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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-10-0000102
                                                              04-DEC-2015
                                                              09:47 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                 ---oOo---



        NORMAN SAMSON and FRANCINE SAMSON, Individually,
  and as Guardians Prochein Ami of KU‘ULEILANI SAMSON, a Minor
               Petitioners/Plaintiffs-Appellants,

                                    vs.

                          NOLA ANN NAHULU,
                   Respondent/Defendant-Appellee.


                            SCWC-10-0000102

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-10-0000102; CIVIL NO. 08-1-0171-01)

                            DECEMBER 4, 2015

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

                OPINION OF THE COURT BY McKENNA, J.

                           I.    Introduction

    This appeal arises from a motor vehicle-pedestrian accident

in which a vehicle operated by Respondent-Defendent-Appellee

Nola Ann Nahulu (“Nahulu”) struck a minor (“Minor”) as she

crossed Farrington Highway on foot.          At trial, the parties

disputed Nahulu’s speed and whether Minor was in a crosswalk at

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the time she was hit.     A jury returned a unanimous special

verdict finding Nahulu not negligent.

     Petitioners/Plaintiffs-Appellants Norman Samson and

Francine Samson (hereinafter “the Samsons”), individually and as

guardians prochein ami of their daughter, Minor, challenge (1)

specific jury instructions, (2) the instructions as a whole,

which allegedly misstated the standard of care in automobile-

pedestrian collisions, (3) the exclusion of certain testimony

about Nahulu’s speed, and (4) the exclusion of a photograph with

markings made or authorized by a witness during his deposition

that placed Minor in a crosswalk.1       The ICA affirmed the Circuit

Court of the First Circuit’s (circuit court) judgment.


     1
          The Samsons present the following questions on certiorari:

          1.    Did the ICA grievously err in affirming the verdict
                in favor of an SUV driver where erroneous
                instructions, taken as a whole, gave the wrongful
                impression that a pedestrian must strictly adhere to
                traffic rules or forfeit the right to any recovery
                from a negligent driver who injures the pedestrian.

          2.    Did the ICA grievously err in holding that, although
                the lower court erroneously excluded eyewitness
                testimony that Nahulu was “traveling at an unsafe
                speed,” the error was nevertheless harmless.

          3.    Did the ICA grievously err in excluding from evidence
                a copy of another photograph already in evidence on
                which a key eyewitness confirmed a marking on the
                photograph showing [Minor’s] location at the time
                Nahulu hit her (which was within the crosswalk),
                based on an erroneous objection to and erroneous
                finding of unfair prejudice.

          4.    Did the ICA grievously err in holding that an
                instruction that is vague, incomplete and
                grammatically incorrect concerning Nahulu’s duty of
                care, and therefore presumptively harmful, did not
                                                            (continued. . .)

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      In this case, the jury instructions erroneously focused on

a pedestrian’s obligation to obey all traffic laws rather than a

driver’s obligation to avoid collisions.           Instruction No. 6 (as

modified) quotes from State v. Arena, 46 Haw. 315, 379 P.2d 594

(1963).    That case was premised on the existence of contributory

negligence, which was eliminated by the passage of Hawaii’s

comparative fault statute, Hawai‘i Revised Statutes (HRS) § 663-

31 (1993).    Instruction No. 6 (as modified) incorrectly

suggested that a driver need not look out for pedestrians

violating the law and that civil recovery is not available to a

contributorily negligent plaintiff.          The giving of the

instruction constitutes prejudicial error necessitating a new

trial.    In addition, the instructions as a whole were

prejudicially erroneous.

      We hold as follows:       (1) Instruction No. 6 (as modified) is

erroneous as a matter of law; (2) Arena is overruled to the

extent that it is contrary to HRS § 291C-74 (2007) and gives the

incorrect impression that a pedestrian forfeits a right to

recover from a negligent driver if he or she does not strictly

adhere to traffic rules; (3) the jury instructions as a whole

misstated the law by improperly focusing on a pedestrian’s

(. . .continued)
                   require reversal because the ICA concluded that the
                   Samsons failed to show that the faulty instruction
                   had a detrimental effect on them.



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duties to obey all traffic laws and were prejudicially

erroneous; (4) the circuit court erred in excluding certain

testimony on Nahulu’s speed; and (5) the circuit court erred in

excluding the photograph with markings made or authorized by the

witness during his deposition.

      Accordingly, we vacate the ICA’s May 2, 2014 Judgment on

Appeal, entered pursuant to its March 31, 2014 Memorandum

Opinion, which affirmed the circuit court’s August 9, 2010

Judgment and September 29, 2010 Order Denying Plaintiffs’ Motion

for Judgment Notwithstanding the Verdict and/or, In the

Alternative, for New Trial (“JNOV motion”),2 and remand the case

to the circuit court for a new trial and further proceedings

consistent with this opinion.

                              II.    Background

A.    General Factual Background

      On July 4, 2005, Nahulu’s Honolulu-bound SUV struck Minor

in or near a crosswalk as she crossed Farrington Highway near

the Jade Street intersection.         Prior to the collision, Minor had

waited with her friend at a bus stop on the Honolulu-bound side

of the road.     There is a bus cutout located on the outside of

the Honolulu-bound lane for buses to service passengers.              At the


      2
            The Samsons titled the filing as a JNOV instead of as a judgment
as a matter of law (JMOL) as provided under Hawaiʻi Rules of Civil Procedure
(HRCP) Rule 50.



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time of the accident, two buses had pulled into the cutout.              The

first bus operated by McKenna Benson (“Benson”) was forty feet

long and the second bus was sixty feet long.

     As she approached the intersection from behind the bus

cutout in the Honolulu-bound direction, Nahulu saw one bus pull

into the bus cutout and began to decelerate.           After Benson

pulled his bus all the way into the cutout, he looked in his

side view mirror to ensure that he had provided enough space for

the second bus to pull in.       From his perspective, both of the

buses appeared as “one long bus” with no part of either bus

blocking the lane of traffic; however, he could not recall

whether the buses were completely off or partially on the road.

Arthur Joao (“Mr. Joao”),3 the driver of a pickup truck following

behind Nahulu’s SUV, and his wife Betty Joao (“Mrs. Joao”), his

passenger, stated that the bus was not completely off the road,

but did not impede the flow of traffic.4


     3
            We note that the reading of Mr. Joao’s deposition designations
was not transcribed by the court reporter as required by Roxas v. Marcos, 89
Hawai‘i 91, 100 n.2, 969 P.2d 1209, 1218 n.2 (1998), which states that “in
future cases in general, the circuit courts should require that any
deposition testimony read into evidence . . . be transcribed by the court
reporter as if it were live testimony.” See also HRS § 602-4 (1993) (“The
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.”).
     4
            During his deposition, Mr. Joao changed his previous statement
made to an insurance agent. He had initially stated that the cars had to
cross over into the opposing lane to pass the bus because the back of the bus
had been sticking out four to five feet into the road. Mr. Joao clarified
that “the bus was almost completely off the road.”



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     According to Mrs. Joao, after the buses pulled over, the

SUV and the Joaos’ truck gradually sped up.           Nahulu stated that

she had not seen anyone in front of the bus nor had she crossed

the double solid line prior to impact.          Mrs. Joao stated that

she did not see anyone in the crosswalk, but could not remember

where the crosswalk was located.

     Minor’s friend was the last person to board Benson’s bus.

According to Benson, who had an unobstructed view through the

front windows of his bus, Minor said goodbye to her friend as

she stood near the right front corner of the bumper with her

hand on the bus.

     Minor testified that she looked both ways before entering a

crosswalk in front of the bus; other witnesses provided

conflicting testimony.      Nahulu testified that Minor entered the

road quickly from right in front of the bus without looking,

walked diagonally across the road, and was not in a crosswalk

when she was hit.5     Mrs. Joao stated that “[Minor] was looking

back over her shoulder towards the bus” as she entered the road

close to the front of the bus outside of a crosswalk, but could

not remember which side of the crosswalk Minor was on.             Mr. Joao

stated that “the bus was still moving” when Minor entered the

     5
            At trial, Nahulu testified that she had “mixed up” the placement
of her car and Minor during her deposition. During her deposition, she had
placed Minor in the crosswalk. At trial, Nahulu asserted that she ended up
in the crosswalk, while Minor ended up on the Waianae side of the crosswalk.



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road, looking over her shoulder and yelling as she ran.            Benson

stated that Minor remained near the front of his stationary bus

as she moved diagonally toward the intersection at a brisk pace.

He saw Nahulu’s SUV approaching in his side view mirror near the

left rear tire of his bus, and waved his arm out of the window

and yelled in an attempt to stop the SUV.         According to Paul Day

(“Day”), the driver of a vehicle approaching the intersection in

the opposing lane of traffic, Nahulu was “coming around the bus

at a good speed[.]”

       The witnesses provided conflicting testimony regarding

Minor’s location at the point of impact.         Benson estimated that

Minor traveled approximately six to eight feet from the front of

the bus before she and the SUV collided in the middle of the

Honolulu-bound lane.     Day testified that Minor was hit by

Nahulu’s SUV when she made her way to the driver’s corner of the

bus.    Mr. Joao could not recall whether Minor was in or out of

the crosswalk.    Mrs. Joao stated that “[Minor] was over the

yellow line [in the opposing lane of traffic] when she ran

in[to] the [SUV].”

       By Benson’s account, Minor “jumped a little bit” right

before the SUV hit her, the SUV made contact, “then [he] heard

skidding of the breaks[,]” and Minor was sent approximately

twenty feet, bouncing or skipping on the pavement, until she

finally came to rest in the middle of the Honolulu-bound lane.

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Mrs. Joao stated that Minor flew back towards the direction she

came from, landing partially in front of the Joaos’ truck.              Day

stated that the collision “was a different kind of hit” that

caused Minor to “slingshot up into the air” diagonally toward

the middle line dividing the lanes rather than forward.            He

testified that Minor was hit on the passenger side of the SUV,

which “was going at a speed where it couldn’t stop in time[,]”

and skidded “at least eight feet” after the impact before coming

to rest in the crosswalk.      He estimated that Minor flew between

fifteen to twenty feet and fell diagonally, “almost straight

down[,]” before landing “really hard” and sliding approximately

one to two feet before coming to stop “in the middle of what

would have been the divider[.]”

    Neither Benson nor the Joaos saw Nahulu’s SUV attempt to

stop or veer to the left prior to the collision; Nahulu stated

that after the impact, she veered to the left over the double

solid line and came to a stop in the crosswalk.          Mrs. Joao

testified that the SUV swerved to the left a few feet from the

front of the bus as soon as Minor entered the road and “stopped

almost simultaneously” in the intersection, just past the bus,

in the oncoming lane of traffic.         Benson estimated that Nahulu’s




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SUV skidded approximately forty feet and came to rest about ten

feet from Minor.6

      Minor alleged severe physical injuries and psychological

harm as a result of the accident.

B.    Circuit Court Proceedings7

      On January 25, 2008, the Samsons filed a complaint in

circuit court against Nahulu, alleging negligence, negligent

infliction of emotional distress, and loss of consortium.

      1.    Motions in Limine Excluding Eyewitness Testimony on
            Speed
      The parties filed various motions in limine, contesting the

admissibility of certain eyewitness testimony and evidence.

Relevant motions include (1) Nahulu’s Motion in Limine No. 5 to

Exclude Any and All Questions to and Testimony by Lay Witnesses

Concerning the Ultimate Issue of Defendant’s Alleged Negligence

(Motion in Limine No. 5), and (2) Nahulu’s Motion in Limine No.

6 to Limit Testimony of Lay Witnesses to Personal Knowledge

(Motion in Limine No. 6).

      In Motion in Limine No. 5, Nahulu moved to preclude the

Samsons from eliciting lay witness testimony on legal

conclusions at trial, i.e., that Nahulu was going “too fast[,]”

      6
            At a pre-trial deposition, Benson testified that Nahulu’s SUV
skidded forty feet after the impact; [85:26], however, he clarified at trial
that Nahulu’s SUV skidded and came to stop approximately ten feet from where
Minor ended up.
      7
            The Honorable Rom A. Trader presided.



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contending that lay opinions on liability are of no probative

value and should be excluded under Hawaiʻi Rules of Evidence

(HRE) Rule 403.    The Samsons argued that relevant lay opinion

testimony bearing on ultimate issues is not precluded under HRE

Rule 701, and that factual questions about conditions and speed,

from which inferences may be drawn, are permitted.           The circuit

court granted Nahulu’s motion and precluded testimony that

Nahulu was driving “too fast for the conditions” because “it

calls in part for a legal conclusion and it’s tantamount to

testimony opinion that [Nahulu] was negligent.”

       In Motion in Limine No. 6, Nahulu moved to limit lay

witness testimony to personal observations and preclude lay

opinions about Nahulu’s compliance with traffic laws, including

testimony that she was driving “too fast,” pursuant to HRE Rule

403.    The Samsons argued under HRE Rule 403 that the evidence

was more probative than unduly prejudicial.          The court granted

and denied the motion in part, precluding speculative testimony

about Nahulu’s thoughts and violation of traffic laws, while

permitting testimony on personal observations.

       2.   Exclusion of Exhibit 7 and Related Testimony Placing
            Minor in a Crosswalk
       During trial, the court excused the jurors to hold an HRE

Rule 104 hearing on the admissibility of Exhibit 7 and related

testimony from Benson, the driver of the first bus stopped at



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the Jade street bus stop in the bus cutout.          Exhibit 7 was a

photograph of the accident scene that had markings made or

authorized by Benson at his deposition, which depicted the point

of impact in the middle of a crosswalk on Farrington Highway and

the front of his bus in relation to the stop line.           At the

hearing, Benson confirmed that he had drawn the “X” showing the

location of the front of his bus, but testified that someone

else had drawn an “X” in the area he had indicated as the point

of impact during his deposition.          He admitted, however, that

although he could not remember during the deposition or the

hearing whether a marked crosswalk existed at the time, he had

testified in his deposition that Minor had been struck in the

area of the second “X.”

    Thus, at the HRE Rule 104 hearing, Benson could not recall

whether the accident occurred in a crosswalk nor whether Exhibit

7 accurately depicted the area at the time of the accident.

Several witnesses, including Nahulu, had testified that the

crosswalk existed at the time of the collision.          In addition,

the same photograph showing the crosswalk without Benson’s marks

had already been admitted into evidence as the Samsons’ Exhibit

3-B without objection.

    At the conclusion of the hearing, the court excluded

Exhibit 7 on the grounds that its admission would be unduly

prejudicial because the photograph depicted the collision

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occurring in the crosswalk despite Benson’s inability to

remember a crosswalk at the scene or verify the accuracy of the

photograph.    The court noted that nothing prevented the Samsons

from using a different photograph and Benson’s testimony to

establish the point of impact based on his personal knowledge.

In addition, the court rejected the Samsons’ proposal for a

limiting instruction because it feared the jury could not ignore

the fact that Exhibit 7 indicated the point of impact in the

crosswalk.

     3.     Jury Instructions

     At issue on certiorari are the Samsons’ requested

Instruction No. 12, which was refused, and Nahulu’s requested

Instructions Nos. 1 and 2, which were given, as well as Nahulu’s

requested Instruction No. 6, which was given as modified.              In

addition, the Samsons raise issues regarding the instructions as

a whole.8


     8
            In settling jury instructions, trial courts must comply with HRCP
Rule 51(c) (2000), which states, in relevant part, as follows:

            Whenever the court refuses to give any requested
            instruction, the court shall write the word “refused” in
            the margin thereof. Whenever the court approves any
            requested instruction, the court shall write the word
            “given” in the margin thereof. Whenever the court modifies
            any requested instruction, the court shall mark the same in
            such manner that it shall distinctly appear what part is
            refused and what part is given. Instructions to which no
            objection is made shall be marked “given by agreement” and
            no later objection thereto may be made or allowed.

HRCP Rule 51(d) further provides, in relevant part:

                                                              (continued. . .)

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           a.    The Samsons’ Requested Instruction No. 12

     The Samsons’ requested Instruction No. 12, which was

refused, provided as follows:        “The duty to use reasonable care

does not require the same amount of caution from drivers and

pedestrians.    While drivers and pedestrians must be aware that

motor vehicles can cause serious injuries, drivers must use more

care to avoid collisions than pedestrians.”

           b.    Nahulu’s Requested Instruction No. 1

     Nahulu’s requested Instruction No. 1, which was given over

objection, stated “[a] pedestrian is required to obey all

traffic laws which are applicable to her.”

     The Samsons objected on the basis that the requested

instruction misstates HRS § 291C-71 (2007)9 and “unduly




(. . .continued)
            Any revision made and any instructions prepared by the
            court pursuant to the foregoing provisions shall be reduced
            by the court to writing, and counsel shall be entitled to
            be heard thereon. The court shall inform counsel of its
            proposed action with respect to any such revision made or
            instructions prepared by the court, and any changes therein
            made by the court shall be reduced to writing and submitted
            to counsel prior to their arguments to the jury.

In this case, the circuit court did not memorialize its rulings on the
parties’ requested instructions in writing as required by HRCP Rule 51.
Accordingly, the circuit court’s actions and modifications to the requested
instructions were derived from the trial transcript.
     9
           HRS § 291C-71 provides as follows:

           (a) A pedestrian shall obey the instructions of any
           official traffic-control device specifically applicable to
           the pedestrian, unless otherwise directed by a police
           officer.

                                                              (continued. . .)

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highlights only the responsibilities of the plaintiff”

pedestrian to obey the law, as opposed to the defendant driver’s

similar obligation.      The circuit court gave the instruction over

the Samsons’ objection because “the substance of the instruction

appears to be correct” and the court believed the instruction

would assist the jury.

            c.   Nahulu’s Requested Instruction No. 2

     Nahulu’s requested Instruction 2, which was given, stated

“[a] pedestrian who crosses a roadway outside of a crosswalk is

required to yield the right of way to all vehicles upon the

roadway.”

     The Samsons objected on the basis that the requested

instruction directly conflicts with HRS § 291C-73(a) (2007),

which provides, in relevant part, “[e]very pedestrian crossing a

roadway at any point other than within a marked crosswalk or

within an unmarked crosswalk at an intersection shall yield the

right-of-way to all vehicles upon the roadway.”           The Samsons

argued that the instruction (1) does not explain that a

pedestrian crossing in an unmarked crosswalk has the right-of-


(. . .continued)
            (b) Pedestrians shall be subject to traffic and
            pedestrian-control signals as provided in sections 291C-32
            and 291C-33.

            (c) At all other places, pedestrians shall be accorded the
            privileges and shall be subject to the restrictions stated
            in this chapter.



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way, and (2) refers to all vehicles upon a roadway, yet is

inconsistent with other instructions given with respect to the

duties of a motorist (i.e., that a motorist cannot rely upon a

right-of-way gained as a result of excessive speed, negligence,

or statutory violation).      Upon consideration of HRS § 291C-

73(a), the context within which the instruction was to be given,

and another instruction taken from Arena (Instruction No. 6 as

modified), discussed below, that purportedly addressed the

Samsons’ points, the court gave the instruction over the

Samsons’ objection on the grounds that it was neither incorrect

nor misleading.

          d.    Nahulu’s Requested Instruction No. 6 (as
                modified)

    Nahulu’s requested Instruction No. 6 stated “[a] person

traveling upon a highway has a right to assume that all other

persons will obey the law and is not required to keep a lookout

for others who violate the law.”

    The Samsons objected on the grounds that the requested

instruction misstates the law because it omits a portion of the

quotation from Arena and states that no one is required to keep

a lookout for others.     The circuit court gave a modified version

of Nahulu’s requested Instruction No. 6 by quoting a portion of

Arena allegedly “in its entirety.”

    Instruction No. 6 (as modified) provided:



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                A person traveling upon a highway has a right to
          assume that all other persons using the highway will obey
          the law and that one is not bound to keep a lookout for
          others who may violate the law applies only to those cases
          where the automobile is being driven in conformity to the
          law and not in violation thereof, and it has no application
          where the automobile is being driven in a negligent manner.

However, this instruction incompletely quoted Arena.            See 46

Haw. at 331, 379 P.2d at 604.       The quotation from Arena actually

reads:

          The rule that a person traveling upon a highway has a right
          to assume that all other persons using the highway will
          obey the law and that one is not bound to keep a lookout
          for others who may violate the law applies only to those
          cases where the automobile is being driven in conformity to
          the law and not in violation thereof, and it has no
          application where the automobile is being driven in a
          negligent manner, where it is not properly equipped with
          lights, or where it is being driven at an excessive rate of
          speed. In those instances the primary negligence of the
          driver of the automobile renders inoperative the rule
          stated.

Id. (quoting Cushing Ref. & Gasoline Co. v. Deshan, 300 P. 312,

317 (Okla. 1931)) (emphasis added).

    The Samsons conceded that the court’s modification

addressed their first concern “to a certain extent[,]” but

maintained their objection.

    4.    Verdict

    On June 10, 2010, the jury returned a unanimous special

verdict in favor of Nahulu, finding that she was not negligent.

On August 9, 2010, the circuit court entered its Judgment in

favor of Nahulu.    On August 11, 2010, the Samsons filed their

JNOV motion.   On September 29, 2010, the circuit court entered

its order denying the Samsons’ JNOV motion.


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        III. Appeal to the Intermediate Court of Appeals

    On appeal, the Samsons raised issues concerning, inter

alia, specific instructions, the jury instructions as a whole,

and certain evidentiary rulings.          Regarding the jury

instructions, the Samsons argued that Nahulu’s proposed

instructions were erroneous articulations of the law and

unwarranted by the evidence.       In particular, the Samsons argued

that (1) Instructions Nos. 1 and 2 omitted a driver’s duty of

care to avoid pedestrians upon a roadway and prejudicially

suggested that a pedestrian’s violation of any traffic law

constituted negligence per se or a complete bar to recovery; (2)

Instruction No. 6 (as modified) misquoted a judicial opinion,

misapplied judicial precedent, improperly assigned a “right”

that confused the jury in determining negligence, did not apply

to vehicle-pedestrian accidents, and was precluded by HRS §

291C-74; and (3) the circuit court improperly failed to give the

Samsons’ proposed Instruction No. 12, which they contend

correctly stated that drivers must exercise greater care to

avoid collisions than pedestrians.          With respect to the

evidentiary rulings, the Samsons argued that the circuit court

abused its discretion when it granted Nahulu’s motions in limine

barring Day’s deposition testimony that Nahulu was going at an

“unsafe speed”, and excluded Exhibit 7 and related testimony

from Benson and refused to give a limiting instruction.

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     Nahulu asserted that the jury instructions, as a whole,

were accurate and warranted by the evidence adduced at trial,

and that the Samsons’ proposed Instruction No. 12 was properly

excluded because it imposed a higher duty of care on drivers and

conflicted with other instructions.         Nahulu further argued that

the circuit court properly excluded Day’s testimony about

Nahulu’s speed because it amounted to legal conclusions under

HRE Rule 701 and was prohibited by HRE Rule 403, and Exhibit 7

due to a lack of foundation.

     The ICA held that “the jury instructions, as a whole,

[showed that] the circuit court properly instructed the jury on

a driver’s obligation to drive with due care.”            Samson v.

Nahulu, No. CAAP-10-0000102, at 16 (App. Mar. 31, 2014) (mem.).10


     10
            The circuit court gave the following additional instructions
about the duties of care for drivers and pedestrians:

Samsons’ Instruction No. 8, given as modified over objection:

                   The duty to observe ordinary care requires that a
            driver of an automobile must anticipate the possibility of
            meeting pedestrians or other vehicles at street crossings
            and have his or her automobile under such control as may be
            necessary to avoid colliding with a pedestrian on the
            roadway.
                   A motorist must see what is in plain view on the
            roadway.
                   A motorist must maintain a proper lookout straight
            ahead and laterally ahead.
                   When necessary, a motorist must give a warning to a
            pedestrian by sounding the horn.
                   Consistent with the foregoing, it is the law in
            Hawaii that every person shall drive at a safe and
            appropriate speed when approaching and crossing an
            intersection and when special hazards exist with respect to
            pedestrians or other traffic, regardless of the posted
            speed.
                                                               (continued. . .)

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(. . .continued)
                  A motorist’s failure to observe these requirements
            that results in a collision with a pedestrian is
            negligence.

Samsons’ Instruction No. 6, given over objection:

                  Hawaii law requires that every driver of a vehicle
            shall exercise due care to avoid colliding with any
            pedestrian upon any roadway and shall give warning by
            sounding the driver’s horn when necessary and shall
            exercise proper precaution upon observing any child or any
            obviously confused or incapacitated person upon a roadway.

Samsons’ Instruction No. 4 combined with Nahulu’s Instruction No. 5, given as
modified over objection:

                   Hawaii law requires that a driver of a vehicle shall
            stop for a pedestrian who is crossing a roadway within a
            marked crosswalk when the pedestrian is on the half of the
            roadway on which the vehicle is traveling.
                   The driver shall not proceed until the pedestrian has
            passed the vehicle and the driver can thereafter proceed
            safely ahead.
                   A pedestrian who is using a marked crosswalk has the
            right to assume that an oncoming motorist will obey this
            law and yield to the pedestrian’s right of way.
                   However, a pedestrian may not suddenly leave a curb
            or other place of safety and walk into the path of an
            oncoming vehicle such that it is impossible for a driver to
            yield.
                   If you find that the law was violated, you may
            consider this violation with all the other evidence in this
            case in deciding the issue of negligence.

Samsons’ Instruction No. 5, given over objection:

                  It is the law in Hawaii that whenever any vehicle is
            stopped at a marked crosswalk or at any unmarked crosswalk
            at an intersection to permit a pedestrian to cross the
            roadway, the driver of any other vehicle approaching from
            the rear shall not overtake and pass the stopped vehicle.

Samsons’ Instruction No. 10, given over objection:

                  The driver of a motor vehicle may not rely upon the
            right-of-way gained as a result of excessive speed or by
            other negligent act or violation of the law.

Samsons’ Instruction No. 3, given over objection:

                  It is the law in Hawaii that yellow lines indicate the
            separation of lanes of traffic flowing in opposing directions or
            the left boundary of a traffic lane at a particularly hazardous
            location.
                  Double lines indicate maximum restriction.
                                                              (continued. . .)

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With regard to challenges to specific instructions, the ICA held

that Instructions Nos. 1, 2, and 6 did not amount to reversible

error.     Samson, mem. op. at 19.       The ICA concluded that

Instructions Nos. 1 and 2 were accurate reflections of the law,

specifically HRS §§ 291C-71 and -73, respectively.              Samson, mem.

op. at 15-16.      The ICA also acknowledged that Instruction No. 6

was “grammatically incorrect” and that a portion of the quote

was “inadvertently left out[,]” but nonetheless concluded that

the instruction was not erroneous because (1) both HRS § 291C-74

and Instruction No. 6 provide that a driver must exercise due

care, (2) Instruction No. 6 would have accurately reflected the

law as set forth in Arena “if properly quoted,” (3) the

quotation from Arena is applicable to vehicle-pedestrian

collisions because pedestrians are expected to follow the rules

of the road and fall within the statutory definition of

“traffic[,]” and (4) one of the Samsons’ instructions given to

the jury was likewise based on Arena.           Samson, mem. op. at 18-

19.    The ICA further concluded that “the grammatical error was

not prejudicial to the Samsons” because the vagueness worked to

Nahulu’s detriment and the Samsons’ burden to prove Nahulu’s

(. . .continued)
                   A double solid yellow line is used to indicate the
             separation between lanes of traffic moving in opposite
             directions.
                   The crossing of a double solid yellow line by vehicular
             traffic is prohibited except when the crossing is part of a left
             turn movement.



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negligence at trial remained the same.            Samson, mem. op. at 18.

The ICA also concluded that the circuit court did not err in

refusing to give the Samsons’ proposed Instruction No. 12 on the

basis that “Hawai‘i law does not support the proposition that, as

a matter of law, pedestrians can exercise less caution in their

actions than drivers.”         Samson, mem. op. at 20.

      Regarding evidentiary issues, the ICA concluded that Day’s

testimony about Nahulu’s speed was admissible under HRE Rule

701, however, the exclusion amounted to harmless error because

other evidence was presented to the jury relevant to breach of

duty that Nahulu may have been driving at an unsafe speed

without using the word “unsafe.”            See Samson, mem. op. at 8-10.

In addition, the ICA concluded that the circuit court did not

abuse its discretion in excluding Exhibit 7 and related

testimony from Benson under HRE Rule 403, nor in denying the use

of a limiting instruction, as Benson was not able to provide

foundation testimony.       Samson, mem. op. at 4-6.

      Accordingly, the ICA affirmed the circuit court’s August 9,

2010 Judgment and September 29, 2010 order denying the Samsons’

JNOV motion.     Samson, mem. op. at 21.

                         IV.    Standards of Review

A.    Jury Instructions

            When jury instructions or the omission thereof are at issue
            on appeal, the standard of review is whether, when read and
            considered as a whole, the instructions given are


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            prejudicially insufficient, erroneous, inconsistent, or
            misleading.

                  Erroneous instructions are presumptively
                  harmful and are a ground for reversal unless it
                  affirmatively appears from the record as a
                  whole that the error was not prejudicial.

Tabieros v. Clark Equipment Co., 85 Hawaiʻi 336, 350, 944 P.2d

1279, 1293 (1997) (quoting State v. Arceo, 84 Hawai‘i 1, 11, 928

P.2d 843, 853 (1996)).       “Jury instructions . . . must be

considered as a whole.       Moreover, a refusal to give an

instruction that correctly states the law is not in error if

another expressing a substantially similar principle is given.”

Montalvo v. Lapez, 77 Hawaiʻi 282, 286, 884 P.2d 345, 349 (1994)

(alteration in original) (quoting State v. Pioneer Mill Co., 64

Haw. 168, 180, 637 P.2d 1131, 1140 (1981)).

B.    Evidentiary Rulings

                  [D]ifferent standards of review must be applied to
                  trial court decisions regarding the admissibility of
                  evidence, depending on the requirements of the
                  particular rule of evidence at issue. When
                  application of a particular evidentiary rule can
                  yield only one correct result, the proper standard
                  for appellate review is the right/wrong standard.

                  Kealoha v. County of Hawaii, 74 Haw. 308, 319, 844
                  P.2d 670, 676 . . . (1993). . . .

            State v. Kupihea, 80 Hawai‘i 307, 314, 909 P.2d 1122, 1129[]
            (1996) . . . . “Evidentiary decisions based on HRE Rule
            403, which require a ‘judgment call’ on the part of the
            trial court, are reviewed for an abuse of discretion.”
            Walsh v. Chan, 80 Hawai‘i 212, 215, 908 P.2d 1198, 1201[]
            (1995) (citing Sato v. Tawata, 79 Hawai‘i 14, 19, 897 P.2d
            941, 946 (1995)). . . . “‘The trial court abuses its
            discretion when it clearly exceeds the bounds of reason or
            disregards rules or principles of law or practice to the
            substantial detriment of a party litigant.’” State v.
            Ganal, 81 Hawai‘i 358, 373, 917 P.2d 370, 385 (1996)
            (quoting State v. Furutani, 76 Hawai‘i 172, 179, 873 P.2d
            51, 58 (1994)).


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Tabieros, 85 Hawaiʻi at 350-51, 944 P.2d at 1293-94 (quoting

Arceo, 84 Hawaiʻi at 11, 928 P.2d at 853), quoted in Estate of

Klink ex rel. Klink v. State, 113 Hawai‘i 332, 351-52, 152 P.3d

504, 523-24 (2007).

                              V.     Discussion

A.    The ICA erred in determining that the jury instructions
      were not prejudicially erroneous or misleading
      The Samsons argue that the ICA “grievously erred” in

affirming the verdict where erroneous instructions given,

specifically Nahulu’s Instructions Nos. 1, 2, and 6, improperly

instructed the jury that (1) a driver need not anticipate

pedestrians who are not strictly following the law, and (2)

Minor forfeited her right to recover from a negligent driver if

she violated any traffic rules.         (citing Steigman v. Outrigger

Enter., Inc., 126 Hawaiʻi 133, 145, 267 P.3d 1238, 1250 (2011)).

      1.    Alleged Error in Specific Instructions

            a.    Instruction No. 6 (as modified)11

      Instruction No. 6 (as modified) is problematic:

                  A person traveling upon a highway has a right to
            assume that all other persons using the highway will obey
            the law and that one is not bound to keep a lookout for
            others who may violate the law applies only to those cases
            where the automobile is being driven in conformity to the
      11
            Nahulu’s counsel conceded during oral argument that Instruction
No. 6 (as modified) is garbled, and failed to respond in the briefs to the
Samsons’ assertion that Instruction No. 6 (as modified) was erroneous. Oral
Argument at 23:48, Samson v. Nahulu, 133 Hawai‘i 451 (No. 10-102), available
at
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc_scwc10_102.h
tml.



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          law and not in violation thereof, and it has no application
          where the automobile is being driven in a negligent manner.

The instruction is grammatically incorrect and confusing.             As

noted, the portion from Arena actually begins this quotation

with “The rule that . . . .”      46 Haw. at 331, 379 P.2d at 604.

Also, the instruction omitted the tail end of the quotation

pertaining to instances in which a driver’s primary negligence

renders the rule inoperative.       Id.   A variation of the omitted

portion of the quotation was given as a separate instruction,

which stated that “[t]he driver of a motor vehicle may not rely

upon the right-of-way gained as a result of excessive speed or

by other negligent act or violation of the law.”           The ICA

concluded that “if properly quoted, the instruction would have

accurately reflected the law as set forth in Arena.”            Samson,

mem. op. at 18.    However, Arena and Instruction No. 6 (as

modified) are erroneous iterations of the law.          They misstate a

driver’s duty of care and conflict with our comparative

negligence statute, HRS § 663-31,12 which was enacted post-Arena


     12
          HRS § 663-31(a) (1993) provides as follows:

          Contributory negligence shall not bar recovery in any
          action by any person or the person’s legal representative
          to recover damages for negligence resulting in death or in
          injury to person or property, if such negligence was not
          greater than the negligence of the person or in the case of
          more than one person, the aggregate negligence of such
          persons against whom recovery is sought, but any damages
          allowed shall be diminished in proportion to the amount of
          negligence attributable to the person for whose injury,
          damage or death recovery is made.



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in 1969.    As Arena noted, a right-of-way provided under the

state traffic code “is not absolute and cannot be exercised with

impunity under all circumstances.”         46 Haw. at 316, 379 P.2d at

597.    As this court has explained previously,

           [t]he mere fact that the operator of a motor vehicle [has
           the right-of-way] does not in and of itself give such
           operator the right to proceed across the intersection in
           any event; [] where it becomes an issue of fact for a jury
           to determine whether or not in approaching or proceeding
           across an intersecting highway the operator of the motor
           vehicle[,] in the exercise of due care, might have avoided
           a collision and resultant injuries, an[] instruction to the
           effect that irrespective of the existing conditions such
           operator has a right to proceed across the intersection is
           erroneous.

Mossman v. Sherman, 34 Haw. 477, 481 (Terr. 1938) (quoting

McCombs v. Ellsberry, 85 S.W.2d 135, 140 (Mo. 1935)).

Therefore, a driver exercising a right-of-way may still be

determined to have been negligent under the attendant

circumstances.    Applying this precedent, Nahulu was required to

exercise due care to avoid collisions even if she had the right-

of-way and did not violate any traffic laws, and even if Minor

violated pedestrian traffic laws.         Instruction No. 6 (as

modified) incorrectly stated otherwise.

       The Samsons argue that the ICA misstated the standard of

review for erroneous instructions when it concluded that

Instruction No. 6 (as modified) “did not require reversal

because the Samsons ‘failed to show the instruction had any

detrimental effect on them.”       The Samsons further argue that the

ICA’s rationalization that the instruction’s vagueness worked to

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Nahulu’s detriment “do[es] not amount to an affirmative showing

that the erroneous instruction did not result in prejudice when

reviewing the record as a whole, and thus [the ICA’s] decision

to affirm in spite of the improper instruction was grievous

error[.]”

     Nahulu argues that the Samsons misconstrue the ICA’s

Memorandum Opinion in that the ICA correctly found that

Instruction No. 6 (as modified) was not erroneous, and thus, the

Samsons are not entitled to any finding that the instruction was

“presumptively harmful” given that the record and totality of

instructions given are “devoid of prejudice[.]”

     Instruction No. 6 (as modified) was erroneous as a matter

of law.   Arena was a criminal negligent homicide case in which

this court held that the driver of a speeding car who killed the

driver of a car exiting a private driveway did not have a

“right” to assume that others would obey the law.           46 Haw. at

328, 379 P.2d at 603.     In other words, the speeding driver was

not shielded from criminal liability by having the right-of-way.

The rule stated in Arena no longer applies because it was

premised on the existence of contributory negligence, which was

eliminated by the passage of Hawaii’s comparative fault statute,

HRS § 663-31.   See 46 Haw. at 331, 379 P.2d at 604 (quoting

Cushing, 300 P. at 317) (discussing contributory negligence);

Steigman, 126 Hawaiʻi at 135, 267 P.3d at 1240 (explaining that

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HRS § 663-61(a) “eliminates contributory negligence”).

Moreover, such a rule “conflicts with the intent of the

Legislature that the courts apply comparative negligence in the

place of ‘unfair’ common law doctrines.”         126 Hawaiʻi at 139, 267

P.3d at 1244.

    In addition, Instruction No. 6 (as modified) directly

conflicts with a driver’s obligation to exercise due care to

avoid colliding with pedestrians under HRS § 291C-74.            Even

without HRS § 291C-74, common sense and general negligence

principles require a reasonable driver to look out for

pedestrians given the foreseeable range of danger and gravity of

possible harm.    Knodle v. Waikiki Gateway Hotel, 69 Haw. 376,

388, 742 P.2d 377, 385 (“As the gravity of the possible harm

increases, the apparent likelihood of its occurrence need be

correspondingly less to generate a duty of precaution.” (quoting

W.P. Keeton, Prosser and Keeton on the Law of Torts § 31, at 171

(5th ed. 1984) (footnote omitted)).        Stated differently, all

drivers have a duty to look for “special hazards” with respect

to pedestrians or other traffic, and must act reasonably under

the circumstances.    See HRS § 291C-101 (2007).        Instruction No.

6 (as modified) incorrectly suggested that a driver need not

look out for pedestrians violating the law and that civil

recovery is not available to a contributorily negligent



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plaintiff.       Instruction No. 6 (as modified) was prejudicially

erroneous.

    We therefore remand this case for a new trial.            To provide

the circuit court with further guidance on remand, we address

the other instructions and the evidentiary issues.

            b.     Instructions Nos. 1 and 2

            Instruction No. 1 stated “[a] pedestrian is required

to obey all traffic laws which are applicable to her.”            HRS §

291C-71 mandates that a pedestrian obey official traffic control

devices “specifically applicable to the pedestrian” and “[a]t

all other places, pedestrians shall be accorded the privileges

and shall be subject to the restrictions stated in this

chapter.”    HRS § 291C-71(a), (c).       Instruction No. 1, however,

does not comport with the language of HRS § 291C-71.

Instruction No. 1 broadened the statutory mandate from traffic

and pedestrian-control devices to “all traffic laws” and leaves

the jury guessing as to which laws a pedestrian must follow.

Therefore, the circuit court’s giving of the instruction was

erroneous and the ICA erred in concluding that Instruction No. 1

was supported by HRS § 291C-71.

    Instruction No. 2 similarly tracks the language of HRS §

291C-73.    Instruction No. 2 stated “[a] pedestrian who crosses a

roadway outside of a crosswalk is required to yield the right of

way to all vehicles upon the roadway.”         HRS § 291C-73(a)

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provides, “[e]very pedestrian crossing a roadway at any point

other than within a marked crosswalk or within an unmarked

crosswalk at an intersection shall yield the right-of-way to all

vehicles upon the roadway.”      The parties disputed whether Minor

was located in a crosswalk at the point of impact based on

conflicting eyewitness testimony.         Multiple witnesses, such as

Nahulu, Benson, and Day, testified that Minor moved diagonally

as she crossed the street in front of the bus parked at or near

the stop line.    Under the circumstances of this case,

Instruction No. 2 should not have been given as it implies that

a person who starts in crosswalk but moves out ever so slightly

must yield the right-of-way to all vehicles, regardless of the

circumstances.    There are various circumstances that could cause

a person to step out of a marked crosswalk, including moving out

of the way of an oncoming vehicle.        Instruction No. 2 suggests

that such a pedestrian necessarily would be negligent for

failing to yield the right-of-way.        Instruction No. 2 was an

improper categorical statement, and was therefore improperly

given.

          c.     The Samsons’ Requested Instruction No. 12

     The Samsons argue that the ICA erred in rejecting the

Samsons’ proposed Instruction No. 12 because Hawaiʻi law

recognizes that “all persons . . . are also obligated . . . to

exercise due care or ordinary care, commensurate with the

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apparent risk[,]” including any imbalance in the parties’

capacity to inflict harm.      (quoting Kahoʻohanohano v. Dep’t of

Human Servs., 117 Hawaiʻi 262, 297, 178 P.3d 538, 573 (2008)).

The Samsons asserted that their “proposed instruction 12 was

wholly proper given the different degree of risk[,]” and

requested clarification on “the duty of care as between

pedestrians and motorists.”

     Nahulu contends that the Samsons’ argument that motor

vehicle operators carry a “heightened” duty versus pedestrians,

as provided in Instruction No. 12, is contrary to existing

Hawaiʻi law and applicable federal decisions.

     The Samsons’ requested Instruction No. 12 provided as

follows:   “The duty to use reasonable care does not require the

same amount of caution from drivers and pedestrians.            While

drivers and pedestrians must be aware that motor vehicles can

cause serious injuries, drivers must use more care to avoid

collisions than pedestrians.”       The Samsons cited Bartlett v.

Melzo, 88 N.W.2d 518 (Mich. 1958), and Baumgartner v. State Farm

Mutual Automobile Insurance Co., 356 So.2d 400 (La. 1978),

superseded by statute, LA. CIV. CODE ANN. art. 2323 (1980)

(comparative fault), as recognized in Turner v. New Orleans

Public Service Inc., 476 So.2d 800 (La. 1985), in their

Application and Opening Brief in support of their argument that

a driver’s duty of ordinary care requires that a driver exercise

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greater caution than pedestrians.         These cases are, however,

premised entirely on contributory negligence principles.            88

N.W.2d at 524 (holding that a pedestrian was not guilty of

contributory negligence as a matter of law); 356 So.2d at 406

(“a plaintiff’s contributory negligence will not bar his

recovery”).

    As noted in our discussion, supra, of Instruction No. 6 (as

modified), Nahulu was required to exercise due care to avoid

collisions even if she had the right-of-way and did not violate

any traffic laws, and even if Minor violated pedestrian traffic

laws.    The Samsons’ proposed Instruction No. 12, however, went

further and improperly stated that the duty to use reasonable

care does not require the same amount of caution from drivers

and pedestrians.    This was an improper statement of the law.

Thus, the instruction was properly refused.

    2.     The Instructions as a Whole were Prejudicially
           Erroneous
    The Samsons also argue that the instructions, as a whole,

gave the “erroneous impression that a driver need not anticipate

pedestrians who are not strictly following the letter of the

law, which is inconsistent with Hawaii’s comparative negligence

law.”   Turning to the instructions as a whole, we note that the

circuit court instructed the jury that:         (1) a pedestrian must

obey all traffic laws (Instruction No. 1), (2) a pedestrian who



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crosses outside of a crosswalk must yield the right-of-way to

vehicles (Instruction No. 2), and (3) a person traveling upon a

highway has a right to assume others will obey the law and is

not required to keep a lookout for others (Instruction No. 6).

In addition, the court instructed the jury about a driver’s duty

of ordinary care (Samsons’ Instruction No. 8) in accordance with

(1) Ferrage v. Honolulu Rapid Transit and Land Co., 24 Haw. 87,

91 (Terr. 1917) (anticipate possibility of pedestrians), (2)

Sherry v. Asing, 56 Haw. 135, 143, 531 P.2d 648, 655 (1975)

(driver’s duty to avoid collisions with pedestrians), (3) Payne

v. Sorenson, 599 P.2d 362, 364 (Mont. 1979) (motorist’s line of

sight), and (4) HRS § 291C-101 (safe and appropriate speed).

Further, the court instructed the jury about the rights-of-way

of pedestrians and drivers in crosswalks under HRS § 291C-72

(Samsons’ Instruction No. 4 combined with Nahulu’s Instruction

No. 5), and a driver’s duty to exercise due care to avoid

colliding with pedestrians in accordance with HRS § 291C-74

(Samsons’ Instruction No. 6).       In addition, the court gave an

instruction that summarized a different quotation from Arena

regarding limitations to a driver’s right-of-way (Samsons’

Instruction No. 10).     See 46 Haw. at 332, 379 P.2d at 605 (“[A]n

operator of a motor vehicle cannot arbitrarily rely upon the

right of way gained as a result of excessive speed or by other

negligent act or violation of the law.” (quotation marks and

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citations omitted)).       Finally, the court also instructed that a

traffic law violation is evidence of, but is not conclusive of,

negligence:

                  The violation of a state or city law is evidence of
            negligence, but the fact that the law was violated is not
            sufficient, by itself, to establish negligence. The
            violation of the law must be considered along with all the
            other evidence in this case in deciding the issue of
            negligence.
                  Whether there was a violation of a state or city law
            is for you to determine.

      Although multiple instructions were given describing the

duties of drivers and pedestrians,13 the instructions, as a

whole, improperly focused on a pedestrian’s duties and gave the

impression that a pedestrian is barred from civil recovery if he

or she violates any traffic law.

      The jury instructions will need to be revisited on remand.

We now provide further guidance to the circuit court on remand

regarding the evidentiary issues.

B.    The circuit court erroneously excluded Day’s testimony
      about Nahulu’s Speed
      The Samsons argue that the ICA “grievously misapplied” the

“same evidence” rule to find that the circuit court’s wrongful

exclusion of Day’s “unsafe speed” testimony was harmless error.

(citing Kekua v. Kaiser Found. Hosp., 61 Haw. 208, 219, 601 P.2d

364, 371 (1971)).      Specifically, the Samsons argue that the ICA

could not find that Day’s eyewitness testimony was the same as

or identical to other evidence presented to the jury.              Further,
      13
            See supra note 10.


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as the Samsons contend, no other testimony was given concerning

the “inappropriateness of [Nahulu’s] speed under the

circumstances to the same degree as [Day’s] excluded

testimony[.]”   Speed was an important issue and the exclusion

was clearly prejudicial.      The Samsons also request “that any

standard for determining whether the exclusion of evidence is

harmless error [] consider the importance of the evidence to the

proponent’s case.    (citing Adams v. Fuqua Industries, Inc., 820

F.2d 271, 273 (8th Cir. 1987)).

     Nahulu argues that the ICA properly applied Kekua to find

that “Day was able to provide essentially the same evidence

through his detailed account of his observations” given his

statements concerning Nahulu’s vehicle and speed as well as

other witnesses’ testimony relevant to Nahulu’s speed and

alleged breach of duty, such as Benson’s testimony.

     Generally, a witness is permitted to give an opinion on an

ultimate fact involved in the case, but may not give opinions on

questions of law as that would amount to legal conclusions.             See

HRE Rule 704; Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 81

Hawaiʻi 512, 522, 918 P.2d 1168, 1178 (App. 1996) (“[N]onexpert

opinion that amounts to a conclusion of law cannot be properly

received in evidence, since the determination of such questions

is exclusively within the province of the court[.]”).



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      The ICA correctly concluded that the circuit court erred in

excluding Day’s testimony.        Given that Day had personal

knowledge of the events due to his vantage point, his deposition

testimony that Nahulu was traveling at an unsafe speed was

relevant to an ultimate fact, and thus, was admissible.              As the

ICA correctly concluded, Day did not testify on any question of

law, and any issues related to Day’s definition of unsafe could

have been addressed during cross-examination.            Thus, the circuit

court erred in excluding this testimony.           As we are remanding

for a new trial based on erroneous instructions, the harmless

error issue is moot.

C.    Exhibit 7 should have been admitted

      The Samsons argue that the ICA confused evidentiary

sufficiency with unfair prejudice when it affirmed the circuit

court’s exclusion of Exhibit 7 and Benson’s related testimony on

point of impact.      The Samsons assert that even though the

evidence was not sufficient standing alone to establish that

Minor was in a crosswalk and required a foundation laid by

others, it was admissible because admitted evidence proved that

there was a crosswalk at the scene and Benson’s testimony

rendered Minor’s location in a crosswalk more likely than not.

Moreover, they contend that the fact that the evidence was

damaging to Nahulu’s case does not establish unfair prejudice as




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it did not suggest a decision on an improper basis.             (citing HRE

Rule 403, Commentary).

       Nahulu argues that the ICA correctly found the circuit

court did not abuse its discretion in precluding the evidence

due to a lack of foundation and consideration of the prejudicial

effect substantially outweighing its probative value.

       First, with respect to foundation, Exhibit 7 was an exhibit

to Benson’s deposition.       He placed the first “X” on the

photograph of the scene, and adopted the placement of the second

“X.”    With the overwhelming testimony of other witnesses as to

the existence of the marked crosswalk on the date of the

accident, proper foundation existed for the admission of Exhibit

7.

       Second, the circuit court actually excluded Exhibit 7 due

to its belief that its admission would be unduly prejudicial

based on Benson’s testimony that he could not recall whether

there was a marked crosswalk on the day of the accident.              This

HRE Rule 403 ruling is reviewed for an abuse of discretion.

Tabieros, 85 Hawaiʻi at 351, 944 P.2d at 1294.

       Under HRE Rule 403, Exhibit 7 should have been admitted

unless the probative value was substantially outweighed by its

undue prejudicial effect.        “Probative evidence always

‘prejudices’ the party against whom it is offered since it tends

to prove the case against that person.”           State v. Klafta, 73

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Haw. 109, 115, 831 P.2d 512, 516 (1992).         The commentary to HRE

Rule 403 explains that “‘[u]nfair prejudice,’ as the Advisory

Committee’s Note to Fed. R. Evid. Rule 403 explains, ‘means an

undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.’”            HRE Rule

403, Commentary.    In addition, overall considerations in making

this determination include the actual need for the evidence,

availability of other evidence on the same issues, probative

weight of the evidence, and the potential for creating prejudice

against the accused in the jurors’ minds.         State v. Murphy, 59

Haw. 1, 9, 575 P.2d 448, 455 (1978) (discussed in HRE Rule 403

Commentary).

    The jury, in determining the issue of negligence, was

entitled to know Minor’s location by a key eyewitness to the

collision.   As the Samsons argue, there is nothing inherently

prejudicial about a crosswalk that would lead the jury to

determine negligence upon an improper basis.          Further, any

potential prejudice could have been cured by a limiting

instruction.

    The ICA’s reliance on State v. Sequin, 73 Haw. 331, 338,

822 P.2d 269 (1992), is misguided.        In Sequin, this court upheld

a trial court’s ruling excluding a photographic exhibit taken

six months after the incident because multiple witnesses could

not verify that it substantially depicted the area at the time

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of the alleged offense and there was another diagram admitted

into evidence that more clearly portrayed the area.           In this

case, Exhibit 7 substantially depicted the area because other

witnesses, such as Nahulu and Mrs. Joao, were able to provide a

foundation for a crosswalk at the intersection.          In addition,

the same photograph without the markings was admitted into

evidence as Exhibit 3-B without objection.

    Any potential prejudicial effect of Exhibit 7 did not

substantially outweigh its probative value.          Therefore, the

circuit court should have admitted the exhibit.

                            VI.    Conclusion

    Based on the foregoing analysis, we vacate the ICA’s May 2,

2014 Judgment on Appeal, entered pursuant to its March 31, 2014

Memorandum Opinion, which affirmed the Circuit Court of the

First Circuit’s August 9, 2010 Judgment and September 29, 2010

Order Denying Plaintiffs’ Motion for Judgment Notwithstanding

the Verdict and/or, In the Alternative, for New Trial, and

remand the case to the circuit court for further proceedings

consistent with this opinion.

Ronald A. Albu                            /s/ Mark E. Recktenwald
for petitioners
                                          /s/ Paula A. Nakayama
Jonathan L. Ortiz and
Wade J. Katano                            /s/ Sabrina S. McKenna
for respondent
                                          /s/ Richard W. Pollack

                                          /s/ Michael D. Wilson

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