    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***




                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                05-MAY-2020
                                                                07:51 AM


                             SCWC-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---o0o---
________________________________________________________________

   SHADLEY HAYNES, KURSTIN HAYNES, Individually and as Parent
and Legal Guardian of Minor Children JH and NH; THE OTHER SIDE -
       ROCKSTARZ - LLC, Petitioners/Plaintiffs-Appellants

                                     vs.

      GREGORY FOWLER HAAS; FPA GOLD COAST ASSOCIATES, LLC;
    CLARK REALTY CORPORATION; KONA METRO PARKING & WATCHMAN
 SERVICES, INC.; ALLIED SELF STORAGE CENTER; GUIDO GIACOMETTI;
       CHUNG PARTNERS, Respondents/Defendants-Appellees.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CIV. NO. 12-1-0301K)

                                  MAY 5, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

             OPINION OF THE COURT BY RECKTENWALD, C.J.


                             I.    INTRODUCTION

          This appeal requires us to address whether a plaintiff

can recover damages for injury from a common-law public
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



nuisance.    We conclude that, as a matter of law, such a claim is

cognizable when the plaintiff has suffered individualized harm.

            Plaintiff Shadley Haynes (Shadley) was allegedly

assaulted by Gregory Haas (Haas) in the parking lot of

Rockstarz, a bar that Shadley and his wife, Kurstin Haynes,

owned and operated.      Shadley sustained serious injuries.

Rockstarz - now closed - was located about 0.3 miles from Allied

Self Storage Center (Allied).

            Shadley, Kurstin,1 and The Other Side - Rockstarz - LLC

(collectively, “Plaintiffs”), filed suit in the Circuit Court of

the Third Circuit alleging that Allied and Chung Partners

(collectively, “Defendants”) had created and maintained a public

nuisance by permitting Haas and other homeless individuals to

live on their premises in violation of Hawai‘i County zoning

codes.   Plaintiffs alleged that the nuisance was a substantial

factor in causing Plaintiffs’ injuries and that they are

entitled to damages.

            The circuit court granted summary judgment in favor of

Defendants.2    The Intermediate Court of Appeals (ICA) affirmed


1     Kurstin sued Defendants both as an individual and as the parent and
legal guardian of JH and NH, Kurstin and Shadley’s children.
2     The circuit court also granted Chung Partners’ Motion for Costs under

                                                                    (continued)



                                       2
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the circuit court’s summary judgment orders on the grounds that

Plaintiffs could not recover damages for public nuisance in the

absence of a statute designating the activity as a public

nuisance.    On certiorari, Plaintiffs argue that the ICA gravely

erred in its conclusion that they were foreclosed from

recovering damages as a matter of law.

            We hold that a plaintiff can recover damages stemming

from a public nuisance even absent an explicit statutory

prohibition of the challenged conduct when the plaintiff has

suffered individualized harm.         We thus vacate the circuit

court’s order granting summary judgment to Defendants and the

ICA’s order affirming the circuit court, and remand for further

proceedings consistent with this opinion.

                              II.   BACKGROUND

A.   Circuit Court Proceedings3

     1.     Complaint

            Plaintiffs filed their Complaint on May 2, 2012, and

amended it three times.4       Count V of the Third Amended Complaint,


Hawai‘i Rules of Civil Procedure (HRCP) Rules 54(d) and 68, which the ICA
affirmed in part. As set forth below, because we vacate the circuit court’s
grant of summary judgment, we also vacate the award of costs.
3    The Honorable Ronald Ibarra presided.
4    Plaintiffs’ Third Amended Complaint also named Defendants Haas, FPA

                                                                    (continued)



                                       3
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the only count that implicated Allied and Chung Partners,

alleged:

            59. By allowing Defendant Haas and others to live in
            one of its storage units in violation of land use and
            public health laws, Defendant Allied caused its
            property and the surrounding non-residential area to
            become a home to vagrants, drug users, criminals and
            other dangerous and undesirable people who otherwise
            would not be in this business and industrial area at
            night. As a result, Defendant Allied created a
            condition that was (a) unreasonably dangerous and (b)
            affected a public place, and thereby maintained a
            public nuisance.

            60. As lessee/sub-lessor of the 74-5540 Kaiwi Street
            property (“Allied Storage property”), Defendant Chung
            had a duty not to maintain the hereinabove described
            nuisance on the property.

            61. Defendant Chung breached its duty not to
            maintain the hereinabove described nuisance on the
            Allied Storage property.

            The Third Amended Complaint also alleged that as a

proximate result of this nuisance, Shadley suffered severe

physical injuries, traumatic brain injury, and severe emotional

distress; that Shadley, Kurstin, and their children, JH and NH,

suffered other special and general damages to be proven at


Gold Coast Associates, LLC (Gold Coast), Clark Realty Corporation (Clark),
Kona Metro Parking & Watchman Services, Inc. (Metro), Guido Giacometti
(Giacometti), and Doe Defendants 1-10. Plaintiffs alleged that Gold Coast
owned and leased the property where Rockstarz was located, while Clark was a
property management business. According to Plaintiffs, Metro was a security
business for parking lots and other areas around the Rockstarz building, and
Giacometti was the receiver Clark had hired to manage the Rockstarz premises’
daily affairs.

      In addition to Count V against Defendants, Plaintiffs’ complaint
asserted one count of assault and battery against Haas, four counts of
negligence and gross negligence against Gold Coast, Clark, Metro, and
Giacometti, respectively, and one count against all of the defendants on
behalf of JH and NH for loss of consortium, intentional infliction of
emotional distress, and negligent infliction of emotional distress.

                                       4
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



trial; and that Rockstarz suffered loss of business and

diminished business reputation.

     2.    Chung Partners’ Motions for Summary Judgment

           In two separate motions for summary judgment, Chung

Partners argued that it was not liable for Plaintiffs’ damages,

first because it had no duty to Shadley, and second because it

had no knowledge of homeless individuals residing in storage

units.    Allied filed a notice of joinder in both motions.

           Chung Partners argued that under Restatement (Second)

of Torts §§ 8375 and 3566 (Am. Law Inst. 1979) (Restatement) it


5    Restatement 2d of Torts § 837 provides:

           (1) A lessor of land is subject to liability for a
           nuisance caused by an activity carried on upon the
           land while the lease continues and the lessor
           continues as owner, if the lessor would be liable if
           he had carried on the activity himself, and

           (a) at the time of the lease the lessor consents to
           the activity or knows or has reason to know that it
           will be carried on, and

           (b) he then knows or should know that it will
           necessarily involve or is causing the nuisance.
6    Restatement 2d of Torts § 356 comment (a) provides:

           When land is leased to a tenant, the law of property
           regards the lease as equivalent to a sale of land for
           the term of the lease. The lessee acquires an estate
           in the land, and becomes for the time being the owner
           and occupier, subject to all of the liabilities of
           one in possession, both to those who enter the land
           and to those outside of it . . . . [I]t is the
           general rule that the lessor is not liable to the
           lessee, or to others on the land, even though such
           injuries resulted from a dangerous condition existing
           at the time of the transfer.



                                      5
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



could only be held liable for nuisance on its leased land if it

possessed the land when the nuisance occurred or (1) would be

liable if it carried on the alleged nuisance; (2) consented to

such activity; and (3) knew that such activity would

“necessarily result in” the nuisance.

           Chung Partners argued that although Hawai‘i case law

was silent on applying Restatement § 837, “ample case law” from

other jurisdictions supported its application.7             And, citing Hao

v. Campbell Estate, 76 Hawai‘i 77, 869 P.2d 216 (1994), Chung

Partners argued that Hawai‘i cases had recognized Restatement

§ 356’s general rule that “landowner[s were] not liable for

injuries occurring after a lessee takes possession of the land.”

           Chung Partners submitted a declaration of one of its

principals, Sung Hun Chung, stating that Chung Partners did not

know that Allied allowed people to reside in storage units, and




7     Chung cited to the following cases for support: City of Los Angeles v.
Star Sand & Gravel Co., 12 P.2d 69 (Cal. Ct. App. 1932) (holding that owner
of premises leased for purpose attainable without creating nuisance was held
not liable for creation of nuisance without owner’s knowledge or notice);
Silverman v. Unsen, 147 A. 421 (Me. 1929) (holding that lessor of shooting
gallery was not liable to third person for injury resulting from lessee’s
negligence); Meloy v City of Santa Monica, 12 P.2d 1072 (Cal. Ct. App. 1932)
(holding that in order to charge landlord with liability, nuisance must
necessarily result from tenant’s ordinary use of premises, or from purposes
for which premises were let); Wasilewski v. McGuire Art Shop, 187 A. 530
(N.J. 1936) (holding that landlord renting entire store premises to tenant
who undertook to make repairs was not liable for pedestrian’s injury when
caused by tenant’s negligence); Midland Oil Co. v. Thigpen, 4 F.2d 85 (8th
Cir. 1924) (holding that a tenant, not a landlord, will be “owner” so far as
negligent injuries to third parties are concerned).

                                       6
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



furthermore, that Plaintiffs’ complaint failed to even allege

such information.     Accordingly, Chung Partners concluded that it

could not be held liable for public nuisance.

          Chung Partners next argued that, contrary to

Plaintiffs’ assertion, it had no “duty not to maintain” a

nuisance on Allied’s property.        Chung Partners explained that

under Hawai‘i case law, “courts are reluctant to impose a duty on

owners and occupiers of land to protect others against the

criminal act[s] of third parties.”         And, because Hawai‘i follows

Restatement § 315,8 only a “special relationship” between Chung

Partners and Plaintiffs could require Chung Partners to protect

them from harm by Haas.      In the instant case, Chung Partners

argued, there was no special relationship between it and

Plaintiffs.   Accordingly, Chung Partners concluded that it could

not have been required to control Haas’ conduct.




8    Restatement § 315 provides:

          There is no duty so to control the conduct of a third
          person as to prevent him from causing physical harm
          to another unless:

          (a) A special relation exists between the actor and
          the third person which imposes a duty upon the actor
          to control the third person’s conduct, or

          (b) A special relation exists between the actor and
          the other which gives to the other a right to
          protection.




                                      7
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



          In Chung Partners’ second Motion for Summary Judgment,

it noted that Restatement § 821B construed public nuisances as

unreasonable conduct of a certain nature.9          Second, Chung

Partners pointed out that in Littleton v. State, 66 Haw. 55, 67,

656 P.2d 1336, 1344-45 (1982), this court held that for behavior

to be a public nuisance, the act or use of the property at issue

must have been in a public place or somewhere the public

frequently congregated.

          Chung Partners further maintained that people could

not be nuisances; only their unreasonable conduct could be a

nuisance if it interfered with a common right.            And even if

Allied created a nuisance, it did not create an unreasonable

interference with any right common to the general public or to


9    Restatement § 821B provides:

          (1)   A public nuisance is an unreasonable
          interference with a right common to the general
          public.

          (2)   Circumstances that may sustain a holding that
          an interference with a public right is unreasonable
          include the following:

                (a)   Whether the conduct involves a
          significant interference with the public health, the
          public safety, the public peace, the public comfort,
          or the public convenience, or

                (b)   whether the conduct is proscribed by a
          statute, ordinance, or administrative regulation, or

                (c)    whether the conduct is of a continuing
          nature or has produced a permanent or long-lasting
          effect, and, as the actor knows or has reason to
          know, has a significant effect upon the public right.

                                      8
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



the Plaintiffs 0.3 miles away.

     3.      Plaintiffs’ Response to Chung Partners’ Motions for
             Summary Judgment

             Citing Littleton v. State, 66 Haw. at 67, 656 P.2d at

1344-45 (1982), and Territory v. Fujiwara, 33 Haw. 428, 429-30

(1935), Plaintiffs argued that a court may not decide at summary

judgment whether a public nuisance exists; instead, that

question is reserved for the fact-finder.           Plaintiffs also

argued that, as a matter of law, defendants can be held liable

for public nuisances that extend from activity on the

defendants’ property.

             Plaintiffs next noted that the use of the storage

units for residences was “illegal” because the area was zoned as

“General Industrial.”      Furthermore, Plaintiffs relied on the

expert testimony of Spike Denis, a premises security expert,

that it was reasonably foreseeable that homeless residents would

commit assault, not only on the premises but in the surrounding

community.

             Plaintiffs presented evidence that the encampment at

Allied was long-running and obvious.         For example, Plaintiffs

quoted from the declaration of James Smith, who stated that he

resided in a storage unit, and that Roy Ebert, who worked under

Sung Hun Chung, told Smith “what I don’t see, I don’t know,” in



                                      9
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



reference to residential use of the storage unit.              Plaintiffs

further stated that Allied changed its name to Kaiwi Storage

after this incident, and hired Metro to address the issue of

homeless individuals residing in units.           Metro employees working

there after the assault testified that they observed signs of

residential use on the property.

            Plaintiffs argued Chung Partners was liable for the

nuisance maintained by Allied because one of Chung Partners’

principals, Sung Hun Chung, knew or should have known of the

homeless situation on Allied’s leased property.             On the date of

the incident, Plaintiffs alleged, Sung Hun Chung was not only

the managing partner of Chung Partners, but also the manager and

secretary of Allied.      Further, Sung Hun Chung had an office and

P.O. box on Allied’s premises for nearly six years.

Accordingly, Plaintiffs argued Sung Hun Chung knew or should

have known about Allied’s homeless residents.10


10    Plaintiffs presented two other alternative theories of liability.
First, Plaintiffs argued that there were unresolved issues of material fact
as to whether Chung Partners, as transferee of Allied’s business in 2012,
assumed Allied’s liabilities. Though the purchase and sale agreement was
written as a sale of assets, Plaintiffs raised several factual issues that
they contended could have supported Chung Partners’ liability.

      Second, Plaintiffs argued that Chung Partners was never out of
possession of the premises leased to Allied, and therefore Chung Partners was
tenants-in-common with Allied and equally liable for Allied’s torts. The
Allied premises were originally leased by the Trustees of the Lili‘uokalani

                                                                    (continued)



                                      10
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



           The circuit court heard Chung Partners’ Motions for

Summary Judgment and Allied’s Notice of Joinder, and

subsequently granted the three motions in a minute order.               The

court’s minute order was brief and did not explain its specific

rationale for granting Defendants’ motions for summary judgment.

           Chung Partners then filed a Motion for Costs pursuant

to HRCP Rules 54(d)11 and 6812.       In its Memorandum of Support,


Trust to Chung Partners. Chung Partners thereafter subleased a portion of
the premises to Allied, but the sublease did not provide specific metes and
bounds of the premises. Therefore, Allied and Chung Partners were co-tenants
in equal possession of the premises under Hawai‘i law and Allied maintained
interest in all of the larger area.
11   HRCP Rule 54(d) provides in relevant part:

           (d) Costs; Attorneys’ Fees

                 (1)   Costs Other Than Attorneys’ Fees. Except
           when express provision therefor is made either in a
           statute or in these rules, costs shall be allowed as
           of course to the prevailing party unless the court
           otherwise directs; but costs against the State or a
           county, or an officer or agency of the State or a
           county, shall be imposed only to the extent permitted
           by law...

                  (2) Attorneys’ Fees.

                        (A)   Claims for attorneys’ fees and
                              related nontaxable expenses shall
                              be made by motion unless the
                              substantive law governing the
                              action provides for the recovery of
                              such fees as an element of damages
                              to be proved at trial.
12   HRCP Rule 68 provides:

           At any time more than 10 days before the trial
           begins, any party may serve upon any adverse party an

                                                                    (continued)



                                      11
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



Chung Partners alleged that after a failed attempt to mediate,

it offered to settle for $25,000 pursuant to HRCP Rule 68 on

August 6, 2015, with “each party to bear their own fees and

costs,” which Plaintiffs rejected.          Chung Partners incurred

costs of $29,429.69 prior to its Offer of Settlement and

$35,546.76 after the offer was rejected.           After a hearing, the

court granted Chung Partners’ Motion for Costs in the amount of

$22,085.22 without stating whether it was granting the motion

based on HRCP Rule 54(d) or Rule 68.




            offer of settlement or an offer to allow judgment to
            be taken against either party for the money or
            property or to the effect specified in the offer,
            with costs then accrued. If within 10 days after the
            service of the offer the adverse party serves written
            notice that the offer is accepted, either party may
            then file the offer and notice of acceptance together
            with proof of service thereof and thereupon the clerk
            shall, in accordance with the agreement, enter an
            order of dismissal or a judgment. An offer not
            accepted shall be deemed withdrawn and evidence
            thereof is not admissible except in a proceeding to
            determine costs. If the judgment finally obtained by
            the offeree is not more favorable than the offer, the
            offeree must pay the costs incurred after the making
            of the offer. The fact that an offer is made but not
            accepted does not preclude a subsequent offer. When
            the liability of one party to another has been
            determined by verdict or order or judgment, but the
            amount or extent of the liability remains to be
            determined by further proceedings, either party may
            make an offer of judgment, which shall have the same
            effect as an offer made before trial if it is served
            within a reasonable time not less than 10 days prior
            to the commencement of hearings to determine the
            amount or extent of liability.

(Emphases added).

                                      12
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



B.   ICA Proceedings

     1.    Opening Brief

           Plaintiffs appealed the circuit court’s orders

granting summary judgment and awarding costs to Chung Partners.

They argued that under Hawai‘i case law, whether a public

nuisance existed and whether a plaintiff’s injuries were

proximately caused by a defendant’s breach of a statutory duty

were questions for a jury to decide, citing to this court’s

opinions in Littleton v. State, 66 Haw. 55, 67, 656 P.2d 1336,

1345 (1982) and Territory v. Fujiwara, 33 Haw. 428, 429-30

(Terr. 1935).     Plaintiffs also contended that there remained

genuine issues of material fact as to the existence of a public

nuisance on the Allied premises and Chung Partners’ liability

for it.

           Plaintiffs also argued that the circuit court’s award

of costs to Chung Partners was improper.           First, Plaintiffs

argued that because summary judgment was inappropriate, Chung

Partners was not the prevailing party.           Plaintiffs then argued

that even if summary judgment were proper, the award of costs

was still inappropriate because applying HRCP Rule 68 as written

could deprive Plaintiffs of the constitutional right to have a

jury decide liability.

           Plaintiffs also asserted Chung Partners’ HRCP Rule 68

                                      13
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



offer of settlement was defective because it did not offer to

pay Plaintiffs’ costs, nor would the offer fully and completely

resolve all of Plaintiffs’ claims because it did not include an

admission of liability.       Thus, Plaintiffs concluded the circuit

court erred in granting Chung Partners’ Motion for Costs.

     2.    Answering Briefs13

           Allied first disputed Plaintiffs’ claim that

homelessness could be a public nuisance.           Relying on Restatement


13    Haas’ liability for the assault was not contested on appeal. However,
Haas filed an Answering Brief to the ICA that asserted the following four
points of error in the circuit court’s ruling:

           (1) Judge Ibarra had a conflict of interest because
           he presided over both the criminal and civil case in
           the same matter. After the jury convicted Haas in
           the criminal trial, “numerous rulings” were made,
           including summary judgment;

           (2) Haas did not assault anyone and was attacked by
           employees of Rockstarz who were drinking alcohol and
           using drugs. The alleged attack against Haas
           resulted in serious injuries including permanent
           paralysis to half of Haas’ face and four broken
           teeth. Haas required stitches and facial surgery,
           including metal plates in his eye socket;

           (3) there was evidence spoliation of a hard drive
           containing surveillance camera footage. The footage,
           according to Haas, was hidden from prosecutors and
           police for over a year until a third party notified
           the prosecutor that the video evidence existed. Haas
           then alleged that Haynes’ attorney “spoiled” the
           evidence because the footage could not be viewed from
           the hard drive, despite the police purchasing a
           special player for the hard drive; and

           (4) that he was “definitely not living at the Kona
           storage facility and in fact never slept there.”
           Further, being homeless did not have anything to do
           with this incident.

     Given our disposition of the case, we need not address Haas’ arguments.

                                      14
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



§ 821B(1) and Littleton, 66 Haw. at 67, 656 P.2d at 1344-45,

Allied defined public nuisance as unreasonable conduct that

interferes with a public right.        According to Allied, Plaintiffs

claimed the circumstance of homelessness, as opposed to the

conduct of homeless people, was the nuisance.            Allied also noted

that the mere act of being homeless did not interfere with a

right common to the general public and that Plaintiffs failed to

provide any evidence of unreasonable interference with some

public right.    Allied concluded that homelessness was not a

public nuisance.

          Finally, Allied argued that Plaintiffs failed to point

to any evidence in their Opening Brief that the assault was

reasonably foreseeable.      Nor, Allied contended, was there any

evidence presented that Allied knew or should have known

homeless people were sleeping in rented units.            Finally, the

normal and usual operation of a self-storage business did not

involve liability for an assault by an alleged homeless resident

“almost half a mile away” from the property.

          The arguments in Chung Partners’ Answering Brief

mirrored those presented by Allied, and additionally contested

Plaintiffs’ assertion that it knew or should have known of the

homeless individuals residing in storage units.            Chung Partners

also argued that it did not assume liability for Allied’s torts


                                     15
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



through its purchase of Allied’s assets, which occurred almost a

year after the incident.

            Further, Chung Partners asserted that the circuit

court did not err in awarding it costs.           Because the court

granted summary judgment against Plaintiffs, Chung Partners

argued that the claim that Plaintiffs were deprived the right to

have a jury determine its liability was inapplicable because it

was entitled to judgment as a matter of law.

      3.    ICA’s Memorandum Opinion

            The ICA held that the circuit court did not err in

granting summary judgment.        The ICA noted that in bringing their

public nuisance claim, Plaintiffs sought monetary damages rather

than equitable or injunctive relief.          Although no party had

raised this argument, the ICA determined from a review of the

case law that this court recognizes that only declaratory and

injunctive relief – but not monetary damages – can be recovered

for public nuisance claims not founded on a statutory duty.14

The ICA took the position that in Littleton, liability was

predicated upon a statutory duty to prevent a public nuisance.



14    The ICA cited several cases as examples, including Akau v. Olohana
Corp., 65 Haw. 383, 652 P.2d 1130 (1982) (holding plaintiffs only had
standing for public nuisance claims seeking declaratory and injunctive
relief), and Ideta v. Kuba, 22 Haw. 28 (Haw. Terr. 1914) (holding unlawful
obstruction of a public road or highway also constitutes a public nuisance
for which a claim for injunction can be brought).

                                      16
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



And, in Fujiwara, which Plaintiffs also relied on, the court

considered whether defendants maintained a public nuisance that

violated a criminal statute.        Accordingly, the ICA disagreed

with Plaintiffs’ interpretation of these cases and found that

summary judgment was appropriate.

            With respect to costs, the ICA determined that

awarding costs to Chung Partners, the prevailing party, was

proper under HRCP Rule 54.        Despite this, the ICA concluded that

Chung Partners’ settlement offer was not a valid Rule 68 offer

because it excluded “costs then accrued.”            Therefore, the ICA

held that the circuit court erred in granting Chung Partners’

Motion for Costs under HRCP Rule 68, and it remanded the case to

the circuit court to determine the appropriate amount of costs

to award Chung Partners under HRCP Rule 54(d).

C.      Application for Writ of Certiorari

            On certiorari, Plaintiffs argue that the ICA gravely

erred in affirming the circuit court’s rulings granting summary

judgment on the theory that a plaintiff can only recover damages

for public nuisance where the defendant has violated a statutory

duty.    As a result, Plaintiffs also contend that the ICA erred

by affirming the award of costs to Chung Partners under HRCP

Rule 54(d).




                                      17
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



                         III.    STANDARD OF REVIEW

           On appeal, the grant or denial of summary judgment is

reviewed de novo.      State ex rel. Anzai v. City and Cnty. of

Honolulu, 99 Hawai‘i 508, 515, 57 P.3d 533, 440 (2002).

           [S]ummary judgment is appropriate 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 judgment as a matter of law.

Kahale v. City and Cnty. of Honolulu, 104 Hawai‘i 341, 344, 90

P.3d 233, 236 (2004) (citation omitted).

                                IV.   DISCUSSION

           The ICA erred in holding that a plaintiff can only

recover damages for public nuisance where the defendant has

violated a statutory duty.        Because there are genuine issues of

material fact as to whether Plaintiffs’ claims were viable,

summary judgment was improper.         Accordingly, Chung Partners’

Motion for Costs also should have been denied.

A.   The ICA Erred by Concluding That Damages Were Not
     Recoverable for Public Nuisance Actions Absent a Statutory
     Duty

           In Littleton, the court wrote:

           A nuisance has been variously defined to mean that
           which unlawfully annoys or does damage to another,
           anything that works hurt, inconvenience, or damage,
           anything which annoys or disturbs one in the free
           use, possession, or enjoyment of his [or her]
           property or which renders its ordinary use or
           physical occupation uncomfortable, and anything
           wrongfully done or permitted which injures or annoys
           another in the enjoyment of his [or her] legal

                                       18
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



          rights.

          . . .

          A nuisance, to be a public nuisance, must be in a
          public place, or where the public frequently
          congregate, or where members of the public are likely
          to come within the range of its influence[.]

66 Haw. at 67, 656 P.2d at 1344 (citing 58 Am. Jur. 2d Nuisances

§ 1 at 555 (1971); City of Burlington v. Stockwell, 47 P. 988,

989-90 (Kan. App. 1897)).

          In the instant case, the ICA held that equitable

relief is a plaintiff’s only remedy in public nuisance actions

in the absence of a statutory duty to refrain from conduct

creating or maintaining a public nuisance.           On certiorari,

Plaintiffs challenge this holding, asserting that it improperly

interprets Littleton, 66 Haw. at 69, 656 P.2d at 1339. We agree

with Plaintiffs that a different conclusion is warranted.

          In Littleton, the court addressed whether the City and

County of Honolulu could be liable for damages to a plaintiff

who had been injured on the beach by a washed-up log when the

City failed to fulfill its statutory mandate under HRS § 46-12

to remove debris that could constitute a “public nuisance.”                  Id.

at 66, 656 P.2d at 1344.      After examining HRS § 46-12’s

legislative history, which characterized O‘ahu’s beaches and

shores as “valuable assets” that needed “regular maintenance[,]

vital to the tourist industry [and] recreation[,]” we explained:


                                     19
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            We think . . . that the City has the sole
            responsibility to remove and clear all seaweed, limu,
            and debris “which is likely to create an unsanitary
            condition or to otherwise become a public nuisance”
            from those shores and beaches around Oahu which are
            likely to be used with some frequency by . . . the
            public. So that if the City fails to perform this
            statutory duty and permits a condition to exist
            which, of itself, creates an unreasonable risk of
            harm, then the City may be held liable for any
            resulting injury. Its liability would be predicated
            upon the breach of a statutory duty which leads to
            harm.

Id. at 66-67, 656 P.2d at 1344 (emphasis added) (citation

omitted).

            It was from this passage that the ICA derived its rule

that, absent such a statutory duty, a plaintiff could obtain

only equitable relief in a public nuisance action.

            A closer look at Littleton, however, as well as other

cases from our jurisdiction, does not support such a narrow

rule.   As the ICA observed, this court has generally awarded

injunctive and declaratory relief, rather than damages, in

public nuisance actions.       See Akau, 65 Haw. 383, 652 P.2d 1130

(1982) (holding that plaintiffs had standing to assert a public

nuisance claim and seek injunctive or declaratory relief);

Ideta, 22 Haw. 28 (holding that an unlawful obstruction of a

public road was a public nuisance from which a suit for

injunction could be brought); Cluney v. Lee Wai, 10 Haw. 319

(Haw. Rep. 1896) (holding that plaintiffs were entitled to

injunctive relief from nuisance of loud instruments during the


                                     20
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



nighttime); City and Cnty. of Honolulu v. Cavness, 45 Haw. 232,

233, 364 P.2d, 646, 648 (1961) (holding that abatement by

demolition of building that constituted a public nuisance was

appropriate remedy).

          However, none of these cases, including Littleton,

expressly rejected a claim for damages in the absence of a

statutory duty.     To the contrary, several cases from our

jurisdiction suggest that damages are available even absent the

breach of a statutory duty.

          In Choy Too v. Kaiwiki Sugar Co., 32 Haw. 611 (1933),

the Supreme Court of the Territory of Hawai‘i held that in a

wrongful death action, a complaint alleging both negligence and

nuisance could proceed as one cause of action for damages.               Id.

In that case, the wife of the decedent, on behalf of their

children, sued Kaiwiki Sugar Company and alleged that the

decedent was killed: “(1) [by] the negligent and wrongful act of

the said defendant and (2) by the said defendant maintaining a

public nuisance.”     Id. at 612.     The court explained:

          We think the complaint only alleges one cause of
          action which, in separate counts, is presented in two
          different aspects. . . . Only one right is sought to
          be enforced and that is the right of the plaintiffs
          to recover damages for the wrongful or negligent
          death of their father. . . . The case presents the
          familiar rule that in actions ex delicto, such as
          this, the plaintiff does not state two or more causes
          of action but only one, when, in different counts, he
          bases his right to recover on different grounds, so
          long as these grounds are not inconsistent with each


                                     21
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



            other and relate to the vindication of one primary
            right.

Id. at 625 (Emphasis added).       In other words, the territorial

court recognized that a plaintiff could recover damages in a

public nuisance action.      Id.

            Damages for nuisance claims were also permitted in

Fernandez v. People’s Ice and Refrigerating Co., 5 Haw. 532, 533

(1886), and Whitesell v. Houlton, 2 Haw. App. 365, 366, 632 P.2d

1077, 1078 (1981).     In Fernandez, the Supreme Court of the

Kingdom of Hawai‘i awarded damages to the plaintiff when soot and

smoke from the furnace of an ice factory caused specific harm to

the plaintiff and his property, finding that necessity of

providing ice to the public was not a defense to the claim.                  5

Haw. at 535.    And in Whitesell, the ICA determined that a

defendant whose banyan tree encroached onto a neighboring

property could be liable for damages from the tree’s falling

branches.    2 Haw. App. at 365-66 (although “non-noxious plants

ordinarily are not nuisances,” in cases where overhanging

branches or roots cause harm to other property, “the damaged or

imminently endangered neighbor may require the owner of the tree

to pay for the damages[.]”).

            Chung Partners argues that Fernandez and Whitesell are

inapplicable because those cases concerned private, rather than



                                     22
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



public, nuisances.     Chung Partners’ argument lacks merit.

First, the text of the cases does not limit their applicability

to either “public” or “private” nuisances.           In fact, neither

case specifies to which category the nuisance belonged.              And

this court and others have recognized that nuisances can

properly be classified as both.        See Fujiwara, 33 Haw. at 429-30

(“Nuisances are classified into public nuisances and private

nuisances, or sometimes as both public and private.             The latter

are sometimes called mixed nuisances, or . . . those which are

public and which at the same time cause special damages to

private individuals.”); Prins v. Schreyer, 406 A.2d 439, 442

(Md. Ct. Spec. App. 1979) (explaining that public nuisances

could be classified as (1) per se or statutory nuisances; (2)

nuisances that prejudice public health or comfort; and (3)

nuisances “which in their nature are not nuisances, but may

become so by reason of their locality, surroundings, or the

manner in which they may be maintained”) (citing Burley v. City

of Annapolis, 34 A.2d 603 (Md. 1943)).

          Thus, our case law does not require a statutory breach

in order for a plaintiff to assert a claim for damages.

Littleton provides an example of when a statute would give rise

to a damages remedy, but does not limit damages to statutory

violations.   Furthermore, although this court has provided


                                     23
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



injunctive relief in public nuisance cases, we have not

explicitly rejected a damages remedy.

            In order to clarify our public nuisance law,

Plaintiffs ask this court to adopt Restatement § 821C,15 which

allows an individual to sue for damages under a public nuisance

theory if they have suffered a harm different than that of the

public.16   Under the Restatement, “when the public nuisance

causes personal injury to the plaintiff or physical harm to his

land or chattels, the harm is normally different in kind from

that suffered by other members of the public.”             Restatement

(Second) of Torts § 821C, cmt. d (Am. Law Inst. 1979).               The

Restatement rule would therefore allow Plaintiffs in this case


15    Restatement § 821C (Who Can Recover for Public Nuisance) provides:

            (1) In order to recover damages in an individual
            action for a public nuisance, one must have suffered
            harm of a kind different from that suffered by other
            members of the public exercising the right common to
            the general public that was the subject of
            interference.

            (2) In order to maintain a proceeding to enjoin to
            abate a public nuisance, one must: (a) have the right
            to recover damages, as indicated in Subsection (1),
            or (b) have authority as a public official or public
            agency to represent the state or a political
            subdivision in the matter, or (c) have standing to
            sue as a representative of the general public, as a
            citizen in a citizen’s action or as a member of a
            class in a class action.
16    In Akau, we cited to Restatement § 821C(2) with respect to standing to
note the “trend in the law . . . away from focusing on whether the injury is
shared by the public, to whether the plaintiff was in fact injured.” See 65
Haw. at 386 n.3. However, we did not specifically adopt Restatement § 821C
through that opinion.

                                      24
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



to sue for damages since they are alleging a personal injury.

          A number of jurisdictions have adopted a rule

consistent with Restatement § 821C.         See, e.g., Birke v. Oakwood

Worldwide, 169 Cal. App. 4th 1540, 1550 (2009); Gilmore v.

Stanmar, Inc., 633 N.E.2d 985, 993 (Ill. App. 3d 1994); T&L

Redemption Center Corp. v. Phoenix Beverages, Inc., 561 N.Y.S.2d

619, 621 (1990) (“It is [] clear [] that one who suffers damage

or injury, beyond that of the general inconvenience to the

public at large, may recover for such nuisance in

damages . . . .    This is old law.”); Johnson v. Bryco Arms, 304

F. Supp. 2d 383, 391 (E.D.N.Y. 2004).          Such a rule is sensible:

          There are numerous differences between an action for
          tort damages and an action for an injunction or
          abatement, and precedents for the two are by no means
          interchangeable. In determining whether to award
          damages, the court’s task is to decide whether it is
          unreasonable to engage in the conduct without paying
          for the harm done. Although a general activity may
          have great utility, it may still be unreasonable to
          inflict the harm without compensating for it. In an
          action for injunction, the question is whether the
          activity itself is so unreasonable that it must be
          stopped. It may be reasonable to continue an
          important activity if payment is made for the harm it
          is causing but unreasonable to continue it without
          paying.

          On the other hand, an award of damages is
          retroactive, applying to past conduct, while an
          injunction applies only to the future. In addition,
          for damages to be awarded, significant harm must have
          been actually incurred while for an injunction harm
          need only be threatened and need not actually have
          been sustained at all. (See [Restatement] § 821F,
          comment b). To maintain a damage action for a public
          nuisance, one must have suffered damage different in
          kind from that suffered by the general public; this
          is not necessarily true in a suit for abatement or
          injunction. (See [Restatement] § 821C).

                                     25
    *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***




7 Am. Law of Torts § 20:5, Public Nuisance (2019) (emphases

added) (citing Restatement § 821B, cmt. i (Am. Law Inst. 1979)).

          Restatement § 821C is consistent with our existing

case law and logically sound.        We thus adopt the rule as stated

therein as Hawai‘i law.      The purpose of damages in public

nuisance actions is to compensate plaintiffs who have suffered

special harm from past nuisance conduct.          Abatement of a present

harm constituting a nuisance would not have the same effect of

compensating a harmed person for their past injuries.              In this

case, resolving all disputed facts in Plaintiffs’ favor,

Plaintiffs meet the test set forth in § 821C.            Thus, the ICA

erred by affirming summary judgment for Defendants.

          Under Hawai‘i law, “[w]hether the act or thing [alleged

to create a nuisance] is really so hurtful or prejudicial to

others as to render it a common nuisance, is a question of fact

to be determined by the jury, court or magistrate called to pass

upon the same.”    Fujiwara, 33 Haw. at 430; see also Littleton,

66 Haw. at 67.

          In this case, the circuit court’s minute order

provided no explanation for why it granted Defendants’ motions

for summary judgment.      Defendants sought summary judgment on

several bases, including that there was no nuisance and that



                                     26
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



there was no duty owed to Shadley.          However, viewing “the

evidence and the inferences drawn therefrom in the light most

favorable” to Plaintiffs as the non-moving party, genuine issues

of material fact exist with respect to whether Defendants

created or maintained a nuisance and whether Chung Partners was

liable to Plaintiffs as lessor of Allied.            We thus vacate the

circuit court’s judgment in favor of Defendants and the ICA’s

judgment affirming the circuit court.

            By vacating the grant of summary judgment, we do not

determine that allowing homeless individuals to reside on

private property necessarily creates a public nuisance.               The

jury is best situated to determine whether the facts of this

particular case, including the commercial nature of the alleged

transaction between homeless individuals and Defendants and the

fact that the incident took place in an industrial area.17




17    At oral argument on Defendants’ motions for summary judgment,
Plaintiffs’ counsel made fact-specific arguments as to the alleged nuisance
present here:

            I think if you’re a commercial business and you’re
            operating illegally and providing a base for people
            to be in an area at [] night where they’re not
            supposed to be . . . the question is is it a public
            nuisance? Suppose you had a camp that was very well
            regulated. . . . You had [] a security guard there
            who watched everyone and you were really trying to
            help these people. I don’t think that would be a
            nuisance because you would have it under some
            control.”


                                      27
     *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***



B.   Because Chung Partners Was Not the Prevailing Party, It Was
     Not Entitled to Costs Under HRCP Rules 54(d) or 68

           The circuit court erred in entering judgment in

Defendants’ favor.      Thus, the order awarding Chung Partners its

costs pursuant to HRCP Rules 54(d) or 68 was also incorrect.                  We

vacate the circuit court’s and ICA’s judgments accordingly.

Further, we decline to address Plaintiffs’ argument as to the

constitutionality of HRCP Rule 68 because the issue is moot.

                               V.   CONCLUSION

           For the foregoing reasons, we vacate the circuit

court’s August 5, 2016 and August 18, 2016 final judgments and

the ICA’s May 16, 2019 judgment on appeal affirming in part.                  We

further vacate in full the circuit court’s July 2, 2016 amended

judgment awarding costs to Chung, and remand for proceedings

consistent with this opinion.

James J. Bickerton and                     /s/ Mark E. Recktenwald
Bridget G. Morgan-Bickerton
(Nathan P. Roehrig with                    /s/ Paula A. Nakayama
them on the briefs)
for petitioners                            /s/ Sabrina S. McKenna

Gregory K. Markham                         /s/ Richard W. Pollack
(Keith K. Kato and
Kristen K. Souza with him                  /s/ Michael D. Wilson
on the briefs)
for respondent Chung Partners




                                      28
