*1
STATE of Wallace, Appellants-Appellants/Cross-Appellees, and Rob v
. HOSHIJO, Director,
William D. Executive complaint
on behalf filed Eric
WHITE, Rights and the Civil Commis
sion, Hawaii, Appellees-Appel State of
lees/Cross-Appellants.
No. 22379.
Supreme Court of Hawai'i.
Sept. *2 appeal
novo review. On the circuit decision, pursuant 368- court’s HRS 16(d) (1993), applies this court the same stan- applicable appeals all dard review other *3 Accordingly, from the circuit court. the cir- findings cuit court’s of fact are to be re- standard, clearly viewed erroneous its and conclusions of law are be reviewed wrong right de novo under the standard. of fact findings Inasmuch as the of the Cir- (the court) cuit Court of First Circuit1 supported by are record and are not erroneous, clearly and the conclusions of law (1) wrong, are not we hold that Rob Wallace (Wallace) acting as an of the Uni- (2) (UH), versity of Hawai'i Wallace was acting within of his when Suzuki, Attorney A. Deputy Russell Gener- (Com- at Eric he directed a racial slur White al, Hawai'i, briefs, Appel- State of on the (3) plainant), and Wallace’s utterances were lant-Appellant University Hawai'i State of protected by not First Amendment. Ac- Hawai'i. cordingly, February the court’s 1999 or- (Hawai'i Rights John Ishihara Civil Com- affirming part reversing part in and in der mission), Honolulu, briefs, for Appel- on the HCRC, final decision of the and its Feb- lees-Appellees/Cross-Appellants William D. 26,1999 ruary judgment are affirmed. Hoshijo Rights and Hawai'i Civil Commis- sion. I. Watts), Kemper (Kemper
Edward C. & Honolulu, briefs, on the for Amicus Curiae - - Appellant Appellee2 Appellant/Cross The American of Ha- Civil Liberties Union Hawai'i, UH, (Appellant), State seeks re wai'i Foundation. order,3 February view the court’s affirming reversing part JJ., LEVINSON, ACOBA, and Circuit final Both decision of the HCRC.4 AUGUST, Judge Assigned Reason of court, appeal on HCRC5 and the NAKAYAMA,J., Vacancy; Dissenting, HCRC, Appellant Appellees- liable to held MOON, C.J., with whom Joins. Appellees/Cross-Appellants William D. Hoshijo, Director of the Executive ACOBA, Opinion of the Court J. appearing Complainant, HCRC on behalf reviewing (collectively Appellees) We hold when decision of and the HCRC Rights pur the Hawai'i Civil Commission discrimination accommodations (HCRC) (1993) review, pursuant §§ the standard of suant HRS 489-3 489-9 (HRS) 368-16(a) (1993). Hawai'i Revised The court the HCRC’s Statutes reversed (1993), UH, apply, finding employee for the circuit court to is de an Wallace was Weil, Suyat Then-chairperson 1. The Honorable B. now Eden 4. Eden E. Claudio Commis- Hifo, Tasaka, presided over court matter. Allicyn Faye Kennedy, the circuit sioners Hikida Law, Harry presided Jack Yee over the mat- initially Appellant-Appel- 2. Wallace ter. lant/Cross-Appellee, was dismissed from this September appeal stipulation filed 97-001-PA-R, State, Hoshijo See No. Final Order(Haw. Rights Decision and Civ. Comm. 98-2810-06, Hoshijo, No. 3. See State Civ. Or- 1999), Feb. available Affirming Reversing der in Part Final Part and Http:/Avww.state.hi.us/hcrc/cases/Whitefin.txt. Rights Decision of Hawai'i Civil Commission 24, 1999), (Haw. 1st Cir.Ct. Feb. available at Http://www.state.hi.us/hcrc/casesAVhite.txt. requires they finding that he was be student athletes but affirmed the students, carry full-time at least twelve institution. work, grade and maintain a credits of course court, Appellant appeal to this contends On . average point of at least 2.0. holding court that Wal- that the erred agen- within lace was salary. managers paid Student are dealing spectators, cy relationship when managers given As student are enjoy did not First Amend- and are not identification numbers rights protective of words which ment6 payroll. They also not included on UH’s subject alleged dis- leave, matter of the were provided benefits such as annual work- cross-appealed, Appellees crimination.7 compensation, or health insurance. Tax- ers’ ruling claiming that the court erred in scholarship from the es are not withheld *4 acting as an and not monies awarded. employee. Because we affirm the managers perform various func- Student decision, Appel- not address court’s we need They assist tions for the basketball team. argument cross-appeal.8 on lees’ coaches, prepare gym practice, the for and equipment. During regular issue the season II. they up drinking equipment in set water and Arena, equipment maintain lock- the the and following facts are not The relevant rooms, wipe during floor (Coach) er the basketball Riley dispute. is the Coach games, pack players’ bags, travel and the team. The head coach of the UH basketball accompany campus games. (Arena) the team to off Special Events Arena is owned UH gathering equip- Post-season duties include managed by Department by and its attending post-season (Athletic ment and workouts. Intercollegiate Depart- Athletics ment). manager of Wallace was a student managers and Student athletes student are basketball team. Wallace is Coach’s son. the required participate and also attend events, raising golf team had two student man- various fund such as tour-
The basketball performed agers who various functions naments and dinner auctions and to socialize managers public at these functions. The Ath- basketball team. Student are the Department permits managers by coach team letic student selected the of the basketball by speak spectators and of the supervised and the team’s coaches. members practices games.9 managers public at team The These student receive athletic waivers, express language scholarships, “[t]he which include tuition court found (Hand- loans, housing Handbook money [UH Student-Athlete book book) scholarship and the facts under de novo review ] meals. The funds are held anticipated general scholarship account and are demonstrate that was dur- UH’s Department. ing game, [UH] Athletic basketball Wallace would administered managers and that university considers student have contact such interest, (2) government the.government Amendment to the United States Con- if inter- 6. The First "Congress suppressing expression, provides est is not in free shall make no stitution speech religion, if the incidental respecting restriction is law an establishment of thereof; greater necessary promote govern- abridg- than prohibiting the free exercise speech, press; ment interest. ing or die or of freedom assemble, right people peaceably and to griev- petition die Government for a redress of holding as we affirm the court's Inasmuch added). (Emphasis ances.” UH, Wallace was agency relationship, within the we specifically need not decide whether Wallace was 30, 1999, American 7. On or about December also an of UH. (ACLU) filed an Civil Liberties Union amicus regarding curiae brief First Amendment issues chapter argued relating disputes expected to HRS 489. The ACLU Appellant that Wallace was public during games. Amendment is not a barrier to that the First to have contact with the discriminatory holding infra, findings explained, liable for Wallace’s fact UIT As we review the clearly under the the circuit court under the erroneous acts because a law is constitutional promotes a substantial standard. First Amendment if it contact would be within yelled the team and comments about agent.”10 as an players during referees opposing half game. game’s first of the score was manager’s A regulated student conduct is close, very half, Complain- in the second Handbook, given which each ant became frustrated as he believed manager student beginning coaches were mistaken in them decisions. year, school and reviewed with them the Department, then-Director the Athletics Complainant yelled following at the (Yoshida). Hugh Yoshida The Handbook ex- coaching staff: “You’re a dinosaur coach!” plains that student athletes and student man- blowing “You’re it!” “You don’t know what agers special responsibil- “have interests and you “Stupid are doing!” “Play your move!” apply ities do not to other students.” It Woody bench!” “Put [Woodrow Moore] in!” declares that such “represent[ students ] the gotta Woody, “You Woody use can do it!” University of Hawai'i people and all the “You players!” “Play can’t coach talented Hawai‘i[,]” and, they “will inbe your players!” Complainant’s best state- ‘public eye’ personal and [them] conduct ments point, irritated At Wal- Wallace. one favorably should reflect [them- (Sheriff), lace notified Rich Sheriff the Arena selves, University.” them] team and the The manager, Complainant, about but Sheriff did requires “sportsmanlike” Handbook conduct *5 nothing opinion Complainant’s in his because and “[u]sing declares that inap- obscene or remarks were not offensive. propriate officials, language gestures opponents, spectators” team members or will During two game, the last of the minutes managers not like, be tolerated. Student Complainant yelled something re- “You quired to abide pack your bags Code Conduct go already!” should and (Code) in the outlined Handbook. enraged Wallace became and turned toward Complainant yelled, up you and f[* “Shut A violation of the Code be considered :!']king nigger! hearing your I’m tired of major a minor or example, violation. For your your shit! Shut mouth or I’ll kick ass!” directing spectator a racial slim toward a Complainant responded, yeah, punk, “Oh prohibited by the punishable Code and is as a try it! come over and You me all see minor Minor violation. violations are disci- time, problem?” what’s the Wallace then plined by head coach and include Complainant moved to within a few feet of temporary suspension from the team. Vio- shouted, up, nigger and “Just shut or I’ll kick behavior, activity, drug lent criminal use retorted, your yeah, ass!” Complainant “Oh major violations, and, are considered as you arid point, who At this the assis else!” immediately suspend head coach must Primas, manager, tant Arena Adam inter manager athlete or student student vened, and left for room. Wallace the locker refer the matter the Athletic Director for However, disciplinary further action. left, Complainant After Wallace turned to scholarship can if a rescinded student security personnel the boosters11 and around quits, academically ineligible, becomes shouted, you him and “Did what hear he major commits misconduct. you called me? Did hear that?” Coach did personally exchange, not but hear the III. Complainant informed that and Wallace were February Complain- arguing. Complainant On or about Coach went to where game ant sitting Complainant, attended a UH at his basketball the was and with back to fan, stated, “Eric, you An Complainant please easy Arena. avid sat it near could take on opinion, authority scope simply In the HCRC side the "[t]he it stated of his because of manager try- Commission believes that a student ing language he used.” quiet spectator down a loud would be acting things within the to do 11. The booster club consists of members non-racist, to assist team if done in a community support the team who UH basketball non-threatening manner.” It then ruled that support and hold fund-raisers and events in Wallace's conduct was within ployment of em- the team. "Wallace's actions do not fall out- Complainant Complainant, only realizing told that he “lost it” my then Wallace son?” son, hearing Complainant’s comments after responded, that Wallace was Coach’s word, apologized. Complainant told “Coach, your when son uses ‘N’ too,” he lost it but that he did not your going “kind of longer I’m to break he’s no son. slur, like not want to the racial and did hear respond. punk ass.” Coach did not again. Complainant then shook hands shortly game ended thereafter. Wallace, him, hugged with and shook hands incident Someone notified Sheriff and his wife. Coach demanded, Complainant went to and he Complainant Yoshida drove home after the doing?” you hell were Com- “[W]hat meeting. Complainant told Yoshida that security plainant then told and a Sheriff apologized, that he undei'stood Wallace had “nig- called him guard Wallace had happened, partly what had and that he was (hereinafter slur,” “racial con- ger” unless point, at At this fault. Yoshida believed ev- quotation) within a that he tained direct erything and decided had been resolved complaint. security make wanted to impose discipline to investigate further or hearing a racial guard denied Wallace use night, Complainant That had a Wallace. dif- Complainant told a com- slur. Sheriff file sleeping stayed up ficult late think- time Department Police plaint Honolulu ing about incident. (HPD). Complainant’s told Some friends security guard and the leave Sheriff day practice, at Coach The next basketball they would situation. in- handle the Sheriff the team that had informed used they formed Yoshida of the incident both spectator racial toward a and that slur Wal- spectator questioned sitting at the area apologize lace wanted to to the team for his spectator time of the incident. The de- practice actions. Wallace hearing a racial Yo- nied Wallace use slur. day. pack gear did travel He team’s Wallace, approached shida then and Wallace trip, accompany them road did not *6 slur, apologized to the racial and for admitted manager’s it team as was the other student actions. his turn to travel.
Complainant left and 19, the Arena called the evening February On or about the 1995, parking responded HPD from the lot. HPD Complainant telephone call received reported Complainant to the scene and from an African American member of the HPD that Complain- incident. determined the matter player basketball team. The told (Wilson) civil in players was nature. Artie Wilson ant African that some American were Complainant told upset by learned incident and racial Wallace’s use of the slur. try arrange meeting They would happy that he to to were not that Wallace had not things up.” “patch then disciplined, especially Wilson asked Coach been because Afri- Complainant. to and Yoshida meet with Yo- player suspended can American had been Complainant told that he to using profanity shida wanted at a coach. He also informed thing” “settle this and “talk over as men.” that Complainant Coach had instructed the Coach, Complainant then with players speak Complainant. met Coach’s to to wife, and Wallace in office. Sheriffs Complainant upset became more and be- a waving punishment made motion with his hand that was warranted.
Coach
lieved
On
Yoshida,
indicating
February
Complainant
towards
Yoshida that
met with
needed,
airport
him
he was
and Coach shut the door Coach at the
and advised
that he
rights
Complainant
to the office.
felt intimidated
his civil
violated and
believed
were
being
and
alone with
that it was unfair
had done noth-
uncomfortable
Coach’s
Coach
family.
ing.
suspend-
explained
Complain-
requested
Coach
then
He
him example
ant that
actions were that of a son
ed “to make
for the African
father,
protecting
wrong.
responded
that it
was
Americans on
team.” Coach
”
See,
Corp.,
expressive
e.g.,
bigotry’
(quoting
F.3d
racial
Swinton
Potomac
hatred and
(9th Cir.2001)
Dictionary
(stating
Collegiate
the word
rriam-Webster's
Me
"
(10th
denied,
1993))),
"nigger”
'perhaps
most
and
ed.
cert.
535 U.S.
offensive
(2002).
inflammatory
English,
racial slur in
... a word
S.Ct.
Complainant next met with Yoshida and against asked Yoshida to take action Wallace. August Complainant On about Yoshida thought stated that he the matter complaint filed a A HCRC. contest resolved, had been disciplinary and no action held, healing ed case after which the imposed, had been but that he would discuss hearings findings examiner13 made fact the matter with Coach. and of law 14. conclusions The examiner con cluded, alia, Yoshida with inter that Wallace was not an they conferred Coach UH, agreed immediately but was an suspend Wallace. On and, 23, 1995, February theory about UH was on a Yoshida in- liable respondeat superior, and Wallace suspension. formed Wallace of the himself Yoshida personally liable. The recom also asked Primas and Sheriff to submit writ- examiner (1) following penalties: reports compen mended the regarding ten the incident. Yoshida satory $10,000 stated, damages Complainant Complainant then called “Your $10,000 from UH rights jointly, civil if and Wallace any have been violated ... it’s UH;15 consolation, penalties civil against suspend- ha[s] $500 been Wallace, UH;16 $1,000 against suspended ed.” Wallace was remain- season, equitable various relief. der the 1994-1995 but retained his year. scholarship athletic for that school parties timely exceptions filed written incident, About a requested after argument week Primas oral before the staff, with argument,17 met Arena discussed inci- HCRC. oral After HCRC dent, every- February instructed the staff “treat issued final decision on body respect” adopted and to calm and hearing remain most of the HCRC professional recommendations, in such situations. As of at agreeing least examiner’s December UH had not held Wallace was an within the coaches, training authority, for its ath- deciding sessions student but also *7 Hearings Wang provides Livia penal- 13. was the HCRC Examin- for 16. HRS 489-8 civil presided hearing. who er over tire contested case ties as follows: Wang Hearing Finding submitted the Examiner’s person It shall be unlawful for a to discrimi- Fact, of of Conclusion Law and Recommended unfairly public Any in nate accommodations. February Order on or about 1998. association, firm, person, company, corpo- or chapter ration violates shall who this be fined State, 97-001-PA-R, Hoshijo 14. See Doc. No. $500 a nor [than] sum of not less more than Fact, Hearing Finding Examiner’s of Conclu 10,000 violation, $ for each which sum shall be (Haw. sions Law and Recommended Order by brought civil collected in a action the attor- 2, 1998), Rights February Civ. Comm. available ney general rights the civil commission on Http://www.state.hi.us/hcrc/cases/Whitedra.txt. penalties provided behalf State. The of the in this section be to the shall cumulative remedies 368-17(a) (1993) provides compen- HRS for penalties available under all laws this satory damages part, and in relevant states as day chap- State. this Each violation under follows: separate ter shall be a violation. (Brackets original.) (a) by The remedies ordered the commission chapter or the this court under include argument by 17. Oral was heard the commission compensatory punitive damages legal and and 3, 1998, April on or relief, about and Commissioners equitable including, and but limited Law, Tasaka, Kennedy, present were and Yee to: and the Final and took Decision Order February Chairperson Suyat filed on Payment complainant damages to the argument, by was for the oral unavailable read injury for an or loss caused violation 489, 515, tape recording chapters pari chapter the and listened to a of 378, I of submissions chapter, including argument, participated of the or this reason- oral the attorney's fee[.] able decision. ... would with employee. ed that Wallace have contact Wallace was a UH The HCRC public thus compensatory during games dam- the basketball increased UH’s share $10,000 $20,000, ages agent University.” in addi- was an It contends owed $10,000 jointly eye that was in public tion to the UH owed while Wallace timely appealed Appellant public, have contact with he Wallace. certain final to the court. As was to focus all his attention on the team HCRC’s decision18 Also, mentioned, during game. only appropriate the court affirmed the con- HCRC’s decision, except public tact with final reversed as to the was authorized. finding employee an that was Wallace respect With to the First is- Amendment UH, ruling employee indicia of “[t]he sue, findings following court made the present under status are the facts be- and conclusions: scholarship cause Wallace received conclusion that was [c]ourt’s Wallace performed work order maintain the acting agent an within of his scholarship.” authority contrary claim means to his “Appellant[ ] The court found that con- private acting not a Wallace was individual during argument, ceded oral and the [c]ourt entirely private capacity, public in a but a review, agree[d] on de novo was purposes for ' an at the time of U.H. the incident.” Analysis.... First Amendment following findings It also made con- [cjomt concludes Wallace’s use of respect clusions with to Wallace within did, “nigger” word not involve a matter of agent: Therefore, spo- concern. the wards expected U.H. that Wallace would have by ... [Complainant] ken Wallace to public. gave contact with U.H. Wal- February were not entitled to scholarship working. lace athletic Tims, protection. First Amendment as a ... governed [was] behavior law, matter the ... actions HCRC’s ... Handbook. The Handbook has prohibited were not Amend- the First governing specta- entries interaction with ment, and Wallace is liable his con- athletes, recognizes tors and includ- duct. ing managers, ... would [student] added.) (Emphasis public eye. pro- [The Handbook] Appellant disputes findings and the above inappropriate hibits language obscene and argues that act- conclusions and undisputed It athletes. ing private individual speech his suspended a fact that [c]ourt finds as U.H. protected under First Amendment. Wallace for toward ... [Com- his conduct
plainant] because of violation of the V. express language
Handbook. The in the Handbook and the under de novo facts level, ap At the circuit court there review anticipat- demonstrate it was *8 peal's question a with be reference to HRS during game, ed that a U.H. basketball 368-16(a) (1993) §§ 14(g) and the 91— pub- Wallace woidd contact have with the by applied standard of review be the cir lic and that such contact would be within appeal cuit court on an from a of the decision authority agent. as an of See, Islandair, e.g., HCRC. Aloha v. Inc. Thus, the concludes that the inci- [c]ourt 00-1-3779-12(EEH), Hoshijo, Civ. No. 18, 1995, February dent on was within the (Haw.Cir.Ct. WL *4 August authority agent. as an of 2001) (finding specific of language “that the added.) (Emphasis 368-16(a) § requiring review H.R.S. de novo
Appellant alleges general that the court in would control of language erred over the findings “expect- § 14(g)[,]” applying its and conclusions H.R.S. both stan 91— 368-16(a) may thirty days § provides HRS within ob- relevant commission complainant respondent "[a] dial and a shall tain circuit an order of enforcement from the right appeal have from a a of final order of the court....” .,. commission, appeal i]f an is not taken [but
SIS (1) decision); Hoshijo, dards to its In State Civ. violation of constitutional or statu- 98-2810-06, Affirming No. in Part Order tory provisions; or Reversing in Part Final Decision of Hawaii (2) statutory authority of excess (Haw. Rights Civil at 1 Commission 1st Cir. jurisdiction agency; or of the or 24, 1999)19(finding Ct. Feb. “that there is an procedure; Made unlawful or apparent conflict between the standard in law; by Affected other error of or (de review) § H.R.S. novo 16[a] for re S68— (5) Clearly erroneous in view the reli- viewing final decisions of the [HCRC] and of able, probative, and substantial evi- § the standard 91-14(g) contained H.R.S. record; dence on the whole or reviewing agency appeals[,]” applying decision). both standards its We address (6) A'bitrary, capricious, or charac- question clarify proper standard of terized abuse of discretion or review to be utilized the circuit court. clearly unwarranted of exercise dis- 368-16(a) cretion. § HRS deals HCRC, provides as follows: added.) (Emphasis This court has stated (a) complainant A respondent a regard agency review of an decision right shall a appeal have from a final that, commission, order of including cease 91-14(g), [u]nder HRS conclusions of and desist orders and refusals to issue (1), law are reviewable under subsections charges in the circuit court for the circuit (2), (4); questions regarding procedur alleged which the violation occurred or (3); al defects findings under subsection person against where the whom the com- (5); agency’s fact under subsection and an filed, resides, plaint is person’s or has the (6). exercise discretion under subsection principal place of appeal business. An Accordingly, reviewing court will re the circuit court shall revieived before agency’s finding verse an it con of fact if de novo. If an appeal is not taken within agency finding clearly cludes such thirty days appeal- after an the service of reliable, proba erroneous view the commission, able order the commis- tive, and substantial evidence on the ivhole sion obtain order for the enforce- § 91-14(g)(5). record. HRS On the other ment the order from circuit court hand, agency’s conclusions law are jurisdiction appeal. that has freely reviewable. added.) (Emphasis Dictionary Black’s Law Akiba, 305, 310, Hardin v. 84 Hawai'i (6th ed.1990) defines “de novo” as fol (1997) (citations omitted). P.2d “Anew; afresh; lows: By second time.” Thus, 368-16(a), according to HRS the cir illustration, way reviewing it is “as if the perform cuit court is to a de of a novo review and, judicial court is the front-line HCRC; however, decision under HRS therefore, no accord[s] deference the lower § 91-14(g), reviewing applies court a clear Navas, courts’ determinations.” State ly findings erroneous standard to the of fact (1996). Hawai'i 913 P.2d agency, and de novo review of its § 91-14(g) pertains appeals HRS right wrong conclusions of law under agencies generally pro administrative standard. vides follows: “[wjhere This eoui't has (g) Upon stated review the record the court ‘plainly there is irreconcilable’ conflict agency affirm be the decision of the general specific tween and a statute con remand the case with instructions for fur- *9 matter, cerning subject specific same proceedings; ther or it the the reverse or modify will be favored.... sim [W]here the decision and order if the statutes the sub- ply rights petitioners may overlap application, stantial in will have their effect be prejudiced given possible, repeal by impli been because the to both if administrative conclusions, decisions, findings, Voluntary or orders cation is disfavored.” v. Metcalf Hawai'i, Employees’ are: Ben. Ass’n 99 Ha supra 19. See note 3.
316
53, 59,
823,
(quoting
according
wai'i
52 P.3d
830
without
deference to the Commis-
20
Takeuchi,
487,
46, 53,
Rep.
in
Wong v.
88 Hawai'i
961 sion.”
Sen.
No.
Stand. Comm.
Journal,
611, 618,
Apparently,
at
P.2d
reconsideration denied
1991 Senate
Vallesteros,
concerns,
295,
legislature
(quoting
v.
84 Hawai'i
a result of such
State
368-16(a).
303,
632, 640,
rejected
§
933 P.2d
reconsideration de
the amendment to HRS
nied,
(1997))).
496,
Hence,
in
84 Hawai'i
provisions for de novo review the Commis- VI. sion’s decisions circuit court.” Sen. 368-16(a), In line with HRS HRS Rep. Stand. Comm. No. 1991 Senate 368-16(d), specifically which also relates to Journal, proposing at 951. The reason for HCRC, provides judg final “[t]he change align in the standard of review was to circuit ment decree court shall be agencies purposes with other the HCRC subject by appeal review the same of review: appeals manner and form as other from that De novo review of the Commission’s deter court, Generally, appeal court.” on to this subjects minations the Commission to weight credibility “[t]he of evidence is disparate standards from the standards of circuit court to determine its agencies subject which other state are not findings of fact will not be set aside unless novo review. de Your Committee has they clearly erroneous.” Ha Beneficial by amending amended this measure Sec wai'i, 159, 167, Casey, Inc. v. 98 Hawai'i 45 368-16, HRS, tion to eliminate de novo (citing Gallagher, P.3d 65 Welton subject appeals review and to have 528, 530, (1982); Haw. 654 P.2d Chapter administrative review. Co., Village Molokoa Dev. Ltd. v. Kauai Co., 582, 592, Rep. Hse. Stand. Comm. No. 1991 Elec. Haw. 593 P.2d Journal, added). (2002). (1979)), Also, (emphasis House at 1297 reconsideration denied But, amendment, opposition to the this court reviews the circuit court’s conclu expressed prema- right that it “concern sions of law de novo under the procedural safeguard wrong ture eliminate the standard. Gonsalves v. Nissan Motor Hawai'i, Ltd., 149, 159, provided by Corp. de novo review of the 100 Hawai'i Commis- decision, permits (citing sion’s which Support the courts 58 P.3d Child Roe, legal Agency consider both evidence and conclusions 96 Hawai'i Enforcement amendment, opponent Representa- eliminating 20. One ber of Commerce testified that Taniguchi, following speech: tive made the de novo review is a bad idea. The Commission speak against proposed I out bill as cur- seeks to insulate itself from a court review rently unnecessary, pre- written it is because replacing Chapter de novo review with 91 re- my mature and unfair in estimation. It will Chapter view. 91 review I feel alone is not only protection employees eliminate the good enough. Rights The Civil Commission is employers have to have a court of law review power State Commission with drastic Rights the factual determinations of the Civil compensatory punitive damages, to award Commission de novo. bill, yet exclusively, according relies to this hearing process. a streamlined enacted, Currently originally Chapter and as by Representative Taniguchi in Comment requires de novo review. Both the Ha- *10 Journal, and the Cham- wai'i Women’s Political Caucus House at 516.
317
(Dec.
60,
(2001)),
18,
However,
§
§
70
in
25 P.3d
amended
489-3.
HRS
489-8 states
2002),
denied,
1,
101
for a
“[i]t
reconsideration
Hawai‘i
relevant
shall be unlawful
(2002).
person
unfairly
public
Act of
et
principal
agent
agent
to the
that the
...,
“person”
may
by
[Title II] does
refer
or con
act
express
be created
However,
implied
tain a
agreement
related definition.
the con
or
the conduct
of
”
gressional report
person
parties
surrounding
indicates
who
or
circumstances.’
“owner,
lessee,
operator,
is an
agent, or em
Farm
&
v.
State
Fire
Cas. Co.
Rent-
Pacific
All, Inc.,
325,
ployee”
public
subject
315,
753,
aof
accommodation
90 Hawai'i
978 P.2d
omitted)
added)
liability.
914,
H.R.Rep.
Cong.,
(emphasis
(emphasis
No.
88th
763
(1964),
Mark,
515-16,
2d
Cong.
(quoting
Sess.
U.S.Code
& Ad
Cho
73
at
Haw.
836
(internal
Construing
marks,
min.News 1964 at 2856.
at
quotation
HRS P.2d
1061-62
489,
citations,
chapter
liberally
omitted)),
which
tois
“be
con
and brackets
reconsider
489-1(b)
strued[,]”
(1993),
315,
denied,
§
light
HRS
of
ation
90 Hawai'i
through
or apparent authority.”
actual
responsibilities
Cho
and duties
Food,
Int’l,
Mark
regulated by
Handbook,
Oriental
Ltd. v. K K&
73 were
which ex
509, 515,
1057,
Haw.
pressly gave
836 P.2d
authority
perform
(citing
Fargo
Wells
Bus. Credit v. Ben Ko various duties
the basketball
team.
Inc.,
940,
(5th
zloff,
Thus,
Cir.),
695 F.2d
944-45
agency
relationship between UH
denied,
818,
cert.
U.S.
S.Ct.
78 and
Wallace was created
virtue of the
(1983); Restatement,
§§
L.Ed.2d
supra,
agreement contained,
least,
express
at the
27).
allegations
fact,
There have been no
the Handbook.
dispute
UH does not
and,
regarding apparent authority
such,
manager,
that as a student
“Wallace acted as
“
we do not
consider it.
‘Actual
specific
purp
certain
only if
exists
there
has been manifestation
supported by
These matters are
oses.”
legislature's
the
lu
understanding
reference.
authority[.]”
Furukawa v. Honolu
reasonable
Zoological Soc'y,
Hawai'i
P.2d
undisputed
Dissent at
76 P.3d at
It is
denied,
reconsideration
85 Hawai'i
managers
required
that student
were
to interact
(1997).
319 and, record, subject liability as affirm per we sons is to such third ” that, Restatement, in finding capacity court’s his as (Quoting student for fraud.’ sons su 570.)), (1968). manager, Wallace an agent pra, reheating § of UH.27 261 at denied The also “[a]n Restatement notes that act indicated, previously argues As UH scope within employment be of al it is not liable for Wallace’s actions though consciously criminal or tortious.” Re acting scope because Wallace was outside the statement, 231, 512; § supra, at see also authority. UH is that it is correct Lucas, 482, 50 at 442 at Haw. P.2d 463 ipso for simply liable actions facto Restatement, (quoting supra, approv § 231 status, agency generally, virtue of his for ingly). liability respon- “Vicarious under the principal only a vicariously can be held liable superior ordinarily requires deat doctrine for of an agent theory the actions under the relationship employment some kind of or oth respondeat superior. Restatement, of See arrangement consensual which er under one 219(1), supra, § at 481. agrees person act under another’s con Dobbs, Torts, trol.” Dan B. The Law B. of 335, (2000) (footnote omitted) (em § at 910 species and, “A a principal master is of added). above, phasis As mentioned Coach Restatement, species agent.” servant is a supervisor. was Wallace’s Handbook a., supra, § 2 cmt. at 13. It is well estab regulated Wallace’s conduct as student subject liability lished master is “[a] manager. subject Wallace was thus to con his [or the torts of commit her] servants trol UH. acting scope ted employ while of their Restatement, 219(1), supra, § ment.” at 481. But, employee “[w]hether [an] Wong-Leong Indep. See v. Hawaiian Refin agent] acting scope is within [or [or his Inc., 433, 438, 538, ery, 76 Hawai'i 879 P.2d employment agency relationship] her] [or is a (1994) (“Under respondeat 543 theory question light of fact to be in the determinéd superior, employer may an liable for be particular of the each case[.]” evidence negligent employees agents] acts of its [or Henderson, 393, 72 Haw. at P.2d at 89 819 that occur scope employ within the of then Assocs., (quoting Kang v. Charles Pankow 5 authority, (citing ment]” or Henderson (1984) (in 1, 8, 803, Haw.App. P.2d 675 808 387, Coatings Corp., Haw. 72 Professional quotation ternal marks and citations other 84, (other 391-92, (1991) 819 P.2d 88 citations omitted)). This court has cited the Restate omitted)); Liggett Myers Lucas v. & cf. ment, 228, defining supra, scope at 504 as Co., Haw. Tobacco P.2d authority: 463, (“ ‘A principal puts who servant or position other which of a within enables the Conduct servant is [servant], if, apparently acting scope employment[28 authority] within while authority, per to commit a fraud third if: Keeton, finding supported by (citing this of fact is the record and W. L.Ed.2d Keeton, clearly Dobbs, Owen, we it to cannot find be erroneous. The D. R. & D. Prosser & broadly (5th dissent agent states that "Wallace was not an Keeton on Law Torts at 505 “ yelled However, of UH at time he racial slurs at ed.1984)). likely 'it that a is less [Complainant].” Dissent 76 P.3d at at 567. properly willful be in the tort will be held to However, conceded, “Wallace acted liability employment course of and that the specific purposes.” of UH for certain naturally torts will be more master for such ” question he thus becomes whether Mechem, (citing limited.’ Id. F. Outlines within the of that at the time he (P. Agency, § Law at 266 Mechem 4th
made the racial slurs. ed.1952)). alleged party 27. Neither has that Wallace’s ac- Restatement, word 'em- "[t]he 28. As used in the However, tions constituted intentional tort. subject ployment' employ] [or means the matter employer may we liable note that an "for the relationship as to which master and servant employee[ as] intentional [its] torts law Restatement, a., supra, § cmt. at liability employee’s exists.” imposes 'pur- now pose, where the Therefore, misguided, wholly an individual not be an need however is or in . ” liability superior Burlington respondeat to at- further the In- master’s business.' Ellerth, "employment” Inc. tach. The term is limited to a dus. 524 U.S. S.Ct. (a) officials, guage kind that gestures opponents, [or is of the he she] employed spectators.” perform; team members This admoni- supports tion (b) the Handbook the conclusion substantially it occurs within the au- act, forbidden, although “[a]n or done limits; space thorized time and manner, may a forbidden be within the (c) part, by it is actuated least Restatement, *13 employment.” supra, § purpose master[.] to serve the at 511. a Conduct of servant is not within Second, doubt, without a Wallace’s scope employment authority] the if it [or conduct within occurred authorized time authorized, is in kind from different that space required limits. was Wallace to attend beyond far space the authorized time or game the UH basketball as of his duties. limits, by or purpose too little actuated a to Arena, game This at was the held and Wal serve the master. during lace sat on bench game. the team the 438, Wong-Leong, at at 76 Hawai'i 879 P.2d during games, Wallace was to assist the team Henderson, 391-92, (quoting 72 543 Haw. at and this during game. incident occurred the 88) (citing Restatement, 819 P.2d at supra, The incident on occurred while Wallace was 504)) (brackets omitted). Applying at Thus, duty place required at a was he to be. test, the above-mentioned Wallace’s actions his conduct within occurred authorized the scope authority.29 fell within of his the space time and limits. First, Wallace’s conduct was the Third, kind perform. that he was authorized to while the court’s decision did Wallace, manager, a required specifically as student was not address whether Wallace’s games, to by attend purpose “[w]ork the bench conduct was actuated to serve during game[,]” UH, the [basketball] and to assist that HCRC found at Wallace was the team. It was game foreseeable that Wallace to assist the team. ac Wallace’s would public have some interaction with tion at a spectator was was directed who games acting team, at capacity. heckling while this This the coach conduct which public by might reasonably perceived interfering interaction was described asUH as part of Wallace’s duties. The with Handbook thus or concentration morale of the managers envisioned that players. student would have coaches or Under the circum and, stances, contact spectators, as be concluded that Wallace acted, managers expressly prohibited part, student were at purpose least “[u]sing inappropriate from or benefitting obscene lan- UH. which, example, situation in agent UH is Wallace’s must be considered an under both employer employee. is UH's circumstances. Restatement, notes, supra, § at 511 act, forbidden, postulates
29. The dissent although "[a]n for- or done in a manner, may bidden be within the assuming contemplated [e]ven that UH some Obviously, employment.” while the incident spectators, kind of contact with Wallace's con- . n . presented unexpected, in this case was such departure duct any was a considerable from UH, anticipated scenario was as evidenced engaging usual method of in contact with prohibition against in its Handbook spectators quieting the crowd.... It is not “[u]sing common, inappropriate language obscene expected, nor it be would gestures spectators! yell manager up you student ing would "Shut fuck- out, Additionally, points die nigger!” spectator Restatement to a of African American phrase 'scope employment,’ attempt "[s]ince the is descent control a crowd. servants, 325-326, used for the conduct of Dissent at 76 P.3d at the ultimate 568-569. The question infirmity just or not it argument apparent. is whether that the loss of this seems Con- sider, resulting hypothetically, servant's a situation in acts should be con- which Wal- participating golf lace was in a sidered as normal tournament one risks to be borne Consider, Restatement, further, greeter. supra, § UH an the businessf.]” official cmt. a., Here, says player, legislature specifically he to one "Nice shot” and directs instance, player. racial slur at public another made it unlawful discriminate in a analysis, under the dissent's Wallace would be an accommodation. It is foreseeable that dis- such complimented player, when he one but not crimination result from the actions of against public when he used the racial slur a second. servants that work at the accommodation.
321 Cir.1988), (6th McDowell, foregoing, Based the court’s find- v. F.2d record, ings supported by denied, rt. 488 U.S. 109 S.Ct. ce (1989)). support facts the court’s conclusion that Appellant Wal- L.Ed.2d 780 does and, time, identify lace was at the any matter of concern authority. within protected by speech, dis we Therefore, Dambrot, we affirm disposi- the court. Our cern none. at 1187 See F.3d unnecessary tion makes it Appel- (holding to consider “nigger” coach’s use the word an “employ- lees contention Wallace was “relating political, matter of ee.” community”); social or other concern Dep’t Vinci v. Nebraska Correctional Servs.,
IX.
Neb.
N.W.2d
(1997) (holding employee’s
“nigger
use of
Appellant
further
contends
*14
“stupid nigger”
e[*]nt” was not a matter
and,
acting
private person,
was
Wallace
as a
concern).
public
of
such, his
protected by
as
words were
the
First Amendment.
court held that
Wal
Assuming, arguendo,
that Wal
private
not a
lace was
individual and that he
acting
private person,
lace was
as a
Wallace’s
public agent
purposes
awas
of
of
the
speech
fighting
would be characterized as
analysis.
previously
First Amendment
As
protection.
words bereft of First Amendment
“
explained,
and,
Wallace was an
of UH
speech
protected by
‘Whether
is
the first
hence,
acting
private
was not
capacity.
a
amendment
to
United States
Constitu
buy
did not
a
Wallace
ticket
attend the
tion,
applied
as
through
to the states
due
game.
purpose
attending
basketball
His
amendment,
process clause of the fourteenth
perform
game
manag
was to
his student
question
a
freely
is
of law which is
reviewa
”
event,
any
In
speech
er duties.
Doe,
appeal.’
on
ble
In re John
on
Born
protected,
pub
was not
uttered
a
whether
as
5, 1976,
85, 93,
January
Hawai'i
P.2d
76
869
private person.
lic
or as a
1304,
(1994)
1312
(quoting
Chung,
State v.
75
398,
1063,
(1993))
415,
Haw.
862 P.2d
1072
course,
public employee
“a
Of
does not
(brackets
omitted).
citations
other
We
relinquish
rights
First
Amendment
com
statements,
i.e.,
conclude that Wallace’s
public
by
ment on matters of
interest
virtue
up you fucking nigger!”
“Shut
and “[J]ust
government employment.”
of
Connick v.
ass!”,
up nigger,
your
kick
shut
or I’ll
consti
1684,
461
Myers,
103
U.S.
S.Ct.
75
fact,
noted,
fighting
tuted
words.
as
(1983)
Pickering
708
(citing
L.Ed.2d
v. Board
slur,
subject
chap
racial
which is the
of HRS
Educ.,
563,
1731,
391 U.S.
88 S.Ct.
20
of
489,
accompanied by
ter
vio
threats of
(1968)).
811
L.Ed.2d
While Connick dealt
fighting
lence. This court has held that
employees
agents,
and not
we
no
note
by
protected
words are not
the First Amend
relevant difference for First Amendment
ment, and has
as follows:
stated
analysis purposes.
an [agent’s]
‘Whether
speech
public
a
of
addresses matter
concern
There are certain well-defined and narrow-
content, form,
ly
by
speech,
prevention
must be
determined
limited classes of
statement,
given
punishment
and context of a
which
revealed
have
been
never
147-48,
any
at
thought
prob-
the whole record.”
Id.
103
to raise
constitutional
Here,
obscene,
party disputes
S.Ct.
no
lem. These include the lewd and
libelous,
Complain
profane,
insulting
directed
at
the racial slur
and the
surrounding threatening
‘fighting’
ant or that
ivords—those ivhich
their
question
very
injury
were
“The
statements
made.
utterance
or tend
inflict
speech
peace.
whether
touches
matter of
incite an
breach
immediate
law,
concern is one of
to be reviewed
Such
no essential
utterances are
ideas,
Michigan
any exposition
de novo.” Dambrot v.
and. are
such
Central
(6th Cir.1995) (cit
Univ.,
1177,
slight
step
F.3d
social
as a
55
1186
value
to truth that
(6th
Ctr.,
ing
Rahn Drake
F.3d
411
be
them
31
derived
benefit
Cir.1994),
denied,
clearly outiveighed by
cert.
is
515 U.S.
115
social interest
(1995);
morality.
S.Ct.
L.Ed.2d 828
in order
Barnes
Doe,
superior,
majority
at
then
In re
76 Hawai'i
869 P.2d
concludes
John
(brackets, ellipsis points,
emphases
acting
within the
au-
Wallace was
added)
(Second)
omitted)
Chapli
thority
(emphasis
(quoting
on Restatement
based
571-72,
(1958) [hereinafter,
nsky
Hampshire,
Agency
New
U.S.
“Restate-
(1942)
(emphasis
disagree
majority’s
likelihood of violence. It clear was not of this case the facts there yelled racial UH when he shirs at See, e.g., Spivey, likelihood of violence. In re spectator. (“No 345 N.C. 480 S.E.2d generally fact known than that a is more correctly majority cites to follow- ‘nigger’ who calls a black man a white man ing agency: law regarding hearing anger will hurt within his relationship may An agency created *15 provoke him confront black man and often to through apparent authority. actual or Ac- retaliate.”); also, Tay the white man and see “only if authority tual has exists there Metzger, A.2d lor 152 N.J. by principal been a the to manifestation (“The experience being called agent agent the act on his the ‘nigger,’ ‘Jap,’ receiving is ‘spic,’ or ‘kike’ like act, by agent account and consent the to so injury slap face. The is instantane the by express agreement be created III, (Quoting R. ous.” Charles Lawrence implied parties or conduct of the the Thought Legal II New First Frontiers the surrounding Express circumstances.” Hollers Amendment: He Let Him Go: If authority requires actual an oral or written Speech Regulating Campus, Racist on agreement parties between the the 452)). foregoing For Duke L.J. authority principal delegated has reasons, affirm court hold that we agent accepted and that has authorizes the protected by speech was not Wallace’s agent Implied to do certain acts. actual First Amendment. “may necessary authority arise as implication required reasonable to effectu-
X. authority expressly ate con- some other principal.” Accordingly, February the court’s ferred affirming reversing part order Food, Mark Ltd. v. K K Cho Oriental & its Feb- final decision the HCRC and Intern., 509, 515-16, 73 Haw. P.2d ruary 26, judgment final affirmed. (1992) (citations 1061-62 omit- brackets ted). however, majority, out the leaves J., NAKAYAMA, Dissenting Opinion following germane significant language C.J., MOON, with whom Joins. authority: regarding implied actual Where asserted, implied authority is fo- actual “the I words Although find the used Wallace agent’s understanding cus is on the of his I reprehensible, am mindful of this case authority inquiry inasmuch as the relevant is my dispassionate law in a duty apply to believes, reasonably ‘whether the be- Therefore, respectfully I must dis- manner. (includ- principal cause of the conduct of the concludes, majority sent. under the the- ing acquiescence) directly communicated implied authority, express ories of actual him, indirectly principal that the desired gave expressly the handbook because ” him so to act.’ Id. authority perform various duties team, case, majority In this for basketball he was an concludes “expressly theory gave applying respondeat In because the handbook Wal- UH. authority perform lace various Keep dry duties for 9. the floors of sweat and other r team[,]” the basketball wate an.agent he was however, undisputed, It UH. that UH did Keep 10. through- the locker room clean give express authority actual year out the games, control the crowd at basketball Set-up gym 11. visiting teams language neither the in the handbook nor visiting 12. Work with all during teams agreement provided authority. oral such practices them given As express Wallace was not actual Help visiting 13. managers teams’ authority, UH can be held liable for laundry with them inappropriate Wallace’s racial slurs if Wal- Set-up 14. locker rooms in the arena on implied authority lace had the actual to con- game day trol games. the crowd at basketball Wheth- Set-up 15. equipment for both teams on er requires focusing this existed on game day Wallace’s understanding reasonable 16. during game Work on the bench authority something majority that the fails — Keep 17. players’ equipment address. work- ing order at half time focusing on understanding players 18. oranges Give the water authority, possibility is no there that he half time reasonably believed that UH desired him to 19. visiting copy Give the team them control the crowd at games. basketball Wal (VHS) game “job description” lace’s manager as a student provided bags 20. Pack following players he was to do the the travel for the during regular containing equipment : them season1 road trips practice gear Issue uniforms and other trips Travel with the team road practices for season *16 schools, usually days other six Keep log 2. of all equipment issued 22. wake-up all Make calls Sweep 3. prac- all floors two hours before away equipment 23. Put all upon arrival tice time prepare in Honolulu and it for the ready players
4. to Be assist hour one practice next practice before 24. equipment Work with the room man- Set-up gym 5. the arena or the with wa- ager designated tasks equipment and other ter “[wjork express authority to Wallace’s on the 6. Work during prac- with various chills during game” require, bench does not as tice necessary implication, and reasonable Keep 7. players’ equipment proper all Wallace control the crowd at basketball working during practice order clear, games. job descrip- It is from these Keep ready tions, 8. the water filled and to be that Wallace was to focus his attention players,
served making “on the bench” at the sure season, 1.Regular according job Prepare equipment to Wallace's de- 5. water essential scription, was from October 15th-March 14th. workouts during regular This incident occurred season on present every practice 6. Be at February During pre-season, 1995. which present 7. Be at least one hour before and 14th, August-October job one hour after workouts description provided following him with Any express authority golf to assist with the fund- duties: raiser, any authority consequently, implied golf 1. Basketball committee tournament— fundraiser, to interact with the at the help set-up and work different sta- pre-season. sup- limited to The record does not tions port any a reasonable inference of crossover of workouts, equipment preseason 2. Issue authority regular game time this into season including running shoes games. duties to control the crowd at basketball Keep equipment a record of all workouts, Sweep floors for one hour be- fore start time departure It is not their technical needs were met. ble from the kind conduct this perform. reasonable believe extends to authorized him to getting “off the bench” to control the conduct § which Restatement defines when Furthermore, apparent of the crowd. is scope conduct is of the kind within the authority that Wallace understood that employment, generally provides that “[t]o be lay authority, control crowd outside scope employment, within the conduct initially inasmuch as he notified the arena general must as that the same nature manager manager so the arena could authorized, or incidental the conduct au- control As White’s comments. the record is Thus, thorized.” “a servant is authorized to supportive reasonable belief anything reasonably regarded do which is him UH desired to control the specifically incidental to the work directed games, crowd at basketball Wallace did not usually which is with such done connection implied authority actual to do Ac- have so. a; § work.” Restatement 229 comment see cordingly, I would hold that was not (“Con- § also Restatement 230 comment c yelled at of UH the time he racial scope employment duct is not if within the slurs at White. it has no connection with the act which the required perform.”); is Osborne 2. Wallace was not within Lyles, 63 Ohio St.3d 587 N.E.2d scope yelled when he ra- (1992) (“In general, ‘an intentional and spectator. cial slurs at a wilful attack committed em- applying theory respondeat supe- In ployee, spleen his own vent or malevolence case, present majority rior to the cites to against injured person, depar- is a clear provides Restatement which in rele- employment principal ture from his and his part: vant ”) employer responsible is not therefor.’ within Conduct of servant (Citation omitted.). if, employment if: respect With to unauthorized incidental (a) employed it is of the kind he is conduct, provides: Restatement perform; determining whether or not the (b) substantially it occurs within the au- conduct, authorized, although not is never- limits; space thorized time theless so similar to or incidental to the (c) actuated, part, by it is least conduct authorized to be within the master, purpose to serve the employment, following mat- *17 (d) intentionally if force is used the ters of fact be considered: another, against of servant the use force is (a) whether or not the act is one com- unexpectable by the master. servants; monly by such done (2) of a is not within Conduct servant (b) time, place purpose of the the scope employment if it in the of is different act; authorized, beyond from that far kind the (c) previous the relations between the limits, space authorized time too little servant; master and the by purpose actuated to serve master. the (d) extent to which of the the business majority then concludes that Wallace apportioned the master is between differ- scope was within of the be- servants; ent yelling his of racial at a cause action slurs (e) whether or not the act is outside the spectator was the kind he was authorized to or, enterprise of if within the master perform.2 support, majority points For the enterprise, the has not been entrusted that to the handbook concludes UH envi- servant; during sioned interaction basketball (f) games. respectfully disagree, I inasmuch as whether or not the has master reason done; yelling expect racial slurs was considera- such an act will be Wallace, majority’s yelling dispute manager, 2. The conclusion Wallace's is no as a student games required racial slurs occurred within authorized time and was to attend basketball and that addressed, space during game. limits is not inasmuch as there this incident occurred a basketball
325 (holding that (g) similarity quality in act done 855 446 N.W.2d the authorized; manager’s act conduct building outrageous the in scope shooting a tenant was not within the of (h) instrumentality by or not the whether employment, despite manager’s authority the harm is fur- which the done has been Doria, building); protect the Bates v. 150 servant; master nished the to the Ill.App.3d 502 N.E.2d Ill.Dec. (i) departure from the nor- the extent (holding that a sheriffs outra accomplishing an author- mal method geous shooting raping conduct of the result; ized plaintiff scope employ outside the (j) seriously or not the act is whether ment). criminal. Lawrence, In Atlanta Baseball Co. Comments to Restatement 229 indicate (1928), Ga.App. 144 S.E. the “[although an act is a means of accom professional court was faced whether result, plishing an authorized it be done company liable baseball could be held under outrageous in so or whimsical a manner theory respondeat superior the employment.” it is not within the pitcher employed. In actions of a b; § 229 comment see Re Restatement also case, spectators began heckling several (“The c fact that statement 235 comment pitcher game, they at a whom felt re outrageous an act in an is done or abnormal poor showing of the team. sponsible indicating in manner has value that the serv spectators particu in Id. at 351. One perform is ant not actuated intent to said, pitcher.” us lar “Give another Id. business.”); employer’s Restatement Thereafter, pitcher during the field left (“The § 245 f fact comment that the servant proceeded specta game and to attack the outrageous acts or inflicts a manner analyzing respondeat tor. Id. the issue punishment proportion all out of to the ne stated, superior, court cessities of his master’s business is evidence departed from indicating that the servant has leaving pitcher] [the conduct of his employment performing grounds coming place upon the into act.”); Health v. Leisure Hills Grozdanich plain- grandstand, assaulting (D.Minn. Center, Inc., F.Supp.2d tiff, scope of his em- was not within the 1998) (“Naturally, outrageous the the more prosecution ployment, nor his be, employee’s tortious act should the less business, person- master’s but was his own foreseeable, likely it could be described as resenting al affair a real fancied likely employer and the that the could be less from steps “If a servant aside insult. act, required responsibility for to assume shprt business, master’s for however general employer’s busi as a risk time, entirely act to do an disconnected ness.”); Meinke, F.Supp. Luna it, injury from and results to another (“An (N.D.Ill.1994) 1287-88 act, independent voluntary the serv- such scope of his deemed to have acted outside the liable, held the master is ant employment if the commits or her liable.” possibly ‘that could not be inter *18 certain acts (citations omitted). The court Id. at 352 merely ill- preted as the overzealous a sudden unusualness of such out- noted the ”) agent.’ judged performance of his duties compa- and concluded that the baseball burst (Citation omitted.); Sawyer Humphries, v. theory held ny could liable under A.2d Md. superior. respondeat Id. (“ un conduct servant is ‘[W]here the on the considerations Restate- Based unusual, provoked, highly quite outra conjunc- § which must be read ment hold geous,’ ‘that this itself courts tend well as with Restatement tion indicate that motive was is sufficient to action, yell- outrageousness of such purely personal one’ and conduct outside (Citations kind of conduct ing racial slurs was not the employment.”) omit Brannen, ted.); Mich.App. perform.3 him As Bryant authorized hypothetical presented considerations outlined in Reslate- ment Under the discussed, was not au- previously
thorized, expressly impliedly, either games. In-
control the crowd at basketball
stead, this was entrusted manager. Wallace’s conduct
arena As White, yelling racial to vent his slurs to or anger, was not incidental even
own
remotely connected to his duties as student assuming
manager. Even that UH contem- spectators,
plated kind of contact with some conduct, to that in Atlanta
Wallace's similar Co., departure was a considerable
Baseball engaging in any usual con- method spectators quieting the crowd.
tact with hearing heckling White’s for most of
After bench,” game, got “off “lost
it,” yelled, up you fucking nigger! “Shut your hearing your
I’m shit! tired of Shut your I’ll kick ass!” It is not com-
mouth or
mon, expected, that a student nor would be
manager yell up you fucking would “Shut spectator
nigger!” to a of African American attempt
descent in an to control crowd. con-
Accordingly, I would hold that Wallace’s yelling racial not of
duct slurs was perform.
kind was authorized to For he reasons, respectfully I
these dissent.
STATE of SANDERS, Defendant-Appellant.
Joel
No. 25116.
Supreme of Hawai'i. Court
Sept.
majority germane. footnote 29 is