Doe Parents No. 1 v. State, Dept. of Educ.

• Decision Date: 27 November 2002
• Docket Number: No. 23901., No. 23899
• Citation: 58 P.3d 545,100 Haw. 34
• Parties: 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, v. 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.
• Court: Hawaii Supreme Court

58 P.3d 545

100 Haw. 34

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, v. 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.

Supreme Court of Hawai`i.

November 27, 2002.

As Amended December 2, 2002.

As Amended December 5, 2002.

Mark S. Davis (Anne L. Williams with him on the briefs), of Davis Levin Livingston Grande, for the plaintiffs-appellant/cross-appellees Doe Parents No. 1 and Jane Doe No. 1, and Doe Parents No.2 and Jane Doe No. 2.

Charles F. Fell, Deputy Attorney General, for the defendant-appellee/cross-appellant State of Hawai`i, Department of Education.

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 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 defendant-appellee/cross-appellant. In their complaint, the plaintiffs named as a codefendant, and the DOE subsequently filed a cross-claim 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 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 Hawai`i'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 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. BACKGROUND

A. Factual Background

On January 22, 1990, the DOE hired Norton to teach fourth graders at M&omacrkapu Elementary School [hereinafter, "the school" or "M&omacrkapu"], which is located within the Kaneohe Marine Corps Air Station (KMCAS), a United States military base.⁴ At the time Norton was hired, the DOE did not conduct background and criminal history checks of prospective teachers or other employees.⁵ Although Norton had "an extensive prior history of pedophilia" at the time that the DOE hired him, his history was not reflected in any public records.

During his first year-and-a-half of teaching at the school, students and parents, as well as school faculty and administrators, came to respect and like Norton. However, during the 1991 fall semester, and again during the 1994-95 school year, several fourth and fifth grade students accused Norton of molesting them. Before relating the circumstances of Norton's molestation of Melony and Nicole during the 1994-95 school year, we set forth the circumstances under which a M&omacrkapu student first accused Norton of molestation.

1. T.Y.`s accusation

Shortly into the 1991 fall semester, a fourth grade student, identified throughout these proceedings as "T.Y.," accused Norton of fondling her breast and touching her bare thigh. It appears that Norton (1) routinely issued hall passes to students so that they could visit him in his classroom during their lunch recess and (2) routinely hugged them as they left to start their afternoon classes. T.Y. asserted that Norton had fondled her in the course of giving her one of these routine hugs while she was alone with him during a lunch recess. Eventually, on February 19, 1992, Norton was indicted in connection with T.Y.'s allegation and charged with committing the offense of sexual assault in the third degree.⁶ During this five-month period, the DOE's administrative "investigation" into T.Y.'s allegation was conducted primarily by Donna Estomago, M&omacrkapu's vice-principal at the time the allegation was made.

After Norton was indicted, John Sosa, the DOE Windward District Superintendent, conducted a "second" DOE administrative "investigation" into T.Y.'s allegation. Sosa sought to determine what action, if any, the DOE should take, including whether to recommend to the DOE's Superintendent, Charles Toguchi, that Norton be terminated or reinstated to a teaching position. In conducting his investigation, Sosa solicited and received information and recommendations from Emiko Sugino, the DOE's Personnel Director, Jacquelin Gordon, the DOE's Windward District Personnel Specialist, and M&omacrkapu's principal, James Schlosser, and vice-principal, Estomago. After a jury acquitted Norton on January 11, 1993 in the criminal trial arising out of T.Y.'s allegations, the DOE reinstated him to a teaching position without conducting any further administrative investigation into the matter. The remainder of this subsection details Estomago's initial "school-level" investigation and Sosa's subsequent "district-level" investigation of T.Y.'s accusation.⁷

a. Estomago's "school-level" investigation

Donna Estomago was M&omacrkapu's vice-principal in September 1991, and, at that time, Carol Ching was the school's principal. Late in the afternoon of September 23, 1991, at approximately 4:30 or 5:00 p.m., a military Criminal Investigation Division (CID) investigator, Michael Crecelius, who was also a parent of a M&omacrkapu student, informed Estomago of T.Y.'s accusation and that CID was referring the matter to the Honolulu Police Department (HPD) for further investigation. According to Estomago, Crecelius informed her of the allegation as a "heads-up," rather than as a "formal" matter, and forewarned her to expect a request from T.Y.'s parents that the girl be removed from Norton's fourth grade class. Estomago informed Ching of T.Y.'s allegation that evening.

Also during the evening of September 23, 1991, Estomago telephoned Norton. According to Estomago, it is "typical procedure" to talk to the staff member involved when "something" arises. According to Norton, there were usually numerous children in his classroom during recesses when his class was not in session, and, thus, he did not specifically recollect T.Y. being alone with him. Norton confirmed, however, that many of the children hugged him often, usually when he was seated at his desk, and that, as he spoke to a child, his arm would occasionally encircle...