82 Hawai'i 293, Touchette v. Ganal, 19020

• Decision Date: 10 July 1996
• Docket Number: No. 19020,19020
• Citation: 922 P.2d 347
• Court: Hawaii Supreme Court
• Parties: 82 Hawai'i 293 Wendy TOUCHETTE, Individually and as Special Administratrix of the Estate of Michael Robert Touchette, deceased, as Special Administratrix of the Estate of Kalah Kim Touchette, deceased minor, and as Special Administratrix of Joshua Michael Touchette, deceased minor, Plaintiffs-Appellants, v. Mabel GANAL; Enivel, Inc. dba Young Laundry & Dry Cleaning; 1 Island Insurance Company, Limited, 2 Defendants-Appellees, and Orlando T. Ganal, Sr.; Dr. B.J. Williams; Dr. Corazon C. Hobbs, and Doe Defendants 1-100, Defendants.

Page 347

922 P.2d 347

82 Hawai'i 293

Wendy TOUCHETTE, Individually and as Special Administratrix of the Estate of Michael Robert Touchette, deceased, as Special Administratrix of the Estate of Kalah Kim Touchette deceased minor, and as Special Administratrix of Joshua Michael Touchette, deceased minor, Plaintiffs-Appellants, v. Mabel GANAL; Enivel, Inc. dba Young Laundry & Dry Cleaning;¹ Island Insurance Company, Limited,² Defendants-Appellees and Orlando T. Ganal, Sr.; Dr. B.J. Williams; Dr. Corazon C Hobbs, and Doe Defendants 1-100, Defendants.

No. 19020.

Supreme Court of Hawai'i.

July 10, 1996.

Joseph P. H. Ahuna, Jr., Lionel M. Riley and John H. W. Yuen of the Law Offices of Joseph P. H. Ahuna, Jr., on the briefs, Kaneohe, for plaintiff-appellant Wendy Touchette, Individually, and as Special Administratrix of the Estate of Michael Robert Touchette, deceased, and Special Administratrix of the Estate of Kalah Kim Touchette, deceased minor, and as Special Administratrix of the Estate of Joshua Michael Touchette, deceased minor.

Ralph R. LaFountaine and Michael N. Tanoue of Matsumoto, LaFountaine & Chow, on the briefs, Honolulu, for defendant-appellee Mabel Ganal.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

In this civil action concerning deaths and injuries stemming from an intentionally-started fire, plaintiffs-appellants Wendy Touchette, individually (Wendy) and as special administratrix [hereinafter, collectively, appellant] of the estates of Michael Robert Touchette (Michael), Kalah Kim Touchette (Kalah) and Joshua Michael Touchette (Joshua) [hereinafter, collectively, the Touchettes], appeal from the First Circuit Court's order granting defendant-appellee Mabel Ganal's (Mabel) motion to dismiss. For the following reasons, we vacate the circuit court's order and remand for further proceedings.

I. BACKGROUND

The facts that form the basis of the present case are exhaustively set forth in this court's opinion in State v. Ganal, 81 Hawai'i 358, 362-65, 917 P.2d 370, 374-77 (1996). We therefore briefly recount only the pertinent facts.

In early 1991, allegedly due to a work-related injury, Orlando T. Ganal, Sr. (Ganal) became unable to work at his job at Young Laundry and was having difficulty obtaining workers' compensation. At roughly the same time, Mabel, Ganal's wife, began having an extra-marital affair with Michael's brother, David Touchette (David), a co-worker at her part-time job. Mabel and Ganal's marriage steadily deteriorated, and Mabel moved out of the house she shared with Ganal and moved into her parents' home in Waipahu.

During the late evening of August 25, 1991, Ganal broke into Mabel's parents' Waipahu home, shot and killed Mabel's parents, and shot and injured Mabel and Orlando T. Ganal, Jr., Mabel and Ganal's son.

Immediately thereafter, Ganal drove to the Touchettes' Kailua residence, where Ganal knew David to have stayed, blocked the outer doors shut, broke several windows, doused the interior rooms with gasoline, and set the house on fire. Although Wendy managed to escape the burning house alive, Michael, Wendy's husband, and Kalah and Joshua, Michael and Wendy's infant children, all eventually died as a result of thermal burns and smoke inhalation. Wendy was severely burned over approximately forty percent of her body and suffered scarring over much of her face. David was not in the house.

Immediately after starting the fire at the Touchettes' home, Ganal drove to the Young Laundry premises near the airport, poured gasoline in a second-floor office and started another fire. Although Young Laundry employees On July 7, 1993, appellant filed a civil complaint against, among others, ³ Ganal and Mabel, alleging the following facts and claims for relief:

[82 Hawai'i 295] were present on the premises at the time of the fire, no one was injured.

COUNT I

....

11. On August 25, 1991, DEFENDANT ORLANDO T. GANAL, SR., because of severe and extreme emotional distress and depression resulting from the conduct of the DEFENDANTS to be more fully described in this complaint, set fire to a house located at 515 Nowela Place in Kailua, Hawaii (hereinafter incident). MICHAEL ROBERT TOUCHETTE, deceased, PLAINTIFF WENDY TOUCHETTE, KALAH KIM TOUCHETTE, deceased minor, and JOSHUA MICHAEL TOUCHETTE, deceased minor, were in the house at 515 Nowela Place at the time DEFENDANT ORLANDO T. GANAL, SR. set fire to said house.

COUNT II

....

13. At the time of the incident, DEFENDANT MABEL GANAL was the wife of DEFENDANT ORLANDO T. GANAL, SR.

14. For a period of months before August 25, 1991, DEFENDANT MABEL GANAL was involved in an extra marital love affair with David Touchette who lived with the PLAINTIFFS at 515 Nowela Place before August 25, 1991.

15. DEFENDANT MABEL GANAL initiated and maintained a course of conduct which involved taunting and humiliating DEFENDANT ORLANDO T. GANAL, SR. by flaunting her extra marital love affair with David Touchette.

16. DEFENDANT MABEL GANAL's extra marital love affair with David Touchette, and her conduct of taunting and humiliating DEFENDANT ORLANDO T. GANAL, SR. with respect to that affair, caused DEFENDANT ORLANDO T. GANAL, SR. to suffer severe and extreme emotional and mental distress and depression.

17. Prior to the August 25, 1991 incident described in paragraph 11 of this Complaint, DEFENDANT MABEL GANAL, the wife of DEFENDANT ORLANDO T. GANAL, SR., knew, or in the exercise of reasonable diligence should have known of, DEFENDANT ORLANDO T. GANAL, SR.'s severe and extreme emotional and mental distress and depression, and/or instability and/or propensity and/or tendency to cause injury, even death to PLAINTIFFS.

18. Prior to the August 25, 1991 incident described in paragraph 11 of this Complaint, DEFENDANT MABEL GANAL had the opportunity and ability to warn PLAINTIFFS of DEFENDANT ORLANDO T. GANAL, SR.'s severe and extreme emotional and mental distress and depression, and/or instability and/or propensity and/or tendency to cause injury, even death, but, nevertheless negligently failed to do so.

19. Even though DEFENDANT MABEL GANAL knew or should have known that her husband, DEFENDANT ORLANDO T. GANAL, SR., was in need of supervision for the protection of others, DEFENDANT MABEL GANAL, nevertheless, failed to exercise reasonable care and/or to take other appropriate actions to prevent the injury and death to the PLAINTIFFS.

....

COUNT VI

47. As a direct and proximate result of DEFENDANT MABEL GANAL['s] ... actions described above, on August 25, 1991, DEFENDANT ORLANDO T. GANAL, SR., because of severe and extreme emotional and mental distress and depression arising out of the above described conduct of DEFENDANT MABEL GANAL ..., set PLAINTIFFS['] house at 48. As a further direct and proximate cause of the actions and/or omissions of DEFENDANT ORLANDO T. GANAL, SR., the actions and/or omissions of DEFENDANT MABEL GANAL, ... described above, PLAINTIFF WENDY TOUCHETTE suffered, including but not limited to, severe burns to her face, lungs, legs, arms, torso, abdomen, shoulder, wrist, fingers, ankles, neck and back. PLAINTIFF WENDY TOUCHETTE also suffered mental anguish, great pain of body and mind, severe emotional distress, permanent scarring and disfigurement, loss of enjoyment of life and other injuries and damages to be shown at trial.

[82 Hawai'i 296] 515 Nowela Place on fire. DEFENDANT MABEL GANAL['s] ... actions described above, under the totality of the circumstances, caused and/or substantially contributed to cause DEFENDANT ORLANDO T. GANAL, SR.'s action described in paragraph 11 of this Complaint.

49. As a further direct and proximate cause of the actions and/or omissions of DEFENDANTS described above, PLAINTIFF WENDY TOUCHETTE suffered a loss of past and future income and/or a permanent impairment to her earning capacity, in amounts to be shown at trial.

50. As a further direct and proximate cause of the actions and/or omissions of the DEFENDANTS described above, PLAINTIFF WENDY TOUCHETTE has suffered and will suffer, hospital, medical, reconstructive surgery, rehabilitative, plastic surgery, and miscellaneous expenses. PLAINTIFFS ask leave of this Court to amend this Complaint to show the same at trial.

51. As a further direct and proximate cause of the actions and/or omissions of the DEFENDANTS described above, MICHAEL ROBERT TOUCHETTE, deceased, sustained burns over 85% percent of his body, brain damage, pulmonary damage, renal damage, internal injuries, and other bodily injuries; suffered mental anguish, great pain of body and mind, conscious pain and suffering, emotional distress, loss of enjoyment of life and/or other sufferings; and suffered death on September 23, 1991 as a result of his injuries he sustained from the fire of August 25, 1991.

52. As a further direct and proximate cause of the actions and/or omissions of the DEFENDANTS described above, KALAH KIM TOUCHETTE, deceased minor, sustained burns in excess of over 95% percent of her body, renal damage, pulmonary damage, and other bodily injuries; suffered mental anguish, great pain of body and mind, conscious pain and suffering, emotional distress, loss of enjoyment of life and/or other sufferings; and death.

53. As a further direct and proximate cause and negligence, actions and/or omissions of the DEFENDANTS, JOSHUA MICHAEL TOUCHETTE, deceased minor, sustained burns in excess of over 95% percent of his body, renal damage, pulmonary damage, and other bodily injuries; suffered mental anguish, great pain of body and mind, conscious pain and suffering, emotional distress, loss of enjoyment of life and/or other sufferings; and death.

54. As a further direct and proximate cause of the actions and/or omissions of the DEFENDANTS described above, PLAINTIFFS have suffered hospital, medical, rehabilitative, funeral and miscellaneous expenses and will incur such expenses in the future. PLAINTIFFS ask leave of this court to...