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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              21-NOV-2019
                                                              10:32 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

       BERNADINE KUAHIWINUI, Individually and as Personal
 Representative of the Estate of KRISTERPHER KAUPU-KUAHIWINUI,
                  deceased; and KENNETH KAUPU,
               Respondents/Plaintiffs-Appellants,

                                    vs.

                   ZELO’S INC., dba SUSHI & BLUES,
                    Petitioner/Defendant-Appellee,

                                    and

          TAHITI NUI ENTERPRISES, INC., dba TAHITI NUI,
                      and STATE OF HAWAIʻI,
                Respondents/Defendants-Appellees.
                          (5CC08000067)
________________________________________________________________

                   ZELO’S INC., dba SUSHI & BLUES,
                  Petitioner/Third-Party Plaintiff,

                                    vs.

                    SOLOMON MAKUA KUAHIWINUI,
                Respondent/Third-Party Defendant.
                          (5CC08000067)
________________________________________________________________
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                          STATE OF HAWAIʻI,
                  Respondent/Third-Party Plaintiff,

                                    vs.

          SOLOMON KUAHIWINUI and CHRISTOPHER FERGUSON,
               Respondents/Third-Party Defendants.
                          (5CC08000067)
________________________________________________________________

   SHERYL ANN ACKERMAN, Individually; SHERYL ANN ACKERMAN, as
     mother of, natural guardian and next friend for BRITNEY
         ANN HARDSKY, minor; and SHERYL ANN ACKERMAN, as
             Personal Representative of the Estate of
               CHRISTOPHER COLE FERGUSON, deceased,
                       Respondent/Plaintiff,

                                    vs.

                   ZELO’S INC., dba SUSHI & BLUES,
                        Petitioner/Defendant,

                                    and

     SOLOMON MAKUA KUAHIWINUI; JAMES B. EDMONDS; TAHITI NUI
      ENTERPRISES, INC., dba TAHITI NUI; STATE OF HAWAIʻI;
                    and THE COUNTY OF KAUAI,
                     Respondents/Defendants.
                          (5CC08000069)
________________________________________________________________

                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                        (CAAP-XX-XXXXXXX)

                           November 21, 2019

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

                 OPINION OF THE COURT BY WILSON, J.

          Under Hawaiʻi’s liquor control statute, Hawaiʻi Revised

Statutes (“HRS”) § 281-78 (Supp. 1996), liquor licensees have a

duty to refrain from serving alcohol to patrons that they know,


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or have reason to know, are under the influence of intoxicating

liquor.   Ono v. Applegate, 62 Haw. 131, 138, 612 P.2d 533, 539

(1980).   A negligent violation of this duty constitutes a cause

of action known as a “dram shop” action.          Id. at 134 n.2, 612

P.2d at 537 n.2.     Respondents/Plaintiffs-Appellants Bernadine

Kuahiwinui and Kenneth Kaupu (“Kristerpher’s Estate”) assert a

dram shop claim on behalf of their son, Kristerpher Kuahiwinui

(“Kristerpher”),1 who died while riding as a passenger in a

vehicle driven by Kristerpher’s intoxicated cousin Solomon

Kuahiwinui (“Solomon”).      The liquor licensee that served Solomon

and Kristerpher alcohol, Petitioner/Defendant-Appellee Zelo’s

Inc. (“Zelo’s”), moved for summary judgment on the dram shop

claim, alleging that Kristerpher’s Estate lacked standing to

bring its claim of negligence against Zelo’s.           The Circuit Court

of the Fifth Circuit (“circuit court”) granted summary judgment

to Zelo’s because Kristerpher was also intoxicated at the time

of the accident, and therefore not an “innocent third party”

with standing to bring a dram shop claim. 2         The Intermediate

Court of Appeals (“ICA”) reversed the circuit court’s judgment,

holding that there are genuine issues of material fact regarding


      1
            Bernadine Kuahiwinui brought the case in her individual capacity
and as representative of Kristerpher’s estate. Kenneth Kaupu appears in his
individual capacity.
      2
            The Honorable Randal G.B. Valenciano presided.




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the complicity defense, i.e. “whether Kristerpher actively

contributed to or procured the intoxication of Solomon and thus,

whether Kristerpher falls within the protected class of innocent

third parties entitled to bring a dram shop cause of action.”

Kuahiwinui v. Zelo’s Inc., 141 Hawaiʻi 368, 379, 409 P.3d 772,

783 (App. 2017).    Because the complicity defense is inconsistent

with application of the defense of contributory negligence, the

judgment of the ICA is affirmed, but on the grounds that there

are genuine issues of material fact as to whether Kristerpher’s

contributory negligence exceeded the negligence of Zelo’s.

                            I.     Background

           On April 1, 2006 on the island of Kauaʻi, Solomon was

driving his cousin, Kristerpher, and friend, Christopher

Ferguson (“Ferguson”), home after having dinner and alcoholic

drinks at Sushi & Blues—a restaurant owned and operated by

Zelo’s.   When their vehicle failed to negotiate a left turn, it

tumbled down an embankment and landed in the Hanalei River

upside-down.   Solomon survived, but Kristerpher and Ferguson

were unable to escape from the vehicle, and died.

           Solomon testified in his deposition as to the events

that occurred leading up to the accident.         When Solomon,

Ferguson, and Kristerpher stopped at a bank to deposit their

checks in the late afternoon on March 31, 2006, Ferguson

purchased a twelve-pack of beer from a nearby store.           They drove


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to Hanalei Bay, where they remained for two hours drinking beer.

Kristerpher also purchased marijuana from a group of people

nearby.   Solomon drank two beers and smoked marijuana during

this time.    Solomon then drove himself, Kristerpher, and

Ferguson from Hanalei Bay to Sushi & Blues, where they had

dinner and drinks.     They were served by Zelo’s’ employee Serge

Bullington (“Bullington”) who later stated in his deposition

that Solomon did not appear intoxicated.          Bullington recalled

serving Solomon two beers and two shots.          According to Solomon,

Kristerpher also purchased a mixed drink with “strong tequila”

which the three men shared.

             Solomon, Kristerpher, and Ferguson left Sushi & Blues

and Solomon drove them to a nearby bar called Tahiti Nui.

Solomon ordered one beer at Tahiti Nui, but after a few sips,

the security guard asked Solomon and Kristerpher to leave. 3              When

they left Tahiti Nui around midnight, Solomon was driving.                As

the car approached the Hanalei Bridge, it failed to negotiate a

left turn, hit a guard rail, rolled down an embankment, and

plunged into the river upside down.         Kristerpher and Ferguson

drowned and Solomon escaped.       Blood tests later revealed that




      3
            Solomon speculated that they were asked to leave Tahiti Nui
because Kristerpher was underage.




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Solomon’s blood alcohol content (“BAC”) was 0.13, or one and a

half times the legal limit for driving. 4

      A.     Circuit Court Proceedings

            As noted, Kristerpher’s Estate filed a dram shop claim

against Zelo’s.5     It argued that Zelo’s breached its duty to

refrain from serving alcohol to patrons that it knew, or had

reason to know, were under the influence of an intoxicant.

Zelo’s moved for summary judgment with respect to the dram shop

claim, arguing that “[i]ntoxicated persons . . . are simply not

afforded the right to assert civil liability against a

commercial seller of alcohol[.]”          Because Kristerpher was

intoxicated at the time of his death, 6 Zelo’s argued that he did

not fall within the class of persons intended to be protected by

dram shop liability.        The circuit court granted Zelo’s’ motion

for summary judgment, finding that Kristerpher’s Estate lacked
      4
            Pursuant to HRS § 291E-61(a)(4) (Supp. 2005), the legal limit for
driving is 0.08 grams of alcohol per one hundred milliliters or cubic
centimeters of blood:

            (a) A person commits the offense of operating a vehicle
            under the influence of an intoxicant if the person operates
            or assumes actual physical control of a vehicle:

                  . . . .

                  (4) With .08 or more grams of alcohol per one hundred
                  milliliters or cubic centimeters of blood.
      5
            Kristerpher’s Estate also brought a dram shop claim against
Tahiti Nui, but it was dismissed with prejudice pursuant to a stipulation
entered into by the parties.
      6
            Kristerpher’s BAC at the time of the accident was 0.16—twice the
legal limit for driving.




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standing to assert the claim because Kristerpher was intoxicated

at the time of the accident.      It held that Zelo’s did not owe a

duty to Kristerpher to refrain from serving alcohol to Solomon,

the driver, because Kristerpher was not an “innocent third

party” protected by the dram shop law.         Kristerpher’s Estate

appealed to the ICA.

       B.    ICA Proceedings

             On appeal, Kristerpher’s Estate argued that the

circuit court erred in holding that Kristerpher was not an

“innocent third party” intended to be protected by the dram shop

law.   It claimed that only individuals who injure themselves as

a result of drunk driving are precluded from asserting dram shop

causes of action, and since Kristerpher was a passenger in a

vehicle driven by a drunk driver, Kristerpher’s Estate is not

barred from raising the claim.

             The ICA vacated the circuit court’s order granting

summary judgment to Zelo’s.      Zelo’s, 141 Hawaiʻi at 379, 409 P.3d

at 783.     It described the duty owed by a liquor licensee “not to

serve alcohol to a person it knows or reasonably should know is

under the influence of alcohol” and noted that the class of

people intended to be protected by this legal duty are “innocent

third parties.”     Id. at 369, 409 P.3d at 773.       The ICA stated

that “an innocent third party injured by a drunk driver has a

negligence cause of action against a liquor licensee that,


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preceding the injury, served alcohol to the drunk driver, who it

knew or reasonably should have known was intoxicated.”            Id.    The

ICA held that an injured third party that is intoxicated “is not

automatically excluded from the class of innocent third parties

entitled to pursue a dram shop cause of action.”           Id. at 372,

409 P.3d at 776.    Rather, only an individual “who injures

himself or herself while driving drunk” is precluded from

raising such a claim.     Id. at 376, 409 P.3d at 780 (emphasis in

original).

             To determine what constitutes an “innocent third

party,” the ICA applied a complicity defense analysis that has

been adopted in several other jurisdictions.          Id. at 378, 409

P.3d at 782.    Under a complicity defense, an injured third party

is excluded from the class of “innocent third parties” that may

bring a dram shop claim against a liquor licensee when he or she

“actively contributed to or procured the intoxication of the

drunk driver who injured him or her.”        Id. at 370, 409 P.3d at

774.   Here, because Kristerpher was not the driver of the

vehicle, the ICA determined that he was not automatically

excluded from the class of “innocent third parties.”           Id. at

376-77, 409 P.3d at 780-81.      However, it held that genuine

issues of material fact existed concerning whether Kristerpher

“actively contributed to or procured” Solomon’s intoxication,

which would remove him from the class of “innocent third


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parties” and thereby bar him from raising a dram shop claim

against Zelo’s.    Id. at 379, 409 P.3d at 783.        The ICA vacated

the circuit court’s judgment and remanded to the circuit court

for further proceedings consistent with its opinion that the

complicity defense was available to Zelo’s.          Id.

     C.   Supreme Court Filings

          Zelo’s raised three issues in its Application for Writ

of Certiorari:    (1) generally, whether a party asserting a dram

shop cause of action must establish its “standing as an

‘innocent third party’ within the protected class of individuals

for which the claim is reserved[;]” (2) whether Kristerpher is

an “innocent third party;” and (3) whether the ICA erred in

applying the complicity defense to determine that there are

genuine issues of material fact with regard to Kristerpher’s

status as an “innocent third party.”        In response, Kristerpher’s

Estate argued that the ICA properly applied the complicity

defense doctrine and correctly found that there are genuine

issues of material fact regarding whether Kristerpher is an

“innocent third party” in this case.

                        II.   Standard of Review

          The appellate court reviews “the circuit court’s grant

or denial of summary judgment de novo.”         Querubin v. Thronas,

107 Hawaiʻi 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v.




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Aloha Plastic Recycling, Inc., 105 Hawaiʻi 490, 501, 100 P.3d 60,

71 (2004)).    This court has often articulated that:

            [S]ummary judgment is appropriate if the pleadings,
            depositions, answers to interrogatories, and admissions on
            file, together with the affidavits, if any, show that there
            is no genuine issue as to any material fact and that the
            moving party is entitled to judgment as a matter of law. 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 the inferences drawn therefrom
            in the light most favorable to the party opposing the
            motion.

Id. (brackets in original) (quoting Durette, 105 Hawaiʻi at 490,

100 P.3d at 71).

                              III. Discussion

      A.   Kristerpher’s Estate has standing to assert a dram
      shop claim against Zelo’s.

            Kristerpher’s Estate has standing to raise a dram shop

claim against Zelo’s pursuant to Hawaiʻi’s liquor control

statute, HRS § 281-78,7 which imposes a duty upon liquor

licensees to refrain from serving individuals that the licensees

know, or have reason to know, are under the influence of an

intoxicating liquor.      See Ono, 62 Haw. at 138, 612 P.2d at 539.

Although a dram shop owes no duty to a customer who injures

himself or herself after drinking, it owes a duty to innocent

      7
            At the time of the accident, HRS § 281-78(b)(1)(B) (Supp. 1996)
stated “[a]t no time under any circumstances shall any licensee or its
employee . . . [s]ell, serve, or furnish any liquor to, or allow the
consumption of any liquor by: . . . [a]ny person at the time under the
influence of liquor[.]”




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injured third parties.8      Bertelmann, 69 Haw. at 101, 735 P.2d at

934.

            Bertelmann does not provide a dispositive resolution

to the question raised by this case.         Bertelmann involved a

consumer of alcohol who died from injuries he received while

driving his car alone after drinking at a hotel.            Id. at 96, 735

P.2d at 931.    This court held that “merely serving liquor to an

already intoxicated customer and allowing said customer to leave

the premises, of itself, does not constitute actionable

negligence” “in the absence of harm to an innocent third party,”

id. at 101, 735 P.2d at 934, but did not expound on who counts

as an “innocent third party.”        In our view, “an innocent third


      8
            In Bertelmann v. Taas Assocs., this court “emphatically
reject[ed] the contention that intoxicated liquor consumers can seek recovery
from the bar or tavern which sold them alcohol” in the absence of
“affirmative acts which increase the peril of an intoxicated customer.” 69
Haw. 95, 100-01, 735 P.2d 930, 933-34 (1987). In doing so, we created an
inconsistency between our dram shop liability rules and our general modified
comparative negligence statute, HRS § 663-31 (2016), under which “an injured
plaintiff may recover against a defendant even if her negligence contributed
to her own injury, as long as her negligence is not greater than that of the
defendant.” Steigman v. Outrigger Enters., Inc., 126 Hawaiʻi 133, 135, 267
P.3d 1238, 1240 (2011). It has accordingly been suggested that our holding
in Bertelmann, which was later reaffirmed in Feliciano v. Waikiki Deep Water,
Inc., 69 Haw. 605, 752 P.2d 1076 (1988), and extended to preclude underage
drinkers from recovering from commercial liquor sellers in Winters v. Silver
Fox Bar, 71 Haw. 524, 797 P.2d 51 (1990), should be reassessed. See Reyes v.
Kuboyama, 76 Hawaiʻi 137, 147, 870 P.2d 1281, 1291 (1994) (Levinson, J.,
concurring). However, in 2003, the legislature implicitly acknowledged this
inconsistency by enacting HRS § 663-41 (2016), which imposes the same
liability rules on social hosts. HRS § 663-41 provides that social hosts
over the age of twenty-one who provide or permit the provision of alcoholic
beverages to persons under the age of twenty-one are “liable for all injuries
or damages caused by the intoxicated person under twenty-one years of age[,]”
except that “[a]n intoxicated person under the age of twenty-one years who
causes an injury or damage shall have no right of action under this part.”




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party” would, under our law of comparative negligence, be a

person whose negligence does not exceed that of the tortfeasor.

            Because Kristerpher’s Estate is a third party

representing an individual who sustained injuries allegedly due

to the negligent conduct of Zelo’s, it has standing to bring a

dram shop claim against Zelo’s.        See Ono, 62 Haw. at 134-41, 612

P.2d at 537-41.     Under the facts of this case and the holding of

Bertelmann, only Solomon, the driver, would be precluded from

recovering from Zelo’s.9

      B.   The complicity defense is not applicable in this
      jurisdiction because it conflicts with the comparative
      negligence statute.

            The complicity defense bars an individual from

asserting a dram shop claim if the individual “actively

contributed to or procured the intoxication of” the drunk

driver.   Zelo’s, 141 Hawaiʻi at 379, 409 P.3d at 783.           The

comparative negligence defense applicable in this jurisdiction

is inconsistent with the complicity defense.           Pursuant to HRS

§ 663-31(a), claims arising from acts of negligence that result

“in death or in injury to person or property” are not barred by

the negligence of the injured plaintiff unless his or her
      9
            That is not to say, however, that a passenger injured in a drunk
driving accident is precluded as a matter of law from being found to be more
responsible than a commercial supplier of liquor under our general modified
comparative negligence rules. Accordingly, we agree with the ICA that a
passenger’s own intoxication does not “automatically exclude[] him from the
class of innocent third parties protected by the dram shop cause of action.”
Zelo’s, 141 Hawaiʻi at 377, 409 P.3d at 781 (emphasis added).




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negligence is greater than that of the individual against whom

recovery is sought.10    The complicity defense conflicts with HRS

§ 663-31(a) because it bars a potential plaintiff from asserting

a negligence claim against a liquor licensee per se if the

plaintiff “actively contributed to or procured the intoxication

of” the individual that caused the plaintiff’s injury,


     10
          HRS § 663-31 provides:

          (a) 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.

          (b) In any action to which subsection (a) of this section
          applies, the court, in a nonjury trial, shall make findings
          of fact or, in a jury trial, the jury shall return a
          special verdict which shall state:

                (1) The amount of the damages which would have been
                recoverable if there had been no contributory
                negligence; and

                (2) The degree of negligence of each party,
                expressed as a percentage.

          (c) Upon the making of the findings of fact or the return
          of a special verdict, as is contemplated by subsection (b)
          above, the court shall reduce the amount of the award in
          proportion to the amount of negligence attributable to the
          person for whose injury, damage or death recovery is made;
          provided that if the said proportion is 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, the court will enter a judgment
          for the defendant.

          (d) The court shall instruct the jury regarding the law of
          comparative negligence where appropriate.




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regardless of whether the plaintiff’s negligence is greater than

that of the liquor licensee.        Zelo’s, 141 Hawaiʻi at 379, 409

P.3d at 783.     Therefore, the complicity defense would bar

recovery to an injured individual who would otherwise be able to

recover pursuant to the comparative negligence statute, HRS §

663-31.   Accordingly, evidence that Kristerpher “actively

contributed to or procured the intoxication of Solomon” is

relevant to the jury’s comparison of the degree of negligence

between Kristerpher and Zelo’s, but any “active” contribution by

him does not bar Kristerpher’s Estate from raising a dram shop

claim against Zelo’s.     Id.

     C.   There are genuine issues of material fact regarding
     whether Kristerpher’s negligence exceeded that of Zelo’s.

             Summary judgment is required if, viewing the evidence

in the light most favorable to the non-moving party, “there is

“no genuine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.”           Querubin,

107 Hawaiʻi at 56, 109 P.3d at 697 (quoting Durette, 105 Hawaiʻi

at 501, 100 P.3d at 71).        Per Zelo’s’ comparative negligence

defense—and viewing the evidence in the light most favorable to

Kristerpher’s Estate—genuine issues of material fact exist as to

whether Zelo’s’ negligence exceeded Kristerpher’s.           The record

contains evidence that could support a finding that Zelo’s was

negligent.     Before arriving at Sushi & Blues, Solomon drank two



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beers and smoked marijuana.       Evidence that Solomon had been

drinking and smoking before he arrived at Sushi & Blues

indicates that Zelo’s may have known, or had reason to know,

that Solomon was under the influence of an intoxicant when it

served him alcohol.     See Ono, 62 Haw. at 140, 612 P.2d at 540.

The record also contains evidence that Kristerpher may have been

negligent.    Solomon testified in his deposition that Kristerpher

purchased and smoked marijuana and drank beers with Solomon at

Hanalei Bay and purchased one “strong” mixed drink which he

shared with Solomon at Sushi & Blues before riding as a

passenger in a car driven by Solomon.        Because Kristerpher

accepted a ride from an individual with whom he had been

consuming intoxicants, a jury could find that Kristerpher was

negligent.    However, viewed in the light most favorable to

Kristerpher’s Estate, the evidence in the record contains a

genuine issue of material fact as to the degree of negligence

attributable to Kristerpher and Zelo’s, and whether Kristerpher

engaged in conduct that was more negligent than that of Zelo’s.

                            IV.    Conclusion

             Viewing the evidence in the light most favorable to

the non-moving party, there are genuine issues of material fact

as to whether Kristerpher’s negligence was greater than that of

Zelo’s.   Therefore, we affirm the ICA’s January 30, 2018

judgment on appeal vacating the circuit court’s June 7, 2013


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final judgment but for the reasons stated herein and remand to

the circuit court for further proceedings consistent with this

opinion.

Michelle-Lynn E. Luke             /s/ Mark E. Recktenwald
for Petitioner
                                  /s/ Paula A. Nakayama
Stephen M. Tannenbaum
(James J. Bickerton               /s/ Sabrina S. McKenna
Nathan P. Roehrig
on the brief)                     /s/ Richard W. Pollack
for Respondents
Bernadine Kuahiwinui              /s/ Michael D. Wilson
and Kenneth Kaupu




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