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Doe Parents No. 1 v. State11/27/2002
(4). Citing United States v. Shearer, 473 U.S. 52 (1985), the DOE posits that, inasmuch as the plaintiffs' negligence and NIED claims "arise out of" Norton's assault and battery of Melony and Nicole or Sosa's misrepresentation to the military, it retains its sovereign immunity from liability for those claims, pursuant to HRS § 662-15(4).
In response, the plaintiffs contend that their negligence and NIED claims against the DOE do not directly "arise out of" Norton's molestation of the girls. The plaintiffs observe that their negligence and NIED claims are predicated upon breaches of the DOE's duty of care that were committed by employees other than Norton. According to the plaintiffs, simply because Norton's molestation of the girls was a foreseeable result of the unreasonable conduct of other DOE employees does not transform their negligence and NIED claims into claims that "arise out of" Norton's conduct.
The STLA is modeled after the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq. See, e.g., Figueroav. State, 61 Haw. 369, 383-84, 604 P.2d 1198, 1206 (1979); Rodrigues v. State, 52 Haw. 156, 167, 472 P.2d 509, 517 (1970). Accordingly, this court may, in the absence of other authority, turn to federal case law construing parallel provisions of the FTCA for guidance in construing the STLA. Cf. Schefke v. Reliable Collection Agency, Ltd., 96 Hawaii 408, 425, 32 P.3d 52, 69 (2001) (noting that, " ot having previously dealt with a retaliation claim under HRS § 378-2 . . . , we may look in construing HRS § 378-2, 'to interpretations of analogous federal laws by the federal courts for guidance'" (quoting Shoppe v. Gucci Am., Inc., 94 Hawaii 368, 377, 14 P.3d 1049, 1058 (2000)) (additional citations omitted)); State v. Crisostomo, 94 Hawaii 282, 287-88, 12 P.3d 873, 878-79 (2000) (noting that, " ecause [Hawaii Rule of Penal Procedure] Rule 24(c) [(1996)] is nearly identical to its federal counterpart, i.e., Federal Rules of Criminal Procedure Rule 24(c) (1999), this court may look to parallel federal law for guidance" (citations omitted)).
Pursuant to 28 United States Code (USC) § 1346(b), the district courts of the United States are vested with "exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee" of the federal government "while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." (Quoted in Sheridan v. United States, 487 U.S. 392, 394 n.1 (1988).) This provision is substantially similar to HRS §§ 662-2 and 662-3. Like the STLA, the FTCA 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[.]" 28 USC § 2680(h) (quoted in Sheridan, 487 U.S. at 394 n.1).
The DOE urges that we adopt the reasoning of a plurality of the United States Supreme Court, which, in Shearer, held that the FTCA's intentional tort exception "encompass claims sounding in negligence." 473 U.S. at 57. Vernon Shearer was a private in the United States Army. Id. at 53. While off duty and away from the Army base at which he was stationed, another serviceman, Private Andrew Heard, kidnapped and murdered him. Id. Shearer's mother, as his administratrix, attempted to sue the United States under the FTCA, claiming that the Army's negligence caused her son's death. Id. at 54. Mor
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