Salavea v. City and County of Honolulu , 55 Haw. 216 ( 1973 )

OPINION OF THE COURT BY

ABE, J.

Plaintiffs (hereinafter appellants) are a minor suing by his guardian ad litem (his mother), and the parents of the minor plaintiff, suing individually, for damages claimed to have resulted from injuries to the minor sustained on the afternoon of July 20, 1971. Complaint and summons were served on defendant City and County of Honolulu (hereinafter appellee) on September 28, 1972. On October 17, 1972, summary judgment was sought by appellee on the basis that appellants failed to comply with Section 12-106 of the Charter of the City and County of Honolulu,¹ and with HRS § 46-72. Both provisions² provide that before the City and County shall be liable for negligence resulting in injuries sustained in public places within the City and County, notice in writing shall be given to a designated official, stating all relevant facts concerning the accident. Both provisions require that said notice be given within six months of the date of injury.

It is undisputed that the notice required by the statute and charter provision was never given, and that the first knowledge of the minor appellant’s injury received by appellee was via the complaint and summons, which were served fourteen months after the injuries were sustained, and, therefore, a full eight months after the expiration of the six month notice period. Because of appellants’ failure to comply with the statute and charter provision, appellee’s motion for summary judgment was granted, and appellants had judgment entered against them.

Appellants have argued before us that the statute and charter provision are void, because defective in several ways. We find it unnecessary to consider all points on appeal, because we can dispose of the issue of the validity of the notice requirements on the basis of only one of appellants’ contentions. We are in agreement with appellants that the six month notice requirements are superseded by the two year statute of limitations set forth in HRS § 662-4.³ Therefore, it was error for the trial court to have granted the motion for summary judgment, and we reverse that decision.

Although some may denominate such statutory provisions a condition precedent to liability, see, Oakley v. State, 54 Haw. 210, 224, 505 P.2d 1182, 1190 (dissenting opinion of Marumoto, J.) (1973), the notice of claim requirement operates, in reality, as a statute of limitations. Albert v. Dietz, 283 F. Supp. 854 (D. Haw. 1968);⁴ see also, Oakley v. State, 54 Haw. 210, 219, 505 P.2d 1182, 1187 (concurring opinion of Abe, J.) (1973). The notice requirements of HRS § 46-72 and Section 12-106 of the Charter of the City and County of Honolulu set forth a limitations period much shorter than that in HRS § 662-4.

HRS § 50-15 is one of the provisions adopted to regulate the writing of charters for the counties of the State of Hawaii. HRS § 50-15, a statutory miniature “supremacy clause” reads:

§ 50-15 Reserved powers. Notwithstanding the provisions of this chapter, there is expressly reserved to the state legislature the power to enact all laws of general application throughout the State on matters of concern and interest and laws relating to the fiscal powers of the counties, and neither a charter nor ordinances adopted under a charter shall be in conflict therewith.

Actually, § 50-15 is a statutory enactment of provisions contained in Art. VII⁵ of our State Constitution.

As we have noted, Sec. 12-106 of the Charter of the City and County of Honolulu calls for a limitation period shorter than that in HRS § 662-4, and therefore there is inconsistency between the two. This section of the Honolulu Charter is not a provision affecting the organization or governmental structure of the City and County. On the other hand, a statute providing for tort liability of the State and its political subdivisions is a law of general application throughout the State of Hawaii on a matter of state-wide interest and concern. Thus, we hold that HRS § 662-4 is the applicable statute and that Sec. 12-106 of the Charter is invalid as it is in conflict with HRS § 662-4.

We also hold that provisions of § 46-72 are inconsistent with § 662-4 and invalid. HRS § 46-72 was first enacted by Act 181, SLH 1943, while HRS § 662-4 is part of the State Tort Liability Act of 1957. Because of their respective dates of enactment, it is clear that provisions of the former cannot control over contrary provisions of the latter. On the other hand, although repeals by implication are not favored, Costa Minors, Etc. v. Flintkote Co., 42 Haw. 518, 529 (1958), State v. Gustafson, 54 Haw. 519, 521, 511 P.2d 161, 162 (1973), implication of repeal is appropriate in some instances. Here, an intention of implied repeal may be logically inferred for three separate and compelling reasons.

(a) First, from the legislative intention evident in HRS § 50-15, a conflict in statutes such as that presented in the instant case should be resolved in favor of the statute regulating state matters, rather than that controlling county affairs only.

(b) More importantly, in seeking assistance from the general rules of statutory interpretation, we note that all such guidelines are, almost without exceptions, characterized by disfavor of overly technical constructions of statutes that would make effective use of the court system needlessly complex rather than simple, or unreasonably inaccessible rather than available to all who seek redress of wrongs. In consonance with these basic fundaments of our judicial system, the courts of the state of Hawaii have consistently resolved ambiguities in statutes of limitations with an approach reflecting a liberality designed so as to give plaintiff-litigants the maximum free access to our courts still consistent with the controlling statutory provision and with the legislative intent that is reflected in its enactment. Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967); Oakley v. State, 54 Haw. 210, 505 P.2d 1182 (1973); Azada v. Carson, 252 F. Supp. 988 (D. Haw. 1966), Albert v. Dietz, 283 F. Supp. 854 (D. Haw. 1968).

(c) Finally, as an aid in resolving the contradiction in the two statutes, we take note of one of the most consistent trends in modern American tort law: the steady eradication of sovereign immunity, see, W.L. Prosser, Torts, §131 (4th ed., 1971). This trend has been reflected in Hawaii by the successive legislative enactment of a series of statutory provisions slowly broadening the tort liability of government in a number of ways. See generally, Oakley v. State, 54 Haw. 210, 219, 220-22, 505 P.2d 1182, 1187, 1188 (concurring opinion of Abe, J.) (1973). Thus, to hold that HRS § 46-72 was not superseded by HRS § 662-4 would be contrary to decades of development in tort law and also directly contrary to the intent and policy repeatedly demonstrated by the successive territorial legislatures that have chosen to deal with the issue of the extent of governmental tort liability. The basic theory of governmental tort liability in Hawaii is that the State and its political subdivisions shall be held accountable for the torts of governmental employees “. . . in the same manner and to the same extent as a private individual under like circumstances . . . ” HRS § 662-2. Thus it would be unreasonable to hold that a party’s right to recover damages in tort from the City and County of Honolulu, a subdivision of the State, created by the legislature, is more restricted than his right to recover from the State itself.

Leland H. Spencer (Kelso, Spencer, Snyder & Stirling of counsel) for plaintiffs-appellants. Charles F. Marsland, Jr., Deputy Corporation Counsel (RichardK. Sharpless, Corporation Counsel, with him on the brief), for defendant-appellee.

We therefore hold that HRS § 662-4 is the applicable statute of limitations, superseding HRS § 46-72 and Section 12-106 of the Charter of the City and County of Honolulu. Since appellants’ complaint was filed in September, 1972, prior to the expiration of the two year period of HRS § 662-4 in July, 1973, summary judgment was erroneously granted to appellee.

Reversed.

1 Said provision is now Revised Charter Section 12-111, approved November, 1972, effective in 1973. All other charter references in this opinion are to the old charter in effect during the occurrence of all events here pertinent, i.e., Charter of the City and County of Honolulu, Act 261, S.L.H. 1959, as amended.

2 HRS § 46-72 reads:

§ 46-72 Liability for damages; notice of injuries. Before the county shall be liable for damages to any person for injuries to person or property received upon any of the streets, avenues, alleys, sidewalks, or other public places of the county, or on account of any negligence of any official or employee of the county, the person so injured, or the owner or person entitled to the possession, occupation, or use of the property so injured, or someone in his behalf, shall, within six months after the injuries are received, give the chairman of the board of supervisors or the city clerk of Honolulu notice in writing of the injuries and the specific damages resulting, stating fully in the notice when, where, and how the injuries occurred, the extent thereof, and the amount claimed therefor. Charter of the City and County of Honolulu, Section 12-106 provided:

Section 12-106. Claims. No action shall be maintained for the recovery of damages for any injury to person or property by reason of negligence of any official or employee of the city unless a written statement stating fully when, where and how the injuries occurred, the extent thereof and the amount claimed therefor, has been filed with the city clerk within six months after the date the injury was sustained.

3 HRS § 662-4 provides:

§ 662-4 Statute of limitation. A tort claim against the State shall be forever barred unless action is begun within two years after the claim accrues.

4 The decision in the Albert case construed R.L.H. 1955 § 138-21, predecessor to, and substantially identical with, HRS § 46-72.

5 Art. VII, Hawaii State Constitution has four pertinent subsections:

Sec. 1 empowers the legislature to create counties and other political subdivisions with such powers as may be conferred under general laws.

Sec. 2 provides for the adoption of a charter by such political subdivisions. It also provides that provisions of a charter “with respect to a political subdivision’s executive, legislative and administrative structure and organization shall be superior to statutory provisions . . .

Sec. 3 limits the taxing or fiscal powers of such political subdivisions.

Sec. 5 empowers the legislature to enact laws of statewide concern notwithstanding the other provisions contained in Art. VII.