Castro v. Melchor.

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Electronically Filed
Supreme Court
SCWC-12-0000753
13-MAR-2018
08:22 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
LEAH CASTRO, individually and as PERSONAL REPRESENTATIVE
of the ESTATE OF BRIANDALYNNE CASTRO, deceased minor,
Respondent/Plaintiff-Appellee,
vs.
LEROY MELCHOR, in his official capacity; WANNA BHALANG,
in her official capacity; TOMI BRADLEY, in her official
capacity; STATE OF HAWAI#I; and HAWAI#I DEPARTMENT OF
PUBLIC SAFETY, Petitioners/Defendants-Appellants,
and
AMY YASUNAGA, in her official capacity; ROBERTA MARKS,
in her official capacity; KENNETH ZIENKIEWICZ, M.D., in
his official capacity; and KEITH WAKABAYASHI, in his
official capacity, Respondents/Defendants-Appellees.
SCWC-12-0000753
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000753; CIV. NO. 08-1-0901)
MARCH 13, 2018
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RECKTENWALD, C.J AND WILSON, J., WITH
NAKAYAMA, J., CONCURRING SEPARATELY, AND
McKENNA, J., WRITING SEPARATELY, WITH WHOM POLLACK, J., JOINS
OPINION OF RECKTENWALD, C.J.
I. Introduction
This case arises from a complaint filed by Respondent
Leah Castro (Castro), who had a stillbirth while she was
incarcerated. Castro brought suit against Leroy Melchor, Wanna
Bhalang, Tomi Bradley (all in their official capacities), the
State of Hawai#i, and the Hawai#i Department of Public Safety
(HDPS) (together, “Petitioners”) for negligence, intentional
infliction of emotional distress, and negligent infliction of
emotional distress. Castro asserted that Petitioners’ failure to
provide her with timely and adequate medical care led to the
stillbirth of her child, Briandalynne.
After a bench trial, the Circuit Court of the First
Circuit ruled in Castro’s favor, awarding her $250,000 for
negligent infliction of emotional distress and $100,000 for loss
of filial consortium, and awarding $250,000 to Briandalynne’s
estate “for the loss of life itself and for all of the damages
that [Briandalynne] would have been entitled to had she been
alive, such as loss of enjoyment of life.” The Intermediate
Court of Appeals (ICA) affirmed the circuit court’s decision.
Castro v. Melchor, 137 Hawai#i 179, 366 P.3d 1058 (App. 2016).
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Petitioners’ application presents a question of first
impression to this court: whether the estate of a viable fetus
can recover for loss of enjoyment of life, also known as
“hedonic,” damages. We conclude that Briandalynne’s estate could
recover such damages against Petitioners, and that the record
supports the amount of the damages awarded. Accordingly, we
affirm the ICA’s judgment on appeal.
II. Background
A. Factual Allegations and Circuit Court Proceedings
Castro filed a Complaint in her own capacity, and as
personal representative of the Estate of Briandalyne, in circuit
court on May 6, 2008, alleging assault and battery, negligence,
and intentional and negligent infliction of emotional distress
against the State of Hawai#i, the HDPS, and two correctional
officers at O#ahu Community Correctional Center (OCCC) in their
official capacities.
The Complaint alleged that on June 30, 2007, while
Castro was an inmate at OCCC, she was forced to the ground, or
“taken down,” by correctional officers Debra Pimental and Ted
Choy Foo. Castro was approximately seven months pregnant at the
time. After the incident, Castro was transferred to the Women’s
Community Correctional Center (WCCC). Castro developed problems
with vaginal bleeding, which she reported to staff at both OCCC
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and WCCC, but “was not provided with timely or adequate medical
care.”
Castro alleged that the actions of the correctional
officers and the subsequent failure of medical personnel to
provide her with treatment caused the stillbirth of her eight-
month-old fetus, Briandalynne. Briandalynne was delivered
stillborn on August 10, 2007, at the Kapi#olani Medical Center.
Available medical records indicated that Briandalynne’s death was
caused by “significant fetal stress” and “hypoxia.” Castro
contended that the actions of correctional officers Pimental and
Choy Foo constituted assault and battery upon her and her unborn
fetus.
Castro also contended that Pimental, Choy Foo, the
State, and HDPS were negligent because they “knew or should have
known” that Castro was pregnant, and that they “breached their
duty of reasonable care by failing to protect [Castro] and her
unborn child from harm.” Castro additionally asserted that the
State and HDPS were liable for “negligent hiring, training,
supervision, and retention” of the correctional officers who
assaulted her. Furthermore, she asserted that Officers Pimental,
Choy Foo, and other “responsible medical personnel” intentionally
inflicted emotional distress on her, and that the State and HDPS
negligently inflicted emotional distress on her as well.
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Castro filed a First Amended Complaint on July 30,
2009, withdrawing her claims against the correctional officers.
In addition to the State and HDPS, Castro added as defendants
Leroy Melchor, Wanna Bhalang, Tomi Bradley, Amy Yasunaga, Roberta
Marks, and Keith Wakabayashi, all of whom were nurses in the
medical unit at OCCC, as well as Kenneth Zienkiewicz, a physician
at the medical unit at OCCC. The individuals named in the First
Amended Complaint were each sued in their official capacities.
Castro raised claims of negligence against each of the
defendants, and claims of intentional and negligent infliction of
emotional distress against all defendants except the State and
HDPS.
The defendants filed a motion for summary judgment,
arguing, inter alia, that there is no legal authority allowing
Castro to make a claim on behalf of the estate of a stillborn
fetus. The defendants pointed to Hawai#i Revised Statutes (HRS)
§ 663-3 (Supp. 2009),1 “[d]eath by wrongful act[,]” to argue that
1
HRS § 663-3 (Supp. 1997) (“Death by wrongful act”) provides in
pertinent part:
(a) When the death of a person is caused by the
wrongful act, neglect, or default of any person, the
deceased’s legal representative, or any of the persons
enumerated in subsection (b), may maintain an action
against the person causing the death or against the
person responsible for the death. The action shall be
maintained on behalf of the persons enumerated in
subsection (b), except that the legal representative
may recover on behalf of the estate the reasonable
(continued...)
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“there must be injury to a person in order for a tort claim to
lie.” Defendants argued that Briandalynne was not a person, as
contemplated by the statute; therefore, Castro could not make a
claim on her behalf.
On May 13, 2011, the circuit court issued its order
granting in part and denying in part the motion for summary
judgment.2 The court granted the motion “as to all claims
against Defendants Yasunaga, Marks, Zienkiewicz[,] and
Wakabayashi,” as well as “to all claims brought by Plaintiff Leah
Castro as Personal Representative of the Estate of Briandalynne
Castro.” The court denied the motion with respect to all other
claims.
However, on October 14, 2011, the court issued an
amended summary judgment order sua sponte, reversing its previous
grant of summary judgment “with respect to all claims of
Plaintiff Leah Castro as Personal Representative of the Estate of
Briandalynne Castro.” The court explained that its sua sponte
decision was based upon its belief that its prior analysis was in
error.3
1
(...continued)
expenses of the deceased's last illness and burial.
2
The Honorable Rom A. Trader presided.
3
On October 24, 2011, this case was reassigned to Judge Karen T.
Nakasone, as Judge Trader had been assigned to the criminal division.
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A bench trial began on February 27, 2012. After the
evidentiary portion of the trial was completed, Castro filed a
memorandum regarding damages with the court. Castro explained
that HRS § 663-3, the wrongful death statute, “governs recovery
by the decedent’s survivors[,]” and that HRS § 663-7,4 the
survival statute, “governs recovery for wrongful death by the
estate of a decedent.” Castro asserted that because “[t]he
amount of recovery for the loss of life for the Estate of
Briandalynne Castro is ‘determined from the standpoint of the
deceased,’” according to Rohlfing v. Moses Akiona, Ltd., 45 Haw.
373, 381-83, 369 P.2d 96, 101 (1961), “the value of the life and
the loss of enjoyment of life of Briandalynne Castro are of the
nature and kind as of any other child born in our community[,]”
regardless of Castro’s status as an incarcerated inmate. Castro
stated that the Estate of Briandalynne Castro’s damages claims
include all the damages that Briandalynne would have been
entitled to had she been alive, such as loss of enjoyment of life
and pain and suffering, before death occurred. With respect to
4
HRS § 663-7 (1993) (“Survival of cause of action”) provides:
A cause of action arising out of a wrongful act,
neglect, or default, except a cause of action for
defamation or malicious prosecution, shall not be
extinguished by reason of the death of the injured
person. The cause of action shall survive in favor of
the legal representative of the person and any damages
recovered shall form part of the estate of the
deceased.
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Castro’s claim for negligent infliction of emotional distress,
Castro asserted that there was “ample evidence that a normally
constituted reasonable person would be unable to adequately cope
with the mental stress engendered by Defendants’ egregious
conduct” and the resulting stillbirth. Castro further added that
the fact that she may not have been able to raise or provide for
her daughter while in prison “is irrelevant with respect to
[Castro’s] mental and emotional pain” caused by the stillbirth.
Castro requested that the court award her $400,000 for her
survivor claims, $250,000 for her emotional distress claims,
$600,000 for the Estate of Briandalynne Castro’s wrongful death
claim, and $800 in special damages for the estate’s cremation
expenses.
Petitioners also submitted a post-trial memorandum
regarding damages. Petitioners first argued that damages should
not be awarded because Castro “has not and cannot prove a causal
connection between any alleged negligence of the State Defendants
and the stillbirth.” Petitioners further contended that any
award of damages to Castro “must be minimal” because her “conduct
at all times prior to the stillbirth was not the conduct of a
mother who wanted her baby.” They additionally contended that
Castro’s incarceration meant that “[t]here is absolutely no
evidence that [Castro] would have been able to raise her child or
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have even been able to keep her child.” Petitioners concluded by
arguing that “an award of $5,000 or less would be an adequate
amount to compensate [Castro] for a stillbirth which is not a
significant loss to her and for which she has not suffered any
emotional distress.”
The court entered its Findings of Fact and Conclusions
of Law and Order on May 14, 2012, determining that the
Petitioners’ negligence was the legal cause of Briandalynne’s
death. The court made the following Findings of Fact (FOFs)5
relevant to this appeal:
18. On July 2,2007, Plaintiff was seen by OCCC nurse
practitioner, Amy Yasunaga, for her first pre-natal
visit. Ms. Yasunaga was the primary medical provider
responsible for treatment and care of pregnant inmates
at OCCC.
19. Ms. Yasunaga ordered pre-natal vitamins, took
Plaintiff’s vital signs, measured the fundus, listened
to the fetus’s heart tones, and ordered an OBGYN
consultation and an ultrasound for Plaintiff at
Kapiolani Medical Center ("KMC" or "Kapiolani"). Ms.
Yasunaga noted no abnormalities or concerns with
Plaintiff’s pregnancy. Ms. Yasunaga noted Plaintiff’s
last menstrual period was January 31,2007.
20. On that same day, July 2,2007, OCCC physician,
Kenneth Zienkiewicz, M.D., reviewed and approved Ms.
Yasunaga’s orders for Plaintiff’s KMC OBGYN
consultation and ultrasound.
. . . .
22. Both the KMC OBGYN consultation and ultrasound
were never done, during the relevant month-long
5
Petitioners challenged certain FOFs in their appeal to the ICA.
Castro v. Melchor, 137 Hawai#i at 185, 366 P.3d at 1064. The FOFs reproduced
here either were not challenged, or were upheld by the ICA. Petitioners did
not further contest the circuit court’s FOFs in their application for
certiorari.
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period, from the time Ms. Yasunaga issued the orders
on July 2,2007, until Plaintiff’s transfer out of OCCC
on August 2, 2007.
23. Within several days of Plaintiff’s July 2, 2007
pre-natal visit with Ms. Yasunaga, Plaintiff began
experiencing vaginal bleeding. Plaintiff made four to
five reports of her vaginal bleeding to various [Adult
Corrections Officers (ACOs)], including ACO Hattie
Reis, ACO Wanda Nunes, and ACO Reyetta Ofilas.
24. All three ACOs informed the OCCC medical unit of
Plaintiff’s vaginal bleeding and requested medical
attention, but no medical care was provided. The
medical unit’s response, relayed through the Nurse
Defendants was, that if Plaintiff’s bleeding was not
heavy enough to saturate a sanitary pad, and/or not
accompanied by cramping, Plaintiff did not need to be
sent to the medical unit.
. . . .
27. Up until Plaintiff’s transfer out of OCCC on
August 2, 2007, Plaintiff did not receive any medical
care for her four to five complaints of vaginal
bleeding, and was never sent to the OCCC Medical Unit.
28. During Plaintiff’s entire stay at OCCC, Plaintiff
was on segregation status, from July 2 to August 2,
2007. The pertinent DPS and OCCC Policies and
Procedures for medical care for segregated inmates
. . . were not followed, and no medical staffer ever
checked on, or communicated with Plaintiff, about her
bleeding complaints. Nor was Plaintiff ever brought
to the OCCC Medical Unit for evaluation of her
complaints.
. . . .
30. Plaintiff was transferred to WCCC on August 2,
2007. According to WCCC nurse Jennifer Simeona, who
conducted Plaintiff’s intake on that date, Plaintiff’s
Interfacility Transfer Form from OCCC, did not contain
any information to let Nurse Simeona know, that the
KMC OBGYN evaluation and ultrasound ordered on July 2,
2007, were still outstanding and never done. Any
outstanding medical orders should have been included
on the form.
. . . .
34. The WCCC midwife could not detect any fetal heart
tones from Plaintiffs fetus. Plaintiff “broke down”
crying but tried to not lose hope. The midwife
ordered that Plaintiff be immediately transported to
KMC.
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35. Plaintiff was taken to KMC via emergency
transport, on that same date, August 10, 2007, where
an ultrasound confirmed that the fetus was dead.
Labor was induced, and Plaintiff’s fetus, Briandalynne
Castro . . . was delivered stillborn on August 11,
2007.
36. On August 14,2007, an autopsy of [Briandalynne]
was performed in the usual course by Jeffrey Killeen,
M.D. (“Dr. Killeen”), KMC Director of Pathology.
37. Dr. Killeen’s autopsy findings and conclusions
indicated, inter alia, that the pregnancy was “term or
near-term”, [the stillbirth] appeared to be related to
“intrauterine events occurring at the time of vaginal
bleeding”, and that, more likely than not, death was
related to a placental abruption. A placental
abruption, is a separation of the placenta from the
uterus, causing a disconnect between the maternal
blood supply and placental nutrition from the maternal
circulation.
38. Dr. Killeen’s autopsy findings also confirmed
that [Briandalynne] had no congenital or developmental
abnormalities.
39. On or around October 22, 2008, Dr. Killeen
conducted further evaluation and testing to determine
the approximate date of [Briandalynne]’s death and
supplemented his autopsy report with an Addendum
containing his findings.
40. As a result of this further examination of the
fetus, placenta, and multiple organs, Dr. Killeen
opined that “the time interval between fetal death and
delivery is estimated to be greater than 96 hours,
more likely 7 days or more, and less than 14 days.[”]
Dr. Killeen’s findings, placed the date of death,
within a reasonable degree of medical probability, as
between July 29, 2007 and August 4, 2007. Dr. Killeen
also indicated that the age of the fetus, was 35 to 37
weeks of gestation
. . . .
56. The evidence established that [Briandalynne had]
no congenital or development abnormalities. Despite
the incarcerated status of her mother,[Briandalynne’s]
life and her loss of enjoyment of life, are of the
nature and kind of any other infant.
57. An award of damages against Defendant State, in
the amount of $250,000.00 to the Estate of
Briandalynne Castro, is fair and appropriate, for the
State’s share of the Estate’s total damages.
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The court also made the following relevant Conclusions
of Law (COLs):
74. Under Hawaii’s wrongful death statute, a parent
of a stillborn viable fetus, such as Plaintiff herein,
is entitled to sue for the wrongful death of the
fetus. Wade v. U.S., 745 F. Supp. 1573, 1579 (D. Haw.
1990).
. . . .
81. Based on all the facts and circumstances, an
award of damages against Defendant State, in the
amount of $350,000.00 to Plaintiff individually
($250,000.00 for NIED and $100,000.00 for loss of
filial consortium), is fair and appropriate, for the
State’s share of Plaintiff’s total damages.
82. The Estate’s claim, under HRS § 663-7, is the
cause of action and recovery that [Briandalynne] would
have been entitled to at death for the injuries caused
by Defendant State's negligence. Ozaki v. Assn of
Apt. Owners, 87 Hawai#i 273, 288, 954 P.2d 652, 667
(App. 1998), aff’d in part and reversed in part on
other grounds, 87 Hawai#i 265,954 P.2d 644 (1998).
The Estate’s damages include damages for the loss of
enjoyment of life, or for the value of life itself,
measured separately from the economic productive value
that the deceased would have had. Montalvo v. Lapez,
77 Hawai#i 282, 284 n.2, 884 P.2d 345, 347 n.2 (1994).
83. The Estate’s damages include the value for the
loss of life itself and for all of the damages that
[Briandalynne] would have been entitled to had she
been alive, such as loss of enjoyment of life. The
evidence established that the [Briandalynne had] no
congenital or development abnormalities. Despite the
incarcerated status of her mother, [Briandalynne]’s
life and her loss of enjoyment of life, are of the
nature and kind of any other infant. An award of
damages against Defendant State, in the amount of
$250,000.00 to the Estate of Briandalynne Castro, is
fair and appropriate, for the State’s share of the
Estate’s total damages.
The court thus entered final judgment in Castro’s favor
and awarded her $350,000 individually and $250,000 as the
representative of Briandalynne’s estate.
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B. Petitioners’ Appeal to the ICA
Petitioners appealed to the ICA, arguing, inter alia,
that the circuit court’s award of damages to the estate of the
fetus was error and that the damages awarded to both Castro and
Briandalynne’s estate were speculative and improper.
On January 29, 2016, the ICA issued its Published
Opinion affirming the circuit court’s judgment. Castro v.
Melchor, 137 Hawai#i at 182, 366 P.3d at 1061.
The ICA first considered the HRS § 663-3 wrongful death
action. With respect to whether a wrongful death claim may be
brought on behalf of a stillborn, viable fetus, the ICA noted
that Hawaii’s appellate courts have not previously addressed the
issue, and that the legislative history of HRS § 663-3 does not
reveal whether or not the Legislature intended the statute to
apply to unborn, viable fetuses. Id. at 186, 366 P.3d at 1065.
According to the ICA, “only six states--California, Florida,
Iowa, Maine, New Jersey, and New York--prohibit wrongful death
claims from being brought on behalf of unborn children[,]” while
“forty-one states and the District of Columbia permit wrongful
death actions to be brought on behalf of unborn, viable fetuses.”
Id. The ICA explained that “thirty-five jurisdictions first
recognized such a claim by judicial decision, while fourteen
states now expressly allow such a claim by statute.” Id. at 187,
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366 P.3d at 1066. The ICA stated that it found “compelling
reasons to join this overwhelming majority.” Id.
The ICA rejected Petitioners’ argument that it would be
inconsistent to include fetuses within the definition of “person”
in HRS § 663-3 when the Hawai#i Supreme Court has held that a
fetus is not a person in the Hawai#i Penal Code. Id. The ICA
rejected this argument, noting that “Hawai#i is one of only nine
states that still apply the ‘born alive’ rule and have not
amended their criminal homicide statutes to include unborn
children as victims[,]” and that seven of those nine states--
Connecticut, Delaware, New Hampshire, New Mexico, Oregon,
Vermont, and Washington--“allow a cause of action for the
wrongful death of an unborn, viable fetus.” Id. at 188-89, 366
P.3d at 1067-68. The ICA thus held that “the existence of the
‘born alive’ rule in a state’s penal code clearly does not
foreclose the existence of a cause of action for the wrongful
death of a viable fetus.” Id. at 189, 366 P.3d at 1068. The ICA
reasoned that this was logical based “on the well-established
principle that, while civil causes of action are remedial in
nature and therefore are generally construed liberally, criminal
statutes are construed strictly and in favor of the accused.”
Id.
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The ICA was persuaded by policy considerations that the
majority jurisdictions relied on–-“the remedial nature and
purposes of the wrongful death remedy, and the injustice in
allowing a tortfeasor to escape liability by inflicting greater
harm.” Id. at 190, 366 P.3d at 1069. The ICA held:
Pursuant to Hawai#i precedent, remedial statutes are
to be liberally interpreted. Kalima v. State, 111
Hawai#i 84, 100, 137 P.3d 990, 1006 (2006).
“Generally, remedial statutes are those which provide
a remedy, or improve or facilitate remedies already
existing for the enforcement of rights and the redress
of injuries.” Id. (citations and internal quotation
marks omitted). Inasmuch as “[t]he purpose of damages
in wrongful death and survival statutes is
compensation for loss, not punishment,” and HRS §
663–3 creates a statutory right for non-dependent
relatives to sue for wrongful death, a right which did
not exist under common law, we conclude that this
statute is remedial in nature. Greene v. Texeira, 54
Haw. 231, 505 P.2d 1169, 1170 (1973).
Id. at 189-90, 366 P.3d at 1068-69.
The ICA further noted that, “in Hawai#i, a child who is
subsequently born alive may recover damages for negligently
inflicted prenatal injuries.” Id. at 190, 366 P.3d at 1069
(citing Omori v. Jowa Haw. Co., Ltd., 91 Hawai#i 157, 161–62, 981
P.2d 714, 718–19 (App.1999), aff’d as modified, 91 Hawai‘i 146,
981 P.2d 703 (1999)). Thus, it held that allowing a cause of
action in a case where a viable fetus is injured but the child is
born, while foreclosing a cause of action where the unborn child
dies before birth, “would lead to the absurd and illogical result
that greater harm results in a better chance of immunity.” Id.
at 190-91, 366 P.3d at 1069-70.
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The ICA turned to HRS § 663-7 survival actions in its
discussion of damages. Id. at 198, 366 P.3d at 1077. It noted
in a footnote that not all states have distinct wrongful death
statutes and survival statutes, and acknowledged that the varying
forms of statutes and remedies and the evolving jurisprudence
made generalizations about the application of survival-of-claim
statues to claims on behalf of viable, unborn fetuses much more
complicated. Id. at 198 n.17, 366 P.3d at 1077 n.17. However,
it stated that seventeen states and the District of Columbia
recognized at least some sort of personal injury claims that
survive the death of the viable, unborn fetus. Id. It then
affirmed the trial court’s award of loss of life damages to
Briandalynne’s estate. While the ICA did not make an explicit
ruling, by affirming the damages award, the ICA implicitly held
that the estate of a viable, unborn fetus may bring a survival
action pursuant to HRS § 663-7.
The ICA rejected Petitioners’ argument that Castro was
foreclosed from being awarded damages under HRS § 663-7, the
survival statute, and was limited to damages under HRS § 663-3,
the wrongful death statute. Id. at 199, 366 P.3d at 1078. The
ICA explained that although “Castro did not reference HRS § 663-7
in her complaint, a plaintiff’s failure to cite the statutory
basis for her claim does not automatically render the complaint
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defective or insufficient.” Id. Quoting our decision in In re
Genesys Data Technologies, Inc., 95 Hawai#i 33, 41, 18 P.3d 895,
903 (2001), the ICA stated that our “rules of notice pleading
require that a complaint set forth a short and plain statement of
the claim that provides defendant with fair notice of what the
plaintiff’s claim is and the grounds upon which the claim rests”
and that “[p]leadings must be construed liberally.” Id.
(internal citations omitted). According to the ICA, “a liberal
reading of Castro’s complaint would put the State on notice” that
Castro was bringing “a claim on behalf of Briandalynne’s estate,”
that “the claim arose out of the State’s negligence resulting in
Briandalynne’s death,” and that “she would be pursuing general
damages in an amount to be proven at trial, which could include
damages for the loss of enjoyment of life.” Id. at 200, 366 P.3d
at 1079. Thus, the ICA held that Castro’s complaint “was not
insufficient” because it “reasonably informed the State of what
Castro’s claims were, their basis, and what the State would have
to defend against.” Id.
The ICA further held that there was sufficient evidence
to support an award of damages to Briandalynne’s estate. Id.
The ICA pointed to the testimony of a doctor who examined Castro,
who stated that “he could not find any ‘gross congenital
anomalies’” nor “abnormalities of any kind” during his
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examination of Briandalynne as sufficient evidence to support the
court’s finding that the fetus had no congenital or development
abnormalities. Id. at 201, 366 P.3d at 1080. Finally, the ICA
rejected Petitioners’ argument challenging the award of $100,000
to Castro for loss of filial consortium and the award of $250,000
for emotional distress. Id. at 201-02, 366 P.3d at 1080-81.
The ICA entered its Judgment on Appeal pursuant to its
Opinion on February 29, 2016.
III. Standards of Review
A. Findings of Fact (FOF)/Conclusions of Law (COL) - Civil
“In this jurisdiction, a trial court’s FOFs are subject
to the clearly erroneous standard of review. An FOF is clearly
erroneous when, despite evidence to support the finding, the
appellate court is left with the definite and firm conviction
that a mistake has been committed.” Chun v. Bd. of Trs. of the
Emp. Ret. Sys. of State of Hawai#i, 106 Hawai#i 416, 430, 106 P.3d
339, 353 (2005) (internal quotation marks, citations, and
ellipses omitted) (quoting Allstate Ins. Co. v. Ponce, 105
Hawai#i 445, 453, 99 P.3d 96, 104 (2004)).
A COL is not binding upon an appellate court and
is freely reviewable for its correctness. [The
appellate court] ordinarily reviews COLs under the
right/wrong standard. Thus, a COL that is supported
by the trial court's FOFs and that reflects an
application of the correct rule of law will not be
overturned. However, a COL that presents mixed
questions of fact and law is reviewed under the
clearly erroneous standard because the court's
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conclusions are dependent upon the facts and
circumstances of each individual case.
Chun, 106 Hawai#i at 430, 106 P.3d at 353 (internal quotation
marks, citations, and brackets in original omitted) (quoting
Ponce, 105 Hawai#i at 453, 99 P.3d at 104).
B. Damages
“We shall not disturb the findings of the trial court
on the issue of damages . . . unless we find that the measure of
damages was clearly erroneous[.]” Viveiros v. State, 54 Haw.
611, 614, 513 P.2d 487, 489 (1973).
C. Statutory Interpretation
Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong
standard.
Our statutory construction is guided by the following
well established principles:
Our foremost obligation is to ascertain and give
effect to the intention of the legislature, which is
to be obtained primarily from the language contained
in the statute itself. And we must read statutory
language in the context of the entire statute and
construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used
in a statute, an ambiguity exists.
In construing an ambiguous statute, the meaning of the
ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their
true meaning. Moreover, the courts may resort to
extrinsic aids in determining legislative intent. One
avenue is the use of legislative history as an
interpretive tool.
The [appellate] court may also consider the reason and
spirit of the law, and the cause which induced the
legislature to enact it to discover its true meaning.
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Lingle v. Hawai#i Gov’t Emp. Ass’n, AFSCME, Local 152, AFL-CIO,
107 Hawai#i 178, 183, 111 P.3d 587, 592 (2005) (internal
quotation marks, brackets and ellipses omitted) (quoting Guth v.
Freeland, 96 Hawai#i 147, 149-50, 28 P.3d 982, 984-85 (2001)).
IV. Discussion
Petitioners present two questions in their application
for certiorari:
A. Whether the award of loss of enjoyment of life
damages for a stillborn fetus was error.
B. Whether the award of $250,000 damages to the
estate of Briandalynne Castro was error when
there was no evidence presented to justify that
monetary amount.
This case thus presents the narrow question of whether
the estate of a stillborn fetus may recover loss of enjoyment of
life damages under Hawaii’s survival statute, HRS § 663-7.6
“Hedonic” damages are damages “for the loss of
enjoyment of life, or for the value of life itself, as measured
separately from the economic productive value that an injured or
6
Under Hawaii’s survival statute, HRS § 663-7, the legal
representative of a decedent’s estate may recover damages on behalf of the
decedent’s estate. Under Hawaii’s wrongful death statute, HRS § 663-3,
specified relatives of a decedent can bring a wrongful death action against
the person responsible for causing the decedent’s death.
We do not address the circuit court’s award of damages for loss of
filial consortium pursuant to HRS § 663-3, the wrongful death statute, because
Petitioners did not challenge this holding of the ICA in their application for
writ of certiorari. See Hawai#i Rules of Appellate Procedure Rule 40.1(d)(1)
(“Questions not presented according to this paragraph will be disregarded.”).
However, we discuss the legislative history of both statutes
below, because the survival statute, HRS § 663-7, was implemented as part of a
bill that revised and expanded the wrongful death statute, HRS § 663-3.
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deceased person would have had.” Montalvo v. Lapez, 77 Hawai#i
282, 284 n.2, 884 P.2d 345, 347 n.2 (1994) (quoting Black’s Law
Dictionary 391 (6th ed. 1990)). “Many tortious acts--
particularly involving negligence . . . inflict on the victim
what is loosely termed a ‘loss of the enjoyment of life,’ or a
loss of life’s pleasures, or the incapacity to lead a normal
life, the inability to enjoy one’s family, or games, sports,
hobbies, avocational skills, and the like.” 2 Stuart M. Speiser
et al., The American Law of Torts § 8:20 (2014).
Petitioners contend that the circuit court erred in (1)
allowing a viable fetus to recover hedonic damages, and (2)
awarding $250,000 in damages when there was no evidence regarding
the loss of enjoyment of life for Briandalynne, had she lived. In
response, Castro argues that the damages award was appropriate
because “[t]here is no reason why the amount of general damages
for the loss of a life and the loss of a person’s enjoyment of
life in the case of a stillborn child cannot be determined” using
the same factors that courts consider when an infant “is a victim
of wrongful death.” Castro argues that appellate courts will not
disturb the findings of the trial court on damages unless they
are clearly erroneous, and that Petitioners’ have not adduced any
evidence or authority to support such a contention.
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We conclude that the relevant statutes, applicable case
law, and policy considerations, support Castro’s contention that
the estate of an unborn, viable fetus is able to recover hedonic
damages. We also find that there was sufficient evidence to
support the circuit court’s damages award. Accordingly, we
conclude that the ICA did not err in affirming the circuit
court’s award of damages for loss of enjoyment of life.
A. The circuit court did not err in allowing a viable fetus to
recover hedonic damages.
Hedonic damages are “indisputably” recoverable in
Hawai#i, as “HRS § 663-8.5(a) (Supp. 1992)7 provides that
noneconomic damages which are recoverable in tort actions include
damages for pain and suffering, mental anguish, disfigurement,
loss of enjoyment of life, loss of consortium, and all other
nonpecuniary losses or claims.” Montalvo, 77 Hawai#i at 301, 884
P.2d at 364 (brackets and internal quotation marks omitted)
(emphasis in original). Children may recover hedonic damages for
injuries sustained in the womb. See Omori,91 Hawai#i at 162, 981
P.2d at 719.
7
HRS 663-8.5(a) (Supp. 1992) (“Noneconomic damges; defined”)
provides:
(a) Noneconomic damages which are recoverable in tort
actions include damages for pain and suffering, mental
anguish, disfigurement, loss of enjoyment of life,
loss of consortium, and all other nonpecuniary losses
or claims.
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There is no question, and Petitioners do not dispute,
that a decedent’s estate can recover damages for loss of
enjoyment of life under the survival statute, HRS § 663-7, which
provides:
A cause of action arising out of a wrongful act,
neglect, or default, except a cause of action for
defamation or malicious prosecution, shall not be
extinguished by reason of the death of the injured
person. The cause of action shall survive in favor of
the legal representative of the person and any damages
recovered shall form part of the estate of the
deceased.
HRS § 663-7; see also Ozaki, 87 Hawai#i at 288, 954 P.2d at 667
(holding that under HRS § 663-7, the estate of murdered tenant
could assert loss of enjoyment of life claim that she had at time
of her death).
Rather, Petitioners argue that it is inappropriate to
award hedonic damages to the estate of a viable fetus. In
support, Petitioners quote a leading treatise on personal injury,
suggesting that hedonic damages are inappropriate in situations
in which the decedent was killed instantly: “[i]n a survival
action, a decedent’s estate generally may be allowed to recover
hedonic damages for the time between injury and death.”
Petitioners also argue that there must be evidence of how a
decedent enjoyed life, and a fetus cannot suffer hedonic damages,
since the fetus has not had time to develop the ability to have
loss of enjoyment of life damages.
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Petitioners’ arguments fail for four reasons. First,
the legislative history supports a finding that the legislature
did not intend to exclude a viable fetus from an HRS § 663-7
survival action, but rather intended that recovery be as broad as
possible. This is consistent with the well-established principle
that remedial statutes should be liberally construed. Kalima v.
State, 111 Hawai#i 84, 100, 137 P.3d 990, 1006 (2006). Second,
Hawai#i case law is unique because it does not require the
decedent to have actually experienced the loss of enjoyment of
life to recover hedonic damages. Third, disallowing hedonic
damages in this situation would not adequately compensate the
injured party. Fourth, children may recover hedonic damages for
injuries sustained in the womb; accordingly, disallowing hedonic
damages to viable, unborn fetuses under HRS § 663-7 would provide
perverse incentives to the tortfeasor.
In interpreting a statute, we start with our foremost
obligation: to ascertain and give effect to the intention of the
legislature. See Morgan v. Planning Dep’t, Cty. of Kauai, 104
Hawai#i 173, 179, 86 P.3d 982, 988 (2004). Because it is not
clear from the plain language of the statute whether HRS § 663-7
would apply to a viable, unborn fetus, we must look at the
statute’s legislative history. See id. In reviewing the
legislative history of HRS § 663-7, the survival statute, there
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is nothing to suggest that the legislature intended to exclude a
viable fetus from an HRS § 663-7 survival action. Rather, the
legislature expressly provided that recovery under the survival
statute be “broad” and endorsed this court’s broad judicial
interpretation of the wrongful death statute, HRS § 663-3 which
was revised as part of the same bill in which HRS § 663-7, the
survival statute, was implemented.
House Bill 588 of 1955 revised the 1923 wrongful death
statute, HRS § 663-3, and implemented for the first time the
survival statute, HRS § 663-7. In relevant part, the House
Judiciary Committee stated as follows:
1. The purpose of this bill is to broaden the right of
action and the extent of recovery in wrongful death
suits.
. . . .
3. This bill, as amended, broadens the wrongful death
statute by permitting a deceased person’s spouse,
children, father, mother, or dependents to recover for
the wrongful death of the deceased. . . .
The right of action under the present wrongful death
action is based on the archaic principal of
dependency. The provisions of this bill are
consistent with the theory of the majority of the
statutes in the United States. This bill permits
recovery for not only pecuniary losses but also for
loss of love and affection, including (1) loss of
society, companionship, comfort, consortium or
protection, (2) loss of marital care, attention,
advice or counsel, (3) loss of filial care or
attention or, (4) loss of parental care, training,
guidance or education.
4. The provisions of this bill follow, in substance,
the doctrine of the case of Gabriel [v]. Margah, 37
Haw. 571, which extended the interpretation of the
existing statutory right of action.
5. This bill also provides for a survival statute. In
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the majority of the states in the United States, broad
survival statutes have been passed to permit the
survival of right of action arising out of a tort
despite the death of the wrongdoer or of the injured
person.
Under the common law, death terminated the right of
action arising out of a tort. This archaic doctrine
has caused untold hardship and injustice.
The present Territorial statutes are not broad enough
to cover all of the hardship situation which might
arise and your Committee feels that this bill will
help fill a void in the tort laws of the Territory.
H. Stand. Comm. Rep. No. 581, in 1955 House Journal, at 772-73
(emphasis added).
The spirit and intent of the law was that both the
wrongful death statute, HRS § 663-3, and the survival statute,
HRS § 663-7, be broad remedial statutes. The legislature
expressly provided that it was adopting a survival statute
because the majority of the states had passed “broad” survival
statutes, and that the tort laws of the Territory were “not broad
enough.” Id. at 773.
Regarding the amendments to HRS §663-3, the wrongful
death statute, the legislature explained that it was adopting and
codifying the Hawai#i Supreme Court’s broad remedial
interpretation of the wrongful death statute in Gabriel, 37 Haw.
571.
The Gabriel court explained that Hawai#i adopted a
common law cause of action in 1860 by which a husband or wife
could recover for the wrongful death of his or her spouse, and
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that in 1905, the Hawai#i Supreme Court held that a father could
recover for the death of his minor child . Id. at 575-77 (citing
Kake v. C.S. Horton, 2 Haw. 209 (1860); Ferreira v. Honolulu R.
T. & L. Co., 16 Haw. 615 (1905)). The Gabriel court explained
that in Hall v. Kennedy, 27 Haw. 626 (1923), the court held that
a father could not recover for the death of an adult son upon
whom the father was dependent for support. Id. at 579. In
response to Hall, the legislature enacted the wrongful death act
of 1923, which provided that any person dependent on the deceased
person could maintain an action for damages against the person
causing the death. Id.
In Gabriel, parents sought to recover for the death of
their minor child, and the defendants argued that the 1923
statute had superseded the common law right of recovery for
wrongful death, and that only those dependent on the deceased
could recover under the statute. Id. at 572. The Gabriel court
held that the statute had not superseded the common law
right--and thus that the parents could recover for the death of
their minor child. Id. at 582.
Thus, the 1955 revision of HRS § 663-3--the wrongful
death statute--adopted and codified the Hawai#i Supreme Court’s
broad remedial interpretation of the statute. The legislature
clarified that anyone in specified relationships with the
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deceased, regardless of dependency, could recover under the
statute, and that anyone dependent on the deceased, regardless of
relationship, could recover under the statute. HRS § 663-3.
Because the legislature endorsed and adopted the
Hawai#i Supreme Court’s broad interpretation of HRS § 663-3, and
because the survival action, HRS § 663-7, was implemented as part
of the same act as the legislative revision to HRS § 663-3, it
follows that the intent of the legislature was to provide for
broad recovery under both statutes, and to endorse broad judicial
interpretation of both statutes. Accordingly, interpreting HRS §
663-7 to provide recovery for viable, unborn fetuses is
consistent with the legislature’s intent to provide broad
recovery under the wrongful death and survival statutes.
Construing HRS § 663-7 to provide recovery for viable,
unborn fetuses is also consistent with our guiding principle that
remedial statutes should be liberally construed. See Kalima, 111
Hawai#i at 100, 137 P.3d at 1006. HRS § 663-7 is a remedial
statute. See Greene, 54 Haw. at 236, 505 P.2d at 1173 (“Our
interpretation of HRS § 663-7 recognizes that the aim of the
statutes in this area of the law is compensation for loss[.]”)
“This court has stated that remedial statutes should be liberally
construed to suppress the perceived evil and advance the enacted
remedy and has disfavored narrow interpretations that impede
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rather than advance the remedies provided by such statutes.”
Kalima, 111 Hawai#i at 100, 137 P.3d at 1006 (internal citations
omitted).8
Second, we reject Petitioners’ arguments that a
decedent must experience consciousness of her loss of enjoyment
of life and that there must be evidence of how a decedent enjoyed
8
Justice McKenna argues that our common law provides that whether
wrongful death liability exists is an issue to be decided by the legislature.
Opinion of McKenna, J. at 38 (citing Lealaimatafao v. Woodward-Clyde
Consultants, 75 Haw. 544, 551, 867 P.2d 220, 224 (1994)). However,
Lealaimatafao makes clear that this court’s obligation is to ascertain and
give effect to the intention of the legislature. 75 Haw. at 551, 867 P.2d at
224. Because the intent of the legislature is to permit broad recovery under
the survival statute, we disagree with Justice McKenna that the ICA erred by
attempting to “create” liability under common law. Opinion of McKenna, J. at
38. Justice McKenna also cites for support to the Restatement (Second of
Torts) § 869 (1979), which provides:
(1) One who tortiously causes harm to an unborn child
is subject to liability to the child for the harm if
the child is born alive.
(2) If the child is not born alive, there is no
liability unless the applicable wrongful death statute
so provides.
Opinion of McKenna, J. at 37 (citing Restatement (Second) of Torts, § 869).
However, the comments to § 869 further provide:
If the child is not born alive, there may still be the
possibility of an action for its wrongful death,
brought by the proper person under the wrongful death
statute of the particular jurisdiction. Whether this
action can be maintained will depend upon the language
of the applicable statute and its construction by the
court in determining whether the statute is intended
to create the cause of action. The language of the
statutes varies and no general rule can be stated for
their construction.
Restatement (Second) of Torts, § 869, cmt. f.
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life, as we are persuaded by the ICA’s decision in Polm v. Dep’t
of Human Servs., 134 Hawai#i 305, 339 P.3d 1106, 2014 WL 7390879
at *21 (App. 2014). There, the ICA affirmed the circuit court’s
order finding the Department of Human Services liable for damages
to a one-year-old child’s estate. Id. The defendant had argued
that “since [the Decedent] lost consciousness almost immediately
and there was no evidence of how he had enjoyed life or how he
would have enjoyed life, only minimal damages could be awarded
for loss of enjoyment of life.” Id. (internal quotation marks
omitted). The ICA rejected these arguments and awarded damages
under HRS § 663–7. Id. Other jurisdictions have also held that
consciousness is not required to recover loss of enjoyment of
life damages. See Holston v. Sisters of Third Order of St.
Francis, 165 Ill. 2d 150, 650 N.E.2d 985 (1995)(holding that
damages may be awarded for the loss of enjoyment of life to a
disabled person even if she was unaware of her loss); Flannery v.
United States, 171 W. Va. 27, 33, 297 S.E.2d 433, 439 (1982)
(holding comatose patient could recover loss of enjoyment of life
damages “even though he may not be able to sense his loss of
enjoyment of life”).
Third, disallowing hedonic damages in this situation
would not adequately compensate Briandalynne’s estate. Under HRS
§ 663-8.5(a), Briandalynne’s estate could recover damages for
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“pain and suffering, mental anguish, disfigurement, loss of
enjoyment of life, loss of consortium, and all other nonpecuniary
losses or claims.” However, it is unclear to what extent
Briandalynne could have recovered for pain and suffering, since
our case law requires consciousness. See Brown v. Clark Equip.
Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980) (“Rohlfing . . .
established the rule that recovery for pain and suffering
depended on the existence of conscious pain and suffering.”)
(emphasis added). Accordingly, hedonic damages may be the only
way to appropriately compensate Briandalynne’s estate for her
injury.
Fourth and finally, to not allow hedonic damages in
this case would create perverse incentives for the tortfeasor.
In Omori, the ICA held that children may recover hedonic damages
for injuries sustained in the womb. 91 Hawai#i at 162, 981 P.2d
at 719. Policy considerations counsel against barring recovery
of hedonic damages for the death of a viable, unborn fetus under
the survival statute, but allowing a child who is tortuously
injured while in the womb to bring a negligence claim for damages
after birth. See Ozaki, 87 Hawai#i at 289, 954 P.2d at 668. In
Ozaki, the ICA held that the estate of an adult decedent could
recover damages for loss of enjoyment of life under HRS § 663-7.
Id. In so holding, the ICA relied on the concurring opinion in
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Jones v. Shaffer:
A person tortiously injured, and permanently disabled
in consequence, may recover for the diminished joy of
living. . . . If this view does not hold in wrongful
death cases, our law gives off unfortunate incentives.
We invite the tortfeasor who runs over a pedestrian to
back up and do it again and be sure his victim is
dead.
573 So. 2d 740, 746 (Miss. 1990) (concurring opinion).
Thus, based on the survival statute’s legislative
history, Hawai#i precedent, and policy considerations, we hold
that Briandalynne’s estate was properly allowed to recover
damages for loss of enjoyment of life.
This holding would not subject to civil liability a
woman carrying a fetus whose negligence caused the viable fetus
to die in utero or who exercised her rights under the law to
terminate a pregnancy through abortion.
Regarding negligence, the question of whether recovery
is possible under HRS § 663-7 and whether a legal duty of care
exists are two separate inquiries. HRS § 663-7 does not define
against whom a decedent’s estate may sue, and its legislative
history does not manifest intent on the part of the legislature
to impose a legal duty of care on particular defendants.
Accordingly, the existence of a legal duty of care for recovery
under HRS § 663-7 is a question of law for the courts to decide.
Ah Mook Sang v. Clark, 130 Hawai#i 282, 290, 308 P.3d 911, 919
(2013).
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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
appellants’ recovery against those which favor
limiting the appellees’ liability.
Id. at 291, 308 P.3d at 920.
Based on significant policy considerations, we agree
with the jurisdictions that have held as a matter of law that a
pregnant woman does not owe a legal duty of care to the fetus she
carries. See Remy v. MacDonald, 440 Mass. 675, 682-83, 801
N.E.2d 260, 266-67 (2004) (holding that a mother did not owe a
legal duty of care to her unborn fetus, noting “inherent and
important differences between a fetus, in utero, and a child
already born” and that “[r]ecognizing a pregnant woman’s legal
duty of care . . . to her unborn child would present an almost
unlimited number of circumstances that would likely give rise to
litigation”); Stallman v. Youngquist, 125 Ill. 2d 267, 279-80,
531 N.E.2d 355, 361 (1988)(holding no legal duty, and noting
“[j]udicial scrutiny into the day-to-day lives of pregnant women
would involve an unprecedented intrusion into the privacy and
autonomy of the citizens of this State”); Chenault v. Huie, 989
S.W.2d 474, 476-77 (Tex. App. 1999) (finding no legal duty and
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stressing “[t]he extent of interference with a woman’s legal
rights that could occur as a result of imposing a legal duty to
the fetus”).
Similarly, a holding that Briandalynne’s estate can
recover loss of enjoyment of life damages under HRS § 663-7 would
not affect or interfere with a woman’s right under the law to
terminate a pregnancy through abortion. Other jurisdictions
which have interpreted wrongful death or survival statutes to
provide recovery for the death of a viable, unborn fetus have
made clear that the holding would not affect abortion rights.
See, e.g., Strzelczyk v. Jett, 264 Mont. 153, 158, 870 P.2d 730,
733 (1994) (Gray, J., concurring) (making clear, in its holding
that a wrongful death statute covered an unborn fetus that, “this
is not an abortion case or a case related in any way to a woman's
constitutional right to privacy and to an abortion . . . The
termination of a pregnancy by abortion is an intentional,
consensual act by a woman and her physician which the law
specifically allows” while a wrongful death action is based on
negligence).
B. The circuit court’s award of $250,000 in damages to
Briandalynne’s estate was not in error.
In their second question presented, Petitioners argue
that the circuit court erred in awarding $250,000 in damages to
Briandalynne’s estate “when there was no evidence presented to
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justify that monetary amount.” For support, Petitioners cite to
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., in
which we held that “[i]t is well-settled that all tort claims
require that damages be proven with reasonable certainty.” 116
Hawai#i 277, 292, 172 P.3d 1021, 1036 (2007).
Generally, we do not disturb the findings of the trial
court on the issue of damages absent a clearly erroneous measure
of damages. See Viveiros, 54 Haw. at 614, 513 P.2d at 489;
Johnson v. Sartain, 46 Haw. 112, 114, 375 P.2d 229, 230-31 (1962)
(“[D]amages . . . will not be disturbed on appellate review
unless palpably not supported by the evidence, or so excessive
and outrageous when considered with the circumstances of the
case.”). With respect to Briandalynne’s damages, the circuit
court made the following FOF, which Petitioners do not challenge
in their application for certiorari:
56. The evidence established that [Briandalynne had]
no congenital or development abnormalities. Despite
the incarcerated status of her mother,
[Briandalynne’s] life and her loss of enjoyment of
life, are of the nature and kind of any other infant.
The circuit court also made the following COLs:
72. Had Plaintiff’s medical care been consistent with
the applicable standard of care, such as a
consultation with an OBGYN and an ultrasound
evaluation by as late as July 29, 2007, Plaintiff’s
bleeding condition would have been detected and
treated; or if the bleeding condition could not have
been corrected, delivery would have been initiated and
[Briandalynne] would have been born alive.
73. Defendant State’s negligence was the legal cause
of the death of [Briandalynne], and Plaintiff's
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injuries and damages. Had medical care for [Castro
and Briandalynne] been provided consistent with the
applicable standard of care after July 2, 2007 and
before July 29, 2007, delivery of a live baby would
have been accomplished.
. . . .
83. The Estate’s damages include the value for the
loss of life itself and for all of the damages that
[Briandalynne] would have been entitled to had she
been alive, such as loss of enjoyment of life. The
evidence established that [Briandalynne had] no
congenital or development abnormalities. Despite the
incarcerated status of her mother, [Briandalynne’s]
life and her loss of enjoyment of life, are of the
nature and kind of any other infant. An award of
damages against Defendant State, in the amount of
$250,000.00 to the Estate of Briandalynne Castro, is
fair and appropriate, for the State’s share of the
Estate's total damages.
Based on this record, the circuit court’s damages award
was not clearly erroneous. The $250,000 was appropriately based
on the evidence at trial that showed, for example, that
Briandalynne would have been born a healthy child, and that her
loss of enjoyment of life would be similar to that of any other
infant. This award is also comparable to other damage awards for
similar conduct. See Polm, 2014 WL 7390879 at *21 (affirming
circuit court’s order awarding $250,000 in damages to one-year-
old child’s estate).
Contrary to Petitioners’ argument, Respondents were not
required to present specific evidence of Briandalynne’s life
expectancy or make calculations regarding her loss of enjoyment
of life. This is not a case in which damages were capable of
ascertainment by calculation. As we noted in Montalvo:
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The measurement of the joy of life is intangible. A
jury may draw upon its own life experiences in
attempting to put a monetary figure on the pleasure of
living. It is a uniquely human endeavor . . .
requiring the trier of fact to draw upon the virtually
unlimited factors unique to us as human beings.
Testimony of an economist would not aid the jury in
making such measurements because an economist is no
more expert at valuing the pleasure of life than the
average juror. [T]he loss of enjoyment of life
resulting from a permanent injury is . . . not subject
to an economic calculation.
77 Hawai#i at 303, 884 P.2d at 366 (emphases added; citations and
internal quotations omitted).
Thus, given its findings, we conclude that the circuit
court was within its discretion to set $250,000 as the
appropriate compensation for Briandalynne’s injury.
V. Conclusion
For the foregoing reasons, we hold that Briandalynne’s
estate could maintain a survival action against Petitioners for
hedonic damages, and that the circuit court did not err in
awarding the estate $250,000 in damages for loss of enjoyment of
life. Accordingly, we affirm the ICA’s judgment on appeal.
Marie Manuele Gavigan /s/ Mark E. Recktentwald
for petitioners
/s/ Michael D. Wilson
Sue V. Hansen for
respondent Leah Castro
37