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Doe Parents No. 1 v. State11/27/2002
al merely signified that the prosecution had failed to convince twelve people that Norton was guilty beyond a reasonable doubt, we are convinced that a reasonably prudent parent would not have permitted Norton unfettered access to his or her child. In a nutshell, the DOE should have known that the question whether Norton actually molested T.Y. remained an open one and, therefore, should have resumed its investigation into Norton's alleged misconduct, confronting him, at the very least, with T.Y.'s videotaped accusations, free from the shield that his right against self-incrimination had afforded him prior to his acquittal.
Under the circumstances, then, "there some probability of harm sufficiently serious [-- i.e., that Norton would molest a Mokapu student --] that a reasonably prudent [parent] would [have] take precautions to avoid it[.]" Knodle, 69 Haw. at 388, 742 P.2d at 385 (citation and brackets omitted). That it is, ultimately, unknowable whether the DOE would have concluded that Norton had molested T.Y. or unearthed his extensive history of pedophilia does not affect our analysis because, " s the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less[.]" Id. at 388, 742 P.2d at 385 (citation omitted). Thus, there need only be a reasonable possibility that, had the DOE investigated, it would have at least anticipated the potential threat that Norton posed and, thus, would have imposed some reasonable restrictions upon his contact with children, such as precluding him from gathering students in his room during the lunch recess, or requiring him to adhere to the DOE's "unspoken policy" that teachers not touch students in any manner that might be misinterpreted, or, indeed, forbidding him from touching students at all. In the absence of any determination that Norton had not actually molested T.Y. as she claimed, we hold that the DOE should have reasonably anticipated that Norton posed a potential threat to students and, therefore, that it was reasonably foreseeable that he would molest other students.
Furthermore, the foreseeability that Norton would do so increased once, after being reinstated, he resumed issuing hall passes, gathering students in his room (particularly female fourth and fifth graders with light-colored hair) during recesses, and hugging them as they departed his room. All of this conduct is precisely what had given rise to T.Y.'s accusations in the first place. It does not require specialized training or education as a mental health professional for such conduct to trigger an alarm that Norton potentially posed a risk to Mokapu students. Indeed, as we have noted, we have no doubt that a reasonably prudent parent would, upon learning that Norton was once again exhibiting the precise pattern of behavior that gave rise to T.Y.'s allegations, have restricted his access to their child. As such, we hold that it was unreasonable at that point for the DOE to have failed specifically to supervise Norton and to restrict him from issuing hall passes and "hugging" students. That being the case, the circuit court did not clearly err in finding that the DOE's failure to supervise Norton or restrict his conduct constituted a breach of the duty that it owed to the plaintiffs.
We further hold that the circuit court correctly determined that Schlosser's interrogations of Melony and Nicole constituted breaches of the DOE's duty of care. Indeed, he acknowledged in his testimony that the DOE's regulations precluded him from conducting such interviews and that he was aware that mental health professionals were specifically trained to conduct them so as to minimize the potential psychological trauma that disclosure might cause t
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