Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AND DEFENDANTS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT ALAN C. KAY, Senior District Judge. PROCEDURAL HISTORY On June 8, 2007, Plaintiffs, Mark Mullaney (“Mr. Mullaney”) and Lynette Mullaney (“Mrs. Mullaney”), husband and wife, filed a complaint (“Complaint”) against Defendants, Hilton Hotels Corporation d/b/a Hilton Waikoloa Village (“Hilton” or “Hil.”) and ATTCO, Incorporated (“ATT-CO” “ATT.”). The gist of this action is that, while attending an expo at a hotel, Mr. Mullaney was seriously injured when a large registration booth fell on him. The hotel was owned and operated by Hilton, and the booth was provided and assembled by ATTCO. Plaintiffs advance seven counts in the Complaint, specifically alleging claims of negligence (count I), strict products liability (count II), breach of warranty (count III), failure to take precautions and to warn (count IV), premises liability (count V), gross negligence (count VI), and punitive damages (count VII). Compl. ¶¶ 11-31. In addition, Mrs. Mullaney asserts claims of emotional distress and loss of consortium. Id. ¶ 36. Presently before the Court are a total of six motions for partial summary judgment that were filed on March 11, 2009. The parties thereafter filed responses and replies pertaining to the motions. Two of the motions were filed by Defendants and the other four were filed by Plaintiffs. First, Hilton filed a motion for summary judgment as to counts II, III, IV, VI, and VII (“HiL’s Mot.”), along with a memorandum in support (“Hil.’s Mem.”) and a separate and concise statement of facts (“SCSF”). Plaintiffs filed a memorandum in opposition to the motion (“Pis.’ Opp’n to Hil.’s Mot.”) and a separate and concise statement of facts. Hilton filed a reply in support of its motion (“Hil.’s Reply”) along with a separate and concise statement of facts. Second, like Hilton, ATTCO filed a motion for summary judgment as to counts II, III, IV, VI, and VII (“ATT.’s Mot.”), accompanied by a memorandum in support (“ATT.’s Mem.”) and a separate and concise statement of facts. Plaintiffs filed a memorandum in opposition to the motion (“Pis.’ Opp’n to ATT.’s Mot.”) along with a separate and concise statement of facts. ATTCO filed a reply to Plaintiffs’ opposition (“ATT.’s Reply”) accompanied by a separate and concise statement of facts. Third, Plaintiffs filed a motion for summary judgment against ATTCO with respect to counts I, II, and III (“Pis.’ ATT. Mot.”), as well as a memorandum in support (“Pls.’ ATT. Mem.”) and a separate and concise statement of facts. ATTCO filed a memorandum in opposition to the motion (“ATT.’s Opp’n to Pls.’ ATT. Mot.”) and a separate and concise statement of facts. Hilton filed a statement of no position as to the motion. Plaintiffs filed a reply memorandum in support of their motion (“Pls.’ ATT. Reply”). Fourth, Plaintiffs filed a motion for summary judgment against Hilton regarding their failure to warn claim (“Pis.’ Hil. Mot.”), accompanied by a memorandum in support (“Pls.’ Hil. Mem.”). Plaintiffs thereafter filed a separate and concise statement of facts. Hilton filed an opposition (“Hil.’s Opp’n to Pls.’ Hil. Mot.”) and a separate and concise statement of facts. ATTCO filed a statement of no position as to the motion. Plaintiffs filed a reply memorandum in support of their motion (“Pls.’ Hil. Reply”). Fifth, Plaintiffs filed a motion for summary judgment as to the defenses of assumption of risk, contributory negligence, and comparative negligence (“Pls.’ Assum. & Neg. Mot.”), along with a memorandum in support (“Pis.’ Assum. & Neg. Mem.”). Plaintiffs thereafter filed a separate and concise statement of facts. ATTCO filed a statement of no position as to the motion, and Hilton filed a statement of no opposition. Sixth, Plaintiffs filed a motion to strike the defenses of failure to name an indispensable party, “wrong party,” and lack of jurisdiction, as well as the blanket defenses asserted in Defendants’ answers regarding all applicable affirmative defenses (“Pls.’ Misc. Defense Mot.”). Hil.’s Answer (“Ans.”) ¶¶ 44, 46, 48-49; ATT.’s Ans. ¶¶ 26-28, 31, 34. Plaintiffs also requested a conclusive determination of certain facts that Defendants have admitted. Plaintiffs’ motion was accompanied by a memorandum in support (“Pis.’ Misc. Defense Mem.”). They subsequently filed a separate and concise statement of facts. Hilton and ATTCO filed oppositions to the motion (respectively, “Hil.’s Opp’n to Pls.’ Misc. Defense Mot.” and “ATT.’s Opp’n to Pls.’ Misc. Defense Mot.”) and separate and concise statements of fact. Plaintiffs filed a reply in support of their motion (“Pls.’ Misc. Defense Reply”). On June 22, 2009, the Court held a hearing on the parties’ motions. FACTUAL BACKGROUND On January 5, 2006, Mr. Mullaney was attending the Hawaii International Dairy Queen (“IDQ”) expo at the Hilton Waikoloa Village, which was owned and operated by Hilton and located in the County of Hawai’i on the Big Island. Compl. ¶ 5; Hil.’s Ans. ¶ 4. At approximately 7:00 p.m., he walked to the IDQ expo administration booth (“Booth”), which was located outdoors at the grand staircase landing of the hotel. Compl. ¶ 7; ATT.’s Mot., Ex. B at 6 (Pls.’ Resp. to Interrogs.); Dep. of Agnes Mui (“Ms. Mui”), senior events manager at the Hilton Waikoloa Village, at 11, attached as Ex. A to Hil.’s Mot. SCSF; Pls.’ Assum. & Neg. Mot. SCSF ¶ 5. The Booth was provided and assembled by ATTCO pursuant to a contract with IDQ. Compl. ¶ 5; ATT.’s Ans. ¶ 4; Hil.’s Ans. ¶ 4; ATT.’s Mot. SCSF ¶¶ 4, 8; ATT.’s Mot., Ex. D at 13 (ATT.’s Resp. to Interrogs.); Dep. of Ms. Mui 10, 45, attached as Ex. A to Hil.’s SCSF; Hil.’s Mot. SCSF, Ex. C (ATTCO’s contract with IDQ). It consisted of five registration counter units, each approximately ninety-seven inches tall, seventy-nine inches wide, and twenty inches deep. Dep. of Daniel Anderson (“Mr. Anderson”), vice-president of sales at ATTCO, at 25-26, attached as Ex. B to Hil.’s Mot. SCSF; Dep. of Kiumars Siah (“Mr. Siah”), ATTCO’s proffered expert in engineering, at 20-22, attached as Ex. 1 to Pls.’ ATT. Mot.; Pis.’ Assum. & Neg. Mot. SCSF ¶ 7. The five registration units were set up in a continuous configuration to form the Booth. Dep. of Mr. Anderson 25-26, attached as Ex. B to Hil.’s Mot. SCSF; Pls.’ Assum. & Neg. Mot. SCSF ¶ 7. The Booth weighed approximately 725 pounds. Pls.’ ATT. Mot. SCSF at 3. While at the Booth, Mr. Mullaney picked up his registration materials and spoke with IDQ employees, Debbie Lorenzen (“Ms. Lorenzen”) and Michael Ochs (“Mr. Ochs”). Compl. ¶ 7; ATT.’s Mot., Ex. B at 6 (Pls.’ Resp. to Interrogs.). The area where the Booth was located was windy, but Mr. Mullaney did not see the Booth moving in any way. Pis.’ Assum. & Neg. Mot. SCSF ¶¶ 9, 11. As he turned to walk away, a strong gust of wind blew the Booth over, causing it fall on him. Compl. ¶ 7; ATT.’s Mot., Ex. B at 6 (Pls.’ Resp. to Interrogs.); ATT.’s Mot. SCSF ¶ 5; ATT.’s Mot., Ex. E at 2-3 (Report of Clyde F. Calhoun (“Mr. Calhoun”), Plaintiffs’ proffered expert in engineering); Dep. of Mr. Calhoun 94-95, attached as Ex. F to ATT.’s Mot.; Pls.’ Assum. & Neg. Mot. SCSF ¶ 12. Mr. Mullaney consequently sustained injuries. Compl. ¶ 7; Hil.’s Ans. ¶ 4. LEGAL STANDARD The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate if the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A ‘genuine issue’ of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (citation omitted). Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “Only admissible evidence may be considered in deciding a motion for summary judgment.” Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir.2006). The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Miller, 454 F.3d at 987. The moving party may do so with affirmative evidence or by “ ‘showing’ — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See id. at 323, 106 S.Ct. 2548; Matsushita Elec., 475 U.S. at 586, 106 S.Ct. 1348; Cal. Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). The nonmoving party must instead set forth “significant probative evidence” in support of its position. T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. See T.W. Elec. Serv., 809 F.2d at 630-31. Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. DISCUSSION The Court will initially address the parties’ arguments regarding the counts in the Complaint. The Court will then evaluate Plaintiffs’ contentions as to the validity of certain defenses set forth in Defendants’ answers, as well as their request for a determination of basic facts. I. Count II of the Complaint: The Scope of the Strict Products Liability Doctrine In count II of the Complaint, Plaintiffs allege a strict products liability claim against Hilton and ATTCO. Compl. ¶ 13. Hilton argues that the Booth was not its “product” for purposes of Hawai’i strict products liability law. Hil.’s Mem. 7, 9. It insists that it did not design, manufacture, or commercially distribute the Booth. Id. at 9. ATTCO appears to argue that the Booth was not its “product” in asserting that it did not design, manufacture, or lease the Booth. See ATT.’s Mem. 8-9; ATT.’s Reply 3-5. ATTCO further contends that the strict products liability doctrine does not apply because Mr. Mullaney was not a “consumer” of the Booth. ATT.’s Mem. 10. Finally, ATTCO argues that, even if the doctrine applies, it is nevertheless entitled to summary judgment because Plaintiffs have no evidence that the Booth was defective. Id. at 10-13. The issue of defect will be considered in Section II below. In this Section, the Court will discuss the scope of the strict products liability doctrine and then determine whether the doctrine applies to Defendants. A. Lessors, Consumers, and Users of Products Under the Strict Products Liability Doctrine This Court is sitting in diversity and will therefore apply the Hawai’i substantive law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 426-27, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Hawai’i strict products liability law, the rule is that one who sells or leases a defective product which is dangerous to the user or consumer or to his property is subject to liability for physical harm caused by the defective product to the ultimate user or consumer, or to his property, if (a) the seller or lessor is engaged in the business of selling or leasing such product, and (b) the product is expected to and does reach the user or consumer without substantial change in its condition after it is sold or leased. Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240, 243 (1970); see also Ontai v. Straub Clinic & Hosp., 66 Haw. 237, 241, 659 P.2d 734, 739 (1983) (paraphrasing the foregoing rule). The policies underlying this rule are: that the public interest in human life and safety requires the maximum possible protection that the law can muster against dangerous defects in products; that by placing the goods on the market the maker and those in the chain of distribution represent to the public that the products are suitable and safe for use; and that the burden of accidental injuries caused by defective chattels should be placed upon those in the chain of distribution as a cost of doing business and as an incentive to guard against such defects. Stewart, 52 Haw. at 74-75, 470 P.2d at 243. In Leong v. Sears Roebuck & Co., 89 Hawai'i 204, 970 P.2d 972 (1998), the Hawai’i Supreme Court held that an escalator located in a department store was not the department store’s “product” for purposes of the doctrine of strict products liability, because the store did not manufacture or commercially distribute the escalator. Id. at 211, 970 P.2d at 979. The court further explained that the rationales underlying the doctrine do not justify imposing strict liability on the department store. Id. The court reasoned that the store could not adjust the costs of protecting the consumer up the chain of distribution, the store was unable to protect against defects by means of the exercise of greater care during manufacture and assembly, and the store could not be presumed to have expertise necessary to know of and correct defects in its escalators. Id. On the other hand, the court concluded that the escalator was the “product” of the commercial manufacturer and distributor of the escalator. Id. The court reasoned that the application of the strict products liability doctrine to those entities would further the policies underlying the strict products liability doctrine. Id. The court explained that applying the doctrine to the manufacturer and distributor would afford maximum protection to persons injured by defective products and would create incentives for the entities to guard against defects in the future. Id. The court further noted that the manufacturer and distributor were positioned most appropriately to shoulder the risk of accidental injuries caused by defective escalators as a cost of doing business. Id. B. Analysis Turning to the facts at hand, IDQ contracted with the Hilton Waikoloa Village to hold the Hawaii IDQ expo on the hotel’s premises. Dep. of Ms. Mui 41-42, attached as Ex. I to ATT.’s Mot. IDQ also contracted with ATTCO for ATTCO to, among other things, provide and set up the Booth for the event. Hil.’s Mot. SCSF ¶ 4; id., Ex. C (ATTCO’s contract with IDQ). ATTCO therefore provided and assembled the Booth. Hil.’s Mot. SCSF ¶ 7. ATTCO purchased the Booth’s metal components from a company called AGAM. Hil.’s Mot., SCSF ¶7; Dep. of Mr. Anderson 27, attached as Ex. B to Hil.’s Mot. SCSF. Those components were assembled pursuant to a design set forth in AGAM’s sales manual. Dep. of Mr. Anderson 44, 70, attached as Ex. H to ATT.’s Mot. However, only the metal components of the Booth were obtained from AGAM. Dep. of Mr. Anderson 27, attached as Ex. B to Hil.’s Mot. SCSF. ATTCO obtained the Booth’s facades, finishes, panels, countertops, and lighting fixtures elsewhere. Id. AGAM does not sell configured registration counters. Id. ATTCO purchased components from AGAM, but configured the registration counters to its own design. Id. Thus, the actual configuration of the Booth was ATTCO’s design, as opposed to AGAM’s design. Id. For example, ATTCO has, prior to the incident at issue here, configured a registration booth to be anchored down with sandbags in view of windy conditions at a hotel on Oahu. Dep. of Mr. Anderson 30-32, attached as Ex. H to ATT.’s Mot. ATT-CO’s vice-president of sales, Mr. Anderson, testified in his deposition that he did not configure the Booth at the Hilton Waikoloa Village with sandbags, guide wires, or stakes because he did not consider the grand staircase landing “a hazardous location that required that kind of design.” Id. at 65. 1. Hilton Under the circumstances, the Court concludes that, as was true of the department store in Leong, Hilton did not design, manufacture, or commercially distribute the Booth. See 89 Hawai'i at 211, 970 P.2d at 979. As such, the policies underlying the strict products liability doctrine would not be served by applying the rule to Hilton. See id. The Booth was not its “product” for purposes of Plaintiffs’ strict products liability claim. See id. Hence, Hilton cannot be liable in strict products liability with respect to the Booth. See id. Plaintiffs do not argue otherwise. Pls.’ Opp’n to Hil.’s Mot. 2. 2. ATTCO Unlike Hilton, ATTCO designed and configured the Booth. Although the metal components of the Booth were obtained from AGAM and essentially assembled pursuant to a design provided by AGAM, ATTCO configured the Booth with, among other things, facades, panels, countertops, and lighting fixtures. ATTCO did more than simply assemble the Booth. The configuration of the Booth was ATTCO’s own design. Although ATTCO plainly designed certain aspects of the Booth, the question remains as to whether it was a “seller” or “lessor” of the Booth such that it was within the chain of distribution. See Stewart, 52 Haw. at 75, 470 P.2d at 243. There is no evidence that ATTCO sold the Booth, but it did contract with IDQ to provide certain services at the expo. Hil.’s Mot. SCSF, Ex. C (ATTCO’s contract with IDQ). The issue therefore narrows to whether, through that contract, ATTCO was a lessor of the Booth. Pls.’ ATT. Mem. 5-8; ATT.’s Reply 3-5. A “lessor” is “[o]ne who conveys real or personal property by lease,” and a “lease,” as the term is used with respect to personal property, is “[a] contract by which the rightful possessor of personal property conveys the right to use that property in exchange for consideration.” Black’s Law Dictionary 907, 922 (8th ed. 2004). When used as a verb, the word “lease” means “[t]o grant the possession and use of (land, buildings, rooms, movable property, etc.) to another in return for rent or other consideration.” Id. at 909. The right to possession is “[t]he right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.” Id. at 1201. In the case at bar, ATTCO had an agreement with IDQ to perform services in connection with the Hawaii IDQ expo. Hills Mot. SCSF, Ex. C at 3 (ATTCO’s contract with IDQ). With respect to exhibition booths, the contract provides that ATTCO would “assemble, maintain, and disassemble the required number of 8' x 10' package booths.” Id. at 10. However, it appears that the Booth at issue here was not an exhibition booth, but rather a registration counter. Dep. of Mr. Anderson 25-26, attached as Ex. B to Hills Mot. SCSF. The only term in the contract with respect to registration counters states that the unit price was $450.00 with a discount of 50%. Hills Mot. SCSF, Ex. C at 13 (ATTCO’s contract with IDQ). However, at the time that the agreement was made, IDQ had not yet ordered a registration counter, as the agreement states “TBD” or what would appear to be “to be determined” with respect to the number of counters required. See id.; Random House Webster’s College Dictionary 1302 (2d ed. 1997). After the agreement, IDQ asked ATTCO via e-mail to arrange to set up the Booth. ATTls Opp’n to Pls.' ATT. Mot., Ex. A at 17-18 (e-mail correspondence). ATTCO claims that, pursuant to IDQ’s request, ATTCO brought the Booth to the Hilton Waikoloa Village and set it up at the location designated by IDQ, the grand staircase landing. ATT.'s Reply 5; see also ATT.'s Opp’n to Pls.' ATT. Mot., Ex. A at 28 (ATTCO’s work order regarding the Booth); Dep. of Mr. Anderson 66, attached as Ex. L to ATT.'s Reply. ATTCO contends that it did not relinquish possession of the Booth to IDQ. See ATT.'s Reply 5. While the parties’ agreement does not speak to the issue of possession, the evidence regarding their course of performance tends to indicate that, once ATTCO set up the Booth, IDQ placed its materials in the Booth and its employees were situated there to provide those materials to the attendees of the expo. See Dep. of Ms. Lorenzen 26-27, attached as Ex. J to ATT.'s Mot. Indeed, Mr. Mullaney picked up registration materials from IDQ employees located inside the Booth just prior to the incident at issue here. ATT.'s Mot., Ex. B at 6 (Pls.' Resp. to Interrogs.). It is true that ATT-CO employees were required under its agreement with IDQ to be at the expo in order to “provide proper services to exhibitors and management” at an “Exhibitor Service Center,” but the question remains as to whether ATTCO exercised control over the Booth while the Booth was being used by IDQ. See ATT.'s Opp’n to Pls.' ATT. Mot., Ex. A at 2 (ATTCO’s contract with IDQ). Accordingly, there is a question of fact as to whether ATTCO relinquished possession of the Booth to IDQ during the expo. That question precludes a determination of whether ATTCO leased the Booth to IDQ as well as whether the doctrine of strict products liability applies to ATTCO. ATTCO makes additional arguments as to the strict products liability claim in its moving papers and, therefore, the Court will assume for the sake of argument that ATTCO leased the Booth to IDQ, that ATTCO was engaged in the business of leasing such booths, and that the Booth was ATTCO’s “product” for purposes of addressing those contentions. ATTCO maintains that Plaintiffs’ strict products liability claim fails because Mr. Mullaney was not a “consumer” who purchased or leased the Booth. ATT.’s Mem. 10. A person injured by a product need not have been a “consumer” of the product in order to assert a strict products liability claim. It is enough that the person was a “user” of the product. Stewart, 52 Haw. at 75, 470 P.2d at 243. The term “user” includes “those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes.” Restatement (Second) of Torts § 402A cmt. l (1965). In the present matter, Mr. Mullaney obtained registration materials for the expo from a person situated in the Booth prior to the incident. He was clearly using the Booth and was thereby a “user” of the Booth before it fell on him. In summary, the Court will grant Hilton’s motion for summary judgment as to count II of the Complaint, but deny ATT-CO’s motion for summary judgment as to that count insofar as the motion is premised on the contention that the strict products liability doctrine is inapplicable to ATTCO. II. Counts I and II of the Complaint: Design Defect Under the Doctrines of Negligent Design and Strict Products Liability As noted earlier, ATTCO claims that it is entitled to summary judgment as to count II of the Complaint because, even if the strict products liability doctrine applies, there is no evidence that the Booth was defective. Additionally, Plaintiffs request summary judgement against ATTCO as to count II as well as count I (negligence). These two counts involve related legal standards. As such, the Court will first discuss those standards and then address the parties’ specific contentions with respect to each count. A. Design Defect Standards “Under Hawai’i law,’ plaintiffs in design defect cases may proceed on both a theory of negligence for negligent design and a theory of strict liability in tort for defective design.’ ” Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 354, 944 P.2d 1279, 1297 (1997) (quoting Ontai, 66 Haw. at 247, 659 P.2d at 742). “ ‘The plaintiffs burden in a negligent design claim is to prove that the manufacturer was negligent in not taking reasonable measures in designing its product to protect against a foreseeable risk of injury and the manufacturer’s negligence was a legal cause of the plaintiffs injury.’ ” Id. (quoting Wagatsuma v. Patch, 10 Haw.App. 547, 565, 879 P.2d 572, 583 (1994)) (brackets omitted). “To establish a prima facie claim for strict product liability, the plaintiff has the burden ‘to prove (1) a defect in the product which rendered it unreasonably dangerous for its intended or reasonably foreseeable use; and (2) a causal connection between the defect and the plaintiffs injuries.’ ” Acoba v. Gen. Tire, Inc., 92 Hawai'i 1, 16, 986 P.2d 288, 308 (1999) (quoting Tabieros, 85 Hawai'i at 354, 944 P.2d at 1297) (brackets omitted). “Pursuant to either theory, it is ‘the legal duty of manufacturers to exercise reasonable care in the design and incorporation of safety features to protect against foreseeable dangers.’ ” Tabieros, 85 Hawai'i at 354, 944 P.2d at 1297 (quoting Ontai, 66 Haw. at 247, 659 P.2d at 742) (brackets and ellipsis omitted). “Accordingly,’ the failure of a manufacturer to equip its product with a safety device may constitute a design defect.’ ” Id. (quoting Ontai, 66 Haw. at 243, 659 P.2d at 740) (brackets omitted). “Generally, whether a product is unreasonably dangerous is a question for the trier of fact.” Acoba, 92 Hawai'i at 16, 986 P.2d at 303; see also Tabieros, 85 Hawaii at 355, 944 P.2d at 1298 (“ ‘[I]t is ordinarily a question for the jury as to whether or not a failure to install a safety device creates an unreasonable risk.’ ” (quoting Wagatsuma, 10 Haw. App. at 570, 879 P.2d at 585) (emphasis omitted)). “A plaintiff may establish a defect for purposes of either strict liability or negligence under three approaches: (1) the ‘consumer expectation’ test; (2) the’ risk-utility’ test; and (3) the’ latent danger’ test.” Acoba, 92 Hawai'i at 17, 986 P.2d at 304. The Court will discuss the first two tests here. The third test is addressed in a later section. See infra Discussion Section III. Under the “consumer expectation” test, “ ‘a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.’ ” Tabieros, 85 Hawai'i at 368, 944 P.2d at 1311 (quoting Ontai, 66 Haw. at 242, 659 P.2d at 739-40) (emphasis omitted). In other words, “ ‘it is enough that the 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.’ ” Id. (quoting Ontai, 66 Haw. at 241, 659 P.2d at 739). And under the “risk-utility” test, “ ‘a product may ... be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.’ ” Ontai, 66 Haw. at 242, 659 P.2d at 740 (quoting Barker v. Lull Eng’g Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, 456 (1978)); see also Tabieros, 85 Hawai'i at 366-67, 944 P.2d at 1309-10 (setting forth the “risk-utility” factors). With an eye toward the foregoing standards, the Court will now turn to the parties’ arguments as to counts I and II of the Complaint. B. Count I: Negligent Design: Reasonably Foreseeable Risk of Harm In count I of the Complaint, Plaintiffs claim that, on and prior to January 5, 2006, Defendants negligently failed to design, construct, position, store, use, and maintain the Booth in a reasonably safe condition for its intended purposes. Compl. ¶ 11. In order to prevail on the negligent-design aspect of this claim, Plaintiffs must show (1) that ATTCO was negligent in not taking reasonable measures in designing the Booth to protect against a foreseeable risk of injury and (2) that ATTCO’s negligence was a legal cause of Mr. Mullaney’s injury. See Tabieros, 85 Hawai'i at 354, 944 P.2d at 1297. The risk of harm in this particular case arises from the Booth’s possible potential to fall onto and injure its users in severe windy conditions. As previously noted, on one occasion prior to the incident at issue here and at a different location, ATTCO took precautions against windy conditions by configuring a booth to be anchored down with sandbags. Dep. of Mr. Anderson 30-32, attached as Ex. H to ATT.’s Mot. It conceivably could have done so here, as it had used sandbags during the Hawaii IDQ expo to secure other items such as drapes and signs. Dep. of Mr. Anderson 32-35, attached as Ex. 1 to Pis.’ Opp’n to ATT.’s Mot. Indeed, at the hearing on the parties’ motions, ATTCO’s counsel represented that ATTCO had used sandbags to secure a booth located at the grand staircase landing for a company called Hilo Hattie at the Hawaii IDQ expo. Counsel explained that sandbags were necessary for this particular booth because it was recognized as top-heavy and cylindrical in shape. Sandbags may well have prevented the Booth involved in this case from being blown over by a strong gust of wind onto Mr. Mullaney. The critical question is whether the danger posed by the Booth being blown over by a strong gust of wind was reasonably foreseeable. See id. On the one hand, Plaintiffs press the fact that the Booth was about five times taller (97 inches) than its footprint was deep (20 inches), which would suggest that the Booth was susceptible to tipping over, particularly in windy conditions. Pls.’ ATT. Mot. SCSF at 2 — 3. In addition, Plaintiffs point out that ATTCO’s proffered engineering expert, Mr. Siah, testified in his deposition that: (1) in an “open field” setting, the wind gust needed to topple the Booth would be 23.61 mph; (2) in a “suburban” setting, the wind gust necessary to topple the Booth would be 28.69 mph; and (3) in an “urban” setting, the wind gust necessary to topple the Booth would be 38.52 mph. Id. at 4. Plaintiffs rely on the data provided by the National Oceanic and Atmospheric Administration’s website regarding the wind conditions at the “Waikoloa Village” weather station, which, according to Plaintiffs’ counsel, is located three to four miles uphill from the Hilton Waikoloa Village and is higher in elevation than the hotel. Pls.’ ATT. Mot., Decl. of William H. Lawson ¶¶ 8-9. At the weather station, in November 2005 the high wind gust was 40 mph, in December 2005 the high wind gust was 41 mph, and in January 2006 the high wind gust was 40 mph. Pls.’ ATT. Mot., Ex. 8 at 1, 3, 5. The website further indicates that, at the weather station on January 5, 2006, the day of the incident, the high wind gust was 40 mph. Id., Ex. 7 at 1. That wind gust was recorded at approximately 6:45 p.m., just fifteen minutes before the incident allegedly occurred. Id., Ex. 7 at 2. Thus, assuming that the wind gusts at the grand staircase landing were at least as strong as those at the weather station, the wind gusts at the grand staircase landing on and leading up to January 5, 2006 would appear to have been sufficient to topple the Booth even under Mr. Siah’s “urban” scenario. Pls.’ ATT. Mem. 19. Finally, Mr. Anderson, the vice-president of sales at ATTCO, testified in his deposition that he was responsible for checking weather conditions for events. Dep. of Mr. Anderson 52, attached as Ex. 1 to Pls.’ Opp’n to ATT.’s Mot. SCSF. He testified that, as a general matter, he is aware that the Big Island can be subject to strong winds and that the winds can cause damage. Id. at 53-54. Other than his personal observations, he did not check the weather conditions for the days at the Hawaii IDQ expo in 2006 before putting up the Booth. Id. at 51-52. Plaintiffs assert that their evidence suggests that the danger of the Booth toppling over was reasonably foreseeable. On the other hand, ATTCO has submitted evidence that militates in favor of the opposite conclusion. ATT.’s Mem. 11-13. ATTCO points out that Plaintiffs’ proffered engineering expert, Mr. Calhoun, acknowledged that the Booth could be used outdoors. Id. at 11. It further notes that the company from which it obtained the metal components of the Booth, AGAM, provided no information regarding anchoring or using the Booth in windy conditions. Dep. of Mr. Anderson 44, attached as Ex. H to ATT.’s Mot. ATTCO also insists that the gust of wind that toppled the Booth was not reasonably foreseeable. ATT.’s Mem. 12-13. ATT-CO notes that IDQ employees, Ms. Loren-zen and Mr. Ochs, who were working at the Booth during the incident testified in their depositions that, although it was windy on January 5, 2006, the winds were not strong enough to move the Booth prior to the incident, which occurred at 7:00 p.m. Dep. of Ms. Lorenzen 26-27, attached as Ex. J to ATT.’s Mot.; Dep. of Mr. Ochs 30, 62-65, attached as Ex. K to ATT.’s Mot. While it was windy, the employees did not voice any concern regarding the wind or the Booth. Dep. of Ms. Lorenzen 56-57, attached as Ex. J to ATT.’s Mot.; Dep. of Mr. Ochs 30, 62-65, attached as Ex. K to ATT.’s Mot. Also, Mr. Anderson testified that, when ATTCO set up the Booth on the day before the incident, it experienced no issues with the wind or the stability of the Booth. Dep. of Mr. Anderson 65-66, attached as Ex. F to ATT.’s Opp’n to Pls.’ ATT. Mot. He also testified that there were no issues with wind regarding the Booth on January 5, 2006 prior to the incident. Id. Mr. Anderson further testified that ATTCO was not advised of any wind condition issues prior to the incident. Dep. of Mr. Anderson 69-70, attached as Ex. H to ATT.’s Mot. In view of the evidence submitted by the parties, there appears to be a genuine issue of material fact as to whether the danger of the Booth toppling over because of a strong gust of wind was reasonably foreseeable. The Court will therefore deny Plaintiffs’ motion for summary judgment as to count I of the Complaint. The Court will now turn its attention to count II. C. Count II: Strict Products Liability: Reasonably Foreseeable Use In count II of the Complaint, Plaintiffs allege that ATTCO placed the Booth into service and is responsible for its defective design, construction, positioning, labeling, storage, maintenance, and use. Compl. ¶ 13. In order to establish a prima facie case for strict products liability, Plaintiffs have the burden of proving (1) a defect in the Booth which rendered it unreasonably dangerous for its intended or reasonably foreseeable use and (2) a causal connection between the defect and Mr. Mullaney’s injuries. See Acoba, 92 Hawai'i at 16, 986 P.2d at 303. Plaintiffs may establish a dangerous “defect” through, inter alia, the “consumer expectations” test or the “risk-utility” test. See id. The parties refer to both tests in their memoranda, but they do not apply the multi-factor “risk-utility” test. ATT.’s Mem. 11-13; Pls.’ ATT. Mem. 7,10-13. It would therefore appear that they are employing the “consumer expectations” test. Under the “consumer expectation” test, the Booth may be found defective if Plaintiffs establish that the Booth failed to perform as safely as an ordinary consumer would have reasonably expected when used in an intended or reasonably foreseeable manner. See Tabieros, 85 Hawai'i at 368, 944 P.2d at 1311. In this case, the Booth was used during windy conditions that caused it to topple over. Plaintiffs do not contend that ATTCO intended for the Booth to be used in such conditions. Instead, they appear to assert that ATTCO could have reasonably foreseen that the Booth would be used in such conditions. The issue of foreseeability has a limited role in the doctrine of strict products liability. “[I]n a strict products liability action, the issue of whether the seller knew or reasonably should have known of the dangers inherent in his or her product is irrelevant to the issue of liability.” Johnson v. Raybestos-Manhattan, Inc., 69 Haw. 287, 288, 740 P.2d 548, 549 (1987). “Although highly relevant to a negligence action, it has absolutely no bearing on the elements of a strict products liability claim.” Id. at 288-89, 740 P.2d at 549 (emphasis omitted); see also Boudreau v. Gen. Elec. Co., 2 Haw.App. 10, 15, 625 P.2d 384, 389 (1981) (holding that the trial court erred in instructing the jury that “[a] product is not defective unless it is reasonably foreseeable that it may, as a result of normal use, cause an accident of the general kind or type involved in this case,” because the instruction’s use of the principle of foreseeability “eonvert[ed] the doctrine of strict liability into one of negligence”). At the same time, the question of foreseeability does arise in the doctrine of strict products liability in determining whether, under the “consumer expectations” test, the product was used in a “ ‘reasonably foreseeable manner.’ ” Tabieros, 85 Hawai'i at 368, 944 P.2d at 1311 (quoting Ontai, 66 Haw. at 242, 659 P.2d at 739-40); see also Milwaukee Elec. Tool Corp. v. Superior Court, 15 Cal.App.4th 547, 19 Cal.Rptr.2d 24, 32 (1993) (“In actions premised on strict products liability, just as in actions premised on negligence, an element of foreseeability is involved; liability may not be imposed unless the injury results from a use of the product which is reasonably foreseeable.” (internal quotation marks omitted)). Accordingly, while the question of whether a manufacturer could have reasonably foreseen the use of a product in a particular manner is pertinent in a strict products liability analysis, the question of whether the manufacturer could have reasonably foreseen the dangers associated with the use of the product in that fashion is not. The former question concerning the foreseeability of use is generally one of fact. See Schwartz v. Am. Honda Motor Co., 710 F.2d 378, 381 (7th Cir.1983) (“[I]f there is any doubt as to the foreseeability of a particular use, this is a question of fact for the jury.”). One “factor in determining whether a producer may reasonably anticipate or foresee a use put to the product is the environment in which the product will be used,” as “[a] manufacturer must anticipate the nature of the environment in which the product is to be used.” Henkel v. R & S Bottling Co., 323 N.W.2d 185, 192 (Iowa 1982). In the case at bar, the issue is whether ATTCO could have reasonably foreseen that the Booth would be used in an area that was subject to strong gusts of wind. The evidence reviewed in the previous section regarding the foreseeability of the wind conditions at the Hilton Waikoloa Village in general, and at the grand staircase landing in particular, indicates that this question should be decided by the jury. The evidence submitted by Plaintiffs suggests that the wind gusts were reasonably foreseeable, whereas ATTCO’s evidence is to the contrary. See supra Discussion Section II.B.2. Accordingly, there is a genuine issue of material fact as to whether ATTCO could have reasonably foreseen that the Booth would be used in an area that was subject to strong gusts of wind. See Schwartz, 710 F.2d at 381. The Court will accordingly deny Plaintiffs’ and ATTCO’s motions for summary judgment as to count II of the Complaint. To recap, the Court will deny Plaintiffs’ motion for summary judgment as to count I of the Complaint and deny Plaintiffs’ and ATTCO’s motions for summary judgment as to count II. III. Count IV of the Complaint: Failure to Take Precautions and to Warn In count IV of the Complaint, Plaintiffs contend that Defendants failed to take reasonable steps to test the Booth, to make themselves otherwise aware of the dangers posed by the Booth, or to warn others, including Mr. Mullaney, of the dangers posed by the Booth. Compl. ¶ 21. Hilton and ATTCO seek summary judgment as to this count. A. Hilton Hilton construes count IV as a claim of negligence. Hil.’s Mem. 10-11. It asserts that the allegations in the count do not constitute a separate cause of action, but are simply duplicative of the allegations of negligent conduct set forth in counts I (negligence) and V (premises liability). Id. In response, Plaintiffs advance the same arguments that they made in their motion for summary judgment against Hilton. Pls.’ Opp’n to Hil.’s Mot. 2-4. Those arguments appear to be based on a premises liability theory. See id. Accordingly, as against Hilton, count IV would appear to set forth a premises liability claim that is duplicative of the premises liability claim asserted in count V. Hilton essentially contends that it is entitled to summary judgment as to count IV because the allegations in the count are redundant and duplicative of counts I and V. Hil.’s Mot. 2; Hil.’s Mem. 10-11. However, mere redundancy is not a ground for summary judgment. Summary judgment is appropriate where a party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. Still, redundancy is an appropriate ground for a motion to strike. The Court will therefore construe Hilton’s motion as a motion to strike under Fed.R.Civ.P. 12(f), which states that a court may strike from a pleading any “redundant” matter. Pursuant to that provision, the Court will strike the claim against Hilton set forth in count IV of the Complaint insofar as the count is duplicative of the negligence claims asserted in counts I and V. In addition, the Court notes that count IV could be construed as a strict products liability claim. To the extent that count IV asserts a strict products liability claim against Hilton, the Court will grant Hilton’s motion for summary judgment as to count IV in light of its earlier conclusion that the Booth is not Hilton’s “product.” See supra Discussion Section I.B.1. B. ATTCO ATTCO views count IV as alleging a claim of products liability in light of the “latent danger” test. ATT.’s Mem. 15; see also supra Discussion Section II.A. Under that test, a product is defective in design, even if faultlessly made, if the use of the product in a manner that is intended or reasonably foreseeable, including reasonably foreseeable misuses, involves a substantial danger that would not be readily recognized by the ordinary user of the product and the manufacturer fails to give adequate warnings of the danger. Tabieros, 85 Hawai'i at 367, 944 P.2d at 1310 (brackets and emphasis omitted). By the same token, “a product cannot be defective merely because the manufacturer failed to provide an accompanying warning regarding an open and obvious danger.” Id. at 370, 944 P.2d at 1313. In view of this test, ATTCO essentially contends that no warning regarding the possibility of the Booth falling over in gusty conditions was necessary since the strong gust of wind was not reasonably foreseeable. ATT.’s Mem. at 15-16. However, the Court has already concluded that there is a genuine issue of material fact as to whether the Booth’s use in gusty conditions was reasonably foreseeable. See supra Discussion Section II.C. ATTCO next argues the wind was an “open and obvious” condition that was easily discovered by the users of the Booth. ATT.’s Mem. at 16. While the wind was an open and obvious condition, there is a genuine issue of material fact as to whether the risk of the Booth being blown over by what appears to have been an ordinary gust of wind was open and obvious. See Pls.’ ATT. Mot., Ex. 8 at 1, 3, 5, 7. That “substantial danger” seems to have gone unnoticed by Mr. Mullaney as well as the IDQ employees, Ms. Lorenzen and Mr. Ochs, who were working at the Booth prior to the incident. See Tabieros, 85 Hawai'i at 367, 944 P.2d at 1310. The Court will accordingly deny ATTCO’s motion for summary judgment as to count IV of the Complaint to the extent that the count asserts a products liability claim. To summarize, the Court will grant Hilton’s motion to strike count IV of the Complaint insofar as the count is duplicative of counts I and V. The Court will also grant Hilton’s motion for summary judgment as to count IV of the Complaint insofar as the count asserts a strict products liability claim. However, the Court will deny ATTCO’s motion for summary judgment as to that count inasmuch as the count advances a products liability claim. IV. Count III of the Complaint: Breach of Warranty In count III, Plaintiffs maintain that the Booth was expressly or impliedly warranted by Defendants to be safely designed, built, manufactured, constructed, labeled, distributed, stored, used, and maintained for the general public in Hawaii and elsewhere. Compl. ¶ 17. They insist that, as it was used at the Hilton Waikoloa, the Booth did not meet industry standards and safety requirements. Id. Plaintiffs maintain that the Booth was dangerously designed, built, manufactured, constructed, labeled, distributed, used, and stored. Id. Plaintiffs posit that the Defendants placed the Booth into the stream of commerce and are responsible for breaches of express or implied warranties. Id. Plaintiffs, Hilton, and ATTCO seek summary judgment as to this claim. A. Hilton Hilton asserts that the claim fails because it had no contractual relationship with Mr. Mullaney with respect to the Booth. Hil.’s Mem. 10. “A warranty results from the contractual relationship existing between the parties.” Au v. Au, 63 Haw. 210, 218, 626 P.2d 173, 180 (1981). For example, “a warranty arises from the contractual relationship between buyer and seller, and a breach of warranty constitutes a breach of contract.” Schulz v. Honsador, Inc., 67 Haw. 433, 436, 690 P.2d 279, 282 (1984), overruled on other grounds, Blair v. Ing, 96 Hawai'i 327, 336, 31 P.3d 184, 193 (2001). Here, IDQ, not Hilton, contractually obtained the services of ATTCO to set up the Booth. Hil.’s Mot. SCSF ¶¶ 4-6. Hilton did not contract with ATTCO and was not a party to the contract between IDQ and ATTCO regarding the Booth. Id. Thus, Hilton could not have breached a contract with respect to the Booth. Plaintiffs do not argue otherwise. See Pls.’ Opp’n to Hil.’s Mot. 2. They do not object to the “dismissal (without prejudice)” of count III of the Complaint insofar as the count is alleged against Hilton. See id. The Court will therefore grant Hilton’s motion for summary judgment as to count III. B. ATTCO ATTCO contends that the breach of warranty claim fails because there was no contract between ATTCO and Plaintiffs. ATT.’s Mem. 14. ATTCO did have a contract with IDQ to provide the Booth. ATT.’s Mot. SCSF ¶ 8; Hil.’s Mot. SCSF, Ex. C (ATTCO’s contract with IDQ). Hawaii Revised Statutes (“HRS”) ch. 490:2A governs the leasing of goods. HRS § 490:2A-103 defines “lease” as “a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease.” In this case, as previously noted, there is a question of fact as to whether IDQ had a right to possess the Booth. That question precludes a determination of whether ATTCO leased the Booth to IDQ. See supra Discussion Section I.B.2. ATT-CO has advanced additional arguments as to count III and, therefore, the Court will assume arguendo that ATTCO leased the Booth to IDQ and that ATTCO was a “merchant” with respect to goods of that kind for purposes of evaluating those contentions. See HRS §§ 490:2A-103(c), 490:2-104(1) (defining “merchant”). By virtue of the lease, the warranties provided in HRS §§ 490:2A-212 (merchantability) and 490:2A-213 (fitness for a particular purpose) were implied by operation of law. Those warranties were clearly made to IDQ, the lessee of the Booth. The question is whether those warranties apply to Mr. Mullaney, who was not a party to the agreement. HRS § 490:2A-216, entitled “Third-party beneficiaries of express and implied warranties,” provides in relevant part that: “A warranty to or for the benefit of a lessee under this Article, whether express or implied, extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of the warranty.” In the case at bar, Mr. Mullaney was attending the Hawaii IDQ expo and had just obtained his registration materials from IDQ employees at the Booth when the Booth fell on him. He is clearly a person who could have been reasonably expected to use and be affected by the Booth. See HRS § 490:2A-216. Consequently, ATTCO’s implied warranties, as well as any express warranties, to IDQ also extended to Mr. Mullaney. ATTCO and Plaintiffs both contend that they are entitled to summary judgment insofar as count III asserts an implied warranty claim for the reason that they are entitled to summary judgment as to the strict products liability claim in count II. ATT.’s Mem. 13-15; Pls.’ ATT. Mem. 8. “[W]here a plaintiff seeks to recover for personal injury in warranty, the elements of the action should be governed by the same policies which presently shape the elements of a tort strict products liability claim.” Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 22, 837 P.2d 1273, 1284 (1992). “[T]o bring an action in implied warranty for personal injury a plaintiff is required to show product unmerchantability sufficient to avoid summary judgment on the issue of defectiveness in a tort strict products liability suit.” Id. at 22, 837 P.2d at 1284-85. In this case, the Court has concluded that genuine issues of material fact as to the issue of defectiveness which preclude the entry of summary judgment in the strict products liability claim asserted in count II of the Complaint. See supra Discussion Section II.C. The Court will therefore deny Plaintiffs’ and ATTCO’s motions for summary judgment as to the implied warranty claim set forth in count III. In summary, the Court will grant Hilton’s motion for summary judgment as to count III of the Complaint, but deny Plaintiffs’ and ATTCO’s motions for summary judgment as to that count. V. Count V of the Complaint: Premises Liability In count V of the Complaint, Plaintiffs allege (1) that Hilton negligently failed to maintain the property where Mr. Mullaney was injured in a manner which was reasonably safe and (2) that it failed to warn of the dangers posed by such failure. Compl. ¶ 24. Plaintiffs seek summary judgment as to this claim. “[T]he general rule with respect to all landowners is that ‘a possessor of land, who knows or should have known of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it.’ ” Richardson v. Sport Shinko, 76 Hawai'i 494, 503, 880 P.2d 169, 178 (1994) (quoting Corbett v. Ass’n of Apartment Owners of Wailua Bayview Apartments, 70 Haw. 415, 415, 416, 772 P.2d 693, 693 (1989)) (brackets and emphasis omitted). “[T]he question whether one has acted reasonably under the circumstances is for the trier of fact to determine.” Id. In this case, Hilton owned and operated the Hilton Waikoloa Village. It therefore owed a duty to Mr. Mullaney to take reasonable steps to eliminate conditions which pose unreasonable risks of harm or to warn against them if it knew or should have known of such conditions. See id. The condition that created an allegedly unreasonable risk of harm in this case was, according to Plaintiffs, the Booth’s susceptibility to tipping over in severe windy conditions. Hilton did not take the step of advising ATTCO of the strong winds prior to the incident. See Dep. of Mr. Anderson 69-72, attached as Ex. 2 to Pls.’ ATT. Mot.; Dep. of Ms. Mui 36, attached as Ex. 1 to Pls.’ Hil. Mot. The question is whether Hilton knew or should have known of the condition. Plaintiffs answer this question in the affirmative, citing the deposition testimony of the Hilton Waikoloa Village’s event planning supervisor, Ms. Mui. Pls.’ Hil. Mem. 3. She testified that she was aware that the grand staircase landing at the hotel was subject to strong winds. Dep. of Ms. Mui 33, 34, 37, attached as Ex. 1 to Pis.’ Hil. Mot. She knew the area well because it was one minute’s walk from her office. Id. at 54. She also knew that the Booth was going up in that location. Id. at 59. Ms. Mui’s testimony suggests that Hilton should have known that the Booth would be subject to strong winds — but not necessarily that it was susceptible to being blown over by such winds. Hilton has submitted evidence which goes the other way. It shows that, on the day of the incident, the wind conditions required that the papers in the Booth be weighed down, but the wind conditions were not strong enough to move the Booth until a sudden gust blew it over. Hil’s Opp’n to Pls.’ Hil. Mot. SCSF ¶¶ 16-18, 20, 22, 24-25. In addition, Ms. Mui testified in her deposition that all of the outside areas at the Hilton Waikoloa Village have the same exposure to wind. Dep. of Ms. Mui 37, attached as Ex. A to Hil.’s Opp’n to Pls.’ Hil. Mot. SCSF. She further testified that there have never been any events at the Hilton Waikoloa Village during the time she has been there where registration counters were blown over. Id. Ms. Mui also noted that she could not recall any events where other structures that were set up by an entity hosting an event were blown over. Id. Hilton also points out that, when Mr. Anderson was asked whether ATTCO had put up any counters or booths at the grand staircase landing prior to the incident at issue here, he testified that, on one prior occasion, he was asked to put up an “exhibit” at that location. Dep. of Mr. Anderson 68, attached as Ex. B to Hil.’s Opp’n to Pls.’ Hil. Mot. SCSF. He further testified that, on that occasion, there were no issues or concerns with wind conditions. Id. Plaintiffs contend that Ms. Mui’s and Mr. Anderson’s testimony regarding the absence of prior events is inadmissible. Pls.’ Hil. Reply 6. “ ‘Evidence of the absence of prior accidents is admissible, but the party seeking to rely on it must show that conditions during the period in question were substantially similar to those prevailing at the time of the accident.’” Pittman v. Littlefield, 438 F.2d 659, 662 (1st Cir.1971) (quoting Howe v. Jameson, 91 N.H. 55, 13 A.2d 471 (1940)). This standard has been applied in cases in which evidence of the absence of accidents is offered to show a lack of notice. See Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 376 (6th Cir.1983); Higgins v. Hicks Co., 756 F.2d 681, 685 (8th Cir.1985). Additional requirements have been imposed when a party seeks to use such evidence to establish the absence of a dangerous condition, particularly in products liability cases. See Forrest v. Beloit Corp., 424 F.3d 344, 355-56 (3d Cir.2005); cf. Jones v. Aero/Chem Corp., 921 F.2d 875, 879-80 (9th Cir.1990). In the present matter, Hilton’s evidence regarding the absence of prior incidents lacks proper foundation. Hilton has not established that Ms. Mui was working at the Hilton Waikoloa Village when the “exhibit” that Mr. Anderson set up at the grand staircase landing was in place or that the “exhibit” included a registration booth that was substantially similar to the Booth at issue here. Furthermore, Hilton has not shown that the wind conditions during the other events that involved booths or other objects were substantially similar to the conditions at the Hawaii IDQ expo on January 5, 2006. Accordingly, the Court concludes that Hilton has not provided the requisite foundation for the evidence regarding the absence of prior incidents. The Court therefore declines to consider that evidence in ruling on Plaintiffs’ motion. Nevertheless, Hilton’s evidence that the strong gust of wind was sudden and that winds on the day of the incident were not particularly strong, counterbalanced against the evidence that Plaintiffs have presented, demonstrates that there is a genuine issue of material fact as to whether Hilton should have known that the Booth was susceptible to being blown over by those strong winds. The Court will therefore deny Plaintiffs’ motion for summary judgment as to count V of the Complaint. For the same reason, the Court also declines to enter summary judgment against Plaintiffs as to count V sua sponte as Hilton has requested. See Hit’s Opp’n to Pls.’ Hil. Mot. 12-13. VI. Counts VI and VII of the Complaint: Punitive Damages Claims In count VI of the Complaint, Plaintiffs contend that Defendants were grossly negligent in failing to conduct their activities in such a manner as to protect the members of the general public, including Mr. Mullaney, against foreseeable injuries and harm. Compl. ¶ 27. And, in count VII of the Complaint, Plaintiffs maintain that the acts alleged in the Complaint were done wantonly, with reckless disregard for the safety of the public in general, and Mr. Mullaney in particular, or with legal malice. Id. ¶ 30. Based on these two counts, Plaintiffs make a claim for punitive damages against Defendants. Id. ¶ 39. A. Independent Punitive Damages Claims “Punitive or exemplary damages are generally defined as those damages assessed in addition to compensatory damages for the purpose of punishing the defendant for aggravated or outrageous misconduct and to deter the defendant and others from similar conduct in the future.” Masaki v. Gen. Motors Corp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989). “[A] claim for punitive damages is not an independent tort, but is purely incidental to a separate cause of action.” Ross v. Stouffer Hotel Co., 76 Hawai'i 454, 466, 879 P.2d 1037, 1049 (1994); see also Kang v. Harrington, 59 Haw. 652, 660, 587 P.2d 285, 291 (1978) (“An award of punitive damages is purely incidental to the cause of action.”). In the case at bar, count VII of the Complaint asserts a claim of punitive damages and count VI makes a claim of gross negligence to recover punitive damages. Compl. ¶ 39. Gross negligence is indeed simply one form of conduct that has “traditionally” served as a predicate for the imposition of punitive damages, that is, an “ ‘entire want of care which would raise the presumption of a conscious indifference to consequences.’ ” See Ditto v. McCurdy, 86 Hawai‘i 84, 91, 947 P.2d 952, 959 (1997) (quoting Masaki, 71 Haw. at 11, 780 P.2d at 572); id. at 92, 947 P.2d at 960 (reasoning that the jury need only “find either willful misconduct or entire want of care, to wit, gross negligence, in order to properly award punitive damages” (emphasis omitted)); id. (determining that there was an abundance of clear and convincing evidence upon which the jury could rely to find that the doctor’s care of the patient was “grossly negligent and therefore reckless and consciously indifferent to the consequences that could arise”); Pancakes of Hawaii v. Pomare Props. Corp., 85 Hawai'i 286, 293, 944 P.2d 83, 90 (App.1997) (“‘Gross negligence includes indifference to a present legal duty ....’” (quoting Iddings v. Mee-Lee, 82 Hawaii 1, 23, 919 P.2d 263, 285 (1996) (Ramil, J., dissenting)) (brackets and ellipsis omitted)); Black’s Law Dictionary (defining “gross negligence” as: “1. A lack of slight diligence or care. 2. A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages.” (citation and emphasis omitted)). Insofar as counts VI and VII advance independent claims for gross negligence and punitive damages, Hilton is entitled to summary judgment as to those counts. And