Date: Aug 7, 2026

Intentional Tort Damages Are Not Reduced by Comparative Negligence in Hawaiʻi (Overruling Ozaki I)

1. Introduction

In Ricapor-Hall v. Philip Morris USA Inc. (Haw. Aug. 6, 2026), the Hawaiʻi Supreme Court reviewed a tobacco-fraud verdict arising from plaintiff Ramona Ricapor-Hall’s sixty-six years of smoking and subsequent lung cancer. A jury found Philip Morris liable for negligence, strict products liability, and two intentional tort theories: conspiracy to commit fraudulent concealment and conspiracy to commit fraudulent misrepresentation. It awarded $6 million in general damages and $8 million in punitive damages, while also allocating 46% fault to Ricapor-Hall.

The central cross-appeal issue was remedial: whether Ricapor-Hall’s comparative negligence could reduce compensatory damages where the defendant was also liable for intentional torts. Philip Morris’s appeal additionally raised trial-management issues (alternate juror recall/substitution; investigation of possible juror exposure to extraneous information), jury-instruction disputes (preexisting-condition apportionment and “unavoidably unsafe product” under Restatement (Second) of Torts § 402A comment k), and whether punitive damages were barred by the Master Settlement Agreement (MSA) or by claim preclusion.

2. Summary of the Opinion

New rule/clarification: A plaintiff’s negligence does not reduce damages for an intentional tort. The court grounded this in longstanding Hawaiʻi fraud precedent (Cummins v. Cummins) and held this principle applies broadly to intentional torts. In doing so, it overruled Ozaki v. Assʼn of Apartment Owners of Discovery Bay (Ozaki I).
Judgment remedy: The court vacated the portion of the final judgment reducing general damages by 46% and remanded for entry of an amended judgment awarding the full $6,000,000 in general damages, subject to settlement credits; it otherwise affirmed.
Alternate jurors: HRCP Rule 47(b) “discharge” does not require permanent severance; recalling and substituting alternates mid-deliberation was permissible and, in any event, harmless under HRCP Rule 61.
Juror 30 investigation: Philip Morris failed to make the prima facie showing required by State v. Chin to trigger any duty to investigate; even assuming a duty, the court’s individual voir dire was adequate and any misconduct harmless.
Instructions: No error in refusing (a) a preexisting-injury apportionment instruction given the damages limitation to lung cancer and lack of apportionment proof, and (b) a comment k “unavoidably unsafe product” instruction because cigarettes are not within comment k and the defense is affirmative.
Punitive damages: The MSA did not release Ricapor-Hall’s individual punitive-damages claim; claim preclusion failed (non-identical claims; no privity).

3. Analysis

3.1. Precedents Cited

A. Comparative negligence and intentional tort damages (the core holding)

Cummins v. Cummins (Haw. Terr. 1917): The cornerstone. The court reaffirmed Cummins’s rule that a fraudulent actor “cannot escape the effects of his fault” by blaming the victim’s negligence; the law protects even the “foolishly credulous” against the “designedly wicked.” The Ricapor-Hall court treated this as controlling Hawaiʻi common law that bars not only complete defenses but also partial damages reductions when the tort is intentional.
Matsuura v. E.I. du Pont de Nemours & Co. (2003): Cited to show Cummins remains relevant in modern Hawaiʻi fraud jurisprudence.
Ozaki v. Ass'n of Apartment Owners of Discovery Bay (Ozaki II) (1998): Used to interpret HRS § 663-31 as applying by its terms only to actions “for negligence,” and to distinguish policy rationales between negligence and strict products liability. But the court rejected extending Ozaki’s comparative analysis to intentional tort damages.
Ozaki v. Ass'n of Apartment Owners of Discovery Bay (Ozaki I) (App. 1998): Expressly overruled because it allowed a comparative-fault reduction even where the defendant committed an intentional killing—an outcome the court said Cummins forbids.
Comparative-fault/non-apportionment authorities supporting the rule: McLain v. Training & Dev. Corp., Heiner v. Kmart Corp., R.J. Reynolds Tobacco Co. v. Gerald, and the ALR synthesis (A.L. Schwartz, Applicability of Comparative Negligence Principles to Intentional Torts).
Split-jurisdiction discussion: Schoeff v. R.J. Reynolds Tobacco Co. (aligned with Hawaiʻi), Blazovic v. Andrich (distinguished due to materially different statute and multi-party allocation posture).

B. Strict products liability and comparative negligence (distinguished, not extended)

Hao v. Owens-Illinois, Inc., Kaneko v. Hilo Coast Processing, Armstrong v. Cione: The “Kaneko line” applying pure comparative negligence to strict products liability. The court explained why those doctrinal/policy reasons do not “flow naturally” to intentional torts.
Supporting strict-liability background: Stewart v. Budget Rent-A-Car Corp., and reference to Daly v. Gen. Motors Corp. (quoted in Kaneko).

C. HRCP Rule 47(b) alternate-juror recall/substitution; harmless error

Malahoff v. Saito (“shall” mandatory) and interpretive methodology cases Gap v. Puna Geothermal Venture and Rodriguez v. Mauna Kea Resort LLC supported the court’s textual approach to “discharge.”
United States v. Evans and Cork v. State: Persuasive authority interpreting identical rule text to permit recalling alternates even after “discharge.”
Struzik v. City & Cnty. of Honolulu: HRCP are liberally construed to promote justice.
Harmless-error framework: Bank of Hawaii v. Shinn (faulty rulings subject to harmless error), HRCP Rule 61 (broad), and State v. Wideman (harmless-error analysis in analogous juror-substitution context; emphasized “begin deliberations anew” instruction).
Presumption juries follow instructions: Myers v. South Seas Corp.; the court also rejected reliance on the dissent in State v. Baldado.

D. Juror misconduct/extraneous information investigation

The court imported a criminal-law framework into civil trials, relying on: State v. Grewer (wide latitude), State v. Chin (prima facie showing; duty to investigate; individual examination), State v. Gabalis and State v. Kim (heightened burden for deliberation-room statements: must show improper comments were “used as a circumstance against” the movant).
On evidentiary sufficiency at the prima facie stage: State v. Amorin, State v. Okumura, State v. Blanding.
On not inferring a prejudice finding merely because the court investigated: State v. Keohokapu.
On the adequacy of limited questioning and reliance on jurors’ self-assessment before verdict: State v. Gouveia.
Distinguishing more demanding inquiry settings: State v. Pokini (extensive prejudicial publicity), Gov't of the Virgin Islands v. Dowling (known content: prior conviction).
Waiver/record-development principle: Leyson v. Steuermann (party cannot refuse participation and later complain about gaps).

E. Jury instruction standards; preexisting condition apportionment

Instruction entitlement standard: Medeiros v. Choy (accurate law, applicable issue, not duplicative).
Presumption jury follows damages-limiting instruction: Kato v. Funari (no speculation that jury awarded for excluded conditions).
Apportionment and proof: Loui v. Oakley (apportionment burden point), Montalvo v. Lapez (medical testimony especially appropriate for apportionment).

F. Comment k (“unavoidably unsafe products”) and product categories

Larsen v. Pacesetter Sys., Inc.: Comment k rejected even for a pacemaker; used to underscore how far cigarettes are from the doctrine’s medical-benefit rationale.
Persuasive authorities on comment k’s typical scope: Pollard v. Ashby, Tansy v. Dacomed Corp., and Guilbeault v. R.J. Reynolds Tobacco Co. (comment k not relevant to cigarettes).
Comment k as affirmative defense: Burningham v. Wright Med. Tech., Inc., Tansy v. Dacomed Corp..

G. MSA, punitive damages, settlement-as-contract, and claim preclusion

Settlement agreements define preclusion by contract: Exotics Hawaii-Kona, Inc. v. E.I. du Pont de Nemours & Co., Hite v. Queen's Hosp., Wong v. Cayetano.
MSA interpreted consistently with other states: Laramie v. Philip Morris USA, Inc., Williams v. R.J. Reynolds Tobacco Co..
Claim preclusion elements: Priceline.com, Inc. v. Dir. of Tax'n; accrual-after-filing exception: Wong v. Cayetano (as quoted/applied).
Distinct public/private punitive-damages claims: In re Exxon Valdez, Engle v. Liggett Grp., Inc..
Hawaiʻi punitive damages not “exclusively public”: Guieb v. Guieb, Howell v. Associated Hotels, Ltd., Masaki v. Gen. Motors Corp..
Distinguishing out-of-state rules limiting multiple punitive awards: Brown & Williamson Tobacco Corp. v. Gault, Fabiano v. Philip Morris Inc..
Private attorney general doctrine confined to fee shifting: In re Water Use Permit Applications.

H. Mitigation (avoidable consequences) and timing

Mitigation doctrine scope: Gibo v. City & Cnty. of Honolulu, Montalvo v. Lapez, Malani v. Clapp.

3.2. Legal Reasoning

A. The new comparative-fault rule for intentional torts

The court’s reasoning proceeds in layers:

Statutory boundary: HRS § 663-31 applies by its terms only to actions “for negligence,” so it cannot be used to reduce damages on intentional tort theories (here, conspiracy to commit fraudulent misrepresentation and concealment). The court emphasized that the special verdict awarded a single, undifferentiated general-damages sum, making it impossible to apply HRS § 663-31 to negligence alone without improperly reducing damages on the intentional torts.
Common-law rule preserved: Because the Legislature did not expressly abrogate the common law as to intentional torts, the court applied the longstanding Hawaiʻi rule from Cummins v. Cummins: intentional fraud cannot be offset by the victim’s negligence. The court read Cummins broadly to bar any “benefit” to the intentional tortfeasor from victim carelessness, including partial damages reductions.
Concept and policy: Intent and negligence are different “in kind,” not merely in degree; allowing reduction would create perverse incentives to target careless victims and would dilute deterrence and punishment of deliberate wrongdoing.
Doctrinal containment: The court refused to extrapolate from the “Kaneko line” (pure comparative negligence in strict products liability) because strict liability is fault-independent and historically interacted anomalously with assumption of risk—concerns not present with intentional torts.
Institutional correction: The court overruled Ozaki I as inconsistent with Cummins.

B. HRCP Rule 47(b) recall of alternates and harmless error

The court adopted a textual interpretation of “discharged” under HRCP Rule 47(b): the rule mandates discharge after deliberations begin, but does not define discharge as permanent. Dictionary meanings and persuasive authority (United States v. Evans) supported recall. The court then reinforced that even if the substitutions “skirted” the rule, HRCP Rule 61 requires harmless-error review; detailed “begin deliberations all over” instructions and the absence of deadlock supported harmlessness under State v. Wideman and the presumption in Myers v. South Seas Corp..

C. Juror 30: threshold burden, adequacy of inquiry, and harmlessness

Applying State v. Chin, the court held Philip Morris failed to produce “specific, substantial evidence” that extraneous information actually reached other jurors or was used “as a circumstance against” it (State v. Gabalis; State v. Kim). The court also stressed Philip Morris repeatedly declined opportunities to propose questions or examine jurors (Leyson v. Steuermann). Even if a prima facie showing existed, the trial court’s individual questioning matched Chin’s prescribed method and avoided contaminating jurors with details. Finally, any misconduct was harmless because the jury already heard evidence about attorney-general litigation, settlement-driven document disclosure, marketing restrictions, and Philip Morris’s financial scale; thus any mention of the MSA label could not have affected the verdict (Lopez v. Sears Roebuck & Co.).

D. Punitive damages: MSA and claim preclusion

Treating the MSA as a contract (Exotics Hawaii-Kona, Inc. v. E.I. du Pont de Nemours & Co.), the court held its release applies only to claims seeking relief “on behalf of” or generally applicable to the public, not “solely” individual relief. Because Ricapor-Hall sought damages (including punitive) tied to conduct causing her own injury—and the jury was instructed not to punish harms to others—the MSA did not bar her punitive award, consistent with Laramie v. Philip Morris USA, Inc. and Williams v. R.J. Reynolds Tobacco Co.. Claim preclusion also failed because Ricapor-Hall’s lung-cancer claim accrued decades after the Attorney General suit, and because the State was not in privity with an individual smoker seeking personal-injury relief (Priceline.com, Inc. v. Dir. of Tax'n; Wong v. Cayetano).

3.3. Impact

Major remedial shift in mixed-theory cases: When a plaintiff proves an intentional tort covering the same injury and the factfinder returns an undifferentiated compensatory award, Hawaiʻi courts may not reduce that award based on the plaintiff’s comparative negligence. This materially affects litigation strategy (verdict forms, special interrogatories) and settlement valuation in fraud, intentional misrepresentation, conversion, intentional infliction of emotional distress, and other intentional tort cases.
Express overruling of Ozaki I: The court removes intermediate appellate precedent that had allowed comparative reductions against intentional tortfeasors, clarifying statewide uniformity and constraining defendants’ ability to seek “victim fault” offsets in intentional-tort damages.
Jury management in lengthy civil trials: The HRCP Rule 47(b) interpretation endorses a practical mechanism—carefully conditioned recall of alternates plus “start over” instructions—to avoid mistrials in long, resource-intensive cases.
MSA not a punitive-damages shield for individual cases: The decision reinforces that state tobacco settlements do not categorically immunize manufacturers from punitive damages in private personal-injury actions, provided punishment is tethered to the plaintiff’s injuries.

4. Complex Concepts Simplified

Comparative negligence (HRS § 663-31) vs. pure comparative negligence: HRS § 663-31 is a modified comparative negligence statute for actions “for negligence” (recovery barred if the plaintiff’s negligence is greater than defendants’). “Pure” comparative negligence (applied in Hawaiʻi strict products liability via Hao v. Owens-Illinois, Inc.) reduces damages by the plaintiff’s share even if that share exceeds 50%. This case holds neither framework reduces damages for intentional torts.
Intentional tort: A wrong where the defendant intends the act and intends the injury (the court cited Aloha Petroleum, Ltd. v. Nat'l Union Fire Ins. Co. of Pittsburgh). The court held intentional torts are treated differently from negligence for apportionment purposes.
Civil conspiracy to commit fraud: Not a standalone “accident” theory; it is an intentional tort vehicle tying defendants to an agreement to commit fraudulent concealment/misrepresentation that induces reliance and causes harm.
Comment k (“unavoidably unsafe products”): A Restatement doctrine typically applied to products like vaccines or certain medical devices: products with substantial social/medical benefit that cannot be made fully safe. The court held cigarettes do not qualify and noted comment k is an affirmative defense.
MSA (Master Settlement Agreement) release scope: The MSA releases claims brought in sovereign or public-representative capacities for relief on behalf of the general public. It does not release private personal-injury claims seeking individual relief for “separate and distinct injuries.”
Claim preclusion (res judicata) and privity: Claim preclusion requires identical claims, a final judgment, and the same parties or parties in “privity.” The court held the State’s public-cost suit was not the same claim as an individual smoker’s later-accruing cancer claim, and the Attorney General was not in privity with the individual for these purposes.
Harmless error: Even if a trial court errs, a new trial is not warranted unless the error is inconsistent with substantial justice (HRCP Rule 61). Here, detailed “start-over” deliberation instructions made any potential substitution error harmless.

5. Conclusion

Ricapor-Hall v. Philip Morris USA Inc. establishes a clear Hawaiʻi rule with broad consequences: comparative negligence does not reduce compensatory damages for intentional torts. By anchoring the holding in Cummins v. Cummins and overruling Ozaki I, the court reaffirmed that intentional wrongdoers may not profit from victim carelessness. The decision also provides pragmatic guidance on alternate juror recall under HRCP Rule 47(b), sets a demanding threshold for juror-misconduct relief under the Chin framework in civil cases, rejects comment k for cigarettes, and confirms the MSA does not bar individual punitive damages tethered to the plaintiff’s own injuries. The net effect is to strengthen remedies and deterrence where the defendant’s misconduct is deliberate, while preserving trial-court flexibility to manage lengthy civil trials without unnecessary mistrials.