*1 90 P.3d 233 KAHALE, Ka

Francis Jr. and Rachael hale, Individually and next friend of Kahale, Minor,

Brandzie Plaintiffs- Appellants, HONOLULU, AND CITY COUNTY OF Defendant-Appellee Doe Defendants Defendants Third- Party Plaintiff-Appellee Alameda, Third-Party Alfred Defendant-Appellee.

No. 23934. Supreme Court Hawai'i.

May *2 Dias, Christopher

David J. Gierlach and A. briefs, plaintiffs- on the for the appellants Kahale, Francis Jr. and Rachael Kahale. Butt, Deputy Corporation

James C. Coun- Kawai, Deputy Corporation sel and Paul S. Counsel, briefs, on the for the defendant- appellee City of Honolulu.

MOON, C.J., LEVINSON, and

NAKAYAMA,JJ„ ACOBA, J., concurring separately dissenting, CHAN, Judge assigned whom Circuit joins. vacancy, reason of Opinion LEVINSON, of the Court J. plaintiffs-appellants Kahale, Francis (Francis), individually, Jr. and Rachael Ka- (Rachael), individually hale and as next (Brandzie), friend of Brandzie Kahale a mi [collectively, “Plaintiffs”], nor appeal (1) September from the 2000 order of the court, first circuit the Honorable Sabrina S. presiding, McKenna granting motion defendant-appellee City (the “City”) Honolulu summary judg (2) ment, judg the November ment, signed by McKenna, Judge in favor of against ap the Plaintiffs. On peal, that, the Plaintiffs contend inasmuch as they brought City pursuant suit (HRS) to Hawai'i Revised Statutes 657-7 (1993),1 circuit court in concluding erred that the governing provisions. claims was not tolled 657-13(1) (1993).2 response, City argues actually the Plaintiffs City pursuant their claim (1993),3 662-4 than rather provides 1. HRS 657-7 that "[a]ctions for the recovery compensation damage injury person liberty or bring such shall be at such persons property shall be instituted within respective actions within the times limited in accrued, years two part, after the cause of action disability after the is removed or at after, except provided in section disability 657-13.” time while the exists. provides part: 2. HRS relevant provides 3.HRS that "[a] tort claim any per- Infancy, insanity, imprisonment. the State shall If be forever barred unless bring any begun years specified son entided to action in ... action is within two after the claim is, accrues, part chapter except [I of HRS at die 657] time in the case of a medical tort provisions the cause of action accrued ...: when claim the limitation of action set (1) age years; eighteen Within the apply.” forth in section 657-7.3 shall and that does not Rachael Brandzie’s apply (a) to actions friend, commenced under HRS next affirm circuit court’s such that the September granting City’s 2000 order subject tolling provisions was not summary judgment against motion for Fran *3 year prior and had run over a cis, Rachael, generally, and in her individual to on which the date the Plaintiffs filed their (b) capacity, judgment November complaint. Francis, Rachael, against generally, and (1993)4 hold that We is the (3) capacity, her individual this remand applicable pres statute of limitations to the pro matter to the circuit court for further ent matter. We therefore hold overrule the ceedings opinion. with this consistent ing of Salavea v. Hono lulu, 216, 221, I. BACKGROUND (1973), that, respect to tort claims state, against the counties of this “HRS complaint alleges The Plaintiffs’ the follow- 662-4 is the of limita (who 26, 1996, ing. May appar- On Brandzie tions, superseding § 46-72[.]” We also ently shy years was two months of seven hold, 657-13(1), pursuant to HRS that the time) age lawfully premises on the subject of this counties state are infan Park, of Waimánalo District where she was cy tolling provision generally applied per by pit dog attacked a bull injury owned sonal actions and that 657- 13(1) third-party running defendant-appellee H. tolled the Alfred the statute Lastly, attack, limitations as to Brandzie’s claims. Alameda. As a result she that, we hold inasmuch as Francis and Ra bodily injury suffered and emotional distress. chael, individuals, disability no suffered 11, 1999, parents, On March Brandzie’s purposes for Francis’s and Francis, capacity, in his individual and Ra claims, in capaci Rachael’s their individual chael, individually and as Brandzie’s next ties, similarly Accordingly, were not tolled. friend, complaint against City, filed (a) Septem we vacate the circuit court’s alleging City’s negligence legally granting City’s ber order motion I) (Count injuries caused to Brandzie summary judgment as to Rachael’s claims of con capacity in her inflicted emotional distress and loss Brandzie’s next friend and (b) (Count II).5 judgment November in favor of on Francis and sortium Rachael 26, 1996, provided May 4. HRS 46-72 as follows: 8. On or about Plaintiff lawfully BRANDZIE KAHALE was on the Liability damages; injuries. notice of ("the county damages premises Before the shall be liable for Park the Waimánalo District any person injuries person property Park”) Waimnalo, or Hawai'i. streets, avenues, upon any time, received of the al- 9. On the same date and at the same sidewalks, leys, county, public places or other of the premises ALFRED H. ALAMEDAwas on the any negligence any or on account of pitbull Park and which he owned to tied employee county, person or official pole. injured, person so the or the owner or entitled to place 10. On tire date and at the indicated possession, occupation, prop- or in of the use above, pit provocation at- said bull without behalf, shall, erty injured, so or someone his KAHALE, tacked Plaintiff BRANDZIE result- injuries within six months after the are re- harm, ing permanent bodily in severe and in- ceived, give the chairman of the board of su- cluding damage, limited but not to muscle pervisors city or the clerk of Honolulu notice contusions, hospitalization abrasions and writing injuries specific and the dam- surgery and severe emotional distress. when, ages resulting, fully stating in the notice Although 11. are not at the animals allowed where, occurred, injuries and how the the ex- Park, regularly MR. ALAMEDA tied this same thereof, and the tent amount claimed therefor. pitbull pole repeatedly and others same 22, 1998, Effective June amended park. onto the animals respects HRS 46-72 technical not material 12. The CITYAND COUNTYknew or in the appeal. See L. this Sess. Act diligence exercise of reasonable should have § 1 at 479. practice known MR. ALAMEDAand complaint Plaintiffs’ sets forth the follow- others.... ing allegations relating to the Plaintiffs' causes of action: affidavits, any, Additionally, sought punitive together with if show the Plaintiffs III). (Count genuine is no as to there issue damages moving party fact and that material April filed third- On judgment is entitled to as a matter Alameda, complaint praying for party proof law. A fact is if of that material any judgment contribution with establishing fact would have the effect might that the Plaintiffs obtain refuting one of the essential elements City. April Plaintiffs filed a On of action of a cause or defense asserted Alameda, alleging that cross-claim parties. must The evidence duty prevent his Alameda breached his light most viewed favorable injuries causing canine Brandzie’s words, non-moving party. In other *4 negligence that Alameda’s had further must all of and view the evidence the caused Francis and Rachael to suffer loss of light inferences drawn in therefrom the consortium infliction of and the emotional party opposing most favorable to the the 20, 2000, April City distress. On the filed motion. against Francis counterclaim and Rachael (citations quotation and marks internal capacities, alleging that their individual omitted). injuries damages to the Plaintiffs and/or Sims, Management Corp. v. 101 Hawai'i SCI negligence wrongful were the result of 438, 445, (quoting part. conduct on Francis’s and Rachael’s Honolulu, City County Coon 23, 2000, August City a motion On the filed 233, 244-45, Hawai'i Plaintiffs, summary judgment against the (2002)). arguing supra that HRS see note III. DISCUSSION provision chapter of HRS the State (STLA), Liability Tort Act barred all of the appeal, argue Plaintiffs that On the the City against Plaintiffs’ claims the because the granting City’s circuit court erred the Plaintiffs had not them within the summary judgment, motion for inasmuch as two-year period applicable 657-13(1), supra HRS see note tolled the Although limitations. Plaintiffs’ claims. the Plaintiffs ac- that, knowledge City in Orso v. 8, 2000, On December the Plaintiffs filed a Honolulu, 534 P.2d 489 appeal Sep- notice the circuit court’s (1975), applied this court the granting City’s tember 2000 order provided for in HRS judgment summary motion for No- supra against see to claims note the state’s judgment vember 2000 final in favor of the counties, they contend that circuit court against the Plaintiffs. interpreting Whittington erred On November the Plaintiffs filed (1991), standing P.2d stay proceedings,6 a motion to which the proposition excepted granted circuit court on 2000. December infancy tolling provision from the 657-13(1). that, The Plaintiffs assert be- II. STANDARD OF REVIEW Whittington “infancy tolling excep- cause We review the circuit court’s applies only against tion” to tort claims grant summary judgment STLA, or denial of de brought pursuant state Community grounded novo. Hawai'i Federal Cred inasmuch as the Plaintiffs have Keka, their claims class of it Union v. Hawai'i supra actions described HRS see grant The standard 657-13(1) provisions note ing summary judgment a motion for govern therefore matter. settled: [S]ummary judgment appropriate if Plaintiffs maintain that “[this] further pleadings, depositions, answers to application did not Court Orso extend the file, interrogatories, and admissions on [STLA] the entire claims stay At the time Plaintiffs’ motion to solved the Plaintiffs’ claims Alameda. yet proceedings, the circuit court had not re- counties, state, two[-]year limi- statute of of this in- the counties tations,” jurisprudence and that neither the cluding legislative of this court nor the intent under- applicable “HRS 662-4 is the statute of §§ lying support 662-4 and 657-13 limitations, superseding 46-72.” 55 Whittington “infancy tolling extension of the 54-55; supra Haw. at exception” Lastly, to the counties. the Plain- foregoing 4. This court note based the hold- argue tiffs law in “[t]he this State is ing following statutory construction of abundantly clear because of the vast the STLA: differences between the and the coun- ... providing liability [A] statute for tort ties, not the latter are entitled to the same political of the State and its subdivisions types protection against claims as those general application throughout is a law of enjoyed by forego- the State.” Based on the the State of Hawaii on a matter state- assertions, contend, ing pursu- the Plaintiffs wide interest concern. we hold 657-13(1), ant to HRS the statute 662—4is stat- begin does to run on Rachael’s claims on ute. Brandzie’s behalf until Brandzie age majority year

reaches the provisions We also hold that of [HRS] and that Francis’s Rachael’s claims in § 46-72 are inconsistent with [HRS] *5 capacities individual their are also tolled be- 662-4 and invalid. HRS they cause are derivative of Brandzie’s claims by first Act enacted SLH while for relief. part HRS 662-4 is of of [STLA] the that, City responds by The of virtue the respective of Because their dates of decision, Orso the Plaintiffs’ “tort claim enactment, provisions it is clear that against City governed by ... the is HRS contrary provi- former cannot control over 662-4”; foregoing premise, from Section the [AJlthough repeals sions of the latter.... City suggests “Whittington the that because by favored, implication implica- are not holds that ... HRS Section 657-13 does not repeal appropriate tions is in some of 662-4,” apply to actions under Here, implied instances. an intention of tolling” two-year is no “there the statute repeal may logically .... be inferred Correlatively, City of limitations. the asserts First, ... a conflict statutes such as proposition stands for Orso the presented in the instant case should inapplicable 657-7 is “[HRS] Section regulat- in favor of resolved the statute action[,]” inasmuch as Section 662-4 “[HRS] matters, ing state rather than that control- two[-]year provi- is of limitations the statute ling county only. affairs against sion for a ‘tort claim’ ... coun- City ties.” The therefore contends “the tolling apply statute does not ... all [and] Finally, theory govern- basic [t]he ” City claims must be barred.... liability tort mental Hawaii is that the infra, agree For the reasons discussed political and shall State subdivisions

with the Plaintiffs that the statute of limita- govern- torts of be held accountable governing tions claims in ca- Rachael’s her “... employees mental in the same man- pacity as Brandzie’s next friend tolled private ner and to the same extent as a 657-13(1). however, disagree, HRS We ...” individual under like circumstances that Francis’s and Rachael’s claims § 662-2. it would be unrea- HRS capacities individual are tolled HRS party’s right sonable to hold that a § 657-13. damages City in tort from recover Honolulu, County of a subdivision n .6-72

A. Is The Limi- HRS Statute Of state, legislature, is more created City Applicable tations To The Inas- right than his restrictive recover Impact much As The Not STLA Does the State itself. Liability The Tort The Po- State’s Of litical Subdivisions. hold that HRS We therefore limitations, applicable su- analysis begins with in which Our that, perseding to tort 46-72.... this court held HRS (emphases (Emphasis Id. at 517 P.2d at 54-55 contractor with the add- State.” (some added) (citations omitted) ed.) ellipsis points original). added and some County shooting It is fish in a barrel to note like waive, having sovereign immunity no does if the statute contained within fall the shadow of the STLA. See STLA, i.e., 662-4, governed HRS Hawaii, County Kamau City, entirety of then the (1957); also III.B. section infra well, govern the STLA would such claims following We therefore subscribe to the re being logical slicing there no basis for Levinson, marks of Bernard H. con Justice dicing inappli- into the STLA curring dissenting in Salavea: Orso, pieces. yet, in cable And this court perceived “no valid reason to extend the majority opinion collapsible is a applicability provisions house of cards built with a stacked deck Chapter County 662 to of Hono- joker form of includes lulu, specifically holding and ... limit[ed] the equating statutory word “State” applicability of Salavea to the opinion’s political “State or subdivi- County § 662-4 to Honolulu.” support sion.” It offers no for its conclu- 534 P.2d at 493. As it sion that happens, there was method behind the Orso “State,” for tort actions parsimonious court’s view. applies to this tort claim

Obviously, 662-4 could have re- of Honolulu.... In- pealed by implication only deed, § 46-72 if majority’s ipse dixit correlation conflict,” by truly two “in statutes were contrary of counties with the being, virtue the STLA the Salavea reasoning of Kamau v. Ha- *6 claimed, majority providing “a statute (1957), 41 Haw. 527 wherein waii liability political of the State and its court held that the differences between 219, at [.] subdivisions 55 Haw. 517 P.2d at ” governments State and local terms added). (emphasis But the STLA does law-making powers justified the re- provide liability not for the tort state’s jection of the common-law of sov- doctrine “political subdivisions.” Pursuant to HRS ereign immunity respect to lat- (1993), § 662-2 ... “[t]he waivefed] State ... ter. immunity liability torts of its agree § ... I cannot that HRS 662-4 employees and [was rendered] liable any has relevance to the timeliness same and to as a manner the same extent plaintiffs’ claims in this case. circumstances,” private individual under like 221-22, 517 P.2d at 55 except prejudgment to interest (Levinson, J., added.) concurring dissenting). and punitive damages. (Emphasis and adopt (1993) We also the view advocated Justice § “[ejmployees 662-1 defines Marumoto, dissenting in Salavea: employees the State” include “officers and any agency, state Hawaii members Act, Liability Under the Tort State guard, force, national Hawaii state defense immunity State has waived its from liabili- persons acting agency behalf of a state ty employees. for torts of its Act capacity, temporarily, in an official whether employee including defines State as offi- compensation.” (Emphases with or without employees agency, cers State added.) statutory in- definition also agency including and defines State as county-employed lifeguards “designat- cludes boards, departments, executive and com- provide lifeguard desig- at a ed services missions of the State. park agreement nated state beach an under county, including A county.” between the State and is an depart- executive added.) § (Emphases And HRS board, ment, or commission of the State. § agency” 662-1 defines “State to include 225, boards, (Marumoto, J., departments, “the at 517 P.2d at 57 executive State,” “any excluding dissenting). commissions bases, foregoing § hold that On the we overrule sedes HRS 46-72. We counties do not fall within the ambit the STLA appel all Salavea and other decisions of the 46-72, legislature rely late courts of this state amend, &ee is the statute proposition super for the to actions the counties.7 Assuming arguendo premise that “an intention of im- Salavea's central is indefen- 353, supra plied repeal sible. See at 90 P.3d at 245. [of been] HRS 46-72 could have regards previous With deci- logically legislature’s inferred” from the enact- court, sion of this 1957, ment of HRS 662-4 in Salavea 55 Haw. lightly disregard precedent; we do not 219, 54, legislature's at 517 P.2d at amend- great subscribe to the view that consider- ment of HRS 46-72 in 1998 would have acted always precedent, ation should be accorded "implied as an reenactment” of the statute. See long general especially standing one of 1998 Haw. L. Sess. Act 1 at 479. Act Yet, necessarily acceptance. fol- does not purpose "[t]he [which to amend the was] by precedent low that a rule established replace Hawai[[’]i Revised Statutes references injury If infallible. unintended would result county supervisors boards of with references decision, by following previous correc- county,” to the council of each see Hse. Conf. order; tive action is in for we cannot be Journal, Rep. Comm. 985; No. in 1998 at House unmindful of the lessons furnished our Rep. Sen. Conf. Comm. No. in 1998 consciousness, by judicial own well Journal, Senate at belies Justice Acoba’s history, liability or the error and the ad- assertion, at 90 P.3d at 242 of his concur- vantages long of review. As this court has ring dissenting opinion, majority’s "the recognized, right we not have the but holding ignores great weight ... to be ac- duty are entrusted with a to examine the and, legislature’s acquiescence corded the in the Sala- former decisions of this court when rule,” that, impossible, vea as well reconciliation is to discard our as his claim for the last thirty years, legislature implicitly former errors. “the ac- has Enters., Inc., Francis v. Lee 89 Hawai'i quiesced application to this court’s of [HRS ] (1999) (internal cita Concurring 662-4 to the counties.” and dissent- tions, omitted); quotations, and bracket ing opinion 90 P.3d at 244. If HRS 46- Jenkins, 87, 111-12, also State v. 93 Hawai'i statutory nullity—long 72 were the since aban- Francis, (2000) (citing su legislative doned out of deference to this court’s Parke, pra); Parke pronouncement in Salavea that "HRS 662-4 is (“It generally a new better to establish rule [applicable statute of limitations precedent.”). than to follow a bad counties], 46-72,” superseding HRS Brantley, State v. 99 Hawai'i 221, 517 P.2d at Acoba 55—that Justice believes Jumila, (2002), overruling be, gone it to then the would not have (1998); Hawai'i 950 P.2d 1201 see also Jen- modernizing to the trouble of HRS 46-72 in kins, *7 1998, expressly retaining while at the same time Auwae, 59, overruling Hawai'i State v. 89 968 prescribed the six-month statute of limitations in Mundell, (App.1998), P.2d 1070 v. 8 State Ergo, manifestly statute. has 610, Francis, Haw.App. (App.1991); 822 P.2d 23 rule,” "acquiesc[ed] in not the Salavea nor has it 236-37, 709-10, 971 P.2d at over- yet abandoned its six-month limitations 18, Hotel, ruling Outrigger Bold v. 54 Haw. 501 to tort claims the counties of (1972); Espaniola Cawdrey Mars 368 v. state, although certainly this it could further Venture, 182-83, 171, 707 P.2d Joint 68 Haw. amending repealing altogeth- §HRS 46-72 or it 365, (1985), overruling Sugue v. F.L. Smithe 373 er. Co., 598, (1976). Machine 56 Haw. 546 P.2d 527 Justice Acoba’s veneration of the doctrine of majority’s abrogation Justice Acoba decries the decisis, concurring dissenting opin stare see thirty-plus-year-old of the rule Salavea "without 242-243, is, at at the ion showing compelling justification.” a Concur- least, very opinion flexible. He authored the 350, 351, ring dissenting opinion 90 P.3d Haanio, 405, the court in State v. 94 Hawai'i 242, respectfully disagree 243. We with his (2001), in 16 P.3d which "compelling justification” assessment. The court, sponte, exploited disagreement this sua abrogation our of tire Salavea rule is that its interpretation with the of the Intermediate Court Indeed, reasoning analytically bankrupt. is we Kupau, Appeals of the rule set out in State v. failing appellate responsibility in if would be our (1994), in 76 Hawai'i 879 P.2d 492 order to eye analytical we were to turn a blind to that “opportunity Kupau create an to reexamine” wine, bankruptcy. analytically Unlike fine bank- Moreover, rule and to overrule it. hesitated, he has not rupt appellate improve age. decisions do agreement, join when he is in attempt Justice Acoba makes no to defend Sala- binding appel majority previously in namely, premise, Mueller, that STLA vea ’s central precedent. late See State v. 102 Hawai'i provides liability 391, 393, (2003), "for tort of the State and its ovenuling 76 P.3d 945 political Rutona, subdivisions." 55 Haw. at 517 State v. 71 Haw. 785 P.2d 615 added). Sanders, (1990); (emphasis surpris- P.2d at 54 This is not State v. 102 Hawai'i 327- (2003), ing. plain language ovenuling §§ State ex Given the 76 P.3d 569-570 However, prejudice question upon order to avoid unfair which is a there wide diver- plaintiffs detrimentally who have gence opinion. hopeless relied The cases are upon respect to the statute of jurisdiction confusion and the same even governing reconcile.”). tort claims impossible often Kamau counties, emphasize holding that our is previous overruled six decisions that had en- prospective only applies all claims for foregoing gov- dorsed the distinction between accruing opinion.8 relief after the date of this functions, private holding ernmental Ikezawa, See State v. 75 Haw. municipality’s] agents negli- “where [a are (1993); Garcia, State v. 96 gent performance in the of their duties so (2001); Hawai'i individual, damage to an it results is Processing Lindinha v. Hilo Coast duty being performed immaterial 164, 169-170, Hawaii public municipality from which one profit duty imposed derives no or that it is a upon legislature.” 41 Haw. at 552. Correctly B. Because Kamau Held That Municipalities Are Not Entitled To Kamau, furthermore, incorporated Sovereign Immunity, Is analysis principle into its set forth Subject Infancy Tolling To The Provi- Polyb Justice Holmes in Kawananakoa sions, 657-13(1), Set Forth In HRS lank, U.S. S.Ct. Generally Applicable In Personal In- (1907), sovereign L.Ed. 834 that “[a] is ex jury Actions. suit, empt not because of formal III.A, supra As conception discussed section theory, or obsolete but on the that, although logical court in Kamau practical ground established that there can be beneficiary legal right the state of common law authority no sovereign immunity, right depends.” the counties are not. law on makes the which the Kamau, (internal ruling Haw. at 552-53. Prior to this court’s quotation Haw. at 538 Kamau, omitted). municipalities signals Nevertheless, were immune from the Kamau liability arising tort involving out of actions immunity court observed that “the “governmental sovereign the exercise of functions” but State rests the doctrine that the alleging were liable the exercise of makes the laws is immune to functions,” “private suit, corporate or reasoning distinction but no such indulged can be municipal litigation municipal corporation.” confounded on behalf of a 528; Hawaii. Id. at also Mark at 542. because the neither the (“As County, sovereign surrogate to what is nor ego or alter governmental corpo- sovereign,9 function and what is a sovereign it is not entitled municipality act immunity. rate ministerial is a Town, "[r]eviving rel. Marsland v. 668 P.2d 25 ment that the counties’ six-month no- *8 522, (1983), requirement potentially and In re Hinson 58 Haw. 574 P.2d tice will bar meritorious future, (1978); persons bring 119 v. claims in AOAO Kihei Beach the who fail to Bauernfiend Condominiums, deprived their claims within will 99 Hawaii 54 P.3d six months court,” 452, Paul, (2002), day concurring dissenting overruling their and 455 v. Hoke 65 Haw. 352, 478, 244, Loo, (1982); opinion at 90 P.3d at should be direct- 653 P.2d 1155 State v. Ah 94 728, legislature. (2000), perceives ed the to If the Hawaii 10 P.3d over (or matter) Blackshire, policy, 123, "havoc” bad for that in the riding Haw.App. State v. 736, denied, 581, legis- current manifestation of HRS the P.2d (1993). cert. 75 Haw. 863 P.2d 989 perfectly lature is free to amend the statute to provide, say, two-year period for a limitations or repeal altogether, to in which case tort claims holding prospectivity 8. The of our renders inex- against governed by the counties would be HRS plicable "[t]he Justice Acoba's assertions that § 657-7. consequence Salavea is to raise questions respect existing with to the status of pending According and claims and to wreck havoc with 9. to the Revised Charter of Honolulu (2000), governed which future claims would have been people City 1-101 the ”[t]he and two-year period County until the case of Honolulu shall be and continue as a Concurring dissenting opinion body politic corporate by 'City at hand.” and and the name of ” County 241-42. Justice Acoba’s la- of Honolulu.' such, (Ala.1981) City subject As to (noting that “the deriva any state’s laws the same manner tive claim for spouse loss consortium of a private Kaczmarczyk tortfeasor. See parent subject or tolling is not to the statute Honolulu, City v. infant”); 65 Haw. of Long Beach Smith 612, 614-17, (1982) (per Dist., 91-94 Sch. 276 A.D.2d 715 N.Y.S.2d curiam) (determining plaintiff (2000) that the could (observing infancy that “the toll is bring wrongful against death action personal to the infant and does not extend to City, notwithstanding circuit claims”). court’s dis parents’ derivative be state); missal of against the same claim timely cause Francis and Rachael did not Wong Tours, see also v. Hawaiian comply Scenic 46-72 with to Ltd., 401, 403-06, 64 Haw. claims, 931- against their individual those claims (1982) curiam) (per (permitting recovery are time-barred. in a tort against City); action Littleton v. 55, 67-68, 66 Haw. IV. CONCLUSION (1982) (applying traditional tort anal (1) foregoing analysis, Based on the ysis against City). to a claim Inasmuch (a) September vacate the circuit court’s governs “person HRS 657-13 classes granting City’s 2000 order motion for actions, al” tort “[djamage persons such as to summary judgment as to Rachael’s claims in property,” or infancy (b) capacity her as Brandzie’s next friend and 657-13(1) tolling provision applies of HRS judgment November in favor of the directly personal injury against actions the City against Rachael as Brandzie’s next City. friend, (2) (a) Sep- affirm the circuit court’s III.A, supra

As discussed granting City’s section tember order the Plaintiffs’ claims summary judgment against are motion for Fran- subject cis, Rachael, generally, limitations set forth her individual (b) 46-72. capacity, The Plaintiffs’ claims for judgment November among Francis, Rachael, relief are those described generally, (“[d]amage persons property”), capacity, her individual remand “specified” in part are therefore I of pro- matter the circuit court for further chapter ceedings opinion. Inasmuch as Brandzie was consistent with this age eighteen years” “[w]ithin the at the arose, Concurring Dissenting Opinion by

time matter infan ACOBA, J., 657-13(1) Judge cy tolling provision with whom Circuit CHAN al joins. “liberty bring lowed her the such actions disability ... at time while the exists.” respectfully majority’s I dissent de Rachael, friend, having as Brandzie’s next holding cision to “overrule the filed claims for relief Brandzie’s behalf & minor, still

while she was ensured that (1973)[.]”1 Majority as a HRS 46-72 would act bar to those opinion at 90 P.3d at 235. The effect of City. claims abrogate, showing the decision is to without a However, capacities, justification, their individual compelling thirty-year rule disability Francis and establishing Rachael suffered no of law that tort claims, and, regal’d plain subject county are *9 657-13(1) language, pro nowhere limitations set forth Hawai'i Revised Stat (HRS) tolling of vides derivative actions. utes 662-4 of the State Tort Liabili (STLA). connection, jurisdic ty this that we note Act The decision reinstates 46-72, which, Salavea, scope super tions have refused to of extend the under was infancy tolling provisions to derivative claims. 662-4. 55 ceded HRS Haw. Ry. consequence Emerson v. See Southern So.2d P.2d at 54. The of City interchangeably they 1. Salavea involved a claim and used as relate to Honolulu. County “City" "county” of Honolulu. and are questions respect require is to the statute of limitations [sic] Salavea raise behind existing pending and claims and the status of adherence Salavea.” claims, to wreck havoc future City astutely points The out a inter- literal governed by would have been pretation only applying of HRS 662-4 as period until the case at hand. (such City and not to the State as that adopted by majority), “does not end the respect, majority’s holding all due With analysis.” City The maintains that this court ignores prudential pragmatic and consider- recognized departure has that from a literal against reversing ations as as Salavea well justified construction of a “is statute when legisla- great weight be accorded produce such construction would an absurd acquiescence in ture’s the Salavea rule. unjust and and result the literal construction agree I that of limitations While the statute particular clearly in the action is inconsistent plaintiff-appellant on claim of Brandzie purposes policies with the of the act.” (Brandzie) tolled, Kahale City County Franks v. Kahale, plaintiffs-appellant claims of Francis 328, 341, The (Francis) (Rachel) Jr. and Rachel Kahale application declares that of a six month Plaintiffs) barred, (collectively I are under 46-72 would grounds, conclusions on reach these different unjust produce “absurd and results.” long precedents. and in consonance with held because, this is The asserts the ma- noted, jority in “it would be unrea- I. party’s right sonable to hold that a to recover First, noting parties it is worth that both damages in tort from maintain that Salavea should not be over- Honolulu, a subdivision of the created turned and that HRS 46-72 should not be legislature, more restricted than reinstated statute of limita- right his [her or] recover from the State posit tions for the counties.2 The Plaintiffs Salavea, itself.” 55 Haw. at effectively 662—4 creates a six 54. month limitations on claims Defendant-Appellee City II. (the City), Honolulu which would “contradict importantly, general Second and “[a]s trend in law of the modern American rule, lightly disregard precedent” do not steady sovereign ‘the eradication of immuni- “great always should consideration ty’.” (Quoting precedent, especially long accorded one of 54.) explain P.2d at Plaintiffs further standing general acceptance.” State v. sovereign immunity

that “the eradication Jenkins, 87, 112, 93 Hawai'i spoke of which the Court in Salavea was the (2000) (citation added). emphasis omitted and written, opinion in 1973 trend when the “adjudged Precedent is an case or decision years now 31 has even later trend court, furnishing example considered as an appeared to have been reversed.” authority for an identical similar case

Similarly, City urges arising us not to overrule afterwards similar case of law. policy It notes that prece- Salavea. we have stated courts to stand behind depart points court “should not from the doc- dent not disturb settled is re- compel- trine of stare decisis without some to as ferred the doctrine of stare decisis.” Garcia, ling justification,” and that “there no indi- State v. 96 Hawai'i (citation, brackets, cation that warrant a circumstances reversal and inter- Salavea,” omitted) quotation (emphasis ease. The nal marks add- ed). all, policy “operates principle “[i]f further submits Stare decisis as a challenge, parties appeal purposes appeal. 2. The did not or in waived for the State v. Mo ses, below, appli § 662-4 Hawai'i the court that "HRS is the court, (2003). By parties of limitations” with to tort order of this were cable statute counties, required supplemental as established in to file briefs to address *10 Salavea, question holding 55 Haw. at 517 P.2d at As of whether the of Salavea 54-55. rule, general legal a raised at trial are should be overturned. issues not

351 ... with p. self-restraint (providing examples the overrul- P.3d at note of ing prior decisions. The benefit ... justification in eases which did exist over- guide that it furnishes a clear for the conduct ruling precedent, specific based on the facts individuals, ... eliminates case). the need to majority of each claims the rea- relitigate every ease; proposition every soning majority analytical- “is Salavea public judicia- maintains faith in the ly bankrupt” and contends that such reason- ry as a impersonal source of and reasoned ing justification” “compelling constitutes a judgments.” Id. at at P.3d overruling Majority opinion Salavea. (citation, brackets, quotation and internal p. assessing 239.4 But in omitted). marks costs,” “respective symmetry by obtained overruling outweighed by Salavea is far This court has warned “we should not change just a case law detriment that Id. for the results. sake detrimental change.” McBryde Sugar Ltd., reinstating effects of v. Rob HRS 46-72 and over- inson, 174, 180, 54 Haw. ruling great. Salavea are (1973). Although acknowledged we have Nullifying provides Salavea little benefit necessity “there is no legal sound reason posed inasmuch as the concerns dis- perpetuate an error under the doctrine sents of Justices Levinson and Marumoto5 in decisis,” agreed stare we have “with the the Salavea decision were answered in the proposition expressed by the United States subsequent City County case of Orso v. & Supreme Court that a court should not de Honolulu, part from the doctrine of stare decisis with Orso held the limita- compelling justification.” Garcia, out some applied tions section HRS (citation, 96 Hawaii at 29 P.3d at 925. City, and that “no there was valid reason to brackets, quotation and internal marks omit applicability provi- extend the ted) added). Hence, (emphasis when “the Chapter sions of [City].” 662 to the Id. prior holding, judg court reexamines a such, As the fears of the dissenters that customarily ment is informed a series Salavea would result the extensions of prudential pragmatic considerations de liability” “numerous ... restrictions signed to consistency overruling test the chapter eliminating “jury or in prior decision the ideal of the rule trials” in tort suits the counties never law, gauge respective and to costs of need, then, perceived came to fruition. The reaffirming overruling prior case.”3 holding for revision of this court’s in Salavea (citation, brackets, Id. quotation and internal eliminated, reversing Salavea is a omitted). marks “pruden[t]” failure exercise of our Garcia, discretion. 96 Hawai'i at A. P.3d at 925. “compelling justification” is no such

There justify hand, overruling pragmatic On the other consider majority opinion, p. case. See overriding note ations counsel the case. tion,” majority prevent 3. The injury.” states that this "dissent makes no or to "unintended As discussed, attempt premise.” majority to defend Salavea’s central has not demonstrated Majority opinion p. p. justification years 347 note 90 P.3d at of estab point, majority precedent. note 7. As to this misses the lished mark. retry It is not this court's role to "defend” or previously 5. Specifically, cases have been decided Justice Levinson warned his proce this court. Rather what is at issue is the wisdom dissent that STLA"contains numerous overturning prior judicial liability, decision. dural and substantive restrictions on which, counties, if to cities and se verely rights private litigants 4. We note that this court has also said that undercut the precedent may injury governmental be overruled "if unintended tort suits these subdivi by following previous would result deci sions” 517 P.2d at 55 Jenkins, (Levinson, J., dissenting). sions.” Justice Marumoto Enters., Inc., (quoting consequence Francis v. Lee 89 Ha feared the "serious to one who has county, (1999))(empha- wai'i a tort claim for under STLA added). Thus, (Marumoto, J., jury sis this court must not overrule there can be no trial. precedent justifica "compelling dissenting). unless there is a *11 c. thirty years precedent established Over courts, guide” for the has “furnished clear Additionally, decisis the doctrine stare counties, public applica as to the “special force” in the case. carries limitations for tort suits ble statute of Garcia, Hawaii at at 925. P.3d Garcia, the counties. For, in of constitutional “unlike the context Abrogation of of limita P.3d at 924. a statute “statutory interpreta- interpretation,” when (as involved, ease, thirty years places into tions relied on for in this inter- tion” is § existing potential § 46- question pretation 662-4 and HRS the status 72,) “legislature to remains free alter” prospectively, applied if claims. Even legislature this court has done. Id. The what questions resulting upheaval will raise about and, thus, was free amend the statutes application impact of such a rule. Salavea, effectively but has overrule never Reviving six-month the counties’ notice re thirty years so in since was done Salavea quirement potentially will bar meritorious decided. future, persons fail to claims who Instead, bring legislature within their the counties has left the two- year deprived day in rule HRS six months will be of their so, doing legislature § 662-4 intact. court.6 implicitly acquiesced appli this has court’s As cation of 662-4 to the counties. this court “ B. said, legislature fails to act has ‘where the statutory response interpretation, to our doubt, pe- six-month limitation Without statutory consequence is that the inter § 46-72 untoward riod of HRS invites re- pretation of the court must be considered to Salavea, explained in sults. As “the notice approval the tacit of the have requirements of the Charter ” legislation.’ Ross v. the effect Stouffer County of Honolulu set forth a limitations Hotel 76 Hawaii period much shorter than that HRS (1994) (quoting Dannenberg, § 662-4.” (1992)). Specifically, effectively § at 53. HRS Against background, majority this any personal property bars claims for legislature’s claims that amendment of “the injuries notify if the claimant does § HRS 46-72 1998 would have acted as an City of a claim within “six months.” such Implied § [HRS 46-72].” reenactment’ of § explained This 46-72 and court HRS 347-48, Majority opinion p. at 239- Section 12-106 the Charter of the However, 40. Act 124 did not make County of Honolulu both involve notice of significant changes § substantive to HRS 46- requirements which court claim decided purpose 72. Instead its amend sever- ], reality, “operate! as ... statute[s] Statutes,”7 al of the “Hawaii Revised for the describing limitations.” Id. In harsh ef- purpose “replac[ing] county references require- similar fect of a six-month notice supervisors boards of references ment, Supreme ob- Court Nevada county” styl- council of each and other minor that the notice “statutes serve no real served changes, changing istic such as the term they trap beneficial use but are indeed “chairperson”. “chairman” to See Hse. Conf. Journal, unwary.” Staggs, Rep. Turner 89 Nev. Comm. No. 1998 House 985; 124, § 1 1998 Haw. Sess. L. Act. at why may majority questions equal protection of HRS 46-72 violate the 6. clause). Majority opinion will wreck havoc. However, 240. detrimental P.3d at various evident, reviving are effects of HRS 46-72 making styl- In addition to the aforementioned herein, (i.e. noting 46-72, that those who fail discussed changes Act 124 in- istic to HRS also bring following their claims the counties within changes cluded similar statutes: court; 54-54, 54-59, day 54-52, deprived will six months HRS HRS HRS the six month notice serves no real beneficial use, trap unwary; revival 105-7. but acts as a for the

353 justification’ ‘compelling departing from impli- 479. Thus to claim that Act 124 had 207, Id. at 29 the doctrine of stare decisis.” edly addressed the substantive content 202, Hilton, (quoting P.3d at 926 502 U.S. at §HRS 46-72 is inaccurate. 560). 112 S.Ct. hand, legislature has On the other by III. never disturbed the rule established Sala- vea “that 662-4 is the stat- HRS majority Inasmuch as the revives HRS limitations, superseding 46-72” ute HRS by overruling I it 46-72 believe 221, 517 P.2d at 54-55. Since this potential question of raises the whether HRS 1973, inception nothing rule’s there is equal protection § 46-72 violates the clause history legislative support equal protec view that of our constitution.10Under the doctrine, satisfy “must tion legislature diverged holding has from scrutiny strict or rational basis either re provisions 46- Salavea “the scrutiny ordinarily applied view. Strict 72 662-4 and [HRS] are inconsistent suspect laws classifications of where involve 219, invalid.” 55 Haw. at 517 P.2d at 54.8 rights, and rational basis review fundamental traditionally applied in all other classifica

D. Sims, Mgmt. Corp. v. 101 Ha tions.” SCI 438, 458, 389, (Acoba, wai'i 71 P.3d 409 Furthermore, reversal, unsupported such a J., dissenting). pres In cases similar to the justification, by has a substantial deleterious one, suspect fun “where classifications or ent “public judiciary faith in effect on the issue, rights are not at this court damental impersonal judge- a source reasoned traditionally employed has the rational basis Garcia, 205, “ 29 P.3d ments.” test, test.” Id. ‘Under the rational basis subsequent at 924. law that ease inquire rationally a as to whether evidences that evolved legitimate a in furthers state interest. Our “ public court and the ‘have acted reliance any quiry to determine whether seeks ”9 Id., 206, previous decision[.]’ on [this] justification can be found for the reasonable (quoting 29 P.3d at 925 Hilton v. South legislative (quoting v. enactment.” Id. Baehr Comm’n, 197, Ry. 502 Carolina Pub. U.S. 571, 44, Lewin, 530, 74 Haw. 852 P.2d 63 (1991)). 560, 202, (1993)). 112 116 L.Ed.2d 560 S.Ct. § 46-72 a class of establishes “ ‘overruling any decision dis [will] of the tort claimants does involve ” by lodge rights expectations.’ “suspect protected Id. the Ha- classifications” settled 202, Hilton, wai'i Constitution. (quoting 112 502 U.S. S.Ct. 560) 560, (positing 116 L.Ed.2d that adher separate class of creates has when ence to stare decisis added force by by persons damaged tort committed legislature and have the citizens acted entity give must six municipal and who decisions). prior light “In of this

reliance claim or months notice of their else be history” spans thirty years, I the last barred from further action. HRS separate persons damaged class of majority creates a “muster[ ] believe the has failed to 64, (1983); by light, P.2d 67 Orso v. In this case is not resolved 659 247, Honolulu, 241, legislature, suggested 56 Haw. 534 reference to the majority. 8, 489, (1975); Kelley majority opinion p. 90 P.2d v. Kokua Sales and See 348 note 209, 673, Ltd., Supply p. free to 56 Haw. P.3d at 240 note 8. The (1975); Sherry Asing, at hand is whether v. 56 Haw. amend compelling justification statute. issue Sa- P.2d exists lavea. I, the Hawai'i Constitution 10.Article section 5 of upon and cited to 9. Several cases have relied provides that: Dept., Salavea. See v. Honolulu Police Ruf life, (1999); liberty deprived person P.2d No shall be Hawai'i law, property process Hays without due nor v. 81 Hawai'i of 719 laws, (1996); Whittington equal protection nor be denied the of the State, enjoyment person's civil denied the 806 Inc., (1991); rights Cootey in the exer- Inv. 68 Haw. or be discriminated Sun race, (1986); religion, sex or cise thereof because of First Ins. Co. Hawaii, ancestry. v. Int’l Harvester Ltd. not, entity county provision a tort committed a state claim notice should minimum, proceedings equal who must institute at a that of the “ ” year’s.11 Application within pass state two of HRS cannot ‘rational basis’ test as 662-4, then, required 46-72 and HRS equal protection results under the clause *13 separate aggrieved parties. SCI, two classes of our constitution. injured by persons Baehr,

But those torts commit- (quoting P.3d at 409 63). by county ted are far more limited ability to seek redress under HRS 46-72, § they for with are faced a six-month IV. opposed statute of limitations as to a two- year statute. necessary It majority not for to to reverse Salavea reach result in the same then, § persons Under HRS are case. This case should be decid- subject and, to accordingly, the shorter following ed on the established case law. period harsher limitation on fact the mere county, entity that was and not a state appeal, On emphasize Plaintiffs this committed the them. It is brought against City action is pursuant would, not rational that the on the § to HRS 657-7 HRS 657-7 states hand, place equal footing one “[ajctions entirety in its recovery for the private subject with who tortfeasors are to a compensation damage injury for or limitations, two-year supra persons property or shall within be instituted hand, note but on the other extend to years accrued, two after the cause of action municipalities a much of limi shorter statute after, except provided as in section justifications tations. The notice of claim added.) (Emphasis 657-13.” 657-13 “ provisions, operate which as ‘statutes states, in pertinent part, as follows: encourage promptness limitations is to in the prosecution of actions and thus avoid the any person If bring any entitled to ac injustice may prosecu result from the is, specified part[12] tion in this at the tion of claims. stale Statutes of limitations accrued, time the cause action ...: attempt protect against the difficulties (1) age eighteen years; Within the evidence, by caused lost faded memories and ” Muranaka, disappearing witnesses.’ Eto v. Hawai'i person such liberty bring shall be at (quoting McLaughlin, Shin 89 Hawai'i respective such actions within the times 1059, 1064(1998)). part, limited disability after removed, or at time ivhile the disabili- light purpose, In of such no rational basis ty exists. subjecting exists for claimants to two un equal, separate classifications on the basis added.) (Emphases Plaintiffs claim that the whether the tort was committed munici ruling court erred such, pality opposed As the State. limitations on Plaintiffs’ claims was not tolled arbitrarily subjects claimants 657-13(1). §HRS municipal torts to a six-month limitations period, two-year while the claimants of state torts do period limitation in the STLA, not suffer from the bar. same Whereas no was held “ ” justification’ explain why ‘reasonable can City in In Salavea. a minor addition, exists, namely analysis, a third class vic- this third class further illustrates tort-feasors, by private tims of torts caused included under HRS arbitrary nature of HRS 46-72. 657-7. The applies statute of limitations under HRS 657-7 I, 12. This refers to Part entitled Ac- "Personal recovery compensation "[a]ctions to all for the tions,” Chapter entitled "Limitations of damage injury persons property!.]” or or Actions,” under Title 36 of the Hawaii Revised by private claimants of torts caused entities Statutes, entitled "Civil Remedies and Defenses proceedings years. must institute within two Al- Special Proceedings.” though equal protection not relevant under the parents injuries and his sued the Francis and Since Rachael suffered no dis- claims, ability regard sustained the minor. 55 Haw. at to their their ac- P.2d at 52. tolled. See Emerson Southern summary moved for tion is not (Ala.1981) (set- Ry. judgment pursuant 12-106 of Section 404 So.2d ting Charter of Honolulu parent’s spouse’s forth that a loss 46-72,13 claiming plain- enjoy tolling appli- that the consortium action will not action); comply tiffs had failed to see also originating the six-month cable to the Dist., Long requirement, Id. at Smith v. Beach barring notice suit.' Sch. 517 P.2d at 52-53. This (N.Y.App. court disa- A.D.2d 715 N.Y.S.2d Div.2000) greed, deciding superced- that HRS (dismissing parents’ negligent in- ed HRS 46-72 and Section fliction of emotional distress claims as time *14 Id. at Honolulu Charter. 517 P.2d indicating infancy at barred and that toll “the is 54-55. was personal It reasoned that the STLA was to infant and not the does extend to claims”). general “a law application throughout parents’ Accordingly the the derivative State of Hawaii on a by matter state-wide' Francis’ and Rachael’s claims are barred concern,” interest and while Section 12-206 the statute limitations. provision the Honolulu was “not a Charter then, only remaining, issue is whether affecting organization governmental the the limitations is tolled and, County,” structure the brought to claim the on behalf of Brandzie.

therefore, applicable HRS 662-4 was the Id. at statute. 517 P.2d at 53-54. This V. court also held that because HRS decision, Subsequent to the in was impliedly enacted after Orso, pertinent this court decided it was to repealed § controlling 46-72 and was the Salavea, determine, light in an whether statute. Id. 517 P.2d at 54. brought against action would be subject provisions to the STLA. 56 Salavea, Applying precepts two Orso, Haw. at 534 P.2d at 493. In an years expired before Francis arid Rachael brought against action was for defa- filed claims on own them behalf for loss of character, arrest, mation of im- false false consortium and infliction of emotional dis prisonment Id. prosecution. and malicious It tress; thus those claims are barred Salavea, held, pursuant limi- two-year statute of limitations. The deriva applica- tations section in 662-4 was tive filed Francis and Rachael are City, ble to the but was “no valid there separate, procedurally, considered from the applicability reason to extend the oth- underlying claim. See Yamamoto v. Premier provisions Chapter er of HRS 662 to the Ins. Haw.App. 4 48 Id.; Shaner, see also Breed v. [City.]” (1983) (indicating that wife’s derivative claim (hold- damages separate for spouse’s from her Orso, ing, pursuant Sala- in the rule Sullivan, claim); Terry see also vea is limited applicability (Colo.Ct.App.2002) (permit P.3d City, authority 662-4 to the and is “not ting tolling for an claim incar inmate’s while support a total extension of the [STLA] cerated, disallowing tolling but loss County”). wife, consortium claim of the inmate’s who Later, Whittington, was free to file suit within in the limitations this court ruled that Bartlett, period); Elgin v. “the extension minors allowed (Colo.1999) (recognizing provisions tolling 657-13 is not to actions suit, malpractice Chapter a child but medical the State under 662.” barring loss of consortium action of Haw. at It 806 P.2d at 958. was observed parents running child’s due of the was modeled on the federal STLA limitations). “[fjederal act, statute of and that cases have refused "operates, reality, 13. HRS 46-72 and Section 12-106 of court decided as a statute of Salavea, Charter of the of Honolulu both limitations.’’ 55 Haw. at requirements involve notice of claim (9th Cir.1965); minority tolling in tort ac- Brown v. recognize federal United (9th Cir.1965). States, In P.2d at 957. 353 F.2d tions.” Id. at Federal Pittman, nine-year old child had six-year contain a statute of limita- been statutes express minority tolling Navy motor on a tions with for actions struck Naval vehicle tort, Pittman, 341 F.2d at 740. other than those based and there installation. See express minority tolling minority tolling of a no for tort claims. view the absence FTCA, Similarly, expressly provision plaintiff argued allow for the HRS (because minority deprive rights tolling [minors] for non-tort claims that “to possibility not. Id. that no adult will but the STLA does initiate proceedings) process equal violates due City argues in- that the instant case proteetion[.]” Id. at 741. The Ninth Circuit which, City, a tort claim volves concluded, however, that the FTCA did not according governed by permit dispensation. such STLA, Orso, [(citing section concept think We still adheres 493),] and that Act the Federal Tort Claims was a reasoning Whittington, under the immunity. government waiver of There apply to an action does say are decisions that that the act should City, [(citing Whittington, 72 Haw. at *15 liberally may think be construed. We that 958.)] Whittington, in But it injuries be true to what are within the brought that “[a]ctions was concluded under time, act. But can as to one see that the however, Chapter 662 are not actions Congress was alarmed about stale claims Chapter in I specified Part and ac- passed provided it Act and that when cordingly, the extension minors allowed only year period should be a there one in 657-13 is not to actions during brought. which an action could be against Chapter the State under (This changed years.) later two 662-4 bars this suit.” Id. at thing big gov- This is because of the that added). (emphasis 806 P.2d at 958 difficulty ernment is and of its in because terms, holding its in Whit- meeting stale claims.... We do not be- tington concerned a claim raised Congress lieve that the could have intend- Hence, City. and not Whit- State up years that ed infants have for a Rather, tington dispositive. is not as Plain- of limitations. contend, any expressly law “[a]bsent tiffs Appeals Id. The Eleventh Circuit Court extending year* not two [STLA] ’s States, that, explained in Maahs v. United [(HRS limitations, but also FTCA, under the statute limitation of the 662-4) proscription against tolling, ] very right evaporates” “the to sue after the counties, [granted not [court] should have two-year period. limitation F.2d summary judgment] in this ease[ ]” (11th Cir.1988). n. 4 It was said that respect to claims. [OB 5.] Brandzie’s principal distinction between the period limitation in the FTCA VI. is that statutes the FTCA created previously right non-existent to sue the cases, In it is federal well established that government in tort. period the limitations under the Federal Tort (FTCL) during adopted Act is not Claims tolled The STLA was in 1957. See 1957 minority. Papa legisla- claimant’s See v. Haw. L. Act. at 384. United Sess. (9th States, Cir.2002); history insight 281 F.3d tive Act not does offer States, minority tolling provi- MacMillan v. United 46 F.3d 380 as to the of a absence (5th Cir.1995); However, Zavala rel. v. ex Ruiz United sion actions the State. (9th States, Cir.1989); 876 F.2d is the STLA modeled the FTCA. See States, Rogers Landreth ex rel. Ore v. United v. (9th Cir.1988); Therefore, reasoning

F.2d Robbins (10th States, Congress including 624 F.2d Cir. attributed to for not United 1980); States, minority may tolling provision Pittman v. 341 F.2d United the FTCA Kamau, imputed light Supreme be to the Hawai'i In of the Ter- Court ritory previous of its enactment the STLA of Hawai'i overturned six de- Mitchell, claims. dichotomy Helbush 34 cisions had that adhered Cf. (1938) (“It generally governmental private is a ac- drawn between cepted statutory rule of that functions. that construction The territorial court held legislative body adopts municipality’s] agents negli- where the a law of are [a “where changes gent performance all another State words and in the duties so phraseology presumed individual, will be to have damage been that results to an it is deliberately purpose duty being performed made and with a immaterial limit, qualify enlarge adopted public municipality law to one from which the changes imposed profit duty extent words and derives no or that it is a phrases imply.”) upon legislature.” 41 Haw. at 552. ease, to this Relevant the' Kamau decision minority tolling provision The lack of a municipality that a not established does en justified by the FTCA and the STLA joy sovereign immunity that the State acts, sovereign immunity. adopting Quoting does. Justice Holmes Kawana Congress legislature, respec- and the State Polyblank, nakoa v. 205 U.S. 27 S.Ct. tively, they immunity that not waived were (1907), 51 L.Ed. 834 the Kamau court required minority lack of a waive. The principle sovereign “[a] affirmed the acts, then, tolling provision in is a these suit, exempt formal because immunity retention of to that extent. conception theory, or obsolete but on the logical practical ground can there VII. legal right authority no right depends.” on which makes the law *16 indicated, supra, preclud As the rationale Kamau, pointed 41 Haw. at 538. It was out ing minority tolling under federal and state sovereign immunity State “[t]he liability largely sovereign tort acts rests rests on the doctrine that which immunity It was doctrine. established suit, but no makes the laws is immune to County Kamau v. 41 Haw. Hawai‘i reasoning indulged such can in on behalf (1957), municipality, that a such as the municipal corporation.” of a Id. at 542. City, sovereign immunity. is not entitled Consequently, City because the is a munici pal corporation, see Revised Charter of Hon Supreme Prior to Court (2000) (“The people City olulu 1-101 Territory general of Hawai'i followed the rule County of and and Honolulu shall be continue municipality was from tort that a immune body politic corporate by as a and the name liability involving governmental for actions ”), ‘City County of Honolulu.’ it is not and functions, arising but not for immune those immunity inhering sovereign entitled private corporate out of its functions. See in the State. bright id. at 528. With no line method of determining municipal which functions were VIII. “governmental” “private,” and which were hopeless confusion and [were] “cases even A. jurisdiction impossible the same often City County City protected Mark v. and is not sov reconcile.” Whereas the (1953). Honolulu, subject, ereign immunity, 40 Haw. For it is other like tortfeasor, Kaczmarczyk example, determining City’s liability to tort laws. See truck, Honolulu, involving garbage a 65 Haw. for an accident a (determin (1982) distinction was made the removal of 91-94 between “rubbish,” garbage” ing alleged tort victim was entitled to “wet the former be- City, ing designated governmental function even case though non-governmental one. Maki v. the same claim was dismissed the latter State); also, Wong 33 Haw. v. Hawaiian Sce Tours, Ltd., 401, 403-06, 64 Haw. nic (1982) curiam) (per (permit IX. recovery ting tortfeasor Coun (1) expressed by Inasmuch as the concerns Honolulu); ty of Littleton v. 66 Haw. the Salavea dissents have been eliminated (1982) 65, 67-68, (ap (2) Orso, “compelling justifica- is no there plying analysis traditional to a claim overruling thirty years tion” for of estab- then, City). City, subject Garcia, precedent, lished provisions which (3) potential harm caused inju pertain generally personal to actions for (4) by overruling great, the revival ry. Correlatively, tolling provisions in questions raises serious apply 657-13 would as it (5) violation, equal protection the same involving any would in an action al may existing prece- result be reached on leged personal injury brought for dents, tortfeasor respectfully majori- I dissent with the pursuant to HRS 657-7. ty’s rationale and of Salavea. On stated, (1) grounds previously I would September affirm the court’s 2000 sum-

B. mary judgment order and its November judgment final brought as to the claims tolling provision legal disability, (2) by Francis and Rachael vacate the excep includes statute summary judgment judgment order and infancy, insanity, imprisonment, tions for on behalf of minor part has been a of Hawai'i state law since Brandzie and remand such claims for further public policy 1859.14 HRS 657-13 reflects proceedings. favoring minority tolling. enacting statute, legislature adopted policy

treating “protected minors class for

purposes extending limitation of the time right bring suit.” Gorospe v. Mats

ui,

(discussing enacting the rationale 90 P.3d 250 657-13). legislative As noted histo HAWAI'I-KONA, INC.; EXOTICS Sharon ry under which this claim is Special Representative Murakami as *17 brought, “the limitations Kato; Harvey the Estate of Chiaki To infant, properly should not run an an mono; Partners; Agro Andraea Arvak person person prison during or a insane nomics, Inc.; LC & Orchids and Island period disability of his but ... Agribusiness, Ltd.; the statute Ernest Carlbom during disability, Carlbom; Cymbidium should toll such as in Partners; Donna Resources/Hawai'i, Inc.; Flowers, Rep. cases.” Sen. No. Floral Stand. Com. Inc.; Cymbidium Journal, Partners; court, Glenwood House 877. This Nurseries, Inc.; Point Green Daniel Props., Hun v. Center 657- examined HRS Farm; Hata dba Hata Hawaiian Anthu 13 and affirmed that “it is the role of the riums, Ltd.; Greenhouses, Hawaiian protect courts to of minors interests who Inc.; Heart, Inc.; Hawaiian Albert Isa parties litigation.” become Nursery; Nursery, dba Albert Isa Kaimu 182, 189(1981). Inc.; Nursery; Margaret Kaohe Kincaid Therefore, minority tolling provision Farms; and Peter Kincaid dba Anuenue running § HRS 657-13 tolled the of the two- Orchids, Inc.; Kona Alan Kuwahara dba year as to Brandzie’s Floriculture; Puna James Kuwahara and, thus, such claims could have been Farm; dba Kuwahara James S. Yoso during minority, Kuwahara, Inc.; Henry Liljedahl; time her Ma happened Partners; McCully; here. laai James Mitsuo originally 14. HRS 657-13 was 1039 of the 1859 Hawai'i Civil Code.