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Lee v. Elbaum3/10/1993
OPINION OF THE COURT BY WATANABE, J.
In this wrongful death case, Plaintiff-Appellant Rita Mae Ing Lee (Appellant), the mother of Edward J. H. Lee (Decedent), appeals, individually and as Special Administrator of Decedent's estate, from the First Circuit Court's March 28, 1991 judgment against her and Decedent's father, who was also appointed as Special Administrator of Decedent's estate (collectively, Plaintiffs), and the April 26, 1991 order denying Appellant's motion for a new trial.
Appellant argues that the trial court committed reversible error in several respects. First, Appellant argues that the trial court should not have allowed Dr. Bruce Liebert (Liebert), a defense expert, to testify on the effect of a high-speed propeller blade hitting bone mass, since Liebert had previously testified during his deposition that he had "no trial opinions," and his trial testimony thus unduly surprised Plaintiffs.
Appellant also insists that it was error to allow another defense witness, Dr. Richard Grigg (Grigg), to comment on a television news video taken a few hours after the accident in question.
Third, Appellant asserts that the trial court erred in giving several jury instructions which she contends were not supported by the evidence.
Fourth, Appellant maintains that the trial court should have allowed Plaintiffs to introduce evidence at trial that Defendant Leonard Elbaum (Defendant) had a habit of operating his motorboat at high speeds.
Finally, Appellant argues that the trial court should have granted her motion for a new trial because it was undisputed that Defendant did not slow his boat down when he approached the divers in the water, and did not render aid after allegedly striking Decedent with his boat.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 8, 1986, Decedent and three friends, Guy Takazano (Takazano), Francis Mossman, and Ricky Fong, took Decedent's boat out in Maunalua Bay, Oahu, anchored the boat about 1,000 feet from the number one buoy along the edge of the reef in the area to the right of the channel facing Diamond Head, put up a dive flag so that other boaters would know that there were divers in the water, and went snorkeling for octopus.
That same afternoon, Defendant and his wife, June Elbaum, set out with two friends, Bruce and Shari Bucky, for an afternoon boat ride in the vicinity of Maunalua Bay. As the group headed out of the channel going approximately twenty miles an hour, Takazano "just popped out of the water . . . right in the main channel," 3/11/91 Transcript at 162-63, and Defendant swerved his boat to avoid hitting Takazano. Shortly thereafter, Defendant spotted another diver in the water ahead of the boat. Defendant immediately cut the throttle back to neutral and turned the boat hard to the right, causing him to drop to one knee and the right edge of the cockpit to drop down to the water level. Defendant then turned the boat around to return to the second diver and noticed the diver's body floating face down amidst a pool of blood.
Neither Defendant, nor any member of his party, attempted to rescue Decedent from the water. Instead, Defendant notified the Coast Guard, and everyone in his boat attempted to flag down help from other passing boaters.
The record indicates that Decedent had suffered an open skull fracture so deep that his brain was exposed. He also suffered multiple lacerations to the left side of his head and body. Decedent was taken to shore by a boat that had been flagged down, and transported by ambulance to Queen's Hospital, where he was pronounced dead at 2:25 p.m.
Appellant an
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