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Exhaust Duct Tragedy|May Leave Mall Liable

(CN) - The family of a pregnant woman who died after climbing into a mall's exhaust duct can try to prove in court that employees did not respond appropriately, the Hawaii Supreme Court ruled.

One day in September 2005, maintenance worker Cary Oshiro went to the rooftop of the Ala Moana Center to see why the exhaust fan stopped working at the Poi Bowl resturant in the mall's food court. The smoke alarm had also gone off at the Little Cafe Siam, next to the Poi Bowl.

When Oshiro reached the rooftop, he found 22-year-old Jasmine Rose Anne Fry, who was barefoot and smeared with grease.

Fry told Oshiro that "a guy named Joe" had hired her to clean grease from the exhaust fan - a statement Oshiro found unusual since such work was usually not performed during business hours.

When Oshiro called security to verify the story, Fry started jumping up and down on the exhaust duct, eventually creating a sizable hole by the time another mechanic arrived on the roof.

She told Oshiro there was a baby in the duct and then squeezed into the opening in the duct she had created.

Security officer Jowana Lobendahn arrived and began communicating with Fry, who said she was not hurt.

Back in the food court, employees of the Little Cafe Siam reported that the exhaust duct was moving. Oshiro unscrewed the access panel and found Fry trapped in the stove hood on the other side of a narrow metal bar.

Lobendahn arrived and told the employees to turn off the stoves and move the cooking items out of the way. Another security officer later testified that the Poi Bowl stoves were also still being used.

Lobendahn held Fry's hand and asked why she was there. Fry said her name was Dallas, she was from Kona and that she had a miscarriage and was on the rooftop because she wanted to be free. She said she was sorry, she did not want to die, and pleaded to be rescued.

The Honolulu Fire Department arrived and removed Fry one hour and 43 minutes later. Fry immediately became unresponsive and was taken to the hospital, where she died 40 minutes later.

The autopsy showed that the cause of death was hyperthermia and respiratory compromise. She had been six to eight weeks pregnant.

Fry's parents, Samuel Fry Jr. and Heather Winfrey, sued Ala Moana for wrongful death, negligence and emotional distress. Ala Moana argued that it owed no duty to Fry because she was a trespasser and that her entry into the exhaust duct could not have been foreseen.

The trial court ruled in Ala Moana's favor, and the Intermediate Court of Appeals upheld the decision.

That streak ended this summer when the Hawaii Supreme Court revived the negligence claim.

"The admissible evidence in the record creates genuine issues of material fact as to whether Ala Moana exercised reasonable care to turn off the stoves to prevent harm to Fry while she was trapped inside the duct, and whether the failure to do so was a substantial factor in causing her injuries and/or death," Justice Sabrina McKenna wrote for the court.

"Although Fry was found in a restricted area of the center, Ala Moana was not absolved from its duty of aid if Fry entered the center in response to Ala Moana's invitation to the public and subsequently became injured or ill on the property," McKenna added.

The court did affirm judgment for the mall's on the premises liability claim, however, stating that Fry's presence on the roof could not have been anticipated.

"Even if Ala Moana could have reasonably anticipated Fry's entry into the rooftop area, it could not have 'reasonably' anticipated Fry's entry into the exhaust duct," McKenna wrote.

Justice Simeon Acoba Jr. dissented as to this issue, stating that the premises liability claim should also have been decided in Winfrey's favor based on the mall's duty under Pickard v. City and County of Honolulu (1969).

"The majority contends that Pickard does not apply because Ala Moana could not have reasonably anticipated Fry's presence in the ventilation duct," Acoba wrote. "However, as explained supra, the duty of reasonable care under Pickard also applies once it was known to Ala Moana that Fry was present in the ventilation duct."

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