Loevsky v. Carter5/4/1989
[70 Haw Page 420] This is an appeal from the Second Amended Judgment entered in the Third Circuit Court on July 20, 1988. Following a jury trial, judgment was entered: 1) in favor of Plaintiff-Appellant Louis Loevsky and against Defendants-Appellees Michael Clark (Michael) and Laurie Carter (Laurie), jointly and severally, for negligence; 2) in favor of Plaintiff-Appellant Molly Loevsky and against Michael and Laurie, jointly and severally, for loss of consortium; and 3) in favor of Defendant and Third-Party Plaintiff-Appellee County of Hawaii (County).
Plaintiffs-Appellants Louis Loevsky (individually Plaintiff) and Molly Loevsky (collectively Plaintiffs) contest the portion of the judgment rendered in favor of County, absolving County of liability.
We vacate the Second Amended Judgment and remand the case for a new trial.
I.
FACTUAL BACKGROUND
This civil action arises out of a motorcycle and pedestrian accident on December 23, 1984, at approximately 10:52 a.m., along Ainaola Drive, near the junction of Waikahe Road at Hilo, Hawaii. A motorcycle owned by Michael and driven by Laurie with Michael as a passenger slid as they were attempting to round a "broken back" curve on Ainaola Drive, hit the guardrail and struck Plaintiff as he was jogging along the east shoulder of Ainaola Drive towards the oncoming northbound traffic, causing Plaintiff extensive injuries.
Laurie testified that on the date of the accident, December 23, 1984, she was nineteen years old, held a driver's license and an expired motorcycle permit, had driven a motorcycle since she was thirteen years old, and prior to the accident it was about a year since she had last operated a motorcycle.
Laurie further testified that on the morning of the accident, she woke up around 10:00 a.m., drank two or three cups of coffee, didn't eat anything, brushed her teeth, took a shower, changed her clothes, and then she and Michael (who had slept over) decided to go on a motorcycle ride because it was a nice day.
Laurie rode on the back of Michael's motorcycle for five to ten minutes until they stopped at the hilltop on Ainaola Drive, Michael asked Laurie if she wanted to drive, Laurie responded "yeah," Laurie then proceeded to drive down Ainaola Drive, as they approached the particular turn, Michael told Laurie to watch the turn, Laurie was travelling approximately 30-35 m.p.h. before she gently applied the hand brake as they approached the turn (and in response to Michael's earlier warning), Laurie made a gentle turn, felt the bike slide, then blanked out, and could neither remember anything more about the accident nor the location where the motorcycle went down. And before the motorcycle went down, Laurie didn't see any gravel on the roadway and wasn't looking for any gravel on the roadway.
The only other witness to the accident, Michael, testified that at the hilltop they stopped, traded places, Laurie operated the motorcycle for about 1 to 1-1/2 minutes up until the time of the accident, Michael told Laurie to take the particular curve slow as a precautionary warning, Laurie was travelling about 30 m.p.h. when she took the turn a little wide, entered the curve in the center of the lane, started drifting, Michael saw gravel, they hit the gravel with the front wheel, the motorcycle just slid out and slid straight towards the guardrail, the front end of the motorcycle then struck the guardrail, spun back out, struck Plaintiff, and Laurie was then thrown off the bike, followed by Michael.
At trial, excessive
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