Waikiki v. Ho'omaka Village ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2021
10:20 AM
Dkt. 102 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
RAEVYN WAIKIKI,
Plaintiff-Counterclaim-Defendant/Appellee,
v.
HO#OMAKA VILLAGE ASSOCIATION OF APARTMENT OWNERS,
Defendant/Cross-Claim Plaintiff/Appellee,
and
VIOLET JHUN,
Defendant/Cross-Claim Defendant/Counterclaim Plaintiff/
Third-Party Plaintiff/Appellant,
and
WADE KIOSHI KALEOLANI SHIMOJO,
Third-Party Defendant/Appellee,
and
DOE DEFENDANTS 1-20, Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 13-1-2391-09)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
I. Introduction
In this tort case involving injuries from an
altercation involving three dogs and two individuals, Defendant-
Third Party Plaintiff-Appellant Violet Jhun (Jhun) appeals from
the "Final Judgment" entered on August 11, 2017, by the Circuit
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Court of the First Circuit (Circuit Court),1 in favor of Third
Party Defendant-Appellee Wade Shimojo (Shimojo). Jhun challenges
the underlying "Order Granting [Shimojo's] Motion for Summary
Judgment Filed March 6, 2015" (Order Granting Summary Judgment)
entered on June 18, 2015, by the Circuit Court.2
This case is currently before us on remand from the
Hawai#i Supreme Court after we dismissed Jhun's appeal for lack
of jurisdiction because the Circuit Court had not entered a
separate final judgment disposing of all claims as to all
parties. Waikiki v. Ho#omaka Vill. Ass'n of Apt. Owners, 140
Hawai#i 197, 204, 398 P.3d 786, 793 (2017). The Hawai#i Supreme
Court remanded the case to our court with instructions to issue
an order for temporary remand to the Circuit Court for entry of a
final appealable judgment, and then for us to address the merits
of Jhun's appeal. Id. Thus, in light of the Hawai#i Supreme
Court's opinion, and the Final Judgment entered thereafter on
temporary remand to the Circuit Court, we address Jhun's appeal
on the merits.
This action arises from an incident on September 30,
2011, in which Jhun's two dogs got loose from her apartment and
an altercation resulted in injuries to Jhun's neighbor Raevyn
Waikiki (Waikiki) and Waikiki's dog (Sophie). On September 4,
2013, Waikiki initiated this action by filing a Complaint
against, inter alia, Jhun asserting that Jhun's negligence, gross
negligence and/or recklessness resulted in serious injuries to
Waikiki and Sophie.3
1
The Honorable Gary W.B. Chang presided in entering the Final Judgment
filed on August 11, 2017.
2
The Honorable Karl K. Sakamoto presided with regard to Shimojo's
motion for summary judgment and entered the Order Granting Summary Judgment.
3
Waikiki's Complaint also named Ho#omaka Village Association of
Apartment Owners (Ho#omaka Village) as a defendant, alleging that prior to the
September 30, 2011 incident, Waikiki and other tenants had complained about
Jhun's dogs to Ho#omaka Village's resident manager, employees, agents or
representatives, Ho#omaka Village knew or should have known the dogs were
dangerous and a hazard to the community, but that Ho #omaka Village failed to
(continued...)
2
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In turn, on November 15, 2013, Jhun filed a Third Party
Complaint against Shimojo, alleging that Shimojo was an owner of
Sophie and that his conduct in the year prior to the September
30, 2011 incident had caused the incident. In the Third Party
Complaint, Jhun alleges, inter alia, that: she also sustained
injuries during the subject incident when she tried to break up
the dog fight and Sophie bit her; for approximately one year
prior to the incident Shimojo and Sophie teased, taunted and
provoked Jhun's dogs; and "[s]aid injury, damages and attorneys
fees and potential adverse judgment were or will all be the
result of the wrongful, intentional, willful, reckless or
negligent conduct of SHIMOJO in teasing, taunting and provoking
JHUN'S dogs for approximately one year prior to September 30,
2011."
This appeal concerns the Circuit Court's grant of
summary judgment in favor of Shimojo and against Jhun related to
Jhun's Third Party Complaint against Shimojo.
On appeal, Jhun raises a single point of error and
argues that the Circuit Court erred in granting summary judgment
in favor of Shimojo because Shimojo owed Jhun a duty of ordinary
care under the facts of this case, and assuming there is a duty
of care, Jhun argues there is ample evidence in the record that
Shimojo breached his duty to Jhun by taunting, teasing, and
provoking Jhun's dogs, and there is ample evidence that the
breach resulted in injuries to Jhun.
Given the evidence and undisputed material facts of
this case, we conclude Shimojo did not owe a legal duty to Jhun
under the circumstances here as to the conduct that Jhun asserts
against Shimojo. The Circuit Court properly entered summary
judgment in favor of Shimojo, and thus we affirm.
3
(...continued)
remove Jhun's dogs or take action to protect the residents.
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II. Background
A. Factual Background and Evidence
The pertinent facts in this case are not in dispute.
Waikiki and Jhun were neighbors in the Ho#omaka Village apartment
complex in Waipahu, Hawai#i. On September 30, 2011, as Waikiki
returned to her apartment from walking Sophie, Jhun's two dogs
got loose from Jhun's apartment and attacked Sophie in the common
area of Ho#omaka Village.4 One of Jhun's dogs is a pitbull breed
4
The Complaint at paragraphs 8-10 alleges:
8. On or about Friday, September 30, 2011 at approximately 6:30
p.m., Plaintiff had been walking her dog, Sophie, in the common
area of Ho#omaka Village and was just returning home to her
apartment. As she was proceeding to unlock her front door, her
neighbor, Defendant VIOLET JHUN, opened her front door and let
loose her Pitbull dog into the common area without a leash. Said
Pitbull ran over and viscously attacked Plaintiff RAEVYN WAIKIKI
in the Ho#omaka Village common area.
9. At said time and place, Defendant VIOLET JHUN failed to get
control of her Pitbull dog and, in fact, proceeded to let her
Rottwieller [sic] dog out into the common area without a leash.
Said Rottwieler [sic] ran over and viscously attacked Sophie,
Plaintiff RAEVYN WAIKIKI's dog, in the Ho#omaka Village common
area.
10. At said time and place, Sophie, Plaintiff RAEVYN WAIKIKI's
dog, ran away from the common area in front of her apartment and
the Defendant VIOLET JHUN's two violent dogs chased Sophie and
attacked her further on the grounds of the Ho #omaka Village.
In her Answer to the Complaint, Jhun responded in relevant part as follows:
6. With respect to the allegations in Paragraph 8 of the
complaint, JHUN admits that on or about Friday, September 30, 2011
at approximately 6:30 p.m., WAIKIKI was walking her dog, Sophie,
in the common area of Ho#omaka Village and that JHUN'S pitbull
dog, Kaltuchu [sic], got loose into the common area without a
leash. JHUN denies that Kaltuchu [sic] attacked WAIKIKI at such
time and place or at any other time or place. JHUN denies that she
opened her door and let Kaltuchu [sic] loose. JHUN is without
knowledge sufficient to form a belief as to the truth of the
remaining allegations there.
7. With respect to the allegations of Paragraph 9 of the
complaint, JHUN admits that her Rottweiler dog, Nala, also got
loose without a leash in the common area and got into a fight with
WAIKIKI'S dog Sophie. JHUN denies that she "let her Rottweiler
out" and denies that she "failed to control her pitbull."
8. With respect to the allegations of Paragraph 10 of the
complaint, JHUN admits that Nala and Kaltuchu [sic] got into a
fight with Sophie in the common area adjacent to WAIKIKI and
(continued...)
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of dog and the other is a rottweiler breed of dog. Sophie is a
pitbull mix breed of dog. Waikiki, Sophie, and Jhun were injured
as a result of the incident. At the time, Shimojo lived with
Waikiki and Sophie, but was not present when the incident
occurred.
Jhun already had her two dogs when Shimojo and Waikiki
got Sophie. Jhun suggested to Shimojo that the dogs should be
socialized and get to know each other. Shimojo declined to
socialize Sophie with Jhun's dogs.
To specify the circumstances under which Jhun asserts
Shimojo had a legal duty in this case, portions of Jhun's
deposition testimony were submitted in support of Shimojo's
summary judgment motion. Relevant portions of Jhun's testimony
addressed how Shimojo played with Sophie and allegedly irritated
Jhun's dogs, as follows:
Q. Okay, thank you. And he would say something to Sophie
like "good girl" or something like that while he was
playing with Sophie?
A. He would make noises.
Q. When you say "make noises," like –-
A. "Huh, come on, girl, huh, come on, come on." Like
that.
Q. So: Come on girl, huh, huh, come on girl?
A. Huh, he make football like this. (Witness indicating.)
Q. And then clap his hands?
A. He'd clap his hands like that. (Witness indicating.)
Q. And he would do that with Sophie about how often?
A. Daily.
Q. Like once a day?
A. Daily, after when he comes home from work.
Q. And about what time, 4 clock [sic], 5 o'clock?
4
(...continued)
SHIMOJO'S and JHUN'S apartments.
(Emphasis added)
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A. Around there.
Q. And he'd do it for, what, about?
A. Days turn into weeks, week[s] turn into months.
Q. So this was a routine, a regular play routine that
Wade had with Sophie; is that correct?
A. Seemed like it, yes.
Q. And when they played it would be, what, half an hour,
20 minutes, about how long would they play like that?
A. 15, 20 minutes.
Q. Okay, 15, 20 minutes. Is it Ms. Jhun?
A. You can call me Violet.
Q. So, Violet, in this legal pleading you filed, called a
third-party claim, you allege that Wade was teasing,
taunting and provoking your dogs for approximately one
year prior to September 30th, 2011. When you said
that, this is what you're talking about, Wade playing
with Sophie.
A. Yeah, and he would look up and laugh.
Q. So while Wade was playing with Sophie he would look up
and laugh.
A. He would look up and laugh.
Q. About how many times would he look up and laugh during
that 15 minutes?
A. Especially if I was on the back lanai.
Q. So if you are on the back lanai he would look up and
laugh?
A. He'd go -- (Witness indicating.)
Q. As he would say: Go girl, go girl, he would look up at
you and laugh?
A. Yeah, and my dogs would be going -- (witness
indicating.) -- like animals in a cage, like back and
forth. (Witness making whimpering sound.) Kaltochu
would do that.
Q. Pardon me?
A. Kaltochu would do that. Yeah, he still had a puppy
mind, you know, wanted to play.
Q. So Kaltochu wanted to play. Was he in a cage when he
would go back and forth?
A. No.
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Q. He was on the lanai.
A. Yes.
Q. So during that year approximately how many times were
you on the lanai and you saw Wade playing with Sophie
on the grassy area?
A. Whenever I saw my dogs whimpering, my dog whimpering,
and you can hear his nails on the floor on the lanai,
which you can hear it, yeah, especially if you're
movable in the house you can hear it, so I go out and
investigate to see why they're doing that, and then I
would see that.
Q. So Kaltochu would be kind of pacing on the lanai while
Wade was --
A. And looking.
Q. -- and looking. But Kaltochu wasn't barking?
A. No, just -- (Witness making whimpering sound.) -- like
that.
Q. Yeah, just kind of making a little "hmph," what do we
call it?
A. No, like a whimp, like he was anxious, like he wanted
to play kind of thing, looked like.
Q. So it wasn't a mean sound that Kaltochu was making, it
was just kind of like a, you know, just kind of
regular, you know, doggie noise that he wanted to play
also.
A. Yes, and I would go out and investigate, and that's
when -- (Witness indicating.)
Q. So this would go on. So in that third-party claim,
paragraph 12, when you say that Wade was teasing,
taunting, provoking the dogs, that's what you're
talking about, the playing with Sophie on the grassy
area, correct?
A. Yes.
Q. Okay, thank you.
(Emphasis added).
In her Memorandum in Opposition to Shimojo's Motion for
Summary Judgment, Jhun attached her declaration which states in
relevant part:
9. [E]very day for approximately one year prior to the
[dog] fight, [Shimojo] would play with Sophie on the common
area lawn just below my lanai where I kept [my dogs].
10. During this time, [Shimojo] would make sounds and
gestures that annoyed [my dogs]. [My dogs] would begin
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pacing and whining and got extremely agitated.
11. I complained to [Shimojo] about him doing this as it
was irritating my dogs and [Shimojo] only laughed.
12. I put up a barrier on my lanai to obscure the dogs
[sic] view, but they were still irritated by the sounds.
13. When I was walking my dogs, [Shimojo] and [Waikiki]
allowed Sophie to bark aggressively at [my dogs] from within
their apartment.
14. This would cause my dogs to react aggressively as well.
In Shimojo's Reply Brief, he attached further portions
of Jhun's deposition transcript, including where she testified as
follows:
Q. What about Wade Shimojo, have you ever talked to Wade
Shimojo about the dog bite incident?
A. Yes.
Q. When did you talk to him?
A. The day after.
Q. Tell me what both of you said.
A. I apologized to him, and I told him that any doctor
bills for Sophie, that if he could, you know, let me
know how much it is because I wouldn't wish it upon my
worst enemy, to -- whatever happened to Sophie. So he
showed me pictures of her on his phone.
Q. Anything else?
A. Yes. And I told him that I wanted to speak with
Raevyn, you know, to see how she was.
Q. So you offered to pay for Sophie's vet bills?
A. For whatever bills, yeah, necessary that was involved
in this.
Q. And why did you do that?
A. Pardon?
Q. Why did you offer to pay for Sophie's veterinarian
bills?
A. Because it was my dog that got loose from my
apartment.
Q. Was it your dog that bit Sophie?
A. Yes.
Q. Do you know which one of your dogs bit Sophie?
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A. Kaltochu did. K-A-L-T-O-C-H-U.
Q. Can you spell that.
A. K-A-L-T-O-C-H-U.
Q. And what type of dog is Kaltochu?
A. American Pit Bull.
Q. Was it only Kaltochu who bit Sophie?
A. The first one out, yes.
Q. What do you mean the first one out?
A. Well, it all started off washing rugs, and I didn't
took [sic] the first set of rugs out –-
MR. SCHOETTLE: The question was: Did the other dog
bite Sophie.
THE WITNESS: Not until later.
Q. BY MS. [sic] MURATA: What's the other dog's name?
A. Nala.
Q. And what type of dog is Nala?
A. Rottweller [sic].
Q. Did Nala also bite Sophie?
MR. TURBIN: Objection, asked and answered. She said
"later."
Q. BY MR. MURATA: Go ahead.
A. Later.
Q. Was Nala also in the apartment?
A. Yes.
Q. While you were –-
A. She was on the lanai. They both were.
Q. So both dogs were in your unit while you were cleaning
the rugs.
A. Yes.
(Emphasis added).
B. Procedural Background
On September 4, 2013, Waikiki filed a complaint against
Jhun and the Ho#omaka Village Association of Apartment Owners
(AOAO) alleging, inter alia, that Jhun negligently and/or
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recklessly allowed her two dogs into the common area of Ho#omaka
Village without a leash and allowed her dogs to attack Waikiki
and Sophie.5 On November 15, 2013, Jhun filed a Third Party
Complaint against Shimojo, alleging, inter alia, that for
approximately one year prior to the incident, Shimojo and Sophie
teased, taunted and provoked Jhun's dogs. On March 6, 2015,
Shimojo filed his Motion for Summary Judgment.
At the hearing on Shimojo's summary judgment motion,
Jhun's counsel argued that:
[Jhun's counsel:] Mr. Shimojo was engaged in conduct which
was creating a hostile relationship between Ms. Jhun's dogs
and Sophie. Ms. Jhun asked him to stop. He laughed and
refused.
He could have been playing with his dog anywhere in
the whole world, but he kept on doing it right under the
eyes of Ms. Jhun's dogs which was making them agitated,
which is making them irritated.
THE COURT: That's where the Court disagrees. I don't think
there's a duty for Shimojo to train his dog not to provoke
or be in those situations.
[Jhun's counsel]: Well, as a general duty of reasonable
care, no matter what you are doing, and you are creating a
situation that's –- [Shimojo] admitted that he was afraid of
the dogs getting hostile. He admitted that. I quoted it
from his deposition. He admitted he knew what was happening.
He knew what was happening. He wanted it to happen. He
wanted somebody to get bitten. He wanted [Waikiki] to get
bitten so she could sue.
THE COURT: That's not what the depositions reflect that's
been submitted. I don't think it establishes that, what you
have submitted to the Court.
Jhun's counsel then quoted portions from Shimojo's
deposition in which Shimojo testified that when he got Sophie, he
declined Jhun's suggestion to socialize Sophie with Jhun's dogs
and that Shimojo did not think the dogs had to be socialized
after Jhun's dogs exhibited some aggression towards Sophie.6
5
Waikiki and the AOAO are not parties to this appeal.
6
The portion of Shimojo's deposition quoted by Jhun's counsel during
the hearing is as follows:
Q Now, at the time you got Sophie, [Jhun] already had her
two dogs, correct?
(continued...)
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During the hearing, the Circuit Court rejected Jhun's
theory of duty, stating:
THE COURT: So the Court is saying if [Jhun's] dog bit
someone, [Shimojo's] dog didn't have a duty to be
socialized. Your client's dog had the duty not to bite
someone, to be trained in a manner that it wouldn't bite
someone.
There's no –- I am not going to –- I don't see a basis
of the Court creating a duty on third-party dogs to be
socialized.
[Jhun's counsel]: All right. He knows they are getting
aggressive, he knows that's going to happen, and I am saying
–- arguing that that's what he wants. But, you know, I mean
–-
THE COURT: I mean, you are pointing out to his mental state
whether or not he believes they should be socialized. You
don't point to facts showing that he created the situation
that made your client's dog a danger.
The Circuit Court then orally granted Shimojo's Motion
for Summary Judgment and entered its written order on June 18,
2015.7 Subsequently, as noted above, the Circuit Court entered
6
(...continued)
A Yes, [I] think so.
Q And when you got Sophie, [Jhun] suggested that the dogs
be socialized, get to know each other, didn't she?
A I'm not sure. Maybe.
Q Maybe?
A Maybe. Sure.
Q Did you make any attempt to socialize Sophie with
[Jhun's] next door dogs?
A No, I don't think so. No. The dogs would always be
upstairs in the kennel or on the lanai. There was –- yeah.
Whenever I would walk Sophie, then there would be nobody
home or they'd be upstairs on the lanai, you know.
Q Well, on the first occasion when [Jhun's] dogs exhibited
some aggression towards Sophie, did you not think maybe we
ought to let these dogs socialize so that they don't exhibit
aggressive behaviors toward each other?
A No. No, I didn't really.
Q You never did. And you don't recall whether or not [Jhun]
ever suggested that that be done?
A No, I don't recall.
Q Okay. So you don't deny it?
A As far as?
Q She might have?
A Yeah, anything.
7
After the Order Granting Summary Judgment dismissed the third party
claim against Shimojo, the remaining parties, Jhun, Waikiki, and the AOAO were
referred to non-binding arbitration. On December 9, 2015, Jhun, Waikiki and
the AOAO settled and filed a Stipulation for Dismissal with Prejudice
(Stipulation for Dismissal) as to all claims and parties. However, Shimojo
was not included in the Stipulation for Dismissal and did not sign the
(continued...)
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the Final Judgment on the Third-Party Complaint on August 11,
2017.
III. Standards of Review
A. Summary Judgment
The grant or denial of summary judgment is reviewed de
novo. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai#i
331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media
USA, Inc., 135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)); see also
Ralston v. Yim, 129 Hawai#i 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 a judgment as a matter of law." Nozawa, 142
Hawai#i at 342, 418 P.3d at 1198 (brackets omitted) (quoting
Adams, 135 Hawai#i at 12, 346 P.3d at 81). "A fact is material
7
(...continued)
stipulation. In his answering brief, Shimojo argues that on August 31, 2016,
while the case was pending before the Hawai #i Supreme Court, Shimojo signed
the Stipulation for Dismissal in a "counter-part signature" and filed the
document in the Circuit Court. Shimojo contends that because he signed the
Stipulation for Dismissal, this court no longer has jurisdiction over the
issues on appeal and that Jhun terminated her right to further litigate the
claims against Shimojo. This challenge to jurisdiction is without merit.
The Stipulation for Dismissal provides:
IT IS STIPULATED AND AGREED by and between [Waikiki] and
[the AOAO] and [Jhun], through their respective counsel,
that pursuant to Rule 41(a)[(]1)(B) of the Hawaii Rules of
Civil Procedure, all claims asserted in the Complaint filed
on September 4, 2013 against [the AOAO and Jhun]; all
Counter-Claims filed November 15, 2013 by Violet Jhun
against Raevyn Waikiki; and all Cross-Claims filed September
12, 2013 by [the AOAO] against Violet Jhun are hereby
dismissed with prejudice.
(Emphases added).
Shimojo acknowledges the remaining parties voluntarily entered into the
Stipulation for Dismissal and did not include Shimojo or Jhun's third party
claim against him because it had been dismissed through the Order Granting
Summary Judgment. Notwithstanding Shimojo's contention that the Stipulation
for Dismissal dismissed all claims as to all parties, Shimojo was not a party
to the Stipulation for Dismissal and Jhun did not agree to dismiss her claim
against him. Thus, Shimojo's counter-part signature does not affect our
jurisdiction over this appeal.
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if proof of that fact would have the effect of establishing or
refuting one of the essential elements of a cause of action or
defense asserted by the parties." Id. (quoting Adams, 135
Hawai#i at 12, 346 P.3d at 81).
The moving party has the burden to establish that
summary judgment is proper. Id. (citing French v. Haw. Pizza
Hut, Inc., 105 Hawai#i 462, 470, 99 P.3d 1046, 1054 (2004). "Once
a summary judgment movant has satisfied its initial burden of
producing support for its claim that there is no genuine issue of
material fact, the party opposing summary judgment must
demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Id. (internal
quotation marks, brackets, and citation omitted). "The evidence
must be viewed in the light most favorable to the non-moving
party." Id. (quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81)
(brackets and citation omitted).
B. Duty of Care
The appellate court "addresses whether a defendant owes
a duty of care to a particular plaintiff as a question of law
under the right/wrong standard." Pulawa v. GTE Hawaiian Tel.,
112 Hawai#i 3, 10, 143 P.3d 1205, 1212 (2006) (citation omitted).
IV. Discussion
A. Imposition of a Legal Duty for a Negligence Claim
In order to prevail on a negligence claim, a plaintiff is
required to prove all four of the necessary elements of
negligence:
(1) A duty, or obligation, recognized by the law, requiring
the defendant to conform to a certain standard of conduct,
for the protection of others against unreasonable risks;
(2) A failure on the defendant's part to conform to the
standard required: a breach of the duty;
(3) A reasonably close causal connection between the
conduct and the resulting injury; and
(4) Actual loss or damage resulting to the interests of
another.
Molfino v. Yuen, 134 Hawai#i 181, 184, 339 P.3d 679, 682 (2014)
(format altered).
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"A prerequisite to any negligence action is the
existence of a duty owed by the defendant to the plaintiff." Id."Whether a duty exists is a 'question of fairness that involves a
weighing of the nature of the risk, the magnitude of the burden
of guarding against the risk, and the public interest in the
proposed solution.'" Id. at 184-85, 339 P.3d at 682-83 (quoting
Hao v. Campbell Estate, 76 Hawai#i 77, 80, 869 P.2d 216, 219
(1994)).
The existence of a duty owed by the defendant to the
plaintiff, that is, whether such a relation exists between
the parties that the community will impose a legal
obligation upon one for the benefit of the other—or, more
simply, whether the interest of the plaintiff which has
suffered invasion was entitled legal protection at the hands
of the defendant, is entirely a question of law.
Pulawa, 112 Hawai#i at 11-12, 143 P.3d at 1213-14 (ellipsis
omitted) (quoting Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw.
376, 385, 742 P.2d 377, 383 (1987).
With regard to imposing a legal duty in tort, the
Hawai#i Supreme Court has stated:
In considering whether to impose a duty of reasonable care
on a defendant, we recognize that duty is not sacrosanct in
itself, but only an expression of the sum total of those
considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection. Legal duties
are not discoverable facts of nature, but merely conclusory
expressions that, in cases of a particular type, liability
should be imposed for damage done. In determining whether or
not a duty is owed, we must weigh the considerations of
policy which favor the [plaintiff's] recovery against those
which favor limiting the [defendant's] liability. The
question of whether one owes a duty to another must be
decided on a case-by-case basis. However, we are reluctant
to impose a new duty upon members of our society without any
logical, sound, and compelling reasons taking into
consideration the social and human relationships in our
society.
Molfino, 134 Hawai#i at 185, 339 P.3d at 683 (emphasis added)
(quoting McKenzie v. Hawai#i Permanente Med. Group, Inc., 98
Hawai#i 296, 301, 47 P.3d 1209, 1214 (2002).
The Hawai#i Supreme Court has also articulated several
factors in determining whether to impose a duty on a tort
defendant:
Whether a special relationship exists, the foreseeability of
harm to the injured party, the degree of certainty that the
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injured party suffered injury, the closeness of the
connection between the defendants' conduct and the injury
suffered, the moral blame attached to the defendants, the
policy of preventing harm, the extent of the burden to the
defendants and consequences to the community of imposing a
duty to exercise care with resulting liability for breach,
and the availability, cost, and prevalence of insurance for
the risk involved.
Pulawa, 112 Hawai#i at 12, 143 P.3d at 1214 (brackets and
citation omitted).
"[I]n the context of determining the existence and
scope of a duty, foreseeability is a question of law for the
court to resolve." Id. at 13, 143 P.3d at 1215. "[I]n
determining the scope of the defendant's duty, the focus is on
the defendant's viewpoint, that is, whether the defendant could
reasonably foresee the plaintiff's injury." Id. at 16, 143 P.3d
at 1218 (quoting Yager v. Illinois Bell Tel. Co., 667 N.E.2d
1088, 1092 (Ill. App. Ct. 1996)).
Foreseeability as it impacts duty determinations
refers to the knowledge of the risk of injury to be
apprehended. The risk reasonably to be perceived
defines the duty to be obeyed; it is the risk
reasonably within the range of apprehension, of injury
to another person, that is taken into account in
determining the existence of the duty to exercise
care.
Id. at 13, 143 P.3d at 1215 (brackets and citation omitted). "The
test of foreseeability is whether there is some probability of
harm sufficiently serious that a reasonable and prudent person
would take precautions to avoid it." Id. at 12, 143 P.3d at 1214(internal quotation marks and citation omitted). However, "[i]t
does not mean foreseeability of any harm whatsoever, and it is
not sufficient that injury is merely possible." Id. Moreover,
the concept of duty involves more than mere foreseeability of
harm. Id. at 13, 143 P.3d at 1215 (citing Taylor-Rice v. State,
91 Hawai#i 60, 71-72, 979 P.2d 1086, 1097-98 (1999)).
A court's task—in determining "duty"—is not to decide merely
whether a particular plaintiff's injury was reasonably
foreseeable in light of a particular defendant's conduct,
but rather to evaluate more generally whether the category
of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed on the negligent party.
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Id. (emphasis added) (brackets omitted) (quoting Taylor-Rice, 91
Hawai#i at 72, 979 P.2d at 1098).
B. The Question of Legal Duty in this Case
In this case, Jhun does not argue that Shimojo had a
duty to control Jhun's dogs. Jhun admits that the duty to
control her dogs is hers alone. Instead, Jhun contends the
Circuit Court erred in granting summary judgment in favor of
Shimojo because Shimojo owed "the duty to exercise ordinary care
in the conduct of one's own activities to avoid foreseeable harm
to foreseeable plaintiffs[.]" Jhun asserts that "[e]very person
has a duty to exercise ordinary care in his or her conduct to
avoid foreseeable harm to persons who might foreseeably be harmed
by that activity." In support of her argument, Jhun relies on
Doe Parents No. 1 v. State Dept. of Educ., 100 Hawai#i 34, 72, 58
P.3d 545, 583 (2002), and argues the Hawai#i Supreme Court
established that, "the State is, as is any person, generally
required to exercise only 'ordinary care' in the activities it
affirmatively undertakes to prevent foreseeable harm to others."
Id.8
To the extent that Jhun asserts Doe Parents necessarily
establishes a duty on Shimojo in this case, we disagree. Doe
Parents did not establish the existence of a duty on all persons
at all times, and Doe Parents did not deal with circumstances
similar to this case. Rather, "[t]he question of whether one
8
We note the quote Jhun cites from Doe Parents is incomplete. In Doe
Parents, Hawai#i Supreme Court stated:
Absent a duty to adhere to a particular standard of care by
virtue of the State and either the plaintiff or the third
person sharing a "special relationship" (or, alternatively,
because a statute or administrative rule or regulation
mandates that the defendant adhere to a particular standard
of care, see, e.g., Tseu ex rel. Hobbs v. Jeyte, 88 Hawai#i
85, 90–92, 962 P.2d 344, 350–51 (1998); Upchurch[ v. State],
51 Haw. [150,] 154, 454 P.2d [112,] 115[ (1969)]), the State
is, as is any person, generally required to exercise only
"ordinary care" in the activities it affirmatively
undertakes to prevent foreseeable harm to others. Upchurch,
51 Haw. at 152, 454 P.2d at 114[.]
Id. (Emphases added).
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owes a duty to another must be decided on a case-by-case basis."
Molfino, 134 Hawai#i at 185, 339 P.3d at 683 (emphasis added).
Here, Jhun alleged that Shimojo's negligent conduct was
that: he regularly played with his dog Sophie on the common area
grass lawn in view of her dogs for a year before the subject
incident, making sounds and gestures that annoyed her dogs such
that her dogs would pace, whine and get extremely agitated; he
allowed his dog Sophie, while indoors, to bark at her dogs as
they walked past; and he refused her request to socialize his dog
Sophie with her dogs. Jhun contends that Shimojo's conduct
irritated and provoked her dogs, thus causing the subject
incident where they escaped from her apartment.
We recognize that there could be circumstances where an
individual could be aware that his or her conduct will likely
provoke a dog to act aggressively and cause harm, such that the
individual has a duty to refrain from such conduct. However,
under the circumstances of this case, we conclude that Shimojo
did not have a legal duty to Jhun to refrain from the conduct
that she asserts caused the subject incident and caused her harm.
Shimojo argues that applicable statutes and common law
do not impose a duty on him in this case, citing Hawaii Revised
Statutes (HRS) § 663-9.1 (1993), under which provocation is
recognized as a defense from civil liability for a dog owner
whose dog caused either personal or property damage to any
person. For context, we start with HRS § 663-9 (1993), which
states:
Liability of Animal Owners. (a) The owner or harborer of
an animal, if the animal proximately causes either personal
or property damage to any person, shall be liable in damages
to the person injured regardless of the animal owner's or
harborer's lack of scienter of the vicious or dangerous
propensities of the animal.
(b) The owner or harborer of an animal which is known by
its species or nature to be dangerous, wild, or vicious, if
the animal proximately causes either personal or property
damage to any person, shall be absolutely liable for such
damage.
Neither party asserts that HRS § 663-9 establishes Shimojo's duty
or liability in this case. However, as noted, Shimojo points to
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HRS § 663-9.1, which provides in pertinent part:
Exception of animal owners to civil liability.
. . . .
(c) Notwithstanding sections 663-1 and 663-9, any
owner or harborer of an animal shall not be liable for any
civil damages resulting from actions of the animal where the
trier of fact finds that:
(1) The animal caused such damage as a proximate
result of being teased, tormented, or otherwise abused
without the negligence, direction, or involvement of
the owner or harborer[.]
We further note that, under Revised Ordinances of Honolulu 1990
(ROH) § 7-7.2 (Supp. No. 12, 2-08), provocation is recognized as
a defense from criminal liability for injuries to another person
or animal. See also ROH § 7-7.1 (Supp. No. 12, 2-08)9 (providing
the definition of "provocation").
Under the circumstances of this case, we agree with
Shimojo that existing statutes and the county ordinance do not
establish a duty of reasonable care on his part related to the
9
ROH § 7-7.1 (Supp. No. 12, 2-08) provides, in relevant part:
Sec. 7-7.1 Definitions.
. . . .
"Provocation" means the attack by a dog upon a person or
animal was precipitated under the following
circumstances:
(1) The dog was protecting or defending its owner or a
member of its owner's household from an
attack or assault;
(2) The person attacked was committing a crime or offense
while on the property of the owner of the
dog;
(3) The person attacked was teasing, tormenting, abusing
or assaulting the dog or at any time in the past had teased,
tormented, abused or assaulted the dog;
(4) The dog was attacked or menaced by the animal or the
animal was on the property of the owner of
the dog;
(5) The dog was responding to pain or injury inflicted by
the attacked person or animal;
(6) The dog was protecting itself, its kennels or its
offspring from the attacked person or animal;
(7) The person or animal attacked was disturbing the dog’s
natural functions, such as sleeping or
eating, while the dog was on its owner's property; or
(8) The dog was responding to a command or encouragement
to attack the person or animal.
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incident in this case. Rather, the statutory framework related
to HRS § 663-9.1 provides an exception to civil liability and
does not create an applicable duty of care in these
circumstances. Further, as Shimojo asserts, the county ordinance
addresses provocation where "[t]he person attacked was teasing,
tormenting, abusing or assaulting the dog or at any time in the
past had teased, tormented, abused or assaulted the dog[,]" which
is not the situation here.
As to the issue of foreseeability as it impacts duty,
we hold that the risk of injury in the circumstances of this case
did not trigger a legal duty on Shimojo to take the action
claimed by Jhun. In assessing whether Shimojo had a legal duty,
we must focus on whether, from his viewpoint, Shimojo could have
reasonably foreseen Jhun's asserted injuries. Pulawa, 112
Hawai#i at 16, 143 P.3d at 1218. In other words, whether Shimojo
could have reasonably foreseen that his conduct would cause
Jhun's dogs to escape from her apartment as Waikiki and Sophie
returned to their apartment and attack Sophie, resulting in
injuries to Waikiki and Jhun. There is no evidence that Shimojo
was aware that Jhun's dogs were becoming aggressive or that they
were exhibiting aggressive behaviors such that they would escape
Jhun's apartment and the subject incident would result. In her
declaration filed in opposition to the Motion for Summary
Judgment, Jhun stated that whenever Shimojo played with Sophie
downstairs, her dogs "would begin pacing and whining and got
extremely agitated." Jhun also stated that "[she] complained to
[Shimojo] about him doing this as it was irritating [her]
dogs[,]" and that she suggested socializing their dogs "so that
they would become familiar and friendly." Finally, Jhun also
stated that while walking her dogs, Sophie would bark
aggressively at her dogs from within Shimojo's apartment, which
caused Jhun's dogs to "react aggressively as well." However,
given the undisputed evidence, Shimojo playing with Sophie or
Sophie's barking were not outside normal canine behavior so as to
be considered "aggressive." See Seybolt v. Wheeler, 839 N.Y.S.2d
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830, 832 (N.Y. App. Div. 2007) (explaining that threatening or
aggressive dog behavior includes growling, snapping or baring its
teeth while barking and chasing small animals is considered
normal canine behavior). It cannot be said that, from Shimojo's
viewpoint, either Waikiki, Sophie, or Jhun were foreseeably
endangered by Shimojo's conduct such that Jhun's dogs would
escape from her apartment and attack Sophie and injure Waikiki
and Jhun. Given the undisputed circumstances in this case,
Shimojo's alleged conduct was not sufficiently likely to result
in the kind of harm experienced such that liability may
appropriately be imposed on him. Pulawa, 112 Hawai#i at 13, 143
P.3d at 1215.
Therefore, under the circumstances of this case,
Shimojo did not owe a duty of care to Jhun not to engage in the
conduct she asserts established his legal duty, i.e., that
Shimojo should not have played with Sophie in the common area
lawn; should not have allowed Sophie to bark at Jhun's dogs when
Jhun walked them; and that Shimojo should have agreed to Jhun's
request to socialize Sophie with Jhun's dogs. Accordingly, we
hold that the Circuit Court did not err in granting summary
judgment.
V. Conclusion
For these reasons, the Circuit Court's August 11, 2017
"Final Judgment" is affirmed.
DATED: Honolulu, Hawai#i, September 30, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Walter R. Schoettle,
for Third-Party Plaintiff/ /s/ Katherine G. Leonard
Appellant. Associate Judge
Richard Turbin, /s/ Clyde J. Wadsworth
Rai Saint Chu, Associate Judge
Janice D. Heidt,
for Third-Party Defendant/
Appellee.
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