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Doe Parents No. 1 v. State11/27/2002
nsulate the governmental entity from liability. As the Durtschi court opined:
The fact that the foreseeable danger was from intentional or criminal misconduct is irrelevant; the school district had a . . . duty to make reasonable efforts to protect its students from such a danger. A breach of that duty constitutes negligence. . . . [Thus, the teacher's] actions [do not necessarily] constitute a supervening cause, and the school district's tortious conduct [does] not arise out of the assault and battery. Rather, the roots of the assault and battery in the district's own negligence. Id. at 1244.
In the context of a negligent supervision claim, the Idaho Supreme Court has subsequently held that the ITCA's intentional tort exception would not, therefore, constitute a bar so long as "those who had the duty to supervise should have reasonably anticipated that those subject to their supervision would commit a battery." Kessler, 931 P.2d at 648.
Finally, we note that the Massachusetts Supreme Judicial Court has similarly rejected a "broad" construction of the intentional tort exception contained in the Massachusetts Tort Claims Act. See, e.g., Dobos v. Driscoll, 537 N.E.2d 558, 569 (Mass. 1989) (holding that "where the supervisory officials allegedly had, or should have had, knowledge of a public employee's assaultive behavior, it is the supervisor's conduct, rather than the employee's intentional conduct, that is the true focus" of the plaintiff's negligence claim).
We have repeatedly held that the STLA "should be liberally construed to effectuate its purpose to compensate the victims of negligent conduct of state officials and employees in the same manner and to the same extent as a private person in like circumstances." Breed v. Shaner, 57 Haw. 656, 665, 562 P.2d 436, 442 (1977) (citing Rogers v. State, 51 Haw. 293, 296-98, 459 P.2d 378, 381-82 (1969) (refusing to "emasculate" the STLA by broadly construing the "discretionary function" exception to include "operational level acts" of state employees)); cf. Hawaii Community Federal Credit Union v. Keka, 94 Hawaii 213, 229, 11 P.3d 1, 17 (2000) ("'Remedial statutes are liberally construed to suppress the perceived evil and advance the enacted remedy.'" (Quoting Cieri v. Leticia Query Realty, Inc., 80 Hawaii 54, 68, 905 P.2d 29, 43 (1995) (brackets omitted).)).
That being the case, we believe that the Ninth Circuit and the Idaho and Massachusetts high courts have articulated the better view of the intentional tort exception, as opposed the "broad" view espoused by the majority of the federal appellate courts. Adoption of the latter, grudging construction would irrationally restrict the remedial purpose of the STLA to compensate victims of the negligent conduct of state employees.
In the present matter, the plaintiffs' negligence and NIED claims are not duplicitous of their respondeat superior claim. Under the latter, the plaintiffs posit that the DOE, as Norton's employer, is vicariously liable for his molestation of the girls because Norton's acts of molestation occurred within the scope of his employment with the DOE; the conduct of other DOE employees, such as Norton's supervisors, is irrelevant to the DOE's potential liability, because the only material question is whether Norton's molestation of the girls constituted a negligent act that was within the scope of his employment. See, e.g., Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Hawai`i 433, 438, 879 P.2d 538, 439 (1994) ("to recover under respondeat superior theory, a plaintiff must establish: 1) a negligent act of the employee, in other words, a breach of a duty that is the legal cause of plaintiff's injury; and 2) that the neg
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