Updated 2017

STATE OF HAWAII COMPENDIUM OF LAW

Prepared by Thomas Benedict and Dawn T. Sugihara

Goodsill Anderson Quinn & Stifel LLP 999 Bishop Street, Suite 1600

Honolulu, HI 96813 (808) 547-5600

www.goodsill.com

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PRE-SUIT AND INITIAL CONSIDERATIONS

Pre-Suit Notice Requirements/Prerequisites to Suit

A) Against Counties. The pre-suit notice requirement for actions against a county for damage

to person or property received upon public places of the county or on account of any

negligence of an employee of the county is governed by HAW. REV. STAT. § 46-72 (1993

& Supp. 2011). The person injured or the owner of the property damaged must give notice

in writing of the injuries and the specific damages resulting within two years after the

injuries accrued.

B) Medical Inquiry and Conciliation Panel (“MICP”). Before filing a suit for a medical

tort, the claimant must submit the claim, in writing, to the MICP. HAW. REV. STAT. § 671-

12(a) (2013). Requirements for submission of the claim are found in HAW. REV. STAT. §

671, et seq. (2013). A panel composed of a lawyer and a physician convenes and attempts

to facilitate resolution of the matter. HAW. REV. STAT. § 671-11 (2013). Following the

proceedings involving the panel, the claimant may institute litigation should they so wish,

whether or not any issues were resolved by the panel. HAW. REV. STAT. § 671-16 (2013).

The filing of a claim with the MICP tolls any applicable statute of limitations until 60 days

after the date of the termination of the panel or a notification of completion of an alternative

dispute resolution is mailed to the parties. A claimant may initiate litigation if the panel

proceedings are not completed by the MICP within 12 months from the date of the initial

filing. HAW. REV. STAT. § 671-18 (2013).

C) Design Claim Conciliation Panel (“DCCP”). Before instituting litigation in tort against

a design professional licensed to practice under HAW. REV. STAT. § 464-2 (1993), a

claimant must submit a claim to the DCCP. HAW. REV. STAT. § 672B-5 (Supp. 2011). The

DCCP reviews and renders findings and advisory opinions on the issues of liability and

damages. HAW. REV. STAT. § 672B-9 (Supp. 2011). Following the decision of the panel,

whether there is a finding of liability, or not, the claimant may institute litigation. HAW.

REV. STAT. § 672B-11 (Supp. 2011). The filing of a claim with the DCCP tolls any

applicable statute of limitations until 60 days after the date of the decision of the panel. A

claimant may initiate litigation if a decision is not rendered by the DCCP within 12 months

from the date of the initial filing. HAW. REV. STAT. § 672B-15 (Supp. 2011).

D) Other pre-suit notice requirements exist in certain situations: enjoin an auction (HAW. REV.

STAT. § 445-32 (1993)); environmental lawsuits (HAW. REV. STAT. §§ 128D-21 (2014),

195D-32 (2014), 342B-56 (2014)).

Relationship to the Federal Rules of Civil Procedure

Hawaii has its own Rules of Civil Procedure, which are modeled after the Federal Rules of Civil

Procedure. There are some differences between the Hawaii and Federal Rules.

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Description of the Organization of the State Court System

A) Structure. The Hawaii court system consists of five courts: the Supreme Court, the

Intermediate Appeals Court, the Circuit Court, the District Court and the Family Court.

1) Supreme Court. The Supreme Court of Hawaii is composed of a Chief Justice

and four Associate Justices who hear appeals. The Supreme Court has

jurisdiction over matters that are brought before the Court upon applications for

writs of certiorari to the Intermediate Court of Appeals. The Supreme Court

also has jurisdiction over reserved questions of law from circuit and federal

courts and complaints regarding elections. The Supreme Court is authorized to

make rules of practice and procedure for all state courts, license, regulate and

discipline attorneys, and discipline judges.

2) Intermediate Court of Appeals (“ICA”). The ICA is composed of six judges

who consider cases in panels of three. The ICA is the court that hears nearly

all appeals from trial courts and state agencies. The ICA also has discretionary

authority to entertain cases submitted without a prior suit when there is a

question composed of law that could be the subject of a civil action or

proceeding in Circuit Court or Tax Appeal Court, and the parties agree upon

the facts upon which the controversy depends.

3) Circuit Courts. Within the State of Hawaii, there are four separate circuits,

the First Circuit (Oahu), the Second Circuit (Maui, Lanai, and Molokai), the

Third Circuit (Hawaii) and the Fifth Circuit (Kauai). The Circuit Courts have

general jurisdiction in civil and criminal cases and have exclusive jurisdiction

in probate, guardianship and criminal felony cases, as well as civil cases where

the contested amount exceeds $40,000.00. The Circuit Courts share concurrent

jurisdiction with District Courts in civil non-jury cases in which the amounts in

controversy are between $5,000.00 and $40,000.00.

The Administrative Judge of the First Circuit Court assigns all Land Court and

Tax Appeal Court matters to judges in the First Circuit Court. Land Court has

exclusive original jurisdiction over all applications of the registration of title to

land easements or rights in land held and possessed in fee simple within the

State. The Tax Appeal Court hears appeals regarding real property taxation

directly from assessments or from the Boards of Review.

4) District Courts. Within each Circuit, there are a number of District Courts.

The District Courts have exclusive jurisdiction over small claims cases where

the amount claimed does not exceed $5,000.00. The District Courts also have

exclusive jurisdiction, regardless of the amount of the claim, for traffic

infractions, summary possession, and ejectment proceedings. In addition, the

District Courts may exercise jurisdiction in non-jury, civil cases where the

remedy sought is under $40,000.00, civil cases for specific performance when

the fair market value of the performance does not exceed $20,000.00, criminal

cases where the offense is punishable by fine or imprisonment which does not

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exceed one year, cases arising from violations of a county ordinance, and

petitions for restraining orders.

5) Family Court. Each Circuit has its own Family Court. Family Court has

jurisdiction to hear legal matters involving children, domestic relations,

domestic violence, civil commitment, guardianship of adults, and adult abuse.

B) Selection of Judges. In Hawaii, judges of the Supreme Court, ICA, and Circuit Courts

are appointed by the Governor, with the consent of the State Senate. The Governor

selects appointees from a list of nominees submitted by the Judicial Selection

Commission. Judges appointed by the Governor are appointed for ten-year terms.

District Court and Family Court judges are nominated by the Chief Justice of the

Supreme Court for six-year terms. All judicial nominations are subject to confirmation

by the State Senate.

C) Alternative Dispute Resolution (“ADR”). Hawaii does not have a comprehensive

statewide statute mandating methods of ADR. HAW. REV. STAT. § 613-2 (2000)

established the Center for Alternative Dispute Resolution to facilitate the effective,

timely and lower-priced resolution of disputes, but its programs are strictly voluntary.

However, each forum has ADR provisions in statutes or rules.

1) Arbitration. All civil actions in tort having a probable jury award value of

$150,000.00 or less are subject to a mandatory, non-binding arbitration program

called the Court Annexed Arbitration Program (“CAAP”). CAAP is governed

by HAW. REV. STAT. § 601-20 (1993 & Supp. 2011) and the Hawai‘i Arbitration

Rules. All matters assigned to CAAP can be removed at the discretion of the

court. Any other civil case, regardless of the amount in controversy, may be

submitted to CAAP upon the agreement of all parties and the approval of the

Arbitration Judge. Parties to cases submitted or ordered to CAAP may agree at

any time to be bound by any arbitration ruling or award.

The Revised Uniform Arbitration Act (“RUAA”), HAW. REV. STAT. § 658A-1

(Supp. 2011) et seq., governs voluntary agreements to arbitrate by parties

involved in a litigation. In an attempt to clarify the Federal Arbitration Act,

which is largely silent on arbitration procedures, the RUAA specifies

procedures in detail. In particular, discovery is fully permitted at the discretion

of the arbitrator, unless prohibited by the parties in their arbitration agreement.

Although arbitration awards are binding, a party can move, under limited

circumstances, for the court to vacate the award. See HAW. REV. STAT. § 658A-

23 (Supp. 2011).

2) Mediation. Mediation is recognized and encouraged in every forum, including

the District Courts, Circuit Courts, Appellate Courts and in administrative law

proceedings. For example, in the Circuit Court, the court, sua sponte or by

motion of a party, may order “mediation, summary jury trial, neutral evaluation,

non-binding arbitration, presentation to a focus group, or other such process the

court determines may be helpful in encouraging an economic and fair resolution

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of all or any part of the disputes presented in the matter.” HAW. R. CIR. CTS.

12.2(a).

Under HAW. REV. STAT. § 91-8.5 (Supp. 2011), an agency may encourage

parties of a contested case to participate in mediation prior to a hearing, and

may suspend all further proceedings in the contested case pending the outcome

of the mediation. Unless otherwise extended by the agency, no mediation

period shall exceed thirty days from the date the case is referred to mediation.

All costs of the mediation are borne equally by the parties unless otherwise

agreed, ordered by the agency, or provided by law, and any mediation

statements or settlement offers may not be admitted into any subsequent

proceedings involving the case.

Service of Summons

A) Person. Service of summons is governed by HAW. R. CIV. P. 4. Service upon a person

includes delivering a copy of the summons and compliant by (1) personal service; (2)

substituted service, which is leaving a copy of the summons and the complaint at the

individual’s dwelling with a person of suitable age and discretion; or (3) delivering a copy

of the summons and the complaint to an agent authorized by appointment or law. HAW. R.

CIV. P. 4(d)(1).

B) Infant or incompetent person. Service of summons upon an infant or an incompetent

person is governed by HAW. R. CIV. P. 4(d)(2). Service upon an infant includes delivering

a copy of the summons and complaint personally (1) to the guardian of the infant’s property

or if no guardian exists or service cannot be made to the guardian then as directed by court

order, and (2) to the infant, if the infant is 16 years old or older. Service upon an

incompetent person includes delivering a copy of the summons and complaint (1) to the

guardian of the incompetent person’s property, or if the incompetent person is in an

institution to the director of chief executive officer of the institution, or if service cannot

be made to either than as directed by the court, and (2) to the incompetent person unless

the court directs otherwise.

C) Corporation. Service of summons upon corporation, partnership or other unincorporated

association is made by “delivering a copy of the summons and the complaint to an officer,

a managing or general agent, or any other agent authorized by appointment or by law to

receive service of process.” HAW. R. CIV. P. 4(d)(3).

D) State. Service of summons upon the State is made by delivering a copy of the summons

and the complaint to the attorney general of the State, the assistant attorney general, or any

deputy attorney general who has been appointed by the attorney general. HAW. R. CIV. P.

4(d)(4).

E) State officer or agency. Service of summons upon an officer or agency of the State is

made “by serving the State and by delivering a copy of the summons and the complaint to

the officer or agency.” HAW. R. CIV. P. 4(d)(5). If the agency is a corporation, the copies

to the corporation should be delivered as provided under paragraph (C) above.

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F) County. Service of summons upon a county is effectuated by “delivering a copy of the

summons and of the complaint to the corporation counsel or county attorney or any of his

or her deputies,” or as provided by statute or county charter. HAW. R. CIV. P. 4(d)(6).

G) County officer or agency. Service of summons upon an officer or agency of a county is

made “by serving the county and by delivering a copy of the summons and of the complaint

to such officer or agency.” HAW. R. CIV. P. 4(d)(7). If the agency is a corporation, the

copies to the corporation should be delivered as provided under paragraph (C) above.

H) Nonresidents. Whenever a statute or an order of court provides for service of a summons

upon a party not an inhabitant of or found within the State, service shall be made under the

circumstances prescribed in the statute or order pursuant to HAW. R. CIV. P. 4(e). “All

process may be served anywhere within the State and, when a statute or order so provides,

beyond the limits of the State.” HAW. R. CIV. P. 4(f).

I) Pursuant to Hawaii’s long-arm statute, HAW. REV. STAT. § 634-35 (1993), a person or

entity submits to jurisdiction in Hawaii if she (1) transacts business within the State; (2)

commits a tortious act within the State; (3) owns, uses or possesses real estate situated

within the State; or (4) contracts to insure a person, property or risk located within the State

at the time of contracting.

J) There are no statutory provisions in the Hawai‘i Rules of Civil Procedure or in the Hawaii

Revised Statutes regarding the ability of a plaintiff to notify a defendant of an action and

request that the defendant waive service of summons. However, Hawaii common law

establishes that any objection by a defendant for lack of notice due to a failure to properly

serve a summons is deemed waived by a defendant’s appearance in court. See, e.g., In re

Guardianship of Carlsmith, 113 Haw. 211, 225, 151 P.3d 692, 706 (2006).

Statutes of Limitations

A) Debts. The statute of limitations for actions to recover a debt based on any contract,

obligation, or liability must be commenced within six years after the cause of action

accrued. HAW. REV. STAT. § 657-1(1) (1993).

B) Foreign debts. The statute of limitations for actions to recover debt based on a contract,

obligation or liability, which has arisen in any foreign jurisdiction, except those to enforce

a judgment of a court, must be commenced within four years after the cause of action

accrued. HAW. REV. STAT. § 657-6 (1993).

C) Debts based on a minor’s medical care. The statute of limitations to recover a debt based

on a contract, obligation, or liability made pursuant to HAW. REV. STAT. § 577A-5 (2006)

(relating to legal capacity of a minor regarding medical care) shall not commence until the

minor reaches the age of majority, and then must commence within two years.

D) Foreign judgments. Actions for judgments or decrees rendered in any court not of record

in the State, or, subject to HAW. REV. STAT. § 657-9 (1993), in any court of record in a

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foreign jurisdiction, must be commenced within six years after the cause of action accrued.

HAW. REV. STAT. § 657-1(2) (1993).

E) Taking of goods. Actions for the taking or detaining of goods or chattels, including actions

in replevin must be commenced within six years after the cause of action accrued. HAW.

REV. STAT. § 657-1(3) (1993).

F) Actions not covered by other laws. Actions for personal actions of any nature not

specifically covered by Hawaii laws must be commenced within six years after the cause

of action accrued. HAW. REV. STAT. § 657-1(4) (1993). However, where a federal statute

provides for damages or equitable relief, but does not specify the period within which the

suit may be brought, actions brought in state court must be commenced within two years

from the date the cause of action arises. HAW. REV. STAT. § 657-11 (1993).

G) Libel and slander. Actions for libel and slander must be commenced within two years

after the cause of action accrued. HAW. REV. STAT. § 657-4 (1993).

H) Persons or property. Actions for injury to persons or property must be commenced within

two years after the cause of action accrued. HAW. REV. STAT. § 657-7 (1993).

I) Medical malpractice. Actions brought against persons in the medical profession based

on their professional negligence, for rendering professional services without consent, or

for error or omission in such person’s practice, must be commenced within two years after

the plaintiff discovers, or with reasonable diligence should have discovered, the injury.

HAW. REV. STAT. § 657-7.3 (Supp. 2011). Actions for medical tort by a minor must be

commenced within six years from the date of the alleged wrongful act except the actions

by a minor under the age of ten years must be commenced within six years or by the minor’s

tenth birthday, whichever provides a longer period. This time limitation will be tolled for

any period during which the minor’s parent, guardian, insurer, or health care provider has

committed fraud or gross negligence or has been a party to a collusion in the failure to

bring an action on behalf of the injured minor for a medical tort. This time limitation will

also be tolled for any period during which the minor’s injury or illness alleged to have

arisen from the alleged wrongful act or omission could not have been discovered through

the use of reasonable diligence.

J) Construction. Actions to recover damages for injuries to property or for bodily injury or

wrongful death arising out of any deficiency or neglect in the planning, design,

construction, supervision, and administration of construction, and observation of

construction relating to an improvement to real property must be commenced within two

years after the cause of action accrued. HAW. REV. STAT. § 657-8(a) (1993 & Supp. 2011).

However, this statute of limitations does not apply to actions for damages against owners

or other persons having an interest in the real property or improvement based on their

negligent conduct in the repair or maintenance of the improvement or to actions for

damages against surveyors for their own errors in boundary surveys. HAW. REV. STAT. §

657-8(b) (1993 & Supp. 2011)

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K) Ejection. Actions to recover possession of any lands or make any entry thereon must be

commenced within twenty years after the right to bring the action first accrued. HAW. REV.

STAT. § 657-31 (1993).

L) Tolling for infancy, insanity or imprisonment. The tolling of the statute of limitations

due to infancy, insanity, or imprisonment is governed by HAW. REV. STAT. § 657-13

(1993). If at the time the cause of action accrued a person is within the age of eighteen

years, insane, or imprisoned on a criminal charge, such person can bring the action within

the respective statute of limitations after the disability is removed or at any time while the

disability exists.

M) Tolling for disability. The tolling of the statute of limitations due to the existence of two

or more disabilities is governed by HAW. REV. STAT. § 657-15 (1993). The time limitations

will not attach until all disabilities that existed at the time the right of action accrued are

removed.

N) Extensions. Extensions of statutes of limitations for personal actions are governed by

HAW. REV. STAT. §§ 657-18 – 657-23 (1993 & Supp. 2011).

1) Person out of state. Pursuant to HAW. REV. STAT. § 657-18 (1993), if at any time

when a cause of action accrues against a person, the person is out of the State, the

action may be commenced within the terms respectively limited after the return of

the person into the State. Further, if, after the cause of action has accrued, the

person departs from and resides out of the State, the time of the person’s absence

will not be taken as part of the limitations period.

2) Injunction. Pursuant to HAW. REV. STAT. § 657-19 (1993), whenever the

commencement of an action is stayed by an injunction of any court, the time during

which the injunction is in force will not be taken as part of the limitations period.

3) Fraudulent concealment. Pursuant to HAW. REV. STAT. § 657-20 (1993), if any

person who is liable for a personal action or for wrongful death fraudulently

conceals the existence of a cause of action or the identity of a person who is liable

for the claim from the knowledge of the person entitled to bring the action, the

action may be commenced at any time within six years after the person who is

entitled to bring the action discovers or should have discovered the existence of the

cause of action or the identity of the person who is liable for the claim.

4) Crime victims. Pursuant to HAW. REV. STAT. § 657-21.5 (Supp. 2011), the statute

of limitations for any civil cause of action against a person convicted of a particular

crime will be tolled from the moment the civil cause of action arises until the person

convicted of that crime is released from imprisonment, released from parole, or

released from probation and is no longer under the jurisdiction of the court for that

crime if: (1) the crime upon which the civil action is based is a felony; or (2) the

victim of the crime upon which the civil action is based is the victim of a “sexually

violent offense” or a “criminal offense against a victim who is a minor.”

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5) Unintended service of process. Pursuant to HAW. REV. STAT. § 657-22 (1993),

upon any such matter being established, or upon its appearance in any other way

that process was issued without the intent that it should be served, the process will

not be deemed the commencement of an action.

6) Restitution. Pursuant to HAW. REV. STAT. § 657-23 (1993 & Supp. 2011), if at

any time when a cause of action for recovery of restitution or compensation for

damage or injury to a victim of a crime exists, a criminal action is pending which

arises out of the same occurrence, the time during which the criminal action is

pending will not be taken as part of the statute of limitations for commencement of

the civil action.

Statutes of Repose

A) Domestic judgments. The statute of repose applicable to domestic judgments and decrees

is governed by HAW. REV. STAT. § 657-5 (1993 & Supp. 2011). Unless an extension is

sought within ten years of date of the original judgment or decree and is granted by the

court, every domestic judgment and decree is presumed to be paid and discharged at the

expiration of ten years after it was rendered. A court will not extend any judgment or

decree beyond twenty years from the date of the original judgment or decree.

B) Child support. The statute of repose applicable to judgments for child support is governed

by HAW. REV. STAT. § 657-5.5 (Supp. 2011). Every judgment for child support is

presumed to be paid and discharged on the thirty-third birthday of the child or by the

expiration of the latest period provided in HAW. REV. STAT. § 657-5 (1993 & Supp. 2011),

whichever date is later.

C) Medical torts. The statute of repose applicable to medical torts is governed by HAW. REV.

STAT. § 657-7.3 (1993 & Supp. 2011). Actions may not be brought more than six years

after the date of the alleged act or omission causing injury or death, but this six-year time

limitation will be tolled for any period during which the person has failed to disclose any

act, error, or omission upon which the action is based and which is known to the person.

D) Construction. The statute of repose applicable to damages based on construction to

improve real property is governed by HAW. REV. STAT. § 657-8 (1993 & Supp. 2011).

Actions may not be brought more than ten years after the date of the completion of the

improvement.

Venue Rules

A) Venue particulars. Venue is governed by HAW. REV. STAT. § 603-36 (1993). Actions for

penalties and forfeitures should be brought in the circuit court where the alleged penalty or

forfeiture was incurred. Actions for ejectment, trespass, to quiet title, or to partition real

property may be brought in any circuit in which any part of the property is situated.

Proceedings concerning trusts and the estates of decedents, missing persons, protected

persons, minors, and incapacitated persons should be brought pursuant to HAW. REV. STAT.

§ Chapter 560-1 et seq. (2006 & Supp. 2011). Applications for writs directed to courts of

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inferior jurisdiction or writs of quo warranto should be brought in the circuit court where

the alleged occasion for relief arises, unless it is needed in a proceeding that has already

begun and in that case it can be brought before the circuit court in which the proceeding is

currently being held. Unless otherwise expressly provided by statute, actions should be

brought in the circuit where the claim for relief arose or where the defendant is domiciled.

If there is more than one defendant, the action should be brought in the circuit in which the

claim for relief arose, but if a majority of the defendants are domiciled in another circuit,

the action may be brought there.

B) Change of venue. Change of venue is governed by HAW. REV. STAT. § 603-37 (1993).

After the parties have had an opportunity to be heard, a circuit court may, upon satisfactory

proof that a fair and impartial trial cannot be had in any civil case pending in the court or

upon satisfactory proof that it would be more fair and equitable to the parties if any civil

case pending in the court were heard in another jurisdiction, change the venue to some

other circuit. In the alternative, a circuit court may, in its discretion and upon consent of

all the parties to any civil case pending in the court, change the venue to some other circuit

court.

C) Transfer. If a civil case has been brought in the wrong circuit, the circuit court shall

transfer the case to any circuit in which it could have been brought, or if it is in the interest

of justice, dismiss the case. HAW. REV. STAT. § 603-37.5 (1993).

D) Forum non conveniens. The doctrine of forum non conveniens is recognized by Hawaii

common law. Generally, deference is given to the plaintiff’s choice of forum, but if the

court determines that under a balancing test of private and public interest factors that the

balance is strongly in favor of the defendant, the court may grant the defendant’s motion

to transfer venue pursuant to forum non conveniens. Lesser v. Boughey, 88 Haw. 260, 263,

965 P.2d 802, 805 (1998). Hawaii’s courts generally follow the public and private factors

identified in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

NEGLIGENCE

Comparative Fault / Contributory Negligence

A) Modified comparative negligence. Hawaii follows a modified comparative negligence

system in which the court compares the relative fault of the parties when determining

damages. A plaintiff will be barred from recovery if he or she is found to be more than

fifty percent at fault, regardless of any defendant’s negligence. HAW. REV. STAT. § 663-

31 (1993). The recovery of a plaintiff who is found to be fifty percent or less at fault will

be reduced in proportion to his or her degree of fault. Id.

B) Strict liability. Pure comparative negligence, rather than modified comparative

negligence, applies in strict product liability cases. Hao v. Owens-Illinois, Inc., 69 Haw.

231, 236, 738 P.2d 416, 418-19 (1987).

C) Assumption of the risk. Primary assumption of risk is a discrete defense separate from

comparative negligence, but secondary implied assumption of risk is a form of comparative

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negligence to be measured against a defendant’s fault. See Foronda ex rel. Est. of Foronda

v. Haw. Int’l Boxing Club, 96 Haw. 51, 66, 25 P.3d 826, 841 (App. 2001).

D) Last clear chance. Hawaii’s adoption of a comparative negligence statute necessarily

abolished the common law doctrine of “last clear chance.” Rapoza v. Parnell, 83 Haw. 78,

83, 924 P.2d 572, 577 (App. 1996).

Exclusive Remedy—Worker’s Compensation Protections

Hawaii workers’ compensation protections are governed by HAW. REV. STAT. §§ 386-1 to 386-

214 (1993 & Supp. 2011), also known as the Hawaii Workers’ Compensation Law (“HWCL”).

This law was enacted to provide “assured, certain and prompt compensation” to employees who

suffer an injury “arising out of and in the course of employment” and to protect employers from

“vexatious, delaying and uncertain litigation.” Iddings v. Mee-Lee, 82 Haw. 1, 7-8, 919 P.2d 263,

269-70 (1996) (citing Estate of Coates v. Pac. Eng’g, 71 Haw. 358, 364, 791 P.2d 1257, 1260-61

(1990)).

A) Employer-employee relationship. An employer-employee relationship is a prerequisite

under the HWCL. To qualify, the relationship must be entered into deliberately, with the

informed consent of both parties. See, e.g., Potter v. Haw. Newspaper Agency, 89 Haw.

411, 423-24, 974 P.2d 51, 64 (1999) (citing Harter v. Cnty. of Haw., 63 Haw. 374, 378,

628 P.2d 629, 632 (1981)).

B) Arising out of or in the course of employment. In determining whether an injury

“aris[es] out of and in the course of” employment, HAW. REV. STAT. § 386-3 (1993), Hawaii

courts employ a “unitary test” which looks at whether a sufficient work connection exists.

See, e.g., Davenport v. City & Cnty. of Honolulu, 100 Haw. 481, 490, 60 P.3d 882, 891

(2002). This test requires a “causal connection between the injury and any incidents or

conditions of employment.” Id.

1) An injury arises out of and in the course of employment when it takes place: (1)

within the period of employment, (2) at a place where the employee reasonably

may be, and (3) while the employee is fulfilling his or her duties or something

incidental to those duties. Id. (citing Tate v. GTE Hawaiian Tel. Co., 77 Haw. 100,

103-04, 881 P.2d 1246, 1249-50 (1994)).

2) The determination of whether an activity is “incidental to work” looks at whether

the activity is “usual and reasonable, both as to the needs to be satisfied and the

means used to satisfy them.” Id. Therefore, any activity necessary for the employee

to complete his or her “ultimate” work would be compensable. Id.

C) Going and coming rule. Subject to certain exceptions, injuries suffered by employees

while going to or coming from work generally are not covered by the HWCL (“going and

coming rule”). Smith v. State, Dept. of Labor & Indus. Relations, 80 Haw. 150, 154-56,

907 P.2d 101, 105-07 (1995), reconsideration denied, 80 Haw. 187, 907 P.2d 773 (1995).

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1) Premises rule. The “premises” rule is an exception to the general “going and

coming” rule and provides that injuries suffered by employees while going to or

from work are considered to arise out of and in the course of employment if the

injury: (1) occurs on the employer’s premises and (2) the employee’s presence on

the premises was required by the nature of his or her employment. Id.

2) Premises exception. An injury suffered off-premises may qualify under the

“premises” exception when an employee is traveling on a “direct and/or necessary”

route between the employer’s main premises and a parking lot owned, controlled,

or maintained by the employer. Id.

D) Rebuttable presumptions. Unless rebutted by “substantial evidence,” the HWCL creates

the following presumptions with respect to claims for compensation: (1) that the claim is

for a covered work injury; (2) that sufficient notice of such injury has been given; (3) that

the injury was not caused by the intoxication of the injured employee; and (4) that the

injury was not caused by the willful intention of the injured employee to injure oneself or

another. HAW. REV. STAT. § 386-85 (1993).

E) Rebutting presumptions. To rebut an employee’s HWCL claim that an accident is work-

related, an employer must provide substantial evidence that the injury is unrelated to

employment. HAW. REV. STAT. § 386-85 (1993); see, e.g., Kawakami v. City & Cnty. of

Honolulu Bd. of Water Supply, 100 Haw. 285, 288, 59 P.3d 920, 923 (2002).

1) “Substantial evidence.” The term “substantial evidence” signifies a high quantum

of evidence which at minimum must be relevant and credible and of a quality and

quantity sufficient to justify a reasonable person’s conclusion that an injury or death

is not related to work. Miyamoto v. Wahiawa Gen. Hosp., 101 Haw. 293, 310, 67

P.3d 792, 809 (App. 2003).

2) Presumption. The HWCL creates a presumption of compensability and the

employer bears the burden of proof. Tate v. GTE Hawaiian Tel. Co., 77 Haw. 100,

107, 881 P.2d 1246, 1253 (1994). If reasonable doubt as to whether an injury is

work-related exists, the doubt must be resolved in favor of the claimant. Miyamoto,

101 Haw. at 310, 67 P.3d at 809.

F) Exclusivity. The HWCL was intended to be an exclusive avenue for compensation.

Remedies under the Act exclude all other liability —“common law or otherwise”— of the

employer to the employee, the employee’s legal representative, spouse, dependents, next

of kin, or anyone else entitled to recover damages from the employer on account of the

injury. HAW. REV. STAT. § 386-5 (1993).

1) Explicit exceptions. An explicit exception to the exclusive remedy of the HWCL

is made only for claims of sexual harassment or sexual assault, and infliction of

emotional distress or invasion of privacy related to those claims. HAW. REV. STAT.

§ 386-5.

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2) No exception for employment discrimination. While Hawaii courts had begun

to carve out a narrow exception for the intentional tort of employment

discrimination, Furukawa v. Honolulu Zoological Society, 85 Haw. 7, 16-19, 936

P.2d 643, 654-55 (1997); Takaki v. Allied Machinery Corp., 87 Haw. 57, 67-68,

951 P.2d 507, 517-18 (App. 1997), recent decisions have found that there is no

exception for employment discrimination or all intentional torts. Yang v.

Abercrombie & Fitch Stores, 128 Haw. 173, 183, 284 P.3d 946, 956 (App. 2012);

Adams v. Dole Food Co., Inc., 132 Haw. 478, 484, 323 P.3d 122, 128 (App. 2014).

G) Co-worker immunity. Co-workers are immune from suit brought by an employee to

recover for a workplace injury, unless the conduct was “wilful and wanton.” See HAW.

REV. STAT. § 386-8 (1993). “Wilful and wanton misconduct” includes both reckless

conduct that lacks specific intent to cause injury and intentional conduct motivated by

specific intent to cause injury. Iddings v. Mee-Lee, 82 Haw. 1, 12, 919 P.2d 263, 274

(1996).

H) Respondeat superior. Under the theory of respondeat superior, an employer may be liable

for injuries caused by the negligent acts of its employees or its agents, occurring within the

scope of their employment. Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Haw. 433,

438, 879 P.2d 538, 543 (1994).

1) Standard for “scope.” Whether an employee is acting within the scope of his or

her employment is a question of fact. The conduct of an employee is deemed within

the scope of his or her employment if: (1) it is of the kind for which he or she is

employed to perform; (2) it occurs substantially within “the authorized time and

space limits”; and (3) it is actuated at least in part by a purpose to serve the

employer. State v. Hoshijo ex rel. White, 102 Haw. 307, 319-20, 76 P.3d 550, 562-

63 (2003) (citing Wong-Leong, 76 Haw. at 438, 879 P.2d at 543).

An employer may be liable for intentional torts committed by its employees

because the law imposes liability where the employee’s purpose was either wholly

or in part the furtherance of the employer’s business, however misguided. Hoshijo,

102 Haw. at 319 n.27, 76 P.3d at 562 n.27.

Indemnification

With some variations, Hawaii adopts and follows the Uniform Contribution Among Tortfeasors

Act (“UCATA”). HAW. REV. STAT. §§ 663-11 to 663-17.

A) The UCATA allows recovery of either indemnity or contribution, not both. See Am. Broad.

Companies, Inc. v. Kenai Air of Haw., Inc., 67 Haw. 219, 230, 686 P.2d 1, 8 (1984).

B) Applicability. An action for indemnity may commence under three circumstances:

13

1) Third-party. A defendant may bring in a person not a party to the original action

as a third-party defendant if the person is or may be liable to the defendant or the

plaintiff in the case. HAW. REV. STAT. § 663-17(a) (1993 & Supp. 2011).

2) Cross claim. A defendant may file a cross-claim for indemnity against a

codefendant for all or part of a claim in the original action. HAW. REV. STAT. §

663-17(b)(1) (1993 & Supp. 2011).

3) Motion. A defendant may “move for judgment for contribution against any other

joint judgment debtor” where the defendant has paid the judgment in full or has

paid more than his or her pro rata share. HAW. REV. STAT. § 663-17(b)(2) (1993 &

Supp. 2011).

C) For an indemnity cause of action to be valid, an indemnity contract or an independent duty

to indemnify must exist. See Hirasa v. Burtner, 68 Haw. 22, 24, 702 P.2d 772, 774 (1985).

D) Express indemnity. Contracts of indemnity are strictly construed, particularly where the

party claiming indemnity asserts the right to be protected against its own negligence. See

Straub Clinic & Hosp., Inc. v. Chi. Ins. Co., 4 Haw. App. 268, 273, 665 P.2d 176, 179-80

(App. 1983). If an indemnitor is contractually obligated to indemnify against its own

negligence, it is obligated to indemnify for both its sole and concurrent negligence unless

the indemnity contract “clearly and unequivocally” specifies otherwise. Id. at 274, 665

P.2d at 180.

E) Good faith. All settlements of indemnification claims must be reasonable and made in

good faith, even if there is a legal right to settle the claim. See Hawaiian Ins. & Guar. Co.,

Ltd. v. Higashi, 67 Haw. 12, 13, 675 P.2d 767, 769 (1984).

1) Burden of proof. Hawaii courts have held that where an indemnitee settles a case

via express powers within an indemnity agreement that does not require the

establishment of liability or notice to indemnitors, and the agreement was silent as

to which party had burden of proof on those issues, the indemnitee has the burden

of proving those matters by a preponderance of evidence. Id. at 13, 675 P.2d at

770.

2) Totality of the circumstances. The trial court has discretion in determining

whether a settlement is in good faith, and it is responsible for weighing the totality

of the circumstances surrounding the settlement. If appealed, the trial court’s

decision will be reviewed for abuse of discretion. See, e.g., Brooks v. Dana Nance

& Co., 113 Haw. 406, 412, 153 P.3d 1091, 1097 (2007).

Joint and Several Liability

A) In Hawaii, joint and several liability is governed by HAW. REV. STAT. § 663-10.9 (1993 &

Supp. 2011). Under this section, joint and several liability is abolished except in the

following circumstances: (1) recovery of economic damages against joint tortfeasors in

actions involving injury or death to persons; and (2) recovery of economic or noneconomic

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damages against joint tortfeasors in claims involving: intentional torts, torts relating to

environmental pollution, toxic and asbestos-related torts, torts relating to aircraft accidents,

strict and products liability tort, or some torts relating to motor vehicle accidents. HAW.

REV. STAT. § 663-10.9(1)-(2).

1) “Joint tortfeasors” definition. “Joint tortfeasors” are two or more persons jointly

or severally liable in tort for the same injury to a person or property, regardless of

whether judgment has been recovered against all or some of them. HAW. REV.

STAT. § 663-11. A tortfeasor cannot be jointly and/or severally liable with another

unless the injured person can sue and recover from both. Troyer v. Adams, 102

Haw. 399, 402 n.1, 77 P.3d 83, 86 n.1 (2003).

B) Modified comparative negligence. Where a joint tortfeasor’s individual degree of

negligence is adjudged to be less than twenty-five percent, the amount recoverable against

that tortfeasor for noneconomic damages will be in direct proportion to his or her degree

of negligence. HAW. REV. STAT. § 663-10.9(3) (1993 & Supp. 2011).

C) UCATA. Contribution claims in Hawaii are governed by the Uniform Contribution

Among Tortfeasors Act (“UCATA”). HAW. REV. STAT. §§ 663-11 to -17 (1993 & Supp.

2011). Hawaii is one of seven states that retains the substance of the original UCATA.

RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIABILITY § 23, cmt. a (West 2000).

1) Purpose. The purpose of the UCATA is to avoid the injustice of having one joint

tortfeasor pay more than his fair share of damages to an injured claimant. See, e.g.,

Campo v. Taboada, 68 Haw. 505, 507, 720 P.2d 181, 183 (1986).

2) No comparative negligence. In an action for contribution between joint

tortfeasors, comparative negligence does not apply. See Liberty Mut. Ins. Co. v.

Gen. Motors Corp., 65 Haw. 428, 429, 653 P.2d 96, 96 (1982).

3) Cross-claims. Joint tortfeasors must file cross-claims to invoke the right to

contribution in an action where they are co-defendants. See Gump v. Wal-Mart

Stores, Inc., 93 Haw. 417, 422, 5 P.3d 407, 412 (2000).

D) Contribution. The right of contribution exists among joint tortfeasors in Hawaii. HAW.

REV. STAT. § 663-12 (1993). Where two or more persons are subject to liability in tort

arising out of the same injury to person or property, a defendant has a right of contribution

when he or she has paid more than his or her percentage share of the common liability. Id.

E) Settlement. Where a joint tortfeasor reaches a settlement agreement with an injured

claimant, he or she is not entitled to recover contribution from another joint tortfeasor

whose liability to the injured claimant is not extinguished by the settlement. HAW. REV.

STAT. § 663-12 (1993).

F) Disproportionate fault. In situations in which there is disproportionate fault among joint

tortfeasors and equal distribution of the common liability by contribution would be

15

inequitable, the relative degrees of fault of the joint tortfeasors will be considered in order

to determine each tortfeasor’s pro rata share. HAW. REV. STAT. § 663-12 (1993).

1) Non-parties. Non-parties may be considered joint tortfeasors under the UCATA

and may be included on a special verdict form if the trial court deems it appropriate

under the circumstances. See Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 422,

5 P.3d 407, 412 (2000). Three such “appropriate circumstances” were noted in

Gump, involving non-parties that were (1) dismissed because their participation

would destroy jurisdiction, (2) not named because of a bankruptcy stay that was

effective throughout the course of the proceedings, or (3) released from the case

through settlement, but included on the special verdict pursuant to terms of the

release. Id. However, the Hawaii Supreme Court later clarified that, although a

trial court has “discretion” to include, or to decline to include, a non-party on a

special verdict form, it does not, as a matter of law, have the authority to include a

non-party who has not been brought into the case by pleading pursuant to HAW.

REV. STAT. §§ 663–12 and 663–17(c). Moyle v. Y & Y Hyup Shin, Corp., 118 Haw.

385, 398, 191 P.3d 1062, 1075 (2008), as amended (Sept. 11, 2008).

2) Fairness. In cases in which equal contribution among joint tortfeasors would be

unfair, the UCATA allows the most culpable party to sustain a share of the loss that

is commensurate with his degree of fault. Mitchell v. Branch, 45 Haw. 128, 141-

42, 363 P.2d 969, 978 (1961).

G) Recovering a judgment against one joint tortfeasor does not release other joint tortfeasors

from liability to an injured claimant. HAW. REV. STAT. § 663-13 (1993).

H) Petition for Good Faith Determation of Settlement and Consequences of That

Finding.. HAW. REV. STAT. § 663-15.5 sets out a procedure by which a party may petition

the trial court for a determination that a settlement was made in good faith. A good faith

settlement (which may consist of a release, dismissal with or without prejudice, or a

covenant not to sue or not to enforce a judgment) (1) does not discharge any other joint

tortfeasor or co-obligor not released from liability unless its terms so provide; (2) reduce

the claims against the other joint tortfeasor or co-obligor not released in the amount

stipulated by the release, dismissal, or covenant, or in the amount of the consideration paid

for it, whichever is greater; and (3) discharge the party to whom it is given from all liability

for any contribution to any other joint tortfeasor or co-obligor. HAW. REV. STAT. § 663-

15.5(a) (Supp. 2011).

I) Totality of the circumstances. When evaluating whether a settlement was made in good

faith for the purposes of release under HAW. REV. STAT. § 663-15.5 (Supp. 2011), Hawaii

adopts a “totality of the circumstances” approach. This approach requires that several

factors, including the realistic approximation of total damages sought by a plaintiff, the

relative degree of fault of the settling tortfeasors, and any evidence that the settlement is

intended to injure the interests of a non-settling joint tortfeasor, be weighed. Troyer v.

Adams, 102 Haw. 399, 425-27, 77 P.3d 83, 109-11 (2003). Settlement agreements are

deemed not in good faith where a party attempts to accomplish indirectly that which is

16

expressly barred from accomplishing directly. Brooks v. Dana Nance & Co., 113 Haw.

406, 417, 153 P.3d 1091, 1102 (2007).

1) A settlement determined by the court to be made in good faith will bar any other

joint tortfeasor from any further claims against the settling tortfeasor, except those

based on a written indemnity agreement. HAW. REV. STAT. § 663-15.5(d)(1).

2) A settlement deemed by the court to be made in good faith will also result in the

dismissal of all cross-claims filed against the settling joint tortfeasor, except those

based on a written indemnity agreement. HAW. REV. STAT. § 663-15.5(d)(2).

3) Burden. A court determination on the issue of good faith of a settlement agreement

may be appealed. HAW. REV. STAT. § 663-15.5(e). In Hawaii, the burden of

proving that a settlement agreement lacks good faith rests with the challenging

party. HAW. REV. STAT. § 663-15.5(b).

J) Hawaii’s adoption of the UCATA does not abrogate any right of indemnity that exists

under current law. HAW. REV. STAT. § 663-16 (1993).

Strict Liability

A) Hawaii courts recognize strict liability for:

1) Unreasonably dangerous products. Stewart v. Budget Rent-A-Car Corp., 52

Haw. 71, 75, 470 P.2d 240, 243 (1970); and

2) Ultrahazardous activities. Beckstrom v. Hawaiian Dredg. Co., Ltd., 42 Haw. 353,

364 (1958). Courts determine which activities qualify as ultrahazardous for the

purpose of imposing strict liability. In order to prevail on an ultrahazardous activity

claim, however, a plaintiff must establish proximate cause. Akee v. Dow Chem.

Co., 293 F.Supp.2d 1140, 1143 (D. Haw. 2002).

B) Prima facie case. To establish a prima facie claim for strict products liability, the plaintiff

has the burden “to prove (1) a defect in the product which rendered it unreasonably

dangerous for its intended or reasonably foreseeable use; and (2) a causal connection

between the defect and [the] plaintiff’s injuries.” Tabieros v. Clark Equip. Co., 85 Haw.

336, 354, 944 P.2d 1279, 1297 (1997).

1) Proof. Proof of defect and causation may be provided by expert testimony or

by circumstantial evidence. Wagatsuma v. Patch, 10 Haw. App. 547, 566, 879

P.2d 572, 584 (1994).

2) Tests. A plaintiff may establish a defect for purposes of either strict liability or

negligence under three approaches: (1) the “consumer expectation” test; (2) the

“risk-utility” test; and (3) the “latent danger” test. Tabieros, 85 Haw. at 367,

994 P.2d at 1310.

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C) Learned intermediary. Hawaii follows the learned intermediary doctrine. A

manufacturer or distributor of a medical device or prescription drug has no duty to directly

warn consumers of any inherent risk in the product. Manufacturers or distributors are

permitted to rely on the prescribing physician to pass any warnings onto patients, the

ultimate users of the products. See Craft v. Peebles, 78 Haw. 287, 304-06, 893 P.2d 138,

155-57 (1995); see also HAW. CIV. JURY INSTR. § 11.10 (1999).

D) Punitive damages. Punitive damages may be awarded in a products liability action based

on the underlying theory of strict liability where the plaintiff proves the requisite

aggravating conduct on the part of the defendant. Masaki v. Gen. Motors Corp., 71 Haw.

1, 11, 780 P.2d 566, 572-73 (1989).

DISCOVERY

Electronic Discovery Rules

A) Effective January 1, 2015, the discovery provisions in the Hawai‘i Rules of Civil Procedure

were amended to reflect and incorporate most of the 2006 amendments to the Federal Rules

of Civil Procedure relating to the discovery of electronically stored information (“ESI”).

Like all other discoverable material, electronic data is governed by the general discovery

provisions. Under HAW. R. CIV. P. 34(a), discoverable material includes electronically

stored information and “data compilations from which information can be obtained, either

directly or, if necessary, after conversion by the responding party into a reasonably useable

form.”

B) Scope of ESI Discovery. Discovery of ESI is governed by the same standard applicable to

all discovery. HAW. R. CIV. P. 26(b)(1)(A). However, under HAW. R. CIV. P. 26(b)(1)(B),

a party does not need to provide discovery of electronically stored information from

sources that the party identifies as not reasonably accessible because of undue burden or

expense. On motion to compel discovery or for a protective order, the party from whom

discovery is sought must show that the information is not reasonably accessible because of

undue burden or expense. HAW. R. CIV. P. 26(b)(1)(B).

C) Production of Electronically Stored Information. Pursuant to HAW. R. CIV. P. 34(a), a

party may request the production of ESI. A party requesting ESI may specify the form (as

image files, such as TIFFs or PDFs, or in native format) for the production by the opposing

party. If the responding party objects to a requested form, the party must state the form or

forms it intends to use. If a request does not specify a form for producing ESI, a party must

produce it in a form or forms in which it is ordinarily maintained or in which it is reasonably

usable. Absent a showing of good cause, a party need not produce the same documents or

ESI in more than one form. HAW. R. CIV. P. 34(e).

Expert Witnesses

A) Under HAW. R. CIV. P. 26(b)(5), a party may depose any identified expert who is expected

to present their opinions at trial. For non-testifying or consultant experts, a party can obtain

discovery regarding their opinions or facts known to them only upon a showing of

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exceptional circumstances under which it is impracticable for the party seeking discovery

to obtain facts or opinions by other means.

B) Pretrial statements. Expert witnesses must be identified in each party’s pretrial statement.

HAW. R. CIR. CTS. 12(b)(5). Plaintiff’s pretrial statement must be filed within eight months

following the filing of the complaint, unless an extension is granted by the court. HAW. R.

CIR. CTS. 12(b). Defendant’s responsive pretrial statement must be filed 60 days after

Plaintiff’s pretrial statement. HAW. R. CIR. CTS. 12(h).

C) Fees. The party seeking discovery from an identified expert must pay the expert a

reasonable fee for time spent in responding to the discovery unless “manifest injustice

would result.” HAW. R. CIV. P. 26(b)(5)(C). With respect to depositions of non-testifying

experts, the party seeking discovery must pay the other party a fair portion of the fees and

expenses reasonably incurred to obtain facts/opinions from the expert. Id.

D) Disclosure of rebuttal experts. The time for identifying rebuttal expert witnesses is not

specifically addressed in the Hawai‘i Rules of Civil Procedure. However, the general

practice is for the court to set the time for disclosure of rebuttal experts 30 days after initial

disclosure of expert witnesses.

Non-Party Discovery

A) Subpoenas. Under HAW. R. CIV. P. 45, subpoenas for the attendance of non-party

witnesses at trial or at a deposition or the production of documents from non-parties are

issued by the clerk of the circuit court of the circuit in which the action is pending. For

subpoenas for production of documentary evidence, upon motion made within timeframe

specified in subpoena, the court may quash or modify the subpoena if it is unreasonable

and oppressive. HAW. R. CIV. P. 45(b). The court can also order the party issuing the

subpoena to advance the costs of producing the requested material. Id.

a. Service. A subpoena may be served at any place within the State of Hawaii by any

person who is not a party and is not less than 18 years of age. HAW. R. CIV. P.

45(c). Service of a subpoena for the attendance of a non-party witness at trial or at

a deposition should be made by delivering a copy to the person and by tendering to

such person the fees for one day’s attendance and mileage. Id.

b. Responses. If a subpoena does not specify a form for producing documents or

electronically stored information, documents shall be produced in a form in which

it is ordinarily maintained or in which it is reasonably usable. Absent a showing of

good cause, the person responding does not need to produce the same documents

or electronically stored information in more than one form, and does not need to

provide discovery from sources that are not reasonably accessible because of undue

burden or cost. HAW. R. CIV. P. 45(e). If privileged documents are withheld, the

claim of privilege must be expressly made and supported by a description of the

nature of the information or documents withheld. Id. Failure to obey a subpoena

may be deemed contempt of court. HAW. R. CIV. P. 45(f).

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Privileges

A party withholding otherwise discoverable information on the basis of privilege must expressly

make the claim of privilege and describe the nature of the documents, communications, or other

items not produced so that the other parties can assess the applicability of the claimed privilege.

HAW. R. CIV. P. 26(b)(6).

Hawaii recognizes the following privileges:

A) Attorney-client privilege. Codified at HAW. R. EVID. 503(b), the attorney-client privilege

provides that a client “has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating the

rendition of professional legal services to the client.”

To invoke the privilege, the party asserting it must establish:

(1) legal advice was sought;

(2) from a professional legal adviser;

(3) the communications related to that purpose;

(4) the communication was made in confidence; and

(5) the protection has not been waived.

See Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980).

1) Who may claim. The privilege may be claimed by the client, the client’s guardian

or conservator, the personal representative of a deceased client, or the successor,

trustee, or similar representative of a corporation, association, or other organization.

HAW. R. EVID. 503(c). The lawyer must claim the privilege on behalf of the client

unless expressly released by the client. Id.

Crime-fraud exception. Hawaii also recognizes the crime-fraud exception to the

attorney-client privilege. Under HAW. R. EVID. 503(d)(1), no privilege exists if the

legal advice was sought to aid in the commission of a crime or fraud. Similarly,

under HAW. R. EVID. 503(d)(2), no privilege exists for communications reflecting

the client’s intent to commit a crime or fraudulent act that the lawyer reasonably

believes is likely to result in death or substantial bodily harm, or in substantial

injury to the financial interests or property of another.

B) Work product doctrine. A limited privilege for work product materials is recognized

under HAW. R. CIV. P. 26(b)(4). A party can obtain work product materials upon a showing

of “substantial need” of the materials and that the party is unable without “undue hardship”

to obtain the information by other means. Id. In ordering discovery of such materials, the

court shall “protect against disclosure of the mental impressions, conclusions, opinions, or

legal theories of an attorney or other representative of a party concerning the litigation.”

Id.

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C) Other privileged communications include:

1) Physician-patient privilege, HAW. R. EVID. 504 (protecting communications made

for the purpose of diagnosis or treatment of the patient’s physical, mental, or

emotional condition).

2) Psychologist-client privilege, HAW. R. EVID. 504.1 (protecting communications

made for the purpose of diagnosis or treatment of the client’s mental or emotional

condition, including substance addiction or abuse).

3) Spousal privilege, HAW. R. EVID. 505 (protecting private communications between

spouses).

4) Victim-counselor privilege, HAW. R. EVID. 505.5 (protecting communications

made to a victim counselor for the purpose of counseling or treatment of the victim

of abuse).

5) Communications to clergy, HAW. R. EVID. 506 (protecting communications to a

member of the clergy).

6) Privilege against self-incrimination. HAW. R. EVID. 509 recognizes the privilege

to refuse to disclose any matter that may tend to incriminate the person to the extent

that such privilege exists under the U.S. or Hawaii Constitution.

7) Informant privilege. State actors possess a privilege to refuse to disclose the

identity of informants under HAW. R. EVID. 510.

8) Self critical analysis. Hawaii courts have not yet addressed whether “self critical

analysis” is an appropriately recognized privilege. However, given that the Ninth

Circuit and other state courts within this circuit have rejected the privilege, it is not

likely Hawaii courts would recognize this novel privilege. See Union Pac. R.R. Co.

v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000).

Requests for Admission

A) Written requests for admission are permitted for any discoverable matter that relates to

statements or opinions of fact or the application of law to fact, including the genuineness

of any documents. HAW. R. CIV. P. 36.

B) Responses. The matter is deemed admitted unless, within 30 days after service of the

request, the responding party serves a written answer or objection. HAW. R. CIV. P. 36.

The answer or objection must specifically deny the matter or set forth in detail the reasons

why the answering party cannot truthfully admit or deny the matter. Id. The responding

party has an obligation to seek out information sufficient to respond to the matter and

cannot state “lack of information or knowledge” as a reason for failure to admit or deny

21

unless the party states that it has made reasonable inquiry and the information known by

the party is insufficient to enable the party to admit or deny. Id.

C) Consequences. Any matter admitted pursuant to a request is conclusively established

unless the court on motion permits withdrawal or amendment of the admission. HAW. R.

CIV. P. 36(b).

D) Expenses. If, in response to a request for admissions, a party fails to admit the genuineness

of any document or the truth of any matter as requested under Rule 36, and if the party

requesting the admissions thereafter proves the genuineness of the document or the truth

of the matter, the requesting party may apply to the court for an order requiring the other

party to pay the reasonable expenses incurred in making that proof, including reasonable

attorney's fees. HAW. R. CIV. P. 37(c)(2).

EVIDENCE, PROOFS & TRIAL ISSUES

Accident Reconstruction

A) Hawaii allows the use of tests or experiments for accident reconstruction purposes. The

judge has discretion of whether or not to allow the tests or experiments as evidence at trial.

Loevsky v. Carter, 70 Haw. 419, 426-28, 773 P.2d 1120, 1125-26 (1989).

B) Test or experiments used to reenact the original event. “‘When a test or experiment is

an attempt to reenact the original happening, the essential elements of the experiment must

be substantially similar to those existing at the time of the accident.’” Loevsky, 70 Haw. at

426, 773 P.2d at 1125 (quoting Carr v. Suzuki Motor Co., 280 Ark. 1, 3, 655 S.W.2d 364,

365 (1983)).

C) Test or experiments used as illustrations of the principals involved.

1) Illustrations. “Films or videotapes of experiments by an accident

reconstructionist, physicist, engineer, or other witness qualified as an expert on the

cause of accidents, offered merely to illustrate the principles used in forming an

opinion, do not require strict adherence to the facts and are admissible in evidence,

provided such films or tapes are not misleading in and of themselves and provided

it is made clear that they are offered only as illustrations of the principles involved.”

Loevsky, 70 Haw. at 428, 773 P.2d at 1126 (quoting 3 C. Scott, Photographic

Evidence, §1317 (2d. ed. Supp. 1987)).

2) Prejudice. To determine if the films or videotapes are prejudicial or misleading,

“the trial court must view the tape to determine what ‘lasting visual impression’ the

contents of the tape will create for the jury and the ‘logical inference’ to which this

impression will lead. Lau v. Allied Wholesale, Inc., 82 Haw. 428, 437, 922 P.2d

1041, 1050 (App. 1996) (quoting Loevsky v. Carter, 70 Haw. 419, 428, 773 P.2d

1120, 1126 (1998)). The court must then determine whether the videotape is really

just an attempt to recreate the accident under conditions favorable to the party

22

submitting the tape as evidence. Lau, 82 Hawaii at 437, 992 P.2d at 1050 (quoting

Loevsky, 70 Haw. at 428, 773 P.2d at 1126).

D) Admissibility. Hawaii courts will also look at the Hawai‘i Rules of Evidence to determine

the admissibility of accident reconstruction evidence. See, e.g., State v. Pauline, 100 Haw.

356, 60 P.3d 306 (2002). Under HAW. R. EVID. 702 and 703, the court may look at the

trustworthiness and reliability of the scientific technique or mode of analysis used by an

expert. HAW. R. EVID. 702, 703. The Court can refuse to allow expert testimony if it feels

the underlying technique or mode of analysis is untrustworthy or unreliable. Id. In Pauline,

the Court held that a videotape of a reconstruction of an accident based on a computer

simulation could be withheld as evidence under Rules 702 and 703 if the Court found that

the computer simulation technique used to create the videotape was untrustworthy or

unreliable. Pauline, 100 Haw. at 369-71, 60 P.3d at 319-21.

Appeal

A) Final orders. Generally, appeals are permitted in civil matters only from final judgments

of the circuit, district, and land courts. HAW. REV. STAT. §641-1(a) (1993 & Supp. 2011).

A judgment, order, or decree is final and appealable if it “ends the litigation by fully

deciding all rights and liabilities of all parties, leaving nothing further to be adjudicated.”

Casumpang v. ILWU, Local 142, 91 Haw. 425, 426, 984 P.2d 1251, 1252 (1999).

However, exceptions to this rule include interlocutory orders, the collateral order doctrine,

and the Forgay doctrine.

1) Interlocutory orders. At the court’s discretion, an appeal may be taken from

an interlocutory order if the appeal would result in the speedy determination of

the litigation. HAW. REV. STAT. § 641-1(b) (1993). An “interlocutory order” is

one made between the commencement and the end of a suit that does not fully

decide one or more claims or the rights and liabilities of one or more parties.

Knauer v. Foote, 101 Haw. 81, 84 n.5, 63 P.3d 389, 392 n.5 (2003). The court’s

refusal to allow an appeal from an interlocutory order is not reviewable. HAW.

REV. STAT. § 641-1(b).

2) Collateral orders. Certain collateral orders are immediately appealable if the

order (1) conclusively determines the disputed action; (2) resolves an important

issue completely separate from the merits of the actions; and (3) is effectively

unreviewable on appeal from a final judgment. In re Adam, 105 Haw. 507, 516

n.4, 100 P.3d 77, 86 n.4 (App. 2004).

3) Forgay doctrine. Hawaii also recognizes the Forgay doctrine, which provides

for immediate appeal of any order for execution upon property if the losing

party would suffer irreparable injury if appellate review had to await the final

outcome of the litigation. Ditto v. McCurdy, 90 Haw. 345, 351, 978 P.2d 783,

789 (1999).

B) Notice of appeal. Notice of appeal must be filed within 30 days after entry of the judgment

or the appealable order. HAW. R. APP. P. 4. Upon a showing of good cause, the court or

23

agency appealed from may extend the time for filing a notice of appeal for not longer than

30 days past the prescribed time. Id.

Scientific and Technical Evidence / Testimony by Experts

A) Daubert instructive. Hawaii courts have expressly refrained from adopting the Daubert

test for evaluating expert testimony under Hawaii Rule of Evidence 702. State v. Vliet, 95

Haw. 94, 105, 19 P.3d 42, 53 (2001). However, Hawaii courts have held that factors

enumerated in Daubert and its progeny are instructive (but not binding) because Hawaii’s

Rule 702 is patterned on the federal rule. Id.

B) Standard. The critical inquiry with respect to expert testimony is whether such testimony

“will assist the trier of fact to understand the evidence or to determine a fact in issue . . . ”

HAW. R. EVID. 702. Generally, in order to so assist the jury an expert must base his or her

testimony upon a sound factual foundation; any inference or opinions must be the product

of an explicable and reliable system of analysis; and such opinions must add to the common

understanding of the jury. See HAW. R. EVID. 703. The Hawaii Supreme Court has

identified five factors to consider in evaluating whether expert testimony is both relevant

and reliable:

(1) the evidence will assist the trier of fact to understand the evidence or to

determine a fact in issue;

(2) the evidence will add to the common understanding of the jury;

(3) the underlying theory is generally accepted as valid;

(4) the procedures used are generally accepted as reliable if performed properly;

and

(5) the procedures were applied and conducted properly in the present instance.

State v. Pauline, 100 Haw. 356, 370, 60 P.3d 306, 320 (2002) (citations omitted).

Collateral Source Rule

Hawaii adheres to the “collateral source rule,” which provides that payments received on behalf

of a plaintiff from an independent source will not diminish recovery from the wrongdoer. Bynum

v. Magno, 106 Haw. 81, 86, 101 P.3d 1149, 1154 (2004).

Convictions

Evidence that the witness has been convicted of a crime cannot be used to impeach a witness unless

the crime involves dishonesty. HAW. R. EVID. 609.

Day in the Life Videos

The admissibility of “day in the life” videos has not been specifically addressed in Hawaii case

law. Such videos are used at trial, subject to the Hawai‘i Rules of Evidence.

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Dead Man’s Statute

The Hawaii Supreme Court has expressly rejected the application of the so-called “dead man’s

statute,” holding that statements made by a deceased may be admissible if the proponent of the

statement demonstrates that it was made in good faith, upon personal knowledge, and with clear

recollection, unless other circumstances were present indicating a clear lack of trustworthiness.

Hew v. Aruda, 51 Haw. 451, 455-58, 462 P.2d 476, 479-80 (1969).

Medical Bills

A) Standard. A plaintiff must show that the medical services obtained were “necessary and

the charges were reasonable” for the injuries sustained. Bynum v. Magno, 106 Haw. 81,

86-87, 101 P.3d 1149, 1154-55 (2004).

B) Reasonable value. Plaintiff can recover the “reasonable value” of medical services

regardless of the actual expenditures made or obligations incurred. Bynum, 106 Haw. at

87, 101 P.3d at 1155.

The collateral source rule (see above) prevents the reduction of damages to the discounted

amount actually paid. Bynum, 106 Haw. at 89, 101 P.3d at 1157.

Medical bills are admissible to show the reasonable value of a plaintiff’s medical services.

Bynum, 106 Haw. at 89, 101 P.3d at 1157.

Offers of Judgment

A) Any party may serve upon any adverse party an offer of settlement or judgment. Such

offer can be made at any time, so long as it is at least 10 days prior to trial. If the judgment

finally obtained by the adverse party is not more favorable than the offer, the adverse party

must pay the costs incurred after making the offer. An offer not accepted within 10 days

after receipt is deemed withdrawn and evidence of the offer is not admissible except in a

proceeding to determine costs. HAW. R. CIV. P. 68.

B) Relationship with Federal Rules. Before 1999, Hawai‘i Rule of Civil Procedure 68 was

virtually identical to its federal counterpart. In 1999, however, the Hawaii legislature

amended Rule 68 to allow for “any party” to serve an offer of settlement or judgment, not

just “a party defending against a claim” as provided for in the federal rules. HAW. R. CIV.

P. 68.

Objections and Offers of Proof

A) Objections. An attorney must state the specific ground for the objection or basis for the

motion to strike in order to preserve a claim of error on appeal. HAW. R. EVID. 103(a)(1).

B) Offers of proof. If evidence has been excluded, an attorney may provide an offer of proof

to explain what the evidence would have shown had it been allowed in order to preserve a

claim of error on appeal. HAW. R. EVID. 103(a)(2).

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C) Substantial rights. A court’s decision to admit or exclude evidence is given deference on

appeal unless the decision affects a substantial right of the party and the court is clearly

apprised of the nature of the claimed error and of the corrective action sought. HAW. R.

EVID. 103(a).

Prior Accidents

A) Evidence of prior accidents may be highly probative on material issues of a negligence or

strict liability action for limited purposes. Tabieros v. Clark Equip. Co., 85 Haw. 336, 378,

944 P.2d 1279, 1321 (1997). Evidence of other similar accidents or occurrences may be

relevant circumstantially to show a dangerous condition, notice, or causation. Id.

B) Substantial similarity. For evidence of previous accidents to be admissible, the proponent

must show that the circumstances of the prior accidents were the same or substantially

similar to the event in question. Id.

Relationship to the Federal Rules of Evidence

While Hawaii has codified its own Rules of Evidence, to the extent Hawaii’s Rules of Evidence

are similar to their federal counterparts, “interpretations of the federal rule by treatises and cases

are instructive.” Ranches v. City & Cnty. of Honolulu, 115 Haw. 462, 468 n.8, 168 P.3d 592, 598

n.8 (2007).

Seat Belt and Helmet Use Admissibility

Evidence of a party’s failure to wear a helmet or a seatbelt has been held not relevant under Hawaii

Rule of Evidence 401 and therefore is inadmissible under Hawai‘i Rule of Evidence 402. Kealoha

v. Cnty. of Haw., 74 Haw. 308, 322, 844 P.2d 670, 677 (1993).

Spoliation of Evidence

A) Hawaii courts have “wide-ranging authority to impose sanctions for the spoliation of

evidence.” Stender v. Vincent, 92 Haw. 355, 362, 992 P.2d 50, 57 (2000). In addition to

the discovery sanctions available under HAW. R. CIV. P. 37(b), the court can “fashion a

remedy to cure prejudice suffered by one party as a result of another party’s loss or

destruction of critical evidence” even in the absence of specific statutory remedies.

Richardson v. Sport Shinko, 76 Haw. 494, 507-08, 880 P.2d 169, 182-83 (1994). A finding

of bad faith is not necessary for the court to impose spoliation sanctions. Stender, 92 Haw.

at 364, 992 P.2d at 59.

B) Remedies. Possible remedies under HAW. R. CIV. P. 37(b) for spoliation of evidence

include:

1) Default judgment. Dismissal is an available sanction when a party has engaged

deliberately in deceptive practices that undermine the integrity of judicial

proceedings.

26

2) Adverse inference. A court may instruct a jury that it may draw an inference

adverse to the party responsible for destroying relevant evidence. See, e.g., Stender,

92 Haw. at 365, 992 P.2d at 60.

3) Rebuttable presumption. The court may apply a rebuttable presumption, shifting

the burden of proof to the party who is responsible for spoliation of evidence.

4) Civil discovery sanctions. Such sanctions include excluding certain evidence,

deeming certain facts established for the purposes of the action, prohibiting the

destroying party from asserting certain defenses, or monetary sanctions.

5) Attorney’s fees. An assessment of attorney’s fees for spoliation of evidence is

within the court’s inherent power.

C) Electronically Stored Information. Absent exceptional circumstances, a court may not

impose sanctions on a party for failing to provide electronically stored information lost as

a result of the routine, good-faith operation on an electronic information system. HAW. R.

CIV. P. 37(f).

D) Independent cause of action. The Hawaii Supreme Court has expressly declined to

resolve whether Hawaii would recognize the tort of intentional and/or negligent spoliation

of evidence as an independent cause of action. Matsuura v. E.I. du Pont de Nemours &

Co., 102 Haw. 149, 169, 73 P.3d 687, 707 (2003).

Subsequent Remedial Measures

Evidence of subsequent remedial measures is not admissible to prove negligence or culpable

conduct in connection with an event. HAW. R. EVID. 407. However, such evidence may be

admitted for another purpose, such as proving a dangerous defect in products liability cases,

ownership, control, feasibility of precautionary measures, or impeachment. See, e.g., Stewart v.

Budget Rent-a-Car Corp., 52 Haw. 71, 75, 470 P.2d 240, 243 (1970).

Use of Photographs

Original photographs are admissible when relevant and properly verified under Hawai‘i Rules of

Evidence 901 and 1002. Generally, verification requires the testimony of a witness who is able to

testify foundation that the photo is a substantially accurate representation of the thing being

depicted. See, e.g., Territory of Haw. v. Hays, 43 Haw. 58, 1958 WL 9947 (Haw. Terr. 1958).

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DAMAGES

Cap on Damages

Hawaii has a single, narrowly tailored cap on damages for pain and suffering in personal injury

cases. Pain and suffering awards are limited to $375,000. HAW. REV. STAT. § 663-8.7 (1993);

HAW. REV. STAT. § 663-8.5(b) (1993). This limitation does not apply in cases involving:

intentional torts; torts relating to environmental pollution; toxic and asbestos-related torts; torts

relating to aircraft accidents; strict and products liability torts; and torts relating to certain motor

vehicle accidents. HAW. REV. STAT. §§ 663-8.7, -10.9(2) (1993).

Calculation of Damages

A) In Hawaii, pursuant to HAW. REV. STAT. § 663-8.5(a) (1993), a plaintiff bringing a cause

of action for personal injuries may recover for various damages including:

1) Pain and suffering;

2) Mental anguish;

3) Disfigurement;

4) Loss of enjoyment of life;

5) Loss of consortium; and

6) All other nonpecuniary losses or claims.

B) Economic and noneconomic damages. Generally, personal injury damages may be

categorized as either economic or noneconomic. Economic damages, known as special

damages, include losses such as medical and hospital expenses that can be estimated and

monetarily compensated. See Kienker v. Bauer, 110 Haw. 97, 100 n.4, 129 P.3d 1125,

1128 n.4 (2006). Noneconomic damages, known as general damages, include pain and

suffering and “cannot be measured definitively in monetary terms.” Dunbar v. Thompson,

79 Haw. 306, 315, 901 P.2d 1285, 1294 (App. 1995). They include damages for pain and

suffering, mental anguish, disfigurement, loss of enjoyment of life, loss of consortium, etc.

HAW. REV. STAT. § 663-8.5(a) (1993).

Available Items of Personal Injury Damages

A) Past medical bills. A plaintiff may recover damages from past medical bills. Hawaii

courts allow a plaintiff injured by the tortious conduct of a defendant to recover the

reasonable value of medical services. See Bynum v. Magno, 106 Haw. 81, 92, 101 P.3d

1149, 1160 (2004). This amount is not limited to the expenditures actually paid by

insurance companies or programs such as Medicaid/Medicare. Id. In actions to recover

medical expenses caused by a defendant’s negligence, a plaintiff must show that the

28

medical services obtained for any injuries sustained were necessary and that the charges

were reasonable. Id. at 86-87, 101 P.3d at 1154-55.

B) Future medical bills. Future medical bills are considered economic damages and are

recoverable under Hawaii law. See Kometani v. Heath, 50 Haw. 89, 95, 431 P.2d 931, 936

(1967) (affirming that it was proper for the jury to consider the “reasonable value” of future

medical expenses).

C) Hedonic damages. A plaintiff may recover for hedonic damages in tort cases. See HAW.

REV. STAT. § 663-8.5 (1993). The Hawaii Supreme Court defines hedonic damages as

monetary awards intended to compensate “for the loss of enjoyment of life, or for the value

of life itself, as measured separately from the economic productive value that an injured or

deceased person would have had.” Montalvo v. Lapez, 77 Haw. 282, 284 n.2, 884 P.2d

345, 347 n.2 (1994) (quoting BLACK’S LAW DICTIONARY 391 (6th ed. 1990)).

D) Increased risk of harm. No Hawaii appellate court opinion or statute clearly addresses

this issue.

E) Disfigurement. A plaintiff may recover for disfigurement under Hawaii law. HAW. REV.

STAT. § 663-8.5(a) (1993).

F) Loss of normal life. No Hawaii appellate court opinion or statute clearly addresses this

issue.

G) Disability. Hawaii law allows recovery for damages where an injured plaintiff suffers

disability as a result of a defendant’s actions. See, e.g., Bachran v. Morishige, 52 Haw. 61,

65, 469 P.2d 808, 811 (1970).

H) Past pain and suffering. Past pain and suffering is considered a recoverable damage if

there is sufficient evidence to prove a physical injury. See Bachran, 52 Haw. at 68, 469

P.2d at 813.

I) Future pain and suffering. Hawaii law requires that damages for future pain and

suffering be awarded only when reasonably probable. Expert testimony is necessary to

show future pain and suffering where an injury is subjective in nature. See Larsen v.

Pacesetter Systems, Inc., 74 Haw. 1, 44-47, 837 P.2d 1273, 1294-96 (1992). Subjective

injuries differ from objective injuries in that the latter manifests physically, in a form

observable to others. See id. Laypeople cannot infer with reasonable certainty future pain

and suffering resulting from subjective injuries. Id.

J) Loss of society. Loss of society is a recoverable damage under Hawaii’s wrongful death

statute. HAW. REV. STAT. § 663-3 (1993).

K) Lost income, wages, earnings. A plaintiff may recover for loss or impairment of earning

capacity and future earnings. HAW. REV. STAT. § 663-8.3(a) (1993). The effect of probable

taxes must be considered when calculating awards of future earnings. Id.

29

Mitigation

A) A plaintiff has a duty to mitigate, or minimize, his or her damages under contract and tort

law. See Tabieros v. Clark Equip. Co., 85 Haw. 336, 373, 944 P.2d 1279, 1316 (1997)

(citing Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d 1265, 1271 (1975)).

B) Treatment. An injured plaintiff must obtain reasonable treatment and follow the advice

of a competent physician in order to mitigate damages. Tabieros, 85 Haw. at 373, 944 P.2d

at 1316 (citation omitted). An injured plaintiff will not be awarded damages that could

have been prevented had he or she submitted to reasonable treatment to improve his or her

condition. Id. This includes injuries that are aggravated by a plaintiff’s refusal to follow

the directions of his or her competent physician. Id.

C) Factors. Several factors are considered when courts decide whether an injured plaintiff

has met his or her duty to mitigate. For example, the mere fact that a plaintiff’s scar may

have been reduced in size by plastic surgery was not sufficient to hold that a plaintiff acted

unreasonably in not undergoing the surgery. See Franco v. Fujimoto, 47 Haw. 408, 427-

29, 390 P.2d 740, 751-53 (1964), overruled in part on other grounds by Barretto v. Akau,

51 Haw. 461, 463 P.2d 917, 293-94 (1969). Factors including cost of the operation,

resulting inconvenience, and recommendation by a medical expert are considered in such

an analysis. Id.

D) Burden. The burden of proving that mitigation is possible and that the injured plaintiff

failed to take reasonable steps to mitigate his or her damages rests upon the defendant.

Tabieros, 85 Haw. at 373, 944 P.2d at 1316.

Punitive Damages

A) Purpose. Punitive damages are generally defined as damages awarded “for the purpose of

punishing the defendant for aggravated or outrageous misconduct” and as a deterrence

measure against future, similar conduct. Masaki v. Gen. Motors Corp., 71 Haw. 1, 6, 780

P.2d 566, 570 (1989).

B) Standard. To recover punitive damages, with clear and convincing evidence, an injured

plaintiff must prove that the defendant has acted: (1) “wantonly or oppressively or with

such malice as implies a spirit of mischief or criminal indifference to civil obligations;” (2)

in willful misconduct; or (3) with a “conscious indifference to consequences.” Masaki, 71

Haw. at 16-17, 780 P.2d at 575.

C) Mental state. When determining whether an award of punitive damages is appropriate,

the primary consideration is the defendant’s mental state. Masaki, 71 Haw. at 7, 780 P.2d

at 570-71. The nature of a defendant’s conduct is a secondary consideration. Id. An award

of punitive damages always requires a “positive element of conscious wrongdoing.” Id.

(citing MCCORMICK, HANDBOOK ON THE LAW OF DAMAGES § 77, at 280 (1935)).

D) Punitive Damages Against a Corporation. Furthermore, under Hawaii law, punitive

damages may be recovered against a corporate defendant only if the corporation, through

30

an officer, expressly or impliedly authorized or ratified its agent’s tortious act. Bulgo v.

Munoz, 853 F.2d 710, 716 (9th Cir. 1988); Jenkins v. Whittaker Corp., 551 F.Supp. 110,

112 (D. Haw. 1982); Baldwin v. Hilo Tribune-Herald, Ltd., 32 Haw. 87, 106-09 (1931);

Chin Kee v. Kaeleku Sugar Co., Ltd., 29 Haw. 524, 537 (1926). Any such authorization or

ratification must come from “officers or any other person actually wielding the executive

power of the corporation.” Kealoha v. Halawa Plantation Ltd., 24 Haw. 579, 588 (1918),

quoted in Chin Kee, 29 Haw. at 537.

Recovery of Pre- and Post-Judgment Interest

A) Prejudgment interest. Prejudgment interest is governed by HAW. REV. STAT. § 636-16

(2008). Prejudgment interest compensates a prevailing party for the injustice of a long

delay in judgment for any reason, including inevitable litigation delays. See Metcalf v.

Voluntary Employees’ Ben. Ass’n of Haw., 99 Haw. 53, 61, 52 P.3d 823, 831 (2002). It is

compensatory in nature and courts are allowed to designate the date on which the interest

may commence. Id.; see also Roxas v. Marcos, 89 Haw. 91, 153, 969 P.2d 1209, 1271

(1998). Prejudgment interest is wholly separate from punitive damage awards. Calleon v.

Miyagi, 76 Haw. 310, 321-22, 876 P.2d 1278, 1289-90 (1994).

B) Post-judgment interest. Post-judgment interest, like prejudgment interest, is governed by

HAW. REV. STAT. § 636-16 (2008). It should be granted from the date judgment was

entered in any civil suit. Richards v. Kailua Auto Mach. Service, Inc., 10 Haw. App. 613,

624-25, 880 P.2d 1233, 1239 (1994). In a case involving the State, the post-judgment

interest award began to accrue upon the final judgment on appeal, not the date on which

the circuit court entered its judgment. Taylor-Rice v. State, 105 Haw. 104, 112, 94 P.3d

659, 667 (2004).

C) Limits. Both prejudgment and post-judgment interest awards are limited to ten percent

per year. HAW. REV. STAT. § 478-3. It may be awarded no earlier than the date when the

injury first occurred in tort or the date when the breach first occurred in contract. HAW.

REV. STAT. § 636-16 (2008).

Recovery of Attorneys’ Fees

A) Costs and fees are governed, in part, by Chapter 607 of the Hawaii Revised Statutes.

B) The losing party to an action may be obligated to pay the prevailing party’s attorneys’ fees

where required by statute, stipulation, or agreement, and only reasonable attorneys’ fees

will be allowed. See, e.g., Ranger Ins. Co. v. Hinshaw, 103 Haw. 26, 31, 79 P.3d 119, 124

(2003).

C) Burden. A party seeking attorneys’ fees bears the burden of showing that the fees are

reasonable and that they were reasonably and necessarily incurred. See Smothers v.

Renander, 2 Haw. App. 400, 408-9, 633 P.2d 556, 563 (1981).

D) Specific grounds. The trial court had discretion in determining reasonableness of

attorneys’ fees, but generally, judges must specify the grounds upon which attorneys’ fees

31

are awarded. See Porter v. Hu, 116 Haw. 42, 67, 169 P.3d 994, 1019 (App. 2007). The

grant or denial of attorneys’ fees is reviewed under the abuse of discretion standard. See,

e.g., Maui Tomorrow v. State, Bd. of Land & Nat’l Res., 110 Haw. 234, 242, 131 P.3d 517,

525 (2006).

E) Reasonable fee. In Hawaii, there is a strong presumption that the lodestar amount—the

number of hours counsel spent on a case multiplied by counsel’s hourly rate—represents

the reasonable fee for an attorney. See Schefke v. Reliable Collection Agency, Ltd., 96

Haw. 408, 444 n.17, 32 P.3d 52, 87 n.17 (2001). Trial judges are considered experts,

however, and the amount of attorneys’ fees awarded is within the discretion of the court.

See Stanford Carr Dev. Corp. v. Unity House, Inc., 111 Haw. 286, 306, 141 P.3d 459, 479

(2006).

F) Assumpsit actions. Attorneys’ fees shall be paid by the losing party in all actions in the

nature of assumpsit, on a promissory note or other written contract that provides for

attorneys’ fees, provided that the court determines the fees to be reasonable and the fees do

not exceed 25% of the judgment. HAW. REV. STAT. § 607-14. However, attorneys’ fees

shall not be limited to 25% of the judgment in debt recovery actions or enforcement of

governing documents by community associations, or the foreclosure of a lien. Id.

G) Frivolous claims. The court may assess attorneys’ fees and costs against a party, whether

or not the party was a prevailing party, if it determines that all or a portion of the party’s

claims or defenses were frivolous and not reasonably supported by the facts and the law.

HAW. REV. STAT. § 607-14.5.

Settlements Involving Minors

Court approval is required to secure a settlement involving minors. See Leslie v. Estate of Tavares,

91 Haw. 394, 401-03, 984 P.2d 1220, 1227-29 (1999). Judges must scrutinize settlement

agreements to ensure appropriateness, fairness, and enforceability. See In re Doe, 90 Haw. 200,

211, 978 P.2d 166, 177 (App. 1999); see also Leslie, 91 Haw. at 401-03, 984 P.2d 1227-29. The

courts have a duty to insure the continuing well-being of minors whenever the minor is a party to

litigation, or when the minor is involved in “a proceeding directly relating to his well-being.”

Blackshear v. Blackshear, 52 Haw. 480, 482, 478 P.2d 852, 854 (1971).

Taxation of Costs

HAW. REV. STAT. § 607-9 (1993) governs taxation of costs. A presumption exists that a prevailing

party may be awarded its costs; the burden of showing that particular cost requests are

unreasonable rests upon the opposing party. See Wong v. Takeuchi, 88 Haw. 46, 53, 961 P.2d 611,

618 (1998); see also HAW. R. CIV. P. 54(d). Costs eligible for taxation include, but are not limited

to, “intrastate travel expenses for witnesses and counsel, expenses for deposition transcript

originals and copies, and other incidental expenses, including copying costs, intrastate long

distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable

by the court.” HAW. REV. STAT. § 607-9 (1993). Courts may consider “the equities of the

situation” when determining whether and what costs should be taxed. Id.

32

Unique Damages Issues

A) Awarding both treble and punitive damages for the same act is considered improper double

recovery; a plaintiff may receive treble damages or punitive damages, whichever is greater.

Han v. Yang, 84 Haw. 162, 177, 931 P.2d 604, 619 (App. 1997).

B) Hawaii allows plaintiffs to file suit for emotional distress damages arising from property

damage, but only in instances where the emotional distress results in physical injury or

mental illness of the person whose property is damaged or destroyed. HAW. REV. STAT. §

663-8.9 (1993).

C) Loss-of-use damages are awarded in order “to provide reasonable compensation for

inconvenience or monetary loss suffered during the time required for repair of damaged

property.” Fukida v. Hon/Haw. Serv. & Repair, 97 Haw. 38, 44-45, 33 P.3d 204, 210-11

(2001). Such recovery is generally limited to “the period of time reasonably necessary to

obtain a replacement.” Id.

This Compendium outline contains a brief overview of certain laws concerning various

litigation and legal topics. The compendium provides a simple synopsis of current law and

is not intended to explore lengthy analysis of legal issues. This compendium is provided for

general information and educational purposes only. It does not solicit, establish, or continue

an attorney-client relationship with any attorney or law firm identified as an author, editor,

or contributor. The contents should not be construed as legal advice or opinion. While every

effort has been made to be accurate, the contents should not be relied upon in any specific

factual situation. These materials are not intended to provide legal advice or to cover all

laws or regulations that may be applicable to a specific factual situation. If you have matters

or questions to be resolved for which legal advice may be indicated, you are encouraged to

contact a lawyer authorized to practice law in the state for which you are investigating and/or

seeking legal advice.