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Crichfield v. Grand Wailea Company7/31/2000
l fact because " his whole idea of lunch never came up until it was asserted in these affidavits in response to our motion for summary judgment" and, therefore, the factual allegations contained in the affidavits were nothing more than "an attempt to retroactively mold their testimony to try to take them out of [HRUS]."
In the alternative, Grand Wailea argued that, even if the Crichfields actually subjectively intended, when entering Grand Wailea's property, to purchase lunch, HRUS still applied because "Howard v. United States[, 181 F.3d 1064, 1072-73 (9th Cir. 1999),] says you look at the landowner's intent for opening up the property, not Plaintiff's subjective intent and purpose for being on the property." Grand Wailea reasoned that, inasmuch as it is the landowner's intent that controls whether the landowner comes within or without the statute, the subjective intent of the plaintiff is immaterial. Because the Crichfields did not contest the declaration of the Grand Wailea's executive director of finance, which stated in part that the portion of the grounds on which the accident had occurred was held open to the public for recreational purposes such as walking and viewing the scenic sites, Grand Wailea contended that there was no genuine issue of material fact, that Grand Wailea came within HRUS, and that HRUS immunized Grand Wailea from negligence liability for the accident.
In response, the Crichfields argued that the purpose of Grand Wailea's facilities and grounds was to commercially "operate a hotel and restaurant for people to patronize, and that is what [the Crichfields] were going to do." In addition, the Crichfields argued that Ward North America's interviewers had deliberately avoided asking the Crichfields if they were on the property of Grand Wailea to have lunch.
After noting that the accident had occurred on September 6, 1997, the circuit court ruled as follows:
. . . In January of 1998, the recorded statements were taken. There is no question in the Court's mind about what they were there for, which was to view the statues; in other words, what the Court is concluding is that they come specifically within the statute.
As to the affidavits, up to now they have not been signed, but even if they were signed, there is no question that today is already July of 1999. If it could be argued that somebody -- I know that you made in your argument that during the recorded statement there was some avoidance asking the question about lunch.
The Court is not convinced about that because I read the recorded statements. It appears clear to the Court that there was no trickery, and the reason I mention that is you are now trying to say there is a question of fact in this case concerning the lunch to which your clients are about or will execute affidavits. It probably could be argued at this point they are the ones who are trying to create an issue of fact.
From what has been presented to me and considering the statute involved in this case, the Court is going to -- as a matter of law, the Court is going to grant the Defendant's motion for summary judgment.
The Crichfields' affidavits were signed and notarized on July 26, 1999, and were filed on August 2, 1999. The circuit court filed its order granting summary and final judgment in favor of Grand Wailea and against the Crichfields on September 13, 1999. This timely appeal followed.
II. STANDARDS OF REVIEW
A. Summary Judgment
We review circuit court's award of summary judgment de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22,
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