Dyniewicz v. County of Hawaii

Citations: 6 Haw. App. 582; 733 P.2d 1224; 1987 Haw. App. LEXIS 43Docket: NO. 10622

Court: Hawaii Intermediate Court of Appeals; March 10, 1987; Hawaii; State Appellate Court

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Plaintiffs Casimir W. Dyniewicz and Harold Freitag appeal a summary judgment favoring the County of Hawaii and the State of Hawaii regarding claims stemming from the deaths of Mark and Carol Dyniewicz during a storm on March 17-18, 1980. The court upheld the trial court's findings, confirming that the County was immune from liability for its agents’ disaster relief actions during the storm and that the denial of a jury trial against the State was not an abuse of discretion. On the night of their arrival in Hawaii, the Dyniewiczes rented a car and were advised by the rental clerk, Kari Alonzo, about dangerous flooding conditions and road closures, particularly concerning their intended destination, the Volcano House. The Dyniewiczes, however, missed the turn for the Volcano House and continued toward Ka‘u, ultimately encountering hazardous conditions at a ford on Route 11 that was normally dry but designed for water flow during heavy rains. The area lacked guardrails, and the stormy weather conditions had prompted the activation of civil defense operations shortly after 3:00 a.m. on March 17, 1980.

A significant storm, classified as a hundred-year storm, occurred from March 17 to 18, 1980, near a ford in Hawaii. The Hawaii County Police Department monitored Route 11, which became impassable at Piikea Bridge around 8:30 p.m. on March 17. They erected a barricade to block Hilo-bound traffic approximately 0.4 miles past milepost 50 and requested the National Park Service to close Ka‘u-bound traffic at Namakani Paio, where a barricade was set up by 9:10 p.m. Both barricades were unmanned after 9:30 p.m., and there is no evidence that the Dyniewiczes arrived at either location before or after the barricades were established.

A ford sign warning of dangerous conditions when water touches red was located 15 feet before milepost 49, with "FORD" printed in red and other warning text in black. The sign was 695 feet from the culvert under the ford and 485 feet from the nearest guidepost. The State had installed a system of approximately 40 guideposts acting as a depth gauge for flooding, with the red portion positioned 6 inches above the roadway's centerline. The red paint was not reflectorized, and the posts followed the roadway's contour. 

Testimony indicated that it takes 1.4 feet of water moving at 8 feet per second to displace a compact car, and 1.6 feet for larger vehicles. The court found the guidepost system's design consistent with good engineering practices. It is assumed that the Dyniewiczes’ vehicle was swept off the road during the storm, with the car later found in the stream bed on March 25, 1980, approximately 417 feet from the southeast edge of the ford. There is no evidence detailing the heights of the culvert or the road in relation to the stream bed.

The car involved in the accident was found overturned, with the Dyniewiczes' bodies inside. The headlight switch was off, the transmission was in park, and the keys were in Mark's pocket. The coroner reported that Carol died from multiple injuries and Mark from asphyxia and other injuries. No evidence indicated another vehicle was washed off the ford during its 30-year history. On March 25, 1980, Governor Ariyoshi declared a major disaster in several districts of Hawaii due to heavy rains and flooding, allowing state funds for relief. On October 7, 1981, the Plaintiffs sued the State, County, and Slim Holt, Inc. for wrongful death, seeking a jury trial. Slim Holt Budget Rent A Car, Inc. was identified as a defendant in May 1982. The court granted summary judgment for Slim Holt entities in May 1982 and for the County in January 1984. The State filed a notice against the jury trial on August 3, 1984, which the court denied. During the subsequent bench trial, the court ruled that the Plaintiffs did not prove negligence or proximate causation, resulting in a judgment for the State. The Plaintiffs contested the summary judgment for the County, but did not dispute that the State was responsible for the roadway and ford's design and maintenance. Their claims against the County included negligence for failing to prevent flooding-related injuries, inadequate highway precautions, and lack of proper warning signs. The court dismissed these claims based on the County's immunity from personal injury claims during civil defense functions under HRS 128-18.

HRS § 127-10 (1985) allows the governor and political subdivisions to exercise disaster-related powers during the suspension of HRS §§ 127-1 to 127-9, applicable to disasters from enemy attacks and other natural or man-made disasters. It defines "other disaster relief" to include actions to minimize and repair damage from various disasters, thereby extending the laws governing enemy-related disasters to all disaster relief efforts. HRS §§ 127-1 to 127-9 have been suspended since 1951. 

Under HRS § 128-18, neither the State nor its political subdivisions are liable for damages resulting from acts or omissions during disaster relief functions. This immunity applies to the County in this case, as the claims made by the Plaintiffs pertain solely to negligent disaster relief actions. The Plaintiffs’ argument that the County lacked authority to engage in disaster relief without a gubernatorial proclamation is rejected, as such a proclamation is not necessary for the immunity provided under HRS § 128-18, as modified by HRS § 127-10. The immunity applies as long as the County is engaged in disaster relief functions, which was the case during the incidents in question.

Additionally, the court found no reversible error in denying the Plaintiffs' motion for a jury trial against the State. Claims against the State are governed by the State Tort Liability Act (HRS chapter 662), which mandates court trials without a jury, although jury trials can occur with mutual consent. The legal representatives for the Plaintiffs and Defendants included Ronald G.S. Au and Christopher Yuen, respectively, among others.

Under HRS 662-5, Plaintiffs are not entitled to a jury trial against the State unless they (1) demand a jury trial per Rule 38 of the Hawaii Rules of Civil Procedure, (2) obtain the State's consent, and (3) receive an order from the court. Plaintiffs fulfilled the first requirement but failed to secure the State's consent, arguing that the State's conduct implied consent from its initial pleadings to its later nonconsent. However, the court determined that consent must be express and voluntary, not implied. Additionally, Plaintiffs did not meet the third requirement, leading to the affirmation of the decision.

HRS 128-7 defines the "civil defense emergency period," which includes periods proclaimed under the Federal Civil Defense Act or by the governor in response to threats to the State. The governor is the sole authority to determine the existence of such emergencies, which can be terminated by a governor's proclamation.

HRS 128-8 outlines the governor's additional powers during a civil defense emergency, including the ability to mandate protective devices and shelters in public and private spaces, quarantine individuals with contagious diseases, enforce immunization programs, and manage public nuisances that pose health risks. The governor can also authorize the abatement or destruction of nuisances by law enforcement or designated personnel.

Police and fire departments have the authority to summarily remove or suspend any member of a police commission, chief of police, chief of a fire department, police officer, or firefighter, overriding any conflicting laws. The governor is empowered to suspend laws that hinder the effective execution of civil defense and emergency functions. Under HRS 128-6, the governor may prepare comprehensive civil defense plans that are coordinated with federal and state plans, institute training and public information programs, and assume operational control during disasters beyond local capabilities. The governor can authorize insignia for authorized personnel, mandate compulsory registration and blood typing, and require public utilities to safeguard vital facilities. The governor has the authority to regulate or prohibit hazardous materials, including explosives and firearms, and can conduct investigations related to these materials. Additionally, the governor can direct air raid drills, control public services, manage civilian movement, and implement traffic control during civil defense emergencies, with mandatory requirements enforceable only during such periods.