Hawaii Attorney Legal Blog

This is our eleventh Thanksgiving in business. Two years ago I wrote a Thanksgiving blog listing the "Things for Which I am Thankful". Since this is the traditional season to give thanks, I thought it would try to expound on the things for which I am thankful.

1. I am thankful to all of my clients who have trusted me with their cases. I realize that when you select my office, usually to litigate against much larger law firms, it is because you have faith in me. I am always humbled by that trust. Clients have many options available to them and there are many fine lawyers in Hawaii. I am thankful to those many clients who have believed in me.

2. I am thankful that I live in Hawaii. Having practiced law for many years in New York City, I know just how lucky I am to be able to live and work in Honolulu. I have now lived in Hawaii for over fifteen years and I am confident that there is no place on earth that I would rather live.

3. I am thankful for my staff. Those of you that have interacted with my staff, know what a pleasure it is to work with them. They produce excellent work product and are dedicated to our clients. Almost weekly, a client or a member of the bar tells me how lucky I am. I agree and am grateful.

4. I am thankful that I practice law in the United States. It has been a rough few years for America. Although I am proud that in 2008 we had a historic election, I still think we are in for a few lean years, before the economy improves. However, although we have taken some "hits" recently, never forget that the United States has been an extremely positive force in history. Democracy was a "noble experiment" when this country was founded in 1776. Today, democracy has spread throughout the world. The Constitution of the United States, particularly the Bill of Rights, is one of the most important documents ever written. The American people take many of their basic civil rights for granted, because the Bill of Rights has been so actively enforced through the years. I am thankful that I am a member of a legal system that has so effectively protected our civil rights, that most Americans are able to take their civil rights for granted.

5. I am thankful that I am a Hawaii attorney. Being a lawyer is not always easy. Still it is a very rewarding profession. And if you follow the rules, it is a very noble profession. I am thankful that I have been given the honor and privilege to serve my clients in Hawaii.

6. Finally, I am thankful for my family. 2008 was an unbelievable year for me. On August 8, 2008 I was married. My wife, Sarah, is a wonderful woman. It is a "cliche" to call someone your "soulmate" but my wife Sarah is definitely my "soulmate". I am thankful that Sarah and her daughter Fiona have become a part of my life.

Happy Thanksgiving.

In Hawaii, architect liability is generally limited to that which is recoverable by contract. Id. This is called the "economic loss rule". Id. In City Exp. Inc v Express Partners, 87 Hawaii 466, 469 (1998) the Hawaii Supreme Court discussed this rule as follows:

In the context of construction litigation, where a party is in privity of contract with a design professional, economic loss damages are limited to contractual remedies, and a [tort] negligence action may not be maintained.

Id .

The Hawaii Supreme Court defined economic loss as "those that pertain solely to the costs relating to the operation and value of the building itself" including but not limited to "additional costs, lost rent, the cost of remedying the alleged building defects, and the difference between the value of the building as designed and the value it would have had it had been properly designed." Id.

Design professionals may incur additional risk by also agreeing to act as a project supervisor. There is no general duty of an architect to supervise or inspect a project. Whether a contract imposes a duty on an architect to supervise a project depends on the terms of the contract. Moundsview Independent School District v Buetow & Associates Inc, 253 N.W.2d 836, 839 (Minn. 1977) (consideration whether architect breached duty of supervision requires initial examination of contract between architect and owner of construction project to determine scope of architect's supervisory obligation). See also Miller v Broken Arrow, 660 F.2d 450, 458 (C.A. Okl., 1981) (depending on contract of employment, architect may be held liable for failure to exercise care in execution of plans).

Often the scope of duties of a design professional are not well defined in the contract. In such cases, courts may examine other provisions in the contract to attempt to determine if the parties bargained for supervision of the project. For example, if the amount of the architect's fee is large enough, or the architect is given a lot of authority over the project, then it may indicate that the defendant was to assume duties with respect to inspection or supervision of construction that normally would not be required in a standard architect's agreement. See, e.g., Duncan v Pennington County Housing Authority, 283 N.W.2d 546, 548 (S.D., 1979); Loyland v Stone & Webster Engineering Corp, 514 P.2d 184, 188 (Wash App 1973) disapproved on unrelated grounds by Bayne v Todd Shipyards Corp., 568 P.2d 771 (Wash., 1977).

If there is no contract between an owner and the architect, then courts have turned to other contracts or practices between the parties to determine whether the architect owes a duty to the owner to supervise the project. Dickerson Construction Co. v Process Engineering Company, 341 So.2d 646, 650-51 (Miss 1977). See also Weill Construction Co. v Thibodeaux, 491 So.2d 166, 170-71 (La. App., 1986) (architect's duties were specified in standard contract between owner and general contractor).

Finally, construction specifications contained in a contract may include language indicating the scope of the architect's inspection or supervisory responsibilities. Moreover, the construction specifications may require the design professional's presence or approval before certain steps in the construction process may be commenced. Dickerson Construction Co., 341 So.2d at 650-51. Further, building specifications could require the architect to give approval before fill work is undertaken or concrete poured. The contract also could require that the architect is present at certain stages of construction and to perform a final inspection.

In general, while strictly performing design services liability may be limited by contract to the "economic loss rule". However, once the professional undertakes construction project supervision, entirely new potential liability arises.

Labels: Civil Procedure and Trial Practice

The general rule regarding landlord liability is that a landlord "is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession." Restatement (Second) Torts 356.

Although it certainly appears from the plain language of this rule that a lessee or tenant may not have a case against their landlord if they are injured on rental property, there are exceptions to this rule.

Restatement (Second) Torts 358 is such an exception and provides as follows:

A lessor of land, who conceals or fails to disclose to his lessee any natural or artificial condition involving unreasonable risk of bodily harm to persons upon the land, is subject to liability for such harm caused thereby to the lessee and others on the land with the consent of the lessee or a sublessee after the lessee has taken possession, if

(a) the lessee does not know of the condition or the risk involved therein, and

(b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.

Restatement (Second) Torts 358; See also Restatement (Second) of Property, Landlord & Tenant 17.1 (emphasis added).

Relying on these Restatements for guidance, the Hawaii Supreme Court held that an "owner-lessor" has a "duty to warn the lessee of a known hazardous condition..." Kole v AMFAC, Inc., 69 Haw 530, 532-33 (1988). This is the current Hawaii law.

In addition to the landlord's duty to warn tenants or lessees of dangerous conditions on their property, Landlords may also owe a duty to eliminate the risk of harm foreseeably caused by the dangerous condition. The Hawaii Supreme Court explained this landlord duty and premises liability as follows:

In our view, the substance of our many cases, dealing with possessors of land, and their duty toward persons using the land, is that, if a condition exists upon the land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to the persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn the users against it.

Corbett v. Association of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 417 (Hawaii,1989)(emphasis added).

Accordingly, based on our examination of this issue, we believe that a landlord will be held to a duty to a tenant or lessee to make a known dangerous condition on the property safe or to warn a tenant about a known dangerous condition. If the landlord fails to meet this duty, then the landlord risks liability. For a discussion of our Real Estate Litigation Practice click the following link, Real Estate Litigation.

Labels: Hawaii Real Estate Litigation

We are frequently asked whether we handle criminal cases. We do not. Allow me to explain. There are two types of cases, criminal and civil. It is important to understand this distinction especially when searching for the right attorney to handle your case.

A criminal case is when someone is charged with a crime- either a felony or a misdemeanor. If you are charged with a crime, the government must prove the case beyond reasonable doubt.

Civil litigation usually involves claims for financial damages or to enforce rights. Although the government may be a party in a lawsuit, civil cases typically involve private individuals or companies. Because the cost of litigation has grown through the years, private parties now explore mediation and/or arbitration.

For access to more information on the distinction between these cases, please refer to the following link: Civil v Criminal Cases

Labels: Civil Procedure and Trial Practice