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Myers v. South Seas Corporation

5/14/1992

OPINION OF THE COURT BY HEEN, J.


Plaintiff-Appellant Michael S. Myers (Myers), individually and as special administrator of the estate of Marla Colleen Myers (Marla), appeals from the December 19, 1990 judgment in favor of Defendants-Appellees South Seas Corporation, dba Rudy's Italian Restaurant and Hideaway Lounge (Rudy's), and Outrigger Hotels Hawaii, Inc. (Outrigger), dba Outrigger Surf Hotel (Hotel), and the February 1, 1991 order denying his motion to amend the judgment or in the alternative for a new trial. We vacate the judgment in favor of Rudy's and remand Myers' claim against Rudy's for retrial. We affirm the judgment in favor of Outrigger.


On December 25, 1986, at approximately 2:00 a.m., Marla arrived at Rudy's, which is located in the Hotel, accompanied by Gordon Wesley Sodorff (Sodorff). Defendant Lautusi Taua (Taua) was in Rudy's at the time. Taua had with him a six-foot inflatable Godzilla doll.


Marla and Sodorff went to the bar in Rudy's, where Marla ordered a glass of wine. Before she could be served, Marla began to circulate among the tables greeting friends. Within a very short time, Marla was engaged in an altercation with Taua, during which they were shouting at each other. It is unclear how the altercation started; however, it appears that Marla slapped Taua's doll and knocked it over. Marla returned to the bar, but the two continued to exchange words. Taua approached Marla at the bar and slapped her. Marla slapped back and Taua punched her, knocking her off her bar stool. Taua punched Marla again as she fell. While Marla was on the ground, Taua appeared to stomp on her head. Rudy's bartender, Bruce Spewak (Spewak), and another customer, Brian Dragger (Dragger), pulled Taua away from Marla. Marla then left Rudy's through a back stairway and door leading to the Hotel lobby. Shortly after that, Spewak and Dragger let Taua go, and Taua left through the front door leading to the street.


While the altercation was going on, another patron informed the Hotel's night auditor, who was upstairs in the lobby area, that a fight was occurring in the bar. The night auditor called the Outrigger's private security dispatcher at the Outrigger Prince Kuhio Hotel some four blocks away and requested that security personnel be sent. Although Outrigger, which owns a number of hotels in the Waikiki area, maintained a security staff, it did not station security personnel at each hotel. Instead it maintained a dispatch center for routing its security personnel to its hotels when needed.


Shortly thereafter, Marla entered the lobby and asked the night auditor to call security or the police. The night auditor and Marla were standing in the front entrance of the Hotel waiting for security to arrive when Taua emerged from Rudy's onto the street. The Hotel's front entrance is quite close to Rudy's front entrance.


Taua began walking off carrying his doll, then turned and walked up to Marla and the night auditor. As he approached, Taua twice said to Marla: "Don't ever do that to me again." When he got to Marla, he pushed her. She fell backwards, and her head hit the concrete floor. As Marla lay there, Taua kicked her three or four times.


Outrigger's security guards (guards) arrived as Taua was kicking Marla. Taua walked away, but was stopped and held by the guards until the police arrived.


Marla was confined in a hospital for injuries suffered from Taua's attack. She died several days later when life support systems were removed. Dr. Gonzalo Chong testified that the blows Marla received in either confrontation could have been the cause of her death.


Myers filed the initial complaint on May 18, 1987, and

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