Ah Mook Sang v. Clark. , 130 Haw. 282 ( 2013 )

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Electronically Filed
Supreme Court
SCAP-11-0000536
03-SEP-2013
08:10 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
TRACY AH MOOK SANG, as the Personal Representative
of THE ESTATE OF MAKAMAE AH MOOK SANG, Deceased,
TRACY AH MOOK SANG, individually, and
JASON AH MOOK SANG, individually,
Plaintiffs-Appellants,
vs.
MICHAEL CLARK, DENISE CLARK, and EDEN PACIFIC PROPERTIES, INC.,
Defendants-Appellees.
SCAP-11-0000536
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-11-0000536; CIV. NO. 10-1-2358-11)
SEPTEMBER 3, 2013
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ.,
CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED,
AND CIRCUIT JUDGE AYABE, IN PLACE OF POLLACK, J., RECUSED
OPINION OF THE COURT BY NAKAYAMA, J.
Makamae Ah Mook Sang, according to the allegations in
the complaint in this case, was fifteen years old on July 29,
2009 when she attended a house party hosted by Michael Clark,
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then twenty-five years old. Once there, Makamae was allegedly
served and encouraged to drink large amounts of hard liquor. At
some point during the night, she allegedly began to feel ill and
then became unconscious, yet neither Michael nor his mother
Denise Clark, with whom he lived and who was present on the
property at the time, rendered or summoned any aid. The next
morning, Michael then allegedly assisted in loading Makamae’s
apparently still-unconscious body into her friend’s car and
simply directed the friend to leave the property. According to
medical personnel, by that time Makamae had likely already died
of acute alcohol intoxication.
Makamae’s parents, Tracy, individually and as personal
representative of Makamae’s estate, and Jason, individually
(collectively, the Ah Mook Sangs), brought the present negligence
action against Michael, Denise, and Eden Pacific Properties, Inc.
(collectively, the Clarks). They seek damages under Hawai#i
Revised Statutes (HRS) § 663-3, Hawaii’s wrongful death statute,
as well as for claims of emotional distress and loss of
consortium due to Makamae’s death.
After the Circuit Court of the First Circuit1 granted
the Clarks’ motion to dismiss the Ah Mook Sangs’ complaint for
failure to state a claim and entered judgment thereon, the Ah
1
The Honorable Rom A. Trader presided.
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Mook Sangs appealed. The appeal is now before this court
pursuant to our order granting the Ah Mook Sangs’ application for
transfer of the case from the Intermediate Court of Appeals
(ICA).
This appeal requires us to consider whether a social
host who invites a minor onto his or her property and then
directly serves alcohol to the minor owes a duty of care to
prevent foreseeable injuries resulting from consumption of the
alcohol, or to render or summon aid if injuries have occurred,
while the minor remains on the property as a guest. While this
court has previously decided cases addressing civil liability for
alcohol-related injuries, we conclude, based on the discussion
that follows, that those cases are factually distinguishable from
the situation presented by this case. We also conclude that the
statute enacted to create a right of action founded on social
host liability does not apply in a case such as this where the
intoxicated minor has not caused damage or injury to an innocent
third party.
Accordingly, we hold that a social host in the
circumstances presented in this case owes a duty of care to a
minor when the host has placed the minor in a position of peril
and does not act to prevent foreseeable harm to the minor that
may thereby result, and when the host does not act to aid the
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minor in the event that harm has occurred. We therefore vacate
the order and judgment of the circuit court and remand for
further proceedings in this case.
I. BACKGROUND
A. Factual Background
Because this case is on appeal from a grant of a motion
to dismiss the complaint, the facts alleged in the complaint are
deemed to be true and viewed in the light most favorable to the
Ah Mook Sangs. See, e.g., Buscher v. Boning, 114 Hawai#i 202,
212, 159 P.3d 814, 824 (2007) (quoting Wong v. Cayetano, 111
Hawai#i 462, 476, 143 P.3d 1, 15 (2006)).
On July 29, 2009, twenty-five-year-old Michael hosted a
party at his residence in Honolulu. Denise, who is Michael’s
mother, also resided at the house and was present on the property
during the party. The house was owned by Eden and Anne Clark,
who is Denise’s mother and Michael’s grandmother. Denise is
listed as the registered agent, president, and owner of Eden, a
real estate company registered in the State of Hawai#i as a for-
profit domestic corporation.
In advance of the July 29 party, Michael purchased
alcohol and invited female guests he knew to be under twenty-one
years of age, including fifteen-year-old Makamae.
On July 29, Makamae arrived at the party at
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approximately 10:00 p.m. with an eighteen-year-old friend, who
drove, and two other underage females. While at the party during
the night of July 29 and early morning hours of July 30, Michael
provided large amounts of alcoholic beverages, including hard
liquor, to Makamae and the other underage female guests. Michael
also organized and facilitated drinking games during the party
and encouraged the guests, including Makamae, to participate.
Due to consumption of the large amount of alcohol provided by
Michael during the party, Makamae became visibly sick and
unconscious; however, at no time on July 29 or 30, 2009 did
Michael or Denise render aid to Makamae, call an ambulance, or
otherwise seek medical attention.
At approximately 10:00 a.m. on July 30, Michael
assisted in loading Makamae’s body into the car of the friend who
had driven and told her to leave the property; she drove straight
to the emergency room at Straub Hospital and arrived there at
approximately 10:55 a.m. Makamae was pronounced dead at 11:22
a.m., although it appeared that she was already deceased prior to
that time. Jason was contacted by Straub Hospital personnel and
rushed to the emergency room but arrived after Makamae had been
pronounced dead; Tracy was on the mainland at the time and
received the news via telephone. An autopsy revealed that
Makamae’s blood alcohol level at the time of death was .433 grams
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per deciliter, and the cause of her death was determined to be
acute alcohol intoxication. The Ah Mook Sangs also alleged that
Makamae did not consume any alcohol on July 29 and 30, 2009 other
than what was provided to her by Michael at the party.
B. Procedural Background
The Ah Mook Sangs filed their complaint on November 4,
2010, alleging that the Clarks negligently caused Makamae’s
death, seeking damages pursuant to HRS § 663-3.2 The Ah Mook
2
HRS § 663-3 (Supp. 2009) provided then, as it does now:
Death by wrongful act. (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
expenses of the deceased’s last illness and burial.
(b) In any action under this section, such
damages may be given as under the circumstances shall
be deemed fair and just compensation, with reference
to the pecuniary injury and 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 care, attention, advice, or
counsel of a reciprocal beneficiary as
defined in chapter 572C;
(4) Loss of filial care or attention; or
(5) Loss of parental care, training, guidance,
or education, suffered as a result of the
death of the person;
by the surviving spouse, reciprocal beneficiary,
children, father, mother, and by any person wholly or
partly dependent upon the deceased person. The jury
or court sitting without jury shall allocate the
damages to the persons entitled thereto in its verdict
(continued...)
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Sangs also sought punitive damages.
Michael and Denise filed individual answers on December
9, 2010 and their motion to dismiss the Ah Mook Sangs’ complaint
for failure to state a claim upon which relief can be granted on
February 10, 2011. Eden, which was represented by separate
counsel at that time, filed its answer on December 23, 2010 and a
joinder in the motion to dismiss on February 22, 2011. In
support of the motion to dismiss, the Clarks began by noting that
the Ah Mook Sangs’ claims were based on the concept of social
host liability; under that theory of liability, the Clarks would
be held “legally responsible for Makamae’s alcohol consumption
and ultimate death.” Specifically, the Ah Mook Sangs alleged
that Michael, “an adult, negligently provided alcoholic beverages
to a minor, Makamae, while she was a guest at his property[,]”
and that Denise “was ‘present’ at the property while her son,
[Michael], was providing alcohol to minors.” As the alter-ego of
Denise, Eden would be responsible under joint enterprise or
agency liability.
While the Clarks acknowledged that the Ah Mook Sangs’
2
(...continued)
or judgment, and any damages recovered under this
section, except for reasonable expenses of last
illness and burial, shall not constitute a part of the
estate of the deceased. Any action brought under this
section shall be commenced within two years from the
date of death of the injured person, except as
otherwise provided.
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claims were grounded in HRS § 663-3, Hawaii’s wrongful death
statute, the Clarks argued that Hawaii’s common law does not
recognize a plaintiff’s claim for damages based on the concept of
social host liability. Moreover, although the Clarks recognized
that the Hawai#i Legislature created a limited exception to the
common law in HRS § 663-413 by allowing claims against social
hosts when the host’s intoxicated guest who is under twenty-one
years of age causes injury or damage to innocent third parties,
they emphasized that the intoxicated minor guest has no similar
claim against the host under that statute. The Clarks thus also
argued that Tracy and Jason are barred from bringing their
individual claims because those claims are derivative of the
claims brought by Makamae pursuant to HRS § 663-3.
3
HRS § 663-41 (Supp. 2009) provided then, as it does now:
Right of action. (a) Any person twenty-one
years or older who:
(1) Sells, furnishes, or provides alcoholic
beverages to a person under the age of
twenty-one years; or
(2) Owns, occupies, or controls premises on
which alcoholic beverages are consumed by
any person under twenty-one years of age,
and who knows of alcohol consumption by
persons under twenty-one years of age on
such premises, and who reasonably could
have prohibited or prevented such alcohol
consumption;
shall be liable for all injuries or damages caused by
the intoxicated person under twenty-one years of age.
(b) This section shall not apply to sales
licensed under chapter 281.
(c) An intoxicated person under the age of
twenty-one years who causes an injury or damage shall
have no right of action under this part.
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In opposition, the Ah Mook Sangs primarily
distinguished the Hawai#i cases cited by the Clarks as involving
situations where intoxicated persons left the property where they
consumed the alcohol and then injured themselves or others at a
different location. In this case, however, the Ah Mook Sangs
stressed that Makamae never left the Clarks’ property and thus
argued that the Clarks should be held liable because Makamae
became ill and died while on their property due to their
negligence.
The Ah Mook Sangs argued that, according to this
court’s opinion in Blair v. Ing, 95 Hawai#i 247, 259-60, 21 P.3d
452, 464-65 (2001), whether one owes a legal duty to another must
be decided on a case-by-case basis and should be determined by
consideration of several different factors:
[w]hether a special relationship exists . . ., the
foreseeability of harm to the injured party, the
degree of certainty that the 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 insured.
(Quoting Blair, 95 Hawai#i at 260, 21 P.3d at 465 (quoting Lee v.
Corregedore, 83 Hawai#i 154, 164, 925 P.2d 324, 334 (1996))).
Based on their analysis of these factors, the Ah Mook Sangs
argued that “a legal duty to protect Makamae Ah Mook Sang against
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injury, and to render aid when injured, should be imposed on [the
Clarks] for so long as she was on their property.” The Ah Mook
Sangs further pointed out that a denial of the motion to dismiss
would not render this case incompatible with the existing Hawai#i
cases on dram shop liability and social host liability because of
the key factual distinction in this case that Makamae never left
the property and thus never caused injury to herself or to others
in a different location. Rather, her injuries and death occurred
on the subject property in this case, and the Clarks both
provided the alcohol that gave rise to Makamae’s distress while
still on the property and thereafter failed to render or summon
aid that could have remedied the distress they caused.4
The Ah Mook Sangs also argued that HRS § 663-41 does
not preclude their claims. The Ah Mook Sangs acknowledged that
HRS § 663-41 plainly applies to provide a claim by an innocent
third party who has suffered injury or damage caused by an
intoxicated person under twenty-one years of age as against a
person over twenty-one years of age who either sold or furnished
alcoholic beverages to the minor or owned, occupied, or
controlled the premises where alcoholic beverages were consumed
4
Regarding this point, the Ah Mook Sangs argued: “[A]lthough the
act of allowing an intoxicated uninjured individual to leave your property is
not necessarily morally acceptable, it is much more atrocious to injure
someone on your property due to your providing such person with excessive
amounts of alcohol and not render aid while death by alcohol poisoning occurs
to that individual on your property.”
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by any minor, knew of the consumption, and reasonably could have
prohibited or prevented the consumption. The Ah Mook Sangs
recognized that pursuant to HRS § 663-41(c), the intoxicated
minor cannot bring his or her own claim against the provider of
alcohol or occupier of the premises where the alcohol was
consumed; however, because no third parties were injured in this
case, the Ah Mook Sangs’ claims were not brought under HRS § 663-
41 and therefore could not be precluded by it. The Ah Mook Sangs
also looked to the legislative history of the bill that became
HRS § 663-41 and noted from both House and Senate committee
reports that the bill was intended to impose civil liability on
adults who provide alcoholic beverages to minors who then injure
third parties.
In a reply memorandum in further support of the motion
to dismiss, the Clarks reiterated that there is no Hawai#i case
holding that a person who furnishes alcohol to an intoxicated
minor is civilly liable for the minor’s injuries, and they
contested the Ah Mook Sangs’ assertion that they could be held
liable because Makamae’s injuries occurred on their property as
opposed to some other location away from the property. The
Clarks also argued that resort to the legislative history of HRS
§ 663-41 is unnecessary because that statute unambiguously
provides that the intoxicated person under the age of twenty-one
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who causes an injury or damage cannot bring a claim against the
adult furnisher or seller of the alcohol. Moreover, because the
Clarks could not be liable for furnishing alcohol on their
property, they argued that there was as a result no liability
under HRS § 663-41(c) or existing Hawai#i case law for any
failure to render aid. The Clarks also argued that the Ah Mook
Sangs did not allege facts in the complaint to support the
assertion that a special relationship existed between Makamae and
the Clarks requiring them to have affirmatively acted to prevent
Makamae from harm.
On March 24, 2011, the circuit court held a hearing on
the motion to dismiss; the parties argued based on their written
submissions, and the court granted the motion, ruling as follows:
It’s -- it’s absolutely crystal clear that this
is a tragedy of indescribable proportions for you
folks. Anyone who is a parent certainly I think can
relate to a certain extent but really cannot
comprehend unless they’ve been in your shoes. So I
make this decision because this is a court of law.
What clearly happened in this situation
shouldn’t have happened and basically I’m constrained
by what the facts are that are before me in the
record. And I’m also constrained to apply the law
that’s before me regardless of whether or not perhaps
it would certainly be arguable, and even there may be
a consensus, that what happened to your daughter in
this particular case was something that should be
condoned in any way because I don’t think anyone
looking at the situation would be able to do so.
And so based upon what I have before me, the
[c]ourt is going to respectfully adopt the arguments
and authorities relied upon by defendant and I wil be
granting the motion. All right. I fully appreciate
and do respect the arguments that Mr. Otake has made
on your behalf. I’m familiar with Mr. Otake for some
time and he’s [] a very, very good and very skilled
lawyer, and he’s doing everything he possibly can on
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your behalf. But the application of the law, as this
[c]ourt sees it, unfortunately from your standpoint,
results in an outcome that I know that you do not want
at this stage of the proceedings.
Doesn’t mean that I’m 100 percent correct.
That’s why there’s a process involved here and I full
well expect and encourage you folks to consider
appealing this particular ruling. Because if I am
wrong, I would full well expect the appellate court to
point out precisely why and remand this matter for
further proceedings. But that’s -- that’s for another
day.
Basically, when this [c]ourt views this
particular situation and I apply the standards that I
must apply and I view the facts that are alleged in
the complaint and all reasonable inferences there are
drawn therefrom as true, this [c]ourt cannot find that
there is a cause of action that survives based upon
the application of the law. The cases Ono [v.
Applegate, 62 Haw. 131, 612 P.2d 533 (1980)],
Bertelmann [v. Taas Assocs., 69 Haw. 95, 735 P.2d 930(1987)], Johns[t]on [v. KFC Nat’l Mgmt. Co., 71 Haw.
229, 788 P.2d 159 (1990)], Winters [v. Silver Fox Bar,
71 Haw. 524, 797 P.2d 51 (1990)], the F[aulk v. Suzuki
Motor Co., 9 Haw. App. 490, 851 P.2d 332 (1993),]
decision, there’s probably a couple others out there,
basically there’s a line of cases which stand
precisely for the propositions that Mr. Ortiz
articulated.
And it doesn’t mean that necessarily that it’s
as it should be, but basically the law is what it is.
And under this [c]ourt’s analysis simply as a matter
of law, given the jurisprudence here in this state,
the cause of action that is being advanced, whatever
it’s called, ultimately comes down to social host
liability which is not recognized as a matter of law
here. And if the decedent did not have a cause of
action, then any other claims by survivors are purely
derivative of that and also necessarily must fail.
I find significant that there is no legal
authority for the proposition that the plaintiffs have
asked this [c]ourt to adopt in imposing a duty on
defendants in this case or essentially recognizing a
cause of action that otherwise has not been recognized
by any court, at least certainly by the Hawai#i
courts. And I’ll just sort of note that my view of
the statute, the statute I believe is clear, is
sufficiently clear, I don’t believe there is ambiguity
there.
And based upon my obligations to apply that and
the plain language thereof, I believe that cause of
action by the decedent in this particular case is not
permitted and has been expressly prohibited. And
absent an express indication by the Legislature or an
appellate court here that -- that this is incorrect,
this is the state of the law.
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And I would note that, as I stated earlier, that
while -- while this certainly, if we took a broader
moral view of right and wrong here, clearly what
happened here was wrong. And assuming that -- that
the facts are as alleged, and no one, no one I don’t
think could defend the actions of the defendants here.
But that is not my role.
So based upon that the [c]ourt has to expressly
reject the arguments proffered by the plaintiffs. In
this particular case I do not find there’s any special
duty that exists here and I don’t believe that the
circumstances that exist, albeit to include the
presence of an underage child in the presence of
adults who are knowingly providing alcohol, assuming
all those facts are correct, rises to the level of
creating a special relationship and therefore any
special duties from it.
Pursuant to the circuit court’s ruling, an order
granting the motion to dismiss was filed on May 17, 2011, and
judgment was entered on June 28, 2011. The Ah Mook Sangs timely
appealed on July 13, 2011.
After briefing in the ICA was completed, the Ah Mook
Sangs filed an application for transfer of the case to this
court; the application was accepted on December 11, 2012 pursuant
to HRS § 602-58(b)(1).5
5
HRS § 602-58 (Supp. 2011) provided then, as it does now, in
pertinent part:
(b) The supreme court, in a manner and within the time
provided by the rules of court, may grant an
application to transfer any case within the
jurisdiction of the intermediate appellate court to
the supreme court upon the grounds that the case
involves:
(1) A question of first impression or a novel legal
question[.]
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II. STANDARDS OF REVIEW
A. Motion to Dismiss
A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his
or her claim that would entitle him or her to relief.
We must therefore view a plaintiff’s complaint in a
light most favorable to him or her in order to
determine whether the allegations contained therein
could warrant relief under any alternative theory.
For this reason, in reviewing a circuit court’s order
dismissing a complaint . . . our consideration is
strictly limited to the allegations of the complaint,
and we must deem those allegations to be true.
Touchette v. Ganal, 82 Hawai#i 293, 298, 922 P.2d 347, 352 (1996)
(quoting Baehr v. Lewin, 74 Haw. 530, 545, 852 P.2d 44, 52
(1993)) (brackets and internal citations omitted).
B. Statutory Interpretation
The interpretation of a statute is a question of law
reviewable de novo. Kaleikini v. Yoshioka, 128 Hawai#i 53, 67,
283 P.3d 60, 74 (2012) (quoting First Ins. Co. of Haw. v. A & B
Props., 126 Hawai#i 406, 414, 271 P.3d 1165, 1173 (2012)). The
following settled principles guide our interpretation of
statutes:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its
plain and obvious meaning. Third, implicit in the
task of statutory construction is our foremost
obligation 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. Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an
expression used in a statute, an ambiguity exists.
And fifth, in construing an ambiguous statute, the
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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.
State v. Silver, 125 Hawai#i 1, 4, 249 P.3d 1141, 1144 (2011)
(quoting Haw. Gov’t Emps. Ass’n, AFSCME Local 152, AFL-CIO v.
Lingle, 124 Hawai#i 197, 202, 239 P.3d 1, 6 (2010)) (internal
citations omitted).
C. Duty of Care
“This court addresses whether a defendant owes a duty
of care to a particular plaintiff as a question of law under the
right/wrong standard.” Blair, 95 Hawai#i at 253, 21 P.3d at 458
(citing Corregedore, 83 Hawai#i at 158, 925 P.2d at 328). “Under
the right/wrong standard, we examine the facts and answer the
question without being required to give any weight to the trial
court’s answer to it.” Corregedore, 83 Hawai#i at 158, 925 P.2d
at 328 (quoting State v. Meyer, 78 Hawai#i 308, 311, 893 P.2d
159, 162 (1995)) (internal quotation marks omitted).
III. DISCUSSION
On appeal, the Ah Mook Sangs challenge the circuit
court’s dismissal of their complaint for failure to state a
claim. Specifically, at issue in this case is whether the Ah
Mook Sangs may pursue their claims for damages for Makamae’s
injuries and death against the Clarks as social hosts or
noncommercial suppliers of alcohol. While this court has had
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occasion in the past to discuss liability for injuries resulting
from the provision and consumption of alcohol in both commercial
and noncommercial settings, the unique facts of the present case
require us to distinguish it from those previous cases.
Accordingly, in this case, we must then determine whether the
Clarks owed Makamae any legal duty while she was on their
property as a social guest.
A. Whether a legal duty is owed to a plaintiff must be
determined on a case-by-case basis
It is well settled that a negligence action lies only
where there is a duty of care owed by the defendant to the
plaintiff. See Tabieros v. Clark Equip. Co., 85 Hawai#i 336,
353, 944 P.2d 1279, 1296 (1997) (quoting Bidar v. AMFAC, Inc., 66
Haw. 547, 551, 669 P.2d 154, 158 (1983)). The existence of a
duty in a particular case, however, depends on the facts and
circumstances attendant to that case. As we have previously
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
appellants’ recovery against those which favor
limiting the appellees’ liability. The question of
whether one owes a duty to another must be decided on
a case-by-case basis.
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Corregedore, 83 Hawai#i at 166, 925 P.2d at 336 (internal
citations omitted).
B. Previous Hawai#i cases concerning dram shop and social host
liability are distinguishable and do not foreclose the existence
of a duty in this case
Both parties have cited to a series of Hawai#i cases
addressing the liability of furnishers of alcohol in both
commercial (dram shop liability) and noncommercial (social host
liability) settings. The Ah Mook Sangs argue that these cases
are all distinguishable from the instant case and do not address
the exact factual situation presented here, while the Clarks
argue that these cases are directly on point and therefore that
liability is foreclosed because this court has never recognized
the liability of a social host for injuries sustained by an
intoxicated minor.
This series of cases begins with the seminal Hawai#i
case on dram shop liability, Ono v. Applegate, 62 Haw. 131, 612
P.2d 533 (1980). In Ono, this court allowed an innocent third
party injured by an intoxicated tavern customer to recover from
the tavern that had provided liquor to the customer. Id. at 136,
612 P.2d at 538.
Thereafter, in Bertelmann v. Taas Associates, 69 Haw.
95, 735 P.2d 930 (1987), this court declined to extend Ono to
allow recovery directly by the intoxicated tavern customer. In
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that case, the decedent had been drinking alcoholic beverages at
a hotel; after leaving, the decedent died from injuries sustained
in a one-car accident. Id. at 96, 735 P.2d at 931. Although the
decedent’s survivors specifically brought their action under Ono,
the circuit court dismissed their complaint. Id. at 99, 735 P.2d
at 933. This court affirmed the dismissal on the basis of the
well-settled common law principle that “[d]runken persons who
harm themselves are solely responsible for their voluntary
intoxication and cannot prevail under a common law or statutory
basis.” Id. at 100, 735 P.2d at 933 (citing Wright v. Moffit,
437 A.2d 554 (Del. 1981)).
In Feliciano v. Waikiki Deep Water, Inc., this court
held that, without more, “aggressive sales of drinks” by a
hostess bar to an “unsophisticated” nineteen-year-old plaintiff
“d[id] not constitute affirmative acts that would create
liability to the consumer on the part of the bar or tavern.” 69
Haw. 605, 608, 752 P.2d 1076, 1079 (1988). Because Feliciano
“apparently paid for the drinks and voluntarily drank them[,]”
this court concluded that the bar could not be held liable for
Feliciano’s subsequent injuries. Id.Subsequently, this court first addressed the potential
liability of a noncommercial social host in Johnston v. KFC
National Management Co., 71 Haw. 229, 788 P.2d 159 (1990). In
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Johnston, a group of Kentucky Fried Chicken employees held a
Christmas party at which they consumed alcohol. Id. at 230, 788
P.2d at 160. After that party, a group of employees moved to the
home of employee Andrea Cui to continue the party; the employees
partied on the Cui premises but outside the home, and Cui’s
parents were asleep inside the home. Id. at 231, 788 P.2d at
160. After leaving the Cui residence, Sandra Joan Parks, the
tortfeasor, drove into oncoming traffic on Kapi#olani Boulevard
and collided with a moped operated by plaintiff Donna Johnston.
Id. at 231, 788 P.2d at 160-61. The circuit court entered
summary judgment in favor of the defendants on the ground that
they owed no duty to Johnston. Id. at 231-32, 788 P.2d at 161.
This court affirmed, following the lead of the majority of other
jurisdictions in not “impos[ing] a duty upon a social host to
protect third parties from risk of injuries that may be caused by
an adult who is provided and served alcohol beverages.” Id. at
234, 788 P.2d at 162. We also noted that “our legislature ha[d]
not enacted any statute imposing liability upon social hosts or
establishing standards of conduct for social hosts upon which
this court may hold a social host civilly liable for a breach of
duty to protect third persons from risks of injury from drunk
driving accidents.” Id. at 236-37, 788 P.2d at 163 (internal
quotation marks omitted).
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Shortly thereafter, in an opinion answering a certified
question from the United States District Court for the District
of Hawai#i, this court held in Winters v. Silver Fox Bar that a
minor who purchases alcohol from a commercial supplier cannot
thereafter bring suit against the supplier for injuries sustained
by the minor himself or herself. 71 Haw. 524, 525, 797 P.2d 51,
51-52 (1990). In Winters, a bar in downtown Honolulu sold
alcohol to eighteen-year-old Daniel Ferris in violation of the
liquor control statute6; after leaving the bar, Ferris lost
control of his car and died. Id. at 525-26, 797 P.2d at 52.
This court emphasized that because the Legislature had prohibited
minors from purchasing or otherwise acquiring alcohol, it would
be inconsistent with “legislative intent or public policy . . .
to allow the cause of action sought by Appellant insofar as
decedent’s own conduct of purchasing liquor was an activity which
our legislature expressly intended to prohibit and penalize.”
Id. at 730, 797 P.2d at 54.
Most recently, in Reyes v. Kuboyama, this court held
that the liquor control statute does impose a duty of care on a
commercial liquor store operator to innocent third parties when
the operator sells alcohol to a minor. 76 Hawai#i 137, 144-45,
6
Thus, as we noted, Ferris also obtained alcohol in violation of
related statutory provisions under which he could have been found guilty of a
petty misdemeanor. Winters, 71 Haw. at 526 & nn.4-5, 797 P.2d at 52 & nn.4-5.
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870 P.2d 1281, 1288-89 (1994).
While these cases previously decided by this court7
have established certain general principles for cases involving
either potential dram shop or social host liability, we note that
this case is not governed by the holdings of the cases discussed
supra. This case does not concern the provision of alcohol in a
commercial setting and is therefore distinguishable from Ono,
Bertelmann, Feliciano, Winters, and Reyes in that respect.
Unlike Ono, Johnston, and Reyes, as well as innumerable liquor
liability cases nationwide, this case does not concern a claim
against a supplier of alcohol by a third party injured by an
intoxicated guest or customer of the supplier. Moreover,
Johnston, the only prior case discussing social host liability,
is inapposite as it did not involve a claim by a guest directly
against the host, but by a third party subsequently injured by
one of the guests; additionally, the intoxicated guest in that
case was an adult of legal drinking age who voluntarily consumed
alcohol and then operated an automobile on public roads.
As alleged, this case involves a fifteen-year-old minor
who was a social guest at a party hosted by a twenty-five-year-
old adult; the host knew minors were present and knowingly served
7
In one case decided by the ICA, that court held on the authority
of Johnston that a social host did not have a duty to protect innocent third
parties from injury caused by an intoxicated adult guest of the social host.
See Faulk v. Suzuki Motor Co., 9 Haw. App. 490, 851 P.2d 332 (1993).
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them alcoholic beverages and encouraged them to drink. Further,
when the guest became visibly sick due to consumption of the
alcohol, the host made no attempt to render or summon aid.
Instead, the guest was left unconscious overnight; in the
morning, the host loaded the guest’s still unconscious (and
probably already deceased at this point, according to Straub
Hospital personnel) body into her friend’s car and simply
directed the friend to leave the property. The cause of the
guest’s death was determined to be the ingestion itself of a
large quantity of alcohol at the party, not from injuries
sustained in the course of any activity subsequent to the party.
This is a set of facts not addressed by any of our
previous cases; therefore, the conclusion that the Clarks may
have owed a duty of care to Makamae is not foreclosed by applying
the holdings of any of those cases. As the Ah Mook Sangs also
urge us to do, we must follow the guidance set forth in Blair and
determine whether a duty of care exists based on the facts and
circumstances of this particular case.
C. Analysis of the Blair factors weighs in favor of imposing a
duty of care in this case
As noted, whether to impose a duty of care in any given
case “requires the balancing of several factors in light of the
policies favoring recovery versus those limiting liability.”
Blair, 95 Hawai#i at 260, 21 P.3d at 465. Although quoted supra,
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those factors are repeated here for convenience for the purpose
of analyzing whether to impose a duty on the Clarks in this case:
whether a special relationship exists . . ., the
foreseeability of harm to the injured party, the
degree of certainty that the injured party suffered
injury, the closesness 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.
Id. (quoting Corregedore, 83 Hawai#i at 164, 925 P.2d at 334).
The Ah Mook Sangs submit that each of these factors weighs in
their favor and therefore that this court should conclude that
the Clarks had a legal duty to protect Makamae against injury,
and at least to render aid when injured, “for at least so long as
she was on their property.” The Clarks argue in response that
Blair is inapplicable and only “set[s] forth factors to assist in
determining the duty owed by an attorney to beneficiaries of a
trust.” The Ah Mook Sangs have responded that there is no such
limitation in Blair, and they also note that the Blair factors
were earlier mentioned in Corregedore, a wrongful death case.
1. Existence of a special relationship
Whether a special relationship existed between Makamae
and the Clarks features heavily in this case. On appeal, the Ah
Mook Sangs argue that the circuit court erred (1) by concluding
there was no special relationship between Makamae and the Clarks
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and (2) by concluding that the Clarks did not owe a legal duty to
Makamae due to the absence of a special relationship, as the
existence of a special relationship is only one of the
aforementioned Blair factors.
The Clarks note, and we must agree, that it is a
settled rule of law that a person generally has no duty to act
affirmatively to protect or rescue another from harm, even when
the harm is foreseeable and when assistance can be provided
without any risk of peril to the would-be rescuer. (Citing
Corregedore, 83 Hawai#i at 159, 925 P.2d at 329). Even awareness
that action “is necessary for another’s aid or protection does
not of itself impose upon him or her a duty to take such action.”
(Quoting Corregedore, 83 Hawai#i at 159, 925 P.2d at 329 (citing
Restatement (Second) of Torts § 314 (1965))) (brackets and
emphasis removed). However, an exception to this general rule
arises when a special relationship exists between the actor and
the individual facing harm. (Citing Corregedore, 83 Hawai#i at
159, 925 P.2d at 329). As an exception to the general rule, it
is thus true that “[i]f there is no special relationship, then
there is no duty.” (Citing Corregedore, 83 Hawai#i at 160, 925
P.2d at 329) (emphasis removed).
The general, oft-quoted definition of special
relationships is found in the Restatement (Second) of Torts, and
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reads as follows:
(1) A common carrier is under a duty to its passengers
to take reasonable action
(a) to protect them against unreasonable risk of
physical harm, and
(b) to give them first aid after it knows or has
reason to know that they are ill or injured, and
to care for them until they can be cared for by
others.
(2) An innkeeper is under a similar duty to his
guests.
(3) A possessor of land who holds it open to the
public is under a similar duty to members of the
public who enter in response to his invitation.
(4) One who is required by law to take or who
voluntarily takes the custody of another under
circumstances such as to deprive the other of his
normal opportunities for protection is under a similar
duty to the other.
Restatement (Second) of Torts § 314A (1965). In a comment to
section 314A, it is stated that “[t]he relations listed are not
intended to be exclusive, and are not necessarily the only ones
in which a duty of affirmative action for the aid or protection
of another may be found.” Id. § 314A cmt. b.8 The Ah Mook Sangs
also refer to the following relevant Restatement sections to aid
us in our analysis:
If the actor does an act, and subsequently realizes or
should realize that it has created an unreasonable risk of
causing physical harm to another, he is under a duty to
exercise reasonable care to prevent the risk from taking
effect.
8
Other comments to section 314A provide that “[t]he rules stated in
this Section apply only where the relation exists between the parties, and the
risk of harm, or of further harm, arises in the course of that relation[,]”
Restatement (Second) of Torts § 314A cmt. c (1965), and that “[t]he defendant
is not liable where he neither knows nor should know of the unreasonable risk,
or of the illness or injury.” Id. § 314A cmt. d. Thus, conversely, the
Restatement would appear to support the position that a defendant can be found
liable where a special relationship exists and the defendant knows or should
know of the unreasonable risk of injury to the person requiring protection.
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Id. § 321(1).9
If the actor knows or has reason to know that by his
conduct, whether tortious or innocent, he has caused such
bodily harm to another as to make him helpless and in danger
of further harm, the actor is under a duty to exercise
reasonable care to prevent such further harm.
Id. § 322.10
In addition to the principles set forth in the quoted
Restatement sections, the Ah Mook Sangs submit that “a possessor
of land who invites someone onto his/her property holds a special
9
Comment a to section 321 provides:
The rule stated in Subsection (1) applies whenever the
actor realizes or should realize that his act has
created a condition which involves an unreasonable
risk of harm to another, or is leading to consequences
which involve such a risk. The rule applies whether
the original act is tortious or innocent. If the act
is negligent, the actor’s responsibility continues in
the form of a duty to exercise reasonable care to
avert the consequences which he recognizes or should
recognize as likely to follow. But even where he has
had no reason to believe, at the time of the act, that
it would involve any unreasonable risk of physical
harm to another, he is under a duty to exercise
reasonable care when, because of a change of
circumstances, or further knowledge of the situation
which he has acquired, he realizes or should realize
that he has created such a risk.
10
Comment a to section 322 provides:
The rule stated in this Section applies not only where
the actor’s original conduct is tortious, but also
where it is entirely innocent. If his act, or an
instrumentality within his control, has inflicted upon
another such harm that the other is helpless and in
danger, and a reasonable man would recognize the
necessity of aiding or protecting him to avert further
harm, the actor is under a duty to take such action
even though he may not have been originally at fault.
This is true even though the contributory negligence
of the person injured would disable him from
maintaining any action for the original harm resulting
from the actor’s original conduct.
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relationship with the person on his/her property for so long as
that person is on the property.” See Gibo v. City & Cnty. of
Honolulu, 51 Haw. 299, 301, 459 P.2d 198, 200 (1969); see also
Pickard v. City & Cnty. of Honolulu, 51 Haw. 134, 135, 452 P.2d
445, 446 (1969) (“[A]n occupier of land has a duty to use
reasonable care for the safety of all persons reasonably
anticipated to be upon the premises, regardless of the legal
status of the individual.”).
Taking all of these authorities together, we can
conclude that by providing large amounts of hard liquor to a
fifteen-year-old minor, Michael Clark knew or should have known
that he created an unreasonable risk of physical harm to Makamae
and thus assumed the duty to prevent the harm from occurring.
Having failed to prevent physical harm from occurring, and in
fact having caused the harm, Michael had the duty to prevent
further harm from occurring. Thus, while Michael otherwise would
have had no duty to protect Makamae from physical harm, his
affirmative acts of providing alcohol and failing to render or
summon aid after Makamae became visibly ill while on his property
and at his party placed him into a relationship with Makamae in
which he owed her a duty of reasonable care.
Even as the Ah Mook Sangs acknowledged, however, the
presence or absence of a special relationship is not the only
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factor in determining whether a duty to the plaintiff exists,
according to Blair. Accordingly, as we are urged to do by the Ah
Mook Sangs, we discuss the remainder of the Blair factors.
2. Foreseeability of harm to the injured individual
As alleged, Michael provided large amounts of hard
liquor to fifteen-year-old Makamae; consequently, Makamae became
visibly ill and eventually unconscious while the party was still
ongoing. We agree with the Ah Mook Sangs that Michael’s actions
in providing the alcohol and encouraging Makamae and others to
drink created a clearly foreseeable risk of the resultant
physical harm. Accordingly, this factor weighs in favor of the
Ah Mook Sangs.
3. The degree of certainty that the injured party suffered
injury
From the allegations in the complaint, it is certain
that Makamae was not conscious as she was driven away from the
Clark residence on the morning of July 30, 2009; indeed,
according to Straub Hospital personnel, she was probably already
deceased at that time. Further, as Makamae became visibly ill,
was in serious distress, and became unconscious during the party,
the Clarks were or should have been aware of the fact that
Makamae was injured and in need of assistance. This factor also
weighs in favor of the Ah Mook Sangs.
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4. The closeness of the connection between the defendants’
conduct and the injury sustained
An important fact in this case is that Makamae died of
acute alcohol intoxication, or alcohol poisoning. Unlike most
other cases to which the parties have cited, Makamae’s injuries
were not caused by an automobile accident, physical altercation,
or some other incident separate and apart from the social
gathering. Here, Michael provided large amounts of hard liquor
to Makamae; as a direct result of ingesting that alcohol, Makamae
became ill, then unconscious, and died. Further, the Ah Mook
Sangs allege that the Clarks’ inaction subsequent to Makamae’s
ingestion of alcohol in failing to render or summon aid also
contributed to her eventual death. Accordingly, the direct
connection between the Clarks’ acts and omissions and Makamae’s
injuries and death weighs this factor in favor of the Ah Mook
Sangs.
5. The moral blame attached to the defendants
While the concept of moral blame can be difficult to
qualify, the Ah Mook Sangs submit that it is not only immoral but
also criminal for a twenty-five-year-old to provide any amount of
alcohol to a fifteen-year-old minor. (Citing HRS § 712-1250.5
(Supp. 2008)11). The Ah Mook Sangs further argue that “fail[ing]
11
HRS § 712-1250.5 provided then, as it does now, in pertinent part:
(continued...)
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to take reasonable steps to prevent further harm” and “fail[ing]
to render any aid to the 15 year old when she is dying of alcohol
poisoning is atrocious.” Based on the allegations of the
complaint, the series of events involving Michael’s invitation of
Makamae to his residence for the party, provision of alcohol to
Makamae, and failure to render assistance when the alcohol caused
her to become ill is sufficient for this factor to weigh in favor
of the Ah Mook Sangs.
6. The policy of preventing harm
Generally speaking, an actor should always pursue a
course of action that tends to eliminate or minimize harm to
others. In this case, as the hosts of the party and the
occupiers of the property where the party took place, the onus of
preventing harm to guests, particularly minors such as Makamae,
11
(...continued)
Promoting intoxicating liquor to a person under
the age of twenty-one. (1) A person, including any
licensee as defined in section 281-1, commits the
offense of promoting intoxicating liquor to a person
under the age of twenty-one if the person knowingly:
(a) Sells or offers for sale, influences the
sale, serves, delivers, or gives to a
person intoxicating liquor, and the person
receiving the intoxicating liquor is a
person under the age of twenty-one; or
(b) Permits a person to possess intoxicating
liquor while on property under his
control, and the person possessing the
intoxicating liquor is a person under the
age of twenty-one.
. . .
(4) Promoting intoxicating liquor to a person
under the age of twenty-one is a misdemeanor.
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lay solely with the Clarks. Thus, as the Ah Mook Sangs argue,
“imposing a legal duty on an adult possessor of land who chooses
to serve a minor alcohol on his/her property for at least as long
as said minor remains on his/her property would, inter alia,
discourage and punish such reprehensible actions on the part of
adults and help curb problems resulting from consumption of
alcohol by minors.” Under the circumstances of this case, this
factor weighs in favor of the Ah Mook Sangs.
7. The extent of the burden to the defendants and
consequences of imposing a duty to exercise care with resulting
liability for breach
As also mentioned in discussing the previous factor,
the Clarks were in complete control of the property, the party,
and the supply and provision of the alcohol. Accordingly, should
they decide to take the risk in choosing to violate the law in
serving alcohol to minors, it seems fair that they should bear
the burden of exercising care for the safety of those minors
while on the property and the consequence of liability for breach
of that duty. Again, under the circumstances of this case, this
factor weighs in favor of the Ah Mook Sangs.
8. The availability, cost, and prevalence of insurance for
the risk involved
As the Ah Mook Sangs note, this factor should not weigh
heavily in the overall Blair analysis because the availability or
unavailability of liability insurance should not affect whether a
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defendant owes a duty of care to a plaintiff in a particular
situation. The Ah Mook Sangs assert that insurance will likely
not cover liability for injuries caused as a result of provision
of alcohol to a minor but stress that the unavailability of
coverage could directly derive from the unlawfulness of the
provision.
However, based on the procedural posture of this case,
there is actually no information in the record before us
regarding the availability and cost of liability insurance for
the harm that has occurred in this case. Because such
information may yet be forthcoming, and in light of our
conclusion that the other factors weigh in favor of the Ah Mook
Sangs, we need not conclusively address this factor.
9. Conclusion
Our review of the factors set forth in Blair (by way of
Corregedore) demonstrates that, with only the exception of the
final factor, the interest in imposing a duty of care weighs
heavily in favor of the Ah Mook Sangs.
Consequently, in light of the facts and circumstances
of this case as alleged in the Ah Mook Sangs’ complaint, we are
convinced that the Clarks owed a legal duty to Makamae while she
was on their property to protect her from harm and, failing that,
to render or summon aid once harm occurred.
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D. HRS § 663-41 also does not preclude the Ah Mook Sangs’
claims in this case
The Clarks argued in their motion to dismiss that the
Ah Mook Sangs’ claims were barred by application of HRS § 663-41
because that statute specifically prohibits claims for damages by
intoxicated persons under twenty-one years of age. The circuit
court based its decision to dismiss the complaint in part on this
statute. Also quoted in footnote 3, HRS § 663-41 reads as
follows:
Right of action. (a) Any person twenty-one years or
older who:
(1) Sells, furnishes, or provides alcoholic
beverages to a person under the age of twenty-
one years; or
(2) Owns, occupies, or controls premises on which
alcoholic beverages are consumed by any person
under twenty-one years of age, and who knows of
alcohol consumption by persons under twenty-one
years of age on such premises, and who
reasonably could have prohibited or prevented
such alcohol consumption;
shall be liable for all injuries or damages caused by the
intoxicated person under twenty-one years of age.
(b) This section shall not apply to sales licensed
under chapter 281.
(c) An intoxicated person under the age of twenty-
one years who causes an injury or damage shall have no right
of action under this part.
The Clarks thus maintain that pursuant to the plain language of
subsection (c) of the statute, the Ah Mook Sangs are expressly
barred from seeking any damages for Makamae’s injuries.
As the Ah Mook Sangs contend, and as we have stated
previously with regard to the interpretation of statutes, “our
foremost obligation is to ascertain and give effect to the
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intention of the legislature, which is to be obtained primarily
from the language contained in the statute itself.” Lingle v.
Haw. Gov’t Emps. Ass’n, 107 Hawai#i 178, 183, 111 P.3d 587, 592
(2005) (quoting Guth v. Freeland, 96 Hawai#i 147, 149-50, 28 P.3d
982, 984-85 (2001)). Further, “we must read statutory language
in the context of the entire statute and construe it in a manner
consistent with its purpose.” Id. Moreover, “[t]he legislature
is presumed not to intend an absurd result, and legislation will
be construed to avoid, if possible, inconsistency, contradiction,
and illogicality.” State v. Arceo, 84 Hawai#i 1, 19, 928 P.2d
843, 861 (1996) (internal quotation marks, citation, and brackets
omitted).
Both parties agree that the purpose of HRS § 663-41 is
to allow claims by third parties against adult noncommercial
suppliers of alcohol (or occupiers of premises where alcohol was
consumed) in cases where the adult supplied alcohol to a minor
who then became intoxicated and injured the third party. This is
provided for by subsection (a) of the statute. What the parties
dispute is the import of subsection (c), which provides that
“[the intoxicated minor] who causes an injury or damage shall
have no right of action under this part.”
The Clarks argue, as they did to the circuit court,
that subsection (c) completely bars a claim by an intoxicated
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person under the age of twenty-one who causes any injury or
damage, regardless of whether that injury or damage is to the
minor himself or herself or to a third party. They argue that
this prohibition is also consistent with cases such as Bertelmann
and Winters “that preclude minors from a cause of action for
injuries or damages caused by their voluntary intoxication.” On
the other hand, the Ah Mook Sangs argue, as they also did to the
circuit court, that their claims were not brought “under this
part” as specified in subsection (c) and therefore are not barred
by the statute. They also argue that the Legislature did not
intend for this statute to prohibit claims when injuries are
sustained solely by the intoxicated minor. Such a dispute about
the meaning of the statute suggests that there may be an
ambiguity; at the very least, the parties offer conflicting views
as to how the statute should be read.
We may thus examine the legislative history of Senate
Bill 1234, the bill signed into law as Act 69 in 2003 and
codified as HRS § 663-41, to further ascertain the intent of the
Hawai#i Legislature that passed the bill. In its report on the
bill, the Senate Committee on Human Services stated, in pertinent
part:
Your Committee finds that underage drinkers pose a danger to
themselves and others, particularly when they drink and
drive. High school students from around the country report
that one-third to one-half of those who wish to drink obtain
alcoholic beverages from adults. In 2000, MADD-Hawaii
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sponsored a Hawaii Youth Summit. The leading recommendation
from the youth representatives to the Hawaii Summit was to
increase the education and liability of parents and other
adults relating to providing alcohol to minors. This
measure would impose civil third-party liability on adults
who provide alcoholic beverages to a person under twenty-one
years of age who subsequently injures or kills another.
S. Stand. Comm. Rep. No. 462, in 2003 Senate Journal, at 1219
(emphases added). The Senate Committee on Judiciary and Hawaiian
Affairs then stated, in pertinent part: “Your Committee finds
that underage drinking is a serious problem in Hawaii. . . . In
the past five years, an average of twenty-six fatalities resulted
from crashes involving drivers fifteen to twenty years old, many
of these were alcohol related.” S. Stand. Comm. Rep. No. 632, in
2003 Senate Journal, at 1294. From these reports, we can
understand that the intent of the Legislature in passing this
bill was to address the serious problem of underage drinking
where an adult host supplied alcohol or the premises where
alcohol was consumed and the intoxicated minor thereafter caused
injury or damage to an innocent third party, most likely by
driving drunk.
Thus, returning to the text of the statute, the
inclusion of the phrases “caused by” in subsection (a) and
“causes” in subsection (c) is significant. Cause is defined as
“[t]o bring about or effect.” Black’s Law Dictionary 251 (9th
ed. 2009). If the intoxicated minor “causes” injury or damage as
envisioned in subsection (c), then the intoxicated minor was an
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actor who “br[ought] about” injury or damage; as the committee
reports indicate, the “injury or damage” targeted by the bill is
that of the third parties who are injured or suffer property
damage due to accidents caused by such intoxicated minors. The
bill addresses liability of adult social hosts to innocent third
parties injured by the intoxicated minors they have hosted; it
thus becomes clear that subsection (c) was intended to prevent
the intoxicated minor from bringing a claim against the adult
host for any injuries sustained when the minor also had a role in
injuring the third party. It is often the case that a statutory
claim may be barred when the conduct giving rise to that claim is
prohibited by some other statute. The public policy at play in
such cases is that the would-be claimant should not be allowed to
derive any benefit from having engaged in prohibited conduct.
Given this understanding of the statute, there is
actually no indication that it was meant to encompass the factual
situation at issue in this case: when the injury is inflicted
directly upon the minor by the host through the provision of
alcohol, and the claim is only between the minor and the host.
If the Legislature had wished to prohibit the claim made in this
case through HRS § 663-41 by referring to injuries sustained by
the intoxicated minor himself or herself, it could have, for
example, used the word “sustained” or enacted another subsection
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or separate statute altogether clearly barring first-party injury
claims against social hosts. Because we do not read the statute
to include injuries sustained by the intoxicated minor absent
injury or damage to a third party, we conclude that HRS § 663-41
does not bar the claims made by the Ah Mook Sangs in this case.
IV. CONCLUSION
Based on the foregoing, we vacate the circuit court’s
May 17, 2011 order and June 28, 2011 judgment and remand this
case for further proceedings.
Thomas M. Otake /s/ Mark E. Recktenwald
(Diane K. Agor-Otake with
him on the briefs) for /s/ Paula A. Nakayama
plaintiffs-appellants
/s/ Sabrina S. McKenna
Jonathan L. Ortiz
(Wade J. Katano and /s/ Steven S. Alm
Christine S. Prepose-
Kamihara with him on the /s/ Bert I. Ayabe
briefs) for defendants-
appellees
39