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Doe Parents No. 1 v. State11/27/2002
tion signals omitted) (ellipsis points in original).
C. Credibility Of Witnesses
" t is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence; this is the province of the trier of fact." In re Jane Doe, 95 Hawaii at 190, 20 P.3d at 623 (citations, quotation signals, and ellipsis points omitted).
III. DISCUSSION
As an initial matter, we emphasize that, on appeal, the parties do not dispute that Norton molested Melony and Nicole. Nor do the parties disagree regarding the nature and extent of the plaintiffs' injuries, to wit, that each of the plaintiffs suffer from various psychological disorders that are likely permanent. Moreover, the DOE does not dispute the circuit court's findings of fact vis-a-vis the actions taken and not taken by its employees in the course of investigating T.Y.'s, A.C.'s, Melony's, and Nicole's reports of Norton's sexual improprieties; rather, the DOE disputes the legal import of these acts and omissions. Finally, none of the parties challenge any of the circuit court's pretrial rulings or its rulings concerning the admissibility of exhibits.
Because the issues raised in the DOE's cross-appeal are potentially outcome-dispositive of those raised in the plaintiffs' appeal, we address the points of error that the DOE advances in its cross-appeal before addressing those that the plaintiffs raise in their appeal.
A. The DOE's Cross-Appeal
The DOE argues that the circuit court: (1) wrongly concluded that the STLA did not cloak the DOE with immunity from liability for its alleged negligence and NIED; (2) wrongly concluded that the plaintiffs' NIED claim was compensable in the absence of physical injury ; (3) wrongly imposed "new duties" upon the DOE in concluding that the DOE owed the plaintiffs "a duty not only to supervise students, but to take such reasonable measures as would be taken by reasonable parents to avoid injury to students"; (4) clearly erred in finding that its employees had breached the "new duties"; and (5) clearly erred in finding that the breaches were each a substantial factor in causing the plaintiffs' psychological injuries. We address the DOE's arguments seriatim.
1. Sovereign Immunity
Pursuant to HRS § 662-2 (1993), "the State . . . waives its immunity for liability for the torts of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances[.]" This court has held that, in so providing, the legislature "definitely expressed the intent . . . that, for purposes of determining liability of the State in tort cases, all the accepted tort law relating to private parties is applicable." Upchurch v. State, 51 Haw. 150, 151, 454 P.2d 112, 114 (1969). However, several "exceptions" to the general waiver of immunity from tort claims are set forth in HRS § 662-15 (1993 & Supp. 2001). Consequently, we have held that, "if a private party would be liable under the circumstances[, then] the State would also be liable, except for [those] claims enumerated in [HRS § 662-15]." Id. at 152, 454 P.2d at 114.
The DOE invokes "the intentional tort" exception, set forth in HRS § 662-15(4), to argue that it is immune from the plaintiffs' negligence and NIED claims. The intentional tort exception provides in relevant part that the STLA's general waiver of sovereign immunity, see HRS § 662-2, does not apply to " ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." HRS § 662-15
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