stating a driver exercising a right-of-way may still be determined to have been negligent
How later courts described this case
- stating a driver exercising a right-of-way may still be determined to have been negligent
- "Generally, a witness is permitted to give an opinion on an ultimate fact involved in the case, but may not give opinions on questions of law as that would amount to legal conclusions."
Written by the judges who cited it.
The opinion
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Electronically Filed
Supreme Court
SCWC-10-0000102
04-DEC-2015
09:47 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
NORMAN SAMSON and FRANCINE SAMSON, Individually,
and as Guardians Prochein Ami of KU‘ULEILANI SAMSON, a Minor
Petitioners/Plaintiffs-Appellants,
vs.
NOLA ANN NAHULU,
Respondent/Defendant-Appellee.
SCWC-10-0000102
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-10-0000102; CIVIL NO. 08-1-0171-01)
DECEMBER 4, 2015
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This appeal arises from a motor vehicle-pedestrian accident
in which a vehicle operated by Respondent-Defendent-Appellee
Nola Ann Nahulu (“Nahulu”) struck a minor (“Minor”) as she
crossed Farrington Highway on foot. At trial, the parties
disputed Nahulu’s speed and whether Minor was in a crosswalk at
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the time she was hit. A jury returned a unanimous special
verdict finding Nahulu not negligent.
Petitioners/Plaintiffs-Appellants Norman Samson and
Francine Samson (hereinafter “the Samsons”), individually and as
guardians prochein ami of their daughter, Minor, challenge (1)
specific jury instructions, (2) the instructions as a whole,
which allegedly misstated the standard of care in automobile-
pedestrian collisions, (3) the exclusion of certain testimony
about Nahulu’s speed, and (4) the exclusion of a photograph with
markings made or authorized by a witness during his deposition
that placed Minor in a crosswalk.1 The ICA affirmed the Circuit
Court of the First Circuit’s (circuit court) judgment.
1
The Samsons present the following questions on certiorari:
1. Did the ICA grievously err in affirming the verdict
in favor of an SUV driver where erroneous
instructions, taken as a whole, gave the wrongful
impression that a pedestrian must strictly adhere to
traffic rules or forfeit the right to any recovery
from a negligent driver who injures the pedestrian.
2. Did the ICA grievously err in holding that, although
the lower court erroneously excluded eyewitness
testimony that Nahulu was “traveling at an unsafe
speed,” the error was nevertheless harmless.
3. Did the ICA grievously err in excluding from evidence
a copy of another photograph already in evidence on
which a key eyewitness confirmed a marking on the
photograph showing [Minor’s] location at the time
Nahulu hit her (which was within the crosswalk),
based on an erroneous objection to and erroneous
finding of unfair prejudice.
4. Did the ICA grievously err in holding that an
instruction that is vague, incomplete and
grammatically incorrect concerning Nahulu’s duty of
care, and therefore presumptively harmful, did not
(continued. . .)
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In this case, the jury instructions erroneously focused on
a pedestrian’s obligation to obey all traffic laws rather than a
driver’s obligation to avoid collisions. Instruction No. 6 (as
modified) quotes from State v. Arena, 46 Haw. 315, 379 P.2d 594
(1963). That case was premised on the existence of contributory
negligence, which was eliminated by the passage of Hawaii’s
comparative fault statute, Hawai‘i Revised Statutes (HRS) § 663-
31 (1993). Instruction No. 6 (as modified) incorrectly
suggested that a driver need not look out for pedestrians
violating the law and that civil recovery is not available to a
contributorily negligent plaintiff. The giving of the
instruction constitutes prejudicial error necessitating a new
trial. In addition, the instructions as a whole were
prejudicially erroneous.
We hold as follows: (1) Instruction No. 6 (as modified) is
erroneous as a matter of law; (2) Arena is overruled to the
extent that it is contrary to HRS § 291C-74 (2007) and gives the
incorrect impression that a pedestrian forfeits a right to
recover from a negligent driver if he or she does not strictly
adhere to traffic rules; (3) the jury instructions as a whole
misstated the law by improperly focusing on a pedestrian’s
(. . .continued)
require reversal because the ICA concluded that the
Samsons failed to show that the faulty instruction
had a detrimental effect on them.
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duties to obey all traffic laws and were prejudicially
erroneous; (4) the circuit court erred in excluding certain
testimony on Nahulu’s speed; and (5) the circuit court erred in
excluding the photograph with markings made or authorized by the
witness during his deposition.
Accordingly, we vacate the ICA’s May 2, 2014 Judgment on
Appeal, entered pursuant to its March 31, 2014 Memorandum
Opinion, which affirmed the circuit court’s August 9, 2010
Judgment and September 29, 2010 Order Denying Plaintiffs’ Motion
for Judgment Notwithstanding the Verdict and/or, In the
Alternative, for New Trial (“JNOV motion”),2 and remand the case
to the circuit court for a new trial and further proceedings
consistent with this opinion.
II. Background
A. General Factual Background
On July 4, 2005, Nahulu’s Honolulu-bound SUV struck Minor
in or near a crosswalk as she crossed Farrington Highway near
the Jade Street intersection. Prior to the collision, Minor had
waited with her friend at a bus stop on the Honolulu-bound side
of the road. There is a bus cutout located on the outside of
the Honolulu-bound lane for buses to service passengers. At the
2
The Samsons titled the filing as a JNOV instead of as a judgment
as a matter of law (JMOL) as provided under Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 50.
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time of the accident, two buses had pulled into the cutout. The
first bus operated by McKenna Benson (“Benson”) was forty feet
long and the second bus was sixty feet long.
As she approached the intersection from behind the bus
cutout in the Honolulu-bound direction, Nahulu saw one bus pull
into the bus cutout and began to decelerate. After Benson
pulled his bus all the way into the cutout, he looked in his
side view mirror to ensure that he had provided enough space for
the second bus to pull in. From his perspective, both of the
buses appeared as “one long bus” with no part of either bus
blocking the lane of traffic; however, he could not recall
whether the buses were completely off or partially on the road.
Arthur Joao (“Mr. Joao”),3 the driver of a pickup truck following
behind Nahulu’s SUV, and his wife Betty Joao (“Mrs. Joao”), his
passenger, stated that the bus was not completely off the road,
but did not impede the flow of traffic.4
3
We note that the reading of Mr. Joao’s deposition designations
was not transcribed by the court reporter as required by Roxas v. Marcos, 89
Hawai‘i 91, 100 n.2, 969 P.2d 1209, 1218 n.2 (1998), which states that “in
future cases in general, the circuit courts should require that any
deposition testimony read into evidence . . . be transcribed by the court
reporter as if it were live testimony.” See also HRS § 602-4 (1993) (“The
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.”).
4
During his deposition, Mr. Joao changed his previous statement
made to an insurance agent. He had initially stated that the cars had to
cross over into the opposing lane to pass the bus because the back of the bus
had been sticking out four to five feet into the road. Mr. Joao clarified
that “the bus was almost completely off the road.”
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According to Mrs. Joao, after the buses pulled over, the
SUV and the Joaos’ truck gradually sped up. Nahulu stated that
she had not seen anyone in front of the bus nor had she crossed
the double solid line prior to impact. Mrs. Joao stated that
she did not see anyone in the crosswalk, but could not remember
where the crosswalk was located.
Minor’s friend was the last person to board Benson’s bus.
According to Benson, who had an unobstructed view through the
front windows of his bus, Minor said goodbye to her friend as
she stood near the right front corner of the bumper with her
hand on the bus.
Minor testified that she looked both ways before entering a
crosswalk in front of the bus; other witnesses provided
conflicting testimony. Nahulu testified that Minor entered the
road quickly from right in front of the bus without looking,
walked diagonally across the road, and was not in a crosswalk
when she was hit.5 Mrs. Joao stated that “[Minor] was looking
back over her shoulder towards the bus” as she entered the road
close to the front of the bus outside of a crosswalk, but could
not remember which side of the crosswalk Minor was on. Mr. Joao
stated that “the bus was still moving” when Minor entered the
5
At trial, Nahulu testified that she had “mixed up” the placement
of her car and Minor during her deposition. During her deposition, she had
placed Minor in the crosswalk. At trial, Nahulu asserted that she ended up
in the crosswalk, while Minor ended up on the Waianae side of the crosswalk.
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road, looking over her shoulder and yelling as she ran. Benson
stated that Minor remained near the front of his stationary bus
as she moved diagonally toward the intersection at a brisk pace.
He saw Nahulu’s SUV approaching in his side view mirror near the
left rear tire of his bus, and waved his arm out of the window
and yelled in an attempt to stop the SUV. According to Paul Day
(“Day”), the driver of a vehicle approaching the intersection in
the opposing lane of traffic, Nahulu was “coming around the bus
at a good speed[.]”
The witnesses provided conflicting testimony regarding
Minor’s location at the point of impact. Benson estimated that
Minor traveled approximately six to eight feet from the front of
the bus before she and the SUV collided in the middle of the
Honolulu-bound lane. Day testified that Minor was hit by
Nahulu’s SUV when she made her way to the driver’s corner of the
bus. Mr. Joao could not recall whether Minor was in or out of
the crosswalk. Mrs. Joao stated that “[Minor] was over the
yellow line [in the opposing lane of traffic] when she ran
in[to] the [SUV].”
By Benson’s account, Minor “jumped a little bit” right
before the SUV hit her, the SUV made contact, “then [he] heard
skidding of the breaks[,]” and Minor was sent approximately
twenty feet, bouncing or skipping on the pavement, until she
finally came to rest in the middle of the Honolulu-bound lane.
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Mrs. Joao stated that Minor flew back towards the direction she
came from, landing partially in front of the Joaos’ truck. Day
stated that the collision “was a different kind of hit” that
caused Minor to “slingshot up into the air” diagonally toward
the middle line dividing the lanes rather than forward. He
testified that Minor was hit on the passenger side of the SUV,
which “was going at a speed where it couldn’t stop in time[,]”
and skidded “at least eight feet” after the impact before coming
to rest in the crosswalk. He estimated that Minor flew between
fifteen to twenty feet and fell diagonally, “almost straight
down[,]” before landing “really hard” and sliding approximately
one to two feet before coming to stop “in the middle of what
would have been the divider[.]”
Neither Benson nor the Joaos saw Nahulu’s SUV attempt to
stop or veer to the left prior to the collision; Nahulu stated
that after the impact, she veered to the left over the double
solid line and came to a stop in the crosswalk. Mrs. Joao
testified that the SUV swerved to the left a few feet from the
front of the bus as soon as Minor entered the road and “stopped
almost simultaneously” in the intersection, just past the bus,
in the oncoming lane of traffic. Benson estimated that Nahulu’s
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SUV skidded approximately forty feet and came to rest about ten
feet from Minor.6
Minor alleged severe physical injuries and psychological
harm as a result of the accident.
B. Circuit Court Proceedings7
On January 25, 2008, the Samsons filed a complaint in
circuit court against Nahulu, alleging negligence, negligent
infliction of emotional distress, and loss of consortium.
1. Motions in Limine Excluding Eyewitness Testimony on
Speed
The parties filed various motions in limine, contesting the
admissibility of certain eyewitness testimony and evidence.
Relevant motions include (1) Nahulu’s Motion in Limine No. 5 to
Exclude Any and All Questions to and Testimony by Lay Witnesses
Concerning the Ultimate Issue of Defendant’s Alleged Negligence
(Motion in Limine No. 5), and (2) Nahulu’s Motion in Limine No.
6 to Limit Testimony of Lay Witnesses to Personal Knowledge
(Motion in Limine No. 6).
In Motion in Limine No. 5, Nahulu moved to preclude the
Samsons from eliciting lay witness testimony on legal
conclusions at trial, i.e., that Nahulu was going “too fast[,]”
6
At a pre-trial deposition, Benson testified that Nahulu’s SUV
skidded forty feet after the impact; [85:26], however, he clarified at trial
that Nahulu’s SUV skidded and came to stop approximately ten feet from where
Minor ended up.
7
The Honorable Rom A. Trader presided.
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contending that lay opinions on liability are of no probative
value and should be excluded under Hawaiʻi Rules of Evidence
(HRE) Rule 403. The Samsons argued that relevant lay opinion
testimony bearing on ultimate issues is not precluded under HRE
Rule 701, and that factual questions about conditions and speed,
from which inferences may be drawn, are permitted. The circuit
court granted Nahulu’s motion and precluded testimony that
Nahulu was driving “too fast for the conditions” because “it
calls in part for a legal conclusion and it’s tantamount to
testimony opinion that [Nahulu] was negligent.”
In Motion in Limine No. 6, Nahulu moved to limit lay
witness testimony to personal observations and preclude lay
opinions about Nahulu’s compliance with traffic laws, including
testimony that she was driving “too fast,” pursuant to HRE Rule
403. The Samsons argued under HRE Rule 403 that the evidence
was more probative than unduly prejudicial. The court granted
and denied the motion in part, precluding speculative testimony
about Nahulu’s thoughts and violation of traffic laws, while
permitting testimony on personal observations.
2. Exclusion of Exhibit 7 and Related Testimony Placing
Minor in a Crosswalk
During trial, the court excused the jurors to hold an HRE
Rule 104 hearing on the admissibility of Exhibit 7 and related
testimony from Benson, the driver of the first bus stopped at
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the Jade street bus stop in the bus cutout. Exhibit 7 was a
photograph of the accident scene that had markings made or
authorized by Benson at his deposition, which depicted the point
of impact in the middle of a crosswalk on Farrington Highway and
the front of his bus in relation to the stop line. At the
hearing, Benson confirmed that he had drawn the “X” showing the
location of the front of his bus, but testified that someone
else had drawn an “X” in the area he had indicated as the point
of impact during his deposition. He admitted, however, that
although he could not remember during the deposition or the
hearing whether a marked crosswalk existed at the time, he had
testified in his deposition that Minor had been struck in the
area of the second “X.”
Thus, at the HRE Rule 104 hearing, Benson could not recall
whether the accident occurred in a crosswalk nor whether Exhibit
7 accurately depicted the area at the time of the accident.
Several witnesses, including Nahulu, had testified that the
crosswalk existed at the time of the collision. In addition,
the same photograph showing the crosswalk without Benson’s marks
had already been admitted into evidence as the Samsons’ Exhibit
3-B without objection.
At the conclusion of the hearing, the court excluded
Exhibit 7 on the grounds that its admission would be unduly
prejudicial because the photograph depicted the collision
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occurring in the crosswalk despite Benson’s inability to
remember a crosswalk at the scene or verify the accuracy of the
photograph. The court noted that nothing prevented the Samsons
from using a different photograph and Benson’s testimony to
establish the point of impact based on his personal knowledge.
In addition, the court rejected the Samsons’ proposal for a
limiting instruction because it feared the jury could not ignore
the fact that Exhibit 7 indicated the point of impact in the
crosswalk.
3. Jury Instructions
At issue on certiorari are the Samsons’ requested
Instruction No. 12, which was refused, and Nahulu’s requested
Instructions Nos. 1 and 2, which were given, as well as Nahulu’s
requested Instruction No. 6, which was given as modified. In
addition, the Samsons raise issues regarding the instructions as
a whole.8
8
In settling jury instructions, trial courts must comply with HRCP
Rule 51(c) (2000), which states, in relevant part, as follows:
Whenever the court refuses to give any requested
instruction, the court shall write the word “refused” in
the margin thereof. Whenever the court approves any
requested instruction, the court shall write the word
“given” in the margin thereof. Whenever the court modifies
any requested instruction, the court shall mark the same in
such manner that it shall distinctly appear what part is
refused and what part is given. Instructions to which no
objection is made shall be marked “given by agreement” and
no later objection thereto may be made or allowed.
HRCP Rule 51(d) further provides, in relevant part:
(continued. . .)
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a. The Samsons’ Requested Instruction No. 12
The Samsons’ requested Instruction No. 12, which was
refused, provided as follows: “The duty to use reasonable care
does not require the same amount of caution from drivers and
pedestrians. While drivers and pedestrians must be aware that
motor vehicles can cause serious injuries, drivers must use more
care to avoid collisions than pedestrians.”
b. Nahulu’s Requested Instruction No. 1
Nahulu’s requested Instruction No. 1, which was given over
objection, stated “[a] pedestrian is required to obey all
traffic laws which are applicable to her.”
The Samsons objected on the basis that the requested
instruction misstates HRS § 291C-71 (2007)9 and “unduly
(. . .continued)
Any revision made and any instructions prepared by the
court pursuant to the foregoing provisions shall be reduced
by the court to writing, and counsel shall be entitled to
be heard thereon. The court shall inform counsel of its
proposed action with respect to any such revision made or
instructions prepared by the court, and any changes therein
made by the court shall be reduced to writing and submitted
to counsel prior to their arguments to the jury.
In this case, the circuit court did not memorialize its rulings on the
parties’ requested instructions in writing as required by HRCP Rule 51.
Accordingly, the circuit court’s actions and modifications to the requested
instructions were derived from the trial transcript.
9
HRS § 291C-71 provides as follows:
(a) A pedestrian shall obey the instructions of any
official traffic-control device specifically applicable to
the pedestrian, unless otherwise directed by a police
officer.
(continued. . .)
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highlights only the responsibilities of the plaintiff”
pedestrian to obey the law, as opposed to the defendant driver’s
similar obligation. The circuit court gave the instruction over
the Samsons’ objection because “the substance of the instruction
appears to be correct” and the court believed the instruction
would assist the jury.
c. Nahulu’s Requested Instruction No. 2
Nahulu’s requested Instruction 2, which was given, stated
“[a] pedestrian who crosses a roadway outside of a crosswalk is
required to yield the right of way to all vehicles upon the
roadway.”
The Samsons objected on the basis that the requested
instruction directly conflicts with HRS § 291C-73(a) (2007),
which provides, in relevant part, “[e]very pedestrian crossing a
roadway at any point other than within a marked crosswalk or
within an unmarked crosswalk at an intersection shall yield the
right-of-way to all vehicles upon the roadway.” The Samsons
argued that the instruction (1) does not explain that a
pedestrian crossing in an unmarked crosswalk has the right-of-
(. . .continued)
(b) Pedestrians shall be subject to traffic and
pedestrian-control signals as provided in sections 291C-32
and 291C-33.
(c) At all other places, pedestrians shall be accorded the
privileges and shall be subject to the restrictions stated
in this chapter.
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way, and (2) refers to all vehicles upon a roadway, yet is
inconsistent with other instructions given with respect to the
duties of a motorist (i.e., that a motorist cannot rely upon a
right-of-way gained as a result of excessive speed, negligence,
or statutory violation). Upon consideration of HRS § 291C-
73(a), the context within which the instruction was to be given,
and another instruction taken from Arena (Instruction No. 6 as
modified), discussed below, that purportedly addressed the
Samsons’ points, the court gave the instruction over the
Samsons’ objection on the grounds that it was neither incorrect
nor misleading.
d. Nahulu’s Requested Instruction No. 6 (as
modified)
Nahulu’s requested Instruction No. 6 stated “[a] person
traveling upon a highway has a right to assume that all other
persons will obey the law and is not required to keep a lookout
for others who violate the law.”
The Samsons objected on the grounds that the requested
instruction misstates the law because it omits a portion of the
quotation from Arena and states that no one is required to keep
a lookout for others. The circuit court gave a modified version
of Nahulu’s requested Instruction No. 6 by quoting a portion of
Arena allegedly “in its entirety.”
Instruction No. 6 (as modified) provided:
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A person traveling upon a highway has a right to
assume that all other persons using the highway will obey
the law and that one is not bound to keep a lookout for
others who may violate the law applies only to those cases
where the automobile is being driven in conformity to the
law and not in violation thereof, and it has no application
where the automobile is being driven in a negligent manner.
However, this instruction incompletely quoted Arena. See 46
Haw. at 331, 379 P.2d at 604. The quotation from Arena actually
reads:
The rule that a person traveling upon a highway has a right
to assume that all other persons using the highway will
obey the law and that one is not bound to keep a lookout
for others who may violate the law applies only to those
cases where the automobile is being driven in conformity to
the law and not in violation thereof, and it has no
application where the automobile is being driven in a
negligent manner, where it is not properly equipped with
lights, or where it is being driven at an excessive rate of
speed. In those instances the primary negligence of the
driver of the automobile renders inoperative the rule
stated.
Id. (quoting Cushing Ref. & Gasoline Co. v. Deshan, 300 P. 312,
317 (Okla. 1931)) (emphasis added).
The Samsons conceded that the court’s modification
addressed their first concern “to a certain extent[,]” but
maintained their objection.
4. Verdict
On June 10, 2010, the jury returned a unanimous special
verdict in favor of Nahulu, finding that she was not negligent.
On August 9, 2010, the circuit court entered its Judgment in
favor of Nahulu. On August 11, 2010, the Samsons filed their
JNOV motion. On September 29, 2010, the circuit court entered
its order denying the Samsons’ JNOV motion.
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III. Appeal to the Intermediate Court of Appeals
On appeal, the Samsons raised issues concerning, inter
alia, specific instructions, the jury instructions as a whole,
and certain evidentiary rulings. Regarding the jury
instructions, the Samsons argued that Nahulu’s proposed
instructions were erroneous articulations of the law and
unwarranted by the evidence. In particular, the Samsons argued
that (1) Instructions Nos. 1 and 2 omitted a driver’s duty of
care to avoid pedestrians upon a roadway and prejudicially
suggested that a pedestrian’s violation of any traffic law
constituted negligence per se or a complete bar to recovery; (2)
Instruction No. 6 (as modified) misquoted a judicial opinion,
misapplied judicial precedent, improperly assigned a “right”
that confused the jury in determining negligence, did not apply
to vehicle-pedestrian accidents, and was precluded by HRS §
291C-74; and (3) the circuit court improperly failed to give the
Samsons’ proposed Instruction No. 12, which they contend
correctly stated that drivers must exercise greater care to
avoid collisions than pedestrians. With respect to the
evidentiary rulings, the Samsons argued that the circuit court
abused its discretion when it granted Nahulu’s motions in limine
barring Day’s deposition testimony that Nahulu was going at an
“unsafe speed”, and excluded Exhibit 7 and related testimony
from Benson and refused to give a limiting instruction.
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Nahulu asserted that the jury instructions, as a whole,
were accurate and warranted by the evidence adduced at trial,
and that the Samsons’ proposed Instruction No. 12 was properly
excluded because it imposed a higher duty of care on drivers and
conflicted with other instructions. Nahulu further argued that
the circuit court properly excluded Day’s testimony about
Nahulu’s speed because it amounted to legal conclusions under
HRE Rule 701 and was prohibited by HRE Rule 403, and Exhibit 7
due to a lack of foundation.
The ICA held that “the jury instructions, as a whole,
[showed that] the circuit court properly instructed the jury on
a driver’s obligation to drive with due care.” Samson v.
Nahulu, No. CAAP-10-0000102, at 16 (App. Mar. 31, 2014) (mem.).10
10
The circuit court gave the following additional instructions
about the duties of care for drivers and pedestrians:
Samsons’ Instruction No. 8, given as modified over objection:
The duty to observe ordinary care requires that a
driver of an automobile must anticipate the possibility of
meeting pedestrians or other vehicles at street crossings
and have his or her automobile under such control as may be
necessary to avoid colliding with a pedestrian on the
roadway.
A motorist must see what is in plain view on the
roadway.
A motorist must maintain a proper lookout straight
ahead and laterally ahead.
When necessary, a motorist must give a warning to a
pedestrian by sounding the horn.
Consistent with the foregoing, it is the law in
Hawaii that every person shall drive at a safe and
appropriate speed when approaching and crossing an
intersection and when special hazards exist with respect to
pedestrians or other traffic, regardless of the posted
speed.
(continued. . .)
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(. . .continued)
A motorist’s failure to observe these requirements
that results in a collision with a pedestrian is
negligence.
Samsons’ Instruction No. 6, given over objection:
Hawaii law requires that every driver of a vehicle
shall exercise due care to avoid colliding with any
pedestrian upon any roadway and shall give warning by
sounding the driver’s horn when necessary and shall
exercise proper precaution upon observing any child or any
obviously confused or incapacitated person upon a roadway.
Samsons’ Instruction No. 4 combined with Nahulu’s Instruction No. 5, given as
modified over objection:
Hawaii law requires that a driver of a vehicle shall
stop for a pedestrian who is crossing a roadway within a
marked crosswalk when the pedestrian is on the half of the
roadway on which the vehicle is traveling.
The driver shall not proceed until the pedestrian has
passed the vehicle and the driver can thereafter proceed
safely ahead.
A pedestrian who is using a marked crosswalk has the
right to assume that an oncoming motorist will obey this
law and yield to the pedestrian’s right of way.
However, a pedestrian may not suddenly leave a curb
or other place of safety and walk into the path of an
oncoming vehicle such that it is impossible for a driver to
yield.
If you find that the law was violated, you may
consider this violation with all the other evidence in this
case in deciding the issue of negligence.
Samsons’ Instruction No. 5, given over objection:
It is the law in Hawaii that whenever any vehicle is
stopped at a marked crosswalk or at any unmarked crosswalk
at an intersection to permit a pedestrian to cross the
roadway, the driver of any other vehicle approaching from
the rear shall not overtake and pass the stopped vehicle.
Samsons’ Instruction No. 10, given over objection:
The driver of a motor vehicle may not rely upon the
right-of-way gained as a result of excessive speed or by
other negligent act or violation of the law.
Samsons’ Instruction No. 3, given over objection:
It is the law in Hawaii that yellow lines indicate the
separation of lanes of traffic flowing in opposing directions or
the left boundary of a traffic lane at a particularly hazardous
location.
Double lines indicate maximum restriction.
(continued. . .)
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With regard to challenges to specific instructions, the ICA held
that Instructions Nos. 1, 2, and 6 did not amount to reversible
error. Samson, mem. op. at 19. The ICA concluded that
Instructions Nos. 1 and 2 were accurate reflections of the law,
specifically HRS §§ 291C-71 and -73, respectively. Samson, mem.
op. at 15-16. The ICA also acknowledged that Instruction No. 6
was “grammatically incorrect” and that a portion of the quote
was “inadvertently left out[,]” but nonetheless concluded that
the instruction was not erroneous because (1) both HRS § 291C-74
and Instruction No. 6 provide that a driver must exercise due
care, (2) Instruction No. 6 would have accurately reflected the
law as set forth in Arena “if properly quoted,” (3) the
quotation from Arena is applicable to vehicle-pedestrian
collisions because pedestrians are expected to follow the rules
of the road and fall within the statutory definition of
“traffic[,]” and (4) one of the Samsons’ instructions given to
the jury was likewise based on Arena. Samson, mem. op. at 18-
19. The ICA further concluded that “the grammatical error was
not prejudicial to the Samsons” because the vagueness worked to
Nahulu’s detriment and the Samsons’ burden to prove Nahulu’s
(. . .continued)
A double solid yellow line is used to indicate the
separation between lanes of traffic moving in opposite
directions.
The crossing of a double solid yellow line by vehicular
traffic is prohibited except when the crossing is part of a left
turn movement.
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negligence at trial remained the same. Samson, mem. op. at 18.
The ICA also concluded that the circuit court did not err in
refusing to give the Samsons’ proposed Instruction No. 12 on the
basis that “Hawai‘i law does not support the proposition that, as
a matter of law, pedestrians can exercise less caution in their
actions than drivers.” Samson, mem. op. at 20.
Regarding evidentiary issues, the ICA concluded that Day’s
testimony about Nahulu’s speed was admissible under HRE Rule
701, however, the exclusion amounted to harmless error because
other evidence was presented to the jury relevant to breach of
duty that Nahulu may have been driving at an unsafe speed
without using the word “unsafe.” See Samson, mem. op. at 8-10.
In addition, the ICA concluded that the circuit court did not
abuse its discretion in excluding Exhibit 7 and related
testimony from Benson under HRE Rule 403, nor in denying the use
of a limiting instruction, as Benson was not able to provide
foundation testimony. Samson, mem. op. at 4-6.
Accordingly, the ICA affirmed the circuit court’s August 9,
2010 Judgment and September 29, 2010 order denying the Samsons’
JNOV motion. Samson, mem. op. at 21.
IV. Standards of Review
A. Jury Instructions
When jury instructions or the omission thereof are at issue
on appeal, the standard of review is whether, when read and
considered as a whole, the instructions given are
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prejudicially insufficient, erroneous, inconsistent, or
misleading.
Erroneous instructions are presumptively
harmful and are a ground for reversal unless it
affirmatively appears from the record as a
whole that the error was not prejudicial.
Tabieros v. Clark Equipment Co., 85 Hawaiʻi 336, 350, 944 P.2d
1279, 1293 (1997) (quoting State v. Arceo, 84 Hawai‘i 1, 11, 928
P.2d 843, 853 (1996)). “Jury instructions . . . must be
considered as a whole. Moreover, a refusal to give an
instruction that correctly states the law is not in error if
another expressing a substantially similar principle is given.”
Montalvo v. Lapez, 77 Hawaiʻi 282, 286, 884 P.2d 345, 349 (1994)
(alteration in original) (quoting State v. Pioneer Mill Co., 64
Haw. 168, 180, 637 P.2d 1131, 1140 (1981)).
B. Evidentiary Rulings
[D]ifferent standards of review must be applied to
trial court decisions regarding the admissibility of
evidence, depending on the requirements of the
particular rule of evidence at issue. When
application of a particular evidentiary rule can
yield only one correct result, the proper standard
for appellate review is the right/wrong standard.
Kealoha v. County of Hawaii, 74 Haw. 308, 319, 844
P.2d 670, 676 . . . (1993). . . .
State v. Kupihea, 80 Hawai‘i 307, 314, 909 P.2d 1122, 1129[]
(1996) . . . . “Evidentiary decisions based on HRE Rule
403, which require a ‘judgment call’ on the part of the
trial court, are reviewed for an abuse of discretion.”
Walsh v. Chan, 80 Hawai‘i 212, 215, 908 P.2d 1198, 1201[]
(1995) (citing Sato v. Tawata, 79 Hawai‘i 14, 19, 897 P.2d
941, 946 (1995)). . . . “‘The trial court abuses its
discretion when it clearly exceeds the bounds of reason or
disregards rules or principles of law or practice to the
substantial detriment of a party litigant.’” State v.
Ganal, 81 Hawai‘i 358, 373, 917 P.2d 370, 385 (1996)
(quoting State v. Furutani, 76 Hawai‘i 172, 179, 873 P.2d
51, 58 (1994)).
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Tabieros, 85 Hawaiʻi at 350-51, 944 P.2d at 1293-94 (quoting
Arceo, 84 Hawaiʻi at 11, 928 P.2d at 853), quoted in Estate of
Klink ex rel. Klink v. State, 113 Hawai‘i 332, 351-52, 152 P.3d
504, 523-24 (2007).
V. Discussion
A. The ICA erred in determining that the jury instructions
were not prejudicially erroneous or misleading
The Samsons argue that the ICA “grievously erred” in
affirming the verdict where erroneous instructions given,
specifically Nahulu’s Instructions Nos. 1, 2, and 6, improperly
instructed the jury that (1) a driver need not anticipate
pedestrians who are not strictly following the law, and (2)
Minor forfeited her right to recover from a negligent driver if
she violated any traffic rules. (citing Steigman v. Outrigger
Enter., Inc., 126 Hawaiʻi 133, 145, 267 P.3d 1238, 1250 (2011)).
1. Alleged Error in Specific Instructions
a. Instruction No. 6 (as modified)11
Instruction No. 6 (as modified) is problematic:
A person traveling upon a highway has a right to
assume that all other persons using the highway will obey
the law and that one is not bound to keep a lookout for
others who may violate the law applies only to those cases
where the automobile is being driven in conformity to the
11
Nahulu’s counsel conceded during oral argument that Instruction
No. 6 (as modified) is garbled, and failed to respond in the briefs to the
Samsons’ assertion that Instruction No. 6 (as modified) was erroneous. Oral
Argument at 23:48, Samson v. Nahulu, 133 Hawai‘i 451 (No. 10-102), available
at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc_scwc10_102.h
tml.
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law and not in violation thereof, and it has no application
where the automobile is being driven in a negligent manner.
The instruction is grammatically incorrect and confusing. As
noted, the portion from Arena actually begins this quotation
with “The rule that . . . .” 46 Haw. at 331, 379 P.2d at 604.
Also, the instruction omitted the tail end of the quotation
pertaining to instances in which a driver’s primary negligence
renders the rule inoperative. Id. A variation of the omitted
portion of the quotation was given as a separate instruction,
which stated that “[t]he driver of a motor vehicle may not rely
upon the right-of-way gained as a result of excessive speed or
by other negligent act or violation of the law.” The ICA
concluded that “if properly quoted, the instruction would have
accurately reflected the law as set forth in Arena.” Samson,
mem. op. at 18. However, Arena and Instruction No. 6 (as
modified) are erroneous iterations of the law. They misstate a
driver’s duty of care and conflict with our comparative
negligence statute, HRS § 663-31,12 which was enacted post-Arena
12
HRS § 663-31(a) (1993) provides as follows:
Contributory negligence shall not bar recovery in any
action by any person or the person’s legal representative
to recover damages for negligence resulting in death or in
injury to person or property, if such negligence was not
greater than the negligence of the person or in the case of
more than one person, the aggregate negligence of such
persons against whom recovery is sought, but any damages
allowed shall be diminished in proportion to the amount of
negligence attributable to the person for whose injury,
damage or death recovery is made.
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in 1969. As Arena noted, a right-of-way provided under the
state traffic code “is not absolute and cannot be exercised with
impunity under all circumstances.” 46 Haw. at 316, 379 P.2d at
597. As this court has explained previously,
[t]he mere fact that the operator of a motor vehicle [has
the right-of-way] does not in and of itself give such
operator the right to proceed across the intersection in
any event; [] where it becomes an issue of fact for a jury
to determine whether or not in approaching or proceeding
across an intersecting highway the operator of the motor
vehicle[,] in the exercise of due care, might have avoided
a collision and resultant injuries, an[] instruction to the
effect that irrespective of the existing conditions such
operator has a right to proceed across the intersection is
erroneous.
Mossman v. Sherman, 34 Haw. 477, 481 (Terr. 1938) (quoting
McCombs v. Ellsberry, 85 S.W.2d 135, 140 (Mo. 1935)).
Therefore, a driver exercising a right-of-way may still be
determined to have been negligent under the attendant
circumstances. Applying this precedent, Nahulu was required to
exercise due care to avoid collisions even if she had the right-
of-way and did not violate any traffic laws, and even if Minor
violated pedestrian traffic laws. Instruction No. 6 (as
modified) incorrectly stated otherwise.
The Samsons argue that the ICA misstated the standard of
review for erroneous instructions when it concluded that
Instruction No. 6 (as modified) “did not require reversal
because the Samsons ‘failed to show the instruction had any
detrimental effect on them.” The Samsons further argue that the
ICA’s rationalization that the instruction’s vagueness worked to
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Nahulu’s detriment “do[es] not amount to an affirmative showing
that the erroneous instruction did not result in prejudice when
reviewing the record as a whole, and thus [the ICA’s] decision
to affirm in spite of the improper instruction was grievous
error[.]”
Nahulu argues that the Samsons misconstrue the ICA’s
Memorandum Opinion in that the ICA correctly found that
Instruction No. 6 (as modified) was not erroneous, and thus, the
Samsons are not entitled to any finding that the instruction was
“presumptively harmful” given that the record and totality of
instructions given are “devoid of prejudice[.]”
Instruction No. 6 (as modified) was erroneous as a matter
of law. Arena was a criminal negligent homicide case in which
this court held that the driver of a speeding car who killed the
driver of a car exiting a private driveway did not have a
“right” to assume that others would obey the law. 46 Haw. at
328, 379 P.2d at 603. In other words, the speeding driver was
not shielded from criminal liability by having the right-of-way.
The rule stated in Arena no longer applies because it was
premised on the existence of contributory negligence, which was
eliminated by the passage of Hawaii’s comparative fault statute,
HRS § 663-31. See 46 Haw. at 331, 379 P.2d at 604 (quoting
Cushing, 300 P. at 317) (discussing contributory negligence);
Steigman, 126 Hawaiʻi at 135, 267 P.3d at 1240 (explaining that
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HRS § 663-61(a) “eliminates contributory negligence”).
Moreover, such a rule “conflicts with the intent of the
Legislature that the courts apply comparative negligence in the
place of ‘unfair’ common law doctrines.” 126 Hawaiʻi at 139, 267
P.3d at 1244.
In addition, Instruction No. 6 (as modified) directly
conflicts with a driver’s obligation to exercise due care to
avoid colliding with pedestrians under HRS § 291C-74. Even
without HRS § 291C-74, common sense and general negligence
principles require a reasonable driver to look out for
pedestrians given the foreseeable range of danger and gravity of
possible harm. Knodle v. Waikiki Gateway Hotel, 69 Haw. 376,
388, 742 P.2d 377, 385 (“As the gravity of the possible harm
increases, the apparent likelihood of its occurrence need be
correspondingly less to generate a duty of precaution.” (quoting
W.P. Keeton, Prosser and Keeton on the Law of Torts § 31, at 171
(5th ed. 1984) (footnote omitted)). Stated differently, all
drivers have a duty to look for “special hazards” with respect
to pedestrians or other traffic, and must act reasonably under
the circumstances. See HRS § 291C-101 (2007). Instruction No.
6 (as modified) incorrectly suggested that a driver need not
look out for pedestrians violating the law and that civil
recovery is not available to a contributorily negligent
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plaintiff. Instruction No. 6 (as modified) was prejudicially
erroneous.
We therefore remand this case for a new trial. To provide
the circuit court with further guidance on remand, we address
the other instructions and the evidentiary issues.
b. Instructions Nos. 1 and 2
Instruction No. 1 stated “[a] pedestrian is required
to obey all traffic laws which are applicable to her.” HRS §
291C-71 mandates that a pedestrian obey official traffic control
devices “specifically applicable to the pedestrian” and “[a]t
all other places, pedestrians shall be accorded the privileges
and shall be subject to the restrictions stated in this
chapter.” HRS § 291C-71(a), (c). Instruction No. 1, however,
does not comport with the language of HRS § 291C-71.
Instruction No. 1 broadened the statutory mandate from traffic
and pedestrian-control devices to “all traffic laws” and leaves
the jury guessing as to which laws a pedestrian must follow.
Therefore, the circuit court’s giving of the instruction was
erroneous and the ICA erred in concluding that Instruction No. 1
was supported by HRS § 291C-71.
Instruction No. 2 similarly tracks the language of HRS §
291C-73. Instruction No. 2 stated “[a] pedestrian who crosses a
roadway outside of a crosswalk is required to yield the right of
way to all vehicles upon the roadway.” HRS § 291C-73(a)
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provides, “[e]very pedestrian crossing a roadway at any point
other than within a marked crosswalk or within an unmarked
crosswalk at an intersection shall yield the right-of-way to all
vehicles upon the roadway.” The parties disputed whether Minor
was located in a crosswalk at the point of impact based on
conflicting eyewitness testimony. Multiple witnesses, such as
Nahulu, Benson, and Day, testified that Minor moved diagonally
as she crossed the street in front of the bus parked at or near
the stop line. Under the circumstances of this case,
Instruction No. 2 should not have been given as it implies that
a person who starts in crosswalk but moves out ever so slightly
must yield the right-of-way to all vehicles, regardless of the
circumstances. There are various circumstances that could cause
a person to step out of a marked crosswalk, including moving out
of the way of an oncoming vehicle. Instruction No. 2 suggests
that such a pedestrian necessarily would be negligent for
failing to yield the right-of-way. Instruction No. 2 was an
improper categorical statement, and was therefore improperly
given.
c. The Samsons’ Requested Instruction No. 12
The Samsons argue that the ICA erred in rejecting the
Samsons’ proposed Instruction No. 12 because Hawaiʻi law
recognizes that “all persons . . . are also obligated . . . to
exercise due care or ordinary care, commensurate with the
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apparent risk[,]” including any imbalance in the parties’
capacity to inflict harm. (quoting Kahoʻohanohano v. Dep’t of
Human Servs., 117 Hawaiʻi 262, 297, 178 P.3d 538, 573 (2008)).
The Samsons asserted that their “proposed instruction 12 was
wholly proper given the different degree of risk[,]” and
requested clarification on “the duty of care as between
pedestrians and motorists.”
Nahulu contends that the Samsons’ argument that motor
vehicle operators carry a “heightened” duty versus pedestrians,
as provided in Instruction No. 12, is contrary to existing
Hawaiʻi law and applicable federal decisions.
The Samsons’ requested Instruction No. 12 provided as
follows: “The duty to use reasonable care does not require the
same amount of caution from drivers and pedestrians. While
drivers and pedestrians must be aware that motor vehicles can
cause serious injuries, drivers must use more care to avoid
collisions than pedestrians.” The Samsons cited Bartlett v.
Melzo, 88 N.W.2d 518 (Mich. 1958), and Baumgartner v. State Farm
Mutual Automobile Insurance Co., 356 So.2d 400 (La. 1978),
superseded by statute, LA. CIV. CODE ANN. art. 2323 (1980)
(comparative fault), as recognized in Turner v. New Orleans
Public Service Inc., 476 So.2d 800 (La. 1985), in their
Application and Opening Brief in support of their argument that
a driver’s duty of ordinary care requires that a driver exercise
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greater caution than pedestrians. These cases are, however,
premised entirely on contributory negligence principles. 88
N.W.2d at 524 (holding that a pedestrian was not guilty of
contributory negligence as a matter of law); 356 So.2d at 406
(“a plaintiff’s contributory negligence will not bar his
recovery”).
As noted in our discussion, supra, of Instruction No. 6 (as
modified), Nahulu was required to exercise due care to avoid
collisions even if she had the right-of-way and did not violate
any traffic laws, and even if Minor violated pedestrian traffic
laws. The Samsons’ proposed Instruction No. 12, however, went
further and improperly stated that the duty to use reasonable
care does not require the same amount of caution from drivers
and pedestrians. This was an improper statement of the law.
Thus, the instruction was properly refused.
2. The Instructions as a Whole were Prejudicially
Erroneous
The Samsons also argue that the instructions, as a whole,
gave the “erroneous impression that a driver need not anticipate
pedestrians who are not strictly following the letter of the
law, which is inconsistent with Hawaii’s comparative negligence
law.” Turning to the instructions as a whole, we note that the
circuit court instructed the jury that: (1) a pedestrian must
obey all traffic laws (Instruction No. 1), (2) a pedestrian who
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crosses outside of a crosswalk must yield the right-of-way to
vehicles (Instruction No. 2), and (3) a person traveling upon a
highway has a right to assume others will obey the law and is
not required to keep a lookout for others (Instruction No. 6).
In addition, the court instructed the jury about a driver’s duty
of ordinary care (Samsons’ Instruction No. 8) in accordance with
(1) Ferrage v. Honolulu Rapid Transit and Land Co., 24 Haw. 87,
91 (Terr. 1917) (anticipate possibility of pedestrians), (2)
Sherry v. Asing, 56 Haw. 135, 143, 531 P.2d 648, 655 (1975)
(driver’s duty to avoid collisions with pedestrians), (3) Payne
v. Sorenson, 599 P.2d 362, 364 (Mont. 1979) (motorist’s line of
sight), and (4) HRS § 291C-101 (safe and appropriate speed).
Further, the court instructed the jury about the rights-of-way
of pedestrians and drivers in crosswalks under HRS § 291C-72
(Samsons’ Instruction No. 4 combined with Nahulu’s Instruction
No. 5), and a driver’s duty to exercise due care to avoid
colliding with pedestrians in accordance with HRS § 291C-74
(Samsons’ Instruction No. 6). In addition, the court gave an
instruction that summarized a different quotation from Arena
regarding limitations to a driver’s right-of-way (Samsons’
Instruction No. 10). See 46 Haw. at 332, 379 P.2d at 605 (“[A]n
operator of a motor vehicle cannot arbitrarily rely upon the
right of way gained as a result of excessive speed or by other
negligent act or violation of the law.” (quotation marks and
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citations omitted)). Finally, the court also instructed that a
traffic law violation is evidence of, but is not conclusive of,
negligence:
The violation of a state or city law is evidence of
negligence, but the fact that the law was violated is not
sufficient, by itself, to establish negligence. The
violation of the law must be considered along with all the
other evidence in this case in deciding the issue of
negligence.
Whether there was a violation of a state or city law
is for you to determine.
Although multiple instructions were given describing the
duties of drivers and pedestrians,13 the instructions, as a
whole, improperly focused on a pedestrian’s duties and gave the
impression that a pedestrian is barred from civil recovery if he
or she violates any traffic law.
The jury instructions will need to be revisited on remand.
We now provide further guidance to the circuit court on remand
regarding the evidentiary issues.
B. The circuit court erroneously excluded Day’s testimony
about Nahulu’s Speed
The Samsons argue that the ICA “grievously misapplied” the
“same evidence” rule to find that the circuit court’s wrongful
exclusion of Day’s “unsafe speed” testimony was harmless error.
(citing Kekua v. Kaiser Found. Hosp., 61 Haw. 208, 219, 601 P.2d
364, 371 (1971)). Specifically, the Samsons argue that the ICA
could not find that Day’s eyewitness testimony was the same as
or identical to other evidence presented to the jury. Further,
13
See supra note 10.
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as the Samsons contend, no other testimony was given concerning
the “inappropriateness of [Nahulu’s] speed under the
circumstances to the same degree as [Day’s] excluded
testimony[.]” Speed was an important issue and the exclusion
was clearly prejudicial. The Samsons also request “that any
standard for determining whether the exclusion of evidence is
harmless error [] consider the importance of the evidence to the
proponent’s case. (citing Adams v. Fuqua Industries, Inc., 820
F.2d 271, 273 (8th Cir. 1987)).
Nahulu argues that the ICA properly applied Kekua to find
that “Day was able to provide essentially the same evidence
through his detailed account of his observations” given his
statements concerning Nahulu’s vehicle and speed as well as
other witnesses’ testimony relevant to Nahulu’s speed and
alleged breach of duty, such as Benson’s testimony.
Generally, a witness is permitted to give an opinion on an
ultimate fact involved in the case, but may not give opinions on
questions of law as that would amount to legal conclusions. See
HRE Rule 704; Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81
Hawaiʻi 512, 522, 918 P.2d 1168, 1178 (App. 1996) (“[N]onexpert
opinion that amounts to a conclusion of law cannot be properly
received in evidence, since the determination of such questions
is exclusively within the province of the court[.]”).
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The ICA correctly concluded that the circuit court erred in
excluding Day’s testimony. Given that Day had personal
knowledge of the events due to his vantage point, his deposition
testimony that Nahulu was traveling at an unsafe speed was
relevant to an ultimate fact, and thus, was admissible. As the
ICA correctly concluded, Day did not testify on any question of
law, and any issues related to Day’s definition of unsafe could
have been addressed during cross-examination. Thus, the circuit
court erred in excluding this testimony. As we are remanding
for a new trial based on erroneous instructions, the harmless
error issue is moot.
C. Exhibit 7 should have been admitted
The Samsons argue that the ICA confused evidentiary
sufficiency with unfair prejudice when it affirmed the circuit
court’s exclusion of Exhibit 7 and Benson’s related testimony on
point of impact. The Samsons assert that even though the
evidence was not sufficient standing alone to establish that
Minor was in a crosswalk and required a foundation laid by
others, it was admissible because admitted evidence proved that
there was a crosswalk at the scene and Benson’s testimony
rendered Minor’s location in a crosswalk more likely than not.
Moreover, they contend that the fact that the evidence was
damaging to Nahulu’s case does not establish unfair prejudice as
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it did not suggest a decision on an improper basis. (citing HRE
Rule 403, Commentary).
Nahulu argues that the ICA correctly found the circuit
court did not abuse its discretion in precluding the evidence
due to a lack of foundation and consideration of the prejudicial
effect substantially outweighing its probative value.
First, with respect to foundation, Exhibit 7 was an exhibit
to Benson’s deposition. He placed the first “X” on the
photograph of the scene, and adopted the placement of the second
“X.” With the overwhelming testimony of other witnesses as to
the existence of the marked crosswalk on the date of the
accident, proper foundation existed for the admission of Exhibit
7.
Second, the circuit court actually excluded Exhibit 7 due
to its belief that its admission would be unduly prejudicial
based on Benson’s testimony that he could not recall whether
there was a marked crosswalk on the day of the accident. This
HRE Rule 403 ruling is reviewed for an abuse of discretion.
Tabieros, 85 Hawaiʻi at 351, 944 P.2d at 1294.
Under HRE Rule 403, Exhibit 7 should have been admitted
unless the probative value was substantially outweighed by its
undue prejudicial effect. “Probative evidence always
‘prejudices’ the party against whom it is offered since it tends
to prove the case against that person.” State v. Klafta, 73
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Haw. 109, 115, 831 P.2d 512, 516 (1992). The commentary to HRE
Rule 403 explains that “‘[u]nfair prejudice,’ as the Advisory
Committee’s Note to Fed. R. Evid. Rule 403 explains, ‘means an
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.’” HRE Rule
403, Commentary. In addition, overall considerations in making
this determination include the actual need for the evidence,
availability of other evidence on the same issues, probative
weight of the evidence, and the potential for creating prejudice
against the accused in the jurors’ minds. State v. Murphy, 59
Haw. 1, 9, 575 P.2d 448, 455 (1978) (discussed in HRE Rule 403
Commentary).
The jury, in determining the issue of negligence, was
entitled to know Minor’s location by a key eyewitness to the
collision. As the Samsons argue, there is nothing inherently
prejudicial about a crosswalk that would lead the jury to
determine negligence upon an improper basis. Further, any
potential prejudice could have been cured by a limiting
instruction.
The ICA’s reliance on State v. Sequin, 73 Haw. 331, 338,
822 P.2d 269 (1992), is misguided. In Sequin, this court upheld
a trial court’s ruling excluding a photographic exhibit taken
six months after the incident because multiple witnesses could
not verify that it substantially depicted the area at the time
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of the alleged offense and there was another diagram admitted
into evidence that more clearly portrayed the area. In this
case, Exhibit 7 substantially depicted the area because other
witnesses, such as Nahulu and Mrs. Joao, were able to provide a
foundation for a crosswalk at the intersection. In addition,
the same photograph without the markings was admitted into
evidence as Exhibit 3-B without objection.
Any potential prejudicial effect of Exhibit 7 did not
substantially outweigh its probative value. Therefore, the
circuit court should have admitted the exhibit.
VI. Conclusion
Based on the foregoing analysis, we vacate the ICA’s May 2,
2014 Judgment on Appeal, entered pursuant to its March 31, 2014
Memorandum Opinion, which affirmed the Circuit Court of the
First Circuit’s August 9, 2010 Judgment and September 29, 2010
Order Denying Plaintiffs’ Motion for Judgment Notwithstanding
the Verdict and/or, In the Alternative, for New Trial, and
remand the case to the circuit court for further proceedings
consistent with this opinion.
Ronald A. Albu /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama
Jonathan L. Ortiz and
Wade J. Katano /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack
/s/ Michael D. Wilson
38