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Doe Parents No. 1 v. State11/27/2002
this case, the independent conduct of the DOE, e.g., the negligent supervision of Norton, under circumstances in which it should have known he posed a risk to children, was a substantial factor in causing Plaintiffs' injuries and, thus, the State is not immune from suit.
II.
In Rodriques, this court first established that a physical injury is not a predicate requirement for a negligent infliction of emotional distress (NIED) claim. See 52 Haw. at 170-71, 472 P.2d at 519-20 ("We hold that serious mental distress may be found where a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case."). Rodrigues reasoned that " t can no longer be said that the advantages gained by the courts in administering claims of mental distress by reference to narrow categories outweigh the burden thereby imposed on the plaintiff." Id. at 174, 472 P.2d at 520. After Rodrigues was decided, however, this court ruled that recovery for emotional distress generally requires some physical injury to property or a person resulting from the defendant's conduct. See Guth v. Freeland, 96 Hawaii 147, 157, 28 P.3d 982, 992 (2001) (Acoba, J., concurring and dissenting).
Nevertheless, this court has been compelled to abandon the "physical injury " rule in light of real life experiences. Indeed, the physical injury rule has been criticized as an "inadequate method . . . of distinguishing between worthy and unworthy claims." John & Jane Roes v. FHP, Inc., 91 Hawaii 470, 473, 985 P.2d 661, 664 (1999) (quoting Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 40, 837 P.2d 1273, 1293 (1992)). In FHP, this court held that an exception to the "physical injury" rule was created when airline employees unknowingly handled human immunodeficiency virus (HIV) contaminated blood. See id. at 477, 985 P.2d at 668. While citing to Rodrigues, which established a general standard based on the seriousness of the mental stress, this court applied the HIV exposure rule as a categorical exception to the general rule that recovery was permitted only when there was some predicate injury to person.
Subsequently, in Guth, this court established another exception to the physical injury rule, holding that "the policies behind the NIED cause of action and HRS ยง 663-8.9 support allowing a claim for NIED arising from the negligent mishandling of a corpse." 96 Hawaii at 154, 28 P.3d at 989 (footnote omitted). It was explained by the majority that "we believe that the minority view, that does not require the plaintiff's emotional distress to manifest itself in a physical injury, is the better reasoned approach." Id. As I noted in that case, a categorical approach lacks "a cohesive rationale and can produce unjust results[,]" id. at 158, 28 P.3d at 993 (Acoba, J., concurring and dissenting) (citations omitted), as opposed to a general reasonableness standard:
he appropriate measure for determining whether plaintiffs have alleged an actionable claim [for emotional distress] in this jurisdiction is that set forth in Rodrigues--that is, whether a reasonable person, normally constituted, would suffer severe mental distress under the circumstances of the case. Id. at 159, 28 P.3d at 994.
In the instant case, the majority creates yet another exception to the "physical injury" rule, this time for school children subjected to unauthorized contact by a teacher and for parents of such children. Predictably, then, " ecognition of negligently inflicted psychic injury as an independent tort, like the life experiences that compel it, . . . cannot be confined in a doctrinal straitjacket." Id. It is apparent that the "physical injury" rule wil
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