NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-OCT-2024
08:34 AM
Dkt. 125 SO
CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
SOPHIA KARSOM and ISMAEL JOHN, INDIVIDUALLY AND ON BEHALF OF
THEIR son, G.J., a minor, Plaintiffs-Appellants, v.
STATE OF HAWAI#I AND THE HAWAI'I PUBLIC HOUSING AUTHORITY;
AND PLACIDO LUMABAO, Individually and as an employee, agent,
and/or independent contractor of the State of Hawai#i,
Defendants-Appellees, and
JOHN DOES 1-99; JANE DOES 1-99; DOE PARTNERSHIPS 1-99;
DOE CORPORATIONS 1-99; DOE GOVERNMENTAL ENTITIES 1-99;
and OTHER ENTITIES 1-99,
Defendants-Appellees
CITY AND COUNTY OF HONOLULU, Third-Party Plaintiff-Appellee v.
STATE OF HAWAI#I, Third-Party Defendant-Appellee, and
DOE DEFENDANTS 1-50, Third-Party Defendants-Appellees
STATE OF HAWAI#I, HAWAI#I PUBLIC HOUSING AUTHORITY; and
PLACIDO LUMABAO, Third-Party Plaintiffs-Appellees v.
CYNTHIA KAMINANGA, Third-Party Defendant-Appellant, and
JOHN AND JANE DOES 1-10; DOE CORPORATIONS 1-10; and
DOE ENTITIES 1-10, Third-Party Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC171000843)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)
Plaintiffs-Appellants Sophia Karsom and John Smeal,
individually and on behalf of their minor son (Child)
(collectively, Parents) appeal from the February 17, 2021 First
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Revised Judgment (Judgment) entered by the Circuit Court of the
First Circuit (Circuit Court) in favor of Third-Party Plaintiffs-
Defendants-Appellees State of Hawai#i and Hawai#i Public Housing
Authority (HPHA) (the State) and Placido Lumabao (Lumabao)
(collectively, Appellees).1 The Parents also challenge the
October 8, 2020 Order Granting [the State's] Motion for Summary
Judgment [(MSJ)], Filed January 10, 2020 [(State's MSJ)] (Order
Granting State's MSJ); the October 8, 2020 Order Denying as Moot
[Parents'] Motion to Compel Discovery [(Motion to Compel)], Filed
February 7, 2020 (Order Denying Motion to Compel); and the March
14, 2019 Order Granting [Lumabao's] [MSJ] [(Lumabao's MSJ)] Filed
on November 20, 2018 (Order Granting Lumabao's MSJ).2
The Parents raise six points of error on appeal,
contending that the Circuit Court: (1) abused its discretion
when it denied the Motion to Compel; (2) erred when it granted
Lumabao's MSJ because Appellees failed to prove that Lumabao was
a State employee and failed to prove that HPHA was a State
agency; (3) erred when it granted the State's MSJ and Lumabao's
MSJ because Appellees failed to properly respond to discovery
requests; (4) erred in entering the Order Granting State's MSJ
because it was sufficient to show that Lumabao's negligence was a
substantial factor in causing Child's injuries; (5) erred in
granting summary judgment because Lumabao's contradictory
statements concerning which side of the maintenance golf cart
driven by Lumabao hit Child created a genuine issue of material
1
The Honorable Lisa W. Cataldo presided.
2
The Honorable James C. McWhinnie presided.
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fact for trial; and (6) erred in granting summary judgment
because the Circuit Court required the Parents to prove
negligence, as opposed to simply establishing that Appellees'
actions were a contributing factor in causing Child's injuries.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve the Parents' points of error as follows:
(1) The Parents argue that the Motion to Compel was
timely, and that they were entitled to compel production of
documents related to the ownership, maintenance and repair of the
maintenance golf cart driven by Lumabao when it hit Child.
The February 7, 2020 Motion to Compel sought updates to
the March 15, 2018 [State's] Response to [Parents'] First Request
for Admissions and Production of Documents Dated November 14,
2017 (State's Discovery Response), in particular the Parents'
Request for Admissions and Production of Documents No. 1, 6, 7,
and Parents' Discovery Requests). On February 20, 2020, the
State filed a memorandum in opposition; no reply memorandum was
filed. Also on February 7, 2020, the Parents filed a motion to
continue the March 3, 2020 trial date to obtain new imaging (X-
rays, CAT scans, MRIs) of Child. Pursuant to a minute order
dated February 21, 2020, the trial date, along with the Parents'
motions and the State's MSJ were continued to a later date to be
rescheduled.
The Motion to Compel was heard, along with the State's
MSJ (and another motion by the State), on September 15, 2020.
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However, the Order Denying Motion to Compel states that the
Circuit Court commenced the hearing with arguments on the State's
MSJ, which was granted. The Order Denying Motion to Compel
further states that due to the granting of summary judgment, the
Motion to Compel was denied as moot (as was the State's motion).
The Parents' failed to provide a transcript of the September 15,
2020 hearing.
The Parents make no argument and cite no legal
authority concerning the issue of mootness, which is the stated
basis for the Circuit Court's ruling. Nor do the Parents
identify which of the four discovery requests identified in the
Motion to Compel pertain to their contentions on appeal. It
appears, however, that only one of the requests is related to the
Parents' argument on appeal. Request for Admission (RFA) No. 7
states, in relevant part: "Admit that the vehicle that [Lumabao]
was driving when he ran over [Child] . . . [had] "NOT" been
inspected or properly maintained and the brakes were not in
working order." The State denied this request. The related
Request for Production (RFP) No. 7 states: "If your response to
Request for Admission [No. 7] is anything but an unqualified
admission, please produce copies of any documents or written
evidence that supports your denial." The State responded: "This
response is pending further investigation and discovery."
The State raises numerous procedural and substantive
arguments supporting the Circuit Court's denial of the Motion to
Compel, including the Parents' failure to comply with the Hawai#i
Rules of Civil Procedure Rule 37(a)(2) requirement that a motion
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to compel "must include a certification that the movant has in
good faith conferred or attempted to confer with the person or
party failing to make the discovery in an effort to secure the
information or material without court action." The State raised
this argument in the Circuit Court, and the Parents did not file
any reply. Moreover, RFP No. 7 only requests documents that
support the denial of RFA No. 7 and does not request, for
example, all documents related to the ownership, maintenance and
repair of the maintenance golf cart driven by Lumabao when it hit
Child. The State's position in opposition to the Motion to
Compel was that their denial of RFA No. 7 was based in part on
the police report, which they attached in response to RFA No. 1,
and that the denial would be supported testimonially, noting that
Lumabao denied any mechanical problems in the declaration he
submitted with Lumabao's MSJ. In light of the failure to provide
certification of an attempt to "meet and confer," and in light of
the record before the Circuit Court and this court, including the
Parents' failure to plainly request the documents now complained
of and failure to explain why the request for documents in
response to RFP No. 7 was not moot, we conclude that the Circuit
Court did not abuse its discretion in denying the Motion to
Compel.3
(2) The Parents argue that the Circuit Court erred
when it granted Lumabao's MSJ because Appellees failed to prove
that Lumabao was a State employee and failed to prove that HPHA
3
We decline to address the Parents' arguments concerning RFAs and
RFPs that were not the subject of the Motion to Compel.
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was a State agency. These arguments were not raised (or
supported in any way) in opposition to Lumabao's MSJ, and
therefore, they are waived. See Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28(b)(4). In addition, in support of
Lumabao's MSJ, Lumabao submitted a declaration averring, inter
alia, that "[o]n August 26, 2016, I was a full-time employee of
the [HPHA] of the Department of Human Services, State of Hawaii."
We conclude that this argument is without merit.
(3) In their third point of error, the Parents argue
that the Circuit Court erred when it granted the State's MSJ and
Lumabao's MSJ because Appellees failed to properly respond to
discovery requests. The Parents offer no additional support or
rationale for their assertion that the Appellees failed to
properly respond to the discovery requests. We conclude that
this argument is without merit.
(4 & 6) The Parents argue that the Circuit Court erred
in granting summary judgment in favor of the State because the
court failed to follow O'Grady v. State, 140 Hawai#i 36, 398 P.3d
625 (2017), because it was sufficient to show that Lumabao's
negligence was a substantial factor or a contributing factor in
causing Child's injuries. The Parents did not raise these
particular arguments in opposition to the State's MSJ. The
gravamen of the Parents' opposition to the State's MSJ was that
Lumabao's sworn statements concerning the incident, including
with respect to which side of the maintenance golf cart struck
Child when Lumabao hit and ran over Child, were changed to escape
culpability. We conclude that the Circuit Court did not err in
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failing to deny summary judgment based on O'Grady, as this
argument was not raised in opposition to the State's MSJ and
O'Grady is distinguishable because the trial court's conclusion
as to duty and breach was not at issue. Id. at 43, 398 P.3d at
632.
(5) The Parents argue that the Circuit Court erred in
granting summary judgment because Lumabao's contradictory
statements concerning which side of the maintenance golf cart
driven by Lumabao hit Child created genuine issues of material
fact for trial. This argument was raised in opposition to
Lumabao's MSJ in conjunction with the Parents' argument that
Lumabao was not entitled to qualified immunity. In opposition to
the State's MSJ, the Parents argue that the issue of which side
hit Child is "a critical issue of material fact" because it shows
that "Lumabao changed his sworn statements to escape
culpability."
We first consider this argument in the context of
Lumabao's MSJ. Lumabao argued that he was a State employee
acting in the course and scope of his employment, that he did not
act with malice or for an improper purpose when he injured Child,
and that he was therefore entitled to the benefit of qualified
immunity. "[N]on-judicial governmental officials, when acting in
the performance of their public duty, enjoy the protection of
what has been termed a qualified or conditional privilege."
Towse v. State, 64 Haw. 624, 631,
647 P.2d 696, 702 (1982).
However, the doctrine of qualified immunity applies to government
officials – such as the lieutenant governor, the attorney
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general, and the director of the department of social services
and housing in Towse, and the director of the department of
taxation in Medeiros v. Kondo, 55 Haw. 499,
522 P.2d 1269 (1974)
– in the exercise of their governmental discretion. In other
words, it applies to government officials when they are acting in
furtherance of governing, and it does not apply to a State
employee sued for alleged negligence while driving a maintenance
golf cart. See Slingluff v. State, 131 Hawai#i 239, 244-47,
317
P.3d 683, 688-91 (App. 2013). Lumabao was a maintenance worker,
not a government official.4 The Circuit Court clearly erred in
granting summary judgment in favor of Lumabao on the basis of
qualified immunity, the sole ground raised in Lumabao's MSJ.
The State's MSJ argued that: (1) the State's waiver of
its sovereign immunity for liability for torts of its employees
does not include liability for punitive damages; (2) the State is
immune from liability for intentional torts of employees; (3) the
Parents are not entitled to an inference of res ipsa loquitur;
(4) neither strict liability, ultrahazardous activities, nor
gross negligence are implicated; and (5) the Parents have no
evidence of a breach of duty sufficient to defeat summary
judgment on their negligence claims. As the State appears to
4
The State's supplemental brief argues that Parents failed to make
this argument in opposition to Lumabao's motion for summary judgment. Our
decision is based on Lumabao's failure to meet his burden of production as the
summary judgment movant; Lumabao did not show he was a government official to
whom qualified immunity could apply. Even if a motion for summary judgment is
unopposed, it should be granted only if the movant shows it is entitled to
judgment as a matter of law. U.S. Bank Tr., N.A. v. Verhagen, 149 Hawai #i
315, 328 n.12, 489 P.3d 419, 432 n.12 (2021); Arakaki v. SCD-Olanani Corp.,
110 Hawai#i 1, 6,
129 P.3d 504, 509 (2006) ("[A] party need not affirmatively
oppose a motion for summary judgment that fails to show prima facie (1) that
the undisputed facts foreclose genuine issues as to any material facts and (2)
that the moving party is entitled to judgment as a matter of law." (cleaned
up)).
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acknowledge, pursuant to HRS § 662-2 (2016), "[t]he State hereby
waives its immunity for liability for the torts of its employees
and shall be liable in the same manner and to the same extent as
a private individual under like circumstances[.]" We view the
evidence in the light most favorable to the nonmoving party,
including Lumabao's conflicting statements concerning how he ran
over Child and the other evidence in the record before the
Circuit Court on the summary judgment motions. See, e.g., Omerod
v. Heirs of Kaheananui, 116 Hawai#i 239, 254-55, 172 P.3d 983,
998-99 (2007).
On appeal, the Parents provide no cogent argument
and/or evidence warranting reversal of the Circuit Court's
granting of summary judgment in favor of the State with respect
to liability for punitive damages, intentional torts, res ipsa
loquitur, strict liability, ultrahazardous activities, or gross
negligence. The Parents point to no evidence in the record
supporting a claim of negligence stemming from the maintenance of
the maintenance golf cart driven by Lumabao when he ran over
Child.
However, it is undisputed that Lumabao was driving a
maintenance golf cart on a sidewalk in a public housing complex
occupied by numerous residents, including families with young
children, like Child, who was three-years-old at the time that he
was run over by Lumabao, trapped underneath the maintenance golf
cart, and suffering serious injuries. Lumabao's initial
statement to the police was that he "accidentally hit a child
that was sitting on the sidewalk behind a park[ed] car. . . I
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couldn't see the kid too low I run over with the left front
tire[.]" (Emphasis added.) It is well-established in this
jurisdiction that a driver, even one exercising the right of way
on a roadway, must exercise due care so as to avoid injury to
others. Sherry v. Asing, 56 Haw. 135, 143,
531 P.2d 648, 655
(1975). Due care is ordinary care and has been described as
follows:
'Negligence is the doing of some act which a reasonably
prudent person would not do, or the failure to do something
which a reasonably prudent person would do, under the
circumstances shown by the evidence. It is the failure to
use ordinary care. Ordinary care is that care which persons
of ordinary prudence would, under the circumstances shown by
the evidence, exercise in the management of their own
affairs in order to avoid injury to themselves or their
property, or to the persons or property of others. Ordinary
care is not an absolute term, but a relative one. That is
to say, in deciding whether ordinary care was exercised in a
given case, the conduct in question must be considered in
the light of all the surrounding circumstances, as shown by
the evidence. '
Id. at 142-43,
531 P.2d 654-55 (with the supreme court discussing
the trial court's definition of due care approvingly).
Viewing the evidence in the light most favorable to the
Parents, including the discrepancies in Lumabao's statements
concerning the incident and all of the surrounding circumstances,
we conclude that there was a genuine issue of material fact as to
whether Lumabao breached his duty of ordinary care, causing
injury and damages to Child. Accordingly, we conclude that the
Circuit Court erred in granting summary judgment in favor of
Lumabao and the State on the Parents' negligence-based claims
arising out of Lumabao's driving the maintenance golf cart over
Child.
For these reasons, the February 17, 2021 Judgment is
affirmed in part and vacated in part. This case is remanded to
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the Circuit Court for further proceedings consistent with this
Summary Dispostion Order.
DATED: Honolulu, Hawai#i, October 31, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
JohnAaron Murphy Jones,
for Plaintiffs-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Marie Manuele Gavigan,
Justine Hura, /s/ Karen T. Nakasone
Deputy Attorneys General, Associate Judge
Department of the Attorney General,
State of Hawai#i,
for Defendants-Appellees.
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