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Doe Parents No. 1 v. State11/27/2002
ed another exception in cases involving the mishandling of corpses, because we believed that "those who are entrusted with the care and preparation for burial of a decedent's body have a duty to exercise reasonable care" encompassing the obligation to avoid negligently causing emotional distress to the decedent's immediate family members who were aware that the defendant was preparing the decedent's body for funerary purposes. 96 Hawaii at 154-55, 28 P.3d at 989-90 (adopting the "minority view," under which the plaintiff claiming that the defendant was negligent in the course of preparing the body of an immediate family member for funeral, burial, or crematory purposes, could recover for emotional distress standing alone, without establishing that his or her "emotional distress manifest itself in a physical injury").
To the extent that the plaintiffs in the present matter attempted to establish the "actual loss or damage" element of their negligence claim solely by proving that the DOE's negligence resulted in psychological injury , their "negligence" claim is consubstantial with their "NIED" claim. Consequently, in order to recover for their purely psychic injuries, the plaintiffs would be compelled by our precedent to establish a predicate physical injury to a person as a guarantee of the trustworthiness of their claim. See, e.g., Guth, 96 Hawaii at 150, 28 P.3d at 984; John & Jane Roes, 91 Hawaii at 474, 985 P.2d at 665. The DOE asserts as much, noting that none of the plaintiffs had been physically injured by Norton's conduct. Assuming arguendo, that Norton's molestation of Melony and Nicole would not constitute the requisite physical injury, we believe nonetheless that the circumstances of the present matter, like those present in John & Jane Roes and in Guth, warrant the recognition of yet another exception to the general requirement that the plaintiff seeking redress solely for emotional distress must establish a predicate physical injury to a person.
Reinstating a teacher accused of child molestation to a position of trust that puts him or her in close (and generally unsupervised) proximity with children, without first ascertaining that it is, at the very least, more likely than not that he or she is actually innocent of the accusation, certainly, as we explain more fully infra in sections III.A.2.a and b, renders it "particularly foreseeable," see John & Jane Roes, 91 Hawaii at 474, 985 P.2d at 665 (citation omitted), that the teacher may molest one of his or her students. Put simply, where such circumstances are present, and the teacher in fact molests a student while the child is in attendance at school, we believe it self-evident that the child's resulting psychological trauma, as well as that of the child's parents, "involve circumstances [that] guarantee genuineness and seriousness[.]" See Rodrigues, 52 Haw. at 171, 472 P.2d at 519. Like negligently exposing a person to HIV, negligently placing a child in an environment where he or she is left unsupervised with an accused child molester, without undertaking any reasonable effort to ascertain whether it can be anticipated that the accused will molest again, "makes the threat of [molestation] much more of a real possibility to be feared and far more than a speculative worry." See John & Jane Roes, 91 Hawaii at 476, 985 P.2d at 667. In the words of Dr. Annon, whose testimony was uncontradicted, reinstating Norton after his acquittal without requiring that he undergo a psychological evaluation and without imposing any restrictions upon his conduct or subjecting him to heightened supervision constituted "a real risk" to the children. See supra note 20.
That being the case, the DOE urges us in vain to preclu
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