*1
Mr. and
vidually Ad Litem for and as Guardians 1; child, Minor Girl No. minor Doe
their No. Mrs. Doe Parents and Mr. and
individually Litem Ad Guardians child, Doe Minor Girl their minor 2, Plaintiffs-Appellants/Cross-Ap
No.
pellees,
v. Hawai'i, DEPARTMENT
STATE EDUCATION, Defendant-
OF
Appellee/Cross-Appellant, Norton; Nor Marie Valerie
Lawrence J. 1-10; 1-10;
ton; Does Does Jane John 1-10; Corporations Partner Doe
Doe 1-10;
ships Enti and Doe Governmental
ties Defendants.
Nos. 23901.
Supreme of Hawai'i. Court
Nov. 2002. 5th, 2nd and
As Amended Dec. *7 (Anne
Mark S. Davis L. him Williams with biiefs), Livingston the of Davis Levin Grande, for plaintiffs-appellant/ci’oss-ap- the pellees Parents No. and Jane Doe Doe No. 1, and Doe No.2 and Parents Jane No. 2. Doe Fell, General, Deputy Attorney Charles P. the defendant-appellee/ci'oss-appellant Hawai'i, Department State Education. MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., ACOBA, J., coneun'ing and and separately. LEVINSON,
Opinion cross-appeals, of the Court arguing J. The DOE the court, reasons, circuit for various erred in plaintiffs-appellants/cross-appellees The holding plaintiffs it liable to at all. In the appeal1 this consolidated are two minor chil- (1) essence, that, pursuant DOE the contends respective parents dren and their [hereinaf- (STLA), Liability to Hawaii’s State Tort Act ter, collectively, “plaintiffs”], all of whom (HRS) Hawai'i Revised Statutes ch. 662 consented their disclosure (1993 Supp.2001), it is & immune from the identity in connection this case.2 Doe (2) that, plaintiffs’ claims and if even Parents No. 1 are retired Lieutenant Colonel immunity, STLA sovereign does afford it Cynthia Ira Steven Davis and Davis, and (a) the circuit determining court erred in daughter, Jane No. 1 Melony Doe is then* negligent negligence it had been and that its Fay (Melony). Davis Doe Parents No. are injuries legal plaintiffs’ was a cause of the Benjamin George Draughn Mary (b) plaintiffs required that the were not Draughn, and No. 2 daugh- Jane Doe is their physical injury pre- establish order ter, (Nicole). Draughn Nicole State of The vail on NIED them claim. (DOE) Department Hawai'i of Education the defendant-appellee/cross-appellant. cross-appeal, As to hold the DOE’s we them complaint, plaintiffs named as a (1) to plaintiffs follows: the extent that the codefendant, and subsequently the DOE filed predicate negligence their and NIED claims against, cross-claim Lawrence Norton J. negligent retention and su- DOE’s (Norton), (the Melony’s girls’) and Nicole’s Norton, pervision of that the STLA’s inten- teacher; Norton, however, did not enter an exception tional tort does not insulate the trial, appearance at the circuit court dis- (2) that, liability; DOE from under the cir- him, parties’ missed all of against claims case, of this cumstances could III.B, party section and he is not infra physical injury; obtain relief the absence of appeal.3 to this (3) that, insofar as the. DOE should have plaintiffs appeal judgment anticipated reasonably threat foreseeable court, students, posed first circuit Honorable Sabrina DOE was subject presiding, awarding plain- duty steps S. McKenna to a to take whatever forty-nine percent tiffs of them dam- total reasonable to ensure that he did not molest ages—i.e., Nicole; damages Melony foregoing amount of $432,200.00 Draughns collectively duty only ran not students $429,251.00 custody, amount DOE’s but the Davises also the students’ collectively—on negli- them parents; that the DOE breached the (NIED) gent Melony infliction of emotional distress care that owed to and Nicole (a) respective claims appeal, parents reinstating the DOE. On them Norton, plaintiffs challenge appor- acquitted circuit in con- court’s after he had been molestation, liability prior tionment of allegation between the nection with *8 Norton, advancing arguments sup- conducting reasonably thorough several without a (b) port of them contention that investigation, failing supervise the DOE should or re- to them in total of liable amount then- strict Norton’s conduct once he had resumed damages. exhibiting prior the behaviors led to plaintiffs' appeal proceed- appellate 1. The in this matter was docket- the remainder of the trial and 23899; ings. appeal ed under No. the defendant’s was January docketed under No. 23901. On 2001, this court of ordered consolidation these wife, plaintiffs Marie 3.The also named Norton’s appeals briefing disposition and under No. Norton, Valerie a com- as codefendant their argument January 23899. Oral was heard on plaint, against and DOE filed cross-claim However, 2002. her. court circuit dismissed plaintiffs' against prior claims Marie Norton Initially, plaintiffs proceeded with their trial as the DOE no evi- insofar advanced However, against pseudonyms. supporting lawsuit under dence at trial her, its cross-claim trial, plaintiffs judgment in time that the matter went to court favor circuit entered against to the of connec- moved mainland consented to the Marie Norton and the DOE in of their disclosure identities connection with tion with the DOE’s cross-claim. However, (c)
accusation, respect during and like Mélony and Nicole Nоrton. questioning semester, during again fall the 1991 that Norton exacting their disclosures year, fourth and fifth them, 1994-95 school several in violation of the DOE’s had molested so, molesting grade students accused Norton doing given apparent policy against own relating circumstances Before generally them. administrators are school (d) Melony and Norton’s molestation of Nicole inquiries, and to conduct such trained during year, we set respec- the 1994-95 school forth notify Melony’s failing and Nicole’s Mokapu which a Nor- the circumstances under parents of their accusations tive (6) of molestation. ton; student first accused Norton negligence was that the DOE’s plaintiffs’ psychological legal cause resulting from Norton’s foreseeable
trauma 1. T.Y.’saccusation Melony Nicole. molestation semester, Shortly into the 1991 fall student, plaintiffs’ appeal, throughout we hold grade As to the identified fourth “T.Y.,” apportioning liabili- proceedings circuit court erred accused these Norton and, there- ty touching the DOE and Norton her fondling between her breast and bare fore, to the thigh. appears routinely that the DOE liable It that Norton Thus, damages. passes they full extent their hall so that for the issued to students judgment during circuit final vacate the court’s him in classroom we could visit his their routinely hugged to the circuit and remand matter lunch recess and them judgment entry of an final for the amended to start afternoon left their classes. opinion. with this consistent had fondled her in T.Y. asserted Norton giving of these
the course her one routine during was him hugs while she alone with I. BACKGROUND February Eventually, on lunch recess. Background A. Factual was indicted connection with allegation charged with commit- January Nor- T.Y.’s the DOE hired On in the graders Mokapu ting Ele- the offense sexual assault third fourth ton to teach During period, [hereinafter, degree.6 this five-month mentary “the school” School “investigation” administrative into Ka- DOE’s “Mokapu”], which is located within the (KMCAS), allegation primarily by T.Y.’s was conducted Corps Marine Air neohe Station Estomago, vice-principal Mókapu’s Donna military At the time base.4 United States hired, allegation time the was made. did not conduct Norton was DOE history checks background criminal indicted, Sosa, After Norton John employees.5 prospective teachers or other Superintendent, DOE Windward District prior his- Although Norton had “an extensive conducted “second” DOE administrative DOE tory pedophilia” time that the allegation. into “investigation” T.Y.’s Sosa him, history was not reflected hired action, any, sought what if to determine any public records. take, including should whether rec- year-and-a-half teaching Superintendent, During his first ommend DOE’s school, Toguchi, parents, as well that Norton be terminated at the students and Charles administrators, teaching position. to a faculty and came or reinstated con- as school 6.Although Mokapu faculty circuit administra- not enumerated court's 4. The school and its fact, employees findings presume the base com- we that Norton tors are DOE whom *9 707~732(l)(b) grants permission charged violating to enter KMCAS. mander with HRS (1993), proscribes part in relevant "know- per- ingly subjectfing] to contact another however, sexual Norton, Subsequent hiring to years is less than old." son who fourteen Pursu- adopted apparently rules re- administrative (1993), §HRS “sexual ant to 707-700 contact” history background quiring checks criminal touching “any part in relevant means employees. into new rules went for new parts person sexual or other intimate not exempted all sala- on June but effect actor, directly Norton, .. . whether married employees, such who had been ried continuously employed as 30, 1990, through clothing material from or other intended June since parts.” application. to cover the sexual or other intimate retroactive child, ducting investigation, occasionally his Sosa solicited and to a armhis would encircle received information recommendations the child’s waist. Sugino, from Emiko the DOE’s Personnel Estomago, Unbeknownst to the HPD de- Gordon, Director, Jaequelin the DOE’s Wind- assigned to tective the case had instructed Specialist,
ward District Personnel and Mókr parents speak to to school T.Y.’s not officials Schlosser, apu’s principal, James and vice- until he notified them that free to principal, Estomago. jury acquitted After a Consequently, do Estomago so. when ob- January Norton on 1993 in the criminal T.Y. and her bus served mother the school arising allegations, trial out of T.Y.’s 24, 1991, stop morning September on the teaching to position DOE reinstated him a them, approached inquired whether she conducting without further administra- seeing be T.Y.’s mother later investigation tive into the matter. The re- morning, nega- shook her mother head mainder this subsection details Estoma- tively, Estomago appealing to to con- go’s investigation initial “school-level” Similarly, parents fused. an T.Y.’s attended subsequent Sosa’s investiga- “district-level” evening open house Norton’s classroom on tion of T.Y.’s accusation.7 25, 1991, September nothing but said either Estomago daugh- to Norton or about their Estomago’s a. investiga- “school-level” allegations. ter’s tion 26, 1991, September Estomago On tele- Estomago Mókapu’s vice-prin- Donna phoned Crecelius to discover effort 1991, and, time, cipal September at that why she had been contacted either Ching principal. Carol was the school’s Late parents checking T.Y.’s or the HPD. After 23, 1991, September afternoon HPD, Estomago with the informed Crecelius approximately p.m., military 4:30 or 5:00 assigned that the HPD to detective the case (CID) Investigation Criminal Division inves- parents speak had instructed T.Y.’s not to Crecelius, tigator, Michael who was also anyone about the matter until the detective student, parent Mókapu aof informed Esto- Subsequently, them do so. directed mago T.Y.’s 27, 1991, accusation and that CID was September requested T.Y.’s mother referring the Honolulu matter Police daughter that her be removed from Norton’s (HPD) Department investigation. for further Estomago granted classroom. the mother’s Estomago, According to informed Crecelius request, but her to meet with asked Norton allegation “heads-up,” as a her of the rather and school administrators to discuss T.Y.’s matter, than “formal” as a and forewarned replied allegations. T.Y.’s mother she expect request parents her to from T.Y.’s Estomago’s request first wished to discuss girl from be removed Norton’s with her husband. Estomago grade fourth class. informed September T.Y. On was in the Ching allegation evening. of T.Y.’s process moving belongings her out her classroom, during evening September attempt- Also Norton desk Norton’s 1991, Estomago telephoned explain story” Norton. Accord- ed to “his side of the to T.Y.’s mother; ing Estomago, “typical procedure” to it is T.Y.’s mother “did not react” talk reported to the staff member involved when Norton. Norton incident Norton, “something” According Estomago, Estomago apparently arises. but did However, usually report Ching. there were numerous children his Norton did during report classroom his class Ching recesses when that T.Y. later visited him session, and, thus, during specifi- not in did not his classroom lunch with a he recess cally being group recollect T.Y. alone him. other children and had solicited confirmed, however, him; many Ching hug of the told Norton that T.Y.’s often, hugged usually him he should children when mother be informed visit that, desk, spoke appeal’s relayed report was seated to have Norton’s vestigation apparent practice subsequently, 7. The DOE’s when con- district *10 teacher, leveled investigation. such an accusation is ducts "district-level” the school conducts initial "school-level” in- evening, Ching 1991 until Nor- Estomago. Later that re- the matter from mid-October telephone mid-February T.Y.’s 1992. call from mother ton indicted turned was visit to informed her of T.Y.’s Norton and
during recess. investigation .b. “district-level” Sosa’s 4, final Ching’s day as was October An in the was indictment T.Y. case re- day, following Estomago principal 19, which, February as we turned on became, acting principal until sometime noted, committing accused Norton of November, ap- when James Schlosser was According degree third assault. sexual pointed Mokapu’s principal. HPD Detective Sosa, indictment, at around the time of the with Tejada respect first contacted the school “jurisdiction” over the DOE’s he obtained 11, 1991; allegations to T.Y.’s on October investigation into Norton’s al- administrative Tejada Estomago informed that he Detective leged misconduct. Norton T.Y. interviewing both and would be investigation with his in connection indictment Sosa had learned Estomago cautioned matter. The detective inquiry result a media late the after- class- that Norton should not remain February Shortly noon of thereaf- 1992. investigation. pending criminal room ter, he the situation with Donald discussed However, “surprised” HPD in- that the Superintendent Nugent, the DOE’s Assistant vestigating believing T.Y.’s the matter Services, and, subsequently Personnel false, Estomago allegations to be surmised Specialist District evening, with Personnel admonition based the detective’s Gordon. (insofar necessity upon caution rather than learned of indictment as a Gordon had Tejada yet investigated mat- had not Sugino’s inquiries result of that afternoon. ter), disregarded suggestion, the detective’s attempts After to contact unsuccessful it to and did not communicate of her Estomago, spoke Gordon with Schlosser superiors. Mokapu’s principal, Ching, who relat- former week, following on October Estomago investigatеd “had the inci- ed that superior—the Estomago first informed her Estomago’s “investigation dent” in- Deputy Superintendent, District Jac- DOE’s dicated that the accusation was unfounded.” queline Heupel—of investigation; the HPD’s Ching military that she asserted believed Heupel Estomago instructed discuss investigated CID had the matter had However, on incident further. October so, “dropped” Ching it. Even informed Gor- 30, 1991, Estomago Deputy contacted Attor- side,” T.Y. don be on the had safe “[t]o Suzuki, ney as well Russell as the General grade fourth been transferred to another Director, Sugino, Personnel because a DOE’s T.Y.’s class and that mother “seemed be telephone school counselor had received with this solution. satisfied” parent regarding allega- call from T.Y.’s Yet, unable, when became Moka- Because Sosa Gordon tions. Schlosser November, despite repeated attempts, pu’s principal in neither contact Estoma- their go anyone evening, him until later that Sosa in nor informed Schlosser else directly Norton investigating HPD was Norton that T.Y. structed Gordon contact placed molesting him her. and to inform him would be on accused Mean- while, promptly teaching, leave.8 did Norton remained and the administrative Gordon Shortly p.m., 7:00 granted January him on so.9 after Sosa succeeded tenure investigation contacting discussed with while the HPD’s was still Schlosser and Indeed, “steps regarding according Estomago, him what pending. [the] take school, students, teachersf,] “nothing happened parents, more or was said about” appears Spe- Although 9. circuit DOE Personnel court found that Schlosser It another cialist, "placed” Nagaue, on leave on the Barbara had advised Gordon administrative Februarj' placed evening record should reflects that Norton administrative leave, suggestion who that it was Gordon first informed Norton of that Gordon shared Sosa, it. action. and that Sosa decided to follow DOE’s *11 teaching the need to with” Esto- position. [the] review records been removed from his mago. any No other student came forward with allegations against additional Norton after Estomago first indictment learned learning of the indictment.10 Sehlosser, from and her reaction was one “horror” because in [her] she “believed heart afternoon, arranged meeting That Sosa nothing there was that had tran- Gordon, Sehlosser, Ching, with and Estoma- spiredf.J” learned When Sehlosser of the go “clarif[y] to order notes and state- Sosa, it indictment from was the first he had ments”; meeting, the course of the Sosa of T.Y.’s heal’d accusation Norton. “stressed the seriousness matter indictment, discussing Estomago While pointed importance out person- of DOE “investigation” informed Sehlosser her bring types nel to to these of cases closure.” allegation during of the initial fall semes- The circuit court inferred that Sosa had ter had unearthed “no to evidence substanti- meeting faxed the results of this to DOE allegations. ate” T.Y.’s Sugino. Personnel Director In a memoran- following morning, February The on prepared by Sugino, February dum dated Estomago, Sosa contacted who to Superintendent 1992 and directed “on per- “briefed” him from the incident her Toguchi, Sugino asserted that “[i]nitial re- spective.” morning, spoke Also that Sehlosser view of the situation indicates that con- the students Norton’s class sub- investiga- cern surfaced last fall and an assemblies, sequently, during two conducted tion was conducted the school. It was important which he noted that it was to determined at time that the concern “judge gossip” about the matter and that adequately resolved.” the school counselor would be available 20, 1992, throughout February Also on day During Sosa transmit- for the students. Norton, assemblies, ted a memorandum to upset which con- some children became allegations being placed and scrutinized their firmed Norton was on a fellow ten-day students to had pay determine who accused Nor- administrative leave with ton, a “beloved” teacher. Parents also be- that would “be [Sosa’s] he contacted office upset upon learning during report[ specified came had ] that Norton this leave to 2, 1992, point verity charge. 10. At some before March at which indicate children hug time il was forwarded to DOE Windward District flock him him do indeed and are Gordon, Specialist prepared Estomago return, Personnel hugged in but there have been no re- "Summary a memorandum entitled of Teach- ported improprieties presently beside what is Norton,” Response Larry which the er/Parenl charged. expressly her circuit court found reflected bias summary This is affixed to a cover directed sheet Norton, favor and which states full as Sehlosser, bearing date Gordon follows: 2, 1992; however, summary March cov- warm, caring, together Ching’s Mr. Norton has been a friend- er sheet are attached to "sum- ly, very responsive mary teacher fellow staff Septem- of events” that occurred between member. He has extended himself to the com- bearing ber 1991 and October staff!,] munity getting into activities signature February Ching's date 1992. beyond day. thal extend the work predictable. re- His routine school is At testimony, During Estomago her was asked morning in the cess time his room is full of by plaintiffs’ on cross-examination counsel stay in children who choose to the room. At whether, allegations time that "these came lunch, usually he walked his children up," anyone thought consulting expert about an cafeteria, [sic] come the office use the pedophilia to determine whether Norton fell Xerox and then returned to his classroom!] pedophile profile. Estomago responded: into a open kept the children to return Not when there hadn't been reason to inves- always to. His had it. room children in tigate. just get I wanted to some information apparent thought It he well going of facts. I wasn't that a assume community overwhelming as an number of person guilty. I I collected whatev- mean[J parents expressed support their for him facts, I er and went with the trust high him because their children hold in such relationship been built on and had never had esteem. indication, mean[,] I actually never. I never had nothing There is been re- parent only ported give approach child me. I credence to the likelihood of the only good. charge—nothing in his words or actions to heard So the frame was from that. *12 problems.” “from place part administrative] DOE’s further Gordon’s [the with an fur- of the conference conclude investigation.” appears nothing It that minutes entry, occurred, however, which asserts that ten-day pe- until the ther 4, 1992, at expire, was to on March agreed [the] riod due that [i]t [DOE] was necessary expedite to it was Sosa pursue which time HSTA would avenues to to maintain on impor whether Norton trial. This is [Norton’s criminal] determine transiency popu leave. administrative tant because of the Mokapu Elementary If School. lation 2, 1992, transmitted March Schlosser On time, long many potential delayed for a Estomago’s “Summary of Teacher/Parent longer no in Hawaii. witnesses would be Gordon, Larry Response to Norton” to Mr. to his attor Norton was advised 3, 1992, supra March 10. On Sosa note ney get depositions potential from witn request Toguchi to transmitted a that esses.[12] Norton’s administrative leave DOE extend investigation completed 11, 1992, and a “until the May Sugino On informed Sosa regarding” made Norton’s em- decision is prosecutor assigned that to Norton’s case Toguchi ployment appears to have providing copy status. with a would the DOE be day on request approved Sosa’s either of T.Y. that had videotaped interview been event, 4, 1992, and, any approved March Advocacy at the Children’s Cen- conducted later, writing on request ter, a week jury Sosa’s transcript grand as a as well 10,1992. March Sugino’s proceedings. memorandum Sosa Sugino *13 meeting opened by noting Sosa the that he memorandum, the Schlosser stated that he support could Schlosser’s recommendation to Norton, requested had contacted inter investigation table the until the conclusion of him representative, view with and his HSTA trial, Norton’s criminal or he could recom- viewing” to offered “share a of the video Superintendent mend to the DOE disci- such tape initially replied with Norton. Norton plinary suspension, reassignment, action as that would attorney, he consult his but that or termination. Sosa that “want- asserted he cooperate he to with wanted the DOE. How ed say,” to hear what had to that [Norton] so ever, representative Norton’s HSTA subse would, his hopefully, decision in- be better quently informed Schlosser that Norton’s at present meeting formed. Those at this ini- torney had advised Norton talk not to to tially particular the that clarified documents anyone about the case. memo Schlosser’s time, had up been shared with to Norton that randum closed with the that observation produce after which agreed Gordon to docu- “[o]ur consideration of the outcome of the attorney ments that Norton and his believed will fairly case to allow the [DOE] yet provided had not been to them.14 Nor- judge regard Mi-. Norton’s conduct with to attorney supported ton’s Sehlosser’s recom- this accusation.”13 mendation and that trial remarked Norton’s August was to on scheduled commence 26,1992, On June mailed a memoran- Sosa delay possible. but that was Moore dum to Norton that reiterated the substance recommendation, supported also Schlosser’s memorandum, of Schlosser’s June that, “earlier[,] remarking the did an school videotape, renewed his offer to view the investigation charges and found the at that invited Norton to a about conference groundless time to that be the Marine matter: Corps[,] through whatever mechanism part of As in- [DOE’s] administrative they investigate things, [use to] did so and assault, alleged vestigation of I sexual charges groundless[.]” found the to be videotape, and I viewed would like to Moore advocated that Norton “should be you opportunity afford to view this kept pay thing on and' until full benefits this your videotape, give and to version of the adjudicated competent through has been giving allegations, facts rise to the and to court.” respond questions I which videotape, Norton his concerning declined view the statements made attorney remarking already had student.... During done so. of meet- remainder my secretary call Please on before ing, ques- posed specific Sosa number July 1992 to schedule or this decline Norton, tions to which he had formulated conference. videotape, viewing after connection accepted participate attempt Norton the offer T.Y.’s accusation and Norton’s Sosa, and, consequently, day conference with on to confront T.Y.’s mother July belongings Sosa and Gordon met with T.Y. had her from Nor- removed trial, specifi- prudent point 13. At that he allow Sosa testified did not seemed at that time to recommendation, cally process recall Schlosser’s but did to take course those because recall that people position gather be in a would he evidence that would determine whether was agreement. was an there We talked about it guilty charge. guilty particular of that Sugino investigating with Mrs. and those of us that[,] the case as time went on in terms of the matter, It is unclear from the record whether Norton investigation of that he indict- regarding subpoenaed ed[,] DOE's documents get and we were able to information investigation their wheth- regarding of T.Y.’saccusations or particulars of the We wer- case. child, being generous simply shar- family, er the DOE was en't able to talk to the ing purposes any parties for the police, get its documents with him of those informa- indicted, tion. And since his criminal trial. deputy attorney general’s suggestion, to answer re- ton’s classroom.15 declined layed by Sugino, Sosa contacted Nor- questions, invoking “consti- Sosa any of Sosa’s obtaining option of right light ton to “offer[liim] to remain silent” tutional fit- charge [his] him. Sosa medical examination determine pending criminal teaching meeting by indicating During duties.” that he ness resume concluded conversation, telephone notify regarding “made it Norton of his Sosa would decision recommendation, to [Norton] [he] but that further clear needed additional Schlosser’s necessary information” deci- [his] event “to base review At sion to return the classroom.” [Norton] information was obtained. additional *14 that, trial, in also Norton in the event acknowledged point this Sosa informed Sosa an investigation, had Norton declined to submit to such exami- administrative his nation, options attempt he “would re-think “pretty [his] much stonewalled” his subsequent inform of [Norton] [his] information. deci- obtain opted sion.” Norton to discuss Sosa’s offer 13, 1992, Superintendent Togu- August On so, attorney doing with his after refused notified Norton that he would remain chi explanation. it without pay “until deci- administrative leave Regarding foregoing, the testified at investigation of Sosa regarding is made the sion trial as follows: against you complaint serious made the Well, your of and that parents one of students” the were faced with a situation of we meetings” regard- employee “should be available we that’s he where had had been 14, 1992, August ing period matter. As of Sosa out of for that the classroom all,” many I’m no information at than T.Y.’s time. not sure how months it “had Consequently, upon already—on paid videotaped allegations. leave. We had no connection, questions posed re- In this 15.The that Sosa to Norton circuit court received (1) garding unsigned T.Y.’s concerned whether: accusation into evidence an and undated hand- underarm, back, memorandum, authenticity he had touched T.Y.'s bare her written of which blouse; (2) to, by reaching parties stipulated appears or her breast under her to have that Sosa, thigh however, had touched T.Y.on her arm her bare he been directed to Sosa. testified time; T.Y., had, fact, any in specific he said to he had that ment; nonetheless, no recollection of docu- my hug?” proceeded "Where’s and had testimony then his does not cоn- had, her; hug practice, as a he matter of flict with its substantive content. The memoran- fact, then, hugged hugs children in asked Sugino suggested dum noted had that that Sosa " regarding questions con- them. Sosa’s Norton’s telephone Norton to 'feel him out’ on the frontation with T.Y.’s mother were couched possibility Independent of an Medical Exam a follows: knowledgeable specialist is in the area who proposed specialists— sex abuse" and two such you spoke that to her the [T.Y.’smother] states "Dr. one whom was Jack Annon”—between class, day transferring that her [T.Y.] choose he whom Norton could in the event did approximately which was one week after not select own. The his memorandum asserted reporting by daughter She initial her to her. that, ”[i]f the examination that there indicates her, you up that came to her and asked claims problem, teaching no can return to a [Norton] you[,]” you "... can told ... I talk to and then position” [Sugino] that and noted ”[b]oth her[,] "I [T.Y.] don't doubt that whatever suggest the AG's office call be this made saying, lying[J” she is and then it was followed trial, put anything writing.” we At before with[,] lying.” "I don't believe that she is not Annon, testified, Ph.D., expert in Jack as an "the Basically^] tape in the confusion there was was, pedophiles,” treatment of that someone what with further over clarification, that statement but once, asking DOE indeed contacted him you [were it comes out ... whether he would be available to undertake an ly- saying] you "don’t believe that she teacher; responded examination of a that he ing.” be, would the DOE him but never contacted you that she [T.Y.’smother] slates told regard. further person in most sexual abuse cases the would not, touching my deny would So the child. trial, are, deposition 17. At confirmed questions. you Sosa testi- questions three One: Did mony that Secondly, your it was "not uncommon” for the DOE [T.Y.’s mother]? talk to employees undergo your if viewpoint, "to ask some was the essence con- what three, review, physical sort of medical whether it be a [A]nd versation with [T.Y.’s mother]? or[,] case, review, mother,] say you grand- in this mental a matter "I [T.Y.'s am [d]id gathering figure process, in pa men- ... more information in a these kids”? That is also particular tioned. case.” information non-teaching or little information other than for the 1992 fall to a semester videotape regarding allegations, position, subjected than being rather to disci- action, plinary investigation and we not able to conduct a because “our thor- ough time, investigation. regarding your At point allegation concerns misconduct indicates insufficient evi- going through other issues were process [ie., disciplinary dence to take action at this other tidal terms time.” Norton’s criminal trial] and sort of
thing charges. and on those e. The DOE’s conduct Norton’s after So the if I issue was—and remember acquittal charges the criminal along line—during somewhere the T.Y. matter summer, union asked if we would be placing posi- him into back the classroom (1) The assumes that Norton’s ac- tion. So we needed make some deter- quittal charge “absolved” him of mination not—obviously, as whether or having molested T.Y. safety our concern was for January On jury Norton’s put or not kids—whether we should him criminal trial guilty” rendered “not verdict. *15 back in the classroom. So then the discus- 25, 1993, January Effective the DOE rein- sion possible came around to the examina- previous fourth-grade to his stated Norton give tion of a physician medical us some teaching position any conducting without fur- regarding person’s information this state investigation. ther Each of admin- the DOE ability functioning mind and at that appears istrators to have involved believed point. that’s So the context as to how the jury’s guilty” that “not syn- was verdict discussion came about to consider that as onymous beyond with a determination rea- option. an fact, was, sonable that doubt Norton inno- However, being Indeed, denied that Sosa aware cent.18 a letter to KMCAS base purpose command, 2, 1993, of such an February examination would have dated Sosa not- that, been to Norton acquittal,” determine whether was in ed fact “[i]n [his] view pedophile fact a or psychologists longer Mokapu, that the two that T.Y. was no student proposed by perform support by parents the DOE to the exami- “indications nation, administration,” specialists the school and supra note the school were teaching Norton “deviant was reinstated to his former sexual behavior.” becausé, position, summary, both “[i]n trial, that, acknowledged At Sosa so far as investiga- administrative criminal knew, he attempts the DOE made no further tion/prosecution processes essentially have investigate the matter once Norton re- absolved Mr. Norton[.]”19 fused to submit to the examination. offered Nevertheless, September In acquittal Sosa the interim between Norton’s reinstatement, reassigned informed Norton that he would be made no at- like, Estomago you testified that "it was Norton would like himself to return Moka- know, acquilted[,'|[a]nd everyone that, puf]” he was believed although circuit found so[,] only right that it was that it be because he Schlosser that he did not recommend testified innocent[,][b]ecause good he was a man that teaching position, that Norton be reinstated to a maligned. appeared had been That’s how he, nonetheless, was "in favor Norton re- testified, everybody.” Schlosser "I had faith that turning to the school.” gone through this had a trial ... and [that] so[,] emerge[;J truth ... would because he February 19. Sosa's 1993 letter to Lt. Col. exonerated, he came back and I assume[d] response Messere was in to Messere’s letter not- that he to teach.” In was fit a memorandum ing requesting Norton’s recent reinstatement and January Sugino dated noted that tire "your review of this matter to administrative action, prosecu- DOE could "take based on” determine is in the whether reinstatement acquit- tor’s been [Norton] "statements parlies, specifically^] best interest of all most that, upon ted” ”[b]ased the information of residents of installation children at- whose acquittal,” reassign [Norton’s] the DOE could commander, Mokapu tend The base school.” Sugino’s position.” Norton to "old his memo- Crawford, Col. Richard had directed that Mes- supported randum also reflects Schlosser time, sere, his executive officer at the write the teaching Norton's reinstatement his former position: my understanding letter. Col. had that the DOE "It was Crawford assumed Schlosser[,] present "in-depth investigation” principal, Mr. Jim and Mr. conduct de- do,” touch- right against thing against physically despite the that his cious tempt, fact obtained, longer any might no ing manner that self-incrimination students or to him submit to the question Indeed, Norton misinterpreted. be- when Sehlosser Nor, psychological proposed examination.20 hug- been seen came aware Norton had DOE, indeed, during any had the time students, that, if to Norton ging he remarked investigation, sought medical rec- Norton’s accused, he it had been he had been attempted to or interview his Mends ords anywhere a kid.” Howev- “wouldn’t be near sum, despite his family In members.21 er, thought union that Norton’s because contrary to Lt. Col. representations precluded any contract differential treatment Messere, acknowledged at trial Sosa teachers, impose among did not Sehlosser investi- had the DOE’s Norton “stonewalled” Norton’s conduct restrictions investigation and that had gation subject any special supervision. him to him and “any in favor of’ produced evidence issuing hall practice “absolve” Norton resumed had failed to him. students, fifth passes including fourth and to Norton “advice” Sehlosser’s (as after girls light ham grade colored his reinstatement T.Y.’s), him so that could visit been reinstated, during lunch While the students recesses. Norton was Schlos- Soon after him, him, “judi- visiting would offer them “cautioned” it was the ser because friends, viewing family acquittal well as spite criminal trial. members and Norton's in the officers, military psychological examina- an initial conference with other including Judge have Norton submit to a General, undergone psychological Col. Craw- Advocate tion. Had Norton "grounds” to opined ford was advised absent some Dr. it would Annon examination. *16 so, preclude from enter- unlikely do he should not Norton would have avoided have been that he military go job. ing in In if, fact, base to his order pedophile he detection as a in was one. meantime, when was i-eturned the indictment reinstating Had the DOE insisted on Norton early an Crawford had issued order advise, heeding foregoing Dr. Annon without barring entering from the base. After Norton suggested precautions be would have numerous acquittal, never informed Norton's Crawford was any taken to avoid further incident such as "in- DOE had such an that the not conducted T.Y.; by alleged example, Dr. Annon advised and, indeed, investigation,” depth "was told DOE instruct to leave his class- that the Norton everybody [DOE] at the head of tire administra- open physi- room door all times and to avoid tion, Sosa, way up gentle- all the to Mr. that the contacting cal contact with the them children highly thought a well- man was of and he was hours, that the DOE at all after school as well they respected teacher. And that didn't think child; prohibit being Norton from alone with a substantiated, allegations [he] and that addition, he would have instructed DOE However, worry." Crawford testified shouldn't regarding might what raise "red "indicators” that, him that it had not had the informed flags.” investigation completed (specifically, had he opinion, light In Dr. of the informa- Annon's they psychic had done no evaluation "known DOE, reinstating then available to Nor- tion tire any inquiry background”), his he would not into any teaching position imposing without ton to automatically precluded enter- have Norton from upon but, his children or rather, restrictions contact with the again ing would have once the base likelihood, taking any precautions regard constituted in this in all consulted his advisors it "a real risk” to the children. In the event that requested precautions would have that additional taken, pedophile, were established Norton was supervision, in order such as increased be rein- protect Dr. Annon would not have recommended the children. any under statement conditions. consulted, Dr. Annon would 20. Had he been suggests 21. The record had the DOE done infer informed the DOE that it should not have niece, Bassen, so, may have in- Norton's Diana the basis of his that Norton innocent on DOE, subsequently as informed a formed she acquittal in a criminal trial and would prosecutor in that Norton had molested cyclical regarding the DOE nature educated was between her on three occasions when she pedophilia and the characteristics common twelve, ages of ten and one of tire incidents pedophiles. He further informed would have cousin, year youn- involving her who was a also being peers his and the them that well-liked Pretrial, parties disputed ger tiran she. not a which to rule children was also basis letter; admissibility eventually, was, fact, how- Bassen’s pedophilia, with a but consistent out pedophile profile. ever, evidence the circuit court received it into have ad- Dr. Annon would DOE; objection by investiga- the DOE does not without the DOE to conduct an extensive vised admissibility including challenge appeal. background, inter- the letter's Norton's tion into C.P., candy hugs Amy girls reported and solicit from the before as A.C. herein classes; Arakaki, left to attend their time, afternoon Mokapu’s vice-principal at the not, however, routinely hug boys would that Norton had rubbed A.C.’s chest beneath Apparently, him. that visited Norton was second, outer shirt but over inner only passes hall teacher issue shirt.23 Norton had visit him invited A.C. to purpose simply visiting with children dur- recess; during lunch she did not because recesses, ing opposed lunch to ensuring recess, being during like outdoors she they completed unfinished homework accept standing Norton’s invitation assignments. According two or three times a week. early January approximately one girls, as A.C. sat in a chair near Norton’s semester, spring or two weeks into the desk, Norton, own chair seated his some Schlosser became aware that Norton had A.C., said, away here, two feet from I “Come issuing passes hall recommenced to students. a hug.” want her A.C. rolled chair closer to passes Schlosser was “concerned” about the Norton, up, pushed stood the chair under- because, according deposition to his testimo- desk, hugged neath Norton’s Norton. “confusion,” ny, they caused as students She then chair retrieved the from under- would “collect” them and use them without sitting neath Norton’s desk and resumed proper authorization. was not He “con- proceeded it. Norton to rub A.C.’s shoulder cerned,” however, using about Norton hand; and neck with left he tickled her passes in order to alone with a female neck, then moved his down hand across her student; frequent- this was because he would chest, between the two shirts that she wore. ly during roam halls lunch recess and He rubbed her chest for several seconds. observe numerous in Norton’s room. children Moreover, harbored “no Schlosser concern attempted away A.C. move Nor- being inappropriate” [Norton] about with the ton, pressed but her Norton back into the To contrary, appears, children. chair; point, at that what she did know conveyed early Schlosser Janu- C.P., friend, present do. who was A.C.’s (before ary allegations further frightened at the time and when she became surfaced), against Norton that Schlosser be- slip saw Norton’s hand between A.C.’s two preroga- should lieved teachers have the *17 doors, Running shirts. to one of the room’s physically interacting tive with and touch- yelled to to “come on” she A.C. because ing students.22 elass[room],” “by friend theirs was our and, presumably, it was time for afternoon allegations against
2. The 1995 Nor- begin. up to A.C. and ran to classes stood ton, including predicate that those C.P., girls proceeded and both then their present matter afternoon class. a. accusation that AC.’s Norton mo- in C.P. n presence her lested afternoon, requested Later that that A.C. IS, talk Friday, she and C.P. be excused from January the afternoon of On class students, gradе fifth vice-principal; two identified school or the counselor deposition testimony might misinterpreted per- 22. trial Schlosser's are be and that Schlosser and entirely regard Thus, sonally disagreed not consistent with to whether policy. ap- with this post-reinstate- approved of Schlosser Norton’s pears that Schlosser "cautioned” Norton ment conduct in ing with students connection visit- touching any might the students in manner that testimony, hugging; deposition in his misinterpreted, (Schlosser) be also informed Norton that but he "believe[d] Schlosser asserted that that teach- personally he was in favor teachers physically be ers should touch able interact and touching appropriate manner. students an students”; however, at trial he testified expect hugging he "not [Norton] that did to be previously appears It that touched Norton had children,” though touching [or] children even he fourth-grader A.C.’s chest once when she was a visiting “in of” the was favor children Norton’s semester, that, during the 1994 fall but when recesses, during despite classroom lunch T.Y.'s reported prior A.C. had incident to her allegations. testimony, deposition Schlosser’s mother, responded proba- was her mother that it however, suggests aas matter of DOE "un- bly an accident. policy,” generally spoken teachers were discour- any aged touching from manner students that busy, parents and C.P.’s to dis- girls relat- of AC.’s was consent because former Schlosser, addition to to Norton. incident to Arakaki. them statements ed close Arakaki, nonetheless, meeting with describing kept conduct A.C. his scheduled Norton’s get simply any him that she not want to Norton asserted did Norton order to tell previously Norton had allegations into trouble discussion A.C.’s C.P.’s ac- prior had A.C. that student postponed. informed be Norton related would past. Ara- touching attorney him of her in the cused had him Schlosser advised kaki memorandum directed anyone. drafted discuss the matter with and also regarding the incident Schlosser Schlosser, allegations Melony’s and Nicole’s who “off- b.
attempted to contact campus” day, by telephone. 17,1995, Tuesday, January provid C.P. On speaking with did succeed in ed with the names other stu
Arakaki Schlosser Meanwhile, evening. present until she Schlosser whom believed had been dents she approximately telephoned 2:30 allegedly Norton at the time he Norton’s classroom him, result, message received his p.m., on left As a Wed rubbed A.C.’s chest. p.m. 18, 1995, at approximately call 6:30 She nesday, January return sum Schlosser allegations A.C.’s eight informed approximately to ten students moned placed being on administrative them in con into his office and interviewed holiday), Tuesday (Monday was a leave as of Among accusation. these nection A.C.’s investiga- Melony so that the school could conduct and Nicole. Schlosser students Nicole, Norton that tion. Arakaki further informed Melony and well interviewed students, yet able to inform Schlosser she had not been on the follow second time allegations, 19,1995.24 January but that Schlosser ing day, Thursday, A.C.’s contacting him in to schedule be order interviews Melo- Schlosser’s with him. meeting first ny and Nicole Saturday, January at the re- On Melony and mother, Schlosser Nicole met with interviewed quest A.C.’s Schlosser Wednesday. A.C., C.P., mothers; separately issued He excuse i-espective and them them, summoning slips office them his to be informed of the A.C.’s mother asked girls afternoon Both felt them classes. Schlosser assured “status” incident. being princi- nervous about summoned an in- mother that he would conduct A.C.’s office, pal’s why know did not he had sum- independently HPD vestigation inves- them, initially they moned believed tigation might On the conducted. had been “in trouble.” Neither called day, both A.C. were same Schlosser interviewed C.P., principal’s office pre- before. who confirmed what *18 viously told Arakaki. Schlosser “believed them, he interviewed Schlosser When absolutely.” [A.C.] girl had asked each whether she observed 16, 1995, Monday, January holiday, anything unusual in Norton’s classroom dur-
On Norton, ing Friday. confirming that lunch on He had each recess Schlosser contacted describe, using diagram had placed and of them he he was on administrative leave Norton, room, A.C., him, princi- scheduling meeting in the drawn of Norton’s where school, located at time place to take and had Norton pal’s office of different C.P. been Apparently, following day allegedly to discuss touched A.C. neither on the order However, Melony nor had witnessed inci- Nicole AC.’s accusation. DOE’s not, Melony during this Specialist at and Nicole did District dent. Windward Personnel interview, Honda, time, inform Schlosser that Nor- Schlos- initial Francine instructed Tuesday, previously in a January post- ton had touched each them ser them that had made feel “uncоmfort- pone meeting with Norton so that he manner his and obtain the gather could more information able.” [Norton], that, go "when we also inter- Schlosser record reflects that Schlosser H.D., Melony’s our in the course of butt[s]” and Nicole's he sort rubs viewed one of friends, who, Nicole, girls hug. Melony reported giving each like
(2) Schlosser’s second interviews Me- spring of the 1995 semester which Norton lony mid Nicole touched her in a manner that was “uncom- fortable.” One the incidents occurred in Thursday, January On Schlosser 1994, approximately October a week before again Melony once summoned Nicole her, hugging Halloween. As he was Norton time, his questioned office.25 This he both placed fingers two of his the back inside time, girls at asking the same them whether pocket pants, rubbing of her “butt” her for Norton had ever touched them. Both Melo- seconds, approximately five to ten until she ny practice and Nicole described Norton’s away Throughout walked from him. hugging them before left to attend af hug, kept course this Nicole her arms at reported ternoon classes and that Norton her sides did not return hug. Norton’s had touched them in a manner made Although she believed Norton had been “uncomfortable”; girl them feel physi each rubbing intentionally, her buttocks and de- cally way demonstrated Norton had spite the fact that the incident made her touched her. “uncomfortable,” she did not angry become subsequent In a proceeding criminal because she did not realize what Norton against arising Melony’s out Norton “wrong.” had done was As a result of the accusations, Melony Nicole’s testified incident, changed also Nicole the manner hug the course of a routine she for before left Norton, hugged shortening she class, hugged her afternoon Norton her in permitted amount of time that hugs she manner that she did not think was “okay” Nonetheless, apparently last. on two oth- and that made her feel “uncomfortable.” occasions, er Norton rubbed waist her hug point during This occurred at some similarly in a buttocks “uncomfortable” man- 1994 fall visiting semester. had She been ner. recess; during Norton the lunch before leav- ing, give Nicole identified one the incidents hug,” she “went to him a dur- while her, ing put which Norton had rubbed hugging my “he hand her buttocks as down back down, having early January occurred go and then and as start[ed] and he having my touched involved much the behavior sitting me on butt.” Norton was same time, Melony him; Norton had hugged at the while described. she stood beside sitting position, her from a hugged while Nicole was hug her with his left arm. This standing dropped before him. His hugs hands “different” than other she had received Norton; down her back and “rubbed” her buttocks made her “fe[e]l uncomforta- hand, approximately “back and forth” for five to ble” because his left which he had seconds, away. “cupped,” stop ten until she walked came to a on her She buttocks (over clothes) forming girls described a line so that approximately her five sec- leaving all a hug could receive before away untO onds she walked from Norton. Although girls their afternoon classes. Melony “really testified that she was mad” line, they “doing behind her in were hug, Norton but that because she did and, apparently, other stuff’ at the anyone time did not tell about it at time because rubbing observe Nicole’s but- she “didn’t think it law” Melony, any- tocks. Like Nicole did not tell get did not she want to Norton into trouble. *19 one about the incidents she did because not hug, Melony As a result of the altered the get to herself Norton; want or Norton into trouble. manner in hug in- she Moreover, him, Nicole did not know whether the standing of to stead next or in front of touchings “big enough” were someone tell approach she would him from behind his Instead, “put about. tried to it Nicole be- hug chair and him over back. forgot it.” [her] hind about proceeding against At the same criminal Norton, interviewing of Nicole described three incidents dim- In the course them on 1995, 19, ing Thursday, January first the 1994 fall semester and the told weeks Schlosser However, trial, Melony 25. At Schlosser testified that second interview. the circuit court version—i.e., girls’ Nicole came to see him of their own accord and found the that he summoned that he did not them class more summon them—to be credible. very adequately had to—to with that sensi- deal Melony and Nicole that what Norton criminal, Thus, them but that neither of unique done was as- tive and issue.” Sehlosser However, trial and in a trouble. that, initially once he had interviewed serted that he pretrial deposition, testified Sehlosser students, “investigate” he did not further believed, allega- time he heard their A.C.’s, H.D.’s, Melony’s, allega- or Nicole’s tions, consti- that the conduct described tions. “brushings,” inappropriate rather than tuted Yet, “fondling.” in his touchings or sexual c. Nоrton in connection Prosecution deposition testimony, of Sehlosser admitted A.C.’s, Melony’s, and Nicole’s with what a criminal he did not know constituted accusations sexual offense. believing girls had Apparently that both as is unclear to who informed record inci- respective parents the disclosed them military or of the HPD Melo- either the CID him, they had described to Sehlosser dents However, as ny’s allegations. Nicole’s had gilds’ that he parents did not inform the 17, 1995, HPD was January conduct- them, relay nor what the
interviewed
did he
ing
investigation—at
least with re-
own
girls
regarding
to him
Norton.
had stated
accusation,
Melony’s
not
gard to A.C.’s
if
however,
happens,
girls
As it
neither
Moreover,
ini-
appears
and Nicole’s.
hugs
parents
Norton’s
had told their
about
tially,
military
investigated
CID
Melo-
being
office
called into Schlosser’s
about
24,
January
ny’s allegations
did
around
“d[o]
Sehlosser
not
interviewed.26
anything”
waiting for the
1995,
because he was
case to the HPD.
transferred her
girls’ parents
contact him.
believed
He
event,
eventually prosecuted
any
Norton was
con-
inappropriate
“[i]t
[him]
and, in
allegations,
with
connection
A.C.’s
it’s
any type
investigation
duct
because
separate prosecution,
with
connection
Indeed,
he
policy not to do that.”
[DOE]
Melony’s and
accusations.27 He was
Nicole’s
parents,
supra
to H.D.’s
note
stated
allegations
indicted in connection
A.C.’s
January
him
who had contacted
on
Eventually,
January
on
1995.
on No-
she,
H.D.
to them that
because
had revealed
pled
Norton
no contest
vember
too,
“patted
by
on
butt”
Nor-
had been
forth in the
charges
set
indictment relat-
ton,
not
believed that he “could
interview”
May 3,
It
ing
A.C. was
until
allegations. According to
H.D. about her
however,
finally terminated
the DOE
Sehlosser, “Chapter 19
Hawai'i Adminis-
[of
Norton
on his misconduct with A.C.
based
Rules
... states that
8]
trative
Title
May
Norton
On
was sentenced
[ease], [the]
kind
misconduct
school
of sexual
incarceration;
year
sentencing
at his
one
investigation;
up
that it
is not to do
hearing,
pri-
had
Norton admitted that he
investigation,
agencies
do
be-
people
history
pedophilia.28
are not
trained
school level
cause
had,
sentencing
Melony’s
Melony
hearing,
had re-
at the
con-
mother learned that
that Norton
26.
Pretrial,
ported being
police
from a
molesting
touched
fessed to
two dozen children.
detective,
25,
January
telephoned
admissibility
who
her around
evidentiary
parties disputed
being
her
the case was
1995 to inform
article,
contending
newspaper
the DOE
first
handled
the HPD. Nicole's mother
in a
admission was contained
Norton’s
accused molest-
learned that Norton
been
proceeding.
in the criminal
sealed document
Sunday
ing
newspaper
A.C. from a
article on a
court, however,
the article
The circuit
allowed
1995;
morning
January
speaking
while
evidence, noting
into
that it
not consider
"would
article,
her of
about the
Nicole informed
Nicole
of matter
it on the basis
the truth
asserted
with her and of Norton’s
Schlosser’s interviews
molestations," but, rather,
admitting
prior
hugs.
purpose
limited
issue
dam-
“it for the
ages
[p]laintiffs
viewing
article.”
prosecuted
appears
It
that Norton was
Thus,
finding
heading
of fact under
par-
*20
regard
allegation
to H.D.’s
because her
with
damages,”
facts
the cir-
"additional
relevant
testify
in a
trial.
did not wish her
criminal
ents
that,
sentencing hear-
“[a]t
cuit
found
May
regard,
published
In this
in an article
on
history
prior
pedo-
ing,
admitted his
Norton
16, 1996,
reported that
the Honolulu Advertiser
philia.”
attorney
prosecuting
Keith Kaneshiro announced
Meanwhile,
KMCAS;
regard Melony’s
precluding
entering
and
him from
accusations,
(6) notify parents
Nicole’s
Norton
was indicted
and
“before them child is
2,May
prosecution vigorously
by any
employ-
1996. The
official or
[DOE]
interviewed
Melony’s
urged
parents
potential
and Nicole’s
aby
to have
ee about
sexual abuse
teach-
daughters cooperate
prosecuting
in
employees
their
er.” Because various DOE
duties,
foregoing
plaintiffs
so
he would
disabled
breached the
May 1997,
molesting
In
other children.
contended
was liable
them
arising
Melony’s
proceeding
criminal
out of
negligence
failing
for its
“for
to have exer-
trial,
inju-
and Nicole’s accusations went to
but
cised reasonable due care to avoid the
jury
ry[,]
resulted in a mistrial because the
could
cir-
which was foreseeable under the
verdict;
not reach a
both families
in-
cumstances.”
jury’s
formed that
final
vote had been
that,
plaintiffs
alleged
further
The
as a
in favor
eleven
of conviction and one for
conduct,
result of Norton’s and the DOE’s
acquittal. Norton was retried in December
grievous
Melony and Nicole both “suffered
1997;
jury acquitted
him.
injuries,
permanent
and
mеntal and emotion-
Similarly,
plaintiffs alleged
al distress.”
Background
B. Procedtiral
girl’s parents “individually
that each
suffered
On November
while the criminal
grievous
and
mental and
serious
emotional
proceeding
Melony’s
connection with
and
subjected
injuries
arising
distress
out of the
allegations
pending,
girls’
Nicole’s
children[,]
required
minor
their
parents,
capacities
in their individual
and on
family
counseling
extensive
to the entire
and
daughters,
complaint
behalf of their
filed
perma-
which has
in substantial
resulted
and
lia,
against, inter a Norton and the DOE. The
plaintiffs
nent emotional distress.” The
complaint asserted several distinct claims for
sought “compensatory
punitive damages
and
(1)
relief, among
tort
them
an intentional
against
compensatory
...
dam-
[Norton]
and
(2)
Norton,
against
“in respon-
claim
a claim
ages
arising
as to all
out
Defendants
their
”
superior
against
deat
the DOE Norton’s
therefore,
injuries” and,
prayed
“general,
(3) negligence
against
employer,
claim
special
punitive damages
provided by
and
separate
independent
DOE “as a
and
tort
law[.]”
wrongful
from the
acts and omissions
DOE,
complaint,
its answer
(4)
Norton,”
negligent
infliction of emo-
alia,
sovereign immunity
inter
as a
asserted
to all
tional distress claim “as
defendants.”
event,
defense
contended
against
As to
claim
their
superceding
tort
Norton’s intentional
DOE,
plaintiffs
part
averred
relevant
plaintiffs’ injuries. Coupled
cause of the
the DOE “had a
to each of the
answer,
with its
the DOE asserted
cross-
(1)
[pjlaintiffs”
meaningful
to:
“conduct a
alia,
claim,
inter
Norton.
investigation
background
prior”
search
trial,
parties stipulated
At
that Norton
Norton; (2)
reinstating
supervise
Norton’s
history
prior
pedophi-
had an
“extensive
behavior,”
practice
“unusual
such as his
lia,”
dispute
and the DOE did
he had
“secreting
during
himself
his classroom
Melony
plaintiffs
molested
Nicole. The
issuing
passes
lunch hour
hall
testimony
transcripts of
introduced
young girls,” given
prior allegations;
T.Y.’s
gave
criminal
girls
in connection with the
(3)
police
promptly notify the
and student’s
evidence,
prosecution of Norton into
and nei-
parents,
learning
allegations of a
girl
ther
testified at the civil trial
student;
teacher’s
abuse of the
sexual
however,
testified,
parents
All
matter.
four
employees
monitoring
“in
train its
James,
expert
Beverly
in clinical
as did
investigation
involving
of matters
sexual
work,
specializing
social
childhood trauma.
incompe-
to avoid
abuse
its teachers and
tent,
plaintiffs did not contend that either
allega-
investigations
harmful
of such
injured
tions”;
physically
Melony or Nicole had been
urging”
military to
“avoid
them,
at least not
“persona
grata" sta-
Norton’s molestation
withdraw Norton’s
non
required
vouching”
him
medical
personally
tus
“avoid
in the sense
either
Rather,
military
asserted that
“in a manner that
care.
resulted”
*21
contemporaneous voluntary
of a
in nature.29
Because
injuries
psychological
their
were
Norton,
bankruptcy proceeding involving
the
plaintiffs’ psychologi-
the
testified that
James
plaintiffs’
all
the
and
re-
circuit court dismissed
permanent
cal
were
disorders
regard
treatment,
against
With
quanti-
claims
him.30
quire
which she
extensive
DOE,
not, however,
the
plaintiffs’
against
claims
the
circuit
plaintiffs
make
The
did
fied.
lia-
that the
was not
any
precise
court determined
DOE
to isolate the
sources
effort
plaintiffs
sundry
ble to the
under the doctrine
psychological disorders
them
that,
traumas;
respondeat superior for Norton’s molestation
example,
testified
James
(molestation
Melony
of stu-
psychological in-
and Nicole
assessing
plaintiffs
each
being
scope
the
em-
“to-
dents not
within
his
juries
damages,
she considered the
circumstances,
including
ployment), but that the DOE was liable
Nor-
tality” of the
plaintiffs
negligence and
the
on
NIED
girls,
of the
the school
their
molestation
ton’s
court
ruled that
of tes-
claims. The circuit
further
investigations,
criminal
and the effect
662,
STLA,
did
the
It
the
HRS eh.
not insulate
proceedings.
in the criminal
tifying
that,
its
appeal,
liability
significant
the DOE does
analysis
NIED.
discuss the circuit court’s
plaintiffs’
We
the nature
extent
contest
III.
injuries.
part
in relevant
section
infra
action,
but
"no
specifically,
all
conducted”
their tort
the record reflects that
More
29.
against
developed post
may
judgment
traumatic
nor
[Norton]
six
be obtained
addition, Melony
syndrome.
monetary
has devel-
may
any
In
[plaintiffs] request
stress
oped oppositional
award
disorder,
attachment
defiant
as to
without further order of this
[Norton]
disorder, and
deficit disorder. More-
attention
lirpe
present
matter
court.” As of the
over, James,
plaintiffs’ expert, characterized
2000,
January
appears
proceeded
it
to trial in
Melony's
psychological injuries as
and Niсole's
that no further order had issued from the bank-
parents
"developmental injuries.”
tes-
All of
ruptcy court.
feelings helplessness
their
to their
tified as
difficulty
trial,
appears
parties
After
that the
informed
being
protect
coping
with not
able to
that,
Melony's
the circuit court
on December
respective
and Nicole’s
children.
their
anger
length
discharged
preex-
bankruptcy
about
also testified
their
court had
Norton's
mothers
by
having
isting
dismissing
plain-
been informed
and frustration over
In
debts.
its order
girls
with the
or their
Schlosser of his interviews
against
tiffs’ claims and the DOE's cross-claim
impacts
Norton,
In
to other
revelations
him.
addition
the circuit court remarked
relevant
family dynamics
the Davises and
on the
part as follows:
hug
girls
Draughns,
both
have been unable
It
now come to the court’s attention that
respective
psy-
result of
fathers as a
their
their
bankruptcy
on December
this
case
'
injuries.
parents
chological
girls'
The
testi-
also
preexist-
with Lawrence J. Norton’s
closed
girls' respec-
regarding
in the
fied
the contrasts
ing
discharged.
debts deemed
Norton molested
tive behavior before
after
matter],
[present
In
Plaintiffs' claims and
Melony
regard,
suf-
we note
them.
this
Department
Defendant State Hawai'i
of Ed-
psychological problems before
fered from some
against
ucation’s cross-claim
Lawrence J. Nor-
her.
Norton molested
this
ton had not been resolved due to
court’s
understanding
bankruptcy
re-
case
plaintiffs'
against
claims
The dismissal
open.
mained
July
as
On
came about
follows.
Norton
The new information received
the court
voluntary bankruptcy peti-
Norton filed
preexisting
J.
indicates that Lawrence Norton's
bankruptcy petition, the
of his
tion. As
plaintiffs’
result
discharged.
debt has been deemed
naming Norton
a defen-
tort action
as
’
powers,
Pursuant to
inherent
this court
its
automatically stayed, apparently by op-
dant was
remaining
claims
therefore orders ...
However,
filed
of statute.
on motion
eration
against
[the
Lawrence J. Norton in
Defendant
pres-
bankruptcy
plaintiffs in the
court
to,
matter],
present
including, but not limited
matter,
bankruptcy court
modified
ent
Plaintiffs'
and Defendant Slate of Ha-
claims
stay.
bankruptcy
noted that
automatic
The
court
cross-claim,
Department
wai'i
of Education's
only
stay
plaintiffs'
the automatic
affected
hereby
prejudice.
are
dismissed
Norton,
against
against
his
but not those
claims
judgment,
Subsequently, in
final
the circuit
bankruptcy court
noted
also
codefendants.
foregoing
incorporated
court
order as fol-
bankruptcy proceeding,
as a result of the
[c]ourt’s
lows: "Pursuant
order dated
attorney
funds
hire
lacked the
against
Law-
March
claims
Defendant
defending against
plaintiffs'
represent
him in
rence J. Norton were dismissed because
bankruptcy
Consequently,
or-
claims.
bankruptcy.”
discharged
appeal,
On
"pro-
plaintiffs’
tort action could
dered
challenge
parties
none
the circuit court’s
cooperation
participation
with the full
ceed
[Norton],
respective
including
their
claims
Nor-
appearance
a trial
dismissal of
discovery
[might] be
ton.
and as to such
witness
*22
“
omitted).
circuit court
Similarly,
pari
determined that
‘[l]aws
in
mate-
plaintiffs’
damages
ria,
matter,
total
upon
subject
follows:
the same
shall
”
Nicole, general
$400,000
damages of
other,’
and
be construed with
to each
reference
“
$50,000
special damages of
and,
and for each of
thus,
may
‘what is clear in one statute
damages
$200,000
parents, general
her
of
upon
explain
in
what
called
aid
”
special damages
$15,000; similarly,
and
of
(quoting
§
doubtful in
Id.
1-
another.’
HRS
$400,000
Melony, general damages
of
(additional
omitted).
(1993))
citation
$50,000
special damages
and
of
and for each
parents, general
$200,000
of
damages
her
B. Findings
Fact And Conclusions Of
Of
$13,750.
special damages
and
Because
Law
conduct, however,
Norton’s
a
also
sub-
Duty
1.
care
causing
plaintiffs’ inju-
stantial factor in
ries, the
court
circuit
determined that
...
duty,
a
The existence of
“degree causing
DOE’s
fault” in
is,
such
relation
whether
a
exists between
plaintiffs’ injuries
forty-nine percent.
community
parties
impose
will
Accordingly,
judg-
the circuit court entered
legal
a
obligation
one for the benefit
ment,
regard
plaintiffs’
negli-
other—or,
simply,
more
whether the
gence and NIED
in
claims
favor
plaintiff
interest of a
who
suffered
against
DOE,
and
in an
protection
legal
invasion is
entitled
representing forty-nine
amount
percent of
expense
entirely
of a
defendant—is
damages;31
total
regard
their
but with
question of law....
claim,
respondent superior
circuit
Dep’t,
Police
Hawai'i
Honolulu
Ruf v.
judgment
court entered
in favor of the DOE
(citations
972 P.2d
plaintiffs.
and
omitted)
(some
points
ellipsis
added and
original).
in
Accordingly,
some
this court
II.
REVIEW
STANDARDS OF
reviews a trial court’s
of law with
conclusion
Interpretation
A. Statutory
regard
duty
of care
defendant
interpretation
“The
of a statute ...
plaintiff
owes to a
in a
action “de
question
[,]
is a
of law reviewable de novo." In
novo
right/wrong
under the
standard”
Doe,
20, 1995,
(citations omitted).
re
Born on
such,
Jane
June
95 review.
Id.
As
Hawai'i
“examine[s]
court
the facts
an
(citations, quotation signals, and brackets
[i.e.,
question
swers] the
whether the defen
omitted)
points
(ellipsis
original).
in
In
con
plaintiff
dant
if
duty
owes the
of care
statute,
struing a
“our
obligation
foremost
so,
scope
duty]
being
of that
without
give
to ascertain
effect
intention
required
give any weight
to the trial
legislature,
pri
(citations omitted).
which is
to be obtained
court’s answer to it.” Id.
marily
language
contained
the This
is because a trial court’s “conclusion
Id.
statute itself.”
clearly
finding that
breaches
erred
Credibility Witnesses
C.
causing
a substantial factor in
were each
Of
plaintiffs’ psychological injuries.
address
We
an appellate
“[I]t well-settled
arguments
the DOE’s
seriatim.
dependent
pass
will
issues
credibility of
upon the
witnesses and the
Sovereign Immunity
evidence;
province
is the
weight of the
(1993),
Doe,
662-2
trier
fact.”
re Jane
Pui'suant
HRS
“the
(citations,
immunity
liability for
... waives its
Hawai'i at
Army, which knew that Private Heard was
Sheridan,
quently
acknowledged
the Court
dangerous because he had
been convicted
that, “in at least some
fact
situations^]
manslaughter by a
German
as-
while
injury
an
directly
caused
signed
Army
Germany
to an
base
battery
liability
will
preclude
assault
(1)
“negligently
carelessly
failed
[
]
government
negli-
[federal
reasonably
exert
sufficient control over”
gently allowing
the assault
occur.” 487
him,
persons
“to warn other
U.S. at
2449.
S.Ct.
The salient
large,”
“to ...
remove
[him]
facts before the Sheridan Court
duty.”
military
active
Id. at
105 S.Ct.
follows:
finishing
After
his shift
a naval
medical
hospital,
aide
Can- consumed
In a decision in which Justice Powell took
the.
*26
wine, rum,
quantity of
large
and other
justices
part,
no
four
of the United States
beverages.
packed
alcoholic
He then
Supreme Court
it
believed
“clear that re
belongings, including
some of his
a rifle
spondent’s
battery
claim arises out of the
ammunition,
bag
and
into a uniform
and
54-55,
by
committed
Private
Id.
Heard.”
later,
quarters.
his
left
Some time
three
According
S.Ct.
to the Shearer
corpsmen
lying
naval
found him
face down
plurality,
recasting
“[n]o
of
semantical
events
stupor
in a
the
drunken
on
concrete floor
can
battery
alter the fact that the
was the
hospital building. They attempted
of a
of
immediate cause
Private Shearer’s death
room,
him
emergency
take
but he
and, consequently,
respondent’s
the basis of
away, grabbing
bag
broke
the
reveal
claim.” Id. at
plu
S.Ct. 3039. The
ing
sight
the barrel of the
At the
of
rifle.
rality noted that Shearer’s mother could not
rifle,
corpsmen
They
the
fled.
neither
2580(h) by
§
of [28 USC]
“avoid
reach
Carr, nor
took further action to subdue
framing
complaint
her
negligent
terms of
appropriate
alerted the
he
authorities that
prevent
battery,”
failure
the assault and
heavily
brandishing
was
intoxicated and
reasoning
§
that 28 USC 2580
not
“does
weapon.
that evening,
Later
Carr
fired
merely bar
or
battery;
claims
assault
for
physical injury
shots
caused
to one
sweeping language
it excludes
claim
petitioners
property damage
(em
battery.”
arising out
assault
Id.
car.
their
phases in original). Accordingly, the Shearer
plurality
provision
held that “this
...
In suing
cov
Expressing disagreement adopted its respect with the similar constructions with plurality’s apparent respective liability Shearer distinction be- their state tort acts. The held, Court, Supreme assailants are employees example, tween who federal Idaho for has 1504-05, not, claim, and those a negligent who are id. at the in the context of retention (ITCA)— regarded Bennett court the “historical evi- Idaho Tort Act the Claims drawing exception a dence” such distinction as “far which tort contains intentional (similar 662-15(4)), provides from clear.” at Id. 1504. The Bennett court which HRS 66 protect entity duty make efforts part governmental “a reasonable relevant danger. a A out its from such breach which students ‘[a]rises liable claim
is not ” Durtschi, negligence.... duty battery,’ v. of that constitutes Doe of assault [or] (1986); [Thus, 466, 1238, actions not neces- teacher’s] [do the 716 P.2d 1243 110 Idaho cause, 647, sarily] supervening constitute a Barowsky, 129 Idaho Kessler v. see also (1997)—does 641, [does] tortious conduct not immunize the school district’s 931 P.2d 648 battery. liability out of the assault and the arise a district from under school Rather, the roots of the assault bat- exception tort where stu- intentional ITCA’s negligence. tery in the district’s own [lie] whom the a teacher dents were molested reasonably antic- “should have school district negligent Id. at 1244. context of the tort.” ipated ... would commit an intentional claim, supervision Supreme the Idaho Court Durtschi, Eschewing at 1245. 716 P.2d subsequently has that the ITCA’s inten- held intentional tort of the FTCA’s construction not, therefore, exception tional tort had exception federal courts that most long who a bar as “those constitute so plaintiffs’ negli- which the adopted under supervise reasonably should have barred, gence claims would have been subject anticipated super- them that those clearly “[i]t court reasoned that Durtschi Kessler, battery.” 931 vision would commit a immunity negligent to a to afford unsound P.2d at 648. force, intervening because defendant Finally, we note that Massachusetts anticipation [or her] of which made his very similarly reject- Supreme has Judicial Court about ex- negligent, brought conduct intentional a “broad” construction ed Durtschi, 1244 pected harm.” 716 P.2d at Massachu- exception tort contained (citation omitted). such, As the Durtschi See, e.g., Act. v. setts Tort Claims Dobos injuries arose that “the children’s court ruled Driscoll, 634, 558, Mass. 537 N.E.2d school negligence out of the basic (1989) (holding supervisory that “where the injuries and that their “were district” had, had, allegedly or should have officials consequence dis- of the school foreseeable public employee’s knowledge of assaultive retaining [the teacher] trict’s conduct, behavior, supervisor’s it is the rath- knowledge proclivities.” despite full of his conduct, employee’s than er intentional Id. 1243. negli- that is true focus” of the claim). gence hand, On the DuHschi course, recognized plaintiff “of court repeatedly held that the STLA We have battery merely point to an assault and cannot liberally “should construed effectuate claim, simply on occur based its and then purpose compensate victims of rence, negligent the state was negligent state officials conduct of em preventing agree, it.” at 1245. We inso ployees manner in the same same essence, is, else far as such claim in little private person in like circum extent as Shearer, recasting,” than “semantical 656, Shaner, 665, v. 57 Haw. stances.” Breed 55, 3039, attempts to 105 S.Ct. U.S. 436, Rogers (citing v. 562 P.2d superior negli respondeat claim in cloak a State, 378, P.2d 51 Haw. inten gence clothing so as circumvent the (1969) (refusing to 381-82 “emasculate” the However, exception. we also tional tort broadly construing the “discretion STLA government entity should agree, where “the exception “operation ary to include function” anticipated reasonably [its] one employees)); al level acts” state Ha cf. tort,” would commit an intentional employees Community Union v. waii Federal Credit Durtschi, 716 the STLA’s Keka, Hawai‘i 11 P.3d exception insulate tort does not intentional (“ liberally con ‘Remedial statutes are entity liability. As governmental from suppress perceived evil and strued to ” opined: the Durtschi remedy.’ (Quoting advance Ci the enacted Inc., Realty, danger Query eri v. Hawai'i fact Leticia that the foreseeable (1995) (brackets omit intentional or criminal misconduct ted).)). case, irrelevant; being a ... That we believe school district had *31 Ninth precisely theory liability the Circuit and the Idaho and Massa It is such a that high chusetts courts have articulated the bet exception the STLA’s tort pre intentional exception, view of tort cludes, ter the intentional allegedly negligent where the act opposed espoused by the “broad” view the “assault, employee the is asserted bat majority appellate of the federal courts. tery, arrest, imprisonment, false false mali latter, Adoption of grudging the construction libel, prosecution, cious process, abuse of irrationally pur the restrict remedial slander, deceit, misrepresentation, or inter pose compensate the STLA to victims of rights.”38 ference with contract HRS negligent employees.37 the conduct of-state 662-15(4). words, § plaintiffs’ In other the respondeat superior claim must out “aris[e] present matter, plaintiffs’ In the negli the of’ and battery girls Norton’s assault of the gence duplicitous and NIED claims are respondeat because his molestation of them is superior of them claim. the sole Under latter, DOE, plaintiffs’ basis of plaintiffs against the claim posit the the the his em employer, vicariously ployer, as Norton’s for the liable DOE. girls molestation of the because Norton’s hand, plaintiffs’ On negli- the other the of molestation within scope acts occurred gence and NIED predicated claims are not DOE; employment of his with the the con girls Norton’s se. per molestation employees, duct of other DOE such as Nor Rather, posit plaintiffs that other DOE supervisors, ton’s is irrelevant the DOE’s employees—specifically, Estomago, Schlos- potential liability, only because the material ser, duty a legally Sosa—breached question is whether Norton’s molestation of injuries.39 plaintiffs’ caused plain- The gii’ls a act negligent constituted that was tiffs’ theory negligence—predicated, scope employment. See, within of his is, upon the acts and omissions of Norton’s e.g., Wong-Leong Independent v. Hawaiian not, therefore, supervisors—does “arise out Inc., Refinery, 76 Hawai'i of’ (1994) (“to Melony Norton’s Ni- molestation respon- under [a] recover contrary, cole. To the Norton’s superior molestation theory, plaintiff
deat
a
must estab
1)
Melony
and Nicole arises out of
negligent
employee,
lish:
act
Estoma-
words,
go’s, Schlosser’s,
negli-
and Sosa’s
other
breach of
that is
antecedent
2)
gent
legal
plaintiffs injury;
reinstating
cause of
acts and
omissions
negligent
failing
supervise
act
employee’s
agree
was within the
him. We
with the
(citations omitted)).
employment”
scope
Supreme
Idaho
disbelief
Court’s
note,
view,
ception
plain
departs
meaning,
37.We
in our
federal courts
no
from
has
adopted
FTCA,
have
support
history
view of
legislative
“broad”
in the
of the
exception
and,
end,
FTCA’sintentional tort
undermine the
"irrational”—waiving
in the
immu-
purpose
remedial
the FTCA.
"broad’’ view
nity
governmental
alleging
that a
claims
em-
essentially posits
premise
the innocuous
that the
ward,
ployee
negligently supervised
pa-
remedy
negligent
FTCAaffords
for the
conduct
tient, inmate,
nonemployee
or some
under
therefore,
employees,
of federal
control,
government’s
preserving
but
immu-
exception impliedly
tort
intentional
munity
retains im-
nity
liability
alleging
gov-
from
claims
that a
liability
arising
from
for all claims
out of
negligently
employee
supervised
ernment
anoth-
employee’s
federal
intentional
torts. The
Bennett,
government employee.
er
803 F.2d
view, however,
adopting the
courts
"broad”
1504-505;
Senger,
sion,
plaintiffs
where a
we hold
claim,
to hold
against the
seeks
gence
negligence
claim
State
prevail on them
To
vicariously
a state em
establish,
liable for
prepon
the State
plaintiffs had to
“assault, battery,
imprison
(1)
false
ployee’s
evidence, that
the DOE
derance of the
arrest,
ment,
prosecution,
(2)
malicious
care,
false
duty
the DOE
owed them
libel, slander, misrepresen
(4)
process,
abuse
breached,
causing
ac
thereby
legally
tation, deceit,
with contract
or interference
words, there
injury to
In other
tual
them.
respondeat su
rights”
the doctrine of
under
negligence
primary elements to
are four
is,
§ 662-
pursuant to HRS
perior, the State
claim:
15(4),
plaintiffs claim.
immune from the
recognized by
duty
obligation,
A
1.
However,
negligence
plaintiffs
where the
law,
to con-
requiring the defendant
liable for the
claim
to hold the State
seeks
conduct, for
to a certain standard
form
than
employees other
conduct of state
against unreason-
protection of others
tortfeasor,
pursuant
alleged intentional
risks;
able
retention, super
hiring,
negligent
theories of
part to
defendant’s
2. A failure on the
like,
vision,
does
plaintiffs claim
or the
required:
conform to the standard
hired,
necessarily
of’ the
re
“arise out
duty;
breach of the
tained,
supervised employee’s intentional
reasonably
A
close causal connection
knew,
Rather,
or reason
if the State
tort.
resulting
in-
conduct
between the
anticipated, that one of
ably
have
should
jury; and
tort
employees
commit
intentional
resulting
damage
4. Actual loss or
owed a
person
to whom the State
of another.
the interests
care,
negli
liable for the
the State is
in a
employees
Co., Ltd.,
who were
gence of those
Dairy
Partners v. Island Ins.
Road
precautions
position to take
reasonable
92 Hawai'i
omitted).
anticipated
(citations
harm.
against the
However,
actual
alleged
where
foregoing, we fur
light
alone,
injury
psychological distress
hold,
is for
plaintiffs
to the extent
ther
a balance between
is a need to strike
claims
there
negligence and NIED
predicate them
fraudulent claims
“avoiding the trivial or
and su
negligent retention
upon the DOE’s
thought
inevitable due
Norton,
to be
inten
have been
that the STLA’s
pervision
injur[y],” on the
subjective
of [such]
nature
exception does not insulate
tional tort
hand,
underlying
“promoting
one
liability; given that the
law,” i.e., “compensat
purpose
reasonably should
alleged that
have
the DOE
have sustained emotional
ing persons who
would molest
anticipated that Norton
wrongful conduct
injuries attributable to the
super
negligent
gilds, their
retention
Minor,
others,”
Camper v.
on the other.
Norton’s
not “arise out of’
vision claims do
*33
(Tenn.1996);
437,
juris
440
Rodrigues,
915 S.W.2d
see also
“Hawai'i ‘became the first
Freeland,
152,
147,
recovery
v.
96 Hawai'i
28
Guth
diction to
without
[for NIED]
allow
(2001)
982,
that,
(noting
in general,
P.3d
987
showing
physically
harm’
manifested
to
prompted
recovery
courts
to limit
for
are
plaintiff’ (quoting Campbell
v. Animal
(1)
tempo
emotional
because
it “is
distress
Quarantine Station,
560,
557,
63 Haw.
632
(2)
trivial,”
rary
“may
imag
and often
it
(1981))).
1066,
Thus,
P.2d
1068
an NIED
(3)
easily feigned,”
“may
and is
ined
nothing
claim is
more than a
defendants,
seem unfair to hold
ac
whose
alleged
injury
claim in which
actual
is
merely
financially
negligent,
tions were
re wholly
analyzed
psychic
“utilizing
and is
ordi-
sponsible
appears
for harm that
remote from
Larsen,
nai-y negligence principles.”
74
conduct”);
actual
Larsen v. Pacesetter
41,
Haw. at
at
(citing
837 P.2d
1293
Rodri
Inc.,
40,
1,
1273,
Systems,
74 Haw.
837 P.2d
174,
520-21).
gues,
Haw. at
472 P.2d
52
at
1292,
granted
part
reconsideration
in
Although Rodrigues
that
650,
established
part,
denied in
74 Haw.
144
843 P.2d
an NIED claimant did not
to
(noting
recovery
need
establish
NIED
for
physi
or
generally
difficulty
she was
or
because
restricted
“the
himself
herself
fraudulent,
trivial,
injured by
distinguishing
cally
between
the defendant’s conduct in
injuries
psychological
and serious
will result in unlimited
purely
order to recover for a
liability”
held,
injury,
consistently
gener
and because of “the
fear
mental
we have
as a
matter,
impose
distress
will
recoveries
burdens
al
plaintiff
must establish
disproportionate
culpabil
defendants
to their
injury
predicate
property
some
either to
or
172-73,
Rodrigues,
ity”);
To that the child without the extent can be attempted to ascertain whether it present in the matter establish sonable effort damage” anticipated that will molest loss of them the accused the “actual element solely again, negligence by proving [molestation] that the “makes the threat claim psychological possibility of a feared much more real DOE’s resulted speculative worry.” injury, and far more than a See “negligence” claim is consub- them Roes, John & part Jane Hawai'i 985 should realize that action his or her Annon, necessary protection at 667. the words Dr. another’s ... does uncontradicted, impose upon not of testimony duty itself him or whose rein her (brackets omitted)). stating take such action” acquittal after without person requiring undergo psychological Whether owes another a rea sonably protect imposing any evaluation and foreseeable without restric harm a person depends upon third wheth subjecting tions his conduct or him to imposition er the circumstances warrant supervision heightened constituted “a real duty. of such a supra risk” the children. See note 20. case, being That urges us If, example, “spe is a there preclude
vain to
from recover-
cial relationship”
between
defendant and
all,
ing
damages
of their
simply
*35
be-
plaintiff,
the
or between the defendant
a
and
prove
cause
not
predicate physical
did
a
person,
third
then the defendant owes the
turn,
injury
then,
person.
to a
We
to
plaintiff
“duty
a
to control the conduct of
challenges
DOE’s
person
to the circuit court’s deter-
prevent
[the] third
so as to
him or her
minations as to
causing physical
plaintiff.”
the remainder of the ele-
from
harm to the
Touchette,
298-99,
plaintiffs
required
ments that
to
122
Accordingly, because of the
Duty
a.
care
“special relationship” shared
a com
between
passengers,
mon carrier
innkeeper
and its
matter,
general
As a
person
“a
possessor
or
guests,
his
her
a
of land
duty
affirmatively
does not have a
to act
to
(who
open
public)
holds his or her
land
protect
person
by
another
from harm”
a
invitees,
and his or her
custodian and
person.
Corregedore,
third
Lee v.
83 Hawai'i
ward,
his or
imposes upon
her
the law
(1996).
154, 159,
324,
Thus,
925 P.2d
329
“
duty
steps
former
to take reasonable
to
prerequisite
any negligence
‘[a]
to
action is
protect
from
latter
foreseeable harms.
duty
by
of a
the existence
owed
the defen
“
”
299,
Cuba,
(quoting
Id. at
922
at
P.2d
353
71
plaintiffs[
dant to
‘require[s]
]’
631-32,
(quoting
Haw.
801
at
at
P.2d
1211
to
[defendant]
conform to certain stan
(Second)
314A,
§
Restatement
of Torts
at
protection
dard of
[the
conduct
”
(1965))).
not,
118
314A
The “section
list” is
plaintiff] against
risks.’
unreasonable
at
however, exhaustive, and other
circum
(quoting Maguire
b.
adequately
employees,
(1)
teachers,
[Melony
including
interview of
posi-
[Schlosser’s]
who
in a
are
students;
potential
Nicole]
as
to the
injury
tion to cause
witnesses
assault
A.C. would result
statements
e.
provide adequate training
to its ad-
molested;
girls
too were
issues,
in appropriate
ministrators
such
(2)
proper methodology
girls
military
for
nor
[n]either
conduct-
investigation,
ing
investigations, pedo-
police, in
administrative
the course
them
philia,
procedures
directly
parents
and the
for
inform
conduct-
would
assaults;
ing
may
]
interviews of
students who
sexual
[
Miller,
(3)
inquiry
this
specific
into the
In
court held
[Schlosser’s]
upon Melony
duty
reasonably supervising
assaults
nature of Norton’s
State “has a
their
and Nichole would exacerbate
emo-
public
during
Hawai'i
school students of
an
that the
distress
such
extent
tional
presence
required
at
their
attendance
never
effective witnesses
girls could
be
leaving
school and while the students are
subsequent
Norton in a
criminal
day
immediately after
school
school
trial;
P.2d at
over.” 56 Haw.
result,
juries
not
two
[a]s
(citing
Lindberg,
v.
49 N.J.
Titus
[Melony’s
allegations
Nicole’s]
find
(1967)).
duty
A.2d
of “reasonable
credible; and
supervision
general supervision
entails
acquitted,
Norton would be
sec-
needs,
students,
danger
specific
or a
unless
time,
charges.
ond
sexual assault
dangerous
likely
ous or
be
situation
calls
urges
Miller,
hold that such harms
The DOE
us to
specific
supervision.”
Id.
stu
reasonably
not
foreseeable
there-
school,
public
dent at a
intermediate
fore,
predicate
imposition of
should
eye
struck in
left
with a rock thrown
her
Finally,
any
upon
“new duties”
it.
the DOE Yoshimoto,
students,
of her
one
fellow
while
event,
mere foreseeabil-
asserts
campus
way
walking across the school
on her
harm,
alone,
standing
not a
ity of the
shortly
home
after
had been
classes
dis
upon
predicate
basis
which to
sufficient
day.
missed
Id. at
for the
duty
imposition of
of care.
result,
eye had
1196-98. As a
left
Miller’s
view,
court was
the circuit
correct
our
replaced
eye.
Id. at
artificial
ran,
concluding that
the DOE’s
alia,
sued,
at 1198. Miller
inter
Nicole,
Melony
only to
but
their re-
State, claiming that the school’s administra
reasonably
parents,
it was
spective
because
negligent in
tors and
su
teachers
been
the students and them
foreseeable
both
pervising
at the
students
time of the incident.
parents
would suffer emotional distress
P.2d at
trial
Id.
1196. The
court
event
Norton molested
students.
State,
judgment in
entered
favor of the
circuit
Nor do we construe the
court’s conclu-
appealed.
Miller
regarding
duty of care
sions
appeal,
On
that rules and
held
any-
imposing
DOE owed
regulations
adopted “pro-
that the DOE had
Rather,
thing
as we
“new”
the DOE.
necessary guidelines
require-
vid[ed] the
below,
supports
our
law
explain
case
*38
personnel
ments for the
of the State edu-
DOE,
that
circuit court’s
the
determination
perform
system
supervisory
cational
to
parentis,
standing in loco
owes
and
students
340,
duties.”41 Id. at
The issue whether case, including, par- duty by warning in this the school had breached its care open failing parents of Eisel court resolved this to inform Nicole’s her re ent.” The “variables,”43 ported question by considering suicidal ideation. Id. at 448. With six conduct, court, Specifically, considering policy preventing future the Eisel danl’s tort, harm, recognize duty whether to defen- addressed: the extent of the burden to the community consequences dant foreseeability plaintiff, of harm to the imposing resulting care exercise degree certainty plaintiff that the suffered breach, availability, liability cost injury, and the the closeness of connection between prevalence injury in- of insurance for the risk the defendant’s conduct and suf- *41 fered, the moral blame attached to the defen- volved. 78 harm,” ably in risks of that counselors the face of foreseeable led to hold “school
which
(citations omitted). Thus,
duty
to
a
use reasonable means
to
at 79
id.
they
attempt
prevent
a suicide
are
when
its own
applied
court
Brooks
construed
of a
student’s
on notice
child
adolescent
precedent as follows:
intent.” Id. at 452-56.
suicidal
Previously,
when the
have ruled that
we
Brooks,
plaintiffs (Jeffrey Brooks’s
In
33-512(4),
it cre
legislature
I.C.
enacted
estate)
high
family
alleged
Jeffrey’s
that
statutory duty
requires a
[that]
a
ated
English
district
teacher
the school
school
reasonably in
face
district to act
school
duty
a
“take affirmative action
owed
Czaplicki v.
risks of harm.
of foreseeable
from
and assist students who suffer
detect
326,
Dist.,
Gooding
116 Idaho
Joint School
at
903 P.2d
depression
suicidal ideation.”
(1989);
331,
640, 645
Doe v.
775 P.2d
specifically,
75-76. More
466,
Durtschi,
1238
Idaho
110
duty
a
claimed that the school district owed
(1986).
statutory
again discussed this
We
Jeffrey’s parents
his suicidal ten-
to warn
No.
duty in
Minidoka
Dist.
Bauer v.
Sch.
dencies,
had,
which,
alleged,
albeit
(1989).
586,
Idaho
P.2d
journal,
conveyed in a
which he
elliptically,
statutory
opinion
we noted that this
kept
part
English assignment
an
exemplifies
duty
role of
to the
the state
75, 79.
had read.
Id. at
which
teacher
school,
which is
described
children
a role
(1)
regard,
In this
the Brooks court held:
588, 778
parentis.
as one in
Id. at
loco
voluntarily
a
that the school had not
assumed
favorably
quoted
from a
P.2d
338. We
had,
help
duty
Jeffrey
because his teacher
Washington
pointed
opinion[,] which
out
students,
past, helped
in the
other troubled
duty
to its
that “the
a school district owes
(2)
78;
relationship
that a custodial
did
id. at
pupils
anticipate reasonably
is
fore
‘[t]o
78-79;
warn,
give
duty
a
rise to
id.
dangers
precautions
and to
seeable
take
(3) that,
(I.C.),
Idaho
but
under the
Code
custody
protecting
the children
its
“protect
duty
owed a
health
school
”
dangers.’
Id. at
P.2d at 340
such
students,”
§ 33-
(citing
id.
I.C.
morals
Dist.
(quoting
v. Anacortes Sch.
512(4)),which,
Carabba
Supreme
pre-
as Idaho
Court
established,
P.2d
statutory duty
No.
“created a
Wash.2d
cedent
(1967)).[44]
requires a school district to act reason-
[that]
(citations,
duty”
quotation
whelming
[imposing
a]
A.2d at 452
internal
favor
597
signals,
omitted).
original
obligate
parents,
brackets
As
counselors to inform
factors,
(1)
burden;
court
"slight”
these
the Eisel
believed:
deemed
Eisel
foreseeable, given
(6)
that the
Nicole's suicide was
imposing
duty
parents
inform
intent,
knowledge of
and that
defendants had
her
appear
their child’s suicidal ideation "would not
certainty
degree of
that she
the fore-
suffered
impact on”
to have
substantial adverse
percent;
harm
hundred
seeable
was one
relating
legislative
insur-
scheme
to the school’s
Maryland,
youth
prevention
suicide was
large.”
community
coverage
ance
"or on the
policy,
important public
reflected
Id. at 452-456.
enactment of the Youth Suicide Prevention
Programs Act and the
suicide
School
numerous
44. The
court had observed that
school
Carabba
prevention programs
a result of
established as
“anticipate
duty
district owes its students
reasonably
Act; (3)
that there was
"so little connec-
dangers
pre-
and to take
foreseeable
duty
breach of
contended
[the]
tion between
custody
protecting the
cautions
children
allegedly resulting
and the
harm” that no
for[]
duty
(citations
dangers.”
from such
omitted). Thus,
both
the students
had been
§
Comment
320 remarks that the rule
injured
alleged
as an
result of
respec-
their
alia,
applicable, inter
or other
“teachers
negligent supervision.
Id,
school’s
Impli-
tive
persons
charge
public
of a
school.”
then,
edly,
purpose
requiring
the DOE
§
130.
b
Comment
clarifies
supervision
to exercise reasonable
over the
foregoing is
“[t]he
true because
circum-
par-
students entrusted to them
their
custody
stances
which the
of another
under
ents—under,
note,
law,
compulsion
we
may
is taken and
such as to
maintained
(1993)45—is
§
see HRS
298-9
ensure
deprive
protection
him
... of
[or her]
provide
the children’s educational custodians
who,
present,
if
someone
would be under
with a
in which
them
safe environment
duty
protect
him
Id. at
[or her]....”
130-
reasonably protected against
will be
foresee-
child[,]
sehool[,]
“a
31. Because
while in
reasonably
can
able harms
the DOE
or
deprived
protection
[or her]
his
anticipate.
should
parents
guardian,”
“the
who takes
actor
custody
properly
re-
[the]
child is
Moreover,
contexts,
in other
we have
give him
quired
protection
her]
[or
[of]
rule,
approved
forth in
set
the Restate
custody
which the
or the
manner
(Second)
(1965),
§
314A
ment
Torts
deprived
him
Id. at
[or her.]”
is taken
required by
who is
law to take ...
“[o]ne
131. .
custody of another under circumstances such
observed,
deprive
pursuant
her]
as to
the other
normal
As we
[or
§
opportunities
protection
required that chil
is under” a
to HRS
the state
protect
thereby, deprived
“to
[him her]
dren attend school
legislature repealed
§
pursuant
HRS
formulated and
298-
enforced
stat-
and, currently,
provisions
set
are
forth
protective
....
ute
The result is that the
custo-
§
(Supp.2001).
§ 302A-1132
HRS 298-9
HRS
dy
mandatorily
teachers
substituted for
currently pro-
provided-and HRS
302A-1132
parent.
that of the
compulsory
of children
vides—for the
attendance
(citations omitted).
at school.
*43
safety
rеasonably
specifically to
and welfare
fore-
ensure the
protection
from
them the
reasonably
or
normally
anticipates,
if it
parents
that
them
students
harm
seeable
a
Washington Supreme
reasonably
anticipate,
particular
should
Court
provide. The
that,
so,
Miller,
doing
in
the state
to
harm.
In
the record failed
estab-
reasoned
custody
protective
reasonably
of his or
usurps
parent’s
a
lish
or
should
that the DOE knew
child,
it
that of school
replacing
unsupervised
with
anticipated
her
have
that an
area
Carabba,
thus,
dangerous;
and administrators. See
grounds
teachers
school
946-47,
supra in note
duty specifically
super-
435 P.2d at
discussed
a
DOE
not owe
to
did
in
with
agree,
and
accord
the rules
reasonably
We
not
vise
area
it was
that
because
(Second) of
expressed in the Restatement
in-
plaintiff
that
would be
foreseeable
§§
that the
341-42,
Torts
314A and
we believe
jured
56 Haw. at
there.
relationship”—i.e., a
“special
a
Kim,
DOE shares
Similarly, in
because
1200-201.
parentis
in
quasi-parental or
loco
custodial
reasonably
DOE
nor
should
neither knew
students,
its
which obli-
relationship—with
particular
that
would
a
student
foreseen
gates the
to exert reasonable care
DOE
another,
duty specifi-
it
a
harm
did not owe
welfare,
safety
ensuring
and
student’s
each
cally
supervise
to
either the assailant or
reasonably
parent.
In
prudent
as
a
Haw.
harmed
him. 62
student
words,
DOE
its students the
other
owes
significant for
b. Breach of duty that it to the breached care owed respects, only three several there was breach of “Whether <?.[,] not, present purposes. duty was a which are relevant i whether there failure First, court fоund that part reason the circuit the DOE’s defendant’s exercise care, reasonably in question thorough able for the trier fact.” failure conduct 383; Knodle, allega vestigation Haw. at connection T.Y.’s Inc., was Amfac, against Haw. tion unreasonable. Sec also Bidar v. (1983). Generally, ond, court found the circuit unreasonable P.2d properly failure train its DOE’s adminis defendant’s conduct measured person regarding problem pedophilia, prudent trators “what a reasonable that, presumably, they an such would have [the] would ... have under circum done posed danger that Norton determining ticipated even stances” in whether there acquitted of criminal duty though he had been been breach care owed to Third, Knodle, charges cir Haw. at T.Y. matter. plaintiff. omitted). (citations However, cuit court found Schlosser’s interviews “[t]he at 384 in Melony and his mythical pru and Nicole failure [the conduct of reasonable parents they reported to person vary form them of what will with the situation with dent] him was unreasonable.47 is confronted” because [or she] command—i.e., representation mis- to KMCAS base circuit court also found that Sosa’s argues pending The DOE because circuit Norton’s criminal the outcome of trial, than, defining did, of care that erred as it remove Norton plaintiffs, clearly teaching it position. the DOE owed to the from a finding erred in that the DOE breached Nevertheless, acquitted once Norton duty. The that “it acted within DOE asserts matter, foregoing criminal the T.Y. applicable the standard to DOE em- care impediments in to the administrative DOE’s contends, ployees”—which, generally it vestigation alleged into Norton’s misconduct supervise it students unless is on notice that matter, longer present. were no For that special specific su- circumstances necessitate nothing precluded observing the DOE pervision—and reasonably was not proceedings. the criminal Instead of resum that Norton foreseeable would molest Melo- ing investigation acquit its Norton was after DOE, ny According and Nicole. ted, however, inaccurately “[fjrom view, educator, objective an acting assumed, naively apparently without consult within the school duties of administrators advisors, ing legal acquittal Norton’s personnel, believing, and other DOE signified jury had determined that he during from all of the available facts adduced beyond was innocent a reasonable a doubt. prosecution Norton[,] investigation assumption patently This unreasonable. *46 support that was no there evidence T.Y.’s. See United States v. Assortment 89 One allegations, be on that would not notice Nor- Firearms, 354, 361, 1099, 104 U.S. S.Ct. Melony presented specific ton risk to and (1984) (observing L.Ed.2d 361 that “an precisely, argues, More in Nicole.” the DOE acquittal charges prove on criminal does not light allegations the fact no that further innocent; merely that the defendant it against approximately Norton arose for proves the existence of a reasonable doubt as half, year specific, and a that it had “no guilt” jury’s acquit his that a verdict warning Melony that advance Nicole ting a “in criminal [a] d[oes] defendant action risk were at from Norton’s unknown deviate not negate possibility preponder that a Accordingly, nature.” concludes DOE ance of evidence could show” that plaintiffs. duty” that it “fulfilled its to the activity engaged defendant had in the regard
With investiga criminally prosecuted she was DOE’s he or and, thus, holding tion of the T.Y. incident and its reinstate that “the difference in the Norton, Estomago’s proof ment of we believe that relative burdens of in the criminal and investigation” application civil precludes initial “school level Sosa’s of the actions investigation, subsequent estoppel”); “district level” doctrine of collateral accord State been, cursory they may v. Tuipuapua, biased as have 83 Hawai'i 152 n. (1996) reasonably point n. that through (observing conducted P.2d (1993) acquitted Norton crimi “provides ‘[a]n at which was in the 712A-11 HRS proceedings arising acquittal proceed nal out criminal of T.Y.’s accusa or dismissal Estomago ing preclude proceedings tions. Neither nor was able shall not civil under Sosa ” omitted)); concerning chapter’ (emphasis Norton or T.Y. Mars interview acquit Society latter’s accusations until Norton was land v. International Krishna Consciousness, 119, 125-26, 657 ted. Norton was counseled to invoke his 66 Haw. right (agreeing in the oth against self-incrimination face of 1039-40 with Estomago’s attempts to elicit er that had issue sub Sosa’s courts addressed the judice acquittal Similarly, holding the HPD in that “an “version” events. zoning prosecution T.Y. and criminal for violation of a structed her mother not discuss pro Quite literally, judicata school. not res a civil the incident ordinance is very ceeding zoning was could do for the there little the DOE enforcement text, tion, investigation supra accompanying that the DOE's administrative into note 38 and alleged arguments challeng- in the T.Y. matter Norton’s had misconduct we do not discuss DOE’s Be- absolved Norton—was unreasonable. ing Sosa’s the circuit court’s determination that we have that the is immune cause held misrepresentation a breach of the constituted liability extent to the duly plaintiffs. that the of care DOE owed misrepresenta- their claims arise out Sosa’s ordinance”); Leong history pedophilia Honolu not af- and Mew Sun v. extensive does because, Co., Ltd, analysis Rapid gravity “[a]s our lu 52 Haw. fect Transit increases, possible apparent (observing that harm likelihood its occurrence need be corre- acquit fact civil was “[t]he [a defendant] spondingly Id. at 742 P.2d at less[.]” proceedings (brought ted the criminal (citation omitted). Thus, only there need him in connection with the accident possibility be a reasonable had the DOE proceeding]) of the civil [that the basis investigated, anticipat- would have least evidence, is not [it] admissible nor should potential posed ed the threat Norton jury”). by counsel to On be mentioned thus, and, imposed would have some reason- assumption, the basis its unreasonable chil- able restrictions his contact with any investigation DOE believed that further dren, precluding gathering him from such might purpose that it undertake was without recess, during in his students room lunch thus, justification summarily reinstat requiring him to adhere the DOE’s conducting any Norton further ed without “unspoken policy” that teachers not touch reinstatement, inquiry into matter. any might students manner be misin- more, unreasonable, the cir without or, indeed, terpreted, forbidding him from clearly ruling. cuit did not err so touching at all. students the absence reasonably pru- We do not that a believe determination that had not actu- parent have what the DOE dent done claimed, ally molested T.Y. as she we hold least, very reasonably prudent At did. reasonably that the DOE antici- should parent legal sig- would have ascertained the potential pated posed Noi'ton threat acquittal allow- nificance Norton’s before and, therefore, that it students was reason- ing him unsupervised contact with his or her ably that he would foreseeable molest *47 Upon discovering acquittal child. that an students. adjudication a finding was not of inno- Furthermore, foreseeability that doubt, cence—beyond a reasonable or other- once, Norton would so increased after do acquittal contrary, wise—and to the reinstated, being issuing he resumed hall merely signified had prosecution that passes, gathering (par students room his people failed to twelve that Norton convince ticularly fifth graders female fourth and with doubt, guilty beyond a was reasonable we hair) recesses, light-colored during hug and reasonably par- prudent that a are convinced ging they departed them as his room. All of permitted ent would not have Norton unfet- precisely given this conduct is what rise had a nut- tered to his or her child. access It place. to T.Y.’s accusations the first shell, that the DOE should have known require specialized training does not or edu actually question Norton molested whether professional cation as health mental and, therefore, open T.Y. remained an one trigger to an alarm such conduct that Norton investigation into should have resumed posed potentially Mókapu to risk students. misconduct, confronting alleged Norton's noted, Indeed, as we we no doubt have have him, least, very videotaped at with T.Y.’s would, reasonably parent prudent that a accusations, from the that his free shield learning again that Norton was once right had afforded self-incrimination exhibiting pattern precise of behavior prior acquittal. him to his gave allegations, that rise to T.Y.’s have re circumstances, then, Under “there such, stricted his access to them child. As sufficiently probability some of harm [was] that we hold it was unreasonable at that [—i.e., Norton molest a serious that would point specifically for the DOE to failed pru- Mókapu reasonably that a student—] supervise to Norton and restrict him from [parent] precau- passes [have] take[n] dent would issuing “hugging” hall and students. Knodle, ease, Haw. at tions avoid being it[.]” That circuit court did (citation 742 P.2d omit- clearly finding brackets that err the DOE’s failure ted). is, ultimately, supervise That it unknowable Norton or restrict his conduct duty that whether would have concluded constituted a that it owed the DOE breach plaintiffs. had T.Y. or his Norton molested unearthed omitted). regard, neg We further hold that the circuit In this “a defendant’s correсtly ligence determined that Schlosser’s need have been the whole cause interrogations Melony only bringing Nicole consti or the factor in about duty enough negli tuted breaches the DOE’s of care. harm. It that [i]s his or her Indeed, testimony acknowledged he his gence causing was a substantial factor regulations precluded injuries.” DOE’s him Id. [the] conducting (citations, such brackets, interviews that he emphases at 1100 omitted). professionals aware mental health prong “contemplates The second specifically trained conduct them so policy ... whether there are concerns or potential as to minimize psychological prevent imposition of law that rules might trauma that girls. disclosure cause liability negligent party although on the gainsaid Nor can it Schlosser acted clearly [or her] a cause of the unreasonably failing promptly notify Id. injury.” resultant at 1101 girls’ respective parents (citation regarding omitted). their dis him, closures to insofar he advanced no failing
reason for to do so. present it purposes, signifi For (1) cant the circuit court found Accordingly, we affirm the circuit court’s (a) reasonably DOE’s failures to conduct a findings the DOE breached the thorough investigation administrative in con (1) plaintiffs by that it owed to the reinstat- (b) allegations nection with T.Y.’s rea ing conducting Norton without a reasonable sonably supervise after reinstat investigation to ascertain whether had him, (2) ed Schlosser’s failure conduct (2) alleged, failing molested T.Y. as she had Nicole, proper Melony interviews of supervise Norton or restrict his contact girls’ to inform Schlosser’s failure aware, after children Schlosser became parents respective reported of what aware, or should have become that Norton causing to him were all substantial factors very gave had resumed the conduct rise injuries. plaintiffs’ accusation, prior per- to T.Y.’s Schlosser’s sonally Melony interviewing and Nicole and Although argument with re DOE’s inducing them disclose to him whether spect legal prong the first the test for them, notwithstanding Norton had molested *48 clear, appears causation is than it it less that that requisite his awareness lacked the “any contending is that that the conclusion training to minimize the trauma associated type failure to conduct a different of investi disclosures, with such Schlosser’s fail- gation legal plaintiffs’] was a cause" of [the notify girls’ parents ure to of them disclo- damages speculative best.” The to him. sures employees, general actions of its defends the ly observing that their assessments of Nor Legal causation
c.
credibility
ton’s and T.Y.’s
not “arbi
trary, capricious,
clearly
that an
We have held
“actor’s
erroneous” such
that,
negligent
legal
presumably,
conduct is a
cause
harm
the circuit court should not
(a)
another if
his or
conduct
her
substan
have determined otherwise. The DOE also
harm,
tial
in bringing
appears
factor
about the
to believe that
the circuit court
(b)
relieving
negli
there
no rule of law
the actor
should not have
that the
determined
liability
legally
in
gent
employees
because of the manner which
conduct
its
caused
negligence
plaintiffs’ damages
in
forty-nine percent
his or her
resulted
of the
Taylor-Rice,
plaintiffs’
damages
harm.”
91 Hawai'i
979 because the
included
omitted).
(citations
directly
ultimately
P.2d at 1100
and brackets
trauma
un
caused
presence
first
prong
proceedings
The
successful criminal
test
Nor
legal
Correlatively,
“contemplates
causation
factual deter
ton.
contends that
the DOE
negligence
plaintiffs’ participation
mination that the
of the
in the criminal
defendant
likely
proceedings against
was more
than
in
substantial factor
Norton conducted
bringing
complained
Melony’s
in
about the result
of.”
connection with
and Nicole’s accu
(citations
Id. intervening
superceding,
B. nonretroactivity construing the statute’s *49 STLA, clause to bar claims that “accrued” before Under the the DOE “shall be such, plaintiffs posit June 1994. As the liable in the same manner and to the same private erroneously extent as a individual under cir- that the circuit court determined like unnecessary duty prong, require equally 48. As ex- to the second the DOE enumerates that, policy principles” pansive hiring qualified several "sound tends, it con- of with the individuals liability." "support imposing newly required special expertises. not The breach-of-duly analy- posits DOE with its im- [T]o the extent that the circuit court sis, analysis legal the circuit court’s causation posed police, prosecutors, the duties upon is tainted because it was "based the un- upon personnel, DOE have counselors should expansive precedented, imposed duties” that it recognized the coordinate immunities that these DOE, upon According DOE. to the the their actors in the fulfillment of duties.... reasons, sup- policy principles For these sound impose upon if Court were to new duties liability port imposing upon not the DOE. perform independent investigations the DOE to noted, we have we not believe that the As do occurring grounds of crimes adjudications on school imposed upon court "new duties” the circuit guilt, the would be un- policy It DOE. therefore follows that “sound At a time the bearable budget intolerable. when disturbing principles” not in favor of taking do militate for the is DOE such hit from provide DOE’s responsibilities the circuit court’s determination the its education to its students, injuries. special negligence legally plaintiffs’ a new and caused the education such plaintiffs’ III.A, swpra the and NIED As discussed section the (1) plaintiffs claims not is did “accrue” until well after DOE liable the for its June 22, 1994, i.e., earliest, employees’ negligent of Norton in at the when retention Norton (2) January 1993, Nicole, and, Melony negligent Sehlosser’s su- molested at the pervision of latest, Norton he once became aware plaintiffs when the became aware that that Norton issuing passes had resumed hall Thus, had plaintiffs so. the done gather grade so that he could fourth and fifth § being inap- maintain that—HRS 663-10.5 girls in his “hug” classroom and continued to plicable—the court circuit should have deter- (a period spanning them the time between mined that the for DOE liable them Norton’s teaching position reinstatement to a the full extent damages, private of their as a January 1993 and his molestation of A.C. employer would be under like circum- (3) 1995), January interroga- Schlosser’s stances.49 Melony January tions and Nicole Sehlosser’s failure inform their agree We and hold that the circuit respective parents their accusations limiting liability erred the DOE’s against questioned Norton after plaintiffs. plain language of HRS girls. Accordingly, §HRS 663-10.5 does not § nonretroaetivity 663-10.5’s clause focuses apply to plaintiffs’ claims to extent upon specific acts or omissions that they upon negligent- are based the DOE predicate claim, and, therefore, plaintiffs does, ly retaining Norton. The statute how- applicability keyed the clause’s is not to when ever, apply to the alternative bases plaintiffs action cause “accrues.” The plaintiffs’ claims DOE as to legislative § underlying intent HRS 663-10.5 them, would operate to limit the lia- DOE’s clearly entities, governmental to insulate bility [plain- “percentage share of the DOE, being like the from held accountable damages to” tiffs’] attributable Sehlosser’s plaintiffs degree than more fault Norton, negligent supervision of his interro- employee’s associated tortious contri Nicole, Melony gations of and his failure plaintiffs bution injury, to the under circum girls’ parents inform respective injury legally in which stances is caused their accusations. only by employee’s not government tor- conduct—i.e., Yet, tious his or § her act omission because HRS 663-10.5 bringing is a substantial factor in apply plaintiffs’ about not to the does claims plaintiffs injury—but upon also the conduct extent are based the DOE’s other, Norton, is, nongovernmental, negligently retaining tortfeasors. Thus, noted, inquiry plaintiffs the relevant focused we have liable to “in the plaintiffs when claim for “ac relief same manner and to the same as a extent” which, crues,” given plaintiffs private Generally that a claim individual would be. may individual, speaking, private negli “accrue” until he or she discovers whose injury, may long gence legally person injury, often after the time causes another employee engaged person when the state in the full extent liable See, legally plaintiffs’ resulting damages. e.g., conduct that has caused the Rather, (Second) injury. plain language § of HRS of Torts Restatement (“[o]ne nonretroactivity injured by requires 663-10.5’s clause the tort another government damages determination of when a enti entitled recover the other *50 ty’s harm, employee present, engaged past, prospective, the act or for all and omission tort”).50 entity being legally by for which the is held the liable. caused explained § § 49. [HRS ] As note HRS 663- tortfeasors as defined in 663-11 is infra 10.9, generally abolished,” joint and subject exceptions. abolishes several to several HRS tortfeasors,” liability among "joint as defined "joint § mean 663-11 defines tortfeasors” to implicated present §HRS not in the is persons jointly severally or more liable "two and matter. injury property, person for in tort the same judgment has been recovered whether not § apply present HRS 663-10.9 does not the against (Emphases all or of them.” add some provides § matter. HRS 663-10.9 in relevant ed.) Because the circuit court dismissed part "[j]oint liability joint that and several for (1) battery. A circuit common law definition of defen- Accordingly, we hold apportioning liability battery between or she “inten- court erred dant causes when he therefore, (2) tionally bodily plaintiff the DOE and causes contact plaintiffs full liable to the for the the DOE is way justified by plaintiffs appar- in a not damages. supra of See section extent then- by privilege, wishes or and the contact ent III.A.2.C. against plaintiff’s in fact harmful or Torts, Dobbs, § Law will.” The 52- of
IV. CONCLUSION
(2000) (citations omitted).
As Norton
analysis,
vacate
foregoing
Based on the
we
Melony
“against
Nicole
touched both
judgment
final
and remand
id.,
the circuit court’s
will[,]”
he committed
common
[them]
entry
to the circuit court for the
the matter
battery.
exception
tort
law
of
Thus
judgment
final
with
an
consistent
of
amended
liability
arising
“any
state tort
claim
out
opinion.
662-15(4) (1993
battery[,]”
Supp.
...
&
2001),
implicated.
ACOBA,
Concurring Opinion of
J.
developed
Two
of cases
lines
reached,
I concur in the result
but differ
immunity
regard
governmental
an
when
reasoning
supports
analysis
employee negligently
supervised by
hired or
likely to
the result. As these issues are
government,
an
tort
commits
intentional
cases,
my position
I
forth
reoccur in our
set
against
person.
majority
third
The
(1)
under the
that:
the State is
immune
plaintiffs
courts hold that
inasmuch as
Liability
independent
Act when
State Tort
of action “arises out of’ an
cause
intentional
negligence
governmental
legal
cause
tort,
by governmental
the claim is barred
employee’s
intentional
tort
an
foreseeable
See,
States,
immunity.
e.g.,
v.
Leleux United
(2)
person;
mental
against a third
serious
(5th Cir.1999) (“Only negligent
applies psychic injury claims of suffered may basis a cause action.” form the for by parents, the minor them added.)); (Emphasis v. Franklin exception “physical a new United rather than (10th Cir.1993) (8) States, rule; injury” by F.2d owed Defen- (“the argument Department to avoid tort dant-Appellee/Cross-Appellant [the advanced (DOE) liability presеnt to the Plaintiffs is based in the case should be act] of Education relationship parentis rejected attempt special on the loco as an ineffective recast battery competent and not some formulation an affirma- (surgery on claim without consent) duty; prevent tive rests negligent DOE’s failure claims, primarily of a defined battery”). dismissing on absence well “In these administering procedure allegations courts have often underscored the belief teachers; by criminal behavior an intentional tort formed the basis of the obligation pay the full amount of DOE’s by declaring plaintiff action could joint liability damages rests several express statutory lan ‘circumvent’ rather Norton’s dismissal than Lawrence J. guage liability act] tort ‘artful [the foregoing propositions ease. is, pleading,’ battery negli an assault or are in seriatim. discussed gence avoid dismissal of the suit.” K. de Jonge, Recovery Tort Under Federal I. Negligence Claims Act Governmental actions, offensively touch- Which Leads to Intentional Tort
Norton’s
Nicole,
ing Melony
plainly
Employee,
within the
30 Ariz. L.Rev.
fall
Governmental
apportionment
liability
prejudice
plaintiffs’
does not
be
claims
Norton with
authorize
action,
note,
(an
party
chal
we
that neither
tween
the DOE
Norton. See
v. Associ
Ozaki
lenged
appeal),
liable in
*51
on
Norton cannot be
Apartment
Discovery Bay, 87
ation
Owners
of
of
such,
plaintiffs.
DOE and
tort to the
As
the
265,
5,
644,
Hawai'i
270-71 n.
649-50
954
"joint
Norton are not
tortfeasors” as defined
(1998).
n. 5
and, therefore,
§HRS
HRS 663-10.9
663-11
497,
122, 100
(1955)).
Recovery
[hereinafter
Under
76 S.Ct.
L.Ed. 48
Addition
(citations omitted).
Shaner,
656,
the
ally,
]
FTC:A
in Breed
57 Haw.
v.
(1977),
P.2d 436
it was
directed
“the
eases,
opposing
In a second
line of
courts
Liability
liberally
State Tort
Act should be
on
independent
gov-
focus
of
the
nature
the
purpose
its
construed
effectuate
com
negligence
ernmental
that allows the inten-
pensate
negligent
the
of
victims
conduct
occur,
tional tort
such
negligent
as the
665,
employeesf.]”
state officials and
Id. at
hiring
supervision
employee,
or
of an
omitted)
(citations
(emphasis
P.2d at 442
hold
the cause of action
is rooted
added).
The second line
eases and the
act,
negligent
not the intentional tort itself.
underlying
See,
comports
rationale
them best
States,
e.g., Senger v. United
103 F.3d
(9th Cir.1996)
with a
liberal construction
the Act.
(“[G]ranting
broad immu-
nity
purposes
would
be inconsistent
that,
require
This latter
line
cases
Act],
of the [Federal Tort Claims
which is to
negligent
claim
hiring
supervision
or
‘provide a forum for the resolution of claims
against
government, it
succeed
must be
government
injury
the federal
knew,
government
established that
”
by
government’s negligence.’
caused
should have
an employee’s pro-
known about
States,
(Quoting Bennett v. United
803 F.2d
pensity to commit an intentional tort.1 Such
(9th Cir.1986).));
1502, 1504
v.Doe Durtschi
approach
an
premise
does
State’s
110 Idaho
liability
person
to a
respondeat
third
on
su-
(“We
legislature,
do not
by
believe
Idaho
i.e.,
perior grounds,
imputing
wrongful
creating
exception
governmental
an
liabili-
employee
act of
simply
an
to the State
be-
ty
arising
for actions
out of assault and bat-
relationship.
an employer-employee
cause of
tery, thereby
agen-
intended
relieve state
(“These
Senger,
See
As stated
this court in
v.
gent hiring
supervision
employee, if
(1969),
of an
Haw.
pur
unsound
force,
inju
exception
“physical
an
to the
intervening
the
the
held that
defendant because
ry”
employees
rule was
when airline
very anticipation which made
conduct
created
brought
expected
unknowingly
the
handled human immunodefici
negligent, has
about
(HIV)
States,
ency
(Citing
457
virus
contaminated blood.
harm.”
v.
See
Gibson United
(3d Cir.1972).)); Bennett,
477,
1391, 1395
citing to
803 id. at
weighed by
thereby imposed
burden
III.
the
on
plaintiff
the
and that
in
the “interest
free-
findings
The court made several hundred
dom from negligent
of
infliction
serious
of
regarding
major
fact
four
negli-
acts of
independent
mental
distress
entitled to
gence.
court,
According to the
these acts
legal protection.”
negligent investigation
“include” the DOE’s
Rodrigues,
(quoting
52 Haw. at
subsequent
acquittal;
negli-
to Norton’s
the
520).
472 P.2d at
gent supervision Norton, particularly
of
after
repeatedly engaged
issuing
in
passes
hall
“Applying
Rodrigues
[the
standard
]
re-
children;
and hugging
lack of
turns reason
and the
train-
symmetry
to the law and
ing
easily
implementation of standards re-
presented
resolves the issue
inus
and/or
First,
abuse,
garding allegations
including
of sexual
this ease.” Id.
there would be near
agreement
Principal
the
per-
universal
that “a
interview
reasonable
Schlosser
notify
parents
as a
or
failure
parent
[such
son
child
of such
children’s
re-
child],
constituted,
normally
may
garding
potential
be unable
abuse.2
cope
adequately
with the mental stress
It would
less than
be
accurate not to ac-
engendered” by
perpetrated by
the acts
Nor-
knowledge
facing
difficulty
in
the DOE
ton, id.,
physical
even in the
absence of
resolving allegations of
assault
sexual
as it
injury. Second, Rodrigues
precedent
“is
attention,
brought
particularly
jurisdiction
question
our
on
and controls
light
conflicting
views.
facts and
While
who
claim
entitled
mental distress
perspective
this court
faultless
resulting
from”
conduct of Norton and
hindsight,
allegations
be
must
considered
the DOE. Id.
presented
in the context
to the DOE. Here
Rodrigues
a “limitation
instructs that
large
parents
there
awas
number of
right
recovery,
as in all
“extremely upset”
children who were
cases,
obligation
is that the defendant’s
longer
teaching
Norton “would no
be
their
particular
refrain from
conduct is owed children[.]” On the advice of counsel and the
only to
foreseeably
those
who are
police, respectively,
nor
neither Norton
T.Y’s
endangered by
only
the conduct and
parents provided
per-
information
DOE
respect
to those risks or hazards whose
Additionally,
acquitted
sonnel.
unreasonably
likelihood made the conduct
arising
allega-
criminal trials
out
T.Y’s
dangerous.”
Haw. at
P.2d at
subsequently, Melony’s
tions and
and Ni-
(citations omitted).
Rodrigues,
Under
accusations,
demonstrating
cole’s
further
then,
the nature
risk defines
difficulty
discerning
truth of
T.Y.’s
result,
scope
liability.
devising
As a
original charge
assessing
potential
a rule as to who should recover in this
might pose
risks that Norton
the future.
case,
justification
affording
there is
I
right
likely
many findings
those
do not
sue to
most
believe the
suffer
mental
“indicating” negligence
distress because
[child
are
“foreseeably
are
judg-
abuse]
those
taken as an
of factors for
enumeration
af-
”
by wrongful
ing
governing
conduct.
conduct of
future
DOE
fected
allegation
majority rejects
neg-
Corps
2. The
the final
tor
Air
Sosa to the Kaneohe Marine
Sta-
ligence,
misrepresentation
tion
Administra-
Base Commander's Executive Officer.
reasons[,]
teachers,
ling
taking into
consideration
principals,
administrators.3
myriad
with a
personnel
charged
relationships
human
of our soci
are
social and
tasks,
of which is to
Corregedore,
not the least
ety.”
83 Hawai'i
*54
Lee v.
obligation of
accomplish
primary
324,
(1996).
then-
edu-
166,
Generally, a
925 P.2d
view,
cating
my
negligence
In
children.4
duty
a
affirma
“person
not have
to act
does
apparent
is
in the
grounded
in this case
tively
person
harm.”
to
another
from
protect
proce-
of clear
definite DOE
absence
and
However,
159,
at
P.2d at 329.
as the
crimi-
administering
accusations of
dures
notes,
majority
“special
where
is a
there
nal behavior.
may
a
a
l'elationship,” then
defendant
owe
duty to
the conduct of
third
[the]
“control
disposition
matters cannot be
The
of such
person
prevent
as a
from
accomplished appropriately
matter
as to
him or her
so
policy or ad hoc administra-
causing
plaintiff.”
internal school
Ma
physical'harm to the
action,
ques-
(citations
71,
resolution
such
tive
jority opinion
negligent light character of the actor’s In duty recognized legal relationship and not with the actor’s to avoid the well be student, general, anyone unreasonable risk school and we not called tween are duty who does an act is affirmative under on anew to make a calculus.
to others
exercise the care of
reason-
person
protect
able
them
V.
arising
unreasonable ham
them
out
Relying
(Supp.1994),6
663-10.5
HRS
dtity
the act....
the actor is under no
If
*55
DOE,
govern-
a
the court held that the
as
act,
to the
his [or her]
other
to do
failure
entity,
forty-nine per-
mental
was liable for
may
negligent
so
be
conduct unth the rule
damages,
apportioned
cent
the total
its
Section,
stated in this
but it does not
663-10.5,
§
amount. The 1994 version of
subject
liability,
[or her]
him
because of
(Supp.2001),7
joint
since amended
abolished
duty.
the absence liability
governmental party
and several
for a
(brackets omitted) (emphases
original).
occurring
for “acts or
omissions
on
after”
explained
It was
that “the fact that
[the
22,1994,
June
the date it was enacted. HRS
negligent conduct falls
defendant’s]
under
§
(Supp.1994).
majority
663-10.5
The
re-
§
the rubric of
302
Restatement
does not
jects the court’s view and holds that HRS
per
duty
establish
se
owes
to the
§
inapplicable
663-10.5 is
and does not limit
[plaintiffs];
only
it
the manner in
describes
liability.
majority
the DOE’s
The
further
may
negligent
duty
which he
be
he owed a
if
(1)
concludes that
Norton and the DOE are
301,
[plaintiffs].”
Id. at
47 P.3d at
“joint
by
tortfeasors” as defined
HRS
(emphases
original). Similarly,
1214
(2)
(1993),
§ 663-11
inasmuch as Norton and
conduct,
itself,
negligent
DOE’s
does not
tortfeasors[,]”
“joint
the DOE are not
HRS
children;
duty
create a
school
care to
(Supp.2001),
§
generally
663-10.9
which
re-
rather,
duty
special
this
arises out of the
joint
pealed
liability,
and several
does not
relationship between the DOE and the chil
(3)
apply,
“[b]ecause the circuit court dis-
any
dren. To the
extent
other basis for
[Plaintiffs’
missed the
claims
to,
opinion
majority
is alluded
see
at
...,
prejudice
Norton cannot be liable
72,
(“[r]egardless
VII.
74,
at
450
at
tortfeasor. See id.
P.2d
1000.
I
the DOE and Norton are
believe
party
third
The trial court dismissed the
“joint
under
1939
tortfeasors”
Uniform
assumption
complaint,
on
that a
based
(UCA-
Among Tortfeasors Act
Contribution
legally
minor
from
child
immune
suit from
TA),
§§ 663-11 to 663-17.
HRS
See Saran
parents.
id. This court
See
reversed
1,
685,
Silva,
9,
78
illio v.
Hawai'i
889 P.2d
that a minor child
liable for
held
421,
693,
denied,
reсonsideration
78 Hawai'i
joint
contribution
tortfeasor under the
(1995) (noting
P.2d 172
that Hawai'i
895
79,
at
95 automatically defendants, other, employer action released the but was time- barred, respondeat superior liability. thereby destroying 78 See the disfavored statutory right Hawai'i 889 692-93. It was defendant’s to contribution.” explained joint that the UCATA definition of Id.
tortfeasors,
liability
“which is based on
rath-
v.
Apt.
But Ozaki Association
Owners
er
negligence,
than
‘is exceedingly broad and
265,
Bay,
Discovery
87 Hawai'i
954 P.2d
goes beyond
meaning
the traditional
IF],
[hereinafter “Ozaki
this court
”
(quoting
term.’
Id.
Draper,
Holve v.
footnote,
in a
analysis,
stated
brief
without
(1973)).
Idaho
only parties
damages
as whom
could
Thus, this
“plain
court held that
joint
be
are
recovered
tortfeasors.
Id. at 270
unambiguous language of the
version
[of
n.
954 P.2d at
n.
acknowl
While
abrogates
UCATA]
the common law rule
edging
‘joint
that “[t]he definition of
tortfea-
”
employee automatically
of an
release
court,
liability[,]’
‘is
sors’
based
vicariously
employer.”
releases
liable
his/her
quoting
Dictionary,
Black’s Law
said that
Id. at
es
Here, tort, alleged the action an intentional
namely Therefore, the conduct of Norton. “squarely
this case falls within the HRS 663-10.9(2)(A)
§ category of cases ‘joint liability joint several
tortfeasors in [HRS as defined ] 663-11 ” [was not] abolished.’
ASSOCIATION OF APARTMENT ELUA,
OWNERS OF WAILEA
Plaintiff-Appellee,
v. COMPANY, LTD.,
WAILEA RESORT corporation,
Hawai'i Defendant-
Appellee,
County Maui, Defendant-Appellant, Development Company,
Wailea a Joint
Venture, 1-10, John Does Jane Does 1- Corporations 1-10, Doe Doe Partner
ships 1-10, 1-10, Doe Entities and Doe
Governmental Units Defendants. Apartment
Association Owners of Elua, Plaintiff-Appellee,
Wailea
v. *59 Ltd., Company,
Wailea Resort Hawai'i
corporation, Defendant-Appellant,
County Maui, Defendant-Appellee, Development Company,
Wailea a Joint
Venture, 1-10, 1- John Does Jane Does Corporations 1-10, Doe Doe Partner 1-10,
ships 1-10, Doe Entities and Doe
Governmental Units Defendants.
No. 22412.
Supreme Court Hawai'i.
Nov. notes inform when Sosa 4, 1992, presumably on March before Also actually videotape had the DOE obtained the pre- Toguchi approved request, his Sosa arrangements for to “make the order Gordon, Norton, over a conference sided you your viewing by principal.” Sugino Norton’s Hawai'i State Teachers’ Associ- additional infor- “[w]ith remarked this (HSTA) Moore, representative, ation Samuel mation, position will in a [DOE] be better purpose of which was determine appropriate action.” In determine appropriate.” At ] action would be “what[ Sugino conveyed closing, importance conference, Norton informed the others investigation alleged of Norton’s mis- Sosa’s on that an warrant was issued “[arrest] thаt, “[b]eeause condm t and reassured Sosa 3,1992” arraignment his March and that rights recognize we the individual’s balanced 12, 1992, at to occur on March scheduled with our the welfare concerns plea he would enter time students, every effort shall be made assist guilty and a trial date would be set. Norton matter, investigation you your of this so reiterated, previously as he had related proper that a decision can be determined.” Estomago, any that he did recall circum- Subsequently, received and reviewed Sosa given rise T.Y.’s stances that would have trial, videotape. At Sosa asserted that, on the ad- accusations. Norton related objective looking about at what was he “was attorney, of his he had refused to take vice tape” presented on the and acknowl- [video] detector test and refused to answer lie edged enough that made him “concerned during investigation. HPD’s questions to sit down with Mi'. Nor- [he] wanted placed queried why he had been ton[,] [it,]” ... have him view and hear Nor- leave, which he “felt was administrative story.” ton’s “side judgment guilty.” response, that he was him Schlosser a memo at the conference told On June sent someone Sosa, “any protect recommending was to him and randum to administrative leave April purports meeting, par- found this Norton on 1992—which 12. The circuit court ticularly agreement expedite tri- copies "investigation Norton’s have attached notes” al, advising deposi- Schlosser, as well as Norton to obtain prepared Estomago, Ching, witnesses, potential reflected Sosa’s tions well March 1992 confer- as notes of Sosa’s bias in Norton's favor before Gordon's hope helpful ence—with the notation: "I investigation com- DOE's administrative you anything you. us know if need Please let plete. The circuit court found Gordon’s bias else.” she further reflected in a memorandum sent (Norton’s Norton, action on Lawrence Norton representa- [DOE] Moore HSTA tive), postponed until attorney, [criminal] the outcome and Norton’s Clifford Hunt. trial[,] which is scheduled this month.” In
Notes
notes adequately trained deal these issues.” discipline” upon school administered ill-behav- Although testimony, Schlosser’s both at trial is, ing part, "promote students and main- pretrial deposition, supports in his the circuit tain a safe and secure educational environ- finding, parties court’s neither the court nor the ment[.]” any policy. reflecting cite to document this Finally, we note that the record in this case point, particular regard More to the and with incident, investigation does include documentation to tire DOE’s of the T.Y. policies regulations during appeal that were in effect copy the record on contains a of the State Code, employment Norton’s with the DOE and that of Hawaii's “School Certified Personnel (5000 Series).” Regulations akin those Regu- are Miller, that this court set forth Policies and However, supra assuming note 41. apparently No. lation which was regulations polices Mokapu that such were still in effect the time Norton molested the students, effect, they clearly provides employees "[certified we note that reflected that demoted, may only suspended pay, responsibility without dis- the DOE bears not students, charged disciplined purpose supervise otherwise su- and/or but Regulation proper pervising reasonably [DOE] for cause.” No. 5110- students is to ensure their safety "imposing suspension relates to with- and welfare while are under teachers,” Indeed, pay imposes upon principal out and care. Sosa's testi- DOE’s control mony appropriate supervisor ”[r]esponsibil- present or an it[y,] matter further reflects concerns, upon receipt complaints, purpose investigation ... primary of his Nor- into etc., problems, thorough safety [to] conduct[ ] a investi- ton’s misconduct was ensure end, gation princi- matter.” into the To this students. Norton’s (2) Norton”; par- prudent reasonable allegations against “ade- “what is T.Y.’s including is marked out supervise employees, ticular circumstances quately (citations inju- teachers, position to cause range danger.” who are in a foreseeable students”; (some adequate omitted) ry “provide train- brackets added some in appropriate is- ing original). to its administrators This court has observed that sues, methodology proper such as the “necessarily [d]anger in context in- investigations, pe- conducting administrative recognizable danger, based volves conducting dophilia, procedures and the facts, existing knowledge of the some may who be victims [ ] interviews students may pos- harm some reasonable belief that teacher”; by a of sexual molestation follow,” sibly of what The test