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Doe Parents No. 1 v. State11/27/2002
t of T.Y's allegations and subsequently, Melony's and Nicole's accusations, further demonstrating the difficulty in discerning the truth of T.Y.'s original charge and in assessing the potential risks that Norton might pose in the future.
I do not believe the many findings of the court as "indicating" negligence are to be taken as an enumeration of factors for judging or governing the future conduct of DOE teachers, principals, or administrators. DOE personnel are charged with a myriad of other tasks, not the least of which is to accomplish their primary obligation of educating children. In my view, the negligence in this case is grounded in the apparent absence of clear and definite DOE procedures for administering accusations of criminal behavior.
The disposition of such matters cannot be accomplished appropriately as a matter of internal school policy or ad hoc administrative action, for the resolution of such questions are generally beyond the normal purview of professional educators. No written policy or regulation pertaining to such matters was entered into evidence in this case. There must be a separate administrative track established for determining such complaints irrespective of the pendency or outcome of any criminal case. Allegations of abuse or criminal behavior must be recognized as a distinct and separate matter from the day-to-day operation of a school. To avoid future occurrences of this type, and to protect both children and DOE personnel, a defined, coherent and uniform procedure for resolving such matters must be enacted by rule or statute. See, e.g., Regotti, Negligent Hiring and Retaining of Sexually Abusive Teachers, 73 Ed. Law Rep. 333, 339-40 (1992) (listing suggestions for school officials regarding sexually abusive teachers).
IV.
In general, this court is "reluctant to impose a new duty upon members of our society without any logical, sound, and compelling reasons[,] taking into consideration the social and human relationships of our society." Lee v. Corregedore, 83 Hawaii 154, 166, 925 P.2d 324, 336 (1996). Generally, a "person does not have a duty to act affirmatively to protect another person from harm." Id. at 159, 925 P.2d at 329. However, as the majority notes, where there is a "special relationship," then a defendant may owe a duty to "control the conduct of third person so as to prevent him or her from causing physical harm to the plaintiff." Majority opinion at 69 (citations omitted). Here, it is apparent that a special relationship of in loco parentis exists between the DOE and the students, and that that relationship gives rise to a duty of reasonable care to protect students from foreseeable harm.
But the majority continues on and indicates that a duty may arise because the DOE is "required to exercise . . . 'ordinary care' in the activities it affirmatively undertakes to prevent foreseeable harm[.]" Majority opinion at 71 (citing Upchurch v. State, 51 Haw. 150, 154, 454 P.2d 112, 115 (1969)). This appears to be a reference to Restatement (Second) of Torts § 302 comment a (1965). But as this court recently stated in McKenzie v. Hawaii Permanente Med. Group, Inc., 98 Hawaii 296, 47 P.3d 1209 (2002), that "Restatement (Second) § 302 by itself does not create or establish a legal duty; it merely describes a type of negligent act." Id. at 300, 47 P.3d at 1213 (emphasis in original). Quoting comment a of section 302, this court noted:
Section 302 is concerned only with the negligent character of the actor's conduct, and not with the actor's duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable person to protect them
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