IN THE INTERMEDIATE COURT OF APPEALS



OF THE STATE OF HAWAI'I



--oOo--





MUALLA ATAHAN, Individually, and MUALLA ATAHAN and STUART M. COWAN, as Guardian Ad Litem of NEJAT ATAHAN, a quadriplegic adult; AHMET ATAHAN, BAHAR ATAHAN, GULPERI ATAHAN, Plaintiffs-Appellants, v. HIDEHIRO MURAMOTO, Defendant-Appellee, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; ROE "NON-PROFIT" CORPORATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10, Defendants





NO. 21073





APPEAL FROM THE SECOND CIRCUIT COURT



(CIV. NO. 96-0227(3))





JUNE 3, 1999





BURNS, C.J., ACOBA, J., AND CIRCUIT JUDGE

WILFRED K. WATANABE, IN PLACE OF WATANABE, J., RECUSED





OPINION OF THE COURT BY BURNS, C.J.

Plaintiffs-Appellants (Plaintiffs) appeal from the circuit court's September 23, 1997 "Judgment By: Order Granting Defendant Hidehiro Muramoto's Motion for Summary Judgment Filed August 20, 1997." We affirm.

This opinion decides that when "A" parks his car on beachfront land owned by "B" and then walks on "B's" land to the public beach and along the public beach fronting "B's" neighbor's land to the public beach fronting the neighbor of "B's" neighbor's land and then goes into the ocean and is injured, Hawai'i Revised Statutes (HRS) chapter 520 (1993) abolishes any duty with respect to "A's" recreational use of the beach and the ocean that "B" may otherwise owe to "A."

PARTIES

Plaintiffs include the following residents of Turkey: Nejat Atahan (Nejat), husband, father, and incapacitated adult; Mualla Atahan (Mualla), wife, mother, and Co-Guardian Ad Litem and Co-Guardian of the Property of Nejat; and Bahar Atahan (Bahar), daughter.

Plaintiffs include the following residents of the state of New York: Ahmet Atahan (Ahmet), son; and Gulperi Atahan (Gulperi), daughter.

Plaintiffs include the following resident of the state of Hawai'i: Stuart M. Cowan (Cowan), Co-Guardian Ad Litem and Co-Guardian of the Property of Nejat.

Defendant-Appellee Hidehiro Muramoto (Muramoto) is a resident of Japan.

STANDARD OF REVIEW

An appellate court reviews an award of summary judgment under the same standard applied by the circuit court. Kaiama v. AIG Hawai'i Ins. Co., Inc., 84 Hawai'i 133, 134-35, 930 P.2d 1352, 1353-54 (1997) (citation omitted). A court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Hawai'i Rules of Civil Procedure Rule 56(c) (1997); see State v. Tradewinds Elec. Serv. & Contracting, Inc., 80 Hawai'i 218, 222, 908 P.2d 1204, 1208 (1995).

In undertaking its analysis, a court must view the record in the light most favorable to the nonmoving party. Where the defendant is the moving party, the defendant is entitled to judgment as a matter of law if (1) viewing the record in the light most favorable to the plaintiff, no genuine issue of material fact exists with respect to one or more of the essential elements of the claim which the motion questions or of the defense which the motion seeks to establish; and (2) it is clear that the plaintiff is not entitled to recover under any discernable theory. Giuliani v. Chuck, 1 Haw. App. 379, 383, 620 P.2d 733, 736 (1980).

FACTS VIEWED IN A LIGHT

MOST FAVORABLE TO PLAINTIFFS



On September 19, 1994, while on vacation on the island of Maui, in the State of Hawai'i, Nejat, Mualla, Bahar, Ahmet, and Gulperi (the Atahan family) went to Makena Beach. They parked their car on a completely vacant parcel of beachfront land that was separated from the beachfront land of Makena La Perouse State Park by another parcel of beachfront land.(1)

The land they parked on was owned by Muramoto. We identify the parcel of land they parked on as "Lot 1-Muramoto."

Other beachgoers had parked their cars on Lot 1-Muramoto, as Maui residents and visitors had done for years. Although Muramoto was aware that people used Lot 1-Muramoto in this way, he made no attempt to either hinder or aid such use. There were no signs or barriers present on Lot 1-Muramoto.

We identify the privately owned parcel of land adjoining Lot-1 Muramoto as "Lot 2" and we identify the Makena La Perouse State Park adjoining Lot 2 as "Lot 3-Park." The Atahan family walked from Lot 1-Muramoto to the sandy beach fronting it and then walked along the sandy beach fronting Lot 2 to the sandy beach fronting Lot 3-Park where they entered the ocean. The stretch of beach fronting Lot 3-Park is known as "Big Beach." While bodysurfing in the ocean off of "Big Beach," Nejat was injured and rendered quadriplegic.

PROCEDURAL POSTURE OF THE CASE

On March 12, 1996, Plaintiffs sued Muramoto, alleging in their July 2, 1997 Plaintiffs' Pretrial Statement that Muramoto:

b. . . . knew or in the exercise of reasonable care should have known, that the waves, sea and ocean state and/or other aquatic conditions at and in the vicinity of the Muramoto Property, were extremely dangerous (or potentially dangerous) to users of Big Beach, including Plaintiff NEJAT ATAHAN[;]



c. . . . failed to take reasonable precautions to close the Muramoto Property and prevent members of the public from trespassing thereon and failed to reasonably warn members of the public and Plaintiffs of the extremely dangerous (and not apparent) waves, sea and ocean conditions (e.g. posting warning signs)[;]



d. . . . carelessly and negligently allowed the Muramoto Property to be trespassed upon and used as a de facto parking lot for Big Beach (thereby giving an appearance that the Muramoto Property was part of Big Beach)[;]



e. . . . created and maintained an attractive nuisance, and thereby carelessly and negligently encouraged, invited and induced the public upon the Muramoto Property, knowing or having reason to know that persons utilizing the Muramoto Property would use [the] same as access to Big Beach, without warning of the extremely dangerous conditions in the waters[; and]



f. . . . impliedly warranted and represented that the beach areas abutting and/or in the vicinity of the Muramoto Property were safe for users.



On August 20, 1997, Muramoto moved for summary judgment (August 20, 1997 Motion). In his memorandum in support of his motion, Muramoto stated that

[t]he legal issue to be decided by the court is:



Should a landowner, who neither charges nor invites people to use his land, and who neither creates nor perpetuates a dangerous condition on an adjoining parcel, be liable to a party, who is injured on the adjoining parcel?



At the September 9, 1997 hearing on Muramoto's August 20, 1997 Motion, the circuit court answered the question in the negative, based on the "Hawaii Recreational Use Statute," HRS chapter 520 (Supp. 1997).

ISSUE AND ANSWER

Nejat used Lot 1-Muramoto as a parking lot for his car and as access to "Big Beach" fronting Lot 3-Park. He was injured while in the ocean fronting "Big Beach" fronting Lot 3-Park.

The question is whether Muramoto owed a duty to the Atahan family (a) to prevent the Atahan family from parking their car on and walking over Lot 1-Muramoto to access the public beach and ocean fronting Lot 3-Park (duty to prevent) or (b) to warn the Atahan family that being in the ocean fronting Lot 3-Park was dangerous (duty to warn). Our answer to both questions is no.

OWNER OF THE BEACH

AND THE OCEAN IN HAWAI'I



The Hawai'i Supreme Court has decided that

pursuant to the decision of this court in In re Application of Ashford, 50 Haw. 314, 315, 440 P.2d 76, 77 (1968), . . . the seaward boundary between private upland and public beach is "along the upper reaches of the wash of waves, usually evidenced by the edge of vegetation or the line of debris . . . ."



* * *



We hold as a matter of law that where the wash of the waves is marked by both a debris line and a vegetation line lying further mauka;(2) the presumption is that the upper reaches of the wash of the waves over the course of a year lies along the line marking the edge of vegetation growth. The upper reaches of the wash of the waves or at high tide during one season of the year may be further mauka than the upper reaches of the wash of the waves at high tide during the other seasons. Thus while the debris line may change from day to day or from season to season, the vegetation line is a more permanent monument, its growth limited by the year's highest wash of the waves.



County of Hawaii v. Sotomura, 55 Haw. 176, 179, 182, 517 P.2d 57, 60, 62 (1973) (footnote omitted; footnote added).

DUTY OF OWNER OR OCCUPIER

OF PREMISES--HAWAI'I LAW GENERALLY



In 1930, the Hawai'i Supreme Court decided that

[i]n considering the duty of the owner or occupier of premises to persons who come thereon, the law divides them into three categories--trespassers, licensees, and invitees. Invitees are persons who are invited to come upon the premises either expressly or (as in the case of a customer entering a store) impliedly. Licensees are persons whose presence is not invited, but tolerated. Trespassers are persons who are neither suffered nor invited to enter.



Mutual Telephone Company v. Hawaiian Contracting Company, Limited, 31 Haw. 296, 309 (1930) (quoting Annotation, Attractive Nuisances, 36 A.L.R. 37 (1925)).

In other words, Hawai'i was one of the following majority of jurisdictions.

[A] majority of jurisdictions continue to adhere to the traditional rule that status is determinative of the duty owed by an owner or occupant of premises to an entrant thereon. In such jurisdictions the status of plaintiff as a licensee is highly relevant, and the rules of law as to the duty owed to a licensee by a premises occupant are still applicable.



The traditional common-law rule in such jurisdictions, based on the theory that a landowner has the right to make use of the land as he sees fit, is that an owner or occupant of premises owes to a licensee only a duty not to harm him willfully or wantonly, intentionally, recklessly, or by gross negligence, or to set traps for him, or to expose him to danger recklessly or wantonly, or to negligently injure the licensee after discovering his peril.



62 Am. Jur. 2d Premises Liability 159 (1990) (footnotes omitted).

Hawai'i's position changed in 1969 when, in Pickard v. City & County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969), the Hawai'i Supreme Court stated that "[s]ince plaintiff-appellant herein had the permission to use the restroom, defendant owed him the duty to exercise ordinary care in maintaining the premises in a safe condition and in warning him of known defects." Id. at 136, 452 P.2d at 446. Notwithstanding its focus on the fact that "plaintiff-appellant herein had the permission to use the restroom[,]" the Hawai'i Supreme Court decided as follows:

We believe that the common law distinctions between classes of persons have no logical relationship to the exercise of reasonable care for the safety of others. We therefore hold that an occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual.



Id. at 135, 452 P.2d at 446.

In Gibo v. City & County of Honolulu, 51 Haw. 299, 301, 459 P.2d 198, 200 (1969), the Hawai'i Supreme Court reaffirmed its Pickard rule when it stated:

Thus, under Pickard the factual issue is not whether an individual is an invitee or a licensee, but whether he is a person anticipated upon the premises. In this case, the City had knowledge of the use by the public of the ambulance garage area as a walkway, and under the rule of Pickard, the City owed the plaintiff, whether he was an invitee or a licensee, the same duty - a duty to use reasonable or ordinary care for his safety.



In Geremia v. State, 58 Haw. 502, 506, 573 P.2d 107, 111 (1977), the Hawai'i Supreme Court stated:

In thus abrogating the distinction between invitees and licensees we have continued to recognize that the control exercised by an occupier over the condition of his land and his opportunity to take precautions against and to warn of known dangers creates a duty of care toward his invitees and licensees[.]



In Kaczmarczyk v. City & County of Honolulu, 65 Haw. 612, 615-617, 656 P.2d 89, 91-92 (1982), the Hawai'i Supreme Court stated:

For an occupier of land is under a duty to exercise all reasonable care for the safety of all persons known to be, or reasonably anticipated to be, upon its premises. Pickard v. City & County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969). Where the premises front upon the ocean, this responsibility extends to those swimming in the waters along the property's beach frontage. Tarshis v. Lahaina Investment Corp., 480 F.2d 1019 (9th Cir. 1973).(3)



* * *



Undoubtedly, the City would have had a duty to warn users of Ehukai ['Ehukai] Beach park of extremely dangerous conditions in the ocean along its beach frontage which were not known or obvious to persons of ordinary intelligence, and which were known or in the exercise of reasonable care ought to have been known to the City.



* * *



. . . There does exist a genuine dispute as to whether, in getting to the beach, the deceased and his companion entered through Ehukai ['Ehukai] Beach Park which was incontestably under the control and management of the City, or whether their route took them over property not owned or controlled by it. But this would be determinative only on the question of the City's duty to warn. . . .



(Footnote added.)

After Kaczmarczyk, but also in 1982, the Hawai'i Supreme Court decided as follows:

In Geremia v. State, 58 Haw. 502, 573 P.2d 107 (1977), this court observed that a party will be liable in tort where he voluntarily undertakes a course of affirmative conduct intended to induce another to engage in an action, and creates a false appearance of safety upon which the other relies to his detriment. And it has also been held that an owner's duty to his invitees extends to such places in or about the premises as his invitees may reasonably be expected to go in the course of his visit.



It would be unfair and unjust for the City to be charged with responsibility for the safety of every invitee who might choose to wander along the beach well beyond the geographical beach limits of the park itself. At the same time, it would be unreasonable for the City to expect that those to whom it invited to use its park and beach facilities would confine their activities strictly within the beach and waters along and adjacent to the park's beach frontage. In any event, whether the City induced, or by its conduct invited, the plaintiff to use the adjoining beach areas is a question of fact which must be determined by the jury from the circumstances. If it did, then the City would have been required to exercise reasonable care for her safety. At the very least, the City would then have been under a duty to warn the plaintiff of dangerous conditions which were not known to her or obvious to persons of ordinary intelligence, and which either were known or in the exercise of reasonable care ought to have been known to the City.



Littleton v. State, 66 Haw. 55, 68-69, 656 P.2d 1336, 1345 (1982) (citations and footnotes omitted).

In Kamakawiwoole v. State, 6 Haw. App. 235, 237-38, 718 P.2d 1105, 1107 (1986), a case involving the occupier of land rather than the owner, this court stated:

These cases [Gibo, Tarshis, Kaczmarczyk, and Littleton] state a rule that an occupier of land fronting the beach and ocean who induces or invites a business or public invitee onto its land to engage in an action on the adjoining public beach or ocean may owe a duty to warn that invitee of the dangers involved in engaging in the action.



In 1992, the Hawai'i Supreme Court recognized status distinctions when it stated that

[u]nder ordinary circumstances, criminal acts are not reasonably to be expected, and are so unlikely in any particular instance that the burden of taking continual precautions against them almost always exceeds the apparent risk. . . .



. . . Although the Pickard rule of reasonable care regardless of status distinctions continues to define a landowner's duty of care in this jurisdiction, status distinctions remain important in the decision to create exceptions to the general rule that it is unreasonable to impose a duty to anticipate and control the actions of third persons. Exceptions to the general rule that there is no duty to protect may arise when justified by the existence of some special relationship between the parties. Section 314A of the Restatement [(Second) of Torts] sets forth a non-exclusive list of special relationships upon which a court may find a duty to protect. The section provides:



(1) A common carrier is under a duty to its passengers to take reasonable action



(a) to protect them against unreasonable risk of physical harm, and



(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.



(2) An innkeeper is under a similar duty to his guests.



(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.



(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.



* * *



As a result of Pickard, this jurisdiction has not had occasion to determine whether the invitee relationship is limited by the definition of a public invitee, or that of a business visitor. In this case, where the definition of an invitee is relevant solely to determine the scope of Restatement 314A(3), we decline to adopt the broader, public invitee definition, finding that there is no basis upon which to base a duty to protect where a landholder holds open his land gratuitously, and does not receive or hope to receive monetary, commercial, or other tangible benefit from the invitation. Cf. Wolsk v. State, 68 Haw. 299, 711 P.2d 1300 (1986) (State had no duty to protect persons who were assaulted while camping in a State park).

Doe v. Grosvenor Properties (Hawaii) Ltd., 73 Haw. 158, 164-65, 829 P.2d 512, 515 (1992) (citations and footnotes omitted).

Notwithstanding the broad language of the Pickard rule, it appears from its facts and subsequent Hawai'i Supreme Court cases that the Pickard rule applies to licensees and invitees and not to trespassers. Assuming the Pickard rule does not apply to trespassers, Muramoto still has a problem. Viewed in a light most favorable to the Atahan family, Nejat's status while using Muramoto's land to access the beach and the ocean was that of an implicitly authorized or indirectly permitted licensee.

In light of our decision with respect to the issue presented in the part following, however, we do not reach the question whether the precedent cited above imposed any relevant duty upon Muramoto with respect to the Atahan family.

HRS CHAPTER 520 (1993) EXCEPTION

HRS chapter 520 (1993) became law as Act 186 on July 14, 1969. On September 19, 1994, when Nejat was injured, HRS chapter 520(4) read in relevant part as follows:

520-1 Purpose. The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.



520-2 Definitions. As used in this chapter:



(1) "Land" means land, roads, water, water courses, private ways and buildings, structures, and machinery or equipment when attached to realty, other than lands owned by the government.



(2) "Owner" means the possessor of a fee interest, a tenant, lessee, occupant, or person in control of the premises.



(3) "Recreational purpose" includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.



(4) "Charge" means the admission price or fee asked in return for invitation or permission to enter or go upon the land.



* * *



520-3 Duty of care of owner limited. Except as specifically recognized by or provided in section 520-6, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.



520-4 Liability of owner limited. Except as specifically recognized by or provided in section 520-6, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:



(1) Extend any assurance that the premises are safe for any purpose.



(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.



(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission or commission of such persons.



* * *



520-6 Persons using land. Nothing in this chapter shall be construed to:



(1) Create a duty of care or ground of liability for injury to persons or property.



(2) Relieve any person using the land of another for recreational purposes from any obligation which the person may have in the absence of this chapter to exercise care in the person's use of such land and in the person's activities thereon, or from the legal consequences of failure to employ such care.



Plaintiffs contend that the language of HRS chapter 520 limits its protection to the boundaries of the owner's land and operates to save owners harmless from liability for injuries occurring on their own land, but not from liability for injuries occurring elsewhere. With respect to the landowner's duty to warn described in Kaczmarczyk v. City and County of Honolulu, supra,(5) and the landowner's alleged duty to prevent, we disagree.

We rely on HRS 520-4(2). As noted above, it states in relevant part that

an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:



* * *



(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.



Viewed in a light most favorable to the Atahan family, Nejat was at best a person who was indirectly permitted without charge to use Muramoto's land for the recreational purpose of accessing the public beach and ocean. Pursuant to HRS 520-4(2), Nejat was neither "an invitee or licensee to whom a duty of care is owed." The duty to warn and the alleged duty to prevent both arise out of the "duty of care." It follows that Nejat was not an invitee or licensee to whom Muramoto owed a duty to prevent or warn.

Although our holding is based on the unambiguous language of HRS 520-4(2), we note that although HRS 520-2 defines land as including both land and water, it states that its purpose "is to encourage owners of land to make land and water areas available to the public for recreational purposes[.]" This language suggests an intent to encourage owners of land to make the ocean available to the public for recreational purposes.

We further note that legislative history shows that the "water areas" referred to in HRS 520-1 (1993) include the public beach and ocean. In 1969, the Senate Committee on Lands and Natural Resources submitted Senate Standing Committee Report No. 534 on S.B. No. 56 which states in relevant part as follows:

"A BILL FOR AN ACT TO ENCOURAGE LANDOWNERS TO MAKE LAND AND WATER AREAS AVAILABLE TO THE PUBLIC BY LIMITING LIABILITY IN CONNECTION THEREWITH.



* * *



Your Committee has amended this bill by deleting section 6 which provides that an owner who provides a public right-of-way through his land to beach areas shall maintain such right-of-way, because it creates an undue burden on landowners.



Finally, we note that the express purpose of encouraging owners of land to make the ocean available to the public for recreational purposes would be frustrated by concluding that HRS chapter 520 protects only against claims for injuries occurring within the boundaries of the owner's land. We agree with United States District Judge Martin Pence that

[i]t would be preposterous to hold a landowner liable for injuries to anyone using the beach and ocean in front of his land--an area solely owned and controlled by the state and county--when under Chapter 520, if he had owned and controlled that beach and water he would have no liability at all.



Viess v. Sea Enters. Corp., 634 F. Supp. 226, 229 (D. Hawai'i 1986).

In light of the above, we conclude that HRS chapter 520 abolished any duty to prevent or warn that Muramoto may otherwise have owed to the Atahan family with respect to their use of Lot 1-Muramoto as a place to park their car, access the public beach fronting Lot 1-Muramoto, Lot 2, and Lot 3-Park, and access and use the ocean fronting the beach fronting Lot 3-Park for recreational purposes.

CONCLUSION

Accordingly, we affirm the circuit court's September 23, 1997 "Judgment By: Order Granting Defendant Hidehiro Muramoto's Motion for Summary Judgment Filed August 20, 1997."



On the briefs:



Warren Price, III, and

Terence S. Yamamoto

(Price, Okamoto, Himeno & Lum,

of counsel); and Stuart M.

Cowan for plaintiffs-appellants.



John H. Price and

Susan Y.M. Chock

for defendant-appellee.

1. The Hawai'i Penal Code, Hawai'i Revised Statutes (HRS) chapter 708 (1993), states in relevant part as follows:



PART I. GENERAL PROVISIONS RELATING TO

OFFENSES AGAINST PROPERTY RIGHTS



708-800 Definitions of terms in this chapter. In this chapter, unless a different meaning plainly is required, the following definitions apply.



* * *



"Enter or remain unlawfully." . . . A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to the person by the owner of the land or some other authorized person, or unless notice is given by posting in a conspicuous manner.

2. The Hawaiian word "mauka" is a locative noun that means "[i]nland, upland, towards the mountain, shoreward (if at sea)[.]" Mary Kawena Pukui & Samuel H. Elbert, Hawaiian Dictionary 242 (rev. ed. 1986) (see "uka," id. at 365).

3. This does not resolve the question of whether this duty is owed by the owner of beachfront property to persons who access the public beach and/or ocean fronting the owner's property via the beach and/or ocean fronting another person's beachfront property.

4. HRS chapter 520 (1993), enacted as Act 186, 1969 Haw. Sess. Laws 333, was amended by Act 151, 1996 Haw. Sess. Laws 328, Act 272, 1997 Haw. Sess. Laws 603, and Act 380, 9, 1997 Haw. Sess. Laws 1193, 1205-06.

5. In Kaczmarczyk v. City and County of Honolulu, 65 Haw. 612, 616, 656 P.2d 89, 91 (1982), the plaintiff's theory was "that the existence of the powerful, surging surf represented an unapparent, dangerous condition which [the city] knew about and of which it failed to adequately warn her."