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Doe Parents No. 1 v. State11/27/2002
de the plaintiffs from recovering any of their damages at all, simply because they did not prove a predicate physical injury to a person. We turn, then, to the DOE's challenges to the circuit court's determinations as to the remainder of the elements that the plaintiffs were required to establish in order to recover for their psychic injuries -- i.e., duty of care, breach of duty, and legal causation.
a. Duty of care
As a general matter, "a person does not have a duty to act affirmatively to protect another person from harm" by a third person. Lee v. Corregedore, 83 Hawaii 154, 159, 925 P.2d 324, 329 (1996). Thus, "' prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiffs '" that "'require the [defendant] to conform to a certain standard of conduct for the protection of [the plaintiff] against unreasonable risks.'" Id. at 158-59, 925 P.2d at 328-29 (quoting Maguirev. Hilton Hotels Corp., 79 Hawaii 110, 112, 899 P.2d 393, 395 (1995), and Birmingham v. Fodor's Travel Publications, 73 Haw. 359, 366, 833 P.2d 70, 74 (1992)); see also Touchette v. Ganal, 82 Hawaii 293, 299, 922 P.2d 347, 352 (1996) (citing, as the "general rule," Restatement (Second) of Torts § 314, at 116 (1965): " he fact that the actor realizes or should realize that action on his or her part is necessary for another's . . . protection does not of itself impose upon him or her a duty to take such action" (brackets omitted)). Whether a person owes another a duty reasonably to protect the other from foreseeable harm by a third person depends upon whether the circumstances warrant the imposition of such a duty.
If, for example, there is a "special relationship" between the defendant and the plaintiff, or between the defendant and a third person, then the defendant owes the plaintiff a "duty to control the conduct of third person so as to prevent him or her from causing physical harm to the plaintiff." Touchette, 82 Hawaii at 298-99, 922 P.2d at 352-53 (quoting Cuba v. Fernandez, 71 Haw. 627, 631-32,801 P.2d 1208, 1211 (1990) (quoting Restatement (Second) of Torts § 315, at 122 (1965)). Accordingly, because of the "special relationship" shared between a common carrier and its passengers, an innkeeper and his or her guests, a possessor of land (who holds his or her land open to the public) and his or her invitees, and a custodian and his or her ward, the law imposes upon the former the duty to take reasonable steps to protect the latter from foreseeable harms. Id. at 299, 922 P.2d at 353 (quoting Cuba, 71 Haw. at 631-32, 801 P.2d at 1211 (quoting Restatement (Second) of Torts § 314A, at 118 (1965)). The "section 314A list" is not, however, exhaustive, and other circumstances may engender a "special relationship," such that the defendant will owe the plaintiff a duty to take reasonable precautions to protect the plaintiff from the conduct of a third person. Id. at 299, 922 P.2d at 353.
Thus, we have expressly held that, if the State has entered into a custodial relationship with a particular person, then the State owes that person an affirmative duty to take reasonable steps to prevent any harm -- which the State foresees or should reasonably anticipate --befalling its ward, either by his or her own hand or by that of another. See, e.g., Lee, 83 Hawaii at 161, 925 P.2d at 331 (" hen one party is in the custodial care of another, as in the case of a jailed prisoner, the custodian has the duty to exercise reasonable and ordinary care for the protection of the life and health of the person in custody" (quoting City of Belen v. Harrell, 603 P.2d 711, 713 (N.M. 1979))); id. at 174, 925 P.2d at 344 (Levinson, J., dissenting) (agreeing with the proposition quoted from
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