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Tabieros v. Clark Equipment Co.9/15/1997
ting Clark's motion for a directed verdict on their claim of negligent failure to retrofit. On the other hand, Clark maintains that the circuit court did not do enough to purge the issue of a supposed duty to retrofit from the trial. Clark alleges that the circuit court erred when it allowed the plaintiffs' expert witnesses -- Howard Josephs and Roger W. Sackett -- to testify that Clark owed a duty to retrofit and had breached that duty. The plaintiffs respond that the expert testimony (1) was necessary to establish that a duty to retrofit should be recognized under Hawai'i law and (2) was otherwise relevant, and therefore admissible, to prove (a) notice of defect, (b) entitlement to punitive damages, and (c) "whether Clark could have, and should have, solved the problem at the outset rather than waiting to solve it by a retrofit campaign." The plaintiffs also suggest that, insofar as the circuit court (having already directed a verdict in Clark's favor with respect to that particular claim for relief) did not instruct the jury regarding Clark's alleged negligent failure to retrofit, Josephs and Sackett's testimony could not have prejudiced Clark.
On appeal, the plaintiffs advance three theories under which Clark allegedly owed a duty to retrofit the straddle carrier for the purpose of making it safer. First, they argue that Tabieros I, being the "law of this case," "implied" a duty to retrofit. Second, they claim that general negligence principles support the existence of the duty. And third, they contend that, even if Clark did not owe a duty to retrofit the Series 510 straddle carrier in the first instance, it nevertheless assumed the duty by virtue of its own conduct. We now address each theory seriatim.
1. Law of the case
The plaintiffs' first contention that Tabieros I, as a matter of the law of the case, "implied" a duty on Clark's part to retrofit the straddle carrier is palpably mistaken. Their argument relies exclusively on three paragraphs of Tabieros I, taken out of context, which described the evidence adduced at the first trial foundationally to this court's holding that the trial court erred in directing a verdict in Clark's favor with respect to the plaintiffs' claim for punitive damages.
On the basis of the evidence described therein, we determined that "the jury could have inferred that Clark, at the time of manufacturing the Series 510 straddle carrier, had reservations about the design and safety of the straddle carrier but sold the carrier regardless of the danger created by the blind zone." Tabieros I at 22 (emphasis added). Accordingly, we held in Tabieros I that the plaintiffs had "clearly . . . produced the requisite level of evidence needed to overcome Clark's motion for a directed verdict on the issue of punitive damages." Id. In other words, we held in substance that, giving to the plaintiffs' evidence all the value to which it was legitimately entitled and indulging every legitimate inference that could be drawn in their favor, it could not be said that there was no evidence to support a punitive damages verdict. See Weinberg, 78 Haw. at 49-50, 890 P.2d at 286-87. Specifically, with respect to Clark's state of mind as it related to potential liability for punitive damages, we held that the evidence -- including, inter alia, that pertaining to Clark's failure to retrofit the straddle carrier -- could have led the jury to conclude that there was a "positive element of conscious wrongdoing" on Clark's part, or that Clark had "acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or that there . . . some willful misconduct or suc
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