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Doe Parents No. 1 v. State11/27/2002
against an unreasonable harm to them arising out of the act . . . . If the actor is under no duty to the other to act, his [or her] failure to do so may be negligent conduct with the rule stated in this Section, but it does not subject him [or her] to liability, because of the absence of duty. Id. (brackets omitted) (emphases in original).
It was explained that "the fact that [the defendant's] negligent conduct falls under the rubric of Restatement § 302 does not establish per se that he owes a duty to the [plaintiffs]; it only describes the manner in which he may be negligent if he owed a duty to the [plaintiffs]." Id. at 301, 47 P.3d at 1214 (emphases in original). Similarly, the DOE's negligent conduct, by itself, does not create a duty of care to school children; rather, this duty arises out of the special relationship between the DOE and the children. To the extent that any other basis for a duty is alluded to, see majority opinion at 71 (" egardless of the source of a particular duty"), I must disagree that it is necessary in this case to so extend our holding. "Duty . . . is a legal conclusion which depends upon 'the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" Rodrigues, 52 Haw. at 170, 472 P.2d at 519 (quoting Prosser on Torts § 53 at 332 (3rd ed. 1964)); see also Blair v. Ing, 95 Hawaii 247, 259, 21 P.3d 452, 463 (2001) (citations omitted); Cootey v. Sun Investment Co., 68 Haw. 480, 484, 718 P.2d 1086, 1090 (1986) (citations omitted). In light of the well recognized legal relationship between school and student, we are not called on anew to make a duty calculus.
V.
Relying on HRS § 663-10.5 (Supp. 1994), the court held that the DOE, as a governmental entity, was liable for forty-nine percent of the total damages, its apportioned amount. The 1994 version of § 663-10.5, since amended (Supp. 2001), abolished joint and several liability for a governmental party for "acts or omissions occurring on or after" June 22, 1994, the date it was enacted. HRS § 663-10.5 (Supp. 1994). The majority rejects the court's view and holds that HRS § 663-10.5 is inapplicable and does not limit the DOE's liability. The majority further concludes that (1) Norton and the DOE are not "joint tortfeasors" as defined by HRS § 663-11 (1993), (2) inasmuch as Norton and the DOE are not "joint tortfeasors[,]" HRS § 663-10.9 (Supp. 2001), which generally repealed joint and several liability, does not apply, (3) " ecause the circuit court dismissed the laintiffs' claims against Norton with prejudice . . . , Norton cannot be liable in tort to the plaintiffs[,]" Majority opinion at 105 n.50, and, hence, (4) the State is liable for all the damages.
I must disagree with this analysis. I agree that HRS § 663-10.5, abolishing joint and several liability for government entities, is inapplicable. However, in my view, (1) Norton and the DOE are indeed joint tortfeasors under HRS § 663-11; (2) 663-10.9, the prohibition against joint and several liability, does not apply because this case "involv " the intentional tort exception to such a ban; and (3) the DOE's obligation to pay the judgment is based upon its several liability, i.e., its obligation as a joint tortfeasor to pay all the damages caused by it and Norton, because Norton is apparently judgment proof.
VI.
On appeal, Plaintiffs maintain, as we hold, that HRS § 663-10.5 was misapplied by the court because DOE's negligent acts occurred before its effective date. Plaintiffs argue that the court erred in establishing as the pertinent date, the date the cause of action "accrued[,]" i.e., the dates of the assault on the Plaintiffs, rather th
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