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Doe Parents No. 1 v. State11/27/2002
MOON, C.J., LEVINSON, NAKAYAMA, AND RAMIL, JJ., AND ACOBA, J., CONCURRING SEPARATELY
The plaintiffs-appellants/cross-appellees in this consolidated appeal are two minor children and their respective parents [hereinafter, collectively, the "plaintiffs"], all of whom have consented to the disclosure of their identity in connection with this case. Doe Parents No. 1 are retired Lieutenant Colonel Ira Steven Davis and Cynthia Davis, and Jane Doe No. 1 is their daughter, Melony Fay Davis (Melony). Doe Parents No. 2 are George Benjamin Draughn and Mary Draughn, and Jane Doe No. 2 is their daughter, Nicole Draughn (Nicole). The State of Hawaii Department of Education (DOE) is the defendant-appellee/cross-appellant. In their complaint, the plaintiffs named as a co-defendant, and the DOE subsequently filed a cross-claim against, Lawrence J. Norton (Norton), Melony's and Nicole's (the girls') teacher; Norton, however, did not enter an appearance at trial, the circuit court dismissed all of the parties' claims against him, see infra section III.B, and he is not a party to this appeal.
The plaintiffs appeal from the judgment of the first circuit court, the Honorable Sabrina S. McKenna presiding, awarding the plaintiffs forty-nine percent of their total damages -- i.e., damages in the amount of $432,200.00 to the Draughns collectively and in the amount of $429,251.00 to the Davises collectively -- on their negligence and negligent infliction of emotional distress (NIED) claims against the DOE. On appeal, the plaintiffs challenge the circuit court's apportionment of liability between the DOE and Norton, advancing several arguments in support of their contention that the DOE should be liable to them in the total amount of their damages.
The DOE cross-appeals, arguing that the circuit court, for various reasons, erred in holding it liable to the plaintiffs at all. In essence, the DOE contends (1) that, pursuant to Hawaii's State Tort Liability Act (STLA), Hawaii Revised Statutes (HRS) ch. 662 (1993 & Supp. 2001), it is immune from the plaintiffs' claims and (2) that, even if the STLA does not afford it sovereign immunity, the circuit court erred in determining (a) that it had been negligent and that its negligence was a legal cause of the plaintiffs' injuries and (b) that the plaintiffs were not required to establish physical injury in order to prevail on their NIED claim.
As to the DOE's cross-appeal, we hold as follows: (1) to the extent that the plaintiffs predicate their negligence and NIED claims upon the DOE's negligent retention and supervision of Norton, that the STLA's intentional tort exception does not insulate the DOE from liability; (2) that, under the circumstances of this case, the plaintiffs could obtain relief in the absence of physical injury; (3) that, insofar as the DOE should have anticipated the reasonably foreseeable threat that Norton posed to students, the DOE was subject to a duty to take whatever steps were reasonable to ensure that he did not molest Melony and Nicole; (4) that the foregoing duty ran not only to the students in the DOE's custody, but also to the students' parents; (5) that the DOE breached the duty of care that it owed to Melony and Nicole and their respective parents in (a) reinstating Norton, after he had been acquitted in connection with a prior allegation of molestation, without conducting a reasonably thorough investigation, (b) failing to supervise or restrict Norton's conduct once he had resumed exhibiting the behaviors that led to the prior accusation, (c) questioning Melony and Nicole and exacting their disclosures that Norton had molested them, in violation of the DOE's own apparent policy against doing so, given that school ad
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