Seibel v. City and County of Honolulu, 6278

• Decision Date: 06 November 1979
• Docket Number: No. 6278,6278
• Citation: 61 Haw. 253,602 P.2d 532
• Parties: Katherine G. SEIBEL and Mason E. Seibel, and Mason E. Seibel, as Temporary Administrator of the Estate of Barbara Kathleen Seibel, Deceased, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee, v. Paul Abraham LUIZ, Third-Party Defendant.
• Court: Hawaii Supreme Court

Page 532

602 P.2d 532

61 Haw. 253

Katherine G. SEIBEL and Mason E. Seibel, and Mason E.

Seibel, as Temporary Administrator of the Estate

of Barbara Kathleen Seibel, Deceased, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee, v. Paul Abraham LUIZ, Third-Party Defendant.

No. 6278.

Supreme Court of Hawai'i.

Nov. 6, 1979.

Rehearing Denied Nov. 26, 1979.

Syllabus by the Court

1. City's liability for failure to control the conduct of a third person is to be determined under general tort principles.

2. Generally, the city is not responsible for the behavior of a third person unless there is a special relationship between the City and either the third person who may likely threaten harm to another or the party who is the victim of that harm.

3. Court order granting criminal defendant conditional release which did not place an express duty on the Prosecuting Attorney's Office to monitor criminal defendant's outpatient psychiatric progress does not establish a special relationship between the Prosecuting Attorney or the City and the criminal defendant which would give rise to a duty to control the criminal defendant's behavior for the benefit of those who may likely be endangered by his conduct.

4. Court order granting criminal defendant conditional release does not provide basis for finding an implied duty on the City to control the criminal defendant's behavior for the protection of others because neither the City nor the Prosecuting Attorney's Office exercised or would ordinarily exercise a degree of control over a conditionally released criminal defendant sufficient to justify the finding of a special relationship which imposes a duty to control the criminal defendant's behavior for the benefit of those who may likely be endangered by his conduct.

Paul F. Cronin, Honolulu (L. Richard Fried, Jr., Allan S. Haley, Honolulu, on the briefs, Cronin, Fried, Sekiya, Haley & Kekina, Honolulu, of counsel), for plaintiffs-appellants.

James E. Ross, Deputy Corp. Counsel, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices, assigned by reason of vacancies.

OGATA, Justice.

This is an appeal from an order dismissing the plaintiffs-appellants' complaint and action with prejudice following the granting of the defendant-appellee's motion to dismiss or for summary judgment. Plaintiffs-appellants are Katherine G. and Mason E. Seibel and Mason E. Seibel as Temporary Administrator of the Estate of Barbara Kathleen Seibel (hereinafter "appellants"). The question before us is the legal responsibility of the defendant-appellee, City and County of Honolulu (hereinafter "appellee" or "city") under the theory of respondeat superior for the alleged negligence of the prosecuting attorney's office in failing to take action to control the conduct of a third party criminal defendant who had been placed on conditional release. ¹ More specifically, the question to be resolved is whether the appellants have stated a cause of action against the appellee for damages sustained by them as a result of the murder of their 15-year old daughter, Barbara, by one Paul Abraham Luiz, the criminal defendant. ² We affirm.

Given the posture of the case on appeal, we accept as true the facts set forth in the complaint, depositions and documents in the trial record. On May 28, 1975, Barbara Kathleen Seibel was murdered by Paul Abraham Luiz (hereinafter "Luiz") who had a history of committing serious sex offenses. At the time of the murder, he was on conditional release undergoing psychotherapy under the care of Dr. Robert D. Kemble, a psychiatrist. The complaint alleged that in 1973, Luiz had been charged with "rape, abduction, sodomy, rape in the first degree, sodomy in the first degree and kidnapping involving several women." Luiz's defense counsel engaged Dr. Robert Kemble to examine Luiz and report on his mental condition. In March 1973, Dr. Kemble began treating Luiz on a weekly basis. After various continuances of the criminal cases with respect to the trial date, Luiz's attorney filed a motion to appoint three psychiatrists to examine Luiz. The psychiatrists reported to the court that at the time he committed the offenses, Luiz had suffered from "seriously diminished capacity" to control his conduct. On April 11, 1974, the court denied Luiz's motion for judgment of acquittal. However, on August 1, 1974, the court, upon reconsideration, granted Luiz's motion for judgment of acquittal and for conditional release. The order for conditional release is the basis upon which appellants would hold the city liable and is set out in its entirety in the margin. ³

On August 25, 1974, less than a month after he was conditionally released, Luiz allegedly picked up a prostitute indicating to her that he had thirty dollars to spend on the "date;" then when she was in his automobile, threatened her with a steak knife and in the ensuing struggle, cut her up with the knife, tied her up, drove her to an unfamiliar area, then sodomized her. The next day, the woman reported the incident to the police. The investigation led to Luiz because the woman had seen a police officer cite her assailant. The woman also identified Luiz from pictures which were shown to her. These findings were presented to Charlotte Libman, a deputy prosecuting attorney then employed by the Prosecutor's Office of the City and County of Honolulu, whose duties included reviewing investigations of complaints. Since she had no knowledge of the male suspect's identity, or his past criminal offenses, and also because the complainant was an alleged prostitute, she did not press forward with the complaint. Subsequently, Detective Earl Benson who had initially complained about this incident to Libman, told another deputy prosecutor, Adrienne Sepaniak, who had appeared on the State's behalf at both of Luiz's motions for judgment of acquittal, about Luiz's suspected involvement in the August 25 incident. Neither Libman nor Sepaniak informed the court or Dr. Kemble of the incident. Luiz remained free. From September 1974 to February 1975, Dr. Kemble made three reports to the court but no copies were forwarded to the prosecutor's office. From February to April 1975, Luiz, with Dr. Kemble's permission, was in California, during which time he received no therapy. A month after he returned to Honolulu, he killed Barbara Kathleen Seibel.

In their complaint, appellants alleged that the appellee was negligent in (1) failing to press forward with the complaint against Luiz arising out of the August 25 incident and (2) failing to inform Luiz's psychiatrist, Dr. Robert Kemble or the court of Luiz's suspected involvement in the August 25 incident. They further alleged that as a result of the failure to inform Dr. Kemble or the court, Luiz remained free to work his harm. The court below dismissed appellants' claim for failure to state a claim against appellee upon which relief could be granted.

At oral argument before us, appellants apparently abandoned the argument that the prosecutor was negligent in failing to prosecute Luiz for the August 25 incident. Thus the question is whether the City, under the theory of respondeat superior, owed a duty to the Seibels or their daughter the breach of which would permit recovery for their damage resulting from the alleged negligent monitoring of a conditional release by the prosecutor's office.

Whether a defendant is liable to another in damages in any particular case is determined by the application of general tort principles. Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). A duty of care owed by the alleged wrongdoer to the injured plaintiff is indispensable to negligence liability. But "(d) uty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the question." Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953). As we said in Kelley v. Kokua Sales and Supply, Ltd., 56 Haw. 204, 207, 532 P.2d 673, 675 (1975), ". . . in determining whether or not a duty is owed by the appellees herein, we must weigh the considerations of policy which favor the appellants' recovery against those which favor limiting the appellees' liability." An actionable duty is generally owed to foreseeable plaintiffs subjected to an unreasonable risk of harm created by the actor's negligent conduct. Ajirogi v. State, 59 Haw. 515, 583 P.2d 980 (1978).

Did the City owe a duty to the appellants or their daughter to control Luiz's behavior or to otherwise warn them of Luiz's potential danger? Generally, a defendant is not responsible for (that is, he has no duty to control) the behavior of a third person unless there is a "special relationship" between the defendant and either the third person who may threaten harm or the party who is the victim of the harm. This rule is set forth in the Restatement (Second) of Torts § 315 (1965):

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

No contention is made that a special relationship existed between the City and the appellants. Thus, appellants must show the existence of a special relation between the City and Luiz which would create a duty to them. Appellants argue that the appellee stood in a special relationship with Luiz because it (1) had prosecuted him on multiple indictments, appeared for the state throughout the proceedings leading to the conditional release and received the information that Luiz was suspected of yet another violent sex offense, and (2) had been charged with the responsibility of monitoring Luiz's outpatient progress under the terms...