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Doe Parents No. 1 v. State11/27/2002
ailure to notify the girls' parents of their accusations legally caused some of their injuries, HRS § 662-15(4) is not implicated at all, see supra note 39. However, HRS § 662-15(4) expressly precludes the plaintiffs from holding the DOE liable for Sosa's misrepresentation to the military that the DOE's internal investigation "absolved" Norton, see supra note 38 and accompanying text.
2. The plaintiffs' negligence and NIED claims
To prevail on their negligence claim, the plaintiffs had to establish, by a preponderance of the evidence, that (1) the DOE owed them a duty of care, which (2) the DOE breached, thereby (3) legally causing (4) actual injury to them. In other words, there are four primary elements to a negligence claim:
1. A duty or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
2. A failure on the defendant's part to conform to the standard required: a breach of the duty;
3. A reasonably close causal connection between the conduct and the resulting injury ; and
4. Actual loss or damage resulting to the interests of another. Dairy Road Partners v. Island Ins. Co., Ltd., 92 Hawaii 398, 419, 992 P.2d 93, 114 (2000) (citations omitted).
However, where the alleged actual injury is for psychological distress alone, there is a need to strike a balance between "avoiding the trivial or fraudulent claims that have been thought to be inevitable due to the subjective nature of [such] injure ," on the one hand, and "promoting the underlying purpose of negligence law," i.e., "compensating persons who have sustained emotional injuries attributable to the wrongful conduct of others," on the other. Camper v. Minor, 915 S.W. 2d 437, 440 (Tenn. 1996); seealso Guth v. Freeland, 96 Hawaii 147, 152, 28 P.3d 982, 987 (2001) (noting that, in general, courts are prompted to limit recovery for emotional distress because (1) it "is temporary and often trivial," (2) it "may be imagined and is easily feigned," and (3) it "may seem unfair to hold defendants, whose actions were merely negligent, financially responsible for harm that appears remote from the actual conduct"); Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 40, 837 P.2d 1273, 1292, reconsideration granted in part and denied in part, 74 Haw. 650, 843 P.2d 144 (1992) (noting that recovery for NIED is generally restricted because "the difficulty of distinguishing between fraudulent, trivial, and serious injuries will result in unlimited liability" and because of "the fear that mental distress recoveries will impose burdens on defendants disproportionate to their culpability"); Rodrigues, 52 Haw. at 172-73, 472 P.2d at 520. Different jurisdictions have developed sundry variants of what is known as the "physical injury rule," under which, generally speaking, the plaintiff's emotional distress must be accompanied by a physical injury or symptom, see, e.g., Camper, 915 S.W. 2d at 440-43 (surveying cases); John & Jane Roes, 1-100 v. FHP, Inc., 91 Hawaii 470, 473 & n.5, 985 P.2d 661, 664 & n.5 (1999) (noting variations of the physical injury rule, e.g., the rules that the plaintiff must experience a "physical impact," or exhibit physical symptoms attributable to his or her emotional distress, or be in the "zone of danger" created by the defendant's negligent conduct), to separate the wheat of genuine psychological distress claims from the chaff of trivial or fraudulent claims.
This court was the first to eschew such "physical injury" rules when we held in Rodrigues that a plaintiff may recover for negligent infliction of emotional distress, absent any physic
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