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IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--MR. AND MRS. DOE PARENTS NO. 1, individually and as Guardians Ad Litem for their minor child, DOE MINOR GIRL NO. 1; and MR. AND MRS. DOE PARENTS NO. 2, individually and as Guardians Ad Litem for their minor child, DOE MINOR GIRL NO. 2, Plaintiffs-Appellants/Cross-Appellees, vs. STATE OF HAWAI#I, DEPARTMENT OF EDUCATION, Defendant-Appellee/Cross-Appellant, and LAWRENCE J. NORTON; MARIE VALERIE NORTON; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; and DOE GOVERNMENTAL ENTITIES 1-10, Defendants. NOS. 23899 & 23901 APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 96-4906) NOVEMBER 27, 2002 MOON, C.J., LEVINSON, NAKAYAMA, AND RAMIL, JJ., AND ACOBA, J., CONCURRING SEPARATELY OPINION OF THE COURT BY LEVINSON, J. The plaintiffs-appellants/cross-appellees in this consolidated appeal1 are two minor children and their respective

1 The plaintiffs' appeal in this matter was docketed under No. 23899; the defendant's appeal was docketed under No. 23901. On January 30, 2001, this court ordered consolidation of these appeals for briefing and disposition under No. 23899. Oral argument was heard on January 10, 2002.

parents [hereinafter, collectively, the "plaintiffs"], all of whom have consented to the disclosure of their identity in connection with this case.2 Doe Parents No. 1 are retired

Lieutenant Colonel Ira Steven Davis and Cynthia Davis, and Jane Doe No. 1 is their daughter, Melony Fay Davis (Melony). Doe

Parents No. 2 are George Benjamin Draughn and Mary Draughn, and Jane Doe No. 2 is their daughter, Nicole Draughn (Nicole). The

State of Hawai#i Department of Education (DOE) is the defendantappellee/cross-appellant. In their complaint, the plaintiffs

named as a codefendant, and the DOE subsequently filed a crossclaim against, Lawrence J. Norton (Norton), Melony's and Nicole's (the girls') teacher; Norton, however, did not enter an appearance at trial, the circuit court dismissed all of the parties' claims against him, see infra section III.B, and he is not a party to this appeal.3 The plaintiffs appeal from the judgment of the first circuit court, the Honorable Sabrina S. McKenna presiding, awarding the plaintiffs forty-nine percent of their total damages -- i.e., damages in the amount of $432,200.00 to the Draughns collectively and in the amount of $429,251.00 to the Davises collectively -- on their negligence and negligent infliction of emotional distress (NIED) claims against the DOE. On appeal, the

plaintiffs challenge the circuit court's apportionment of

Initially, the plaintiffs proceeded with their lawsuit under pseudonyms. However, by the time that the matter went to trial, the plaintiffs had moved to the mainland and consented to the disclosure of their identities in connection with the remainder of the trial and appellate proceedings. The plaintiffs also named Norton's wife, Marie Valerie Norton, as a codefendant in their complaint, and the DOE filed a cross-claim against her. However, the circuit court dismissed the plaintiffs' claims against Marie Norton prior to trial and, insofar as the DOE advanced no evidence at trial supporting its cross-claim against her, the circuit court entered judgment in favor of Marie Norton and against the DOE in connection with the DOE's crossclaim.
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liability between the DOE and Norton, advancing several arguments in support of their contention that the DOE should be liable to them in the total amount of their damages. The DOE cross-appeals, arguing that the circuit court, for various reasons, erred in holding it liable to the plaintiffs at all. In essence, the DOE contends (1) that, pursuant to

Hawaii's State Tort Liability Act (STLA), Hawai#i Revised Statutes (HRS) ch. 662 (1993 & Supp. 2001), it is immune from the plaintiffs' claims and (2) that, even if the STLA does not afford it sovereign immunity, the circuit court erred in determining (a) that it had been negligent and that its negligence was a legal cause of the plaintiffs' injuries and (b) that the plaintiffs were not required to establish physical injury in order to prevail on their NIED claim. As to the DOE's cross-appeal, we hold as follows: (1)

to the extent that the plaintiffs predicate their negligence and NIED claims upon the DOE's negligent retention and supervision of Norton, that the STLA's intentional tort exception does not insulate the DOE from liability; (2) that, under the circumstances of this case, the plaintiffs could obtain relief in the absence of physical injury; (3) that, insofar as the DOE should have anticipated the reasonably foreseeable threat that Norton posed to students, the DOE was subject to a duty to take whatever steps were reasonable to ensure that he did not molest Melony and Nicole; (4) that the foregoing duty ran not only to the students in the DOE's custody, but also to the students' parents; (5) that the DOE breached the duty of care that it owed to Melony and Nicole and their respective parents in (a) reinstating Norton, after he had been acquitted in connection with a prior allegation of molestation, without conducting a

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reasonably thorough investigation, (b) failing to supervise or restrict Norton's conduct once he had resumed exhibiting the behaviors that led to the prior accusation, (c) questioning Melony and Nicole and exacting their disclosures that Norton had molested them, in violation of the DOE's own apparent policy against doing so, given that school administrators are not generally trained to conduct such inquiries, and (d) failing to notify Melony's and Nicole's respective parents of their accusations against Norton; and (6) that the DOE's negligence was a legal cause of the plaintiffs' psychological trauma resulting from Norton's foreseeable molestation of Melony and Nicole. As to the plaintiffs' appeal, we hold that the circuit court erred in apportioning liability between the DOE and Norton and, therefore, that the DOE is liable to the plaintiffs for the full extent of their damages. Thus, we vacate the circuit

court's final judgment and remand this matter to the circuit court for the entry of an amended final judgment consistent with this opinion. I. A. Factual Background On January 22, 1990, the DOE hired Norton to teach fourth graders at M

Download Mr. and Mrs. Doe Parents No. 1 v. State, Department of Education. Concurring Op

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