Oral Argument Intermediate Court of Appeals
CAAP-12-0000402, Wednesday, August 12, 2015, 9 a.m.
CIRILO POGOSO, Plaintiff Appellant, vs. JEFF SARAE and CITY AND COUNTY OF HONOLULU, Defendants Appellees, and JOHN DOES 1 10, DOE PARTNERSHIPS, CORPORATIONS and/or OTHER ENTITIES 1 10, Defendants.
The above-captioned case was set for argument on the merits at:
Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
Attorney for Plaintiff-Appellant:
Melvin Y. Agena of Law Offices of Melvin Y. Agena
Attorneys for Defendants-Appellees:
Donna Y.L. Leong, Corporation Counsel, and John P. Moran, Deputy Corporation Counsel
COURT: Nakamura, CJ, Foley and Reifurth, JJ.
Plaintiff-Appellant Cirilo Pogoso (Pogoso) filed a lawsuit, arising out of an automobile accident, against Defendant-Appellee Jeff Sarae (Sarae), a police officer with the Honolulu Police Department, and his employer, Defendant-Appellee City and County of Honolulu (City). Sarae was on duty and pursuing another vehicle to issue a traffic citation when the accident occurred. Pogoso alleged that he sustained personal injuries as a result of the accident and sought general and special damages.
Sarae and the City (collectively, Defendants) filed a motion for summary judgment. Defendants argued that Sarae was entitled to immunity under the doctrine of “conditional privilege” if he had not acted with malice and for an improper purpose, and Defendants asserted that there was no material factual dispute that Sarae had not acted with malice and for an improper purpose. Defendants also argued that if Sarae was immune from suit, then the City could not be held liable. The Circuit Court of the First Circuit (Circuit Court) granted Defendants’ motion for summary judgment and dismissed Pogoso’s complaint.
On appeal, Pogoso argues that the Circuit Court erred in granting summary judgment on the grounds of conditional privilege because the privilege was inapplicable in light of Hawaii Revised Statutes (HRS) §§ 291C-26(d) and 291C-65(b) (2007) and Revised Ordinances of Honolulu (ROH) §15-4.4 (1978). Pogoso contends that under these provisions, Sarae, as the driver of an authorized emergency vehicle, had a “duty to drive with due regard for the safety of all persons,” was not protected from the “consequences of [his] reckless disregard for the safety of others,” and was not protected from “the consequences of his . . . ordinary negligence or reckless disregard of the safety and property rights of others.” Pogoso also argues that the Circuit Court erred in granting summary judgment because there are numerous disputed issues of material fact.