Sugue v. FL Smithe MacHine Co., Inc.

Per Curiam.

This is an interlocutory appeal by the plaintiff and cross interlocutory appeal by the defendant.

In a negligence and breach of warranty action filed by the plaintiff against the defendant (the manufacturer of the machine by which the plaintiff suffered her injuries) to recover damages for injuries suffered, the defendant filed a third-party complaint against the employer of plaintiff. The employer answered and raised the defense, inter alia, that the third-party complaint was barred by the workmen’s compensation statutes of the State of Hawaii since its workmen’s compensation insurance carrier paid workmen’s compensation to plaintiff. Subsequently, the employer was dismissed as a third-party defendant, by stipulation, because of this court’s opinion in Kamali v. Hawaiian Electric Co., 54 Haw. 153, 504 P.2d 861 (1972).

In a bifurcated trial between plaintiff against defendant, to first determine liability, the jury returned special interrogatories finding as follows, notwithstanding the dismissal of 'the employer as a party litigant:

1. the defendant was negligent;

2. the defendant did not breach a warranty;

3. the defendant’s negligence was a proximate cause of plaintiff’s injury;

4. the plaintiff did not assume the risk of her injuries;

5. the plaintiff was negligent;

*599 6. the plaintiff’s negligence was not a proximate cause of the accident;

7. the employer was negligent;

8. the employer’s negligence was a proximate cause of the accident;

9. as to each of the parties determined to have been negligent and whose negligence proximately caused the injury, the respective degree of fault of each is as follows:

a. plaintiff 10%

b. defendant 15%

c. employer 75%

Because of inconsistent answers to special interrogatories by the jury, the trial court decided as a matter of mathematical computations not based on a factual finding based on the evidence, that the 10% degree of fault assigned by the jury to the plaintiff should be eliminated and redistributed between the defendant and the employer. The degree of fault assigned to the defendant by the court then became 17%.

Judgment on the negligence count in favor of the plaintiff in the amount of 17% of her total damages, and in favor of the defendant on the breach of warranty count was entered.

The trial court granted permission to the parties to file an interlocutory appeal.

In Kamali, supra, we held that HRS § 386-5 1 of our workmen’s compensation law precludes a defendant in a tort action from obtaining contribution from an employer as a joint tortfeasor.

The plaintiff contends, inter alia, that the trial court misapplied the law of torts in this jurisdiction, generally, as well as the comparative negligence statute, 2 in admitting evidence *600 of plaintiff’s employer’s negligence, which was not attributable to plaintiff, to diminish plaintiff’s verdict.

Harriet Bouslog (Bouslog & Symonds of counsel) for plaintiff-appellant, cross-appellee.

Christopher P. McKenzie (Gould & McKenzie of counsel) for defendant-appellee, cross-appellant.

In our opinion, in the light of our decision in Kamali, and the fact that our comparative negligence statute clearly confines the determination of comparative negligence only among the parties (litigants) to the proceeding, the trial court erroneously admitted into evidence plaintiff’s employer’s negligence to diminish plaintiff’s verdict. The evidence in question and the special interrogatories relating to the negligence and degree of fault of the employer, a nonparty litigant, should not have been presented to the jury. Thus, without considering the other issues raised by the parties on appeal, we reverse and remand the case for a new trial.