Hulsman v. Hemmeter Development Corp.

• Decision Date: 30 June 1982
• Docket Number: D,I-V and J,No. 6530,I-,I-V,6530
• Citation: 65 Haw. 58,647 P.2d 713
• Parties: Ruth O. HULSMAN, Plaintiff-Appellant, v. HEMMETER DEVELOPMENT CORP.; The Thom Company, Ltd., dba King Sporting Goods; State of Hawaii, Defendants-Appellees, and John Does; John Doe Corporations and John Roe Partnerships, Defendants.
• Court: Hawaii Supreme Court

Page 713

647 P.2d 713

65 Haw. 58

Ruth O. HULSMAN, Plaintiff-Appellant, v. HEMMETER DEVELOPMENT CORP.; The Thom Company, Ltd., dba King Sporting Goods; State of Hawaii, Defendants-Appellees, and John Does I-V; John Doe Corporations I-V and John Roe Partnerships I-V, Defendants.

No. 6530.

Supreme Court of Hawai'i.

June 30, 1982.

Syllabus by the Court

Disposition of a case by summary judgment is proper where from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law.

Under the doctrine of respondeat superior, an employer is held accountable and liable for the negligent acts of its employees. A corollary of the doctrine is that if an employee is immune from suit, then the employer is also immune and cannot be held liable.

A probation officer is an arm of the court and performs quasi-judicial functions which provide that officer with absolute immunity from suit for the preparation of a pre-sentence report.

A negligence action requires the existence of a duty owed by defendant to the plaintiff. This duty is owed only to those who are foreseeably endangered by the conduct.

A seller of firearms is obligated to exercise reasonable care in any sale.

HRS § 134-9 and 18 U.S.C. § 922(d) were not intended to create a duty from which an actionable claim can be maintained for those injured by weapons purchased in violation of the federal and state law.

In this instance, the purchase of the rifle would not lead a reasonable seller to anticipate or foresee misuse of the firearm.

Paul E. DiBianco, Honolulu, for plaintiff-appellant.

Walter Davis, Honolulu, for defendant-appellee, The Thom Co., Ltd., dba King Sporting Goods.

Leighton Kim Oshima, Deputy Atty. Gen., Honolulu, for defendant-appellee State of Hawaii.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices Assigned Temporarily.

OGATA, Justice.

This is an appeal by plaintiff-appellant, Ruth O. Hulsman (hereinafter "appellant"), from orders granting summary judgment, entered by the First Circuit Court, in favor of defendants-appellees, State of Hawaii (hereinafter "State"), the Thom Company, Ltd., doing business as King Sporting Goods (hereinafter "Thom Company"), and defendant Hemmeter Development Corporation. ¹ Given the record submitted to us along with the applicable law, we affirm the judgment of the circuit court.

On June 19, 1973, Robert Miller (hereinafter "Miller"), pled guilty to criminal property damage in the second degree in the First Circuit Court. As a consequence, a pre-sentence investigation was ordered and was conducted by Filiberto Hernandez, a State probation officer. On or about July 17, 1973, Miller was interviewed at Hernandez's office where Hernandez was informed by Miller that he possessed a .22 caliber rifle which was enclosed in a cardboard box. Miller left the interview with the cardboard box. Thereafter, on July 18, 1973, while sitting in front of her Waikiki apartment building, appellant was seriously wounded from a rifle shot fired by Robert Miller. Miller had purchased the rifle from the Thom Company on June 28, 1973.

A complaint was filed on September 25, 1974, which was subsequently amended on July 15, 1975, in the First Circuit Court. In the amended complaint, appellant alleged that because Miller fired the shot from a room in Hemmeter's hotel which injured appellant, Hemmeter's negligence was the direct and proximate cause of appellant's injuries. Appellant further alleged that appellee Thom Company knew or should have known that Miller was not of sound mind and should not have sold Miller the gun; and as a result, the Thom Company was negligent and the direct and proximate cause of appellant's injuries. Appellant's final allegation was that the State of Hawaii, by its employee, probation officer Hernandez, was negligent in failing to seize the firearm in Miller's possession and in taking Miller into custody. As such, the negligence of the State, by its employee, was the direct and proximate cause of appellant's injuries.

On July 26, 1976, Thom Company moved for summary judgment which was denied by the First Circuit Court. ² Subsequently, on December 23, 1976, the State of Hawaii moved for summary judgment. Thereafter, on December 27, 1976, Hemmeter filed its motion for summary judgment and Thom Company filed a motion for reconsideration of its denial of summary judgment. After a hearing on the matter on January 27, 1977, the First Circuit Court orally granted summary judgment in favor of all defendants and written orders followed thereafter. On January 21, 1977, appellant filed a motion for reconsideration which was denied on February 14, 1977. Appellant now appeals the decisions of the circuit court.

The issue presented for our consideration is whether summary judgment was properly granted in this case. However, in order to properly consider this issue, we must examine whether a state-employed probation officer is entitled to immunity, and in what instances may liability be imposed on a seller of firearms.

I.

The standard whereby disposition of the case by summary judgment is proper is where, from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law. Rule 56(c), H.R.C.P.; Molokai Homesteaders Coop. Ass'n v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981); City & County v. Toyama, 61 Haw. 156, 598 P.2d 168 (1979); Lau v. Bautista, 61 Haw. 144, 598 P.2d 161 (1979); Hunt v. Chang, 60 Haw. 608, 594 P.2d 118 (1979). ³ Inferences to be drawn from the record must be viewed in the light most favorable to the party opposing the motion. Lau v. Bautista, supra; Hunt v. Chang, supra.

A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. Lau v. Bautista, supra; City &amp County v. Toyama, supra; Hunt v. Chang, supra.

Our review of the record reveals that most of the relevant facts are undisputed and none of the disputed facts were material to the legal issues presented therein. We now consider whether appellee State of Hawaii and appellee Thom Company are entitled to judgment as a matter of law.

II.

Appellant asserts that the State's liability is premised on the theory of respondeat superior. Under this theory, the employer is held accountable and liable for the negligent acts of its employees. Orso v. City & County, 56 Haw. 241, 248, 534 P.2d 489, 494 (1975); Lucas v. Liggett & Myers Tobacco Co., 50 Haw. 477, 442 P.2d 460 (1968); Lane v. Yamamoto, 2 Haw.App. 176, 628 P.2d 634 (1981). ⁴

However, under this same theory, if the employee has immunity from suit, it follows that the employer would also be immune. State ex rel. Dept. of Justice v. District Court of the Eighth Judicial Dist., 172 Mont. 88, 560 P.2d 1328 (1976); Board of Commissioners of Delaware County v. Briggs, 167 Ind.App. 96, 337 N.E.2d 852 (1975); Creelman v. Svenning, 67 Wash.2d 882, 410 P.2d 606 (1966). The reasoning which justifies this rule is based primarily on public policy. As the court stated in Creelman v. Svenning, supra at 885, 410 P.2d at 608:

The public policy which requires immunity for the prosecuting attorney, also requires immunity for both the state and county for acts of judicial and quasi-judicial officers in performance of the duties which rest upon them; otherwise, the objectives sought by immunity to the individual officers would be seriously impaired or destroyed.

If the prosecutor must weigh the possibilities of precipitating tort litigation involving the county and the state against his action in any criminal case, his freedom and independence in proceeding with criminal prosecutions will be at an end.

The public advantage of free, independent, and untrammeled action by the prosecuting attorney outweighs the disadvantage to the private citizen in the rare instance where he might otherwise have an action against both the county and state, either or both.

Moreover, the Indiana court in Board of Commissioners of Delaware County v. Briggs, supra, recognized that in light of established precedents, to hold the State liable where its employees are not liable is a dangerous precedent.

Although a contrary result was reached in Calhoun v. City of Providence, 390 A.2d 350 (R.I.1978), using a public policy analysis, the Calhoun court held that since a county clerk who was responsible for issuing a capias, a common law writ of arrest, was not immune from suit, the state was not also immune. The Rhode Island court recognized the public policy considerations of affording employees the immunity given to their superiors and stated:

Certain types of activities, as for example judicial decision-making and the enforcement of the criminal laws by the attorney general, must be engaged in by these officials freely, independently, and untrammeled by the possibilities of personal liability.

If a judge must weigh each decision against the possibility that he will precipitate tort litigation against the state, his judicial freedom and independence are, nevertheless, affected. The same is true with regard to the conduct of other immune officials whose freedom from liability in particular cases is premised upon compelling public policy grounds.

390 A.2d at 356.

Thus, the questions becomes is a probation officer immune from suit for tortious conduct?

Pursuant to statute and rules ⁵ the probation officer collects and prepares data for the court in a presentence report on persons awaiting sentencing. See HRS § 806-73; Judiciary Manual of Policies and Procedures. Thus, a probation officer serves as an arm of the court and performs "quasi-judicial" functions. We hold that a probation officer is entitled to the absolute immunity afforded to the judges whom they serve in the preparation and presentation of a pre-sentence report.

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