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Doe Parents No. 1 v. State11/27/2002
ligent act was within the employee's scope of employment" (citations omitted)). It is precisely such a theory of liability that the STLA's intentional tort exception precludes, where the allegedly negligent act of the employee is asserted to be "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." HRS § 662-15(4). In other words, the plaintiffs' respondeatsuperior claim must "aris out of" Norton's assault and battery of the girls because his molestation of them is the sole basis of the plaintiffs' claim against his employer, the DOE.
On the other hand, the plaintiffs' negligence and NIED claims are not predicated upon Norton's molestation of the girls perse. Rather, the plaintiffs posit that other DOE employees -- specifically, Estomago, Schlosser, and Sosa -- breached a duty that legally caused the plaintiffs' injuries. The plaintiffs' theory of negligence -- predicated, as it is, upon the acts and omissions of Norton's supervisors -- does not, therefore, "arise out of" Norton's molestation of Melony and Nicole. To the contrary, Norton's molestation of Melony and Nicole arises out of Estomago's, Schlosser's, and Sosa's antecedent negligent acts and omissions in reinstating and in failing to supervise him. We agree with the Idaho Supreme Court's disbelief
that the . . . legislature, by creating an exception to governmental liability for actions arising out of assault and battery, thereby intended to relieve state agencies from any duty to safeguard the public from employees whom they know to be [or reasonably should anticipate will become] dangerous. . . . Surely the . . . legislature could not have intended that school districts could ignore their . . . duty [to students and parents] and retain known child molesters in the classroom with total impunity[.] Durtschi, 716 P.2d at 1245.
Based on the foregoing discussion, we hold that, where a plaintiff's negligence claim against the State seeks to hold the State vicariously liable for a state employee's "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" under the doctrine of respondeatsuperior, the State is, pursuant to HRS § 662-15(4), immune from the plaintiff's claim. However, where the plaintiff's negligence claim seeks to hold the State liable for the conduct of state employees other than the alleged intentional tortfeasor, pursuant to theories of negligent hiring, retention, supervision, or the like, the plaintiff's claim does not necessarily "arise out of" the hired, retained, or supervised employee's intentional tort. Rather, if the State knew, or reasonably should have anticipated, that one of its employees would commit an intentional tort against a person to whom the State owed a duty of care, the State is liable for the negligence of those employees who were in a position to take reasonable precautions against the anticipated harm.
In light of the foregoing, we further hold, 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; given that the plaintiffs have alleged that the DOE reasonably should have anticipated that Norton would molest the girls, their negligent retention and supervision claims do not "arise out of" Norton's acts of molestation. Moreover, to the extent that the plaintiffs' negligence and NIED claims are predicated upon the allegation that Schlosser's interrogation of the girls and his f
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