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Crichfield v. Grand Wailea Company7/31/2000
n the property before this happened?
CHERYL: No. We just walked onto the property.
WALBY: Okay. Didn't go anywhere and have anything to drink or eat?
CHERYL: No.
(Some ellipsis points added and some in original). Cheryl also added that, just prior to taking off her slipper, the last step she took "was squishy" but that she didn't feel any actual moisture on or in her slipper. Rather, it was "a spongy muddy feeling." At the end of the interview, Walby again asked what "the purpose for your going to the Grand Wailea," to which Cheryl replied: "To look at the statuary and the pond and just the different, different location, I wanted to see what another hotel would look like."
In his interview with Walby, Gary explained that he had first visited the Grand Wailea two days before the accident because he "had been told there was some beautiful artwork, some bronze sculpturing, to view on the property." He "wandered around the grass area where these sculptures were and took pictures of them at that time with camera and returned back and told wife[,] 'We have to go, we have to go, you have to see this.'" In response to Walby's question, " o was that the sole purpose of your returning to the Grand Wailea on the date of the accident," Gary responded, "Yes it was."
On July 22, 1998, the Crichfields filed a complaint against Grand Wailea and the Doe defendants, in which they asserted claims grounded in negligence, breach of warranty, and strict products liability. On August 27, 1998, Grand Wailea filed its answer, in which, inter alia, it asserted HRUS as an affirmative defense. The Crichfields filed an amended complaint on September 23, 1998, which Grand Wailea answered on October 15, 1998, again asserting HRUS as an affirmative defense. Grand Wailea filed a motion for summary judgment on all of the Crichfields's claims on June 18, 1999. In the motion, Grand Wailea argued that Cheryl's negligence claim -- and, a fortiori, Gary's derivative claim -- were barred by HRUS and that the breach of warranty and strict products liability claims were not supported by Hawaii law.
Although the Crichfields did not oppose summary judgment on their breach of warranty and products liability claims, they did urge that HRUS did not bar their negligence claim. The Crichfields argued that, inasmuch as they were now averring by way of affidavits that their reason for visiting the Grand Wailea was to have lunch at the resort and that their purposes and actions while on the grounds of the Grand Wailea were therefore not "recreational," there remained a genuine issue of material fact that precluded summary judgment.
The affidavits upon which the Crichfields relied at the hearing on Grand Wailea's motion for summary judgment had not been signed at the time the hearing was conducted. Copies of the unexecuted affidavits were attached to the Crichfields' memorandum in opposition, and the Crichfields' counsel explained in a declaration, also attached to the memorandum, that he had not yet received the executed affidavits back from the mainland. At the hearing on Grand Wailea's motion, conducted on July 22, 1999, the circuit court inquired of the Crichfields' counsel, "How do you expect [the court] to rely on the unsigned affidavits?" The Crichfields' counsel replied that the court had the discretion to hear argument and defer making a decision until the signed affidavits could be filed. The circuit court then requested that the parties proceed with oral argument on Grand Wailea's motion for summary judgment.
Grand Wailea argued that the affidavits, even if they were admissible as evidence, did not generate a genuine issue of materia
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