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Doe Parents No. 1 v. State11/27/2002
of" language appeared to "appl equally to batteries by federal employees and by nonemployees." Id. Thus, the Bennett court concluded that predicating the application of the FTCA's intentional tort exception solely upon whether the intentional tortfeasor (as opposed to the employee who was negligent in some manner) was a federal employee was "irrational." Id.
Consequently, the Bennett court held that the FTCA's intentional tort exception did not insulate the federal government from a negligence claim predicated upon its failure to investigate a teacher before hiring him, where he had admitted in his application for employment that a valid bench warrant remained outstanding with regard to an Oklahoma criminal charge of " utrage to ublic ecency," as well as upon its retention and failure to supervise the teacher after his conduct put his supervisors on notice that he was molesting children. Id. at 1502-03. The Bennett court, therefore, deemed the federal government's "own negligence" -- rather than the teacher's kidnapping, assault, and rape of several students -- to be "the legal cause of the injury sued on" and, thus, held that the FTCA's intentional tort exception did not preclude the plaintiffs from obtaining relief for the federal government's negligence. Id.
Although the Ninth Circuit appears to be the lone federal circuit court to embrace the "narrow" view of the FTCA's intentional tort exception, a few state supreme courts have adopted similar constructions with respect to their respective state tort liability acts. The Idaho Supreme Court, for example, has held, in the context of a negligent retention claim, that the Idaho Tort Claims Act (ITCA) -- which contains an intentional tort exception (similar to HRS ยง 662-15(4)), which provides in relevant part that "a governmental entity is not liable for any claim which ' rises out of assault battery,'" Doe v. Durtschi, 716 P.2d 1238, 1243 (Idaho 1986); see also Kessler v. Barowsky, 931 P.2d 641, 648 (Idaho 1996) -- does not immunize a school district from liability under the ITCA's intentional tort exception where students were molested by a teacher whom the school district "should have reasonably anticipated . . . would commit an intentional tort." Durtschi, 716 P.2d at 1245. Eschewing the construction of the FTCA's intentional tort exception that most of the federal courts had adopted and under which the plaintiffs' negligence claims would have been barred, the Durtschi court reasoned that " t is clearly unsound to afford immunity to a negligent defendant because the intervening force, the very anticipation of which made his [or her] conduct negligent, has brought about the expected harm." Durtschi, 716 P.2d at 1224 (citation omitted). As such, the Durtschi court ruled that "the children's injuries arose out of the basic negligence of the school district" and that their injuries "were the foreseeable consequence of the school district's negligence in retaining [the teacher] despite full knowledge of his proclivities." Id. at 1243.
On the other hand, the Durtschi court recognized that, "of course, a plaintiff cannot merely point to an assault and battery and then claim, based simply on its occurrence, that the state was negligent in not preventing it." Id. at 1245. We agree, insofar as such a claim is, in essence, little else than a "semantical recasting," Shearer, 473 U.S. at 55, which attempts to cloak a respondeat superior claim in negligence clothing so as to circumvent the intentional tort exception. However, we also agree, where "the government entity should have reasonably anticipated that one of employees would commit an intentional tort," Durtschi, 716 P.2d at 1245, that the STLA's intentional tort exception does not i
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