State v. United States Steel Corp.6/24/1996
--/REF--> 651 P.2d 1228 (1982), we adopted the definition set forth in Spiegel, Inc. v. FTC, 540 F.2d 287, 293 (7th Cir. 1976), that " practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Rosa, 3 Haw. App. at 427, 651 P.2d at 1234. The federal cases have defined deception as an act causing, as a natural and probable result, a person to do that which he [or she] would not otherwise do. Bockenstette v. FTC, 134 F.2d 369 (10th Cir. 1943). However, the cases indicate that actual deception need not be shown; the capacity to deceive is sufficient. Goodman v. FTC, 244 F.2d 584 (9th Cir. 1957).
6 Haw. App. at 132-33, 712 P.2d at 1154 (footnote omitted). As is evident from the federal definitions properly adopted by the ICA in Rosa and Eastern Star, "deceptive" acts or practices are distinct from "unfair" acts or practices, both in how they are defined and in the standard by which they are proved. As the state correctly notes, read in conjunction with instruction no. 37, special instruction no. 18 incorrectly suggested to the jury that, in order for an act to be a deceptive act or practice, it must not only have the capacity to mislead, but must also be "immoral, unethical, oppressive, or unscrupulous." In other words, by defining "unfair" and "deceptive" acts conjunctively, the trial court effectively -- and improperly -- imposed upon the state the burden of proving that USX's actions were "immoral, unethical, oppressive, or unscrupulous," when all it needed to prove was that USX's actions had the capacity to mislead.
In view of our Conclusion that the trial court erroneously instructed the jury regarding the law of unfair or deceptive acts or practices in the conduct of trade or commerce, we must vacate the judgment in favor of USX on the HRS chapter 480 claim and remand for a new trial. As we have stated on numerous occasions, "erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." Quedding v. Arisumi Brothers, Inc., 66 Haw. 335, 340, 661 P.2d 706, 710 (1983) (brackets omitted) (quoting Turner v. Willis, 59 Haw. 319, 326, 582 P.2d 710, 715 (1978)); see also State v. Holbron, 80 Haw. 27, 904 P.2d 912, 917 (1995) (quoting same).
Because the instructions erroneously stated the standard by which the jury was to find liability under HRS chapter 480, and because the jury found USX not liable, it is impossible to determine, on appellate review, whether, on the one hand, the jury properly took into consideration the distinction between "unfair" and "deceptive" acts and nevertheless found no liability under either definition and standard, or whether, on the other, the jury was misled by the erroneous instructions and made its findings regarding the HRS chapter 480 claim in reliance on that misconception. Accordingly, it is also impossible to reach an affirmative Conclusion on appellate review in the present case that the error in the manner in which the jury was instructed was not prejudicial.
c. The Trial Court Did Nor Err in Refusing the State's Proposed Instruction Regarding The Lack of A Privity of Contract Requirement Associated With an HRS Chapter 480 Claim.
The state next argues that the trial court erred in refusing to
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