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SCWC-16-0000570

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

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________________________________________________________________

SHADLEY HAYNES, KURSTIN HAYNES, Individually and as Parent 

and Legal Guardian of Minor Children JH and NH; THE OTHER SIDE -

ROCKSTARZ - LLC, Petitioners/Plaintiffs-Appellants

vs.

GREGORY FOWLER HAAS; FPA GOLD COAST ASSOCIATES, LLC;

CLARK REALTY CORPORATION; KONA METRO PARKING & WATCHMAN 

SERVICES, INC.; ALLIED SELF STORAGE CENTER; GUIDO GIACOMETTI; 

CHUNG PARTNERS, Respondents/Defendants-Appellees.

SCWC-16-0000570

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000570; CIV. NO. 12-1-0301K)

MAY 5, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

This appeal requires us to address whether a plaintiff 

can recover damages for injury from a common-law public 

Electronically Filed

Supreme Court

SCWC-16-0000570

05-MAY-2020

07:51 AM
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nuisance. We conclude that, as a matter of law, such a claim is 

cognizable when the plaintiff has suffered individualized harm.

Plaintiff Shadley Haynes (Shadley) was allegedly 

assaulted by Gregory Haas (Haas) in the parking lot of 

Rockstarz, a bar that Shadley and his wife, Kurstin Haynes, 

owned and operated. Shadley sustained serious injuries. 

Rockstarz - now closed - was located about 0.3 miles from Allied 

Self Storage Center (Allied). 

Shadley, Kurstin,1 and The Other Side - Rockstarz - LLC 

(collectively, “Plaintiffs”), filed suit in the Circuit Court of 

the Third Circuit alleging that Allied and Chung Partners 

(collectively, “Defendants”) had created and maintained a public 

nuisance by permitting Haas and other homeless individuals to

live on their premises in violation of Hawai‘i County zoning 

codes. Plaintiffs alleged that the nuisance was a substantial 

factor in causing Plaintiffs’ injuries and that they are 

entitled to damages.

The circuit court granted summary judgment in favor of 

Defendants.2 The Intermediate Court of Appeals (ICA) affirmed 

 

1 Kurstin sued Defendants both as an individual and as the parent and 

legal guardian of JH and NH, Kurstin and Shadley’s children.

 

2 The circuit court also granted Chung Partners’ Motion for Costs under 

(continued)
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the circuit court’s summary judgment orders on the grounds that 

Plaintiffs could not recover damages for public nuisance in the 

absence of a statute designating the activity as a public 

nuisance. On certiorari, Plaintiffs argue that the ICA gravely 

erred in its conclusion that they were foreclosed from 

recovering damages as a matter of law.

We hold that a plaintiff can recover damages stemming 

from a public nuisance even absent an explicit statutory 

prohibition of the challenged conduct when the plaintiff has 

suffered individualized harm. We thus vacate the circuit 

court’s order granting summary judgment to Defendants and the 

ICA’s order affirming the circuit court, and remand for further 

proceedings consistent with this opinion.

II. BACKGROUND

A. Circuit Court Proceedings3

1. Complaint

Plaintiffs filed their Complaint on May 2, 2012, and 

amended it three times.4 Count V of the Third Amended Complaint, 

 

Hawai‘i Rules of Civil Procedure (HRCP) Rules 54(d) and 68, which the ICA 

affirmed in part. As set forth below, because we vacate the circuit court’s 

grant of summary judgment, we also vacate the award of costs. 

3 The Honorable Ronald Ibarra presided.

4 Plaintiffs’ Third Amended Complaint also named Defendants Haas, FPA 

(continued)
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the only count that implicated Allied and Chung Partners, 

alleged:

59. By allowing Defendant Haas and others to live in 

one of its storage units in violation of land use and 

public health laws, Defendant Allied caused its 

property and the surrounding non-residential area to 

become a home to vagrants, drug users, criminals and 

other dangerous and undesirable people who otherwise 

would not be in this business and industrial area at 

night. As a result, Defendant Allied created a 

condition that was (a) unreasonably dangerous and (b) 

affected a public place, and thereby maintained a 

public nuisance.

60. As lessee/sub-lessor of the 74-5540 Kaiwi Street 

property (“Allied Storage property”), Defendant Chung 

had a duty not to maintain the hereinabove described 

nuisance on the property.

61. Defendant Chung breached its duty not to 

maintain the hereinabove described nuisance on the 

Allied Storage property.

The Third Amended Complaint also alleged that as a 

proximate result of this nuisance, Shadley suffered severe 

physical injuries, traumatic brain injury, and severe emotional 

distress; that Shadley, Kurstin, and their children, JH and NH, 

suffered other special and general damages to be proven at 

 

Gold Coast Associates, LLC (Gold Coast), Clark Realty Corporation (Clark), 

Kona Metro Parking & Watchman Services, Inc. (Metro), Guido Giacometti 

(Giacometti), and Doe Defendants 1-10. Plaintiffs alleged that Gold Coast 

owned and leased the property where Rockstarz was located, while Clark was a 

property management business. According to Plaintiffs, Metro was a security 

business for parking lots and other areas around the Rockstarz building, and 

Giacometti was the receiver Clark had hired to manage the Rockstarz premises’ 

daily affairs. 

In addition to Count V against Defendants, Plaintiffs’ complaint 

asserted one count of assault and battery against Haas, four counts of 

negligence and gross negligence against Gold Coast, Clark, Metro, and 

Giacometti, respectively, and one count against all of the defendants on 

behalf of JH and NH for loss of consortium, intentional infliction of 

emotional distress, and negligent infliction of emotional distress.
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trial; and that Rockstarz suffered loss of business and 

diminished business reputation.

2. Chung Partners’ Motions for Summary Judgment

In two separate motions for summary judgment, Chung 

Partners argued that it was not liable for Plaintiffs’ damages, 

first because it had no duty to Shadley, and second because it 

had no knowledge of homeless individuals residing in storage 

units. Allied filed a notice of joinder in both motions.

Chung Partners argued that under Restatement (Second) 

of Torts §§ 8375 and 3566 (Am. Law Inst. 1979) (Restatement) it 

 

5 Restatement 2d of Torts § 837 provides:

(1) A lessor of land is subject to liability for a 

nuisance caused by an activity carried on upon the 

land while the lease continues and the lessor 

continues as owner, if the lessor would be liable if 

he had carried on the activity himself, and

(a) at the time of the lease the lessor consents to 

the activity or knows or has reason to know that it 

will be carried on, and

(b) he then knows or should know that it will 

necessarily involve or is causing the nuisance.

6 Restatement 2d of Torts § 356 comment (a) provides:

When land is leased to a tenant, the law of property 

regards the lease as equivalent to a sale of land for 

the term of the lease. The lessee acquires an estate 

in the land, and becomes for the time being the owner 

and occupier, subject to all of the liabilities of 

one in possession, both to those who enter the land 

and to those outside of it . . . . [I]t is the 

general rule that the lessor is not liable to the 

lessee, or to others on the land, even though such 

injuries resulted from a dangerous condition existing 

at the time of the transfer. 
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could only be held liable for nuisance on its leased land if it 

possessed the land when the nuisance occurred or (1) would be 

liable if it carried on the alleged nuisance; (2) consented to 

such activity; and (3) knew that such activity would 

“necessarily result in” the nuisance.

Chung Partners argued that although Hawai‘i case law 

was silent on applying Restatement § 837, “ample case law” from 

other jurisdictions supported its application.7 And, citing Hao 

v. Campbell Estate, 76 Hawai‘i 77, 869 P.2d 216 (1994), Chung 

Partners argued that Hawai‘i cases had recognized Restatement 

§ 356’s general rule that “landowner[s were] not liable for 

injuries occurring after a lessee takes possession of the land.”

Chung Partners submitted a declaration of one of its 

principals, Sung Hun Chung, stating that Chung Partners did not 

know that Allied allowed people to reside in storage units, and 

 

7 Chung cited to the following cases for support: City of Los Angeles v. 

Star Sand & Gravel Co., 12 P.2d 69 (Cal. Ct. App. 1932) (holding that owner 

of premises leased for purpose attainable without creating nuisance was held 

not liable for creation of nuisance without owner’s knowledge or notice); 

Silverman v. Unsen, 147 A. 421 (Me. 1929) (holding that lessor of shooting 

gallery was not liable to third person for injury resulting from lessee’s 

negligence); Meloy v City of Santa Monica, 12 P.2d 1072 (Cal. Ct. App. 1932) 

(holding that in order to charge landlord with liability, nuisance must 

necessarily result from tenant’s ordinary use of premises, or from purposes 

for which premises were let); Wasilewski v. McGuire Art Shop, 187 A. 530 

(N.J. 1936) (holding that landlord renting entire store premises to tenant 

who undertook to make repairs was not liable for pedestrian’s injury when 

caused by tenant’s negligence); Midland Oil Co. v. Thigpen, 4 F.2d 85 (8th 

Cir. 1924) (holding that a tenant, not a landlord, will be “owner” so far as 

negligent injuries to third parties are concerned).
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furthermore, that Plaintiffs’ complaint failed to even allege 

such information. Accordingly, Chung Partners concluded that it 

could not be held liable for public nuisance.

Chung Partners next argued that, contrary to 

Plaintiffs’ assertion, it had no “duty not to maintain” a 

nuisance on Allied’s property. Chung Partners explained that 

under Hawai‘i case law, “courts are reluctant to impose a duty on 

owners and occupiers of land to protect others against the 

criminal act[s] of third parties.” And, because Hawai‘i follows 

Restatement § 315,8 only a “special relationship” between Chung 

Partners and Plaintiffs could require Chung Partners to protect 

them from harm by Haas. In the instant case, Chung Partners 

argued, there was no special relationship between it and 

Plaintiffs. Accordingly, Chung Partners concluded that it could 

not have been required to control Haas’ conduct. 

 

8 Restatement § 315 provides:

There is no duty so to control the conduct of a third 

person as to prevent him from causing physical harm 

to another unless:

(a) A special relation exists between the actor and 

the third person which imposes a duty upon the actor 

to control the third person’s conduct, or

(b) A special relation exists between the actor and 

the other which gives to the other a right to 

protection. 
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In Chung Partners’ second Motion for Summary Judgment, 

it noted that Restatement § 821B construed public nuisances as 

unreasonable conduct of a certain nature.9 Second, Chung 

Partners pointed out that in Littleton v. State, 66 Haw. 55, 67, 

656 P.2d 1336, 1344-45 (1982), this court held that for behavior 

to be a public nuisance, the act or use of the property at issue 

must have been in a public place or somewhere the public 

frequently congregated.

Chung Partners further maintained that people could 

not be nuisances; only their unreasonable conduct could be a 

nuisance if it interfered with a common right. And even if 

Allied created a nuisance, it did not create an unreasonable 

interference with any right common to the general public or to 

 

9 Restatement § 821B provides:

(1) A public nuisance is an unreasonable 

interference with a right common to the general 

public.

(2) Circumstances that may sustain a holding that 

an interference with a public right is unreasonable 

include the following:

(a) Whether the conduct involves a 

significant interference with the public health, the 

public safety, the public peace, the public comfort, 

or the public convenience, or

(b) whether the conduct is proscribed by a 

statute, ordinance, or administrative regulation, or 

(c) whether the conduct is of a continuing 

nature or has produced a permanent or long-lasting 

effect, and, as the actor knows or has reason to 

know, has a significant effect upon the public right. 
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the Plaintiffs 0.3 miles away. 

3. Plaintiffs’ Response to Chung Partners’ Motions for 

Summary Judgment

Citing Littleton v. State, 66 Haw. at 67, 656 P.2d at 

1344-45 (1982), and Territory v. Fujiwara, 33 Haw. 428, 429-30 

(1935), Plaintiffs argued that a court may not decide at summary 

judgment whether a public nuisance exists; instead, that 

question is reserved for the fact-finder. Plaintiffs also 

argued that, as a matter of law, defendants can be held liable 

for public nuisances that extend from activity on the 

defendants’ property.

Plaintiffs next noted that the use of the storage 

units for residences was “illegal” because the area was zoned as 

“General Industrial.” Furthermore, Plaintiffs relied on the 

expert testimony of Spike Denis, a premises security expert, 

that it was reasonably foreseeable that homeless residents would 

commit assault, not only on the premises but in the surrounding

community. 

Plaintiffs presented evidence that the encampment at 

Allied was long-running and obvious. For example, Plaintiffs 

quoted from the declaration of James Smith, who stated that he 

resided in a storage unit, and that Roy Ebert, who worked under 

Sung Hun Chung, told Smith “what I don’t see, I don’t know,” in 
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reference to residential use of the storage unit. Plaintiffs 

further stated that Allied changed its name to Kaiwi Storage 

after this incident, and hired Metro to address the issue of 

homeless individuals residing in units. Metro employees working 

there after the assault testified that they observed signs of 

residential use on the property. 

Plaintiffs argued Chung Partners was liable for the 

nuisance maintained by Allied because one of Chung Partners’ 

principals, Sung Hun Chung, knew or should have known of the 

homeless situation on Allied’s leased property. On the date of 

the incident, Plaintiffs alleged, Sung Hun Chung was not only 

the managing partner of Chung Partners, but also the manager and 

secretary of Allied. Further, Sung Hun Chung had an office and 

P.O. box on Allied’s premises for nearly six years. 

Accordingly, Plaintiffs argued Sung Hun Chung knew or should 

have known about Allied’s homeless residents.10

 

10 Plaintiffs presented two other alternative theories of liability. 

First, Plaintiffs argued that there were unresolved issues of material fact 

as to whether Chung Partners, as transferee of Allied’s business in 2012, 

assumed Allied’s liabilities. Though the purchase and sale agreement was 

written as a sale of assets, Plaintiffs raised several factual issues that

they contended could have supported Chung Partners’ liability.

Second, Plaintiffs argued that Chung Partners was never out of 

possession of the premises leased to Allied, and therefore Chung Partners was 

tenants-in-common with Allied and equally liable for Allied’s torts. The 

Allied premises were originally leased by the Trustees of the Lili‘uokalani 

(continued)
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The circuit court heard Chung Partners’ Motions for 

Summary Judgment and Allied’s Notice of Joinder, and 

subsequently granted the three motions in a minute order. The 

court’s minute order was brief and did not explain its specific 

rationale for granting Defendants’ motions for summary judgment.

Chung Partners then filed a Motion for Costs pursuant 

to HRCP Rules 54(d)11 and 6812. In its Memorandum of Support, 

 

Trust to Chung Partners. Chung Partners thereafter subleased a portion of 

the premises to Allied, but the sublease did not provide specific metes and 

bounds of the premises. Therefore, Allied and Chung Partners were co-tenants 

in equal possession of the premises under Hawai‘i law and Allied maintained 

interest in all of the larger area.

11 HRCP Rule 54(d) provides in relevant part:

(d) Costs; Attorneys’ Fees

(1) Costs Other Than Attorneys’ Fees. Except 

when express provision therefor is made either in a 

statute or in these rules, costs shall be allowed as 

of course to the prevailing party unless the court 

otherwise directs; but costs against the State or a 

county, or an officer or agency of the State or a 

county, shall be imposed only to the extent permitted 

by law...

(2) Attorneys’ Fees.

(A) Claims for attorneys’ fees and 

related nontaxable expenses shall 

be made by motion unless the 

substantive law governing the 

action provides for the recovery of 

such fees as an element of damages 

to be proved at trial.

12 HRCP Rule 68 provides:

At any time more than 10 days before the trial 

begins, any party may serve upon any adverse party an 

(continued)
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Chung Partners alleged that after a failed attempt to mediate, 

it offered to settle for $25,000 pursuant to HRCP Rule 68 on 

August 6, 2015, with “each party to bear their own fees and 

costs,” which Plaintiffs rejected. Chung Partners incurred 

costs of $29,429.69 prior to its Offer of Settlement and 

$35,546.76 after the offer was rejected. After a hearing, the 

court granted Chung Partners’ Motion for Costs in the amount of 

$22,085.22 without stating whether it was granting the motion 

based on HRCP Rule 54(d) or Rule 68.

 

offer of settlement or an offer to allow judgment to 

be taken against either party for the money or 

property or to the effect specified in the offer, 

with costs then accrued. If within 10 days after the 

service of the offer the adverse party serves written 

notice that the offer is accepted, either party may 

then file the offer and notice of acceptance together 

with proof of service thereof and thereupon the clerk 

shall, in accordance with the agreement, enter an 

order of dismissal or a judgment. An offer not 

accepted shall be deemed withdrawn and evidence 

thereof is not admissible except in a proceeding to 

determine costs. If the judgment finally obtained by 

the offeree is not more favorable than the offer, the 

offeree must pay the costs incurred after the making 

of the offer. The fact that an offer is made but not 

accepted does not preclude a subsequent offer. When 

the liability of one party to another has been 

determined by verdict or order or judgment, but the 

amount or extent of the liability remains to be 

determined by further proceedings, either party may 

make an offer of judgment, which shall have the same 

effect as an offer made before trial if it is served 

within a reasonable time not less than 10 days prior 

to the commencement of hearings to determine the 

amount or extent of liability.

(Emphases added).
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B. ICA Proceedings

1. Opening Brief

Plaintiffs appealed the circuit court’s orders 

granting summary judgment and awarding costs to Chung Partners. 

They argued that under Hawai‘i case law, whether a public 

nuisance existed and whether a plaintiff’s injuries were 

proximately caused by a defendant’s breach of a statutory duty 

were questions for a jury to decide, citing to this court’s 

opinions in Littleton v. State, 66 Haw. 55, 67, 656 P.2d 1336, 

1345 (1982) and Territory v. Fujiwara, 33 Haw. 428, 429-30 

(Terr. 1935). Plaintiffs also contended that there remained 

genuine issues of material fact as to the existence of a public 

nuisance on the Allied premises and Chung Partners’ liability 

for it.

Plaintiffs also argued that the circuit court’s award 

of costs to Chung Partners was improper. First, Plaintiffs 

argued that because summary judgment was inappropriate, Chung 

Partners was not the prevailing party. Plaintiffs then argued 

that even if summary judgment were proper, the award of costs 

was still inappropriate because applying HRCP Rule 68 as written 

could deprive Plaintiffs of the constitutional right to have a 

jury decide liability. 

Plaintiffs also asserted Chung Partners’ HRCP Rule 68 
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offer of settlement was defective because it did not offer to 

pay Plaintiffs’ costs, nor would the offer fully and completely 

resolve all of Plaintiffs’ claims because it did not include an 

admission of liability. Thus, Plaintiffs concluded the circuit 

court erred in granting Chung Partners’ Motion for Costs. 

2. Answering Briefs13

Allied first disputed Plaintiffs’ claim that 

homelessness could be a public nuisance. Relying on Restatement 

 

13 Haas’ liability for the assault was not contested on appeal. However, 

Haas filed an Answering Brief to the ICA that asserted the following four 

points of error in the circuit court’s ruling: 

(1) Judge Ibarra had a conflict of interest because 

he presided over both the criminal and civil case in 

the same matter. After the jury convicted Haas in 

the criminal trial, “numerous rulings” were made, 

including summary judgment;

(2) Haas did not assault anyone and was attacked by 

employees of Rockstarz who were drinking alcohol and 

using drugs. The alleged attack against Haas 

resulted in serious injuries including permanent 

paralysis to half of Haas’ face and four broken 

teeth. Haas required stitches and facial surgery, 

including metal plates in his eye socket;

(3) there was evidence spoliation of a hard drive 

containing surveillance camera footage. The footage, 

according to Haas, was hidden from prosecutors and 

police for over a year until a third party notified 

the prosecutor that the video evidence existed. Haas 

then alleged that Haynes’ attorney “spoiled” the 

evidence because the footage could not be viewed from 

the hard drive, despite the police purchasing a 

special player for the hard drive; and

(4) that he was “definitely not living at the Kona 

storage facility and in fact never slept there.” 

Further, being homeless did not have anything to do 

with this incident. 

Given our disposition of the case, we need not address Haas’ arguments.
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§ 821B(1) and Littleton, 66 Haw. at 67, 656 P.2d at 1344-45, 

Allied defined public nuisance as unreasonable conduct that 

interferes with a public right. According to Allied, Plaintiffs 

claimed the circumstance of homelessness, as opposed to the 

conduct of homeless people, was the nuisance. Allied also noted 

that the mere act of being homeless did not interfere with a 

right common to the general public and that Plaintiffs failed to 

provide any evidence of unreasonable interference with some 

public right. Allied concluded that homelessness was not a 

public nuisance. 

Finally, Allied argued that Plaintiffs failed to point 

to any evidence in their Opening Brief that the assault was 

reasonably foreseeable. Nor, Allied contended, was there any 

evidence presented that Allied knew or should have known 

homeless people were sleeping in rented units. Finally, the 

normal and usual operation of a self-storage business did not 

involve liability for an assault by an alleged homeless resident 

“almost half a mile away” from the property. 

The arguments in Chung Partners’ Answering Brief 

mirrored those presented by Allied, and additionally contested 

Plaintiffs’ assertion that it knew or should have known of the 

homeless individuals residing in storage units. Chung Partners 

also argued that it did not assume liability for Allied’s torts 
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through its purchase of Allied’s assets, which occurred almost a 

year after the incident.

Further, Chung Partners asserted that the circuit 

court did not err in awarding it costs. Because the court 

granted summary judgment against Plaintiffs, Chung Partners 

argued that the claim that Plaintiffs were deprived the right to 

have a jury determine its liability was inapplicable because it 

was entitled to judgment as a matter of law.

3. ICA’s Memorandum Opinion

The ICA held that the circuit court did not err in 

granting summary judgment. The ICA noted that in bringing their 

public nuisance claim, Plaintiffs sought monetary damages rather 

than equitable or injunctive relief. Although no party had

raised this argument, the ICA determined from a review of the 

case law that this court recognizes that only declaratory and 

injunctive relief – but not monetary damages – can be recovered 

for public nuisance claims not founded on a statutory duty.14

The ICA took the position that in Littleton, liability was 

predicated upon a statutory duty to prevent a public nuisance. 

 

14 The ICA cited several cases as examples, including Akau v. Olohana 

Corp., 65 Haw. 383, 652 P.2d 1130 (1982) (holding plaintiffs only had 

standing for public nuisance claims seeking declaratory and injunctive 

relief), and Ideta v. Kuba, 22 Haw. 28 (Haw. Terr. 1914) (holding unlawful 

obstruction of a public road or highway also constitutes a public nuisance 

for which a claim for injunction can be brought).
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And, in Fujiwara, which Plaintiffs also relied on, the court 

considered whether defendants maintained a public nuisance that 

violated a criminal statute. Accordingly, the ICA disagreed 

with Plaintiffs’ interpretation of these cases and found that 

summary judgment was appropriate. 

With respect to costs, the ICA determined that 

awarding costs to Chung Partners, the prevailing party, was 

proper under HRCP Rule 54. Despite this, the ICA concluded that 

Chung Partners’ settlement offer was not a valid Rule 68 offer 

because it excluded “costs then accrued.” Therefore, the ICA 

held that the circuit court erred in granting Chung Partners’ 

Motion for Costs under HRCP Rule 68, and it remanded the case to 

the circuit court to determine the appropriate amount of costs 

to award Chung Partners under HRCP Rule 54(d).

C. Application for Writ of Certiorari

On certiorari, Plaintiffs argue that the ICA gravely 

erred in affirming the circuit court’s rulings granting summary 

judgment on the theory that a plaintiff can only recover damages 

for public nuisance where the defendant has violated a statutory 

duty. As a result, Plaintiffs also contend that the ICA erred 

by affirming the award of costs to Chung Partners under HRCP 

Rule 54(d).
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III. STANDARD OF REVIEW

On appeal, the grant or denial of summary judgment is 

reviewed de novo. State ex rel. Anzai v. City and Cnty. of 

Honolulu, 99 Hawai‘i 508, 515, 57 P.3d 533, 440 (2002).

[S]ummary judgment is appropriate if the pleadings, 

depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled 

to judgment as a matter of law.

Kahale v. City and Cnty. of Honolulu, 104 Hawai‘i 341, 344, 90 

P.3d 233, 236 (2004) (citation omitted).

IV. DISCUSSION

The ICA erred in holding that a plaintiff can only 

recover damages for public nuisance where the defendant has 

violated a statutory duty. Because there are genuine issues of 

material fact as to whether Plaintiffs’ claims were viable, 

summary judgment was improper. Accordingly, Chung Partners’ 

Motion for Costs also should have been denied.

A. The ICA Erred by Concluding That Damages Were Not 

Recoverable for Public Nuisance Actions Absent a Statutory 

Duty

In Littleton, the court wrote:

A nuisance has been variously defined to mean that 

which unlawfully annoys or does damage to another, 

anything that works hurt, inconvenience, or damage, 

anything which annoys or disturbs one in the free 

use, possession, or enjoyment of his [or her] 

property or which renders its ordinary use or 

physical occupation uncomfortable, and anything 

wrongfully done or permitted which injures or annoys 

another in the enjoyment of his [or her] legal 
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rights.

. . .

A nuisance, to be a public nuisance, must be in a 

public place, or where the public frequently 

congregate, or where members of the public are likely 

to come within the range of its influence[.]

66 Haw. at 67, 656 P.2d at 1344 (citing 58 Am. Jur. 2d Nuisances

§ 1 at 555 (1971); City of Burlington v. Stockwell, 47 P. 988, 

989-90 (Kan. App. 1897)).

In the instant case, the ICA held that equitable 

relief is a plaintiff’s only remedy in public nuisance actions 

in the absence of a statutory duty to refrain from conduct 

creating or maintaining a public nuisance. On certiorari, 

Plaintiffs challenge this holding, asserting that it improperly 

interprets Littleton, 66 Haw. at 69, 656 P.2d at 1339. We agree 

with Plaintiffs that a different conclusion is warranted.

In Littleton, the court addressed whether the City and 

County of Honolulu could be liable for damages to a plaintiff 

who had been injured on the beach by a washed-up log when the 

City failed to fulfill its statutory mandate under HRS § 46-12 

to remove debris that could constitute a “public nuisance.” Id.

at 66, 656 P.2d at 1344. After examining HRS § 46-12’s 

legislative history, which characterized O‘ahu’s beaches and 

shores as “valuable assets” that needed “regular maintenance[,] 

vital to the tourist industry [and] recreation[,]” we explained: 
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We think . . . that the City has the sole 

responsibility to remove and clear all seaweed, limu, 

and debris “which is likely to create an unsanitary 

condition or to otherwise become a public nuisance” 

from those shores and beaches around Oahu which are 

likely to be used with some frequency by . . . the 

public. So that if the City fails to perform this 

statutory duty and permits a condition to exist 

which, of itself, creates an unreasonable risk of 

harm, then the City may be held liable for any 

resulting injury. Its liability would be predicated 

upon the breach of a statutory duty which leads to 

harm. 

Id. at 66-67, 656 P.2d at 1344 (emphasis added) (citation 

omitted). 

It was from this passage that the ICA derived its rule 

that, absent such a statutory duty, a plaintiff could obtain 

only equitable relief in a public nuisance action.

A closer look at Littleton, however, as well as other 

cases from our jurisdiction, does not support such a narrow 

rule. As the ICA observed, this court has generally awarded 

injunctive and declaratory relief, rather than damages, in 

public nuisance actions. See Akau, 65 Haw. 383, 652 P.2d 1130 

(1982) (holding that plaintiffs had standing to assert a public 

nuisance claim and seek injunctive or declaratory relief); 

Ideta, 22 Haw. 28 (holding that an unlawful obstruction of a 

public road was a public nuisance from which a suit for 

injunction could be brought); Cluney v. Lee Wai, 10 Haw. 319 

(Haw. Rep. 1896) (holding that plaintiffs were entitled to 

injunctive relief from nuisance of loud instruments during the 
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nighttime); City and Cnty. of Honolulu v. Cavness, 45 Haw. 232, 

233, 364 P.2d, 646, 648 (1961) (holding that abatement by 

demolition of building that constituted a public nuisance was 

appropriate remedy).

However, none of these cases, including Littleton, 

expressly rejected a claim for damages in the absence of a 

statutory duty. To the contrary, several cases from our 

jurisdiction suggest that damages are available even absent the 

breach of a statutory duty. 

In Choy Too v. Kaiwiki Sugar Co., 32 Haw. 611 (1933), 

the Supreme Court of the Territory of Hawai‘i held that in a 

wrongful death action, a complaint alleging both negligence and 

nuisance could proceed as one cause of action for damages. Id. 

In that case, the wife of the decedent, on behalf of their 

children, sued Kaiwiki Sugar Company and alleged that the 

decedent was killed: “(1) [by] the negligent and wrongful act of 

the said defendant and (2) by the said defendant maintaining a 

public nuisance.” Id. at 612. The court explained:

We think the complaint only alleges one cause of 

action which, in separate counts, is presented in two 

different aspects. . . . Only one right is sought to 

be enforced and that is the right of the plaintiffs 

to recover damages for the wrongful or negligent 

death of their father. . . . The case presents the 

familiar rule that in actions ex delicto, such as 

this, the plaintiff does not state two or more causes 

of action but only one, when, in different counts, he 

bases his right to recover on different grounds, so 

long as these grounds are not inconsistent with each 
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other and relate to the vindication of one primary 

right. 

Id. at 625 (Emphasis added). In other words, the territorial 

court recognized that a plaintiff could recover damages in a 

public nuisance action. Id.

Damages for nuisance claims were also permitted in 

Fernandez v. People’s Ice and Refrigerating Co., 5 Haw. 532, 533 

(1886), and Whitesell v. Houlton, 2 Haw. App. 365, 366, 632 P.2d 

1077, 1078 (1981). In Fernandez, the Supreme Court of the 

Kingdom of Hawai‘i awarded damages to the plaintiff when soot and 

smoke from the furnace of an ice factory caused specific harm to 

the plaintiff and his property, finding that necessity of 

providing ice to the public was not a defense to the claim. 5 

Haw. at 535. And in Whitesell, the ICA determined that a 

defendant whose banyan tree encroached onto a neighboring 

property could be liable for damages from the tree’s falling 

branches. 2 Haw. App. at 365-66 (although “non-noxious plants 

ordinarily are not nuisances,” in cases where overhanging 

branches or roots cause harm to other property, “the damaged or 

imminently endangered neighbor may require the owner of the tree 

to pay for the damages[.]”).

Chung Partners argues that Fernandez and Whitesell are 

inapplicable because those cases concerned private, rather than 
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public, nuisances. Chung Partners’ argument lacks merit. 

First, the text of the cases does not limit their applicability 

to either “public” or “private” nuisances. In fact, neither 

case specifies to which category the nuisance belonged. And 

this court and others have recognized that nuisances can 

properly be classified as both. See Fujiwara, 33 Haw. at 429-30 

(“Nuisances are classified into public nuisances and private 

nuisances, or sometimes as both public and private. The latter 

are sometimes called mixed nuisances, or . . . those which are 

public and which at the same time cause special damages to 

private individuals.”); Prins v. Schreyer, 406 A.2d 439, 442 

(Md. Ct. Spec. App. 1979) (explaining that public nuisances 

could be classified as (1) per se or statutory nuisances; (2) 

nuisances that prejudice public health or comfort; and (3) 

nuisances “which in their nature are not nuisances, but may 

become so by reason of their locality, surroundings, or the 

manner in which they may be maintained”) (citing Burley v. City 

of Annapolis, 34 A.2d 603 (Md. 1943)). 

Thus, our case law does not require a statutory breach 

in order for a plaintiff to assert a claim for damages. 

Littleton provides an example of when a statute would give rise 

to a damages remedy, but does not limit damages to statutory 

violations. Furthermore, although this court has provided 
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injunctive relief in public nuisance cases, we have not 

explicitly rejected a damages remedy.

In order to clarify our public nuisance law, 

Plaintiffs ask this court to adopt Restatement § 821C,15 which 

allows an individual to sue for damages under a public nuisance 

theory if they have suffered a harm different than that of the 

public.16 Under the Restatement, “when the public nuisance 

causes personal injury to the plaintiff or physical harm to his 

land or chattels, the harm is normally different in kind from 

that suffered by other members of the public.” Restatement 

(Second) of Torts § 821C, cmt. d (Am. Law Inst. 1979). The 

Restatement rule would therefore allow Plaintiffs in this case 

 

15 Restatement § 821C (Who Can Recover for Public Nuisance) provides:

(1) In order to recover damages in an individual 

action for a public nuisance, one must have suffered 

harm of a kind different from that suffered by other 

members of the public exercising the right common to 

the general public that was the subject of 

interference. 

(2) In order to maintain a proceeding to enjoin to 

abate a public nuisance, one must: (a) have the right 

to recover damages, as indicated in Subsection (1), 

or (b) have authority as a public official or public 

agency to represent the state or a political 

subdivision in the matter, or (c) have standing to 

sue as a representative of the general public, as a 

citizen in a citizen’s action or as a member of a 

class in a class action. 

16 In Akau, we cited to Restatement § 821C(2) with respect to standing to 

note the “trend in the law . . . away from focusing on whether the injury is 

shared by the public, to whether the plaintiff was in fact injured.” See 65 

Haw. at 386 n.3. However, we did not specifically adopt Restatement § 821C 

through that opinion. 
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to sue for damages since they are alleging a personal injury. 

A number of jurisdictions have adopted a rule 

consistent with Restatement § 821C. See, e.g., Birke v. Oakwood 

Worldwide, 169 Cal. App. 4th 1540, 1550 (2009); Gilmore v. 

Stanmar, Inc., 633 N.E.2d 985, 993 (Ill. App. 3d 1994); T&L 

Redemption Center Corp. v. Phoenix Beverages, Inc., 561 N.Y.S.2d 

619, 621 (1990) (“It is [] clear [] that one who suffers damage 

or injury, beyond that of the general inconvenience to the 

public at large, may recover for such nuisance in 

damages . . . . This is old law.”); Johnson v. Bryco Arms, 304 

F. Supp. 2d 383, 391 (E.D.N.Y. 2004). Such a rule is sensible:

There are numerous differences between an action for 

tort damages and an action for an injunction or 

abatement, and precedents for the two are by no means 

interchangeable. In determining whether to award 

damages, the court’s task is to decide whether it is 

unreasonable to engage in the conduct without paying 

for the harm done. Although a general activity may 

have great utility, it may still be unreasonable to 

inflict the harm without compensating for it. In an 

action for injunction, the question is whether the 

activity itself is so unreasonable that it must be 

stopped. It may be reasonable to continue an 

important activity if payment is made for the harm it 

is causing but unreasonable to continue it without 

paying. 

On the other hand, an award of damages is 

retroactive, applying to past conduct, while an 

injunction applies only to the future. In addition, 

for damages to be awarded, significant harm must have 

been actually incurred while for an injunction harm 

need only be threatened and need not actually have 

been sustained at all. (See [Restatement] § 821F, 

comment b). To maintain a damage action for a public 

nuisance, one must have suffered damage different in 

kind from that suffered by the general public; this 

is not necessarily true in a suit for abatement or 

injunction. (See [Restatement] § 821C). 
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7 Am. Law of Torts § 20:5, Public Nuisance (2019) (emphases 

added) (citing Restatement § 821B, cmt. i (Am. Law Inst. 1979)).

Restatement § 821C is consistent with our existing 

case law and logically sound. We thus adopt the rule as stated 

therein as Hawai‘i law. The purpose of damages in public 

nuisance actions is to compensate plaintiffs who have suffered 

special harm from past nuisance conduct. Abatement of a present 

harm constituting a nuisance would not have the same effect of 

compensating a harmed person for their past injuries. In this 

case, resolving all disputed facts in Plaintiffs’ favor, 

Plaintiffs meet the test set forth in § 821C. Thus, the ICA 

erred by affirming summary judgment for Defendants.

Under Hawai‘i law, “[w]hether the act or thing [alleged 

to create a nuisance] is really so hurtful or prejudicial to 

others as to render it a common nuisance, is a question of fact 

to be determined by the jury, court or magistrate called to pass 

upon the same.” Fujiwara, 33 Haw. at 430; see also Littleton, 

66 Haw. at 67. 

In this case, the circuit court’s minute order 

provided no explanation for why it granted Defendants’ motions 

for summary judgment. Defendants sought summary judgment on 

several bases, including that there was no nuisance and that 
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there was no duty owed to Shadley. However, viewing “the 

evidence and the inferences drawn therefrom in the light most 

favorable” to Plaintiffs as the non-moving party, genuine issues 

of material fact exist with respect to whether Defendants 

created or maintained a nuisance and whether Chung Partners was 

liable to Plaintiffs as lessor of Allied. We thus vacate the 

circuit court’s judgment in favor of Defendants and the ICA’s 

judgment affirming the circuit court.

By vacating the grant of summary judgment, we do not 

determine that allowing homeless individuals to reside on 

private property necessarily creates a public nuisance. The 

jury is best situated to determine whether the facts of this 

particular case, including the commercial nature of the alleged 

transaction between homeless individuals and Defendants and the 

fact that the incident took place in an industrial area.17

 

17 At oral argument on Defendants’ motions for summary judgment, 

Plaintiffs’ counsel made fact-specific arguments as to the alleged nuisance 

present here:

I think if you’re a commercial business and you’re 

operating illegally and providing a base for people 

to be in an area at [] night where they’re not 

supposed to be . . . the question is is it a public 

nuisance? Suppose you had a camp that was very well 

regulated. . . . You had [] a security guard there 

who watched everyone and you were really trying to 

help these people. I don’t think that would be a 

nuisance because you would have it under some 

control.”
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B. Because Chung Partners Was Not the Prevailing Party, It Was 

Not Entitled to Costs Under HRCP Rules 54(d) or 68

The circuit court erred in entering judgment in 

Defendants’ favor. Thus, the order awarding Chung Partners its 

costs pursuant to HRCP Rules 54(d) or 68 was also incorrect. We 

vacate the circuit court’s and ICA’s judgments accordingly. 

Further, we decline to address Plaintiffs’ argument as to the 

constitutionality of HRCP Rule 68 because the issue is moot. 

V. CONCLUSION

For the foregoing reasons, we vacate the circuit 

court’s August 5, 2016 and August 18, 2016 final judgments and 

the ICA’s May 16, 2019 judgment on appeal affirming in part. We 

further vacate in full the circuit court’s July 2, 2016 amended 

judgment awarding costs to Chung, and remand for proceedings 

consistent with this opinion.

James J. Bickerton and /s/ Mark E. Recktenwald

Bridget G. Morgan-Bickerton

(Nathan P. Roehrig with /s/ Paula A. Nakayama

them on the briefs)

for petitioners /s/ Sabrina S. McKenna

Gregory K. Markham /s/ Richard W. Pollack

(Keith K. Kato and 

Kristen K. Souza with him /s/ Michael D. Wilson

on the briefs)

for respondent Chung Partners