit court denied Fredricksen's motion
and entered the corresponding order on November 1, 2016.

6/
(...continued)
THE COURT: Well, I can take judicial notice of the law
–- of the statute because it's -- it's on the books. It's
the law.

[FREDRICKSEN'S COUNSEL]: Okay.
THE COURT: So the request for judicial notice is
granted.
7/
Fredricksen's proposed jury instruction 10 provided:

Vehicles that face a circular green traffic signal may
proceed straight through the intersection or turn right or
left unless a sign at the intersection prohibits either
turn.
During the time that the green traffic signal is on,
all vehicle traffic, including vehicles turning right or
left, must yield the right-of-way to other vehicles that are
within the intersection and to pedestrians who are in the
intersection crosswalk.

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On August 26, 2016, Dyas filed a motion for costs.
Fredricksen opposed the motion, and a hearing was held on
October 7, 2016. The circuit court granted in part and denied in
part Dyas's motion for costs, awarding him $35,398.27 pursuant to
HRCP Rule 54(d), and $49,101.15 pursuant to HRCP Rule 68, for a
total of $84,499.42.8/
On November 15, 2016, the circuit court entered its
Final Judgment in favor of Dyas. This appeal followed.

II. Discussion

A. Jury Instruction on HRS § 291C-32(a)(1)(A)

Fredricksen argues that the circuit court, having taken
judicial notice of HRS § 291C-32(a)(1)(A), failed to "clearly and
fully inform the jury of [the court's] finding" and should have
incorporated the language of this section into a jury
instruction, as the law applicable to the facts of the case.
Specifically, Fredricksen argues that the circuit court erred in:
(1) refusing Fredricksen's proposed jury instruction 10, which
incorporated the "operative language" of HRS § 291C-32(a)(1)(A);
(2) refusing to allow Fredricksen's counsel to present the
language of the statute to the jury in closing arguments; and (3)
failing to fully include the language of the statute in a
curative instruction to disregard Anderson's testimony about the
law pertaining to left-turning vehicles.
Fredricksen relies in part on Hawaii Rules of Evidence
(HRE) Rule 201(g) (2016), which states in relevant part that
"[i]n a civil proceeding, the court shall instruct the jury to
accept as conclusive any fact judicially noticed." Fredricksen
argues that, as the trial court must instruct the jury on the
court's judicial notice of an adjudicative fact, so, too, must
the court instruct the jury to accept as conclusive any law
judicially noticed.
As Fredricksen acknowledges, however, HRE Rule 201
"governs only judicial notice of adjudicative facts," HRE Rule

8/
On appeal, Fredricksen does not challenge the costs awarded under
HRCP Rule 54(d).

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201(a), meaning "those [facts] relevant to the issues before the
court. . . ." HRE Rule 201 cmt. HRE Rule 202 (2016),9/ which
governs judicial notice of law, contains no similar provision
limiting the taking of such notice or requiring the trial court
to instruct the jury to accept as conclusive any law judicially
noticed. That said, the Hawai#i Supreme Court has stated:
It is axiomatic that a court must "know" the law within its
jurisdiction; hence a court is required to "notice"
applicable law and to instruct the jury thereon, and the
litigants are not permitted to attempt to persuade the jury
that the law is other than the court finds it to be.

State v. West, 95 Hawai#i 22, 26-27, 18 P.3d 884, 888-89 (2001)
(emphasis added) (quoting Jones on Evidence § 2:2 (7th ed.
1992)). Thus, while a trial court is not required to instruct
the jury on any and all law judicially noticed, it must instruct
the jury on "applicable law" judicially noticed.
Here, the circuit court judicially noticed HRS
§ 291C-32(a)(1)(A), which provides in relevant part that
"[v]ehicular traffic facing a circular green light may proceed
straight through or turn right or left[,]" but "shall yield the

9/
HRE Rule 202 states:

(a) Scope of rule. This rule governs only judicial
notice of law.
(b) Mandatory judicial notice of law. The court shall
take judicial notice of (1) the common law, (2) the
constitutions and statutes of the United States and of every
state, territory, and other jurisdiction of the United
States, (3) all rules adopted by the United States Supreme
Court or by the Hawaii Supreme Court, and (4) all duly
enacted ordinances of cities or counties of this State.
(c) Optional judicial notice of law. Upon reasonable
notice to adverse parties, a party may request that the
court take, and the court may take, judicial notice of (1)
all duly adopted federal and state rules of court, (2) all
duly published regulations of federal and state agencies,
(3) all duly enacted ordinances of municipalities or other
governmental subdivisions of other states, (4) any matter of
law which would fall within the scope of this subsection or
subsection (b) of this rule but for the fact that it has
been replaced, superseded, or otherwise rendered no longer
in force, and (5) the laws of foreign countries,
international law, and maritime law.
(d) Determination by court. All determinations of law
made pursuant to this rule shall be made by the court and
not by the jury, and the court may consider any relevant
material or source, including testimony, whether or not
submitted by a party or admissible under these rules.

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right-of-way to other vehicles . . . lawfully within the
intersection . . . at the time such signal is exhibited."
Notably, the circuit court did not conclude that this statute
applied to the circumstances of this case, but, rather, took
notice of the statute "because it's . . . on the books. It's the
law." See HRE Rule 202(b)(2) (the court must take judicial
notice of the statutes of every state). Nevertheless, both
parties testified that they each faced a green light as they
approached the Intersection. On that basis, HRS
§ 291C-32(a)(1)(A) would appear to apply, at least in relevant
part, to the evidence presented at trial.
Dyas argues that the circuit court's failure to
instruct the jury on HRS § 291C-32(a)(1)(A) was not error because
the court correctly instructed the jury on the more specific and
controlling statute, HRS § 291C-62 (2007). HRS § 291C-62
provides:
The driver of a vehicle intending to turn within an
intersection or into an alley, private road, or driveway
shall yield the right-of-way to any vehicle, bicycle, or
person approaching from the opposite direction or proceeding
in the same direction when such vehicle, bicycle, or person
is within the intersection or so close thereto as to
constitute an immediate hazard.

Both parties agreed below that HRS § 291C-62 applied to
the circumstances here – a conclusion we also reach – as the
record shows the collision occurred while Fredricksen was making
a turn within the Intersection. We cannot conclude, however,
that in these circumstances, HRS § 291C-62 necessarily "controls
over" HRS § 291C-32(a)(1)(A).
Where statutes on the same subject matter appear to
conflict, we apply the following rules of construction:
First, legislative enactments are presumptively valid
and "should be interpreted in such a manner as to give
them effect." Second, "laws in pari materia, or upon
the same subject matter, shall be construed with
reference to each other. What is clear in one statute
may be called in aid to explain what is doubtful in
another." HRS § 1-16 (1985). Third, "where there is a
'plainly irreconcilable' conflict between a general
and a specific statute concerning the same subject
matter, the specific will be favored. However, where
the statutes simply overlap in their application,
effect will be given to both if possible, as repeal by
implication is disfavored. "

Richardson v. City & County of Honolulu, 76 Haw. 46, 54-55, 868

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P.2d 1193, 1201-02 (1994) (some internal citations omitted).
As relevant here, we conclude that HRS
§ 291C-32(a)(1)(A) and HRS § 291C-62 overlap in their application
and both can be given effect; they do not create a plainly
irreconcilable conflict. We read these two statutes together and
apply them to the present circumstances as follows: a vehicle
facing a green light may enter the intersection and turn left,
but must yield the right-of-way to a vehicle approaching from the
opposite direction when that vehicle is "so close [to the
intersection] as to constitute an immediate hazard." HRS
§ 291C-62; see HRS § 291C-32(a)(1)(A). Conversely, the driver of
the approaching vehicle, facing a green light, and not so close
to the intersection as to constitute an immediate hazard, must
yield the right-of-way to the left-turning vehicle lawfully with
the intersection.
Because these two statutes are reconcilable and can
both be given effect, the applicable principles stated in both
statutes should have been - and in fact were (see infra) –
submitted to the jury, for a determination as to which party
should have yielded the right-of-way, based on the evidence
presented at trial. See Vincent v. Clouse, No. CAAP-XX-XXXXXXX,
2014 WL 6488871, at *9 (Haw. App. Nov. 19, 2014) (Mem. Op.) ("The
issue of whether [the plaintiff] should have yielded the right of
way to [the defendant] should be submitted to a trier of fact."
(citing State v. Arena, 46 Haw. 315, 330, 379 P.2d 594, 603
(1963) ("On the evidence, the question of whether or not the
proximity of the oncoming traffic required [the decedent driver]
to yield the right of way was clearly open for the jury's
determination."), overruled on other grounds by Samson v. Nahulu,
136 Hawai#i 415, 363 P.3d 263 (2015))).
"The standard of review for a trial court's issuance or
refusal of a jury instruction is whether, when read and
considered as a whole, the instructions given are prejudicially
insufficient, erroneous, inconsistent, or misleading." Moyle v.
Y & Y Hyup Shin, Corp., 118 Hawai#i 385, 391, 191 P.3d 1062, 1068
(2008) (quoting Stanford Carr Dev. Corp. v. Unity House, Inc.,
111 Hawai#i 286, 297, 141 P.3d 459, 470 (2006)). Where a jury

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instruction is a correct statement of the law, is applicable to
the issues presented, and is not covered by other instructions, a
trial court is required to submit it to the jury. Medeiros v.
Choy, 142 Hawai#i 233, 247, 418 P.3d 574, 588 (2018) (citing Gibo
v. City & Cty. of Honolulu, 51 Haw. 299, 304, 459 P.2d 198, 201
(1969)).
Here, the circuit court submitted to the jury
Fredricksen's proposed jury instruction 11, as modified by the
court. As given, this instruction correctly stated the law –
indeed, it quoted the language of HRS § 291C-62 verbatim – and
was applicable to the evidence presented at trial.
The circuit court also gave the jury the following
instruction, based in part on Fredricksen's proposed jury
instruction 6: "The driver of a vehicle approaching an
intersection must yield the right-of-way to a vehicle that has
lawfully entered the intersection and must exercise reasonable
care to avoid a collision with another vehicle lawfully in the
intersection." This instruction correctly stated the law as it
applied to the evidence presented at trial, and adequately
covered the applicable principle stated in HRS
§ 291C-32(a)(1)(A). See State v. Stuart, 51 Haw. 656, 660-61,
466 P.2d 444, 447 (1970) ("[W]here a given proposition of law is
requested to be given in an instruction, the instruction may
properly be refused where the same proposition is adequately
covered in another instruction that is given. This is true even
where the refused instruction is a correct statement of the
law."); State v. Nakama, No. 28372, 2009 WL 953305, at * 1 (Haw.
App. Apr. 9, 2009) (SDO) (same). Although this instruction did
not include the statute's reference to "vehicular traffic facing
a circular green signal," that omission was not prejudicial in
this context, where the instruction broadened the scope of the
applicable principle to all situations in which the driver of a
vehicle approaches an intersection, whether controlled or
uncontrolled. Indeed, the instruction covered the very principle
derived from HRS § 291C-32(a)(1)(A) that Fredricksen requested be
given in an instruction. Thus, a separate instruction
incorporating the language of HRS § 291C-32(a)(1)(A) was not

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required, and the circuit court did not err in refusing to give
proposed jury instruction 10. See Stuart, 51 Haw. at 660-61, 466
P.2d at 447.
Relatedly, the circuit court did not err in denying
Fredricksen's request to "present the statutory language" of, or
to otherwise "reference," HRS § 291C-32(a)(1)(A) in closing
arguments to the jury.10/ As the circuit court noted, the
applicable principle derived from the statute was adequately
covered in Fredricksen's proposed jury instruction 6, as
modified. The jury was therefore properly instructed on the law
and, accordingly, the parties were free to refer to such law in
their closing arguments. No statutory "reference" or citation
was required in this context. There was also no need for the
circuit court to specifically reference the statute in its
curative instruction regarding Anderson's testimony, which we
conclude below was sufficient in itself.

10/
It appears that while settling jury instructions, Fredricksen
asked the circuit court for clarification on whether counsel would be allowed
to "reference" HRS § 291C-32(a)(1)(A) in closing arguments, in the following
relevant exchange:

THE COURT: Let me give you my inclination on number
10. My inclination would be to refuse this specific
instruction because I think even with the Court's
modification on number 6, it does capture what is set forth
in 291C-32, and specifically I'm referring to paragraph 4,
Instruction No. 6. So I think it would be duplicative to
have this instruction.

[FREDRICKSEN'S COUNSEL]: Are we allowed to argue, in
closing, the statute . . . .
. . . .
THE COURT: . . . Your question is whether or not that
statute can specifically be referenced?
[FREDRICKSEN'S COUNSEL]: That's one.
. . . .

THE COURT: . . . .
So I do believe paragraph 4 of Instruction No. 6 does
set forth some of 291C-32(a), and so you're free to argue
it, but I just don't see the need to specifically reference
291C -- you know, to say during closing argument, Hawaii
Revised Statutes Section 291C-32. They'll get the
instruction, certainly, and you're free to have -- ask them
to turn to the specific page of their jury instructions and
to have them follow you with it.

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B. Motions for Mistrial

Fredricksen moved for a mistrial at two different
junctures in the proceedings: (1) after Anderson testified as to
when a left-turning vehicle at an intersection must yield the
right of way to oncoming traffic; and (2) after the jury rendered
its verdict. Fredricksen argues that the circuit court erred
when it denied Fredricksen's motions for mistrial at both
junctures.
"Appellate review of a trial court's ruling on a motion
for mistrial is under the abuse of discretion standard."
Kawamata Farms, Inc. v. United Agri Prods., 86 Hawai#i 214, 245,
948 P.2d 1055, 1086 (1997) (quoting Aga v. Hundahl, 78 Hawai#i
230, 245, 891 P.2d 1022, 1037 (1995)). "A motion for mistrial
should be granted when there is an occurrence of such character
and magnitude that a party is denied the right to a fair trial."
Id. (quoting Aga, 78 Hawai#i at 245, 891 P.2d at 1037). "The
denial of a motion for mistrial or new trial 'is within the sound
discretion of the trial court and will not be upset absent a
clear abuse of discretion.'" State v. Pasene, 144 Hawai#i 339,
365, 439 P.3d 864, 890 (2019) (quoting State v. Furutani, 76
Hawai#i 172, 178-79, 873 P.2d 51, 57-58 (1994)).
During direct examination by Dyas's counsel, Anderson
testified as follows:
Q. Okay. Are you familiar with the laws concerning
left-turning vehicles in intersections?
A. I believe so.

Q. Okay. And --

[FREDRICKSEN'S COUNSEL]: Your honor, legal
conclusion.
THE COURT: At this point the objection's
overruled.

BY [DYAS'S COUNSEL]:
Q. Okay. Mr. Anderson, are you familiar with the
laws applicable to left-turning vehicles --
A. I--

Q. -- in intersections?
A. I am.
Q. And when there's a green light for both a

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vehicle that is travelling into and through an intersection
and a green light for a left-turning vehicle, who has the
right-of-way?
A. Well, as simple as it seems it -- it is, the
person going through has right-of-way and the person who's
turning left has to yield.

In her motions for mistrial, Fredricksen contended that
Anderson's testimony constituted an improper legal conclusion and
a violation of the circuit court's MIL rulings barring expert
opinions that were not previously disclosed. Fredricksen further
argued that Anderson's testimony was highly prejudicial and that
the circuit court's curative instruction was insufficient,
particularly in light of the court's decision not to specifically
instruct the jury on HRS § 291C-32(a)(1)(A).
In denying Fredricksen's first (oral) motion for a
mistrial, the circuit court noted that counsel's initial
objection to the question – "Are you familiar with the laws
concerning left-turning vehicles in intersections?" – was
premature, and that counsel failed to object to the follow-up
questions that elicited Anderson's challenged testimony, or to
otherwise alert the court that Anderson's opinion had not
previously been disclosed in his deposition or reports. Indeed,
shortly after Anderson gave the testimony at issue, which
occurred on a Friday afternoon, the court took a short afternoon
recess, after which Anderson continued to testify and Fredricksen
still raised no objection to the earlier testimony. Fredricksen
first brought the matter to the circuit court's attention the
next day, Saturday, at the beginning of a conference to settle
jury instructions, at which time Fredricksen made her oral motion
for a mistrial. The circuit court heard argument from both
parties at that time, and then denied the motion on Monday
morning, before trial recommenced. Nevertheless, after Dyas's
counsel acknowledged that the challenged testimony had not been
part of Anderson's deposition,11/ the circuit court ruled "that
testimony, that line of questioning should not have been brought
up[,]" ordered the testimony stricken, and gave the jury a

11/
It also appears that the challenged opinion was not disclosed in
Andersen's report.

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curative instruction. Specifically, the circuit court instructed
the jury as follows:
The Court has ordered stricken Mr. Anderson's
testimony concerning when a left-turning vehicle must yield
to oncoming traffic.
When a Court strikes testimony of a witness, you must
disregard it and you must not consider it during your
deliberations and in reaching a verdict in this case. Thus
you cannot consider in your deliberations Mr. Anderson's
testimony of when a left-turning vehicle must yield to
oncoming traffic. As the trier of fact in this case, it is
for you to decide which party had the right of way on June
24th, 2012.

"When a court has admonished a jury to disregard an
improper statement, the ordinary presumption is that the jury
will do so." Ray v. Kapiolani Medical Specialists, 125 Hawai#i
253, 269, 259 P.3d 569, 585 (2011) (quoting Chung v. Kaonohi
Center Co., 62 Haw. 594, 599, 618 P.2d 283, 287 (1980), abrogated
on other grounds by, Francis v. Lee Enterprises, Inc., 89 Hawai#i
234, 244, 971 P.2d 707, 717 (1999)). "However, 'th[e supreme]
court has held that when improper testimony is prejudicial to the
opposing party, the ordinary presumption prevails only if there
is a reasonable certainty that the impression upon the jury could
be or was dispelled by the court's admonition.'" Id. (quoting
Chung, 62 Haw. at 599, 618 P.2d at 287).
Here, after Anderson gave the challenged testimony,
Dyas's counsel did not further inquire into or emphasize the
testimony but instead moved on to a different line of
questioning. In addition, the challenged testimony was not
referenced in any later testimony by Anderson or other witnesses.
Further, the circuit court gave the curative instruction on the
next trial day — the Monday following the Friday on which the
challenged testimony was given — after the issue was raised in
Fredricksen's first motion for mistrial. We conclude that under
these circumstances, there is at least a reasonable certainty
that the circuit court's prompt curative instructions dispelled
any prejudicial effect of the challenged testimony. See Chung,
62 Haw. at 599-600, 618 P.2d at 288 (holding that improper
testimony did not warrant mistrial where the circuit court gave a
prompt curative instruction, and "there was not a series of
improper statements throughout the trial, nor was the improper

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testimony allowed to stand, thereby permitting emotional and
irrelevant testimony to influence the jury"); cf. Ray, 125
Hawai#i at 269, 259 P.3d at 585 (holding that the circuit court's
jury instructions did not cure its improper admission of expert
witness testimony where multiple witnesses referred to the
testimony before the curative instruction was issued more than
three weeks after the inadmissible testimony, and the instruction
itself did not inform the jury that the testimony was
inadmissible).
Accordingly, on this record, we cannot conclude that
the circuit court abused its discretion in denying Fredricksen's
motions for mistrial.

C. Other Jury Instructions

Fredricksen argues that the circuit court erred in
refusing to give several of Fredricksen's proposed jury
instructions and requested standard jury instructions.
Specifically, Fredricksen contends that the circuit court should
have given her proposed jury instructions 4, 6, 8-11, 14-19, 22,
23, 25-28, and 31, as well as Hawai#i Standard Civil Jury
Instruction (HCJI) No. 8.7. In reviewing Fredricksen's point of
error, we consider whether the instructions, when read and
considered as a whole, are prejudicially insufficient, erroneous,
inconsistent, or misleading. See supra; Moyle, 118 Hawai#i at
391, 191 P.3d at 1068.

1. Proposed Jury Instructions 4, 6, 8-11, and 14

Fredricksen contends that her proposed instructions 4,
6 (as originally proposed prior to the court's modification),
8-11, and 14 were intended to "'bridge the gap' between the
existing pattern instructions and specific motor vehicle crash
instructions which are based in large part on Hawai#i statutory
and case law[.]"
We previously discussed Fredricksen's proposed jury
instruction 6 and concluded that, as modified by the circuit
court, this instruction correctly stated the law as it applied to
the evidence presented at trial and adequately covered the

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applicable principle stated in HRS § 291C-32(a)(1)(A). See
supra.
Fredricksen's proposed jury instructions 4 and 8 were
duplicative of her proposed jury instruction 3, which covered a
driver's duty of due care and was given to the jury. The circuit
court thus did not err in refusing to give proposed jury
instructions 4 and 8.
Fredricksen's proposed jury instruction 9 was
duplicative of her proposed jury instruction 1, which covered the
basic speed law and was given to the jury. The circuit court
thus did not err in refusing to give proposed jury instruction 9.
The portion of proposed jury instruction 11 that was
not given to the jury included language derived from a Louisiana
case, Severson v. St. Catherine of Sienna Catholic Church, 707
So.2d 1026, 1030 (La. App. 5 Cir. 1998). Fredricksen has not
explained why the circuit court was required to adopt this
statement of Louisiana law. In the absence of Hawai#i law
holding the same, it was not error for the circuit court to
refuse the corresponding portion of Fredricksen's proposed jury
instruction 11.
Proposed jury instruction 14 addressed emergencies on
the roadway and the duty of due care. As explained above,
proposed jury instruction 3 covered a driver's duty of due care
and was given to the jury; the corresponding portion of proposed
jury instruction 14 was therefore repetitive. Moreover, in
granting Fredricksen's MIL 17, the circuit court precluded
evidence and argument that Dyas was presented with a sudden
emergency immediately prior to the collision, a ruling that
Fredricksen has not challenged on appeal. As sudden emergency
was not a trial issue, the remainder of proposed jury instruction
14 was inapplicable, and it was not error to refuse the
instruction.

2. Proposed Jury Instructions 15-19, 22, 23, 26-28, and 31

Fredricksen argues that her proposed jury instructions
15-19, 22, 23, 25-28, and 31 were intended to elaborate upon or

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correct errors in the language of the HCJI.12/
Proposed jury instructions 15-18 were intended to
supplement HCJI 6.1,13/ which defines negligence and was given to
the jury. Some portions of proposed jury instructions 15-18 were
repetitive of HCJI 6.1. Portions that were not repetitive appear
to have originated from discussions in Hawai#i case law.
Fredricksen has not offered any argument as to how the failure to
include the requested additional language rendered HCJI 6.1
prejudicially insufficient, erroneous, inconsistent, or
misleading. See Moyle, 118 Hawai#i at 391, 191 P.3d at 1068. We
therefore conclude that the circuit court's refusal to give
proposed jury instructions 15-18 was not error. See id.
Proposed jury instruction 19 was intended to supplement
HCJI 6.2,14/ which addresses foreseeability in the context of
negligence. It appears that proposed jury instruction 19 also
originated from discussions in Hawai#i case law. Again,
Fredricksen has not provided any argument as to how the failure
to include the requested instruction rendered HCJI 6.2
prejudicially insufficient, erroneous, inconsistent, or

12/
We address proposed jury instruction 25 in Subsection 3, below.
13/
HCJI 6.1 provides:

Negligence is doing something which a reasonable
person would not do or failing to do something which a
reasonable person would do. It is the failure to use that
care which a reasonable person would use to avoid injury to
himself, herself, or other people or damage to property.
In deciding whether a person was negligent, you must
consider what was done or not done under the circumstances
as shown by the evidence in this case.
14/
HCJI 6.2 provides:
In determining whether a person was negligent, it may
help to ask whether a reasonable person in the same
situation would have foreseen or anticipated that injury or
damage could result from that person's action or inaction.
If such a result would be foreseeable by a reasonable person
and if the conduct reasonably could be avoided, then not to
avoid it would be negligence.

Only the general nature of the harm need be
foreseeable. A person need not have foreseen the precise
nature of the resulting injury or the exact manner in which
it occurred.
The first paragraph of this instruction was given to the jury.

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misleading. See id. We thus conclude that the circuit court's
refusal to give proposed jury instructions 15-18 was not error.
Proposed jury instruction 22 was intended to supplement
HCJI 7.1,15/ which addresses legal cause of an injury or damage,
and HCJI 7.3,16/ which addresses a plaintiff's pre-existing injury
or condition in determining the amount of damages. Both HCJI 7.1
and 7.3 were given to the jury. Once again, Fredricksen has not
provided any argument as to how the failure to include the
requested additional language rendered HCJI 7.1 and 7.3
prejudicially insufficient, erroneous, inconsistent, or

15/
HCJI 7.1 provides:

An act or omission is a legal cause of an
injury/damage if it was a substantial factor in bringing
about the injury/damage.

One or more substantial factors such as the conduct of
more than one person may operate separately or together to
cause an injury or damage. In such a case, each may be a
legal cause of the injury/damage.
16/
HCJI 7.3 provides:

In determining the amount of damages, if any, to be
awarded to plaintiff(s), you must determine whether
plaintiff(s) had an injury or condition which existed prior
to the [insert date of the incident] incident. If so, you
must determine whether plaintiff(s) was/were fully recovered
from the pre-existing injury or condition or whether the
pre-existing injury or condition was latent at the time of
the subject incident. A pre-existing injury or condition is
latent if it was not causing pain, suffering or disability
at the time of the subject incident.

If you find that plaintiff(s) was/were fully recovered
from the pre-existing injury or condition or that such
injury or condition was latent at the time of the subject
incident, then you should not apportion any damages to the
pre-existing injury or condition.

If you find that plaintiff(s) was/were not fully
recovered and that the pre-existing injury or condition was
not latent at the time of the subject incident, you should
make an apportionment of damages by determining what portion
of the damages is attributable to the pre-existing injury or
condition and limit your award to the damages attributable
to the injury caused by defendant(s).
If you are unable to determine, by a preponderance of
the evidence, what portion of the damages can be attributed
to the pre-existing injury or condition, you may make a
rough apportionment.

If you are unable to make a rough apportionment, then
you must divide the damages equally between the pre-existing
injury or condition and the injury caused by defendant(s).

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misleading, and we conclude it was not error to refuse proposed
jury instruction 22. In addition, because the jury found that
Dyas was not negligent, it did not reach the issue of damages.
Fredricksen thus has failed to demonstrate how the court's
refusal to give proposed jury instruction 22 affected her
substantial rights. See HRCP Rule 61. Accordingly, the circuit
court's decision not to include proposed instruction 22, even if
erroneous, was harmless and does not warrant reversal.
Fredricksen argues that proposed jury instruction 23
was intended to "remedy" HCJI 8.2, which defines special damages
as "those damages which can be calculated precisely or can be
determined by you with reasonable certainty from the evidence."
Specifically, Fredricksen contends that HCJI 8.2 erroneously uses
the phrase "reasonable certainty." Hawai#i courts, however, have
consistently required that damages be proven with "reasonable
certainty" in this context. See, e.g., Exotics Hawaii-Kona, Inc.
v. E.I. Du Pont De Nemours & Co., 116 Hawai#i 277, 292, 172 P.3d
1021, 1036 (2007) ("It is well-settled that all tort claims
require that damages be proven with reasonable certainty.")
(citing numerous cases). The circuit court thus did not err in
refusing proposed jury instruction 23. Furthermore, because the
jury found that Dyas was not negligent, it did not reach the
issue of damages. Fredricksen thus has failed to demonstrate how
the court's refusal to give proposed jury instruction 23 affected
her substantial rights. See HRCP Rule 61. Accordingly, the
circuit court's decision not to include proposed instruction 22,
even if erroneous, was harmless and does not warrant reversal.
Proposed jury instructions 26-28 were intended to
supplement HCJI 8.14,17/ which defines "wanton," and HCJI 8.17,18/

17/
HCJI 8.14 provides:

An act is "wanton" when it is reckless, heedless, or
characterized by extreme foolhardiness, or callous disregard
of, or callous indifference to, the rights or safety of
others.
18/
HCJI 8.17 provides:
Gross negligence is conduct that is more extreme than
ordinary negligence. It is an aggravated or magnified
failure to use that care which a reasonable person would use
to avoid injury to himself, herself, or other people or
(continued...)

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which defines "gross negligence," for the purpose of determining
punitive damages. However, the circuit court granted Dyas's
motion for judgment as a matter of law on Fredricksen's punitive
damages claim, a ruling that we affirm in Section D. below.
Because the punitive damages claim was not submitted to the jury,
the circuit court did not err in refusing proposed jury
instructions 26-28.
Fredricksen argues that the circuit court should have
given proposed jury instruction 31, which stated in relevant part
that the jury "may not consider [Fredricksen's] motives in
bringing this law suit." However, the circuit court granted
Fredricksen's MIL 3, precluding evidence and argument speculating
as to Fredricksen's motives for bringing suit. And Fredricksen
points to no evidence in the record from which the jury could
have inferred her motives for bringing suit. Because
Fredricksen's motives were not at issue, proposed instruction 31
was inapplicable. Cf. Medeiros, 142 Hawai#i at 246, 418 P.3d at
587 (holding that a plaintiff's proposed jury instruction to
restrict consideration of plaintiff's motive in bringing suit was
applicable to the issues raised, where defendant sought to elicit
motive evidence for the purpose of demonstrating that plaintiff
committed worker's compensation fraud for monetary gain and that
the lawsuit was similarly motivated, and encouraged the jurors to
so conclude in closing argument). Thus, the circuit court did
not err in refusing to give Fredricksen's proposed jury
instruction 31.

3. HCJI No. 8.7, Proposed Jury Instruction 25, and the
Proposed Life Expectancy Table

Fredricksen contends that the circuit court erred in
refusing to give HCJI No. 8.7, which states: "The life
expectancy of plaintiff(s) may be considered by you in
determining the amount of damages, if any, which he/she/they
should receive for permanent injuries and future expenses and
losses." Fredricksen further argues that the court erred in

18/
(...continued)
damage to property. But gross negligence is something less
than willful or wanton conduct.

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refusing to give proposed jury instruction 25, which also
addressed life expectancy and was intended to replace HCJI No.
8.7. In addition, Fredricksen asserts that the circuit court
erred "in denying her use of a life expectancy table."
Fredricksen has not provided a sufficient record for
our review of these alleged errors. See HRAP Rule 10(b) (making
it the appellant's responsibility to include in the record on
appeal transcripts of the pertinent oral proceedings conducted by
the trial court); Bettencourt v. Bettencourt, 80 Hawai#i 225,
230, 909 P.2d 553, 558 (1995) ("The burden is upon appellant in
an appeal to show error by reference to matters in the record,
and he [or she] has the responsibility of providing an adequate
transcript." (quoting Union Bldg. Materials Corp. v. The Kakaako
Corp., 5 Haw. App. 146, 151, 682 P.2d 82, 87 (1984))).
Fredricksen acknowledges, for example, that the transcripts of
the orthopedic surgeons who purportedly testified "on the nature
and permanency of [her] crash injuries . . . are not part of the
[r]ecord on [a]ppeal." As a result, we are unable to determine
whether giving HCJI No. 8.7 or proposed jury instruction 25 was
warranted, or whether her injuries were of a sufficient
"permanent character" to warrant the use of the life expectancy
table. See Franco v. Fujimoto, 47 Haw. 408, 435, 390 P.2d 740,
755 (1964) ("The use of mortality tables in personal injury
actions is limited to injuries of a permanent character."),
overruled on other grounds by Barretto v. Akau, 51 Haw. 383, 393,
463 P.2d 917, 923 (1969). Because Fredricksen has failed to
provide a sufficient record, we disregard the asserted errors
regarding the life expectancy instructions and table. See
Tradewinds Hotel, Inc. v. Cochran, 8 Haw. App. 256, 266, 799 P.2d
60, 67 (1990).
Even if we were to consider the asserted errors,
Fredricksen has failed to demonstrate how they affected her
substantial rights, given that the jury did not reach the issue
of damages. See HRCP Rule 61. Accordingly, the alleged errors,
even if made, were harmless and do not warrant reversal.

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D. Motion for Judgment as a Matter of Law

Fredricksen argues that the circuit court erred in
granting Dyas's oral motion for judgment as a matter of law on
her punitive damages claim.
Again, Fredricksen has not supplied a complete record
for our review of the asserted point of error. Specifically,
Fredricksen acknowledges that "[t]he transcript documenting Mr.
Dyas's oral motion [for judgment as a matter of law on punitive
damages] was not ordered for this appeal." As a result, we are
unable to review the parties' arguments at the time of the
motion, including any argument made by Fredricksen in opposition,
such that we can determine whether Fredricksen preserved the
arguments she is now making on appeal. In this regard,
Fredricksen also fails to identify in her opening brief "where in
the record the alleged error was objected to or the manner in
which the alleged error was brought to the attention of the
[circuit] court . . . ." HRAP Rule 28(b)(4). Fredricksen thus
has failed to satisfy her "burden . . . to show error by
reference to matters in the record," including her
"responsibility of providing an adequate transcript."
Bettencourt, 80 Hawai#i at 230, 909 P.2d at 558 ("we are, . . .
unable to consider the merits of appellant's contention . . .
because appellant failed to include the transcript of the
applicable hearing in the record on appeal"); Tradewinds Hotel, 8
Haw. App. at 266–67, 799 P.2d at 66–67 (court is unable to review
asserted errors where appellant has failed to provide transcript
of proceedings below).
Fredricksen asserts that "[b]efore issuing its ruling
on August 5, 2016," i.e., three days after the motion was made,
"the Court did not offer an opportunity for Ms. Fredricksen to
submit argument[,]" and that "[i]f given an opportunity for
further argument, Ms. Fredricksen would have cited to and relied
on her gross negligence and reckless disregard of safety argument
in her June 30, 2016 memorandum in opposition to Mr. Dyas'
summary judgment motion to strike her punitive damages claim[.]"
(Emphasis added.) Fredricksen's careful choice of words suggests
that she argued against Dyas's motion for judgment as a matter of

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law at the time it was made, but, for whatever reason, did not
include the transcript as part of the record. Regardless,
because Fredricksen has not provided this court with a complete
record of the motion and related arguments, we are unable to
review her point of error. Accordingly, we disregard
Fredricksen's argument that the circuit court erred in granting
Dyas's oral motion for judgment as a matter of law on the
punitive damages issue. See HRAP Rule 28(b)(4); Tradewinds
Hotel, 8 Haw. App. at 266, 799 P.2d at 67.
Even if we were to consider the asserted error,
Fredricksen has failed to demonstrate how it affected her
substantial rights, given that the jury did not reach the issue
of damages. See HRCP Rule 61. Accordingly, the alleged error,
even if made, was harmless and does not warrant reversal.

E. Award of Costs

Fredricksen contends that the circuit court erred in
awarding Dyas costs pursuant to HRCP Rule 68.
HRCP Rule 68 provides in relevant part: "At any time
more than 10 days before the trial begins, any party may serve
upon any adverse party an offer of settlement or an offer to
allow judgment to be taken against either party for the money or
property or to the effect specified in the offer, with costs then
accrued." If an offer of settlement is made, and "[i]f the
judgment finally obtained by the offeree is not more favorable
than the offer, the offeree must pay the costs incurred after the
making of the offer." The latter quoted language was contained
in Dyas's June 22, 2016 settlement offer to Fredricksen pursuant
to HRCP Rule 68 (Settlement Offer).
Here, Fredricksen argues that under the "express terms"
of Dyas's Settlement Offer and "basic contract principles," HRCP
Rule 68 does not apply and cannot be enforced against Fredricksen
because, as the offeree, she did not obtain a judgment in her
favor. Fredricksen relies on case law from the United States
Supreme Court interpreting Federal Rules of Civil Procedure
(FRCP) Rule 68 and from other jurisdictions interpreting
purportedly analogous state rules.

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However, this court's decision in Kikuchi v. Brown, 110
Hawai#i 204, 130 P.3d 1069 (App. 2006), which Fredricksen does
not cite in her opening brief, is dispositive. The plaintiff in
Kikuchi argued in part, as Fredricksen does here, that "if the
plaintiff does not win some sort of verdict against the
defendant, an offer of [settlement] under Rule 68 is void, and
cannot be used [by the defendant] to gain an award of costs."
Id. at 207, 130 P.3d at 1072. We first acknowledged having
previously held that HRCP Rule 68's provision for payment of
post-offer costs "is not applicable in a case where judgment is
rendered against the offeree." Id. at 208, 130 P.3d 1073. We
noted, however, that, "[a]t the time, HRCP Rule 68 was virtually
identical to its federal counterpart and federal courts had so
construed FRCP Rule 68." Id. at 208, 130 P.3d 1073. We then
discussed the effect of the 1999 amendment to HRCP Rule 68:
The federal rule and the pre-1999 version of HRCP Rule 68
were limited to "a party defending against a claim" and HRCP
Rule 68 had been further limited to only those costs
associated with the claim the party was defending against.
Crown Props., Inc. v. Fin. Sec. Life Ins. Co., 6 Haw. App.
105, 113, 712 P.2d 504, 510 (1985). With the 1999 amendment
to HRCP Rule 68, "any party may serve upon any adverse party
an offer of settlement or an offer to allow judgment to be
taken against either party." (Language added in 1999
underscored.)

Id.
We construed the change in language as follows:
The intent behind this amendment appears clear: To level
the playing field by allowing offers of settlement by all
parties to the litigation and to encourage the offeree to
accept the offer or run the risk that he or she must pay the
offeror's costs if the eventual judgment is not more
favorable than the offer. The change to the language of the
first sentence of the rule by necessity changed the meaning
of the fourth: the offeror could be any party and the
offeree could be any party who had received the offer.
Consequently, because a defendant could now be an "offeree,"
a plaintiff could collect post-judgment costs where a
judgment in defendant's favor was not more favorable than
the plaintiff's offer. In short, the removal of the
defendant-only limitation on offerors also removed the
plaintiff-only limitation on judgments. Similarly, the
amendment allowing an offer of judgment to be taken "against
either party" would be rendered meaningless if the rule were
still to be interpreted as applying only to judgments
rendered in the offeror's favor.

Id. at 208-09, 130 P.3d 1073-74. We thus held that "HRCP Rule 68
does apply where the judgment is in the defendant-offeror's favor
as it too can represent a judgment that is not more favorable to

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the offeree than the offer." Id. at 209, 130 P.3d 1074; see also
Cox v. Cox, 138 Hawai#i 476, 486 n.16, 382 P.3d 288, 298 n.16
(2016) (noting that "the plain language of [Hawai#i Family Court
Rules] Rule 68," which is similar to HRCP Rule 68, "permits an
award of post-offer costs even in instances where the judgment
obtained favors the defendant-offeror and is against the
plaintiff-offeree" (citing HFCR Rule 68 and Kikuchi)).19/
Here, judgment was entered in favor of Dyas, the
defendant-offeror. The judgment was not more favorable to
Fredricksen, the offeree, than the Settlement Offer. HRCP Rule
68 therefore applied, and the circuit court did not abuse its
discretion in awarding Dyas costs pursuant to that rule.

III. Conclusion

For these reasons, we affirm the Final Judgment,
entered on November 15, 2016, in the Circuit Court of the First
Circuit.

DATED: Honolulu, Hawai#i, January 29, 2021.

On the briefs:

Arthur Y. Park, /s/ Katherine G. Leonard
Patricia Kim Park, Presiding Judge
John C. McLaren,
Micah P.K. Aiu
(Park & Park) /s/ Clyde J. Wadsworth
and Robert F. Miller Associate Judge
for Plaintiff-Appellant.
Rebecca A. Copeland /s/ Karen T. Nakasone
(Law Office of Associate Judge
Rebecca A. Copeland, LLC)
for Defendant-Appellee.

19/
Fredricksen argues for the first time in her reply brief that our
ruling in Kikuchi should be "re-evaluated" in light of the extrajurisdictional
authorities cited in her opening brief. We decline to do so. See Ray, 125
Hawai#i at 267, 259 P.3d at 583 (new argument raised in a reply brief was
waived); HRAP Rule 28(d) (providing that "[t]he reply brief shall be confined
to matters presented in the answering brief"); see also Cox, 138 Hawai #i at
486 n.16, 382 P.3d at 298 n.16 (relying on this court's interpretation of HRCP
Rule 68's provision for payment of post-offer costs).

25