Bracken v. Kyo-Ya Hotels and Resorts et al

Filing 118

ORDER DENYING BRACKEN'S MOTION FOR SUMMARY JUDGMENT REGARDING COUNTERCLAIM re 82 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/25/13. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive elec tronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DILLON L. BRACKEN,

)
)
Plaintiff/
)
Counterclaim
)
Defendant,
)
)
)
vs.
)
)
KYO-YA HOTELS AND
RESORTS, LP; KINCHUNG
)
)
CHUNG; JOHN DOES 1-9;
)
DOE ENTITIES 1-5; and
)
AARON H. OKURA,
)
)
Defendants/
)
Counterclaim
)
Plaintiffs.
________________________ )

Civ. No. 11-00784 SOM/BMK
ORDER DENYING BRACKEN’S
MOTION FOR SUMMARY JUDGMENT
REGARDING COUNTERCLAIM

ORDER DENYING BRACKEN’S MOTION FOR SUMMARY
JUDGMENT REGARDING COUNTERCLAIM
This action arises out of what Plaintiff/Counterclaim
Defendant Dillon Bracken says was an attack on him by security
personnel when he tried to enter Rumfire, a Kyo-ya Hotels and
Resorts (“Kyo-ya”) restaurant in Hawaii, on New Year’s Eve in
2009.

Bracken is a California resident who alleges that Kyo-ya

and certain individuals violated his constitutional rights and
committed multiple torts in response to what they allegedly
viewed as his trespass.

Kyo-ya has filed a counterclaim alleging

that Bracken negligently caused injuries to Kyo-ya Security
Officer Julio Bagaoisan as Bracken left the hotel.

Bracken moves

for summary judgment on Kyo-ya’s counterclaim.

The court denies

Bracken’s motion.1
I.

BACKGROUND.
On December 31, 2009, Bracken went to the RumFire

restaurant.

He says he was “unaware that it was supposedly

closed to the public” for a private New Year’s Eve celebration.
Fourth Am. Compl. ¶ 23, ECF No. 60.

Bracken alleges that a

private plainclothes Kyo-ya security guard “abruptly grabbed
[him] by his shoulder.”

Id. ¶ 24.

Thinking that the security

guard was an intoxicated RumFire patron “trying to pick a fight,”
Bracken says he “tried to avoid any altercation with him.”
¶ 25.

Id.

Bracken claims his efforts to get away from Okura were

“thwarted” by security personnel.

Id. ¶ 26.

Bracken asserts

that security personnel subjected him to a “protracted procedure
for warning persons that they would be considered trespassers,”
which included detaining him as an alleged trespasser and
photographing him.

Id. ¶¶ 28-30.

Kyo-ya’s “standard operating

procedure” was allegedly to take and retain the alleged
trespasser’s identifying documents until the individual submitted
to the procedure.

Id.

¶ 30.

Bracken alleges that security

guards unlawfully restrained him and abusively injured him in the
process. Id. ¶ 34.

1

The court decides this matter without a hearing.
Local Rule 7.2 (d).
2

See

After he was released, Bracken allegedly attempted to
leave the area on his motorcyle.

Kyo-ya alleges that Bracken,

“along with an unidentified female companion, caused property
damage to a white Mercedes vehicle, which had been parked at the
Porte Cochere of the Hotel, when the motorcycle owned by
Plaintiff fell onto the white Mercedes.”

Am. Countercl. ¶ 2.

Kyo-ya asserts, “Security Officer Julio Bagaoisan was called to
investigate this property damage and while [Bagaoisan was] within
the course of his investigation, Plaintiff got on his motorcycle
and attempted to flee the scene of the accident.”

Id. ¶ 3.

Violet Mangene was Bracken’s “unidentified female
companion” that evening.
“go get his bike.”

According to her, Bracken asked her to

Mangene Dep. at 32, ECF No. 115-5.

She later

discovered that Bracken made this request because his motorcycle
was at the hotel, and he was not allowed on the hotel property
given his alleged trespass offense earlier that evening.
40.

Id. at

Mangene says that she tried to help Bracken by moving his

motorcycle, but the motorcycle was so heavy that she could not
keep it from falling against the Mercedes.

Id. at 38.

Mangene

describes the resulting scene as a “big deal” involving
approximately five hotel employees who were investigating the
incident.

Id. at 41.

She says she called Bracken and told him

he would have to get his own motorcycle.

Id. at 43.

Once

Bracken arrived, Mangene told the hotel employees that the keys

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to the motorcycle were in the bushes (even though they were
actually in the ignition) so that Bracken could get on the
motorcycle and ride away.

Id. at 46.

According to Bagaoisan, he was taking pictures as part
of the investigation when he heard “several of the valet
attendants yell, ‘He’s coming, he’s coming.’” Bagaoisan Decl.
¶ 5, ECF No. 115-2.

Bagaoisan says he “instinctively responded

to this action by reaching for the motorcycle.”

Id. ¶ 6.

Bagaoisan says he “was dragged several feet, and tumbled several
feet more, and sustained injuries in the process.”

Id. ¶ 7.

Bagaoisan complains that Bracken “did not ask permission to
remove the motorcycle and did not allow [him] to complete his
investigation before speeding away.”

Id. ¶ 8.

Bracken says that once he got on his motorcycle, he
“left immediately,” and that Bagaoisan was “attacking [him] at
the time.”

Bracken Dep. at 4, ECF No. 83-2.

Bracken says he

“had no knowledge of who was attempting to throw [him] off the
bike” but, “given [his] recent experience” at Kyo-ya, assumed
“that it was someone from that organization also attempting to
attack me.”

Id. at 5.

Bracken says that he never saw Bagaoisan

because Bagaoisan allegedly attacked him “from the back.”

Id.

Bracken admits that he did not ask for permission to take his
motorcycle, but he also says that he had been at RumFire multiple
times before and “eventually stopped feeling the need to talk to

4

people about stuff that is clearly all right.”

Bracken Dep. at

116, ECF No. 115-4.
Kyo-ya alleges that Bagaoisan “attempted to prevent
Plaintiff from fleeing the scene of the accident, and was dragged
a distance and sustained physical and emotional injuries.”
¶ 4.

Id.

Kyo-ya also alleges that Bracken “operated his motorcycle

in a reckless and unlawful manner” and caused Bagaoisan’s
injuries by “intentional and/or negligent conduct.”

Id. ¶ 5.

Kyo-ya paid worker’s compensation benefits to Bagaoisan, id. ¶ 6,
and now seeks reimbursement for those benefits and additional
damages.
II.

STANDARD.
Summary judgment shall be granted when “the pleadings,

the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of

summary judgment is to identify and dispose of factually
Celotex Corp. v. Catrett, 477

unsupported claims and defenses.
U.S. 317, 323-24 (1986).

Accordingly, “[o]nly admissible

evidence may be considered in deciding a motion for summary
judgment.”

Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,

988 (9th Cir. 2006).

Summary judgment must be granted against a

party that fails to demonstrate facts to establish what will be

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an essential element at trial.

See Celotex, 477 U.S. at 323.

A

moving party has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).

The burden initially falls on the moving party

to identify for the court “those portions of the materials on
file that it believes demonstrate the absence of any genuine
issue of material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp., 477 U.S. at 323); accord Miller, 454 F.3d at 987.
“A fact is material if it could affect the outcome of the suit
under the governing substantive law.”

Miller, 454 F.3d at 987.

“A genuine dispute arises if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.”

California v. Campbell, 319 F.3d 1161, 1166 (9th Cir.

2003).

Accord Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).
On a summary judgment motion, “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are to
Miller, 454 F.3d at 988

be drawn in that party’s favor.”

(quotations and brackets omitted).
II.

ANALYSIS.
To prevail on a negligence claim, a claimant must

prove:

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(1) A duty, or obligation, recognized by the
law, requiring the defendant to conform to a
certain standard of conduct, for the
protection of others against unreasonable
risks;
(2) A failure on the defendant’s part to
conform to the standard required: a breach of
the duty;
(3) A reasonably close causal connection
between the conduct and the resulting
injury[;] and
(4) Actual loss or damage resulting to the
interests of another.
Takayama v. Kaiser Found. Hosp., 82 Haw. 486, 498-99, 923 P.2d
903, 915-16 (1996) (quoting Knodle v. Waikiki Gateway Hotel,
Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987)).
A viable negligence claim requires that a defendant
have owed a duty to the plaintiff.

See Pulawa v. GTE Hawaiian

Tel, 112 Haw. 3, 11, 143 P.3d 1205, 1213 (2006); Janssen v. Am.
Haw. Cruises, Inc., 69 Haw. 31, 34, 731 P.2d 163, 34 (1987).
Hawaii Supreme Court has stated:
[I]n considering whether to impose a duty of
reasonable care on a defendant, we recognize
that duty is not sacrosanct in itself, but
only an expression of the sum total of those
considerations of policy which lead the law
to say that the particular plaintiff is
entitled to protection. Legal duties are not
discoverable facts of nature, but merely
conclusory expressions that, in cases of a
particular type, liability should be imposed
for damage done. In determining whether or
not a duty is owed, we must weigh the
considerations of policy which favor the
plaintiff’s recovery against those which
favor limiting the defendant’s liability.
7

The

The question of whether one owes a duty to
another must be decided on a case-by-case
basis.
Id. at 12, 143 P.3d at 1214 (quotations and citation omitted)
(format altered).
The Hawaii Supreme Court has identified several factors
relevant to imposing a duty:
Whether a special relationship exists, the
foreseeability of harm to the injured party,
the degree of certainty that the injured
party suffered injury, the closeness of the
connection between the defendants’ conduct
and the injury suffered, the moral blame
attached to the defendants, the policy of
preventing harm, the extent of the burden to
the defendants and consequences to the
community of imposing a duty to exercise care
with resulting liability for breach, and the
availability, cost, and prevalence of
insurance for the risk involved.
Id. (quotations and citation omitted) (format altered).
A defendant owes a duty of care only “to those who are
foreseeably endangered by the conduct and only with respect to
those risks or hazards whose likelihood made the conduct
unreasonably dangerous.”

Id. (quotations and citations omitted).

In this context, the test for foreseeability “‘is whether there
is some probability of harm sufficiently serious that a
reasonable and prudent person would take precautions to avoid
it.’”

Pulawa, 112 Haw. at 12, 143 P.2d at 1214 (quoting Knodle,

69 Haw. at 388, 742 P.2d at 385).

Whether a duty exists is a

question of law for the court to resolve.

8

Pulawa, 112 Haw. at

13, 143 P.2d at 1215; Janssen, 69 Haw. at 34, 731 P.2d at 34
(“The existence of a duty is a question of law.”).
Bracken owed a duty to those around him to operate his
motorcycle in a lawful and safe manner.

Whether Bracken breached

that duty is the kind of issue typically left for a jury to
determine.

See Bidar, 66 Haw. at 552, 669 P.2d at 159.

“Ordinarily, issues of negligence . . . are not susceptible of
summary judgment.”

Henderson v. Professional Coatings Corp., et

al., 72 Haw. 387, 400, 819 P.2d 84, 92 (1991).

This is because

the duty to use due care “is bounded by the foreseeable range of
danger.”

Bidar, 66 Haw. at 552, 669 P.2d at 159.

In this

context, foreseeability is different from foreseeability for
purposes of determining whether there is a duty.

In the context

of breach of duty and causation, foreseeability is a question of
fact for the jury to decide.
P.2d at 1215.

See Pulawa, 112 Haw. at 13, 143

In other words, “what is reasonable and

unreasonable and whether the defendant’s conduct was reasonable
in the circumstances are for the jury to decide.”
Haw. at 387, 742 P.2d at 384.

Knodle, 69

Only when facts are undisputed or

lend themselves to only one reasonable interpretation or
conclusion may a court decide the question of negligence as a
matter of law.

Henderson, 72 Haw. at 400, 819 P.2d at 92.

Whether Bracken breached his duty of care is in
disupte.

Bagaoisan admits that he reached for the motorcycle

9

while Bracken was leaving the hotel on his motorcycle.
Bagaoisan Dep. ¶ 6.

See

But Bracken, Mangene, and Bagaoisan give

different accounts of the circumstances of Bracken’s departure,
rendering whether Bracken breached the duty of care unresolvable
on this motion.
Kyo-ya argues that Bracken was “totally freaked out,
totally out of control.”

Opp’n at 5.

Kyo-ya also claims that

Bracken was illegally trespassing, id., and that Bracken was
aware that his motorcycle had fallen against another vehicle and
caused property damage.

Id. at 5-6.

Finally, Kyo-ya argues

that, because of the property damage, Bracken violated the law by
leaving the scene of the accident before aid and information had
been supplied.

Id. at 6.

Bracken disputes all of what Kyo-ya asserts.

Whether

Bracken breached his duty of care hinges on the fact-finder’s
determination of which witnesses to believe.

The court concludes

that issues of fact preclude summary judgment.

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IV.

CONCLUSION.
The court denies Bracken’s motion for summary judgment

with respect to Kyo-ya’s Amended Counterclaim.
IT IS SO ORDERED.
DATED: Honolulu, January 25, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Bracken v. Kyo-ya Hotels and Resorts et al., Civ No. 11-00784
SOM/BMK; ORDER DENYING MOTION FOR SUMMARY JUDGMENT REGARDING
COUNTERCLAIM

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