   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-29851
                                                               19-AUG-2013
                                                               10:39 AM




                                 SCWC-29851

             IN THE SUPREME COURT OF THE STATE OF HAWAI#I


       FRANCISCO ABADILLA, JR., Respondent/Plaintiff-Appellant,

                                     vs.

            SANFORD IWATA, Petitioner/Defendant-Appellee.


           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (ICA NO. 29851; CIVIL NO. 07-1-36)

                            MEMORANDUM OPINION
(By:   Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

            We hold that inasmuch as the Circuit Court of the Third

Circuit (the court)1 granted summary judgment to Petitioner/

Defendant-Appellee Sanford Iwata (Defendant) apparently as to all

theories of liability and with respect to all his capacities

alleged in the amended complaint, in focusing on negligence and

on wilful and wanton misconduct in Defendant’s position as a co-

employee of Respondent/Plaintiff-Appellant Francisco Abadilla,

       1
            The Honorable Greg K. Nakamura presided.
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


Jr. (Plaintiff), the Intermediate Court of Appeals (ICA) erred in

vacating summary judgment without determining whether summary

judgment was appropriately granted or not with respect to the

other said theories of liability and the other capacities of

Defendant.

            Defendant seeks review of the March 15, 2013 ICA

judgment filed pursuant to its January 31, 2013 Memorandum

Opinion, and the Order of Correction filed on March 15, 2013,

vacating and remanding the Final Judgment filed by the court

entered on April 28, 2009.

                                     I.

                                     A.

            The essential facts taken from the ICA’s opinion

follow.2   “[Plaintiff] was employed by Sanford’s Service Center,

Inc. (SSC). . . . SSC operated a rock quarry . . . and was in the

business of supplying gravel, cinder, and soil.            [Defendant] was

the president and general manager of SSC and a co-employee of
[Plaintiff].    [Defendant’s] duties included serving as a

supervisor, mechanic, job estimator, laborer, trainer, safety

compliance officer, equipment operator, and driver.            [Defendant]

was responsible for safety training and compliance and took care

of ‘most of the maintenance and the field work.’            As the operator

of the rock quarry, SSC was governed by federal Mine Safety



      2
            For ease of reading, regular font is used for the long quotes in
this section.


                                      2
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


Health Administration (MSHA) regulations, and [Defendant] held a

mining training certificate.”       Abadilla v. Iwata, No. 29851, 2013

WL 377301, at *1 (App. Jan. 31, 2013) (mem.).

          “As part of its business, SSC owned and used a[n] . . .

[Impactor] to crush larger rocks into smaller rocks or aggregate.

[Plaintiff] was trained by [Defendant] regarding the maintenance

of the Impactor.    The Impactor crushed rocks as follows:          Rocks

were fed by a chute into the inner chamber of the Impactor, which

contained a rotating impeller shaft to which metal bars [(known

as “blow bars”)] were attached. . . . [T]he rotating impeller

would hit the rocks against fixed breaker plates causing the

rocks to fracture into smaller pieces.         The metal bars were held

in place with wedges or chocks designed to prevent them from

coming out during operation.       The chamber was lined with high-

chrome tiles that were bolted down.        While in operation, the

cover to the chamber was kept closed[.]”         Id.

          “During a prior incident which occurred several months
before [Plaintiff] sustained his injuries . . . , the Impactor

malfunctioned and ‘exploded,’ causing major damage to the

Impactor.”   Id. at *2.    “After the explosion, [Plaintiff]

observed that the cover to the Impactor had opened up, and that

pieces of the bar assembly were ‘all over the place.’            Jack Lee

(Lee), an employee of SSC, believed that the explosion occurred

when one of the blow bars ‘got loose’ in the Impactor.            As a

result of the malfunction/explosion, the impeller shaft, blow

bars, and other parts of the machine were cracked or damaged and

                                     3
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


a metal piece attached to the impeller shaft had broken off.”

Id.

           “There is no indication that [Defendant] or SSC sought

assistance from the manufacturer of the Impactor . . . or others

in determining the exact cause of the Impactor’s malfunction/

explosion.   The damage to the Impactor was repaired in-house by

SSC with the assistance of an outside welder[.]”           Id.   “At

[Defendant’s] direction, [the welder] welded a metal piece . . .

onto the impeller shaft and fixed other cracks[.]”           Id.   “The

welds were not tested[.]”      Id.

           “[Plaintiff] and other employees were instructed to

weld worn locking wedges holding the metal bars in place, rather

than replacing them with new locking wedges and bolts.

[Plaintiff] warned [Defendant] that this practice was unsafe.”

Id.   “[A] foreman at the company that previously owned the

Impactor . . . explained that welding the wedges . . . would

limit their usefulness and that the parts . . . would probably
not ‘stay tight.’”    Id.

           “After the Impactor was placed back into service, . . .

the bearings holding the impeller shaft would run hot.

[Defendant] was aware of this[.]”        Id.   “[Defendant] instructed

[Plaintiff] to grease the Impactor every thirty minutes while the

machine was running to get a better coverage with the grease, and

so that the greasing would not slow down the process of crushing

rock.   [Defendant’s] instruction was contrary to MSHA

regulations, which generally require that maintenance and repair

                                     4
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


on a machine only be performed after the power is off[.]”             Id.

“It was also contrary to the operating manual for the Impactor

[that] . . . warned against over-lubrication because ‘[t]oo much

lubrication will cause abnormally high operating temperatures.’

[Defendant] was not aware of these . . . MSHA regulations and the

operating manual.”    Id.

            “On the day that [Plaintiff] was injured, he was

greasing the Impactor while it was running in accordance with

[Defendant’s] instructions. . . . [T]he Impactor again ‘exploded’

and metal parts from within the Impactor flew outside the

machine.    [Plaintiff] was hit in the stomach by metal parts or

pieces that broke off and were expelled from the Impactor,

allegedly causing severe bodily injuries.”           Id. at *3.   A co-

worker “observed that the cover to the Impactor had been blown

open during the explosion.      Metal parts . . . to the impeller

shaft had broken off, and . . .       metal pieces . . . of the blow

bars as well as the wedges or chocks, were outside the machine on
the ground.    [The co-worker] concluded that a blow bar that came

loose or cracked caused the Impactor to explode, because a metal

piece that fell inside the Impactor would cause damage to the

machine.”    Id.   “Prior to the explosion . . . one or two of the

locks designed to hold the cover to the Impactor in place were

missing or broken.    According to [Plaintiff], . . . the parts

that had been welded after the prior malfunction incident came

apart while the Impactor was running.”         Id.



                                     5
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                    B.

          Plaintiff filed an amended complaint on March 17, 2008.

In pertinent part, the complaint stated:
                                  Count I

                2. [Defendant] has been . . . employed by [SSC].
                . . . .
                8. Defendants3 knew or should have known on and prior
          to May 17, 2005, that the impactor machine used by
          [Plaintiff] on property under their ownership and/or
          possession and/or control was mechanically unfit for use and
          was unsafe. The injuries and damages alleged in paragraph
          7, above, occurred as a direct and legal result of
          Defendants’ negligence, jointly and severally, in providing
          a defective impactor machine for use by [Plaintiff] and/or
          said Defendants’ negligence, jointly and severally, in
          permitting a hazard known to them to exist on property under
          their ownership and/or possession and/or control.
                . . . .

                                 Count III

                13. Plaintiff incorporates by reference the
          allegations contained in Counts I and II, above.
                14. At all times material to this Complaint,
          [Defendant] and [Plaintiff] were employed by [SSC] and were
          co-employees.
                15. At all times material . . . [Defendant] was
          President of [SSC], and was charged with responsibility for
          providing inspection and/or maintenance and/or repair of
          heavy equipment and machinery, including the subject
          impactor machine[.]
                16. At all times material . . . [Defendant] was
          responsible for supervising [Plaintiff] and for ensuring
          proper safety procedures were followed in the operation,
          maintenance and repair of the heavy equipment and machinery,
          including the [impactor.]
                17. [Defendant] and [Doe] were also responsible . . .
          to ensure that operators of heavy equipment and machinery
          used by [SSC] were properly trained to operate heavy
          equipment and machinery.
                18. [Defendant] . . . negligently failed to properly
          inspect and/or maintain and/or repair the [impactor] and/or
          to ensure that only properly trained personnel operated the
          [impactor.]
                19. As a direct and legal result of the negligence of
          [Defendant] and/or Doe . . ., [Plaintiff] . . . suffered . .
          . injuries and damages[.]
                . . . .

                                  Count V

                22.   Plaintiff incorporates by reference the



     3
          Other “Defendants” referred to unnamed “Doe” defendants.

                                     6
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


            allegations contained in Counts I-IV, above.
                  23. The above described conduct of [Defendant] and/or
            [Doe] was committed recklessly and/or wantonly and/or in a
            grossly negligent manner and/or with a conscious
            indifference to the safety of [Plaintiff.]

(Emphases added.)

                                     II.

                                     A.

                                     1.

            On the motion for summary judgment as to Count I,
Defendant argued that pursuant to HRS § 386-8 (1993)4 and Iddings

v. Mee-Lee, 82 Hawai#i 1, 919 P.2d 263 (1996), “employer immunity

from negligence actions . . . is furthered by extension of

immunity to co-employee suits based on negligence[,]” and thus,

Defendant, as a co-employee, was immune from suit by Plaintiff.

(Emphasis omitted.)      Additionally, Defendant submitted an

affidavit indicating “the impactor . . . is owned by [SSC,]” “he

did not provide the impactor . . . to [Plaintiff,]” and “the

property upon which [Plaintiff] . . . was allegedly injured was

owned, possessed and/or controlled by [SSC.]”
            Plaintiff briefly responded as to Count I that “[t]o

the extent that [Defendant] is moving to dismiss any claims other

than those based on negligence of a co-employee, he should be

denied.”




      4
            HRS § 386-8 states, in relevant part, that “[a]nother employee of
the same employer shall not be relieved of his liability as a third party, if
the personal injury is caused by his wilful and wanton misconduct.”



                                      7
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


            In his Reply, Defendant pointed out that as to “claims

against [Defendant] . . . on his alleged negligence as a co-

employee[, Defendant] does not oppose the dismissal of such

claims pursuant to [HRS] § 386-8[,]” and that Plaintiff “failed

to come forward with specific facts showing . . . there remains a

genuine issue of fact with respect to” Defendant “not provid[ing]

the impactor[,]” and Defendant “not own[ing], possess[ing],

and/or control[ling] the property on which the accident

occurred.”

                                    2.

            On the motion for summary judgment as to Count III,

Defendant maintained that based on Iddings, he had immunity from

suit as a co-employee for negligently (1) inspecting,

maintaining, or repairing the impactor, and (2) ensuring properly

trained personnel operated the impactor.         Defendant also argued

that the allegation that as president of SSC, Defendant was

liable for the conduct described above in (1) and (2), and for
(3) supervising Plaintiff, and (4) ensuring safety procedures was

followed in the operation, maintenance, and repair of the

machinery, was barred by case law.

            In his Memorandum, Defendant stated that “[c]ourts

around the country have ruled that supervisory employees cannot

be sued for a failure to provide a safe work place to the injured

employee.    The employer owes a non[-]delegable duty to provide a

safe work environment. . . . The duty of proper supervision is a



                                     8
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


duty owed by a corporate officer or supervisory employee to the

employer, not to a fellow employee.”

            According to Defendant, “[t]he rationale of this

principle ‘is that workers’ compensation is the exclusive remedy

against an employer and, if there is a failure of an officer or

employee to perform a duty owed to the employer, the employee’s

recourse is solely against the employer.         When an officer or

supervisor fails to perform the employer’s duty, the failure is

that of the employer, not the officer or supervisor.’”            (Quoting

Laffin v. Chemical Supply Co., 253 N.W.2d 51, 53 (Wis. 1977).)

Defendant thus maintained he was entitled to summary judgment

because any failures must be attributable to SSC, and not

Defendant.

            In response, Plaintiff maintained that “Defendant

undertook certain responsibilities that transcended his duties as

a corporate officer.”     Defendant’s Response to Interrogatory

states that “[his] duties and responsibilities are Mechanic
(registered), supervisor . . . , trainer . . . [and] [s]afety

compliance.”    (Emphases omitted.)      Additionally, a report by SSC

to the MSHA states that Defendant is the “Person with Overall

Responsibility for a Health and Safety Program in All of the

Operator’s Mines.”

            In a further interrogatory, Defendant answered that he

was one of the persons “responsible for the inspection and/or

maintenance and/or repair of the subject machine[.]”            Emphasis

omitted.)    According to Plaintiff, Defendant “was the employee of

                                     9
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


SSC who had specific, admitted responsibilities [for] which

Plaintiff is alleging he was grossly negligent[.]”

          With respect to the non-delegable duty of providing a

safe workplace, Plaintiff contended that Athas v. Hill, 476 A.2d

710 (Ct. App. Md. 1984), cited by Defendant, holds that “if a

corporate office or supervisory employee is also a coemployee,

the injured employee may maintain an action against the officer

or employee.   But if the officer or supervisor is merely acting

on behalf of the employer in his capacity as a corporate officer,

a personal action against him may not be maintained.”5            He also

stated that Kruse v. Schieve, 213 N.W.2d 64 (Wis. 1973), cited by

Defendant, indicated that “‘[i]f the corporate officer . . . had

not personally directed the particular operation to be done in a

particular manner, there would have been no basis for holding

that he had become a coemployee and owed a common-law duty to a

fellow employee under the circumstances.’”         (Quoting Kruse, 213

N.W.2d at 68.)
          On December 8, 2008, the court granted Defendant

summary judgment on Counts I and III.

                                    B.

          In his Motion for Summary Judgment on Count V,

Defendant argued that to impose punitive damages against

Defendant, “Plaintiff must prove by clear and convincing

evidence, that there was a positive element of conscious wrong


     5
          The quote in Athas could not be located based on the citation.


                                    10
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


doing, on the part of Defendant.”        According to Defendant,

“Plaintiff does not allege any positive element of conscious

wrongdoing” because Plaintiff alleges negligent acts, negligent

omissions, and carrying on abnormally dangerous activity.

(Emphasis in original.)     Further, Defendant reiterated that he

did not provide the impactor, own or possess the property on

which the incident took place, and was not responsible for

fulfilling the non-delegable duty of SSC to provide a safe place

to work or safe machinery.

          In his Memorandum in Opposition, Plaintiff maintained

that, based on the court’s Instruction No. 8.12, a defendant is

subject to punitive damages when he “acted intentionally,

willfully, wantonly, oppressively, or with gross negligence.”

          Further, Instruction No. 8.13 defines “wilful” as,

inter alia, “indifference to . . . natural consequences.”

Plaintiff asserted that Defendant was indifferent to the natural

consequences of welding broken parts rather than using new parts,
failing to disclose to the manufacturer’s representative the

prior explosion and makeshift repairs, failing to disclose to the

MSHA inspector the prior explosion, and ordering greasing of the

impactor while it ran.

          Attached to Plaintiff’s memorandum was a declaration by

Plaintiff which indicated Defendant had contact with Plaintiff in

connection with the incident, and that welding used parts caused

the impactor to explode.      The declaration stated, in part, that:



                                    11
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                 5. [Defendant] showed [Plaintiff] how to apply grease
          while the impactor was running, and in fact, ordered me to
          do so.
                 6. [Defendant] told [Plaintiff] to grease the
          impactor while it was still running so that it would not
          slow down the process of crushing rock.
          . . . .
                 8. Prior to [Plaintiff’s] accident, the impactor
          exploded resulting in the shaft, blow bars and other parts
          breaking. . . .
                 9. [Defendant] also instructed me and other employees
          to weld worn locking wedges in place instead of replacing
          the used and worn locking wedges and its locking bolts with
          new and safer locking wedges and bolts after [Plaintiff]
          informed [Defendant] on numerous occasions that these new
          wedges and bolts were needed because the worn parts were
          unsafe. . . .
                 10. After the aforesaid parts were welded, the
          impactor did not run smoothly but would vibrate and the
          bearings holding the shaft would run hot. [Defendant] was
          aware of this. That is the reason why [Defendant]
          instructed [Plaintiff] to apply grease to the machine
          continuously . . . .
                 11. . . . photographs of the impactor . . . showed
          the shaft, blow bars and other parts of the impactor
          discussed above after the explosion. Those photographs show
          that the shaft assembly broke where it had previously been
          welded by the other employee and the outside welding
          contractor . . . .
          . . . .
                 17. In [Plaintiff’s] opinion, the cause of the
          explosion was because the parts that were previously
          repaired by welding came apart while the impactor was
          running.

          In his Reply, Defendant contends “[Plaintiff] fail[ed]

to respond by affidavit or otherwise setting forth specific facts

showing a genuine issue of material fact with respect to his

claim for punitive damages[,]” and that instructions are not

court-approved.    (Citing K.M. Young & Assocs. v. Cieslik, 4 Haw.

App. 657, 675 P.2d 793 (1983).)       Rather, he maintains “[i]n

contrast, to justify an award of punitive damages, ‘a positive

element of conscious wrongdoing is always required . . .,’”

(citing Masaki v. General Motors Corp., 71 Haw. 1, 7, 780 P.2d

566, 570-571 (1989)), and Defendant “did not own or provide the .

. . impactor[,]” “did not own, possess or control the property


                                    12
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


upon which the accident occurred[,] and “[t]he duties that were

alleged breached . . . as the basis of Count III . . . were non[-

]delegable duties of [SCC] and . . . not duties . . . owed by

[Defendant].”

            On December 8, 2008, the court granted summary judgment

in favor of Defendant as to Count V.

                                   III.

            The ICA issued its Memorandum Opinion on January 31,

2013, and vacated the court’s grant of summary judgment against

Plaintiff as to Counts I, III, and V of the First Amended

Complaint.    Abadilla, 2013 WL 377301, at *1.        In its analysis,

the ICA first stated that there was no dispute that Plaintiff

sustained a work-related injury and Defendant was Plaintiff’s co-

employee.    Id. at *4.   Under Iddings, the ICA noted, Hawai#i’s

workers’ compensation law, HRS Chapter 386, bars suits by an

injured worker against co-employees on a theory of negligence.

Id.   However, it held that, also pursuant to Iddings, HRS §§
386-5 (1993) and 386-8 do not bar suit and establishment of

liability on a theory of wilful and wanton misconduct.            Id.

Thus, the ICA focused in its decision on “whether there were

genuine issues of material fact concerning whether Plaintiff was

injured as the result of [Defendant’s] wilful and wanton

misconduct.”    Id.

            The ICA reviewed the test set out by this court in

Iddings for the “wilful and wanton misconduct” exception to co-

employee immunity in HRS § 386-8, and applying the test to the

                                    13
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


facts of the instant case, as well as analogizing to the facts in

Iddings, the ICA concluded that “when the evidence is viewed in

the light most favorable to Plaintiff, there were genuine issues

of material fact regarding whether [Defendant] engaged in wilful

and wanton misconduct . . . .”       Id. at *5.    The ICA thus held,

“the [ c]ourt erred in granting summary judgment in favor of

[Defendant] on Counts I and III.”         Id. at *7.

          The ICA next addressed Count V, quoting this court’s

statement in Iddings that “‘tortious conduct meriting the

imposition of punitive damages and tortious conduct falling

within the exception to co-employee immunity in HRS § 386-8 are

measured by similar terms[.]’”       Id. at *7 (quoting Iddings, 82

Hawai#i at 9 n.6, 919 F.2d at 271 n.6).        On this basis, the ICA

concluded that “[b]ased on our analysis that there were genuine

issues of material fact regarding whether [Defendant] engaged in

wilful and wanton misconduct which caused [Plaintiff’s] injuries,

we conclude that there were also genuine issues of material fact
regarding [Plaintiff’s] claim for punitive damages.”            Id.

          The ICA vacated the court’s judgment as to Counts I,

III, and V.    Id.

                                    IV.

          Defendant presents the following questions in his

Application:
          1.     Whether the ICA erred in vacating the entry of
                 judgement against [Plaintiff] on Count I (negligent
                 providing a defective impactor machine and negligent
                 permitting a hazard known to exist on the premises) of
                 the first amended complaint.


                                    14
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


          2.     Whether the ICA erred in vacating the entry of
                 judgment against [Plaintiff] on Count III (negligent
                 failed to properly inspect and/or maintain and/or
                 repair the subject impactor machine and negligent
                 failed to ensure that only properly trained personnel
                 operated the subject impactor machine) of the first
                 amended complaint.

          3.     Whether the ICA erred in vacating the entry of
                 judgment against [Plaintiff] on Count V (punitive
                 damages) of the first amended complaint.

(Emphases added.)

          On April 29, 2013, Plaintiff filed an “Answer” which
very briefly and generally argued that Defendant failed to cite

“grave errors of law or fact or obvious inconsistencies with

controlling case law, [and that] Defendant essentially argued”

the ICA “did not interpret or apply Iddings[], 82 Hawai#i 1, 919

P.2d 263 [], as Petitioner argued.”

          On May 6, 2013, Defendant filed a Reply essentially

reiterating his positions before the court and the ICA.

                                    V.

          The standard to apply on a motion for summary judgment

is as follows:
          Summary 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. A
          fact is material if proof of that fact would have the effect
          of establishing or refuting one of the essential elements of
          a cause of action or defense asserted by the parties. The
          evidence must be viewed in the light most favorable to the
          non-moving party. In other words, we must view all of the
          evidence and inferences drawn therefrom in the light most
          favorable to the party opposing the motion.

Ralston v. Yim, 129 Hawai#i 46, 55-56, 292 P.3d 1276, 1285-86

(2013) (quoting First Ins. Co. of Hawai#i v. A & B Props., Inc.,


                                    15
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


126 Hawai#i 406, 413–14, 271 P.3d 1165, 1172–73 (2012)) (emphasis

added)(citations and brackets omitted).         “‘On appeal, the

standard of review for the granting of summary judgment is

identical to that applicable to the trial court’s consideration

of the motion.’”    Laeroc Waikiki Parkside, LLC v. K.S.K. (Oahu)

Ltd. P’ship, 115 Hawai#i 201, 211, 166 P.3d 961, 971 (2007)

(quoting Lansdell v. County of Kaua#i, 110 Hawai‘i 189, 194, 130

P.3d 1054, 1059 (2006)) (citation omitted).          Thus, “in reviewing

summary judgment decisions an appellate court steps into the

shoes of the trial court and applies the same legal standard as

the trial court applied.” Id. (quoting id.) (other citation

omitted).

                                    VI.

            With respect to the first question, Defendant makes

three arguments concerning Count I.

                                    A.

            Defendant first argues that he “did not provide the
impactor machine for use by [Plaintiff] or own the property on

which it was operated.”     According to Defendant, Plaintiff

“concedes that he was employed by SSC and that the subject . . .

machine was owned by SSC at the [relevant] time[.]”           [Id.]

Defendant “did not provide the . . . machine for use by

[Plaintiff]” and Defendant “did not own, possess or control the

property on which [Plaintiff] was working[,]” but was “possessed

and/or controlled by SSC, [Plaintiff’s] employer.”           Indeed, the

                                    16
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


amended complaint alleged that at the time of the incident the

“machine [was] owned by [SSC] which was being used to crush rock

on property owned by Doe Defendants.”        Thus, Defendant is correct

insofar as the complaint did not allege that Defendant, in his

individual capacity, owned the machine.         Rather, it was averred

that SSC owned the machine and that “Doe Defendants” rather than

[Defendant] owned the premises.

            The ICA did not determine whether there were any

genuine issues of material fact regarding Defendant’s declaration

that he did not own the impactor, that he did not provide the

impactor, and that he did not own or possess the property on

which the incident took place, in connection with the

allegations.    If there were no genuine issues of material fact

regarding these issues, then Defendant would be entitled to

summary judgment as to such claims of liability.           Thus, insofar

as the ICA vacated summary judgment, see Abadilla, 2013 WL

377301, at *7, it did so without deciding to what extent such
acts were encompassed within its holding.         The ICA did not make

any determination as to whether there were genuine issues of

material fact or if these issues were determined by law in

vacating the court’s summary judgment order as to Count I in its

entirety.

                                    B.

            Second, Defendant argues “[HRS] § 386-8 precludes

claims for negligence against [Defendant]” because Plaintiff and

                                    17
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


Defendant “were employed by SSC and were co-employees.”            He cites

to that part of the statute which reads as follows:
          When a work injury for which compensation is payable under
          this chapter has been sustained under the circumstances
          creating in some person other than the employer or another
          employee of the employer acting in the course of his
          employment a legal liability to pay damages on account
          thereof; the injured employee or his dependents . . . may
          claim compensation under this chapter and recover damages
          from such third person.

(Emphasis in original) (Citing HRS § 386-8).          Further, he states

that the Hawai#i Supreme Court has declared that:
          [O]ne of the primary purposes underlying the implementation
          of a workers’ compensation scheme in Hawai#i was to
          eliminate suits based on negligence in the work-place and to
          spread the costs of work-related injuries over the industry.

(Citing Iddings v. Mee-Lee, 82 Hawai#i 1, 7-8, 919 P.2d 263, 269-

270 (1996).)

          Defendant maintains that “since [Plaintiff’s] claims in

Count I against his co-employee [Defendant] are based solely on

[Defendant’s] negligence[,]” “[t]he ICA erred in vacating the

entry of judgment against [Plaintiff] on Count I[.]”            To the

contrary, the ICA held that Defendant, as a co-employee of
Plaintiff, was protected from liability based on a theory of

negligence.    Abadilla, 2013 WL 377301, at *7.        However, the ICA

made no separate determination as to whether a genuine issue of

material fact existed regarding whether Defendant was liable to

Plaintiff based on a theory of negligence in a capacity other

than that as co-employee, such as President of SSC or owner of

the land where the incident occurred.



                                    18
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


                                    C.

          Third, Defendant alleges he “is entitled to judgment

with respect to Count I” on the ground that “any genuine issue of

material fact related to . . . the alleged improper repair and

maintenance of the Impactor and the alleged improper instruction

to grease the machine while running is not pertinent to [the]

allegation in Count I . . . and permitting a [] hazard . . . on

property allegedly under his ownership, possession, or control.”

However, the ICA did not determine whether there were genuine

issues of material fact regarding whether Defendant owned the

impactor, provided the impactor to Plaintiff, or owned or

possessed the property in question or if these issues were

determined by law in its vacation of the court’s summary judgment

order as to Count I in its entirety.

                                   VII.

          With respect to the second question, Defendant

maintains “[t]he ICA erred in vacating the entry of judgment
against [Plaintiff] on Count III[.]”        His first contention is

that HRS § 386-8 precludes claims for negligence with respect to

“inspect[ing] and/or maintain[ing] and/or repair[ing] the . . .

machine; and/or ensur[ing] . . . properly train[ing] personnel

[who] operated the . . . impactor[.]”        Defendant points out that

Plaintiff “merely asserts a claim for negligence in Count II” and

Defendant, “as a co-employee of [Plaintiff], is immune from



                                    19
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


negligence actions.”     (Quoting Iddings, 82 Hawai#i 1, 919 P.2d

263.)

           Additionally, according to Defendant, Plaintiff

“alleges in Count III” that Defendant, as president of SSC, “was

responsible for carrying out the employer’s general obligation of

providing a reasonably safe place to work and furnish reasonably

safe . . . machinery.”     As noted before, Defendant maintained

that “‘workers’ compensation is the exclusive remedy against an

employer and, if there is a failure of an officer or employee to

perform a duty owed to the employer, the employee’s recourse

[such as plaintiff’s] is solely against the employer [such as

SSC].’”   (Citing Laffin, 253 N.W.2d at 53.)         Thus, Defendant

argues the “supervisory employees cannot be sued for a failure to

provide a safe work place to the injured employee.”           “[T]he

duties [Plaintiff] alleges that [Defendant] breached were duties

owed by SSC and not a co-employee.”

           This argument was raised in Defendant’s memorandum in
support of his motions for summary judgment at trial and in his

Answering Brief before the ICA.       However, the ICA did not decide

whether genuine issues of material fact existed as to this

defense or whether the defense failed as a matter of law in

vacating the court’s summary judgment order in its entirety.

           Further, with respect to Count III, Defendant argues

that Plaintiff’s “arguments of wilful and wanton misconduct on

the part of [Defendant] is misplaced.”         Defendant asserts that

                                    20
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


“Defendant’s knowledge of the risk of injury to [Plaintiff]

stemming from the alleged improper repair and maintenance of the

Impactor and the alleged improper instruction to . . . grease the

machine while running has no bearing on this case because there

is no evidence” that the alleged misconduct “caused the machine

to malfunction.”    According to Defendant, he “established that

there was no evidence to support [Plaintiff’s] assertion that”

these matters “caused the Impactor to malfunction,” because

Plaintiff presented no expert testimony or evidence to establish”

liability that these matters “caused the Impactor to

malfunction.”

          Defendant declares that “[Plaintiff’s] concession that

he essentially did not know whether the repair or maintenance of

the machine caused his injuries were made after the trial court

initially heard [Defendant’s] motion for summary judgment and

gave [Plaintiff] approximately 5 months to supplement his

position[.]”    Rather, Defendant points out that Plaintiff “relies
on his own lay opinion that ‘the cause of the explosion was

because the parts that were previously repaired by welding came

apart while the impactor was running.’”

          This argument was raised before the court in

Defendant’s memorandum in support of his motion for summary

judgment and in Defendant’s Answering Brief before the ICA.

However, the ICA did not expressly determine whether genuine

issues of material fact remained as to this defense, or whether

                                    21
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


the defense failed as a matter of law in vacating the court’s

summary judgment order as to Count III in its entirety.

                                   VIII.

          Finally, Defendant asserts “the ICA erred in vacating

the entry of judgment against [Plaintiff] on Count V (punitive

damages).”   As to this claim, Defendant argues that Plaintiff

“does not allege a positive element of conscious wrongdoing on

the part of [Defendant].”      Defendant maintains a “claim of wilful

and wanton misconduct” is “[in]sufficient to preserve . . .

punitive damages.”    Moreover, Defendant declares Plaintiff is

“incapable of presenting evidence to support his claim of wilful

and wanton misconduct” by Defendant on the grounds set forth

above.

          Based on Iddings, wilful and wanton conduct of a co-

employee may give rise to punitive damages.          Iddings, 82 Hawai#i

at 8, 919 P.2d at 270.     Accordingly, as to Count V, the ICA did

not gravely err in deciding summary judgment must be vacated as
to that count inasmuch as the ICA decided genuine issues of

material fact existed for such conduct.

                                    IX.

          The court entered summary judgment orders on Counts I,

III and V.   Accordingly, the court orders granted summary

judgment for Defendant on all theories of liability and in all

capacities alleged in the amended complaint with respect to the

said counts.   In its holding, the ICA vacated the summary

                                    22
   ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


judgment orders in their entirety.         Abadilla, 2013 WL 377301, at

*7.    However, the ICA only decided that there were genuine issues

of material fact regarding the alleged wilful and wanton conduct

of Defendant in his capacity as a co-employee.           Presumably, this

is because the ICA determined that under Iddings, HRS § 386-8

allowed actions against a co-employee for wilful and wanton

misconduct.    Id. at *5.

            Hence, the ICA did not decide whether genuine issues of

material fact existed or not regarding the other theories of

liability alleged and other capacities in which Defendant acted,

as alleged in the amended complaint.6         Yet, the ICA vacated the

entirety of the orders granting summary judgment on Counts I and

III.    See id., at *7.    In doing so, the ICA did not address, for

example, Defendant’s argument that he was not liable as an

officer or as a supervisor for furnishing a safe place to work

and reasonably safe machinery, or that there was no expert

testimony that the alleged acts of Defendant caused the Impactor
to malfunction.     As to this last defense, it is also unclear

whether the question of wilful and wanton misconduct would be

abrogated by the question of causation, i.e. whether the conduct

of Defendant was not the cause of the impactor exploding, as

posed by the Defendant.       Therefore, the case is remanded to the

      6
            Defendant was “the president and general manager of SSC and co-
employee of [Plaintiff],” who served as “supervisor, mechanic, job estimator,
laborer, trainer, safety compliance officer, equipment operator, and
driver[,]” and “responsible for safety training and compliance and . . . ‘most
of the maintenance and the field work.’” Abadilla, 2013 WL 377301, at *1.

                                     23
  ***NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***


ICA to decide, wilful and wanton liability aside, 1) what other

theories of liability, if any, were subject to summary judgment

and 2) in what capacities, that of co-employee aside, Defendant

was entitled to summary judgment, if any.

          DATED:    Honolulu, Hawai#i, August 19, 2013.

Gregory K. Markham,                  /s/ Mark E. Recktenwald
Keith K. Kato,
for petitioner                       /s/ Paula A. Nakayama

Steven K. Hisaka,                    /s/ Simeon R. Acoba, Jr.
for respondent
                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




                                    24
