Statutes of Limitations (HAWAII)

Personal Injury - 2 yrs. [HRS § 657-7]

Wrongful Death - 2 yrs. (from date of death) [HRS §§ 657-7 663-3]

Property Damage - 2 yrs. [HRS § 657-7]

Contracts (Written and Oral) - 6 yrs. [HRS § 657-1]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [HRS § 490:2-725]


Under “discovery rule,” cause of action does not “accrue,” and limitations period does not begin to run, until plaintiff knew or should have known of defendant’s negligence [Hays v. City & Cnty. of Honolulu, 917 P.2d 718 (Haw. 1996)].





Statute of Repose (Products) (HAWAII)




Admissibility of Expert Testimony (HAWAII)

Dubert test has not been adopted but is instructive because Hawaii Rules of Evidence are patterned on federal Rules of Evidence [State v. Vliet, 19 P.3d 42 (Haw. 2001)].


Causes of Action (HAWAII)

Strict Liability – Hawaii has adopted Rest. (2nd) of Torts, 402A with one exception: the phrase “unreasonably dangerous” is not employed.  One who sells or leases a defective product which is dangerous to the user is subject to liability for physical harm caused by the defective product if: (1) the seller or lessor is engaged in the business of selling or leasing such product; and (2) the product is expected to and does reach the user or consumer without substantial change in its condition after it is sold or leased [Brown v. Clark Equip. Co., 618 P.2d 267 (Haw. 1980)].


Negligence - It is the legal duty of manufacturers to exercise reasonable care in the design and incorporation of safety features to protect against foreseeable dangers [Ontai v. Straub Clinic & Hosp., 659 P.2d 734 (Haw. 1983)].


Breach of Implied Warranty – This warranty is implied by operation of law into every sale of goods by a merchant seller (merchantability, as provided in a statute, means that the goods are fit for the ordinary purpose for which such goods are used).  The implied warranty of fitness for a particular purpose is narrower and more specific (the essential components are that the seller has reason to know of the particular purpose for which the goods are required, and that the buyer relies on the seller's expertise in supplying a suitable product) [Ontai v. Straub Clinic & Hosp., 659 P.2d 734 (Haw. 1983)].


Breach of Express Warranty – Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon [Torres v. Northwest Eng'g Co., 949 P.2d 1004 (Haw. App. 1997)].






Definition of “Defect” (HAWAII)


It is enough that Plaintiff demonstrates that because of its manufacture or design, the product does not meet the reasonable expectations of the ordinary consumer or user as to its safety [Ontai v. Straub Clinic & Hosp., 659 P.2d 734 (Haw. 1983)].


Liability of Sellers (HAWAII)


Strict liability applies to sellers and lessors who are engaged in the business of selling or leasing [Ontai v. Straub Clinic & Hosp., 659 P.2d 734 (Haw. 1983)].




Defenses (HAWAII)     

Comparative Negligence – Hawaii in general follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [HRS § 663-31].  However, pure comparative negligence applies in strict liability actions [Armstrong v. Cione, 738 P.2d 79 (Haw. 1987)].


Assumption of Risk – Where comparative negligence principles apply, assumption of risk that is a form of contributory negligence and serves to reduce, rather than bar, Plaintiff’s recoveries [Larsen v. Pacesetter Sys., Inc., 837 P.2d 1273 (Haw. 1992)].


Product Modification/Alteration – One of the elements of strict liability is that the product must have reached Plaintiff without substantial change in its condition after it is sold. 






Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (HAWAII)

ELD bars claims for relief based on products liability or negligent design and/or manufacture theory for economic loss stemming from injury only to product itself [State by Bronster v. U.S. Steel Corp., 919 P.2d 294 (Haw. 1996)].


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (HAWAII)


Purely circumstantial evidence of a defect will suffice to take the case to the jury provided: (1) Plaintiff presents evidence which would tend to negate causes for an accident other than a defect in the product; and (2) Plaintiff presents proof which would suggest that whatever defect might have existed was one introduced into the product by Defendant [Jenkins v. Whittaker Corp., 785 F.2d 720 (9th Cir. Haw. 1986)].


Design Defects (HAWAII)


A product may be defective under “defective design” theory.  Manufacturer’s failure to equip its product with a safety device may constitute a design defect [Wagatsuma v. Patch, 879 P.2d 572 (Haw. App. 1994)].


Plaintiff’s burden in a negligent design claim is to prove that Manufacturer is negligent in not taking reasonable measures in designing its product to protect against a foreseeable risk of injury and the Manufacturer’s negligence is a proximate cause of Plaintiff’s injury.  Among the factors the fact finder should consider in determining whether the manufacturer acts reasonably are: (1) balancing the likelihood and gravity of the potential harm against the burden of precautions which would effectively avoid the harm; (2) the style, type, and particular purpose of the product; (3) the cost of an alternative design, since the product's marketability may be adversely affected by a cost factor that greatly outweighs the added safety of the product; and (4) the price of the product itself [Wagatsuma v. Patch, 879 P.2d 572 (Haw. App. 1994)].


Under the risk-utility test, the fact finder balances a number of relevant factors, which are: (1) the usefulness and desirability of the product; (2) the safety aspects of the product and the probable seriousness of the injury; (3) the availability of a substitute product which would meet the same need and not be as unsafe; (4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) the user’s ability to avoid danger by the exercise of care in the use of the product; (6) the user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; (7) the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.  The procedure in applying the risk-utility test is that once Plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden shifts to Defendant to prove, in light of the relevant factors, that the product is not defective [Wagatsuma v. Patch, 879 P.2d 572 (Haw. App. 1994)].  


The obviousness of the danger, unless it justifies the conclusion that the condition is not unreasonably dangerous, precludes liability on the part of Manufacturer who negligently designs a machine [Wagatsuma v. Patch, 879 P.2d 572 (Haw. App. 1994)].


The state of the art evidence is defined as permitting Defendant to demonstrate that given the scientific, technological, and other information available at the time of manufacture or distribution, it could not have known of the dangers of the product [In re Hawaii Federal Asbestos Cases, 665 F. Supp. 1454 (D. Haw. 1986)].  State of the art is not available as a defense (and such evidence is not admissible) to strict products liability [In re Hawaii Federal Asbestos Cases, 665 F. Supp. 1454 (D. Haw. 1986)], but available in cases based on negligence [Johnson v. Raybestos-Manhattan, Inc., 740 P.2d 548 (Haw. 1987)].




Failure to Warn (HAWAII)

A product may be defective under “insufficient warning” theory [Wagatsuma v. Patch, 879 P.2d 572 (Haw. App. 1994)].


A duty to warn consists of two duties: (1) to give adequate instructions for safe use; and (2) to give a warning as to dangers inherent in improper use.  Manufacturer must give appropriate warning of any known dangers that the user of its product would not ordinarily discover.  The likelihood of an accident taking place and the seriousness of the consequences are always pertinent matters to be considered with respect to the duty to provide a sufficient label [Ontai v. Straub Clinic & Hosp., 659 P.2d 734 (Haw. 1983)].


The existence of a duty to warn is entirely a question of law for the court to decide.  There is no duty to warn of open and obvious hazards and risks [Josue v. Isuzu Motors Am., 958 P.2d 535 (Haw. 1998)].



Independent Cause of Action for Evidence Spoliation (HAWAII)


Not addressed/recognized.  Hawaii Supreme Court has refused to resolve whether Hawaii law would recognize a tort of spoliation (at least under the facts of that particular case) [Matsuura v. E.I. du Pont de Nemours and Co., 73 P.3d 687 (Haw. 2003)].