Lytle v. Airborne Aviation, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-APR-2023
07:50 AM
Dkt. 141 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ANASTASIA LYTLE, Plaintiff-Appellant,
and
ALAN CARPENTER and SUSAN COURTNEY CARPENTER, Plaintiffs,
v.
AIRBORNE AVIATION, INC.; AIRBORNE AVIATION, LLC;
and CHRISTOPHER KIM, Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 15-1-0131 JKW)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)
This appeal arises out of a dispute involving a
helicopter accident. The State of Hawai#i (State) engages in
regular clean-up operations in the Napali Coast State Wilderness
Park on Kaua#i. The remote location requires helicopters to pick
up and remove trash bundles via sling lines attached to the
helicopter. The State periodically hires private helicopter
companies for this purpose. During one of these operations,
Plaintiff-Appellant Anastasia Lytle (Lytle) was a passenger in a
helicopter operated by Defendants-Appellees Airborne Aviation,
Inc., and Airborne Aviation, LLC, and piloted by Defendant-
Appellee Christopher Kim (Kim) (collectively, Airborne). That
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

day, just after Kim landed the helicopter in a designated landing
zone, a loose tarp, apparently from a trash bundle, was sucked
into the helicopter's rotor blades, causing one of the blades to
sheer off. This caused violent shaking, which allegedly caused
Lytle to suffer severe injuries.
Lytle appeals from the March 13, 2019 Final Judgment
(Judgment), entered in favor of Airborne and against Lytle by the
Circuit Court of the Fifth Circuit (Circuit Court).1/ Lytle also
challenges the following orders entered on November 7, 2018 by
the Circuit Court: (1) the "Order Striking the Supplemental
Affidavit of Scott Cloud Dated September 21, 2018" (Order
Striking the Third Cloud Affidavit); and (2) the "Order Granting
[Airborne's] Second Motion for Summary Judgment Filed August 30,
2018" (Order Granting Airborne's Second MSJ).2/
On appeal, Lytle contends that the Circuit Court erred:
(1) in striking the supplemental affidavit of her expert Scott
Cloud (Cloud), filed on September 24, 2018 (Third Cloud
Affidavit); and (2) in granting Airborne's Second Motion for
Summary Judgment (Airborne's Second MSJ), filed on August 30,
2018, where "[d]isputed issues of fact exist as to [Lytle's]
negligence claims . . . ."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Lytle's contentions as follows and affirm.
(1) Lytle filed the Third Cloud Affidavit as part of
her September 24, 2018 opposition to Airborne's Second MSJ. In
response, Airborne argued that the Third Cloud Affidavit was new
and should be disregarded pursuant to the Circuit Court's
February 9, 2018 Amended Order Setting Trial Date (Trial-Setting

1/
The Honorable Kathleen N.A. Watanabe presided.
2/
Lytle filed her December 6, 2019 notice of appeal prematurely,
following entry of the Order Striking the Third Cloud Affidavit and the Order
Granting Airborne's Second MSJ, but before entry of the Judgment. Pursuant to
Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)(2), Lytle's notice of
appeal is deemed filed immediately after the time the Judgment became final
for the purpose of appeal.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Order)3/ Specifically, Airborne maintained that Lytle did not
produce the Third Cloud Affidavit or a written report including
Cloud's new opinions prior to filing her opposition on
September 24, 2018, over four months after the deadline imposed
in the Trial-Setting Order.
During the October 2, 2018 hearing on Airborne's Second
MSJ, the Circuit Court questioned Lytle's counsel regarding
Airborne's contention. Counsel responded that Cloud had provided
two prior affidavits, as well as his deposition testimony, to
Airborne. On November 7, 2018, the Circuit Court entered the
Order Striking the Third Cloud Affidavit concurrently with the
Order Granting Airborne's Second MSJ.
On appeal, Lytle contends that the Circuit Court erred
in striking the Third Cloud Affidavit where: (a) it was timely
filed pursuant to Hawai#i Rules of Civil Procedure Rule 56(c);
(b) "the majority of . . . Cloud's opinions" had been timely
disclosed to Airborne in two affidavits filed as part of Lytle's
October 10, 2017 opposition to Airborne's first motion for
summary judgment (Airborne's First MSJ); and (c) Cloud had
testified to "the substance of all of his opinions" set forth in
the Third Cloud Affidavit at his August 17, 2018 deposition.
We review the Circuit Court's decision to strike the
Third Cloud Affidavit for abuse of discretion. See, e.g., Nozawa

3/
The Trial-Setting Order provided, in relevant part:
IT IS HEREBY FURTHER ORDERED that on or before 12:00 Noon
April 23, 2018, the plaintiff and, thirty (30) days
thereafter, the defendant shall file with the Court the
names, addresses and telephone numbers of all the witnesses
the party intends to call and a summary of the substance of
each witness's expected testimony. In addition, each party
shall state the field of expertise of any and all expert
witnesses. Within fifteen (15) days of their respective
filing date, each party shall provide the other with a
written expert report which includes the materials
considered and the facts relied upon by the expert, the
opinions and conclusions made or formed by the expert and
the basis for such opinions and conclusions. Any witness
not named as provided herein and any expert witness,
although named, whose report is not provided as herein
required will not, except as otherwise provided by the Rules
of the Circuit Courts of the State of Hawaii be permitted to
testify at trial.
(Original emphases omitted; new emphases added.)

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 342,
418 P.3d 1187, 1198 (2018) (ruling that the circuit court abused
its discretion in striking a declaration that allegedly exceeded
the scope of, but was deemed on appeal to comply with, a
supplemental briefing order). In this regard, we note that
"trial courts have broad powers to control the litigation process
before them, including the presentation of evidence." Weinberg
v. Dickson-Weinberg, 123 Hawai#i 68, 75, 229 P.3d 1133, 1140
(2010) (citing Richardson v. Sport Shinko (Waikiki Corp.), 76
Hawai#i 494, 507, 880 P.2d 169, 182 (1994), superseded by rule on
other grounds, as recognized in DL v. CL, 146 Hawai#i 415, 422,
463 P.3d 1072, 1079 (2020)). "The courts also have inherent
power to curb abuses and promote a fair process which extends to
the preclusion of evidence . . . ." Id. at 75, 229 P.3d 1133,
1140 (quoting Richardson, 76 Hawai#i at 507, 880 P.2d at 182).
For example, it was well within the circuit court's discretion to
strike the testimony of a party's witnesses for its failure to
comply with the court's deadline for disclosing witnesses. Chen
v. Mah, No. CAAP-XX-XXXXXXX, 2019 WL 1198546, at *3 (Haw. App.
Mar. 14, 2019), aff'd, 146 Hawai#i 157, 170, 457 P.3d 796, 809
(2020); see also Glover v. Grace Pac. Corp., 86 Hawai#i 154, 156,
164, 948 P.2d 575, 577, 585 (App. 1997) (affirming the trial
court's decision to strike the plaintiff's expert economic
witness because he did not reach his final opinion before the
discovery cutoff date).
Here, Lytle does not dispute that she failed to produce
a written expert report by Cloud, as required by the Circuit
Court's Trial-Setting Order. In addition, Lytle implicitly
acknowledges that at least some of the opinions expressed in the
Third Cloud Affidavit were not previously set forth in Cloud's
prior two affidavits. We further note that the Circuit Court did
not strike Cloud's prior two affidavits or his deposition
testimony, which remained part of the record. In these
circumstances, the Circuit Court did not abuse its discretion in
striking the Third Cloud Affidavit.
(2) Lytle contends that the Circuit Court erred in
granting Airborne's Second MSJ, where there were "disputed issues

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

of fact" regarding Lytle's "negligence claims" against Airborne.
Lytle argues that the Third Cloud Declaration establishes these
"disputed issues of fact" and, even if that declaration is
disregarded, "[s]ubstantial evidence of disputed issues of fact"
is contained in Cloud's deposition transcript, which was attached
in whole to the opposition to Airborne's Second MSJ, and Cloud's
two prior affidavits, which were attached to the opposition to
Airborne's First MSJ.
We review a trial court's grant or denial of summary
judgment de novo using the same standard applied by the trial
court. Nozawa, 142 Hawai#i at 338, 418 P.3d at 1194 (citing
Adams v. CDM Media USA, Inc., 135 Hawai#i 1, 12, 346 P.3d 70, 81
(2015)). "Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Id. at 342, 418
P.3d at 1198 (brackets omitted) (quoting Adams, 135 Hawai#i at
12, 346 P.3d at 81). "A fact is material if proof of that fact
would have the effect of establishing or refuting one of the
essential elements of a cause of action or defense asserted by
the parties." Id. (quoting Adams, 135 Hawai#i at 12, 346 P.3d at
81). The evidence and the inferences drawn from the evidence
must be viewed in the light most favorable to the non-moving
party. Yoneda v. Tom, 110 Hawai#i 367, 384, 133 P.3d 796, 813
(2006).
The moving party has the burden to establish that
summary judgment is proper. Nozawa, 142 Hawai#i at 342, 418 P.3d
at 1198 (citing French v. Haw. Pizza Hut, Inc., 105 Hawai#i 462,
470, 99 P.3d 1046, 1054 (2004)). "Once a summary judgment movant
has satisfied its initial burden of producing support for its
claim that there is no genuine issue of material fact, the party
opposing summary judgment must 'demonstrate specific facts, as
opposed to general allegations, that present a genuine issue
worthy of trial.'" Id. (brackets omitted) (quoting Lales v.
Wholesale Motors Co., 133 Hawai#i 332, 359, 328 P.3d 341, 368
(2014)). Thus, "a party opposing a motion for summary judgment

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

cannot discharge his or her burden by alleging conclusions, 'nor
is he or she entitled to a trial on the basis of a hope that he
or she can produce some evidence at that time.'" Adams v. Haw.
Med. Serv. Ass'n, 145 Hawai#i 250, 256, 450 P.3d 780, 786 (2019)
(brackets omitted) (quoting Henderson v. Prof'l Coatings Corp.,
72 Haw. 387, 401, 819 P.2d 84, 92 (1991)).
There are four primary elements to a negligence claim:
(1) "A duty or obligation, recognized by the law, requiring the
defendant to conform to a certain standard of conduct, for the
protection of others against unreasonable risks"; (2) "A failure
on the defendant's part to conform to the standard required: a
breach of duty"; (3) "A reasonably close causal connection
between the conduct and the resulting injury"; and (4) "Actual
loss or damage resulting to the interests of another." Doe
Parents No. 1 v. State, Dep't of Educ., 100 Hawai#i 34, 68, 58
P.3d 545, 579 (2002) (citing Dairy Rd. Partners v. Island Ins.
Co., 92 Hawai#i 398, 419, 992 P.2d 93, 114 (2000)). Because
Lytle claims she suffered injuries caused by the negligent
operation of a helicopter, the federal standard of care is
applicable. See Montalvo v. Spirit Airlines, 508 F.3d 464, 473
(9th Cir. 2007) (state courts must apply federal standard of care
in aviation negligence cases); Abdullah v. Am. Airlines, Inc.,
181 F.3d 363, 372 (3d Cir. 1999) (same). Under federal law,
"[n]o person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another." 14
C.F.R. § 91.13(a) (2003).
Here, Airborne argued in its motion for summary
judgment that Lytle could not prove the requisite carelessness or
recklessness by Airborne. In particular, Airborne produced
support for its allegations that: Airborne operated the
helicopter at the direction of Lytle and her subordinates; Lytle
prepared the flight plan that was followed by Airborne; Airborne
had no control over and did not participate in the collection of
debris or the assembly of the bundles of trash and debris;
Airborne was dependent on the State to ensure that the landing
zone was safe and secure; Kim had previously operated out of the
landing zone without incident, including about 10 minutes prior

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

to the accident; when Kim approached the landing zone with Lytle
on board, he conducted a "low recon looking at everything,
inspecting everything"; at that time, the landing zone was free
of debris; the bundles prepared by the State were away from the
center of the landing zone and appeared to be secure to both Kim
and State employees; and the tarp that got caught up in the
rotors of the helicopter had been collected by the State and was
incorporated into a bundle of trash and debris near the landing
zone.
In response to Cloud's opinion that Kim breached the
standard of care by failing to conduct a "high reconnaissance and
a low reconnaissance prior to landing the helicopter in an off
airport location[,]" Airborne maintained that there was no
evidence that a high reconnaissance would have changed anything,
a low reconnaissance had been done, and there was no legitimate
dispute that the landing zone was free from debris prior to the
landing. Airborne also made specific arguments regarding the
claims that the company had negligently hired Kim, supervised
him, or entrusted him with the helicopter. Finally, Airborne
argued that it could not be vicariously liable absent a showing
by Plaintiffs that Kim was liable for negligence. In short,
Airborne met its initial burden of producing support for its
position that Lytle's negligence claims presented no genuine
issue of material fact.
In her opposition, Lytle argued generally that
"[d]isputed issues of material fact exist in this case regarding
[Lytle's] claims that . . . Kim [and]. . . Airborne were
negligent." Lytle also argued that Cloud, as reflected in his
deposition transcript and the Third Cloud Affidavit, had stated a
number of opinions, which Lytle set forth in a list. Lytle did
not identify where in the deposition transcript or affidavit
these listed opinions could be found, and did not relate the
opinions to any specific "disputed issues of material fact."
Significantly, Lytle does not cite to any evidence in the record
to support her argument that a high reconnaissance would have
alerted Kim to any danger posed by the tarp.

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

On appeal, in her opening brief's statement of the
case, Lytle supplies an abbreviated version of the list of
Cloud's opinions, as follows:

1) Defendant Kim, as the Pilot in Command of the helicopter
on September 12, 2013, had the ultimate responsibility to
choose a safe landing site and the landing site was unsafe.
. . . [.]

5) Defendant Kim operated the helicopter carelessly when he
failed to follow appropriate procedures and chose an unsafe
landing site which exposed his passengers to unnecessary
hazards.

6) Defendant Kim operated the helicopter carelessly when he
failed to land the helicopter in a normal manner while
carrying passengers Anastasia Lytle and Alan[] Carpenter and
instead delayed normal landing procedures for a passenger
carrying flight in order to attempt to line up a sling load
long line which he intended to use to transport a sling load
bundle of trash on his next flight.

7) The delay in normal landing procedures for a passenger
carrying flight was a cause of the helicopter accident which
occurred on September 12, 2013.

Elsewhere in her opening brief, Lytle repeatedly
asserts that "disputed issues of fact" exist regarding her
negligence claims, but does not identify what those specific
facts are, how they are material to the elements of her
negligence claims, and where in the record she produced evidence
supporting such facts. Instead, Lytle refers generally to the
following sources as sufficient to establish unidentified
"disputed issues of fact": (1) Cloud's three affidavits, which
collectively comprise about 65 pages; (2) Cloud's 283-page
deposition transcript; (3) multiple pages of the October 18, 2017
hearing transcript containing the arguments of Lytle's counsel;
and (4) "the records and files in th[is] case." We note that the
record in this case is over a thousand pages. We are "not
obligated to sift through the voluminous record to verify an
appellant's inadequately documented contentions." Haw. Ventures,
LLC v. Otaka, Inc., 114 Hawai#i 438, 480, 164 P.3d 696, 738
(2007) (quoting Lanai Co. v. Land Use Comm'n, 105 Hawai#i 296,
309 n.31, 97 P.3d 372, 385 n.31 (2004)); see HRAP Rule 28(b)(4),
(7). That is particularly true in this context, where we apply

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the same summary judgment standard as the trial court, under
which Lytle must "demonstrate specific facts, as opposed to
general allegations, that present a genuine issue worthy of
trial." Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198 (quoting
Lales, 133 Hawai#i at 359, 328 P.3d at 368). Lytle's argument
fails on this ground alone.
In any event, we have concluded that the Third Cloud
Affidavit, which appears to be the source of the list of Cloud's
opinions, was properly disregarded by the Circuit Court. And the
list of Cloud's opinions, itself, is conclusory. See Exotics
Hawaii-Kona, Inc. V. E.I. Du Pont De Nemours & Co., 116 Hawai#i
277, 305, 172 P.3d 1021, 1049 (2007) ("[I]n order to defeat a
motion for summary judgment, an expert opinion must be more than
a conclusory assertion about ultimate legal issues." (original
brackets omitted) (quoting Acoba v. Gen. Tire, Inc., 92 Hawai#i
1, 14, 986 P.2d 288, 301 (1999))). On this record, Lytle has
failed to demonstrate specific facts that present a genuine issue
worthy of trial.
For the reasons discussed above, the March 13, 2019
Final Judgment, entered by the Circuit Court of the Fifth
Circuit, is affirmed.

DATED: Honolulu, Hawai#i, April 20, 2023.

On the briefs:
/s/ Katherine G. Leonard
Mark K. Haugen Presiding Judge
for Plaintiff-Appellant.

Calvin E. Young, /s/ Keith K. Hiraoka
David J. Hoftiezer, and Associate Judge
Deirdre Marie-Iha
(Goodsill Anderson Quinn &
Stifel) /s/ Clyde J. Wadsworth
for Defendants-Appellees. Associate Judge

9