Sim v. Kona Islander Inn

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-SEP-2020
07:55 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JIHYUN SIM, Individually, and as Court-Appointed
Personal Representative for the Estate of Her
Sister JISU SIM, SANG KI SHIM, father of JISU SIM,
and TIA SUK KIM, mother of JISU SIM,
Plaintiffs-Appellants,
v.
KONA ISLANDER INN, ASSOCIATION OF APARTMENT
OWNERS OF KONA ISLANDER INN, KONA ISLANDER INN
HOTEL, HAWAIIANA MANAGMENT COMPANY, LTD.,
ICHTHUS LAND COMPANY, CHRISTIAN VAN DYCK,
Individually, as a member of the Association
of Apartment Owners of Kona Islander Inn, and
owner of Rainbow Plantation Bed & Breakfast,
and DOES 2-100, inclusive, Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 15-1-252K)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, and Chan and Wadsworth, JJ.)

Plaintiffs-Appellants Jihyun Sim (Jihyun),
Individually, and as Court-Appointed Personal Representative for
the Estate of Her Sister Jisu Sim (Jisu), Sang Ki Shim (Shim),
father of Jisu, and Tia Suk Kim (Kim), mother of Jisu
(collectively, Plaintiffs) appeal from the Final Judgment
(Judgment) in favor of Defendants-Appellees Association of
Apartment Owners of Kona Islander Inn (AOAO KII), Hawaiiana
Management Company, Ltd. (HMC), and Christian Van Dyck (Van Dyck)
(collectively, Defendants), entered on February 22, 2017, in the
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Circuit Court of the Third Circuit (Circuit Court).1/ On appeal,
Plaintiffs contend that the Circuit Court erred in: (1)
summarily denying Plaintiffs' request for judicial notice of
certain laws and adjudicative facts, as asserted in their trial
brief; (2) permitting the trial testimony of Defendants' expert,
Vincent Di Maio, M.D. (Di Maio); (3) denying Plaintiffs' motion
for a new trial; and (4) granting Van Dyck's motion for judgment
as a matter of law based on the statute of limitations.2/
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
Plaintiffs' contentions as follows and affirm.

I. Relevant Background

On July 5, 2013, Jisu, then 40-years old, drowned in
the swimming pool at the Kona Islander Inn (KII) in Kailua-Kona,
Hawai#i. At the time, AOAO KII "promulgate[d] the house rules"
for KII, and HMC "assist[ed] in managing the property." Jisu, a
citizen of the Republic of South Korea, was staying at Van Dyck's
Rainbow Plantation Bed & Breakfast (Rainbow Plantation) and farm,
where she received room and board in exchange for working a few
hours per day.
On July 5, 2013, at about 5 p.m., Van Dyck took Jisu,
another Rainbow Plantation guest, and Van Dyck's seven-year-old
daughter to KII, where Van Dyck owned two condominium units. The
group made their way to the swimming pool, and at some point, Van
Dyck and the other Rainbow Plantation guest went into the Jacuzzi
hot tub that was located about ten to fifteen feet away from the
pool.
Another swimmer later noticed Jisu at the bottom of the
deep end of the pool, and as he got closer, realized she was not
moving. He dove in and carried Jisu up to the surface.
Apparently, none of the other swimmers or guests in the pool had
seen the drowning. Jisu, who never regained consciousness, was

1/
The Honorable Melvin H. Fujino presided.
2/
Plaintiffs characterize Van Dyck's motion as one for a "directed
verdict."

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taken by ambulance to Kona Community Hospital, where she was
pronounced dead on July 8, 2013.
Plaintiffs, who are surviving relatives of Jisu, filed
a Complaint against multiple defendants, including AOAO KII and
HMC, on June 29, 2015, and a First Amended Complaint against AOAO
KII and HMC on December 9, 2015. Plaintiffs' Second Amended
Complaint, filed on August 11, 2016, also named Van Dyck as a
defendant.
On October 18, 2016, the case came on for jury trial as
to several negligence-based claims and a prayer for punitive
damages asserted in the Second Amended Complaint. The parties
stipulated to the dismissal of the punitive damages prayer during
trial.
At the close of Plaintiffs' case on October 25, 2016,
the Circuit Court granted Van Dyck's motion for judgment as a
matter of law based on his statute-of-limitations defense,
brought pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule
50(a) (Rule 50(a) motion). On October 27, 2016, the jury
returned a special verdict form in favor of AOAO KII and HMC,
finding that both defendants were not negligent. Following entry
of the Judgment, Plaintiffs timely filed this appeal.

II. Discussion

A. Plaintiffs' Request for Judicial Notice
On October 17, 2016, the day before trial commenced,
Plaintiffs filed a "Trial Brief Re: Judicial Notice & Judicial
Estoppel" (trial brief). In their trial brief, Plaintiffs asked
the Circuit Court to take judicial notice of the following:
A. "State Law Governing Unsworn Falsifications to
Authorities and Perjury[,]" specifically, HRS
§§ 710-1060 and 710-1063 (Request A);

B. "Hawaii Administrative Rules Title 11 Department
of Health Chapter 10 Public Swimming Pools"
(Request B);

C. "[T]hat July 5, 2013 was a Friday, Between the 4th
of July, and Saturday, July 6, 2013" (Request C);

D. "[T]he Definition of the Word 'Inn'" (Request D);

E. "[T]hat the Sunset in Kona on July 5, 2013 was at

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7:06 p.m." (Request E);

F. "[T]he July 5, 2016 Declaration of Christian Van
Dyck" (Request F);

G. "[T]he Declaration of Wayne Cober Dated June 30,
2016 and Filed in this Case" (Request G).

Plaintiffs also requested that: (1) Van Dyck be
"judicially estopped from taking positions [at trial] contrary to
his July 5, 2016 declaration"; and (2) AOAO KII be "judicially
estopped from taking positions [at trial] contrary to Mr. Cober's
positions in his June 30, 2016 declaration[] (signed in his
authority as President of the Board of Directors of Defendant
AOAO)." The trial brief was hand-served on counsel for AOAO KII
and HMC in court on October 18, 2016, the first day of trial.
During a pre-trial hearing that day, the Circuit Court
denied the requests contained in the trial brief, stating:
[A]lthough it's called trial brief, the court has reviewed
this document filed the day before trial. Finds it's not
fair to the defense. It really is in essence either a
motion in limine or a pretrial motion, so the court will
deny it based on untimeliness.

On appeal, Plaintiffs contend that the Circuit Court
erred in "summarily denying" their request for judicial notice of
law and adjudicative facts as untimely. They argue that the
court's decision was contrary to Hawai#i Rules of Evidence (HRE)
Rule 201(f), which states that "[j]udicial notice [of
adjudicative facts] may be taken at any stage of the
proceeding[,] and HRE Rule 201(e), which provides in relevant
part that "[a] party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial
notice [of adjudicative facts] and the tenor of the matter
noticed."3/

3/
We note that Requests A and B sought judicial notice of law and
administrative rules, respectively, which are governed by HRE Rule 202. HRE
Rule 202(b) states in relevant part that "[t]he court shall take judicial
notice of . . . (2) the constitutions and statutes of the United States and of
every state, territory, and other jurisdiction of the United States[.]" HRE
Rule 202(c) provides in relevant part that "[u]pon reasonable notice to
adverse parties, a party may request that the court take, and the court may
take, judicial notice of . . . (2) all duly published regulations of federal
and state agencies[.]" (Emphasis added.)

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AOAO KII and HMC argue that even if the alleged error
occurred, which they dispute, Plaintiffs have failed to explain
how they were harmed by the Circuit Court's denial of their
requests for judicial notice, and that any such error was
"patently harmless." Similarly, Van Dyck argues that the
"alleged issues of [j]udicial [n]otice play[ed] no role in the
outcome analysis."
Pursuant to HRCP Rule 61, before a judgment will be set
aside, it must be shown that any error made is prejudicial. See
Bank of Hawaii v. Shinn, 120 Hawai#i 1, 20, 200 P.3d 370, 389
(2008) (quoting Jensen v. Pratt, 53 Haw. 201, 202, 491 P.2d 547,
548 (1971)). HRCP Rule 61 provides:
HARMLESS ERROR.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or in
anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such
action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.

An appellate court may act pursuant to HRCP Rule 61 where it is
necessary to set aside a judgment in order to do "substantial
justice" or to safeguard "substantial rights." Shinn, 120 Hawai#i
at 20, 200 P.3d at 389.
Here, even if the Circuit Court erred in denying
Plaintiffs' requests for judicial notice, which we do not decide,
we cannot conclude that the asserted defect is inconsistent with
substantial justice. With respect to Plaintiffs' Requests A, C,
D, E, and G, Plaintiffs have made no effort to demonstrate how
the denial of these requests prejudiced their case or otherwise
affected their substantial rights. See id. at 20, 200 P.3d at
389 ("[T]he requirement of showing that the error is prejudicial
stems from HRCP Rule 61." (original brackets omitted) (quoting
Jensen, 53 Haw. at 202, 491 P.2d at 548)). Absent any showing
that the substantial rights of Plaintiffs were affected, the
Circuit Court's decision to deny Requests A, C, D, E, and G, even
if erroneous, was harmless.

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With respect to Request B, Plaintiffs argue:
[T]aking judicial notice[] of [HAR Section 11-10-21] would
have established the administrative rule requir[ing] public
pools to keep daily records. . . . Refusing to take judicial
notice of the relevant HAR prejudiced [Plaintiffs] since the
obligation to keep daily records, and the related failure of
Kona Islander and the defendants to ensure the pool was
equipped with a proper working filter – which would have led
to clarity in the water on the day Jisu died – was the key
issue at trial.

However, Plaintiffs do not explain how the Circuit
Court's denial of their request for judicial notice of HAR
Section 11-10-21 hindered them from eliciting evidence of AOAO
KII's and HMC's records or record-keeping practices (or any
alleged lack thereof) related to the pool, or AOAO KII's and
HMC's alleged failure to ensure that the pool was equipped with a
proper working filter at the time of the drowning. Plaintiffs
also ignore the fact that the Circuit Court instructed the jury
as to the relevant obligations imposed on AOAO KII and HMC under
HAR Title 11, Chapter 10.4/ On this record, there has been no
showing that the alleged error in denying Request B affected
Plaintiffs' substantial rights. Accordingly, the Circuit Court's
denial of Request B, even if erroneous, was harmless.
With respect to Request F, Plaintiffs contend that Van
Dyck's July 5, 2016 declaration, in which he stated that "Jisu
knew how to swim," contradicted his purported statement to police
nearly three years earlier that "Jisu was not a good swimmer and
could not swim." Plaintiffs argue that "the principle of
judicial estoppel prevents this type of flip flopping[,]" and the
Circuit Court "should have taken judicial notice of the existence

4/
The following instruction was read to the jury:
The Defendant [sic] AOAO Kona Islander Inn and
Hawaiiana Management Co., Ltd. were required by law to
record, on a daily basis, the following information as it
pertained to their pool:
(1) . . . water clarity; and
(2) The maintenance and malfunction of equipment.

The information required shall be kept on file by the
operator for a period of twelve months for review by the
director.

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of Van Dyck's [July 5, 2016] declaration . . . , not the truth of
the matters asserted therein."5/
However, Plaintiffs do not explain how the Circuit
Court's failure to take judicial notice of the existence of Van
Dyck's declaration prejudiced their case.6/ At trial,
Plaintiffs' counsel cross-examined Van Dyck as follows:
Q (By [Plaintiffs' counsel]) Did Jisu Sim know how to
swim?
A Yes.

Q And, indeed, on July 5, 2016, you submitted a
declaration that included the statement that Jisu knew
how to swim; correct?
A Yes.

Plaintiffs thus made the existence of Van Dyck's July 5, 2016
declaration known to the jury. Indeed, it appears that
Plaintiffs also obtained the result they sought in their trial
brief – testimony from Van Dyck that was consistent with his
declaration.7/ On this record, there has been no showing that
the alleged error in denying Request F affected Plaintiffs'
substantial rights. The Circuit Court's denial of Request F,
even if erroneous, was therefore harmless.

B. Expert Testimony on Causation
Plaintiffs contend that the Circuit Court erred in
permitting Di Maio's trial testimony, which Plaintiffs argue did
not meet the applicable standards for admissible expert witness
testimony. More specifically, Plaintiffs contend that "Di Maio's
opinions regarding the cause of Jisu's drowning were

5/
In their trial brief, Plaintiffs requested that Van Dyck be
"judicially estopped from taking positions [at trial] contrary to his July 5,
2016 declaration[.]" On appeal, Plaintiffs do not identify the Circuit
Court's denial of this request – which the court apparently viewed as an
untimely motion to limit Van Dyck's testimony at trial – as a point of error.
In addition, Plaintiffs make no substantive argument regarding judicial
estoppel. We therefore deem the issue waived. See HRAP Rule 28(b)(4), (7).
6/
The statements made in Van Dyck's declaration are plainly not
adjudicative facts subject to judicial notice under HRE Rule 201. See State
v. Moses, 102 Hawai#i 449, 455, 77 P.3d 940, 946 (2003) ("HRE Rule 201 limits
judicial notice to adjudicative facts 'not subject to reasonable dispute,'
meaning that the fact must be commonly known or easily verifiable.").
7/
The Circuit Court also admitted into evidence, at Plaintiffs'
request, the police report containing Van Dyck's purported statement that Jisu
"was not a good swimmer and could not swim."

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methodologically flawed, unsupported speculation, and should
[have] be[en] excluded under HRE [Rule] 7028/ and the standards
set forth in [State v. ]Samonte[, 83 Hawai#i 507, 532–34, 928
P.2d 1, 26–28 (1996)]."
AOAO KII and HMC point out that Plaintiffs filed a
motion in limine to preclude Di Maio's trial testimony, but did
not object at trial to his qualifications or to the admission of
his testimony, suggesting that Plaintiffs waived this point of
error. We disagree.
"[W]hen the trial court makes a definitive pretrial
ruling that evidence is admissible, the party opposing that
ruling need not renew its objection during trial in order to
preserve its claim on appeal that the evidence was erroneously
admitted." Kobashigawa v. Silva, 129 Hawai#i 313, 321, 300 P.3d
579, 587 (2013); see HRE Rule 103(a). Here, prior to trial, the
Circuit Court heard Plaintiffs' motion in limine No. 16, which
sought "to exclude defense expert . . . Di Maio's unreliable and
speculative opinions regarding the cause of JISU SIM's drowning."
After hearing oral argument, the Circuit Court definitively
denied Plaintiffs' motion in limine; the court did not condition
the admissibility of Di Maio's testimony at trial on
"foundational prerequisites" or a "proper trial record."
Kobashigawa, 129 Hawai#i at 325, 300 P.3d at 591. Accordingly,
by obtaining a definitive ruling on their motion in limine,
Plaintiffs did not waive their objection to evidence of Di Maio's
opinions, as articulated in their motion. That objection was
preserved, even in the absence of renewed objections when such
evidence was presented during trial.
AOAO KII and HMC also argue that any error in admitting
Di Maio's testimony, which addressed the cause of Jisu's

8/
HRE Rule 702 provides:

If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or
otherwise. In determining the issue of assistance to the
trier of fact, the court may consider the trustworthiness
and validity of the scientific technique or mode of analysis
employed by the proffered expert.

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drowning, was harmless, given that the jury found that AOAO KII
and HMC were not negligent and therefore did not reach the issue
of causation. Indeed, the Special Verdict Form signed by the
jury foreperson indicated the following, in relevant part:
Question #1: Was Defendant AOAO [KII] negligent?
Yes No T
Note: If you have answered "Yes" to Question #1, then
answer Question #2. Otherwise go to Question #3.

Question #2: Was the negligence of Defendant
AOAO [KII] a legal cause of the drowning of JISU SIM?

Yes No
Question #3: Was Defendant [HMC] negligent?

Yes No T

Note: If you have answered "Yes" to Question #3, then
answer Question #4. . . .
Question #4: Was the negligence of Defendant
[HMC] a legal cause of the drowning of JISU SIM?

Yes No

Thus, it appears that the jury's verdict was premised
solely on a finding that AOAO KII and HMC were not negligent, and
that the jury did not determine whether either defendant was the
legal cause of Jisu's drowning. By extension, the jury also did
not determine whether either defendant was the cause in fact of
the drowning.9/ See O'Grady v. State, 140 Hawai#i 36, 44, 398
P.3d 625, 633 (2017) ("the term 'legal cause' embodies both the
concept of factual causation and the defendant's scope of
liability"); id. ("In establishing legal causation, the plaintiff
must first establish that . . . 'the defendant was a cause in
fact of the plaintiff's injury.'" (quoting McKenna v.
Volkswagenwerk Aktiengesellschaft, 57 Haw. 460, 465-66, 558 P.2d
1018, 1022 (1977))).
As previously stated, we will not set aside a judgment
absent a showing that any error made is prejudicial. See Shinn,

9/
The jury was instructed: "An act or omission is a legal cause of
an injury or damage if it was a substantial factor in bringing about the
injury or damage. One or more substantial factors such as the conduct of more
than one person may operate separately or together to cause an injury or
damage. In such a case, each may be a legal cause of the injury or damage."

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120 Hawai#i at 20, 200 P.3d at 389; HRCP Rule 61 (no error in the
admission of evidence is ground for setting aside a judgment
unless refusal to take such action appears "inconsistent with
substantial justice"); see also HRE Rule 103 (a) ("[e]rror may
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected"). Here,
even if the admission of DiMaio's testimony was erroneous, which
we do not decide, we cannot conclude that the asserted defect is
inconsistent with substantial justice. The record shows that the
jury did not reach the issue of causation, and Plaintiffs have
failed to demonstrate how the admission of DeMaio's testimony on
the issue of causation affected their substantial rights. See
Shinn, 120 Hawai#i at 20, 200 P.3d at 389. Because the
substantial rights of Plaintiffs were not affected, the Circuit
Court's decision to admit DiMaio's testimony, even if erroneous,
was harmless and does not warrant reversal.

C. Plaintiffs' Motion for a New Trial
Plaintiffs contend that the Circuit Court erred in
denying their motion for a new trial, because (a) "DiMaio's
testimony was improperly admitted"; and (b) counsel for AOAO KII
and HMC made "an improper and prejudicial closing argument . . .
to the jury."
The denial of a motion for a new trial is within the
trial court's discretion, and "we will not reverse that decision
absent a clear abuse of discretion." Stanford Carr Development
Corp. v. Unity House, Inc., 111 Hawai#i 286, 296, 141 P.3d 459,
469 (2006) (quoting In re Estate of Herbert, 90 Hawai#i 443, 454,
979 P.2d 39, 50 (1999)). The movant must convince the court
"that the verdict rendered for its opponent is against the
manifest weight of the evidence." Id. (quoting Herbert, 90
Hawai#i at 454, 979 P.2d at 50).
The Circuit Court did not abuse its discretion in
denying Plaintiffs' motion for a new trial based on the asserted
inadmissibility of Di Maio's testimony. As previously stated,
the jury found that AOAO KII and HMC were not negligent. Because
the jury found that Plaintiffs failed to prove negligence, it
never reached the issue of causation, which was the subject of

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DiMaio's testimony. See supra. Accordingly, we cannot conclude
that the jury's verdict, which was not dependent on Di Maio's
testimony, was against the manifest weight of the evidence.
Plaintiffs further contend that they were entitled to a
new trial because counsel for AOAO KII and HMC, in his closing
argument, "improperly referred to Jisu's Family's motives in
bringing the lawsuit by telling the jury that the lawsuit was
'attorney generated' and that their causes of action against
defendants were 'not true' claims." Plaintiffs point to the
following excerpts from counsel's closing argument, which they
did not object to at trial:
Now, Exhibit . . . DA-25 is a set of answers to
interrogatories which the Plaintiffs submitted in this case
on February 29 of this year, 2016, and which they're in
evidence. . . .

Nowhere in . . . DA-25 when asked to describe what
happened in this accident[,] nowhere do the Plaintiffs --
these are signed by the way by [Plaintiffs'] counsel, and
[counsel] when he signed these answers didn't indicate that
-- that Amanda had jumped in, and he also didn't say a word
about water clarity.
. . . .

What did we have happen in this case? Time and time
again, oh, they allege this. Not true. They allege this.
Not true. They allege this. Not true. 'Well, we'll change
it one more time looking on the water quality.' That
clearly evidences a lack of faith in the case and frankly an
attorney-generated lawsuit.

In context, these statements were made as counsel for
AOAO KII and HMC summarized for the jury the various theories of
liability that Plaintiffs had asserted over the course of the
litigation and the evidence that undermined each theory. In
addition, the jury was instructed that the closing arguments of
counsel are not evidence. Having reviewed the record as a whole,
we do not view counsel's statements in the closing argument,
including the isolated reference to the phrase "attorney-
generated lawsuit," as having impugned Plaintiffs' motives in
bringing suit or otherwise prejudiced their case.10/ The Circuit

10/
Plaintiffs also argue that the above-quoted statements by counsel
for AOAO II and HMC violated the Circuit Court's order granting Plaintiffs'
motion in limine No. 8, which sought to preclude:

Reference(s) as to when and why Plaintiffs explored
(continued...)

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Court did not abuse its discretion in denying Plaintiffs' motion
for a new trial on this basis.

D. Van Dyck's Rule 50(a) Motion
Plaintiffs contend that the Circuit Court erred in
granting Van Dyck's Rule 50(a) Motion based on the statute of
limitations.
"[I]t is well settled that a trial court's rulings on
[motions for judgment as a matter of law] are reviewed
de novo." Nelson [v. University of Hawai#i, 97 Hawai#i
at 376, 393, 38 P.3d 95, 112 (2001)] (citing In re
Estate of Herbert, 90 Hawai#i 443, 454, 979 P.2d 39,
50 (1999)). When reviewing a motion for judgment as a
matter of law, "the evidence and the inferences which
may be fairly drawn therefrom must be considered in
the light most favorable to the nonmoving party and
[the] motion may be granted only where there can be
but one reasonable conclusion as to the proper
judgment." Id. (citing Carr v. Strode, 79 Hawai #i
475, 486, 904 P.2d 489, 500 (1995)).

Kramer v. Ellett, 108 Hawai#i 426, 430, 121 P.3d 406, 410 (2005).
As relevant to Van Dyck's Rule 50(a) motion, the record
reveals the following: Jisu was pronounced dead on July 8, 2013.
On June 29, 2015, Plaintiffs filed their initial Complaint in
this action. Although Van Dyck was repeatedly referenced in the
Complaint, he was not named as a defendant. On December 9, 2015,
Plaintiffs filed a First Amended Complaint, which also did not
name Van Dyck as a defendant. On August 11, 2016, Plaintiffs
filed their Second Amended Complaint, which named Van Dyck as a
defendant for the first time. Plaintiffs alleged, in relevant
part, that on July 5, 2013, Van Dyck left Jisu and his daughter
in the pool without supervision, even though he knew that Jisu
did not know how to swim, and that Jisu's drowning could have
been avoided had Van Dyck remained alert while he was in the
Jacuzzi a few feet away from the pool.

10/
(...continued)
the possibility of retaining an attorney and when they
retained an attorney, and the purposes or reasons why they
retained an attorney, or any such matters.

We conclude that counsel's statements did not violate the Circuit Court's
order.

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HRS § 663-3 provides the applicable limitations period
for a wrongful death action.11/ The statute states in relevant
part that "[a]ny action brought under this section shall be
commenced within two years from the date of the death of the
injured person, except as otherwise provided." HRS § 663-3
(Supp. 2015). See Hun, 63 Haw. at 283, 626 P.2d at 189
(explaining that the phrase "except as otherwise provided" allows
for the applicability of the tolling provisions of HRS § 657-13
as well as other provisions of the HRS).
Here, there is no dispute that the wrongful death
action against Van Dyck was not brought within two years of
Jisu's death on July 8, 2013. Rather, Plaintiffs argue that at
trial, they produced evidence that Van Dyck told police on the
day of the drowning that Jisu could not swim, "misleading the
police investigator to throw the trail off of his failure to
supervise his daughter at the pool[,] which led to Jisu's death."
Based on this evidence, and relying on Mauian Hotel, Inc., v.
Maui Pineapple Co., 52 Haw. 563, 481 P.2d 310 (1971), Plaintiffs
argue that the jury should have been allowed to determine that
Van Dyck "lulled" Plaintiffs into not filing a claim against him,
thus tolling the statute of limitations.
This court has clarified that "'lulling' is not a
distinct legal doctrine, but simply one application of the
doctrine of equitable estoppel." Wiesenberg v. University of
Hawai#i, No. CAAP-XX-XXXXXXX, 2019 WL 2066756, at *7 (Haw. App.
May 10, 2019) (Mem. Op.); see also Mauian Hotel, 52 Haw. at 570,
481 P.2d 315 ("It appears that in reliance on the stipulation[,
the third-party defendant] did not file a cross claim . . . until
the statute of limitations had run."); Vidinha v. Miyaki, 112
Hawai#i 336, 342, 145 P.3d 879, 885 (App. 2006) (analyzing
"lulling" under equitable estoppel doctrine). Accordingly, a
plaintiff claiming to have been lulled into inaction until the
statute of limitations ran on a claim "must show that he or she
has detrimentally relied on the representation or conduct of the

11/
Plaintiffs do not dispute that this is a wrongful death action
governed by HRS § 663-3. See Hun v. Center Properties, 63 Haw. 273, 279, 626
P.2d 182, 186 (1981) (applying HRS § 663-3 where the nature of the claim was
recovery for the wrongful death of the decedent).

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person sought to be estopped [from asserting a statute-of-
limitations defense], and that such reliance was reasonable."
Vidinha, 112 Hawai#i at 342, 145 P.3d at 885 (quoting Doherty v.
Hartford Ins. Group, 58 Haw. 570, 573, 574 P.2d 132, 134-35
(1978)).
Here, upon review of the record, it appears that
Plaintiffs produced no evidence that they detrimentally relied on
Van Dyck's alleged statement to the police in July 2013 that Jisu
could not swim. At trial, Kim and Jihyun did not testify that
they ever reviewed the alleged statement. Moreover, Jihyun
testified (via deposition) that: (1) Jisu had told her that she
(Jisu) did not know how to swim; and (2) to Jihyun's knowledge,
Jisu did not know how to swim. Shim testified that after Jisu
drowned, he obtained a copy of the police records, which he could
not read because they were in English. Shim further testified
that his son-in-law and Jihyun helped him review the police
report; however, he did not testify that he actually reviewed Van
Dyck's alleged statement or that it caused Plaintiffs not to
timely file a claim against Van Dyck. In addition, when Shim was
asked, "When Jisu left Korea to come to Hawaii, what did you
believe about Jisu's ability to swim," Shim responded, "I thought
she didn't swim." Considering the evidence and the inferences
that may be fairly drawn from the evidence in the light most
favorable to Plaintiffs, we conclude there was no legally
sufficient evidentiary basis for a reasonable jury to find that
Plaintiffs detrimentally relied on Van Dyck's alleged statement
to the police that Jisu could not swim. The Circuit Court thus
did not err in ruling there was no legally sufficient evidence
for a jury to find that Van Dyck should be equitably estopped
from asserting his statute-of-limitations defense.
Plaintiffs also argue that the jury should have been
allowed to consider Van Dyck's alleged statement to the police
that Jisu could not swim as evidence of "fraudulent concealment"
– another basis for tolling the statute of limitations.
HRS § 657–20 (1993) states, in relevant part:
If any person who is liable to any of the actions mentioned
in . . . section 663-3, fraudulently conceals the existence
of the cause of action or the identity of any person who is
liable for the claim from the knowledge of the person

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entitled to bring the action, the action may be commenced at
any time within six years after the person who is entitled
to bring the same discovers or should have discovered, the
existence of the cause of action or the identity of the
person who is liable for the claim, although the action
would otherwise be barred by the period of limitation.

The supreme court has defined fraudulent concealment as
the "employment of artifice, planned to prevent inquiry or escape
investigation, and misle[a]d or hinder acquirement of information
disclosing a right of action. The acts relied on must be of an
affirmative character and fraudulent." Au v. Au, 63 Haw. 210,
215, 626 P.2d 173, 178 (1981) (quoting Lemson v. General Motors
Corp., 238 N.W.2d 414, 415 (Mich. Ct. App. 1975)). The supreme
court has further explained:
The fraudulent concealment which will postpone the operation
of the statute must be the concealment of the fact that
plaintiff has a cause of action. If there is a known cause
of action there can be no fraudulent concealment.
It is not necessary that a party should know the details of
the evidence by which to establish his cause of action. It
is enough that he knows that a cause of action exists in his
favor, and when he has this knowledge, it is his own fault
if he does not avail himself of those means which the law
provides for prosecuting or preserving his claim.

Id. at 215-16, 626 P.2d at 178 (ellipsis omitted) (quoting Weast
v. Duffie, 262 N.W. 401, 402 (Mich. 1935); see Malabe v.
Association of Apartment Owners of Executive Centre, 147 Hawai#i
330, 357 n.36, 465 P.3d 777, 804 n.36 (2020) (applying Au
standard).
Here, upon review of the record, it appears that
Plaintiffs produced no evidence that Van Dyck acted affirmatively
and fraudulently to conceal evidence supporting an element of a
wrongful death claim against Van Dyck. Indeed, Plaintiffs
asserted a wrongful death action in their initial Complaint, and
repeatedly referenced Van Dyck and his daughter without naming
Van Dyck as a defendant.12/ More than three years after Jisu's
death, Plaintiffs filed their Second Amended Complaint, naming

12/
The Complaint alleged, for example, that: (1) "[o]n or about July
5, 2013, . . . J[isu] went to the [KII] with her landlord/employer . . . Van
[Dyck]"; (2) "J[isu], . . . Van [Dyck], his daughter, and one other person
went to the [KII] for a swim"; (3) "[p]rior to her death, J[isu] was using the
pool with [Van Dyck's] daughter"; (4) "J[isu] and [Van Dyck's] daughter were
in the shallow end of the pool"; and (5) "J[isu] grabbed [Van Dyck's'
daughter's ankle as she was sliding into the deep end."

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Van Dyck as a defendant based on his alleged failure to supervise
Jisu and his daughter "even though he knew Jisu did not know how
to swim." Plaintiffs do not explain how Van Dyck's alleged
statement to the police three years earlier that Jisu could not
swim, which is consistent with Plaintiffs' theory of liability,
concealed their claim.
At trial, Plaintiffs argued that, while Jisu was in the
shallow end of the pool, Van Dyck's daughter accidentally jumped
onto Jisu, which rendered her unconscious and caused Jisu's
drowning. This theory appears to have been based on speculation
about the content of a security video recording of the pool at
the time of the drowning, which Plaintiffs themselves describe as
a "fuzzy recording" in which "[t]he pool umbrellas blocked some
of the most scenes [sic] which made viewing the . . . recordings
difficult.13/ Plaintiffs contend: "It appears from the recording
from security camera 4 (although hazy, out of focus, and
partially blocked by pool-side umbrellas) that [Van Dyck's
daughter] got out of the pool and jumped on top of Jisu who was
still in the pool." Putting aside the quality of the recording,
Plaintiffs never explain how Van Dyck's alleged statement to the
police that Jisu could not swim hindered Plaintiffs' ability to
acquire and view the recording. In fact, there appears to be no
dispute that "a DVD of surveillance cameras 1, 2, 4, 5 and 6
. . . of the Kona Islander Inn pool incident" was transmitted to
Plaintiffs' counsel on January 16, 2014, roughly six months after
Jisu's death and well before the two-year limitations period ran.
Considering the evidence and the inferences that may be
fairly drawn from the evidence in the light most favorable to
Plaintiffs, we conclude there was no legally sufficient
evidentiary basis for a reasonable jury to find that Van Dyck
fraudulently concealed evidence supporting an element of a
wrongful death claim against Van Dyck. The Circuit Court thus
did not err in so ruling.
Accordingly, the Circuit Court did not err in ruling
that Plaintiffs brought this action against Van Dyck after the

13/
Indeed, at trial, Plaintiffs' counsel candidly told the jury,
"[I]t's hard to make out what happens" in the recording.

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applicable two-year limitations period had expired, and in
granting Van Dyck's Rule 50(a) motion on that ground.

III. Conclusion

For these reasons, the Final Judgment entered on
February 22, 2017, in the Circuit Court of the Third Circuit, is
affirmed.

DATED: Honolulu, Hawai#i, September 30, 2020.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
John Y.U. Choi
for Plaintiffs-Appellants.
/s/ Derrick H.M. Chan
Robert P. Richards and Associate Judge
Samantha Storm
(Myhre, Tsuchida, Richards &
Storm, Attorneys at Law, A /s/ Clyde J. Wadsworth
Law Corporation) Associate Judge
for Defendants-Appellees
Association of Apartment
Owners of Kona Islander Inn
and Hawaiiana Management
Company, Ltd.

James V. Myhre
(Myhre, Tsuchida, Richards &
Storm) and
J. Patrick Gallagher
(Gallagher Kane Amai)
for Defendant-Appellee
Christian Van Dyck

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