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Dunbar v. Thompson8/14/1995
OPINION OF THE COURT BY WATANABE, J.
Plaintiff-Appellant Elaine Dunbar (Plaintiff) brought this lawsuit to recover general, special, and punitive damages from Defendants-Appellees Apollo Thompson (Thompson) and Pentagram Corporation, dba Burger King (Pentagram), for physical injuries and emotional distress sustained when she was allegedly assaulted by Thompson during an early morning fight at a Burger King restaurant in Waikiki on October 25, 1987. Pursuant to a jury verdict, the trial court entered a March 16, 1992 judgment in favor of Plaintiff and against Thompson for $3,850 but absolved Pentagram of any liability to Plaintiff. Plaintiff thereafter filed a motion for a new trial, which the trial court denied on April 27, 1992. This appeal followed.
Plaintiff contends that the trial court reversibly erred when it: (1) denied her motion for a new trial in the face of an inconsistent jury verdict, (2) precluded her expert witness from testifying at trial, and (3) refused to rule on and grant her motion for a continuance of trial.
We agree that the trial court's erred when it denied Plaintiff's motion for a new trial. Accordingly, we vacate the judgment below and remand for a new trial. Our Disposition of this appeal renders it unnecessary to address Plaintiff's remaining points of error.
I. BACKGROUND
A. The Incident
At approximately 4:00 a.m. on October 25, 1987, Plaintiff and her friend Edgar Juntilla (Juntilla) were eating an early morning snack at a Burger King restaurant located in the King's Village shopping complex in Waikiki. They had just come from Spats, a Waikiki discotheque, where Plaintiff reportedly consumed two to four alcoholic beverages. The two had planned to walk back to their apartment building after the snack.
The evidence at trial established that in 1987, during the hours between dark and dawn, the area in Waikiki near the King's Village shopping complex was considered by the Honolulu Police Department (HPD) to be a high crime area. During those hours, the area was frequented by "street people, prostitutes, pimps, people looking to make a fast buck, people taking property from others, in other words, grabbing an object and taking off with it." The area was also close to several nightclubs which served alcohol, and police officers were called upon frequently to deal with fights involving inebriated patrons.
There were no security guards on duty at the King's Village shopping complex between the hours of 2:00 a.m. and 6:00 a.m., and the Burger King restaurant was the only business establishment in the complex open twenty-four hours a day. However, except for enforcing a no-loitering policy, the Burger King staff did nothing to discourage vagrants, prostitutes, or drunks from patronizing the restaurant, and they relied on the HPD to keep the area safe.
Plaintiff testified that while she was eating and conversing with Juntilla on the morning in question, a loud commotion at another table attracted her attention. When she turned around to determine the source of the commotion, the noise stopped and several men who were seated at the other table looked at her. Plaintiff then turned to Juntilla and rolled her eyes.
Almost immediately, one of the men at the other table, Michael King (King), approached Plaintiff and began shouting obscenities at her. As racial slurs were exchanged and abusive verbal volleys between King and Plaintiff continued, Plaintiff claims that two of King's companions, including Thompson, walked over to Plaintiff's table. Noticing a "manager" in a Burger King uniform sitting with customers, Plaintiff yelled at him to either get the guys harass
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