TRACY AH MOOK SANG, as the Personal Representative of THE ESTATE OF MAKAMAE AH MOOK SANG, Deceased, TRACY AH MOOK SANG, individually, JASON AH MOOK SANG, individually, Petitioners/Plaintiffs-Appellants, vs. MICHAEL CLARK, DENISE CLARK, EDEN PACIFIC PROPERTIES, INC., Respondents/Defendants-Appellees.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioners/Plaintiffs-Appellants:
Thomas M. Otake and Diane Agor-Otake
Attorneys for Respondents/Defendants-Appellees:
Jonathan L. Ortiz, Wade J. Katano, and Christine S. Prepose-Kamihara of Ortiz & Katano
NOTE: Certificate of recusal, by Associate Justice Richard W. Pollack, filed 11/29/12.
NOTE: Certificate of recusal, by Associate Justice Simeon R. Acoba, Jr., filed 11/29/12.
NOTE: Order assigning Circuit Court Judges Steven S. Alm and Bert I. Ayabe, in place of Acoba, J. and Pollack, J., recused, respectively, filed 12/06/12.
NOTE: Order granting Application for Transfer, filed 12/11/12.
COURT: MER, CJ; PAN & SSM, JJ; Circuit Court Judge Alm, in place of Acoba, recused, and Circuit Court Judge Ayabe, in place of Pollack, J., recused.
Appellants Tracy Ah Mook Sang, individually and as personal representative of the estate of Makamae Ah Mook Sang, and Jason Ah Mook Sang (collectively, the Ah Mook Sangs) appeal from the June 28, 2011 judgment of the Circuit Court of the First Circuit entered in favor of Appellees Michael Clark, Denise Clark, and Eden Pacific Properties, Inc. (collectively, the Clarks) pursuant to the circuit court’s order granting their motion to dismiss the Ah Mook Sangs’ complaint.
Michael hosted a party at his residence during the night of July 29, 2009 and early morning of July 30, 2009 and served large amounts of alcohol to Makamae and other underage guests. Sometime during the party, Makamae became visibly sick and then went unconscious due to alcohol consumption, but the Clarks did not call for medical assistance. Later in the morning, Makamae was driven to the hospital by a friend, where she was pronounced dead due to acute alcohol intoxication. Consequently, the Ah Mook Sangs filed their complaint against the Clarks, alleging that they negligently caused Makamae’s death and seeking damages under HRS § 663-3, Hawaii’s wrongful death statute.
On appeal, the Ah Mook Sangs argue that the circuit court erred by: (1) concluding that common law limitations on social host liability barred their claims; (2) holding that there was no special relationship between Makamae and the Clarks; (3) concluding that the Clarks did not owe a legal duty to Makamae due to the absence of any special relationship, because the existence of a special relationship is only one factor a court must consider in determining whether a duty exists; and (4) concluding that HRS § 663-41 expressly prohibited their claims despite not bringing their claims under that section.