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Doe Parents No. 1 v. State11/27/2002
Belen); Figueroa v. State, 61 Haw. 369, 376-80, 604 P.2d 1198, 1202-04 (1979) (judicial commitment of juvenile to Hawaii Youth Correctional Facility placed the State under the duty to exercise reasonable care to prevent the juvenile's suicide).
Absent a duty to adhere to a particular standard of care by virtue of the State and either the plaintiff or the third person sharing a "special relationship" (or, alternatively, because a statute or administrative rule or regulation mandates that the defendant adhere to a particular standard of care, see, e.g., Tseu ex rel. Hobbs v. Jeyte, 88 Hawaii 85, 90-92, 962 P.2d 344, 350-51 (1998); Upchurch, 51 Haw. at 154, 454 P.2d at 115), the State is, as is any person, generally required to exercise only "ordinary care" in the activities it affirmatively undertakes to prevent foreseeable harm to others. Upchurch, 51 Haw. at 152, 454 P.2d at 114; see also, e.g., Lee, 83 Hawaii at 162, 925 P.2d at 332 (" n general, anyone who does an affirmative act is under a duty to others to exercise the care of reasonable [person] to protect [others] against an unreasonable risk of harm to them arising out of the act" (quoting Touchette, 82 Hawaii at 301-02, 922 P.2d at 355-56 (quoting Restatement (Second) of Torts ยง 302 Comment a, at 82 (1965)))) (emphasis omitted) (brackets in original).
Regardless of the source of a particular duty, a defendant's liability for failing to adhere to the requisite standard of care is limited by the preposition that "the defendant's obligation to refrain from particular conduct [or, as the circumstances may warrant, to take whatever affirmative steps are reasonable to protect another] is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct [or omission] unreasonably dangerous." John & Jane Roes, 91 Hawaii at 473, 985 P.2d at 664 (quoting Rodrigues, 52 Haw. at 174, 472 P.2d at 521). Thus, if it is not reasonably foreseeable that the particular plaintiff will be injured if the expected harm in fact occurs, the defendant does not owe that plaintiff a duty reasonably to prevent the expected harm. See, e.g., Acoba v. General Tire , Inc., 92 Hawaii 1, 18, 986 P.2d 288, 305 (1999) (" n actionable duty is generally owed to foreseeable plaintiffs subjected to an unreasonable risk of harm created by the actor's negligent conduct" (quoting Seibel v. City and County of Honolulu, 61 Haw. 253, 257, 602 P.2d 532, 536 (1979)). Similarly, but not synonymously, if the harm is not reasonably foreseeable, the defendant will not be deemed to have breached the duty of care that he or she owes to a foreseeable plaintiff. See, e.g., Knodle, 69 Haw. at 385, 288, 742 P.2d at 383, 385 (noting that what is reasonable under the circumstances of any given negligence case for purposes of determining whether the defendant's conduct breached his or her duty of care "is marked out by the foreseeable range of danger" and, thus, there must be "some probability of harm sufficiently serious that [a reasonable and prudent person] would take precautions to avoid it" (citations omitted)).
With the foregoing general principles in mind, we address the DOE's arguments challenging the circuit court's determination that the DOE owed each of the plaintiffs a duty to refrain from negligently inflicting emotional distress upon them, or, in other words, to take reasonable precautions to avoid the foreseeable risk that Norton would molest Melony and Nicole.
Quoting Miller v. Yoshimoto, 56 Haw. 333, 340, 536 P.2d 1195, 1199 (1975), the circuit court noted that the DOE is under the duty to "reasonably supervis public school students during their required attendance and pre
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