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Doe Parents No. 1 v. State11/27/2002
l, as cases come before us, press this court to create more categorical exceptions. The experiences of more than three decades has shown that " he fears of unlimited liability have not proven true[,]" id. (quoting Campbell v. Animal Quarantine Station, 63 Haw. 557, 565, 632 P.2d 1066, 1071 (1981)), and that the legal interest in psychic security is entitled to independent protection:
he advantages gained by the courts in administering claims of mental distress by reference to narrow categories was outweighed by the burden thereby imposed on the plaintiff and that the "interest in freedom from negligent infliction of serious mental distress is entitled to independent legal protection." Id. (quoting Rodriques, 52 Haw. at 173-74, 472 P.2d at 520).
"Applying [the Rodrigues] standard returns reason and symmetry to the law and easily resolves the issue presented to us in this case." Id. First, there would be near universal agreement that "a reasonable person [such as a child or the parent of such a child], normally constituted, may be unable to adequately cope with the mental stress engendered" by the acts perpetrated by Norton, id., even in the absence of a physical injury . Second, Rodrigues "is precedent in our jurisdiction and controls on the question of who is entitled to claim mental distress resulting from" the conduct of Norton and the DOE. Id.
Rodrigues instructs that a "limitation on the right of recovery, as in all negligence cases, is that the defendant's obligation to refrain from particular conduct is owed only to those plaintiffs who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous." 52 Haw. at 174, 472 P.2d at 521 (citations omitted). Under Rodrigues, then, the nature of the risk defines the scope of liability. As a result, in devising a rule as to who should recover in this case, there is justification for affording the right to sue to those most likely to suffer mental distress because of the [child abuse] for they are those "foreseeably affected by the wrongful conduct." Id. at 159-160, 28 P.3d at 994-95 (Acoba, J., concurring and dissenting) (brackets omitted) (emphasis added).
"Those most likely affected are those who are also most likely to suffer the greatest [distress]" over such inappropriate touching of a child, id. at 160, 28 P.3d at 995, -- and a child's parents plainly fall within this formulation.
III.
The court made several hundred findings of fact regarding four major acts of negligence. According to the court, these acts "include" the DOE's negligent investigation subsequent to Norton's acquittal; the negligent supervision of Norton, particularly after he repeatedly engaged in issuing hall passes and hugging children; and the lack of training and/or implementation of standards regarding allegations of sexual abuse, including the interview by Principal Schlosser and the failure to notify the children's parents regarding the potential abuse.
It would be less than accurate not to acknowledge the difficulty facing the DOE in resolving allegations of sexual assault as it was brought to its attention, particularly in light of conflicting facts and views. While this court has the faultless perspective of hindsight, the allegations must be considered in the context presented to the DOE. Here there was a large number of parents and children who were "extremely upset" that Norton "would no longer be teaching their children[.]" On the advice of counsel and the police, respectively, neither Norton nor T.Y's parents provided information to DOE personnel. Additionally, Norton was acquitted in criminal trials arising ou
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