 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe Parents No. 1 v. State11/27/2002
BR>
Based on the foregoing analysis, we vacate the circuit court's final judgment and remand the matter to the circuit court for the entry of an amended final judgment consistent with this opinion.
CONCURRING OPINION OF ACOBA, J.
I concur in the result reached, but differ as to the analysis and reasoning that supports the result. As these issues are likely to reoccur in our cases, I set forth my position that: (1) the State is not immune under the State Tort Liability Act when independent governmental negligence is a legal cause of an employee's foreseeable intentional tort against a third person; (2) the serious mental stress standard adopted in Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), applies to claims of psychic injury suffered by the minor plaintiffs and their parents, rather than a new exception to the "physical injury" rule; (3) the duty owed by Defendant-Appellee/Cross-Appellant Department of Education (DOE) to the Plaintiffs is based on the special relationship of in loco parentis and not on some formulation of an affirmative duty; (4) the DOE's negligence rests primarily on the absence of a well defined procedure for administering allegations of criminal behavior by teachers; and (5) DOE's obligation to pay the full amount of damages rests on joint and several liability rather than Lawrence J. Norton's dismissal from the case. The foregoing propositions are discussed in seriatim.
I.
Norton's actions, that of offensively touching Melony and Nicole, plainly fall within the common law definition of battery. A defendant causes battery when he or she "intentionally causes bodily contact to the plaintiff in a way not justified by the plaintiff's apparent wishes or by a privilege, and the contact is in fact harmful or against the plaintiff's will." Dobbs, The Law of Torts, § 28 at 52-53 (2000) (citations omitted). As Norton touched both Melony and Nicole "against [their] will[,]" id., he committed the common law tort of battery. Thus the exception to state tort liability of "any claim arising out of . . . battery[,]" § 662-15(4) (1993 & Supp. 2001), is implicated.
Two lines of cases have developed with regard to governmental immunity when an employee negligently hired or supervised by the government, commits an intentional tort against a third person. The majority of courts hold that inasmuch as the plaintiff's cause of action "arises out of" an intentional tort, the claim is barred by governmental immunity. See, e.g., Leleux v. United States, 178 F.3d 750 (5th Cir. 1999) ("Only negligent conduct, undertaken within the scope of employment and unrelated to an excluded tort . . . may form the basis for a cause of action." (Emphasis added.); Franklin v. United States, 992 F.2d 1492, 1498 (10th Cir. 1993) ("the argument advanced to avoid [the tort liability act] in the present case should be rejected as an ineffective attempt to recast a battery claim (surgery without competent consent) as a negligent failure to prevent the battery"). "In dismissing these claims, the courts have often underscored the belief that an intentional tort formed the basis of the action by declaring that the plaintiff could not 'circumvent' the express statutory language of [the tort liability act] by 'artful pleading,' that is, an assault or battery negligence to avoid dismissal of the suit." K. de Jonge, Recovery Under the Federal Tort Claims Act for Governmental Negligence Which Leads to an Intentional Tort by a Governmental Employee, 30 Ariz. L. Rev. 497, 502 (1988) [hereinafter Recovery Under the FTCA] (citations omitted).
In a second opposing line of cases, courts focus on the independent nature of the governmental negligence that allo
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Hawaii Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|