Premises liability, falls from height, trip & fall injuries

Premises Liability in Hawaii

I. No Trespasser, Licensee, Invitee Distinction under Hawaii Law

In Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969), the Supreme Court of the State of Hawaii did away with the traditional classification of persons coming onto land. This distinction between trespasser, licensee and business invitee forms the foundation of premises liability law in many other jurisdictions. (See the Restatement of Torts (Second) §343). In Hawaii, however, as the Supreme Court has repeated on several occasions, there is no longer a distinction between trespasser, licensee (social guest) and invitee (business guest) for purposes of Hawaii premises liability law. See, eg., Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 416, 772 P.2d 693, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1989).

II. The Bases of Premises Liability Law in Hawaii

A. The Premises Must Have an Unreasonable Risk of Harm

The general rule with respect to the liability of owners and occupiers of land is that " [a] possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it." Corbett, 70 Haw. at 415, 772 P.2d at 693 (emphasis added); see also Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d 377, 384 (1987), Bidar v. AMFAC, Inc., 66 Haw. 547 at 559 (1983).

B. The Possessor of Land Must Have Failed to Take Reasonable Steps to Eliminate the Unreasonable Risk of Harm

The case of Richardson v. Sports Shinko Waikiki Corp., 76 Haw. 494, 880 P.2d 169 (1994), demonstrates that the Hawaii Supreme Court does not require all unreasonable risks of harm to be completely eliminated in order for a possessor of land to escape liability for an accident occurring on its premises. In that case, the Hawaii Supreme Court affirmed a defense verdict in favor of a hotel and against the guest who injured herself on a staple embedded in a meeting room rug. The Court found that because reasonable steps were taken to eliminate the unreasonable risk of harm, there was not even a duty to warn of the danger which remained. After reviewing the record in the light most favorable to the hotel (because it was the plaintiffs' appeal), the court stated that the hotel's efforts at vacuuming, regular cleaning, detection and monitoring complaints (or the lack thereof) were sufficient to constitute "reasonable steps" to eliminate the unreasonable risk of harm.

C. Warnings of the Condition by the Possessor of Land Must Be Absent and the Condition Must Not Be Open and Obvious

As set forth above, in Corbett, supra, the Hawaii Supreme Court found that a possessor of land can escape liability if it takes steps to warn users of the land against an unreasonable risk of harm found on its property. Typically, this involves the posting of a sign or the installation of a barrier to warn and protect against the danger. However, the Hawaii Supreme Court has found that there are certain types of conditions which provide their own warning and hence are not actionable. These are "open and obvious" conditions.

ii. The Condition must not be Open and Obvious

In the case of Friedrich v. Department of Transportation, 60 Haw. 32 at 36 (1978), the court found that a puddle- seen and sought to be avoided- was a danger which was sufficiently "open and obvious" that it provided its own warning and no further warning by the owner of the land was necessary. The Supreme Court of Hawaii stated: "The obviousness of a risk substitutes for an express warning and satisfies this obligation." The court went on to state that the landowner "may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid."

D. The Possessor of Land must have Actual or Constructive Notice of the Condition

III. Summary

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