*1
As
in the same fashion.
stated earli-
tained
[or she] is either released
The individual could nonetheless suffer re-
peated deprivations, and it is certain that similarly will persons situated allegedly under the unconstitu-
detained short, claim, procedures.
tional is distinctly “capable repeti-
one that is tion, yet evading review. (em-
Gerstein,
phases see also 467 U.S at 3,n. S.Ct.
Thus, juveniles pretrial detention of public
matter of substantial interest
presents that would review be- issues evade temporary nature of such custo-
cause violations,
dy. prevent order detention types
this court must be these able review
of cases.
X. respectfully
Accordingly, I must dissent analysis majority’s disposition and
from the
in this case. moot, impact of unlawful detain- It be observed that both Gerstein and have been should McLaughlin distinguishable present from the presented a live ment on the class members still they civil actions. case in that involved class controversy. Accordingly, although ihe individual cases *3 Yun, Najita (collectively
David and Kazutoshi Defendants) regarding to exclude evidence performance persons who reviewed promotion application. Plaintiffs But we hold the court di- erred recting a as to Plaintiffs of in- verdict tentional infliction emotional distress. However, harmless, in- the court’s error was jury expressly asmuch as the found for the regarding Defendants claims, all of which *4 on formulations turned Osaki, Honolulu, briefs, H. Carl on for the entailing stringent thresholds less than the plaintiff-appellant. “outrageous requisite conduct” standard Kathleen N.A. and R. Watanabe Sarah an intentional infliction of emotional distress Hirakami, General, Deputy Attorneys State addition, clarify claim. In we that the ele- Hawai'i, briefs, on the for defendants- ments of an action for intentional infliction appellees. 1) of emotional distress are that conduct the causing allegedly the harm was intentional ACOBA, HIFO, J. Judge and Circuit 2) reckless, or that outra- the conduct was by Assigned Vacancy, Joining Reason in 4) 3) geous, and conduct the caused I-V, Concurring Parts VII-VIII and Ac- extreme distress another. VI; LEVINSON, Separately as to Part With cordingly, affirm March final we J., Concurring Separately parts toas IV and in judgment favor of Defendants and VI-VIII; Joining V and In Parts I—III and Plaintiff. MOON, C.J., and Concurring in Part and NAKAYAMA, Part, joined Dissenting in I. J. August Plaintiff was hired as On ACOBA, Opinion posi- as to in professor Court J. an associate a tenure-track I, II, III, VII, and in Department Engi- Parts VIII and of Electrical tion Announcing Judgment neering Engi- (Department) College of the Court as in the V, IV, neering and (College) University Parts VI. of Hawai'i (University). ap- In October hold that We the circuit court the first plied granted for and was tenure effective (the court)1 circuit did not its abuse discre- 1,1994. July (1) denying compel tion in a motion to discov- (Plain- ery by Plaintiff-Appellant appli- Anna Hae In October Plaintiff filed an tiff) prejudice providing promotion an “for rank of as- without and her cation from the opportunity discovery request professor professor.” to full re- tailor her sociate motion, viewing promotion,’ granting application her and mo- for re-file Defendants-Appellees Department personnel tion in limine of Uni- committee evaluates Hawai'i, Lin, Yuen, application versity according Paul Shu Bha- to the candidate’s Kinariwala, Gaarder, rat Department’s N. Thomas James and for “Procedures Criteria Koide, Kuh, Holm-Kennedy, Anthony Frank Promotion”2 and writes a recommendation presided quires rating 1. The Honorable Steven M. Nakashima teaching or re- an "excellent" search, trial "good" remaining over the herein. areas. and in the two According Department’s to the "Procedures upon will Each candidate be evaluated based Promotion," personnel and Criteria for com- accomplishments following in the ar- his/her applies following mittee standard in review- eas: ing application promotion. a candidate's for teaching Each candidate's Teaching. accomplishments evaluated on based teaching, Each candidate will evaluated effectiveness, research, teaching course [or her] his rating poor, with scale sendee laboratory developments. fair, adequate, positive evalua- good, The or excellent. A promotion professor teaching re- tion is based recommendation effectiveness for obtaining teaching, poor Department and a record findings to the Chair- tive of its Thus, Chairperson Department funding. according to the person. external personnel committee, reviews committee’s then Plaintiff did not meet personnel and issues a decision requirements professor recommendation sta- to obtain application. Although not clarified tus. record, appears Dean it 1995, Plaintiff submitted a sec- In October College Department’s may review profes- application promotion to full ond if the dis- candidate recommendations Again, request her sor status. Department’s and Col- agrees with the personnel committee. was denied determination, may appeal lege’s he she Lin, Yuen, agreed review committee University’s Tenure and Promotion to the with decision. committee) (review Review Committee Depart- application and the review Plaintiff filed On November College’s decisions. From ment’s Equal Em- charge of discrimination ease, transpired present ap- it in the what (EEOC), Opportunity ployment Commission may pears the review committee stating application that her October determination, make final promotion was and that denied June 1995 College’s Department’s and overturn the dis- [she] been “[she] believe[d] ha[d] *5 reject promotion. decisions sex, against of criminated because Fe- [her] male[,] Polish[,] origin, ap- and in viola- in November Plaintiffs national Sometime of professor Rights Title VII of the Act plication position for a full tion of Civil 5, 1996, At personnel August Plaintiff filed' 1964[.]” denied committee.3 On time, discrimination, personnel members substantially charge the committee similar Gaarder, Kinariwala, chairperson, claiming promotion that her October 1995 Koide, Kuh, Kennedy, Yun.4 Lin Holm and May in for the application was denied Department before was the Chair of the from reasons. aforementioned August 1991to December 1995. Plaintiff, third for the October personnel De- applied The committee time, applied promotion profes- for and for Pro- partment’s “Procedures Criteria Lin, committee, personnel and sor. The evaluating application in Plaintiffs motion” promotion. again objected to the The Yuen promotion on the against and voted her however, committee, recommended review she, alia, ground that not met “ha[d] inter promotion. pro- departmental requirements for charge Plaintiff third of discrimina- filed a Lin, Department at motion that level.” 19, 1996. tion with the on November EEOC application at the chair time (1) alia, stated, charge inter that: “[o]n The time, Yuen, promotion, and at the Dean 4, 1996, met with [she] October Chairman as- agreed personnel with committee’s Najita placed on requested and be [she] unani- review committee also sessment. The Committees”; Department Professional personnel mously agreed with the commit- (2) committee, because, placed any on “[she wa]s had although action tee’s articles, though professionally quali- journal was] published [she had unfavora- even she (3) committee”; evaluations, every on and student low score effec- fied ble 3.Sendee. The candidate’s service is evaluat- lecture student evaluation candidate’s following [Department, ed in College, University, levels: die organization, teaching and attitude his/her State, National, and contact, and on the student's overall student International.] rating the instructor. (Some emphases original emphases and some added.) The accom- 2.Research. candidate's research plishments [ot- are evaluated based on his rejection specific is not denot- 3. date of activity, significance of his or her] research ined the record. research, publication her work or research considered) (quality quantity and Najita Department both from Chair of the January Yuen was the Dean of the grants. research College from to 1995.
Q7 College been terms ber Engineering “[she] ha[s] denied same their (3) students”; employment colleagues, “any complaints conditions of as [her] student about (4) [Defendants]”', “any complaints having [her] retaliation filed student any person about other EEOC.” who served as a faculty College Engineer- member of promoted Plaintiff was professor to full ing time that also so [Plaintiff] July 1997. served”; (5) “any application promotion July complaint On Plaintiff filed a (6) ”; made “any tenure [Defendants] the court Defendants. Plaintiff application or tenure made (1) asserted: sexual harassment under Title present by any person 1987 to from Rights VII of Civil Act of U.S.C. who faculty served as a member of Col- (1994) (Title (2) seq. VII);5 § gen 2000e et (7) lege Engineering”; “each and der, ethnic, origin and national discrimination every post-tenure review conducted (3) VII; under Title retaliation under Title College Engineering!.]”8 member of [the] (4) VII; unlawful discrimination under Ha added.) (Emphases (HRS) 378;6 wai'i chapter Revised Statutes The court heard motion on December (5) deprivation rights under U.S.C. January 1998 and issued an (1996);7 negligence; defama denying grounds order the motion on the tion; intentional infliction of emotion request narrowly was not tailored al distress. it did not “establish sufficient simi- scope larities between herself and the A. subject discovery[.]” matter On November Plaintiff filed a B. (motion Compel Discovery Motion to to com- *6 pel). In compel, February during her motion to Plaintiff pre-trial pro- re- On quested relating “any ceedings, all documents to: Defendants filed motion limine performance plan appraisal comparing perfor- to [De- exclude evidence the and/or for ”; (2) “any any persons evaluation of mem- of the who mance had reviewed fendants] 2000e-2, statute, relating § who, any 5. 42 U.S.C to unlawful em- [ejvery person under color of ordinance, custom, ployment practices, part pertinent regulation, usage, any states or Columbia, Territory follows: State or or the District of subjects, any subjected, or causes to be citizen practice It an employment shall be unlawful person the United States within the or employer— an jurisdiction deprivation any to the discharge to fail or to hire or thereof refuse to rights, privileges, or immunities secured individual, any or otherwise to discriminate laws, arid Constitution shall to the be liable any respect against with to his individual com- law, equity, party injured suit terms, in an action conditions, pensation, privileges or proper proceeding redress[.] or other race, employment, such because individual’s added.) color, (Emphases sex, religion, origin[.] or national added.) (Emphases they produce note Defendants did docu- (1993 Supp.1994), relating § 6. HRS 378-2 & to Kuh, pertaining who ments to Professor was discriminatory employment practices, unlawful promotion profes- considered for from associate provides part following: in relevant professor Department during sor to full in the year. 1996-97 academic discriminatory practice: It shall be unlawful orientation, (1) Because race, sex, sexual color, age, religion, ancestry, disability, following: 9. The order court’s stated status, marital arrest or and court record: ORDERED, HEREBY IT IS ADJUDGED (A) any employer to hire or refuse For to be AND DECREED that Plaintiff’s motion and employ discharge or or to bar from em- hereby DENIED WITHOUT PREJUDICE to ployment, or otherwise to discriminate request discovery allow Plaintiff to tailor or compensation against individual complete her motion with more eviden- terms, conditions, re-file in the privileges tiary record to establish sufficient employment[.] sufficient scope similarities between herself and the and added.) (Emphases discovery subject which is in matter of the depriva- dispute tire 7. 42 on civil action in motion. USC added.) rights, (Emphasis tion of states that court pro- the issues.” The also ex- promotion dossiers confuse Plaintiffs applied to Plaintiff pressed motion criteria were that Plaintiff had “a lot of the view exclude). (motion In the motion to ex- to to discrimination.” other avenues show the clude, that Plaintiff asserted Defendants A order that effect issued written seeking prevented pre- and should be from March testimony “concerning senting evidence evaluations, public teaching research C. records, funding extramural records and/or person- [Department members At close of Plaintiffs case-in-chief on (who Department Chair committee] nel orally February moved Defendants full professors) all who eval- tenured verdict10 on several directed promotion uated Plaintiffs dossier/files claims, including relating Count to in- VIII negative promotion made recommenda- infliction tentional of emotional distress.11 tions[.]” claim, argued Plaintiffs counsel On this certain incidents a hostile work envi- created hearing At on the motion held Febru- resulting in 5,1999, ronment emotional distress. ary argued request- Plaintiff that the information would demonstrate that the ed trial, alleged At Plaintiff testified Lin’s professors personnel committee on the them- sexual advances. See discussion infra. promotion not meet criteria selves did addition, alleged Plaintiff that Holm-Kenne Defendants, on applied to Plaintiff. dy racial slurs and Gaarder made hand, that such the other maintained evi- evidence, her. discussion On See infra. person- Department applied dence as question inten asserted that the Department nel committee members tional infliction of should emotional distress irrelevant and confuse “[wa]s [would] Chairs jury alleged because the decided issues, waste the court’s and [and] and “discrimination” conduct of “harassment” jury’s professors on because the full time” beyond “outrageous and ... bounds personnel un- committee were admitted decency.” Defendants contended that applied than those der criteria different actions ... attributed to [Defen “none of the Plaintiff. Defendants maintained the “real to that dants] rose level.” applied issue [was] [Defendants] whether properly [P]lain- criteria arguments, hearing parties’ After *7 tiff[,]” professors not whether on the separate court that a cause action ruled of committee met the criteria themselves. “necessary” was not because the statements “part parcel involved and of actions orally granted mo- The court Defendants’ and, claim,” thus, [HRS 378[-2] there ] tion, reasoning that issue was “whether separate for a no “basis emotional dis- go not to from [P]lamtiff [the] met criteria 12 suggested tress court that claim[.]” The professor professor to and ... not associate certainly “[P]laintiff [could] claim the emo- any professors of whether or not and, thus, as a of that tional distress the claims doing job professor” of a full result defendantsf.]”13, against remain all of In of such would “tend to admission evidence part, Hawai'i Civil stated in relevant the ab- 10. Pursuant to Rules of Procedure The court on 50, (HRCP) separate a need for a sence of intentional distress is now Rule directed verdict titled claim, as follows: "Judgment January effective as a Matter of Law” Well, 1, my view of on ... emotional distress is parties tire court die 2000. As utilized know, that, you type ... of verdict,” relief is—is similarly term "directed we use it here- basically part really parcel a 378 of in, longer technically although die term no I don't títere be a claim.... think that should correct. separate for a emotional because basis distress mean, nothing there to there is no-there’s to—I ruling appeal court’s Plaintiff does not have emotional distress from. verdicts, the other directed and these claims are portions court’s appeal. 13. The relevant statements not See Hawai'i Rules of addressed on the alternative means available to Plaintiff on 28(b)(7) (HRAP) Appellate Rule Procedure her claim are as emotional distress follows: waived.”). ("Points argued may be deemed distress, know, you The emotional I know provides the statute that there can be such
99 addition, court, explained the court duty every dismissal of “[t]he as of tribunal, judicial having was warranted is to actual because decide contro- separate judgment might jury distress claim lead versies which can car- effect, give opinions ried into and not recovery.14 Finally, confusion and double upon questions moot proposi- or abstract opined court that “there is noth- no—there’s tions, mean, principles or to declare ing rules there to —I to have the emotional law which cannot affect the matter issue distress from” and that there is no “basis for it.” the case before nothing distress because there’s says people the labor laws that have to be Thomas, 223, Application In re 73 Haw. people.” nice The court then 226, (1992) dismissed 253, 832 P.2d (quoting Wong the intentional infliction of emotional distress Regents, Hawai'i, v. Board Univ. claim. 201, (1980)). Haw. A case is moot when “events have so affect jury instructed, alia, inter that “if parties ed relations between the that the jury] [the find[s] favor of Plaintiff on justiciability two conditions for relevant on claims,” pay her compensatory back appeal interest and reme —adverse effective damages may be awarded and “[t]he award dy compromised.” been Okada —have compensatory damages compen- includes ’ Trucking Supply, Co. Board Water pain, inconvenience, sation for suffering, 191, 195-96, Hawai'i 803-04 anguish, mental enjoyment and loss of (2002) (citations omitted) added); (emphasis jury life.” The returned verdict in favor of Assocs., Hodges see Sports also v. Schlinkert Defendants and Plaintiff on all of her Inc., (6th Cir.1996) (cases 89 F.3d claims, judgment and a was entered on “ presented are moot ‘when the issues are no March 1999. Plaintiff filed a notice longer parties legally “live” or the lack a 16,1999. appeal on March cognizable (quoting interest in the outcome’ United Geraghty, States Parole Comm’n v. II. U.S. S.Ct. 63 L.Ed.2d (1980))). appeal, On Plaintiff points raises three complaint, requested her error. She contends the court erred in: general, special, compensatory, “award of denying her November 1998 motion to statutory, punitive damages amounts compel; granting February Defendants’ proven “[i]njunctive to be at trial” and exclude; 1999 motion to and/or granting declaratory ordering pro relief that her February Defendants’ oral motion on motion to full Professor be deemed retroac direct a verdict on Plaintiffs claim 1995[.]” tive June of Inasmuch as Plain for emotional distress. requested tiffs can remedies be effectuated parties cognizable and all a legally have in III. *8 outcome, “live,” in terest this case is still Initially, briefly jurisdiction. we observe that and this court has See Garcia moot, Plaintiffs despite Hosp., claims are not v. Kaiser Found. 90 Hawai'i promoted 863, fact that professor. she was to full (noting 978 P.2d 875 that where Generally, remedy, there was an available the claim was really any a claim. But I think that to make it distress could of [the] result from claims any remaining against
clear so that we don’t have [ ][D]efendants. confusion on claim, certainly [PJlaintiff can claim the issue, pertinent 14. On in court stated emotional distress as a result of the claims that part against remain all of the defendants].] there’s no basis for emotional distress and having separate But far confusion, know, as as cause of you there could be a basis for action, necessary. I don’t think that that is gave that somehow an emotional distress claim really confusing potential- And that is more a separate gave, you award for a know, then — ly confusing anything the issues than general damages else. So 378 claim. going go I’m having to ahead and dismiss that be- I That’s concern that have really unnecessary. Any separate cause it's emotional distress. brought chapter (citing not Kuestner v. Health & Wel under Title VII and HRS moot (E.D.Pa. Fund, F.Supp. 378.16 fare 1997))); Department also West v. see (9th Cir.2000) n. 4 Transp., 206 F.3d B. (“The question prob of all central mootness forth in The matters set in changes whether the circum lems is if, discovery requests were discoverable prevailed beginning at stances 26(b) indicates, matters HRCP Rule any litigation have forestalled occasion subject sought to were “relevant matter meaningful [C]ourts relief.... must be care pending involved action.” The rule appraise range op ful to remedial states, part as follows: relevant portunities.” (Quoting Wright, 13A Miller & (b) Discovery Scope and Limits. Unless Cooper, Federal Practice & Procedure: Jur otherwise limited of the court in order 3533.3, Matters isdiction Related rules, scope accordance with these (2d ed.1984))); Neshaminy District Sch. discovery is as follows: (E.D.Pa. B., v. Karla 1997 WL *6 1997) (“In moot, litigation, civil not case is Parties obtain General. plaintiffs primary injury is even re matter, regarding discovery any privi- solved, long plaintiff so to as the continues leged, subject which is relevant to the mat- harm that a court suffer some favorable deci action, pending ter involved in the wheth- (Quoting would E. sion resolve.” Chemerin claim or er relates to the defense (2d ed.1994).)). sky, Federal Jurisdiction party seeking discovery or claim or to the ... party[.]
defense of
It is not
objection
ground for
that the information
IV.
sought will be inadmissible at the trial if
A.
sought appears
reason-
information
ably
discovery
calculated to lead to the
respect
point
With
to her first
admissible evidence.
error, Plaintiff contends that the court “erred
added).
compel
...
denying
(Emphases
regard,
[her] motion to
In that
[be
philosophy
cause] such information was crucial to estab HRCP
a basic
that a
“reflect
lishing
proffered
party
that the excuses
Defen
to a civil action should
to
be entitled
pretexts[15]
dants
mere
to conceal
all
the disclosure of
relevant information
wrongful
According
possession
person prior
discrimination.”
of another
Plaintiff,
trial,
privileged[.]”
these materials were relevant
unless the information is
Wakabayashi
Corp.,
refute
assertion that Plaintiff
Haw.
Defendants’
Hertz
(1983) (citations
failed to meet the criteria for
omitted). However,
to demonstrate
Defendants discrimi
extent to which
“[t]he
discovery
permitted
nated
her. Because Plaintiff main
is
under Rule 26
is
compel discovery
subject
tains
she moved
to considerable latitude and
dis-
[the]
(internal
discrimination,
illegal
[of
court].”
order
establish
cretion
the trial
Id.
ethnic,
omitted).
only pertinent
gender,
quotation
claims
marks
citation
“Thus[,]
origin
and national
discrimination claims
the exercise of such
will
discretion
employer’s
employment
explanation
unworthy
15. An
reason for adverse
fered
is
of credence.’
unworthy
Am., Inc.,
prelextual,
when "it
Shoppe
action is
v. Gucci
94 Hawai'i
Corrections,
Dept.
English v.
(2000) (citations omitted).
belief."
Colorado
*9
1002,
(10th Cir.2001) (citing
248 F.3d
1008
Green,
792, 804,
Douglas v.
411 U.S.
McDonnell
pertinent
While the issue could be
to Plain-
1817,
(1973)).
93 S.Ct.
102
(1997).
unworthy
(Citing Ingels
of credence.”
v.
prevail
To
under the McDon
648-50
616,
(10th
test,
Corp., 42 F.3d
621-22
plaintiff
Thiokol
Douglas
a
must first estab
nell
Cir.1994).));
Spray
Matthews v. Ocean
Cran
prima
of discrimination.
lish a
case
facie
berries,
122,
1303,
Inc., Mass.
686 N.E.2d
378-81,
426
at
Shoppe, 94 Hawai'i at
P.3d
See
“plaintiff
(noting
that the
must
pri-
plaintiff
If the
establishes the
1059-62.
identify
employees
[or she]
to whom he
ease, an
burden shifts
ma
intermediate
facie
similarly
performance,
in
is
situated
terms of
“legitimate,
to the defendant to articulate
conduct,
qualifications and
without such dif
nondiscriminatory
adverse em
reason
the
mitigating
ferentiating or
circumstances that
378-79,
at
14 P.3d at
ployment action.” Id.
(internal
distinguish
situations”
would
them
prima
If
the
1059-60.
the defendant rebuts
omitted));
quotation marks and citations
case,
plaintiff
to the
the burden reverts
facie
Romines,
862,
Swyers
S.W.2d
demonstrating that
present
to
evidence
(noting
discovery
(Mo.Ct.App.1993)
that
pretex-
articulated reasons were
defendant’s
“occurring prior to
discrimination
the effec
(cita
at
at 1060
tual.
id.
P.3d
See
dispa
in
date of the claim is relevant
tive
omitted).
tions
establishing
in
rate treatment case
But,
pretext by
in order to show
prima
case and to show that
em
facie
comparison,
sufficient similari
there must be
ployer’s
pretextual”
asserted reasons are
ty
plaintiff and
matters of
between the
(citations omitted)).
original)
(emphasis in
discovery sought. Addressing
the issue
acknowledge
While we
that a more
evidence,
in
“similarly situated”
this court
relevancy than
standard of
that set
liberal
that,
prima.
to
Furukawa held
establish
applied
forth
the rules of evidence must be
case,
prove that all
claimant “must
facie
stage,’some
requested
discovery
at
aspects
employ
[or her]
relevant
of his
materials were
relevant under
“simi
employ
ment situation were similar to those
larly
regarding
situated” test. The materials
compare
to
[or she]
ees with whom he
seeks
post-tenure
applications for tenure and
re
85 Hawai'i at
[or her]
his
treatment.”
faculty
members
view of Defendants
omitted)
(citations
(emphasis
1Q3 compel her motion to promotion individuals who had Plaintiffs and made dossier/files applied promotion depart negative the same recommendationsf.]” “ during proxi ment a reasonable time frame granting denying ‘The a motion limine[,]’ application. mate to Swyers, her time See Meyer City County and Hon olulu, (noting discovery S.W.2d at 865 Haw.App. 510 n. 729 P.2d regarding prior employment practices (quoting was 395 n. 8 Lussier Mau-Van permissible, Dev., Inc., Haw.App. but should be limited to a prior (1983)), time alleged “reasonable frame to the is reviewed for abuse of discre act”). discriminatory Additionally, she could tion. See id. request applications have directed her professors faculty and who had been sub B..
jected to the same evaluation criteria. See granting In motion Defendants’ Matthews, (distin 686 N.E.2d. at 1310-12 comí; exclude, the reasoned that “whether guishing examples between different of mis ... a professor meeting full is still the crite noting conduct employees and that where professor ria of being a full w[ould] tend to disciplined policy[,]” were under a “different throw the focus off’ the issue whether establishing evidence did assist promotion. Plaintiff met criteria for We pretext); Swyers, 858 S.W.2d. In conclude that the court did not abuse its stead, requested Plaintiff regard information granting discretion in the motion. ing faculty all College members of the performance professors Engineering.19 of the full personnel correctly committee was light In Department of the fact that the Fust, performance deemed irrelevant. had its own selection criteria some levels of the committee did not members Department members were not applicable establish standard criteria professors, full we cannot conclude that all evaluating application used in Plaintiffs for a requested information was relevant to the Rather, professorship. full the documents subject of her matter case. We observe that personnel delineating criteria used ample Plaintiff opportunity had to file a sec- reviewing application committee in Plaintiffs request discovery ond of these materials applicable were and were delivered to her Therefore, before the case went to trial. we discovery during provided as exhibits to hold that the court did not abuse its discre- Second, above, jury. as Plain- discussed denying compel tion in the motion to without requests tiff did not tailor her those com- prejudice providing opportu- Plaintiff the promoted mittee who to full members nity discovery requests to tailor her or re-file professor reasonably during pre- status her motion. period scribed and under same criteria applicable promotion application. to her In V. fact, indicated, some of materials re- garding appeared the committee members A. irrelevant to her discrimination retalia- ap Plaintiffs second tion claims. As contention mentioned Defendants’ peal granting attorney is that tidal court hearing erred at the on the motion to exclude, Defendants’ motion to exclude were al- limine evi the committee members testimony “concerning they ready professors dence and the teach when reviewed evaluations, ing records, public In words application. research and of De- attorney, “going funding up extramural fendants’ records and/or [Department promotion”. personnel members com the committee members (who basically Department “people promot- mittee] were] Chair are all were [who professors) tenured and full who ed.” evaluated addition, supra request page page Department.
19. See 51. It is unlikely that information student post-tenure such as evalua- appears status to be extrane- review faculty every professor College in the tions ous. application relevant to criteria used in *12 104 in an had emotional environment resulted
C. supra page page 73 P.3d distress. See rel deemed Even the evidence evant, properly “[al it because excluded relevant, may though be excluded evidence But, instructing jury, the court ad substantially value out probative is its might damages for it that award vised by prejudice, weighed danger of unfair inconvenience, suffering, an “pain, mental issues, misleading the of the or confusion life[,]” part as guish, enjoyment loss of of delay, jury, by considerations of undue any claim. compensatory damages on of Cf. time, presentation of of waste needless Dobbs, § The Dan B. Law Torts evidence.” HRE 403 cumulative (2000) (noting state and that under most 829 statutes, including antidiscrimination federal of a full that We believe the evaluation VII, compensation “some for emotional Title performance purposes of professor’s for the recoverable, now and in addition distress is relating is from that review distinct tenure job notably sexual some professor who seeks advance- discrimination — an associate may a common also warrant professorship. question full The harassment — ment claim”); see, outrage e.g., v. Nor law Smith performance professors whether the of the Inc., Acceptance, F.3d Fin. 129 west pro- personnel committee fulfilled Cir.1997) (10th (holding that emotional requirements applied to motion that were may part damages as a distress be awarded relationship Plaintiff had no direct to wheth- of a compensatory arising out Title actually applicable crite- Plaintiff met the er claim). VII promotion Allowing Plaintiff ria for herself. for of the evaluations to introduce evidence But, jury may fact that consider have, court as the tenure review would damages part as emotional distress opined, confused the issues and misled damages “any compensatory accompanying court, focus, jury. jury’s by as noted claims,” necessarily does not [Plaintiffs] away Plain- would have shifted from whether question separate lia- of whether resolve promotion. tiff met the criteria for in- bility may intentional be established for addition, Plaintiff had other means indepen- as an fliction emotional distress pro- for prove that she met the criteria Miyagi, tort. v. 76 Hawai'i dent See Calleon motion; delineating namely, 310, 320, the documents (stating applicable own dossier. criteria and her that a claim of intentional infliction emo- disposal, ]”); materials With these at her “independent tort[ tional distress is (Second) b, the criteria could establish she satisfied 46 cmt. Restatement Torts (not- identifying portions of her [hereinafter, Restatement] at 72 demonstrating qualifications dossier her ing infliction of emotional intentional Thus, alternatively professor status. we “fully recognized sepa- as a distress has been not abuse its conclude court did liability, and distinct basis of tort with- rate granting motion to necessary discretion Defendants’ presence out the the elements requested tort, assault, evidence battery, exclude because the any such tendency land, lead to confusion and had a would imprisonment, trespass to or the false delay like”). undue and to waste the court’s to cause jury’s time. Ordinarily, evidence of intentional pleaded separate as a of action conduct cause
VI. considered fact finder as a should be A. independent Takaki separate claim. See 57, 67, argument Machinery Corp., Hawai'i appeal Plaintiffs last v. Allied could; (holding that (App.1998) mo- P.2d granting erred Defendants’ against his employee bring Plaintiffs claim “an an action tion for directed verdict on employer for infliction intentional infliction of emotional distress. or her intentional mentioned, claim related distress caused discrimination previously As Hough (citing §§ work Plaintiffs contention that hostile in violation of HRS 378-2” Co., granting Ins. 83 Hawai'i directed verdict the rea- Pacific (1996))); gave P.2d judgment, Nelson Univer sons it “No harmless. cf. Hawai'i, sity reversed, 97 Hawai'i order or shall decree amended (2001) (analyzing an alleged both or modified for error or defect unless *13 § violation of 378-2 an HRS intentional opinion [this] court is the that it has sepa infliction of emotional distress injuriously rights affected the substantial rately); (Hawai'i), (1993). Ross v. Co. Hotel appellant.” § HRS 641-2 As Stouffer 454, 465, 1037, 76 Hawai'i 879 P.2d jury occurred, 1048 the that no found harassment (1994) (addressing § both a 378-2 claim give HRS separate the failure to a instruction re- an intentional infliction emotional dis garding intentional infliction of emotional individually). case, tress claim In a such distress did not affect Plaintiffs constitution- jury should be instructed as to cause of rights. al
action but cautioned that an award made for intentional infliction of emotional distress VII. duplicated compensatory must not be in dam ages given other claim. parties We that observe cited to our jurisdiction’s present formulation of the ele B. ments of tort of intentional infliction of “ ‘(1)
Nevertheless,
emotional
the court afforded
distress as follows:
that
jury
act
opportunity
damages
allegedly causing
to award
the harm was intention
al; (2)
unreasonable;
(3)
emotional
in
favor in
that
act was
distress
recognized
that
context of her other
relief.
the actor should
claims for
See
have
98, 103,
supra
52,
likely
pages
the act
pages
73
was
result in illness.’
P.3d
Dun
28, 38,
jury
Dappen,
lea v.
83
was also
that Plaintiff
Hawai'i
924
instructed
P.2d
(1996)
196,
“prove
aby
preponderance
must
206
(quoting
the evi
v.
Marshall
Univer
Hawai'i,
21,
subjected
38,
sity
dence” that
9 Haw.App.
“she was
verbal or
(1991) (citation
937,
omitted));
physical
sufficiently
which
947
per
conduct
see also
Takaki,
13,
vasive or
as to
jected
outrageous
hostile work
One who
extreme
environment be
con-
bias,
gender
fortiori,
or
intentionally
recklessly
cause of
racial
duct
causes se-
jury could not have found in Plaintiffs favor
vere emotional distress to another is sub-
ject
liability
distress,
on her claim intentional
infliction
emo
for such emotional
bodily
had it
tional distress
been submitted. Ac
and if
harm to
results
error,
it,
cordingly,
any,
bodily
in the court’s
from
such
harm.
Marshall,
Haw.App.
20. This court
that "three elements
See
at
by the intention to cause or I in the results reached in Parts IV concur disregard probability reckless of caus- majority opinion, and V of although I do distress, (3) ing emotional severe emotional necessarily opinion’s subscribe to the rea- suffering, proximate actual and cau- join VI, VII, soning. I in Parts *15 and VIII of (Cita- sation of the emotional distress[.]” majority opinion. omitted.)); tions Holy Spirit Molko v. Ass’n Christianity, World Unification of Concurring Dissenting Opinion by 1092, 122, 46, Cal.Rptr. Cal.3d MOON, C.J., NAKAYAMA,J., in which (1989) (the elements of intentional inflic- joins. “1) tion of emotion outrageous distress are (2) defendant, by conduct intention to Although agree I majority’s with the reso- disregard cause or probability reckless lution plaintiff-appellant of Anna Hac’s distress, causing severe emo- claims, to, disagree I with its decision sua tional suffering, proximate actual and sponte, alter the elements of the tort of distress”). causation of the emotional intentional infliction of in- emotional distress by asmuch as the issue is neither raised VIII. parties presented present appeal. nor foregoing grounds, On the we affirm the previously This court has stated: March judgment 1999 final in favor of judicial self-gover Prudential rules of dispo- Defendants and Plaintiff. Our properly nance limit the role of courts unnecessary sition it makes to consider the society. in a democratic Trustees Cf. remaining parties. contentions raised Yamasaki, 154, 171, v. OHA 69 Haw. (1987); P.2d v. the Land Life of HIFO, J., Opinion of Concurring toas Part Commission, Land Use 63 Haw. Joining VI and In All Other Parts. (citing Warth I concur in the result reached as Part Seldin, 422 U.S. 95 S.Ct. regarding VI intentional infliction of emotion- (1975)). prudential L.Ed.2d 343 such One al judge distress. The trial did not err in judicial power rule is that “the use dismissing because, argued as was public disputes resolve ... should limit below, by Defendant upon by the facts relied judicial questions capable ed to those Plaintiff did not as a matter of law reach the presented adversary resolution and in an requirement “outrageous conduct”. This Yamasaki, context.” 69 Haw. at requirement is the same in both the Restate- (citation omitted). P.2d at 456 Another (Second) previous ment of Torts and Hawaii that, such rule is “even in the absence Thus, law. decisional trial court’s deci- restrictions, constitutional must [courts] affirmed, though sion should be it even wisdom, carefully weigh efficacy, still based on a different and incorrect reason. pow an timeliness of exercise of their notwithstanding, join That I acting, especially Part VII er before where there clarify because is useful to the elements of be an intrusion into areas committed government.” judicial to other branches of Id. distress evinces a lack of restraint. omitted) (citation I, therefore, (emphasis original respectfully ] [ dissent. omitted). Although, generally, issues con
cerning prudential self-governance rules justiciability
arise in cases where is at
issue, self-governance proper and the role preclude only courts this court not case, considering
from but from also
considering any
properly
that is
issue
prerogative
before it. We do not have the
ment which is to be [the administered people] people], great [the over diffi- Feb. culty lies this: You must first enable the Reconsideration Denied March government governed; to controul [sic] the *16 place, oblige and in the next it to controul April Certiorari Granted (J. Papers itself.” No. The Federalist Madison). Although judicial review serves
as a check on the unconstitutional exercise power by legislative the executive and government, only
branches of “the check
upon judicial exercise [the branch’s] power is oum sense [its] of self-restraint." Butler, 1, 78-79, U.S. U.S. 56 S.Ct. (Stone, J., 80 L.Ed. dissent- reason, alone,
ing). judicial For that self- surely implied, restraint not an expressed, grant condition au- judicial thority revieiu. Mohr, Attorney’s
In re Fees 97 Hawai'i 9-10, (2001) (emphases 655-56
added) (some quotation internal marks omit
ted) (some added). ellipsis points case, present majority recog-
In the party changing
nizes that neither advocates precedent and
established observes that “the
parties jurisdiction’s present to our for- cited tort
mulation the elements of inten-
tional infliction of emotional Ma- distress[.]”
jority Opinion at at 59. P.3d Given any argument by parties,
the absence of majority’s decision to refashion the ele-
ments of intentional infliction of emotional