*1 AJIROGI, Plaintiffs- and TERUKO HAROLD H. AJIROGI HAWAII, Defendant-Appellant OF Appellees, STATE v. FURUTA, STATE Plaintiff-Appellee, OF ROBERT v. HAWAII, Defendant-Appellant
NO. 30, 1978 AUGUST RICHARDSON, C.J., KOBAYASHI, MENOR and KIDWELL, 'JJ., and CIRCUIT SODETANI JUDGE OGATA, J., place recused. *2 KIDWELL, THE
OPINION OF COURT BY J. baffling prob- This case involves one of most society’s patient. lems: that of the mental Plaintiffs- borderline appellees injuries resulting seek to recover from the State for an escapade by (hereafter such an individual referred to T). trial, In as a bench the trial court found that the State had hospi- been T the State permitting escape tal ill and was mentally (hereafter hospital) for the the State caused, injuries by operation liable for the his subsequently appealed judgment awarding a stolen car. The from a damages to appellees. We reverse.
I. on injured The accident which were occurred time, single September year 1972. At that T was a 23 old several hospital male who had been admitted to the State times examination or treatment of mental disorders. voluntarily 12 he admitted to the State When he was was Home) (hereafter hospital mentally for the retarded Waimano discharged having after been in five foster homes. He was year and was from Waimano Home a later as non-retarded ill a district thereupon adjudged mentally and ordered After about magistrate hospitalized hospital. to be the State Youth Correc- years two he was transferred to the Hawaii hospital tional he to the State Facility. 1968 was readmitted birthday discharge. was a full shortly given after his 20th discharge summary at the time of the prepared clinical stormy” notes that “his course in the was indeed was returned that on several occasions he went AWOL and committed, but police burglaries after had been barely two readmitted charges usually dropped. were He was their which recorded physicians’ months later on certificates but acute, type”, undetermined diagnoses “psychotic, “im- days later as a few from the discharged proved”. admission and the last mentioned
During period court order pursuant discharge, T was under examination charge under a responsibility his criminal to determine physicians three re- panel A larceny degree. in the first alleged (June offense the date of the ported that T had been on report (September 21, 1969) as as on the date of well rendering him in- derangement mental 1969), “acting under act criminality competent to discern the nature “incompe- panel reported also that was done him”. The *3 object proceedings the tent to understand the nature and him, in reference to against comprehend his own condition a ra- attorney making his in proceedings such and to assist 25, in Cr. No. By September filed tional defense”. order the 39852, hospi- committed T to State the First Circuit Court discharge were tal as Leaves of absence other than insane.1 provided: § then HRS 711-91 felony. sanity person §711-91 for Whenever a Examination as to indicted person felony by grand jury, judge a the of the court in has been indicted for a discretion, any person may, which the is to be tried for the offense in his before by psychiatrist charge, person the trial on the criminal cause the to be examined any designated psychiatrist hospital or of the state or the director ofthe bureau of hygiene by opinion physicians mental who in the and two additional unbiased judge qualified insanity, a the the are as examiners in with view to determine person any mental condition of the and the existence of mental disease or defect responsibility. every person which would affect his criminal such case the shall placed hospital the order of the in in the or elsewhere court detention state may purpose period days as the court direct the for a often for ofthe examination days, completion or until of the if not concluded within the ten and examination persons making the so the shall file with the court their written examination court, thereon, report opinions report the and which shall be accessible prosecuting attorney, attorney the the the accused. If the court deems for report present insanity irresponsibility of the conclusive of the then or mental case, accused, may prosequi and in the court be entered in the allow nolle adjudge forthwith, proceedings, that further the case shall without other or discharged hospital until accused to be insane and commit him to the state provided by law; proceed may in or the court direct the trial of the accused existing alleged jury any that case the of the then shall determine issue making previous physicians irresponsibility. compensation of the mental The paid and shall be examination shall be such reasonable sums as are allowed State. 9, 1, 1973, by § repealed, 1972. HRS Act S.L. 711-91 was effective June 10, February hospital’s
authorized court on 31, files indicate that T leave March was absent without on mainland, he 1970 and was next heard of on the from which 20, again was returned on December 1971. He became 23, 1971, on December and was AWOL fled to the mainland police custody jail. Apparently returned in Halawa because attempt, hospital of a suicide T was returned to the on 22, conditionally discharged March 1972. He was to Halawa 2, jail upon finding, on as recorded in the records June hospital, any psychosis”. of the State that “he does not have 12, 1972, 44452, July T was indicted on in First Cr. No. Court, robbery July Circuit for on degree the second 17, 1972 was ordered transferred to the State for examination, mental examination. The formal order for T’s appointing physicians three to conduct the examination and directing that T be placed detention the State examination, purposes August of the was issued on report panel, August 1972. The of the dated 1972 and filed 15, 1972, September although T “has a definite found personality disorder and also of borderline mental intelli- [is] gence”, any suffering he was not insane or disorder wrong ability right which would affect his to know on day alleged (January 1972) crime and on the date of sane, condition report comprehend able to his own *4 T’s attorney making assist his in a rational defense. and to examination, with counsel renewed his motion for a mental composed that a new of two of panel appointed, the result was panel together the former with a substitute for the state- health. employed psychiatrist designated by the director of 1973, 13, 24, the By April April letter dated 1973 and filed panel joint physical T’s reported diagnosis new a of together mental condition as borderline mental retardation dysfunc- with mild to moderate diffuse and chronic cerebral malingering and panel diagnosis tion. Two of the added a diag- impulse panel disorder of the added his control. One of possible emotionally nosis of in an unsta- syndrome Ganser’s personality. ble that T not lack the panel agreed did capacity against him and to proceedings to understand the defense, assist in not lack substantial his own and that he did conduct, his but capacity appreciate wrongfulness the his capacity that he did lack substantial to conform conduct reported pre- that T requirements panel the of the law. The ’’ danger a risk of to himself or to sented “mild to moderate others, a of his inabil- person property “chiefly result ity may to control situations that he himself initiate”. The panel suggested T as tenable were dispositions of which being given to the prison confinement with consideration health outpatient treatment at a mental prison hospital and suggested by the hospital center. Return to the State was not panel. 1, 1973, stipulation
On a was No. filed Cr. June signed personally by T as well as T’s counsel and agreed counsel for the in which it was that T lacked capacity substantial require- to conform his conduct that, disability, ments of the law and due his mental T person property. By stipulation constituted a threat to it agreed appropriate was further that T be confined in an 18, 1973, judgment rehabilitation institution. On June acquittal was entered Cr. No. and T was ordered placed hospital, in the State with release or transfer forbidden except upon order of the court.
The critical date in this narrative is August 1972. On date, residing part was in a designed keeping detention, for the patients although he permitted was to leave his room under surveillance of designated attendant, attendant. Due to the of this court, as found go the trial T was allowed to unescorted and out of the direct line of the sight dispose attendant’s of a paper plate lunch in a wooden utensils waste basket located near an open gave door which access to the grounds. door, T bolted through the the attendant failed to pursue him diligently days escape. and he effected his Four later T operating speed stolen car at an excessive on wrong side of roadway, fleeing while the scene of a burglary, and occupied by appel- crashed head-on into a car *5 lees. The trial court rea- found that this conduct of T was sonably State, expectable foreseeable as an conse- quence of negligence in that the permitting escape, in negligence permitting escape proximate
State’s was a appellees’ injuries. cause of the collision and
II. apply expressed The rule which seek to in § 2d 319: Restatement of Torts Duty Charge § Those in Dan- Having of Person
gerous Propensities a third charge person who takes whom he One likely bodily knows or should be to cause know to harm if to others not controlled is under a person exercise reasonable care to control the third prevent him harm. doing such The comment this is as section follows:
a. The rule stated in
to two sit-
applies
this Section
uations. The first situation is one in which the actor has
charge
persons
of one or more of
class of
to whom
tendency
injuriously
to act
is normal. The second situa-
charge
person
tion is one in which the actor has
of a third
belong
peculiar
who does not
to such a class but who has a
tendency
expe-
personal
so to act of which the actor from
rience or otherwise knows
should know.
exercising
liability
of the State for
con-
custody
judged
under the same
persons
trol over
its
is to
principles
liability
of tort
as those which determine the liabil-
§
ity
private
individuals in the same circumstances. HRS
662-2;
Upchurch v.
51 Haw.
454 P.2d
Exceptions
liability
provided
so determined are
HRS
§
we do not reach
662-15.
the view we take of this case
exceptions, upon
consideration of these
which the State does
rely. Nevertheless,
not
of tort
general principles
the fact that
liability
applicable
place beyond
are
does not
our considera-
by appellees
tion the
upon
fact that the
of care relied
in an
custody
patient
arose out of the
a mental
State’s
therapeutic
designed
operated
institution
to administer
§
care
if it is
and treatment. The black letter text of
*6
in
disparate conclusions
correctly snythesize the
assumed
what con-
case-by-case determination
cases,
for
leaves
these
person
to control
reasonable care
the exercise of
stitutes
and the
the detention
purpose
custody. Clearly,
in
both
liberty
are
person
setting the detained
risks of
foreseeable
Thus,
in
making
in
determination.
to be considered
in an action under
government
for the
affirming
judgment
2674, for
Act,
1346(G)
§§
28 USC
Federal Tort Claims
had been released
patient
a mental
who
injuries
inflicted
Appeals
Court of
leave,
the Fourth Circuit
therapeutic
on
to be balanced
patient
were
recognized that the benefits
granting
such
society
against
patient
the risks to
1969).
States,
(4th
A of the of the State status as a resident fact that T was a dual 29, been adminis- Although he had hospital August on jail on discharged to the Halawa tratively conditionally June September 2, 1972, by the court order his commitment So far as this discharged by court action. 1969 had not been discloses, patient, mental T remained a committed record 10, 1970, February permitting leaves of subject to the order of at the placed T been in detention absence. had also to deter- hospital purposes of a mental examination for prosecution. in a responsibility pending mine his criminal and their con- responsibilities hospital authorities arguably T in the detention of were sequent duties of care occupied.2 each status which different in relation to duty in the of care may have existed Whatever differences status, however, in all cases liability would arising out of each leaving the have may No. examination if T have owed no For example, justified authorities had been set at was entitled, by granting in their if may his toward mental have owed no relationship $1000. leave condition, posting of absence. Similarly, to restrain T to T as bail, as then toward to secure his professionally committed under the order appellees release. the hospital mental to restrain diagnosed, would T’s patient, psychiatric bail, authorities T from Cr. predicated upon principle. principle the same This 156, 174, Rodrigues v.
stated in
Haw.
472 P.2d
*7
(1970):
right
recovery,
521
“Thus a further limitation on the
of
cases,
negligence
obligation
as in all
that
to
is
the defendant’s
particular
only
refrain from
conduct
is owed
to those who are
foreseeably endangered by
only
respect
the conduct and
with
to those risks or hazards whose likelihood made the conduct
unreasonably dangerous”. The orders issued to subordinates
leaving
in the
staff
hospital
requiring
prevent
them to
hospital
obligations
they
created
which
owed to their
superiors but did not in themselves
duties owed to
create
appellees.
Excelsior
Ins. Co.
New York v.
of
States,
(1946);
N.Y.
III. significant are of fact trial court which findings are as care to to the issue of the State’s follows: negligence on escape
19. Mr. was the result of [T’s] *8 part the the Defendant State of Hawaii. August 1972 when Mr.
20. Prior to and on [T] ample the Defendant State of Hawaii had escaped, himself, difficulty controlling knowledge of Mr. [T’s] the at conform his conduct inability his times to law, charges requirements prior acquittal his to es- insanity propensities crime for reason of and his crimes, thefts, stealing dangerous and cape, commit car automobiles, a driver’s license. operation of without 21. In the case in which the order was particular at the State requiring made Mr. to be held detention [T] examination, Number Hospital for a mental i.e. Criminal charges Mr. the for acquitted the Court [T] insanity. reason of August 1972 the Defendant Prior to and on
State of Hawaii knew that Mr. had a fascination [T] a car. cars and had never been licensed to drive 2, 1972, days escape after his September 23. On four miles speed Mr. at an of 65 operated car excessive [T] per roadway hour on and collided wrong side of by the Plaintiffs and occupied headon into a vehicle motor contributory negligence. any free of Plaintiffs were operating had been 24. The car Mr. was which [T] burglary stolen the scene of fleeing and he was police the collision. the time of 25. The conduct of Mr. in findings described [T] and 24 above expectable. was
26. The conduct of Mr. findings described in said [T] 23 and 24 something was reasonably which was foresee- by able the Defendant any State of Hawaii from negli- gence in permitting Mr. escape. [T]
27. Said negbgence on part of Defendant State of Hawaii proximate was a cause of the collision between the September 2, cars on injuries 1972 and the damages sustained the Plaintiffs.
Appellees injuries suffered their consequence as a T’s negligent operation anof automobile. The question which the Rodrigues presents test is whether the risk to appellees of such conduct T sufficiently was foreseeable authorities as require the exercise of reasonable care to prevent control doing him from such harm. Thus the foreseeabibty of escape T’s hospital, his theft of an automobile and his attempt to commit burglary are insuffi- cient to meet the Rodrigues test if it was not also foreseeable that T operate would the stolen car in a negligent manner so to endanger others on the road. expert testimony No offered to establish the foreseeabibty of such conduct on the basis of psychiatric history T’s diagnosis. The psychiatric history contained in the suggest record does not any attempt had been T, made to determine the if likelihood that he found in possession automobile, himself might oper- of an *9 ate it endanger so as to Moreover, both himself and others. the foreseeabibty of future psychiatric conduct on the basis of examination diagnosis subject See, and is question. to serious Diamond, e.g., Psychiatric Dangerousness, Prediction of 123 U. Pa. L. (1974); Burnick, Rev. 439 People v. P.2d 535 (Cal. 1975). 365
The trial court found that knowledge the State had of T’s propensities to dangerous operation of automobiles and “a cars”, fascination for as web as that he had not been licensed to drive a car. record, From our examination of the it is apparent that finding predicated this upon reports narrative diary charts, entries hospital recording contained in T’s what was bebeved hospital employees various to have hospital. absences of T’s during several occurred In the first reported. are theft in 1968 of car Two incidents T report, as T’s own is recorded incident, according to what recklessly at Waikiki, drove parking a lot a car from took slightly Waikiki, the car damaged through high speed In lot. parking it to the returned a curb and scraping against at- a car while incident, damaged reportedly the second and, accord- in Waikiki parking it lot tempting to take Appel- attendant, him down. attempted to run ing to lot by their to these incidents our attention have directed lees any other incident attention to briefs, have not called our but by T nor of an automobile involving dangerous operation record,4 although any in our search of have we discovered reported. many absences from the State are by T in operation These two automobile incidents of the find- only support constitute the evidence which tends of auto- ing operation that T propensity dangerous had a August was known to the State on mobiles which have much the same Knowledge propensity of such a would on the a foundation for a claim based significance laying large able to permitting T to be at State’s it would for a claim possession obtain of an automobile as an of an automobile to negligent based on the entrustment 50 Haw. incompetent Garages, v. Onorato driver. Abraham to consider (1968), we had occasion 446 P.2d an entruster prior charge incidents to sufficiency known hit run A knowledge incompetency. of a driver’s with years some four involving parked conviction automobile conviction, joyriding an earlier prior entrusting,- plus find permit jury were en- held insufficient Exhibit 14. This December was held in automobile had been stolen but that upon nothing A copy to indicate in what the matter was 31, 1962, custody of a Juvenile report after a near collision. It can be inferred is contained in shows that T was seen Detention dropped. manner T *10 Although Report the State operated learning of the Honolulu operating a near collision the car. that T was a resident an automobile in Waikiki records Police from the mentioned, Department, and is report of the State Plaintiff’s there is dated
trustment.5 may The facts of which the State have had notice in present the provide case even weaker inferences of a propensity operate to an dangerously automobile than those which we held to be insufficient Garages. in Onorato
It is
liability
injuries
clear that
by appellees
suffered
predicated
must be
on the foreseeability
the
risk which
produced
injuries
the
supported by
cannot be
the foresee-
ability of other risks of harm
appellees.
to
In Rodrigues,
we affirmed an award
damages
plaintiffs’
to
property
but remanded for further
plaintiffs’
consideration of
claim
suffering
by
for mental
caused
the same
negligence
act of
remand,
Upon
the State.
trial
the
court was directed
to
foreseeability
consider the
of serious mental distress to the
plaintiffs although
foreseeability
damage
prop-
the
to their
erty
already
had
been determined. Thus we do not view as
question
liability
relevant
to the
negli-
of the State’s
for T’s
gence in operating
findings
the stolen car the
of the trial court
that the State
“propensities
escape,
was on notice of T’s
crimes,
thefts, (and)
commit
stealing”.
car
An illustration of
companion
distinction we draw is
in
found
cases
State,
of Green v.
(La. App. 1956),
Whether the facts before the court case permitted finding negligent operation the risk of pressed 825-26. that his retention in service would be at the conviction were known or single sufficient We incident with incorporated permit respect occurring to the jury into some four to decide that imputed negligent years prior to the promotion employer, entrustment driver was incompetent employer’s issue, promotion we are not convinced Id. risk”. that “even if the hit and run holding manager to such a conclusion, would be that this P.2d at degree ex
527 the by sufficiently meet car foreseeable stolen is a liability part question the the State test on of Rodrigues of by the trial court’s the court not bound upon of law which Ltd., Haw. Supply, In 56 finding. Kelley v. Kokua Sales & summary 204, judgment a (1975), P.2d 673 we affirmed 532 law, that, as a matter the conclusion of upon defendant our for distress was not harm to of serious mental plaintiff risk of among those to sufficiently plaintiff to include the foreseeable a operation care in the of defendant’s extended whom Kelley, the pointed recognition vehicle. As we out in motor an foreseeability consequent duty expres- the of care is balancing the The policy sion of result of considerations.6 category case falls into a in which the courts have present consistently foreseeability has refused to find that the test met. been escapee negligent of an automobile an operation has, the which a institution in all cases penal or mental attention, be so
have come to been held to remote our permit which consequence unforeseeable a the liability imposed escape that no has been on ted State, injuries. Green v. escapee’s for resultant custodian 1961); Tibbs, (Cal. App. supra; Azcona 12 Cal. 232 Rptr. v. Co., Fidelity Supp. & 263 F. 88 Virginia Casualty West v. State, (D.C. 1967); W. Va. Dunn v. 29 N.Y.2d 327 (1971); Pemberton N.Y.S.2d N.E.2d 647 v. Common 277 wealth, Annotation, (Ky. Liability of 1966); 487 S.W.2d permitted harm public body by prisoner officer or for done escape, 44 v. 3d 899 Williams A.L.R. (N.Y. a vio 1955), prisoner history a without
N.E.2d 545 escaped security prison a minimum farm lence hemorrhage brain a local farmer caused death of apellants “Thus, notwithstanding sympathies loss and for our for the their Kelley, suffering various Mr. of the considerations of and death of reevaluation liability appellees question court pertinent leads this of an untrammeled law, (duty conclude, appellees that the not owe to refrain as matter of did Kelley. upon care) mental distress Mr. from the infliction serious above, terminology, reaching but in a same conclusion “Stated different reasonably consequences to Mr. not foresee the hold that the could we Kelley.” Id. at 532 P.2d brought on fright when he was forced carry escaped prisoner in his truck. Liability part on the of the state was denied for lack of foreseeability of the risk. placed The court *12 its decision both on conventional legal principles and on public policy to avoid discouraging the use of minimum se curity penal facilities, pointing out that in the absence
aof foreseeable risk to the decedent the state did not owe him a duty distinct from its public duty premature to avoid return of prisoner society.
The standard
duty
appellees
which the State’s
is to
be determined in
present
case
also has
relation to the
legal and
ambiguities
medical
with which the administrators
must
policy
deal. The record shows that a
of
security
T,
minimum
had been
in
extended to
his status as a
committed mental patient, by a
permitting
court order
leaves
of
Upon
absence.
a showing that he was not dangerous to
others, might
himself or
have asserted his constitutional
right
Donaldson,
to freedom as
declared O’Connor v.
(1975), subject
U.S. 563
to inquiry whether his confinement
was necessary to his treatment.
foreseeability
The test of
risk which
determines the State’s
of care to
does
produce
not
a different result whether T’s status is
viewed
patient
as that of a
a prisoner
psychiatric
or of
under
examination.
imposed
The
of care which is
upon the
administrators of the State
should be one which
arises out
an appropriate balancing
in pro
of the interest
tection of individuals from foreseeable harms and the interest
therapeutic
use of
procedures
hope
which afford
of return
ing
patients
community
mental
as useful members of
society. These
against
considerations militate
a rule which
requires preventive detention
mental
patients
the ab
States,
sence of
supra,
discernible risks. Eanes v. United
(1970);
Hilscher v.
64 Misc. 2d
We conclude that the record does not negligence by actionable the State in this case under judgment is reversed. Rodrigues test. General, Libman, Attorney State of Deputy
Charlotte E. Hawaii, defendant-appellant. for (Nishimura, K. Lee & Shimabukuro
Herbert Shimabukuro counsel) Ajirogis. plaintiffs-appellees counsel) for Noguchi Wong H. (Okano, David White & plaintiff-appellee Furuta. KOBAYASHI, J„ OPINION OF
DISSENTING WITH WHOM CIRCUIT SODETANI JOINS JUDGE suffered injuries for the my opinion, liability State’s approaches: either of two by Ajirogi can be found on Duty: I. *13 2d, 319, provides: Torts
Section Restatement of having Dangerous Person Duty Charge Those in Propensities charge whom he person
One who takes of a third bodily harm to likely to be to cause should know knows or exercise reason- if is under a to others not controlled him from prevent to person to control the -third able care doing such harm. this is as follows:
The comment to section applies to two situa- a. The rule stated in this section the actor has is one in which tions. The first situation to whom charge persons more of a class of of one or situa- The second tendency injuriously to act is normal. person a third charge has tion is one in which the actor a peculiar who has belong to such a class but who does not expe- personal the actor from tendency so to act of which know. knows or should rience or otherwise majority in their by the It is uncontested and admitted 29, 1972, the State August that at the date of opinion critical detention) of held in charge (committed, custody had or had T.
530
T’s commitment person State as an insane 25,1969, September court order of remained undischarged placed court action. T had also been in detention State for the purposes of a mental to examination determine his criminal in a responsibility pending prosecu- tion.
In
T
from the
prosecution
pending,
escaped
which was
T’s status
the trial
hospital prior
any disposition
State
court,
experts, and
report
panel
based on a
of a
of medical
(1968).
§ 711-91
provisions
accordance with the
of HRS
the trial
negligent,
that the
was
as
No one doubts
found,
escape.
T
permitting
court
319,
my
clearly,
Restatement of Torts
opinion,
Section
2d,
to exercise reason
applies and the State was under
prevent
harming appellees.
able
T from
care to control
State,
States,
(1968);
v.
Thall v.
69
United
As the ill, retarded, mentally in- mentally age diagnosed sane, hospi- mental The State suffered from disorders. and/or regard to T’s very long tal knows T well and has a record hospital. The State confinement at the State frequent *14 person harm himself and the fully propensities aware of T’s of others. property knowledge had majority opinion in their minimize The person himself or the to harm propensities the State of T’s of others. property v. Onorato Further, majority misconstrue Abraham Onorato, this 628, (1968). In P.2d 821 Haw. 446 Garages, 50 involving conviction that “a hit and run did not hold court an entrusting, plus years prior four parked automobile conviction, permit were held joyriding earlier insufficient ” added.) (Emphasis find entrustment. jury 531 Onorato, Court, actually stated: “There is no This this criminal any knowledge had evidence Onorato it Therefore, it be held liable . . . unless should record. cannot demonstrated purportedly have known about the facts which added.) (Emphasis Id. 50 McCoy’s incompentency. ...” 633, Haw. at 446 P.2d 825. commentary in the
Clearly, either alternatives stated rea- applies Section 319 herein. The State failed to exercise harming sonable care T to T from prevent to control appellees. liability exercising con- persons custody judged
trol over in its is to be under the same the liabil- liability of tort as those which determine principles § ity private individuals in the same circumstances. HRS 662-2; State, 150, (1969). v. Haw. P.2d 112 Upchurch 51 454 Foreseeability: II. opinion in their misconstrue my opinion, majority
In
Rodrigues
v.
opinions
the tenor of the court’s
both
&
(1970),
Kelley
Haw.
Duty, legal is a conclusion which policy upon “the sum total of those considerations say particular plaintiff that the which lead the law to added.) (Emphasis protection.” entitled to P.2d at Haw. at Inc., the court supra, & Kelley Supply, v. Kokua Sales states: limitation proper a reasonable and Without by appellees,
scope
care owed
unmanageable, unbearable
with an
would be confronted
totally
liability.
unpredictable
*15
Thus, notwithstanding
sympathies
appel-
our
for the
lants ... a reevaluation of the various considerations . . .
conclude,
law,
leads this court to
as a
that the
matter of
care)
not
duty
(duty
do
owe a
to refrain
of
the
infliction of
upon
serious mental distress
Kelley.
added.)
Mr.
(Emphasis
In Kelley foreseeability this Court dealt with the matter of only in limiting scope duty connection with “the of the care”, only incidentally consequence and concluded that the Furthermore, Kelley to Mr. Kelley was not foreseeable. can clearly if distinguished Kelley, from the instant case. In care”, “scope duty this court did not limit the of the the liability of the premised actor could have been on a world- possibility wide basis. Such does not exist in the instant case. And there is no such urgency policy requirement herein to limit “scope of care” of the State. (1954),
As stated in
Territory,
Carreira v.
. . . but where there is no conflict from the evidence and facts, but one inference can be drawn from the it is the duty of the court pass upon question proximate cause questions as of law. herein, That is not the case tacitly admitted majority in opinion. their
Clearly,
case,
in the instant
foreseeability
question
is a
fact as determined
the trier of fact.
Payton,
(1977),
Farrior v.
57 Haw.
this Court with approval following York, City (1975): Machacado v. New 2d 365 N.Y.S. “It jury is for a to determine whether the owner had do it knowing other than erect the fence that his upon public bordered sidewalk used dog the propensity charge frighten passing had at and pedestrians. “Similarly, proximate issues cause
foreseeability . questions are . . of fact. “The exercise of reasonable care transcends the fence thereby jury’s itself examination of all of the requiring *16 leading up injury. circumstances “Whether an owner owes further than no to erect a fence under the of this case and without circumstances other safeguards reasonable is a question restraints answered community through jury’s standards (Emphasis added.) verdict.” 631-32, also,
Yet, 52(a), HRCP, that, Rule provides “in all actions tried upon the facts jury findings without a . . . of fact shall not be set erroneous, aside unless clearly regard and due shall be given to the opportunity of judge the trial court to the credibil- ity of the witnesses.” See Associated Engineers & Contrac- tors, Inc. v. 58 Haw. P.2d my opinion, findings of fact of the trial court are sufficiently, in fact strongly, supported by the record herein. foreseeability of the risk of harm is by Prosser, stated Torts, Law 4th ed. at (1971), inas “universal agreement what required to be is only foreseeable ‘general ‘general character’ or type’ harm, of the event or the and not ‘precise’ nature, its details, or above all manner of occur- rence.”
I ground see no to reverse the trial fact, court. In on the matter balancing considerations, policy my opinion, this case is an outstanding case wherein the State must be held liable for its dereliction and be required pay for the harm resulting to the appellees. justice equity Sense of calls for such a result.