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Doe Parents No. 1 v. State11/27/2002
a duty of care owed to the plaintiff. Knodle, 69 Haw. at 387, 742 P.2d at 384 (citations omitted). However, " he conduct of [the mythical reasonable and prudent] person will vary with the situation with which he [or she] is confronted" because "what is reasonable and prudent in the particular circumstances is marked out by the foreseeable range of danger." Id. (citations omitted) (some brackets added and some in original). This court has observed that
anger in this context "necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow." . . . The test of what is reasonably foreseeable is not one of a balance of probabilities. "That the danger will more probably than otherwise not be encountered on a particular occasion does not dispense with the exercise of care." Tullgren v. Amoskeag Manufacturing Co., 82 N.H. 268, 276, 133 A. 4, 8 (1926). The test is whether "there is some probability of harm sufficiently serious that [a reasonable and prudent person] would take precautions to avoid it." Id. . . . . "As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution." . . . And " against this probability, and gravity, of the risk, must be balanced in every case the utility of the type of conduct in question." Id. at 387-88, 742 P.2d at 385 (some citations omitted) (some brackets added and some in original).
The circuit court found that the DOE had breached the duty of care that it owed to the plaintiffs in several respects, only three of which are relevant for present purposes. First, the circuit court found that the DOE's failure to conduct a reasonably thorough investigation in connection with T.Y.'s allegation against Norton was unreasonable. Second, the circuit court found unreasonable the DOE's failure properly to train its administrators regarding the problem of pedophilia, such that, presumably, they would have anticipated the danger that Norton posed even though he had been acquitted of criminal charges in the T.Y. matter. Third, the circuit court found that Schlosser's interviews of Melony and Nicole and his failure to inform their parents of what they reported to him was unreasonable.
The DOE argues that, because the circuit court erred in defining the duty of care that the DOE owed to the plaintiffs, it clearly erred in finding that the DOE breached that duty. The DOE asserts that "it acted within the standard of care applicable to DOE employees" -- which, it contends, is generally to supervise students unless it is on notice that special circumstances necessitate specific supervision -- and that it was not reasonably foreseeable that Norton would molest Melony and Nicole. According to the DOE, " rom an objective view, an educator, acting within the duties of school administrators and other DOE personnel, and believing, from all of the available facts adduced during the investigation and prosecution of Norton[,] that there was no evidence to support T.Y.'s allegations, would not be on notice that Norton presented a specific risk to Melony and Nicole." More precisely, the DOE argues, in light of the fact that no further allegations against Norton arose for approximately a year and a half, that it had "no specific, advance warning that Melony and Nicole were at risk from Norton's unknown deviate nature." Accordingly, the DOE concludes that it "fulfilled its duty" to the plaintiffs.
With regard to the DOE's investigation of the T.Y. incident and its reinstatement of Norton, we believe that Estomago's initial "school level investigation" and Sosa's subsequent "district level" investigation, as
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