Cupo v. Aliomanu Sand Castles, LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-FEB-2024
07:59 AM
Dkt. 77 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ANTONIO CUPO and DOROTHY WANG, Plaintiffs-Appellants,
v.
ALIOMANU SAND CASTLES, LLC, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC171000084)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Antonio Cupo and Dorothy Wang, representing themselves,
appeal from the Final Judgment for Aliomanu Sand Castles, LLC
entered by the Circuit Court of the Fifth Circuit on May 24,
2019.1 They challenge the order granting Aliomanu's motion for
summary judgment, entered on March 21, 2019. We vacate and
remand for further proceedings.
Cupo and Wang filed a complaint against Aliomanu on
May 30, 2017. They alleged that Aliomanu owned a property they
leased for their wedding and honeymoon; Cupo was sitting in a
chair on the property's deck when it broke; and Cupo was injured
and was "deprived of the services and consortium of his wife,"
Wang. Aliomanu moved for summary judgment. The circuit court
granted the motion and entered the Final Judgment. This appeal
followed.

1
The Honorable Kathleen K. Watanabe presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

We review a grant of summary judgment de novo. Nozawa
v. Operating Engineers Local Union No. 3, 142 Hawai#i 331, 338,
418 P.3d 1187, 1194 (2018). Summary judgment is appropriate if
there is no genuine issue of material fact and the moving party
is entitled to a judgment as a matter of law. Id. at 342, 418
P.3d at 1198. A fact is material if it would establish or refute
an essential element of a cause of action or defense. Id. The
evidence is viewed in the light most favorable to the non-moving
party. Id.
Aliomanu admitted owning the vacation rental. But it
had a property management agreement with Coldwell Banker Bali Hai
Realty. Aliomanu argues it "transferred the duty to maintain the
premises" to Bali Hai. The existence of a duty is a question of
law. Winfrey v. GGP Ala Moana LLC, 130 Hawai#i 262, 271, 308
P.3d 891, 900 (2013). A landowner has a duty to use reasonable
care for the safety of all people reasonably anticipated to be
upon the premises. Doe v. Grosvenor Properties (Haw.) Ltd., 73
Haw. 158, 162–63, 829 P.2d 512, 515 (1992) (citing Pickard v.
City & Cnty. of Honolulu, 51 Haw. 134, 135, 452 P.2d 445, 446
(1969)).2 As a matter of law, Aliomanu cannot "transfer" or
otherwise delegate its legal duty to an agent.
Aliomanu argues that it "cannot be found liable where
it did not control the property at the time of the accident and
where it did not have actual or constructive notice of the
allegedly weathered condition of the molded plastic chair, nor an
opportunity to correct it." "Where a private landowner is not in
control of the activities occurring on her land, that landowner
will not be liable for injuries occurring thereon." Wemple ex
rel. Dang v. Dahman, 103 Hawai#i 385, 393, 83 P.3d 100, 108
(2004). Control is a question of fact. Id. at 394, 83 P.3d
at 109.

2
This case does not implicate Hawaii Revised Statutes § 520-3, part
of the recreational use statute.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The property management agreement made Bali Hai
Aliomanu's agent for managing the vacation rental. Bali Hai had
to inspect the property before Cupo and Wang checked in "to
ensure that the Premises and Inventory [defined as "the furniture
and fixtures in the Premises"] are in good order and repair[.]"
Aliomanu authorized Bali Hai to replace things such as the chair,
at Aliomanu's expense, "subject to [Aliomanu]'s prior approval
with respect to any expenditure in excess of $300.00[.]" Bali
Hai could also make emergency repairs to fulfill Aliomanu's
obligations to a renter. Aliomanu's manager Eric Taylor's
affidavit states that had Bali Hai told Aliomanu about a degraded
hard plastic chair (which is "Inventory" under the management
agreement) being on the property, Aliomanu "would have given
immediate instruction to throw such an ill-becoming hard plastic
chair away without replacing it." Viewed in the light most
favorable to Cupo and Wang, that shows control. On this record,
there was a genuine issue of material fact over whether, and if
so how much, control Aliomanu had over its vacation rental
property — specifically, the chair. Wemple ex rel. Dang, 103
Hawai#i at 394, 83 P.3d at 109. The circuit court erred by
granting Aliomanu's motion for summary judgment.
A principal can also be vicariously liable for its
agent's negligence within the scope of the agent's authority
under the theory of respondeat superior. State v. Hoshijo ex
rel. White, 102 Hawai#i 307, 319, 76 P.3d 550, 562 (2003).
Whether an agent was acting within the scope of its authority is
a question of fact. Id.
The "Order Granting Defendant Aliomanu Sand Castles,
LLC's Motion for Summary Judgment[,]" entered on March 21, 2019,
and the "Final Judgment" entered on May 24, 2019, are vacated,

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

and this case is remanded for further proceedings consistent with
this summary disposition order.
DATED: Honolulu, Hawai#i, February 16, 2024.

On the briefs:
/s/ Katherine G. Leonard
Antonio Cupo and Dorothy Acting Chief Judge
Wang, Self-represented
Plaintiffs-Appellants. /s/ Keith K. Hiraoka
Associate Judge
Steven L. Goto,
for Defendant-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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