I. No Trespasser, Licensee, Invitee Distinction under Hawaii Law
In Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969), the Supreme Court of the State of Hawaii did away with the traditional classification of persons coming onto land. This distinction between trespasser, licensee and business invitee forms the foundation of premises liability law in many other jurisdictions. (See the Restatement of Torts (Second) §343). In Hawaii, however, as the Supreme Court has repeated on several occasions, there is no longer a distinction between trespasser, licensee (social guest) and invitee (business guest) for purposes of Hawaii premises liability law. See, eg., Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 416, 772 P.2d 693, reconsideration denied, 70 Haw. 661, 796 P.2d 1004 (1989).
II. The Bases of Premises Liability Law in Hawaii
A. The Premises Must Have an Unreasonable Risk of Harm
The general rule with respect to the liability of owners and occupiers of land is that ” [a] possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it.” Corbett, 70 Haw. at 415, 772 P.2d at 693 (emphasis added); see also Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 386, 742 P.2d 377, 384 (1987), Bidar v. AMFAC, Inc., 66 Haw. 547 at 559 (1983).
B. The Possessor of Land Must Have Failed to Take Reasonable Steps to Eliminate the Unreasonable Risk of Harm
The case of Richardson v. Sports Shinko Waikiki Corp., 76 Haw. 494, 880 P.2d 169 (1994), demonstrates that the Hawaii Supreme Court does not require all unreasonable risks of harm to be completely eliminated in order for a possessor of land to escape liability for an accident occurring on its premises. In that case, the Hawaii Supreme Court affirmed a defense verdict in favor of a hotel and against the guest who injured herself on a staple embedded in a meeting room rug. The Court found that because reasonable steps were taken to eliminate the unreasonable risk of harm, there was not even a duty to warn of the danger which remained. After reviewing the record in the light most favorable to the hotel (because it was the plaintiffs’ appeal), the court stated that the hotel’s efforts at vacuuming, regular cleaning, detection and monitoring complaints (or the lack thereof) were sufficient to constitute “reasonable steps” to eliminate the unreasonable risk of harm.
C. Warnings of the Condition by the Possessor of Land Must Be Absent and the Condition Must Not Be Open and Obvious
i. Warnings of the Condition Must Be Absent
As set forth above, in Corbett, supra, the Hawaii Supreme Court found that a possessor of land can escape liability if it takes steps to warn users of the land against an unreasonable risk of harm found on its property. Typically, this involves the posting of a sign or the installation of a barrier to warn and protect against the danger. However, the Hawaii Supreme Court has found that there are certain types of conditions which provide their own warning and hence are not actionable. These are “open and obvious” conditions.
ii. The Condition must not be Open and Obvious
In the case of Friedrich v. Department of Transportation, 60 Haw. 32 at 36 (1978), the court found that a puddle- seen and sought to be avoided- was a danger which was sufficiently “open and obvious” that it provided its own warning and no further warning by the owner of the land was necessary. The Supreme Court of Hawaii stated: “The obviousness of a risk substitutes for an express warning and satisfies this obligation.” The court went on to state that the landowner “may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid.”
D. The Possessor of Land must have Actual or Constructive Notice of the Condition
In the case of Harris v. State, 1 Haw. App. 554, 623 P.2d 446 (1981), the Hawaii Supreme Court stated that the duty to correct or warn of a condition which poses an unreasonable risk of harm does not arise until the possessor of land has notice of the condition. Hence, under Hawaii law, in order to support recovery in an action where an owner or occupant is charged with negligence, it must be shown that the owner or occupant knows or should have known of the hazard or defect which caused the injury. Liability cannot be imposed where a landlord or an owner or occupant of premises has not been put on actual or constructive notice of the unsafe condition or defect that causes plaintiff injury. See also, Kellett v. City & County of Honolulu, 35 Haw. 447 (1940).
Negligence law in Hawaii does not require an owner or occupant of land to be an insurer against all accidents that occur on the premises. However, liability may be imposed upon a possessor of land for certain conditions which present an unreasonable risk of harm to ordinarily careful users of the premises. Once it has been shown that the Defendant knew or in the exercise of reasonable care should have known of the condition and that the Defendant did not take reasonable steps to eliminate the risk or to warn against it, the possessor of land will then be found responsible to one who is injured by the condition.