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Oral Argument Before the Hawaii Supreme Court — No. SCWC-13-0001803

NO. SCWC-13-0001803, Thursday, August 16, 2018 – 8:45 a.m.

BERNADINE KUAHIWINUI, individually and as Personal Representative of the Estate of KRISTERPHER KAUPU-KUAHIWINUI, deceased; and KENNETH KAUPU, Respondents/Plaintiffs-Appellants, vs. ZELO’S INC., dba SUSHI & BLUES, Petitioner/Defendant-Appellee; TAHITI NUI ENTERPRISES, INC., dba TAHITI NUI; STATE OF HAWAII, Respondents/Defendants-Appellees, and JOHN DOES 1-10, et al., Defendants.

The above-captioned case was argued on the merits at:

Supreme Court Courtroom
Aliiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Michele-Lynn E. Luke

Attorneys for Respondents Kuahiwinui and Kaupu:

James J. Bickerton and Nathan P. Roehrig

NOTE: Order accepting Application for Writ of Certiorari, filed 05/24/18.

NOTE: Order postponing the oral argument from 07/19/18 to 08/16/18 at 8:45 a.m., filed 07/02/18.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This is a “dram shop” action for negligence brought by the estate and parents of a nineteen-year-old who suffered fatal injuries in an automobile accident on Kauai. The case raises the issue of the scope of a commercial liquor licensee’s liability for injuries to a third party caused by an intoxicated customer. The nineteen-year-old, Kristerpher Kaupu-Kuahiwinui, was a passenger in a car driven by a man who was allegedly overserved at a restaurant prior to operating the vehicle. Both Kristerpher and the driver had dinner and drinks at the restaurant before entering the vehicle, and both had blood alcohol levels over the legal limit for driving a vehicle when the accident occurred.

The circuit court granted summary judgment to the restaurant on the theory that Kristerpher was not an “innocent third party” entitled to bring a dram shop action against the restaurant because he himself was intoxicated at the time of the accident. The Intermediate Court of Appeals (ICA) vacated the circuit court’s judgment. The ICA held that a passenger’s intoxication does not automatically render the passenger non-innocent for purposes of a dram shop action. The ICA held there were genuine issues of material fact regarding whether this “complicity defense” applied so as to relieve the restaurant of liability for Kristerpher’s fatal injuries.

On certiorari, the restaurant argues that (a) it does not bear the burden to prove the complicity defense, (b) the complicity defense should be given a formulation different than that given by the ICA, and (c) the record establishes that Kristerpher indisputably actively contributed to and otherwise procured the intoxication of the driver.