Mohler v. Kipu Ranch Adventures, LLC et al
ORDER DENYING DEFENDANT KIPU RANCH ADVENTURES, LLC'S MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS, DOC. NO. 42 . Signed by JUDGE J. MICHAEL SEABRIGHT on 11/7/2014. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KIPU RANCH ADVENTURES, LLC; )
and DOES 1 through 100 inclusive,
CIVIL NO. 13-00611 JMS-BMK
ORDER DENYING DEFENDANT
KIPU RANCH ADVENTURES,
LLC’S MOTION FOR SUMMARY
JUDGMENT ON ALL CLAIMS,
DOC. NO. 42
ORDER DENYING DEFENDANT KIPU RANCH ADVENTURES, LLC’S
MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS, DOC. NO. 42
On November 13, 2013, Plaintiff Kimberly Mohler (“Plaintiff”) filed
this action alleging state law claims for negligence, failure to warn, and premises
liability against Defendant Kipu Ranch Adventures, LLC (“Defendant”) stemming
from injuries she sustained while operating an all-terrain vehicle (“ATV”) during a
paid scenic tour offered by Defendant at its ranch.
Currently before the court is Defendant’s Motion for Summary
Judgment, arguing that (1) Plaintiff’s claims are barred by the Acknowledgment of
Risk and Release of Liability form Plaintiff signed prior to taking the ATV tour;
(2) Plaintiff’s claims are barred by Hawaii’s Recreational Use Statute, Hawaii
Revised Statutes (“HRS”) Ch. 520, which affords landowners immunity from
negligence liability where the property is used for “recreational purposes;” and
(3) Plaintiff’s premises liability claim fails because the ATV trail did not present
an unreasonable risk of harm. Based on the following, the court DENIES
Defendant’s Motion for Summary Judgment.
On November 15, 2011, Plaintiff traveled to Kauai with her partner
Deborah Barnes (“Barnes”) for a vacation. See Doc. No. 42-9, Def.’s Ex. 1, at 27.
Plaintiff thought that an ATV trip “sounded interesting and fun and something
different that [they] hadn’t done before,” id. at 29, and as a result, on November
17, 2011, Plaintiff purchased a guided ATV tour from Defendant, who was
engaged in a recreation tour business. Doc. No. 43, Def.’s Concise Statement of
Fact (“CSF”) ¶¶ 1-2.1
Plaintiff arrived for the 1:30 p.m. tour between 1:00 p.m. and 1:15
p.m. Doc. No. 42-9, Def.’s Ex. 1 at 42. Plaintiff checked in, and was provided an
Where the parties do not dispute a particular fact, the court cites directly to Defendant’s
Acknowledgment of Risk and Release of Liability form (the “Release”), id. at 4344, which Plaintiff and Barnes both signed. Doc. No. 43, Def.’s CSF ¶¶ 3-4. The
Release provides, in relevant part:
I hereby RELEASE AND DISCHARGE Kipu
Ranch Adventures, L.L.C., their guides, agents, and
employees, and William Hyde Rice, Limited, a Hawaii
corporation, from any and all liability, claims, demands,
or causes of action that I may have for injuries or
damages arising out of my participation in four-wheel all
terrain vehicles, guided routes, by Kipu Ranch
Adventures, L.L.C.. I understand that this release of
liability applies to any accident or occurrence of any
kind which could occur as a result of using or riding on
equipment or vehicles furnished by Kipu Ranch
Adventures, L.L.C., whether or not Kipu Ranch
Adventures, L.L.C., including it’s [sic] agents and
employees are negligent.
I further acknowledge that full disclosure of all
inherent risks associated with this guided tour have been
disclosed to me. I hereby knowingly and willingly
ASSUME ALL RISKS associated with this recreational
I further declare . . . that I am voluntarily assuming
all risks, including but not limited to . . . my inability to
properly control any equipment furnished to me.
I understand and acknowledge that four-wheel all terrain
vehicle [sic], or activities have inherent dangers that no
amount of care, caution, instruction, or expertise can
eliminate, and I EXPRESSLY AND VOLUNTARILY
ASSUME ALL RISK OF INJURY OR HARM WHILE
PARTICIPATING IN THIS RECREATIONAL
I further agree that I WILL NOT SUE OR MAKE
A CLAIM FOR NEGLIGENCE AGAINST KIPU
RANCH ADVENTURES, LLC, OR WILLIAM HYDE
RICE, LIMITED, FOR DAMAGES OR OTHER
LOSSES SUSTAINED AS A RESULT OF MY
PARTICIPATION IN THIS RECREATIONAL
ACTIVITY. I further agree to INDEMNIFY AND
HOLD THE RELEASED PARTIES HARMLESS from
all claims, judgment and costs, including attorney’s fees,
incurred in connection with an action for negligence
brought as a result of my participation in this recreational
I have read this agreement and release of liability,
understand it’s [sic] contents, and freely sign of my own
Doc. No. 42-5, Def.’s Ex. A.
According to Plaintiff, she did not read the Release, although she
signed and initialed it. Doc. No. 42-9, Def.’s Ex. 1 at 101. Plaintiff, who has a
Bachelor’s degree in physical education and a Master’s degree in organizational
development, has signed waivers of liability on previous occasions and has a
general custom and practice to not read and/or read thoroughly waivers she is
given. Doc. No. 43, Def.’s CSF ¶¶ 11, 13-14.
Information Provided to Plaintiff Regarding the ATV
After signing the Release, Plaintiff and Barnes proceeded to a small
building where they were fitted for helmets and goggles, and then went to an
outside arena for a fifteen-minute orientation. Doc. No. 42-9, Def.’s Ex. 1 at 4547, 56. In total, there were eight customers and two guides. Id. at 46. The lead
guide, Rebekah Albano (“Albano”), explained that the faster the group is able to
ride their ATVs, the more scenery they would be able to see. Id. at 47. The
customers were then led to their vehicles, which for Plaintiff and Barnes was a
two-person Outlander Max 400 ATV. Id. at 48-49; Doc. No. 47-5, Pl.’s Ex. 3.
Plaintiff was given instructions on how to start, steer, accelerate, and
brake the ATV. Doc. No. 42-9, Def.’s Ex. 1 at 50-52. Plaintiff then drove the
ATV twice around the perimeter of the arena to familiarize herself with the ATV.
Id. at 49-50. At the time, Plaintiff thought that driving the ATV was more
challenging that she thought it would be, but was not uncomfortable. Id. at 53.
After all participants finished their laps, the instructors reiterated that
they should keep a safe speed and safe distance from one another. Id. at 55.
Information Not Provided to Plaintiff
Albano never warned Plaintiff that, as provided in the Operator’s
Guide for Plaintiff’s ATV, riding an ATV with a passenger may affect vehicle
handling. Doc. No. 47-5, Pl.’s Ex. 3 at 9 (warning that an ATV handles differently
with a passenger). Rather, Albano gave the same training to all customers
regardless of whether they were riding single or with a passenger. Doc. No. 47-4,
Pl.’s Ex. 2 at 50; Doc. No. 47-6, Pl.’s Ex. 4 at 94-95, 130-32 (explaining that
customers are not warned that riding with a passenger poses greater risks).
As for maneuvering down hills, Plaintiff was never told, as provided
in the Operator’s Guide, that “a special technique is required when braking as you
go down a hill,” requiring both the operator and passenger to shift their weight
backward. See Doc. No. 47-5, Pl.’s Ex. 3 at 19, 21. Nor was Plaintiff instructed,
as provided in the Operator’s Guide, that in riding downhill, the operator should
“[a]pply the brake gradually to prevent skidding,” and “not ‘coast’ down the slope
using solely engine compression or in neutral gear.” Id. at 36. The Operator’s
Guide further warns that “[d]ecelerating while negotiating a slippery downhill
slope could ‘toboggan’ the vehicle. Maintain steady speed and/or accelerate
slightly to regain control.”2 Id. at 30.
Defendant decided not to provide the Operator’s Guide to customers
or have them watch the safety video provided with the ATV because many of the
warnings provided therein were inapplicable to a guided tour, and it would not
assist in creating a safe environment for teaching people how to safely operate the
ATVs on a tour. Doc. No. 47-6, Pl.’s Ex. 4 at 67-68. Defendant instead provided
tour guides a written safety summary, which Defendant asserts is “basically a
The only information Plaintiff was provided regarding downhill navigation was when
the tour reached a downslope into a gulch and the guides instructed each customer down the
embankment one at a time. Doc. No. 42-9, Def.’s Ex. 1 at 66. The guides told customers not to
“give it any gas, use your brake to control your speed, but if you use your brake too much, I’m
going to be laughing and making fun of you.” Id. at 66.
summary of the owner’s manual.” Id. at 110-11; Doc. No. 47-7, Pl.’s Ex. 5
(summary provided to guides). This summary instructs, among other things, to
“[n]ever carry passengers, as this alters the handling characteristics dangerously.”
Doc. No. 47-7, Pl.’s Ex. 5. Albano does not recall receiving any such written
policies. Doc. No. 47-4, Pl.’s Ex. 2 at 25.
During the tour, Albano was the lead vehicle, and Plaintiff, who was
the first customer in the line, kept Albano in her sight. Doc. No. 42-9, Def.’s Ex. 1
at 69-70. After traversing various areas on Defendant’s ranch, the ATV tour
entered an area where the trail widened, was covered in gravel, sloped downward,
and led to a right turn. Doc. No. 42-9, Def.’s Ex. 1 at 32; Doc. No. 47-4, Def.’s
Ex. 2 at 74; Doc. No. 47-3, Pl.’s Ex. 1 at 74. Albano picked up speed in this area,
and as a result, Plaintiff also picked up speed in trying to keep up with her. Doc.
No. 42-9, Def.’s Ex. 1 at 33. Plaintiff “fishtailed” once and reduced her speed by
not throttling as much (as opposed to braking), and then accelerated again to catch
up with Albano. Id. at 33-35, 80-81. Plaintiff then fishtailed again, went off the
trail, hit a tree, and landed with the ATV on her. Id. at 39, 78-81. While Plaintiff
was on the ground, she heard Albano say something to the effect of “I must have
been going to[o] fast. I knew they were just beginners. I shouldn’t have been
going so fast.” Id. at 95. Plaintiff suffered, among other injuries, a punctured lung
an multiple rib fractures. Id. at 112-112.
Defendant estimates that three to five injuries per year occur on the
property, with three-quarters of them ATV-related. Doc. No. 47-6, Pl.’s Ex. 4 at
141. Defendant is not aware, however, of any other injuries occurring in the area
of Plaintiff’s accident. See Doc. No. 42-4, Atone Teves Decl. ¶ 8.
Plaintiff filed her Complaint on November 13, 2013, Doc. No. 1, and
filed an Amended Complaint on December 5, 2013. Doc. No. 9. The Amended
Complaint alleges claims for negligence, failure to warn, and premises liability.
On October 7, 2014, Defendant filed its Motion for Summary
Judgment. Doc. No. 42. Plaintiff filed an Opposition on October 27, 2014, Doc.
No. 46 (refiled as directed by the Clerk of Court on October 28, 2014 at Doc. No.
47). Defendant filed a Reply on November 3, 2014. Doc. No. 48. Pursuant to
Local Rule 7.2(d), the court determines the Motion for Summary Judgment
without a hearing.
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and
internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere
allegations or denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
Defendant argues that summary judgment should be granted on all of
Plaintiff’s claims for three reasons. The court addresses each argument in turn.
Whether Plaintiff Waived Her Claims by Signing the Release
Defendant argues that pursuant to Courbat v. Dahana Ranch, Inc.,
111 Haw. 254, 141 P.3d 427 (2006), Plaintiff’s Release constitutes a valid waiver
of any negligence claims she has against Defendant stemming from the ATV tour.
See Doc. No. 42-3, Def.’s Mot. at 6-10. Although Courbat outlines the basic legal
framework on the validity of waivers, its holding does not foreclose Plaintiff’s
In Courbat, the plaintiffs brought claims for negligence and violation
of HRS § 480-2 when one of them was kicked by a horse during a commercial
horseback ride at the defendant’s ranch. The plaintiffs had signed waiver forms,
and their § 480-2 claim sought rescission of these waivers. Courbat held that
genuine issues of material fact existed as to the § 480-2 claim, and therefore it was
a question of fact whether the waivers could be rescinded. 111 Haw. at 263, 141
P.3d at 436. To the extent the fact-finder on remand determined that the waivers
were not rescinded, however, Courbat explained that the waivers were valid in all
other respects. Id. at 264, 141 P.3d at 437.
In particular, Courbat outlined the legal framework regarding the
validity of waivers as follows:
“The general rule of contract law is that one who assents
to a contract is bound by it and cannot complain that he
has not read it or did not know what it contained.”
Leong v. Kaiser Found. Hosps., 71 Haw. 240, 245, 788
P.2d 164, 168 (1990) [other citations omitted].
Furthermore, “‘[p]arties are permitted to make
exculpatory contracts so long as they are knowingly and
willingly made and free from fraud. No public policy
exists to prevent such contracts.’” Fujimoto v. Au, 95
Haw. 116, 156, 19 P.3d 699, 739 (2001) (some brackets
omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co.,
Inc., 430 N.E.2d 407, 411-12 (Ind. Ct. App. 1982)).
“[S]uch bargains are not favored, however, and, if
possible, bargains are construed not to confer this
immunity.” Fujimoto, 95 Haw. at 155, 19 P.3d at 738.
Therefore, as a general rule, “‘[e]xculpatory clauses will
be held void if the agreement is (1) violative of a statute,
(2) contrary to a substantial public interest, or (3) gained
through inequality of bargaining power.’” 95 Haw. at
156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823
F. Supp. 356, 378 (M.D.N.C. 1993)).
Id. at 264-65, 141 P.3d at 437-38. Courbat explained that the plaintiffs’ waivers
were valid because none of three circumstances voiding a waiver applied -- the
plaintiffs did not allege that the waiver violated a statute; the public interest was
not at stake because “recreational activity tours are not generally suitable to public
regulation . . . nor of great importance to the public;” and adhesion contracts in the
context of recreational activity are not unconscionable but rather generally “freely
undertaken for pleasure.” Id. at 265-66, 141 P.3d at 438-39.
Unlike in Courbat, Plaintiffs do assert that the Release violates a
statute -- HRS § 663-1.54, titled “recreational activity liability.”3 Section 663-1.54
(a) Any person who owns or operates a business
providing recreational activities to the public, such as,
without limitation, scuba or skin diving, sky diving,
bicycle tours, and mountain climbing, shall exercise
reasonable care to ensure the safety of patrons and the
public, and shall be liable for damages resulting from
Section 663-1.54 was neither raised nor mentioned in Courbat. Instead, Courbat
discussed HRS Ch. 663B, addressing civil actions involving injuries from equine activities.
111 Haw. at 264, 141 P.3d at 437.
negligent acts or omissions of the person which cause
(b) Notwithstanding subsection (a), owners and operators
of recreational activities shall not be liable for damages
for injuries to a patron resulting from inherent risks
associated with the recreational activity if the patron
participating in the recreational activity voluntarily signs
a written release waiving the owner or operator’s liability
for damages for injuries resulting from the inherent risks.
No waiver shall be valid unless:
(1) The owner or operator first provides full
disclosure of the inherent risks associated with the
recreational activity; and
(2) The owner or operator takes reasonable steps
to ensure that each patron is physically able to
participate in the activity and is given the
necessary instruction to participate in the activity
The Standing Committee that drafted § 663-1.54 explained its
purpose as follows:
Your Committee finds that this measure is necessary
to more clearly define the liability of providers of
commercial recreational activities by statutorily
invalidating inherent risk waivers signed by the
participants. Your committee further finds that these
inherent risk waivers require providers to disclose
known risks to the participant, but these waivers do not
extend immunity to providers for damages resulting from
negligence. Thus, it is the intent of your Committee that
this clarification in the law will appropriately reduce
frivolous suits without increasing risks to participants.
Haw. Stand. Comm. Rep. No. 1537, 1997 Senate Journal, at 1476 (emphasis
added); See also King v. CJM Country Stables, 315 F. Supp. 2d 1061, 1067 (D.
Haw. 2004) (providing detailed analysis of legislative history of § 663-1.54).
Thus, § 663-1.54 precludes waivers of liability for negligence, and
allows waivers only for damages resulting from “inherent risks” that have been
fully disclosed to the customer. And pursuant to § 663-1.54(c), “[t]he
determination of whether a risk is inherent or not is for the trier of fact,” meaning
that the court cannot determine on summary judgment whether a written release
constitutes a valid waiver of Defendant’s liability in this action. See also King,
315 F. Supp. 2d at 1067 (determining that § 663-1.54(c)’s “statutorily-imposed
genuine issue of fact precludes summary judgment as a matter of law”).
Applying these principles here, Courbat does not address the validity
of a waiver in light of HRS § 663-1.54, and therefore does not assist the court in
determining whether Plaintiff’s Release was a valid waiver of her negligence
claims. Rather, HRS § 663-1.54 renders void the Release to the extent it seeks to
waive Plaintiff’s negligence claims. It is also a question of fact whether
Defendant disclosed to Plaintiff the inherent risks of the ATV tour which may
have caused her accident. See HRS § 663-1.54(c).
The court therefore DENIES Defendant’s Motion for Summary
Judgment to the extent it argues that Plaintiff’s Release bars her negligence
Whether Plaintiff’s Claims Are Barred by HRS Ch. 520
Defendant argues that Plaintiff’s claims are barred by Hawaii’s
Recreational Use Statute (“HRUS”), HRS Ch. 520, which “encourage[s] 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.”
HRS § 520-1. Based on the following, the court rejects this argument.
The provisions of the HRUS, read together, make clear that the
limitation of a landowner’s duty of care and liability does not extend to those who
are charged a fee to use the property. For example, § 520-3 provides, in relevant
[A]n 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 . . . .
In turn, § 520-2 defines “recreational user” as “any person who is on or about the
premises that the owner of land either directly or indirectly invites or permits,
without charge, entry onto the property for recreational purposes.” (Emphasis
added). Section 520-4(a) similarly limits liability of landowners, and further
explicitly excludes from the limitation individuals who are charged to use the
property. See HRS § 520-4(a)(3) (limiting liability of “an owner of land who
either directly or indirectly invites or permits without charge any person to use the
property for recreational purposes” (emphasis added)).
And to the extent HRUS is at all ambiguous, its legislative history
confirms that it is not intended to limit liability for commercial activities. For
example, the Committee on Lands and Natural Resources explained: “The purpose
of this bill is to limit the liability of landowners who permit persons to use their
property for recreational purposes without charge. This bill would not affect the
landowners’ common law duty of care towards house guests, business invitees
. . . .” Sen. Stand. Comm. Rep. No. 534, in 1969 Senate Journal, at 1075
(emphases added); see also Hse. Stand. Comm. Rep. No. 760, in 1969 House
Journal, at 914 (“This relief of liability is not unlimited as it does not apply to . . .
situations where a fee is charged for the use of the land . . . .”).
Based on HRUS’ statutory language and legislative history, the
Hawaii Supreme Court has held that “HRUS confers upon the ‘owner’ of land
immunity from negligence liability to any person -- who is neither ‘charged’ for
the right to be present nor a ‘house guest’ -- injured on the land while that person
is using the owner’s land for a ‘recreational purpose.’” Crichfield v. Grand
Wailea Co., 93 Haw. 477, 485, 6 P.3d 349, 357 (2000). Thus, where the
individual is on the property for a commercial purpose, HRUS does not apply. Id.
at 488, 6 P.3d at 360 (determining that plaintiff’s assertions that she was on hotel
property for lunch and not merely to view the landscaping raised a genuine issue
of material fact as to whether HRUS applied); Nam Soon Jeon v. 445 Seaside, Inc.,
2013 WL 431846, at *13 (D. Haw. Jan. 31, 2013) (rejecting argument that plaintiff
was a “recreational user” of hotel pool where no fee was charged for the pool, yet
plaintiff was a paying guest).
Applying these principles, the court has little difficulty finding that
Defendant has failed to carry its burden of establishing that HRUS bars Plaintiff’s
claims -- HRUS does not apply in this case where Plaintiff was on a paid ATV
tour offered by Defendant on its property.4 The court therefore DENIES
Defendant’s Motion for Summary Judgment to the extent it argues that HRUS bars
In Reply, Defendant makes a specious argument -- that Plaintiff’s sole purpose for
participating on the tour was for recreation. See Doc. No. 48, Def.’s Reply at 10. In making this
argument, Defendant relies on Crichfield, which held that a person’s subjective intent in being
present on an owner’s land is material to whether the person is a “recreational user” engaged in a
“recreational purpose” at the time of the injury. 93 Haw. at 487, 6 P.3d at 359. Defendant’s
argument ignores the obvious -- Plaintiff paid for a tour of Defendant’s ranch.
Whether Plaintiff Has Established a Lack of Unreasonable Harm to
Support Her Premises Liability Claims
Finally, Defendant argues that Plaintiff’s premises liability claim fails
because she failed to establish any unreasonable risk of harm posed by the
In general, the elements of Plaintiffs’ negligence claims are (1) a duty
requiring the defendant “to conform to a standard of conduct, for the protection of
others against unreasonable risks,” (2) a breach of that duty; (3) “[a] reasonably
close causal connection between the conduct and the resulting injury,” and
(4) damages. Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d
377, 383 (Haw. 1987). For a negligence claim based on premises liability, the
Hawaii Supreme Court has held:
if a condition exists upon the land which poses an
unreasonable risk of harm to persons using the land, then
the possessor of the land, if the possessor knows, or
should have known of the unreasonable risk, owes a duty
to the persons using the land to take reasonable steps to
eliminate the unreasonable risk, or adequately to warn
the users against it.
Corbett v. Ass’n of Apartment Owners of Wailua Bayview Apartments, 70 Haw.
415, 417, 772 P.2d 693, 695 (1989)). In other words, “an owner or occupant of
the land will be liable for a plaintiff’s injury if the owner or occupant was
previously put on actual or constructive notice of an unreasonably unsafe
condition that caused the injury.” Campos v. United States, 2008 WL 2230717, at
*5 (D. Haw. May 30, 2008) (citing Harris v. State, 1 Haw. App. 554, 557, 623
P.2d 446, 448 (1981)). “The owner or occupant is put on constructive notice of
the unsafe condition if it existed for such a period of time that the owner or
occupant should have been able to detect it through the exercise of reasonable
diligence.” Id. (citing Hascup v. City & County of Honolulu, 2 Haw. App. 639,
640, 638 P.2d 870, 872 n.1 (1982)). “Ordinarily, issues of negligence are not
susceptible of summary judgment,” and summary judgment is appropriate only
when “facts are undisputed or lend themselves to only one reasonable
interpretation or conclusion.” Rodriguez v. Gen. Dynamics Armament & Tech.
Prods., 696 F. Supp. 2d 1163, 1177 (D. Haw. 2010).
Defendant argues that Plaintiff’s premises liability claim fails because
there is no evidence that dangerous conditions and/or obstacles existed in the area
where Plaintiff lost control of the ATV, and even if the trail posed an unreasonable
risk of harm, there is no evidence suggesting that Defendant knew or should have
known of the risk of harm. See Doc. No. 42-3, Def.’s Mot. at 19-20. Viewed in a
light most favorable to Plaintiff, the court finds that the facts lend themselves to
more than one reasonable interpretation and therefore preclude summary
judgment. In particular, Plaintiff was injured engaging in an activity that clearly
presented some risk -- ATV riding on ranch trails. Given this activity, the court
cannot discern (and is not in a position to determine as a matter of law) whether
the trail posed an unreasonable risk of harm.5 Further, there is a genuine issue of
material fact whether Defendant was aware of the condition of the trail and the
presence of a tree where tours were regularly conducted on the ranch.6
The court therefore DENIES Defendant’s Motion for Summary
Judgment on Plaintiff’s premises liability claim.
Although Defendant presents copies of photographs of the trail, see Doc. No. 42-7,
Def.’s Ex. C, they are of poor quality and unhelpful in determining the condition of the trail.
Even if the photographs were of better quality, the court would not able to determine on
summary judgment whether the trail posed an unreasonable risk for ATV riding.
In opposing summary judgment, Plaintiff argues that Defendant’s subsequent acts of
removing the tree Plaintiff hit and adding additional rocks to this part of the trail show that
Defendant was aware of the trail conditions prior to the accident. See Doc. No. 46, Pl.’s Opp’n at
23. Neither party addresses whether such evidence is admissible pursuant to Federal Rule of
Evidence 407 governing subsequent remedial measures, and the court need not rely on this
evidence in denying the Motion for Summary Judgment. See also Grabau v. Target Corp., 2008
WL 616068, at *2 (D. Colo. Feb. 29, 2008) (excluding from trial as barred by Rule 407 evidence
of subsequent corrective action offered to prove knowledge of a dangerous condition).
Based on the above, the court DENIES Defendant’s Motion for
Summary Judgment on All Claims.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 7, 2014.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Mohler v. Kipu Ranch, LLC, et al., Civ. No. 13-00611 JMS-BMK, Order Denying Defendant
Kipu Ranch Adventures, LLC’s Motion for Summary Judgment on All Claims, Doc. No. 42
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