Costales v. Rosete , 133 Haw. 453 ( 2014 )

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Electronically Filed
Supreme Court
SCWC-30683
17-MAR-2014
02:56 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---oOo---
________________________________________________________________
STACEY COSTALES,
Respondent/Plaintiff-Appellant/Cross-Appellee,
vs.
SCOTT ROSETE, in his official and individual capacity,
Petitioner/Defendant-Appellee/Cross-Appellant,
and
MELVIN ANDO, in his official and individual capacity;
GLENN YOSHIMOTO, in his official and individual capacity;
STATE OF HAWAI‘I; DEPARTMENT OF HUMAN SERVICES;
OFFICE OF YOUTH SERVICES,
Petitioners/Defendants-Appellees/Cross-Appellants,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants.
________________________________________________________________
SCWC-30683
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30683; CIV. NO. 07-1-2360)
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MARCH 17, 2014
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.1
AMENDED OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In this appeal, a youth correctional officer (“YCO”) found
liable for sexual assault against a ward seeks review of the
ICA’s Judgment on Appeal, entered pursuant to its Memorandum
Opinion, which remanded this case for a new trial limited to the
issue of allocation of fault and damages, due to an
irreconcilable conflict in the jury’s special verdict answers.
Costales v. Rosete, No. 30683 (App. May 30, 2012) (mem.) at 21.
The YCO seeks a completely new trial without limitation on the
basis that he was prejudiced by the admission of evidence of his
State co-defendants’ bad acts. He also seeks to preclude
judgment against him in his individual capacity based upon
Hawai‘i Revised Statutes (“HRS”) § 662-10 (1993)’s “judgment
bar,” which states, “The judgment in an action [against the State
under the State Tort Liability Act] shall constitute a complete
bar to any action by the claimant, by reason of the same subject
matter, against the employee of the State whose act or omission
gave rise to the claim.”
1
Associate Justice Acoba, who heard oral argument and signed the opinion
filed on February 27, 2014, retired on February 28, 2014.
2
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We hold that the ICA was correct in limiting the issues on
re-trial to the allocation of fault and damages, but it should
have further limited the damages issues to be re-tried to the
measure of general and special damages each defendant should pay,
with the jury properly instructed on when each defendant can be
held liable in his individual (versus official) capacity. We
also hold that in this case HRS § 662-10 does not bar
contemporaneous judgments against the State and against Rosete in
his individual capacity.
We therefore vacate the ICA’s Judgment on Appeal, entered
pursuant to its Memorandum Opinion, and affirm the circuit
court’s order granting Rosete a new trial, with the issues
limited on re-trial in a manner consistent with this opinion.
II. Background
A. Complaint and Answer
On December 13, 2007, Plaintiff Stacey Costales filed her
Complaint against Scott Rosete (a YCO at Hawai‘i Youth
Correctional Facility, or “HYCF”), in his individual and official
capacities, Melvin Ando (a former HYCF administrator), in his
individual and official capacities, Glenn Yoshimoto (a former
HYCF correction supervisor), in his individual and official
capacities, the State of Hawai‘i, Department of Human Services
(“DHS”), and the Office of Youth Services (“OYS”). Count One of
the Complaint alleged Assault and Battery, as against Rosete.
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Costales alleged that Rosete took her out of her cell and
sexually assaulted her in 2002 while she was a minor ward
detained at HYCF.
Count Two of the Complaint alleged Negligence, as against
the State, OYS, DHS, Yoshimoto, and Ando for failing to protect
Costales from harm. Specifically, Costales alleged negligent
hiring, supervision, and retention of Rosete; negligent failure
to properly train the HYCF YCOs, including Rosete; negligent
failure to properly and thoroughly investigate assaults and
batteries committed by HYCF YCOs, including Rosete; negligent
failure to adequately reprimand YCOs, including Rosete, to
prevent them from harming other wards or from working at HYCF;
negligent management of HYCF; and negligent and unreasonable
failure to adopt and implement policies and procedures to
supervise and care for wards detained at HYCF in order to prevent
assaults and batteries against wards. Costales alleged that Ando
and Yoshimoto were not protected by qualified immunity because
these defendants acted with malice and/or for an improper
purpose. Costales further alleged that these defendants endorsed
a pattern or practice of conduct that created an unreasonably
dangerous condition at HYCF.
Count Three of the Complaint alleged Intentional and
Negligent Infliction of Emotional Distress by each of the
defendants. Count Four of the Complaint sought punitive damages
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against Rosete, Ando, and Yoshimoto. Costales prayed for
general, compensatory, and special damages in an amount to be
proven at trial; punitive damages; pre- and post-judgment
interest; and such other and further relief as the court deemed
just and equitable.
Rosete then filed his Answer to Plaintiff’s Complaint,
denying the allegations contained in the First, Second, and Third
Claims. He also raised HRS § 662-10 as a defense, arguing that
Costales was barred “from obtaining judgment against both the
State of Hawai‘i (including any State agency, employee, or
official, in an official capacity) and Defendant Rosete.”
B. Trial
Rosete, in his individual capacity, was tried along with the
rest of the defendants. Rosete, in his individual capacity, was
tried by a jury. The jury was advisory as to the remaining
defendants.
1. Testimony of Former Wards
At trial, Costales called as witnesses three former wards
who were residing at HYCF at the time of the alleged assault.
Each testified that Rosete was physically and verbally abusive.
One ward testified that Rosete had discussed sex with her and
sexually touched her as well. The former wards testified that
the other YCOs saw Rosete’s behavior but did nothing about it.
They also testified that they did not report Rosete because they
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were scared of him, and Rosete would boast that nothing would
happen to him if they reported him anyway.
The former wards also testified that for months, Rosete and
another YCO would bring out certain girls (including Costales) at
night, paper over the windows to the girls’ dorm so the other
wards would not see what was happening, give the girls food and
cigarettes, receive massages, and sleep while the girls punched
their time cards.
Regarding whether Rosete allegedly sexually assaulted
Costales, one former ward testified that Costales had returned
from being taken out one night and was “crying and said she was
scared, she didn’t know what to do.” The former ward testified
that Costales told her Rosete “had sex. He put it in two times
and then pulled out.” Another former ward testified that on the
night of the alleged sexual assault, Costales looked scared and
begged her to stay up all night with her, telling her in
incomplete sentences only such information as, “[Rosete] took me
to [an isolation room]. There was a mattress.” Costales stopped
short of full disclosure to this former ward.
2. Testimony of Carl Imakyure
Costales also called Carl Imakyure, a Children and Youth
Specialist V with the Office of Youth Services, a division within
the State of Hawaii’s Department of Human Services. He testified
that late 2004 or early 2005, he was asked to conduct a “systems
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investigation into HYCF,” in other words, to look at “regular
patterns of behavior pertaining . . . to programs, staff
training, any incidents of neglect or abuse, anything that would
seem to be consistent over at the HYCF,” with a focus on
Yoshimoto’s contribution to the institutional culture. The
relevant time frame for Imakyure’s systems investigation was from
2000 or 2001 up to 2003 or 2004, but he looked at data from 1999
to 2003.
Imakyure’s report concluded that there was a “lack of
training” at HYCF, that Yoshimoto had a difficult time
disciplining the staff such that “there was a continuing pattern
of abuse by staff by particular YCOs,” and that “the YCOs did not
have the kind of close oversight and supervision needed at that
time to ensure the safety and the care of these youths.”
Imakyure testified that he concluded in his report that Yoshimoto
was grossly negligent. He also acknowledged that his report
questioned whether Yoshimoto possessed compassion for the youth
at HYCF. Imakyure testified that he did not recall coming across
any information in his investigation concerning Rosete. The
record does not reflect that Rosete requested a limiting
instruction during Imakyure’s testimony (or during the final
charge to the jury).
3. Testimony of Harold Fitchett
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Costales called Harold Fitchett, an investigator with the
Attorney General’s office, whom Ando asked to investigate
Rosete’s rumored sex assault of Costales. Fitchett tape-recorded
his interview with Costales, which took place on June 7, 2002.
On the recording, Costales explained that Rosete committed
misconduct of a sexual nature “four or five times” in January or
February 2002, shortly before she was released from HYCF.
Costales stated that Rosete and another YCO would remove her and
another ward from their dormitory during the first shift, and the
two girls would punch the time clock for the YCOs. She stated
that the first time Rosete sexually assaulted her, she was lying
on a couch in the staff area, Rosete laid next to her, and “was
fingering [her] on top of the [couch]” and “pulling [her] pants
and doing whatever to [her].” She stated that Rosete told her to
be quiet and that she was scared, so she did not say anything.
Costales stated that Rosete also “fondl[ed her] breast and stuff
. . . with his hands.” Costales stated that, although she was
not physically hurt, she was scared because Rosete had beaten up
other wards in the past.
Costales stated that the second incident of sexual assault
happened two or three days after the first and was similar to the
first. Costales stated that the third incident consisted of
“nothing physical,” but “sexual comments.” Rosete told her he
“want[ed] to fuck [her] brains out,” and that they “look[ed]
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sexy.” Costales stated that, by the time the fourth incident
came around, she was “just fucken losing it” because she was
scared of Rosete and what would happen next. She stated that
Rosete came into her cell that night, “laid on [her] bed with
[her] and covered [her] mouth. And he was just, like, kissing
[her] neck, kissing [her] ear.” Costales said she started crying
and asking Rosete why he was doing this to her, and Rosete
covered her mouth and told her to “shut up.” At that point, a
timer bell went off, and Rosete left Costales’ cell to punch the
clock. When he returned, he removed Costales from her cell and
took her to an isolation room in the back of the dorm. Costales
stated that Rosete “laid [her] down on the mattress in the back
of the dorms and he was fingering [her] once again, um, just
kissing [her] . . . doing things with [her]. . . And then he
tried to shove his [penis] in [her]. . . . . And when he shoved
it in, he shoved it in.” Rosete stopped because he heard a noise
and went to check on it. In the meantime, Costales returned to
her cell, washed herself off, and another ward asked her what
happened. When Rosete returned, he called her a “fucken[] bitch”
and stated that she “ruined it all” because he “wanted to do
things to [her].”
Costales also told Fitchett that another YCO had sexually
assaulted one ward and physically assaulted other wards,
including Costales. Fitchett further testified that he was
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directed by the union representing the HYCF YCOs to destroy all
the records of his investigations into the abuses at HYCF.
4. Testimony of Linda Hadley
Costales called Linda Hadley, a former nurse and
administrator at HYCF. She testified that she told a senate
committee about “[v]erbal abuse, physical abuse. . .[,] sexual
abuse,” and the “lack of concern by administration to provide the
safety that was needed for the kids” at HYCF. Hadley testified
to the lack of training or supervision of the YCOs. Hadley was
familiar with Rosete and characterized him as a “very
authoritative person” who “[l]ike[d] to have control over the
kids.” Hadley did not know that Costales had been assaulted.
The record does not reflect that Rosete requested a limiting
instruction at the time of Hadley’s testimony (or during the
final charge to the jury).
5. Testimony of Lia Olione
Lia Olione, an HYCF YCO, had his deposition testimony read
into evidence after he invoked his Fifth Amendment right against
self-incrimination and was declared unavailable. The circuit
court allowed portions of his deposition in another HYCF guard-
on-ward sexual assault case to be read to the jury2 as relevant
to the other defendants’ notice, over Rosete’s objection that the
2
That deposition testimony was not transcribed by the court reporter,
even though this court required such transcription in Roxas v. Marcos, 89
Hawai‘i 91, 100 n.2, 969 P.2d 1209, 1218 n.2 (1998).
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testimony violated Hawai#i Rules of Evidence (“HRE”) Rules 401,
402, 403, 404, 602, and 802, and that he was not noticed for the
deposition. Relevant to Rosete’s appeal, Olione testified to the
following:
-- He received no training, including how to deal with
adolescents, when he was hired by HYCF.
-- He did not believe he and the other YCOs were adequately
supervised by their immediate superiors or by Ando and
Yoshimoto.
-- He slept on the job because “[n]obody check[ed] on
[him].”
-- He opined, “I don’t think anybody checks on anybody in
that facility.” He opined that “[e]verybody was doing as
they see fit,” including supervisors.
-- A female ward told him that YCOs were having sex with
female wards. Although he knew such contact was prohibited,
he did not report it to Ando or Yoshimoto because “[t]he
whole facility was out of control . . . Nobody was doing
anything.”
-- He agreed that YCOs verbally abused the wards and that
this abuse went unreported to Ando or Yoshimoto.
-- Abusive YCOs were allowed to keep their positions and
continue their verbally, physically, and/or sexually abusive
behavior.
-- He agreed that the YCOs -— not the HYCF administration –-
were in control and that the resulting atmosphere was one of
desperation and terror for the wards.
-- There was a “lack of discipline . . . almost to the point
where we [YCOs] [we]re encouraged to do wrong since there
[wa]s no discipline, and no close supervision. . . .”
6. Testimony of Glenn Yoshimoto
Costales called Glenn Yoshimoto, who testified that a YCO
accused of sexually harassing a ward continued to work at HYCF
“until he went to prison.” Because the parties acknowledged that
Yoshimoto opened the door3 regarding YCO Lia Olione’s conviction
for sexual assault, the parties agreed with the circuit court to
3
Evidence of other lawsuits against the State, particularly Ruiz v. State
of Hawaii, et al., Civil No. 04-1-1739-09 (KSSA), which arose from a 2003
alleged sex assault of a ward by Olione, had been previously excluded by an
order granting in part and denying in part one of the State’s motions in
limine.
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stipulate to the fact of conviction. The stipulation read to the
jury was as follows:
The parties in this case through their lawyers have
stipulated to certain facts and you must consider those
facts as having been conclusively proved.
The facts that they have stipulated to are that Mr.
Olione was found guilty of and stated the following:
On June 15, 2003, while employed at a
State correctional facility I had sexual
intercourse and inserted my finger into the
vagina of SM . . . an inmate/ward of the
correctional facility.
I also touched the breasts of
inmate[/]ward SM a person less than 16 but at
least fourteen who was more than five years
younger than myself and to whom I was not
married.
In June 2003 I recklessly threatened SM by
word or conduct on more than one occasion for
the same purpose.
In fact, Rosete wanted the jury to know that it was Olione who
was convicted of sex assault, lest the jury believe that the
incident involved Rosete. Rosete did not request a limiting
instruction at the time of the stipulation, and the record does
not reflect that he requested a limiting instruction as part of
the jury’s final charge.
When Yoshimoto’s testimony resumed, Plaintiff’s counsel
questioned him about the destruction of ward complaints; YCO-on-
ward verbal, physical, and sexual abuse; and Costales’ own
grievances about being beaten by another YCO (not Rosete) and
being placed in isolation with insufficient food and sleep time.
Yoshimoto alternately denied the incidents happened, denied
knowledge or recollection of these incidents, disclaimed
responsibility for those incidents that occurred while sub-
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contractors ran the HYCF school, justified the incidents as
reasonable use of force, or asserted that verbal abuse at HYCF
was too pervasive to reduce or eliminate. Rosete did not request
a limiting instruction at the time of Yoshimoto’s testimony, and
the record does not reflect that he requested a limiting
instruction as part of the jury’s final charge.
7. Testimony of Scott Rosete
Costales also called Rosete, then a YCO supervisor on paid
leave from HYCF, to testify. His testimony regarding the time
period of the alleged sexual assaults follows:
Q [by Costales’ counsel]: Did you ever take [Costales] out
of her dorm at night?
A [by Rosete]: I’m sure I did.
Q: Did you ever take any other girls out of their dorms at
night?
A: Yes, I have.
Q: And, during those times did you allow them to punch the
clock?
A: No, ma’am.
Q: During the nights when you took [Costales] out of her
room, you allowed her to watch TV, right?
A: My answer would be yes, but, I would have to explain
myself though. When we take them out, the T.V.’s already on
because that’s what we’re doing, we’re watching TV. And, --
and, we’d be taking out wards for numerous reasons. If they
come out –- out of the dorm, they’re in the living room area
where the T.V’s at I’m sure that they would be watching.
Q: And, you do this during the time when they’re supposed
to be locked up and in their dorm and sleeping, right?
A: Yes, ma’am.
Q: And, you would give her candies and cigarettes during
these nights; isn’t that correct?
A: That’s not true.
Q: And you would make her massage your feet during these
nights; is that correct?
A: That is not correct.
Q: And, did you not talk dirty to her during these nights?
A: That is absolutely not true.
Q: Did you not tell her that she was sexy?
A: No.
Q: Did you ever –- did you not tell her that you wanted to
fuck her brains out.
A: I did not.
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Q: And, did you not touch her in a sexual way?
A: No, ma’am.
Q: Did you sexually assault[] Stacey Costales with your
fingers?
A: No.
Q: Did you sexually assault[] her with your penis?
A: Negative.
8. Testimony of Stacey Costales
Costales also took the stand. She testified that wards
feared Rosete because he had physically abused her and other
wards. She testified that she and other wards did not report the
physical abuse because nothing would have been done about it.
She testified that Rosete would boast that all he would get was a
“slap on the wrist” if any of the wards reported his behavior.
Costales also testified that Rosete called the wards “bitches”
and “sluts.” He would often humiliate the wards by making them
wear “I’m stupid” signs and by making them bark like dogs for
their food.
She testified that she began to trust Rosete after he
started counseling her and taking her out of her dorm at night to
give her candy, Zippy’s food, and cigarettes. She testified that
she punched the time clock for Rosete, massaged his feet, made
toast for him, and grabbed mattresses from the isolation rooms
for him. She testified that after Rosete befriended her, he
“started doing things to [her],” including touching her breasts
and vagina twice, before having sexual intercourse with her. He
also told Costales she was “sexy” and that he “want[ed] to fuck
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[her] brains out.” She elaborated that the night Rosete had sex
with her, he had asked her to bring him a mattress from an
isolation room; when Costales was in the isolation room, Rosete
followed her and pushed her onto the mattress, “got on top of
[her], pulled [her] clothes off and put himself inside of [her].”
He stopped because he heard something and went to check it out.
9. Testimony of Susan Thain
Portions of the deposition testimony of retired HYCF teacher
Susan Thain were read to the jury after Thain was declared
unavailable. Thain testified that she was not aware that
Costales was sexually assaulted, but she testified that she knew
two other wards were raped. She testified that other YCOs were
having what she surmised to be a sexual relationship with another
ward, based on the ward’s statements to her. That same ward was
also talked into stripping down by another YCO, who told her he
wanted to use her as a clothing model. Thain testified that, in
general the YCOs would often “swat [a] girl on the butt” or make
passing comments she considered inappropriate.
Thain testified that she witnessed YCOs physically beating
the wards, once to the point where a ward became unconscious.
She testified that when she reported the abuse, the YCOs would
harass and threaten her, and she believed her car was vandalized
by one of them.
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C. Jury Instructions, Special Verdict Form, Findings of
Fact and Conclusions of Law, and Final Judgment
Relevant to this appeal, the only instruction on the
difference between official and individual capacity was the
following:
If a State employee is found liable in his official
capacity, then the State is responsible.
If a State employee is found liable in his individual
capacity, then that State employee is personally
responsible.
Also relevant to this appeal, the circuit court charged the jury
with the following instructions concerning separating each
defendant’s rights:
Similarly, each defendant in this case has separate
and distinct rights. You must decide the case of each
defendant separately, as if it were a separate lawsuit.
Unless I tell you otherwise, these instructions apply to all
the defendants.
The jury entered its answers on the special verdict form as
follows:
QUESTION NO. 1:
Did Scott Rosete sexually assault Plaintiff Stacey
Costales?
Yes _X_ (12) No ___
If you answered “Yes”, proceed to Question No. 2. If you
answered “No”, proceed to the end of this form, date and
sign it, and then call the Bailiff.
QUESTION NO. 2:
Was Scott Rosete’s sexual assault a legal cause of
Plaintiff Stacey Costales’ injury?
Yes _X_ (12) No ___
If you answered “Yes”, proceed to Question No. 3. If you
answered “No”, proceed to the end of his [sic] form, date
and sign it, and then call the Bailiff.
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QUESTION NO. 3:
Before December 12, 2005, did Stacey Costales
discover, or reasonably should have discovered, that she was
psychologically or emotionally injured by Defendant Rosete’s
sexual assaults?
Yes ___ No _X_ (12)
If you answered “Yes”, proceed to the end of this form, date
and sign it, and then call the Bailiff. If you answered
“No”, proceed to Question No. 4
QUESTION NO. 4:
Was Melvin Ando negligent?
Yes _X_ (12) No ___
If you answered “Yes”, proceed to Question No. 5. If you
answered “No”, proceed to Question No. 6.
QUESTION NO. 5:
Was the negligence of Melvin Ando a legal cause of
Plaintiff Stacey Costales’ injury?
Yes _X_ (12) No ___
Proceed to Question No. 6.
QUESTION NO. 6:
Was Glenn Yoshimoto negligent?
Yes _X_ (12) No ___
If you answered “Yes”, proceed to Question No. 7. If you
answered “No”, proceed to Question No. 8.
QUESTION NO. 7:
Was the negligence of Glenn Yoshimoto a legal cause of
Plaintiff Stacey Costales’ injury?
Yes _X_ (12) No ___
Proceed to Question No. 8.
QUESTION NO. 8:
Was the State of Hawaii (or any of its agencies
including the Department of Human Services and/or the Office
of Youth Services) negligent?
Yes _X_ (12) No ___
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If you answered “Yes”, proceed to Question No. 9. If you
answered “No”, proceed to Question No. 10.
QUESTION NO. 9:
Was the negligence of the State of Hawaii (or any of
its agencies including the Department of Human Services
and/or the Office of Youth Services), a legal cause of
Plaintiff Stacey Costales’ injury?
Yes _X_ (12) No ___
Proceed to Question No. 10.
QUESTION NO. 10:
If you have found one or more of the parties above at
fault, and that its or his actions were a legal cause of
Plaintiff Stacey Costales’ injury, for each party, enter the
percentage of fault you attribute to that party. Please
note that the total of the percentages must equal 100%.
Scott Rosete 62%
Melvin Ando 9%
Glenn Yoshimoto 15%
State of Hawaii
(Department of Human Services and/or the Office
of Youth Services) 14%
TOTAL 100%
QUESTION NO. 11 – (Special Damages)
Without regard to any possible apportionment of her
damages, what is the total amount of Plaintiff Stacey
Costales’ special damages?
1) Scott Rosete
Official Capacity $__________
Individual Capacity $67,000 (12)
2) Melvin Ando
Official Capacity $__________
Individual Capacity $__________
3) Glenn Yoshimoto
Official Capacity $__________
Individual Capacity $__________
4) State of Hawaii $__________
(Department of
Human Services and/or
The Office of Youth Services)
TOTAL $67,000
QUESTION NO. 12 – (General Damages)
Without regard to any possible appointment [sic] of
her damages, what is the total amount of Plaintiff Stacey
Costales’ general damages?
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1) Scott Rosete
Official Capacity $200,000 (12)
Individual Capacity $200,000 (12)
2) Melvin Ando
Official Capacity $100,000 (12)
Individual Capacity $50,000 (12)
3) Glenn Yoshimoto
Official Capacity $150,000 (11)
Individual Capacity $150,000 (11)
4) State of Hawaii $300,000 (12)
(Department of Human
Services and/or the Office
Of Youth Services)
TOTAL $1,150,000
QUESTION NO. 13:
What percentage of Plaintiff Stacey Costales’ damages,
if any, is attributable to any of the following:
a. Pre-existing Injury/Condition ___%
b. January/February 2002 Incidents 75%
c. Subsequent injury/condition 25%
TOTAL (Note: The total must equal 100%) 100%
QUESTION No. [14] – (Punitive Damages)
What is the total amount of any punitive damages that
Plaintiff Stacey Costales should receive from each
Defendant?
Scott Rosete $300,000
Melvin Ando $_______
Glenn Yoshimoto $_______
TOTAL $300,000
The jury’s answers closely tracked Costales’ request for damages
in her closing argument: “For Mr. Rosete, we’re asking $600,000.
$300,000 for compensation, $300,000 for punitive damages. . . .
The State? $300,000. Mr. Ando? $300,000. Mr. Yoshimoto?
Same. Because they’re equally responsible. . . . And for future
care and psychotherapy, $67,000. This is the total of one
million five sixty-seven.” In closing, Costales also asserted
that 75% of her depression resulted from Rosete’s sexual assault.
The circuit court filed its Findings of Fact and Conclusions
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of Law, which adopted the jury’s special verdict findings as to
Rosete, in his individual capacity, and adopted the advisory
jury’s special verdict findings as to the remaining defendants.
The circuit court entered final judgment as follows:
With respect to Claim I of Plaintiff’s Complaint,
relating to Plaintiff’s claim of assault and battery against
Defendant Scott Rosete, Judgment is hereby entered in favor
of Plaintiff Stacey Costales and against Defendant Scott
Rosete.
With respect to Claim II of Plaintiff’s Complaint,
relating to Plaintiff’s claim of negligence, Judgment is
hereby entered in favor of Plaintiff Stacey Costales and
against Defendants State of Hawaii, Office of Youth
Services, Department of Human Services, Melvin Ando and
Glenn Yoshimoto.
With respect to Claim III of Plaintiff’s Complaint,
relating to Plaintiff’s claim of intentional and negligent
infliction of emotional distress, Judgment is hereby entered
in favor of Plaintiff Stacey Costales and against Defendants
Scott Rosete, State of Hawaii, Office of Youth Services,
Department of Human Services, Melvin Ando and Glenn
Yoshimoto.
With respect to Claim IV of Plaintiff’s Complaint,
relating to Plaintiff’s claim for punitive damages, Judgment
is hereby entered in favor of Plaintiff Stacey Costales and
against Defendant Scott Rosete in the amount of $300,000.00.
Without regard to any apportionment, Plaintiff
Stacey[] Costales’ special damages are $67,000 and her
general damages are $1,150,000.00.
Without regard to any apportionment, Plaintiff’s total
special, general and punitive damages are $1,517,000,000.
[sic]
Applying the 25% apportionment for Plaintiff’s
subsequent injury/condition, Plaintiff Stacey Costales’
combined special and general damages are $912,750.00.
Pursuant to the Court’s February 9, 2010 Order
Granting in Part and Denying in Part Plaintiff’s Motion for
Taxation of Costs and Pre-Judgment Interest, Plaintiff
Stacey Costales is entitled to costs in the amount of
$12,438.27 against Defendants, except $1,993.19 of which is
not taxable against Defendant Scott Rosete in his individual
capacity; Plaintiff is not entitled to pre-judgment
interest.
Judgment in Plaintiff Stacey Costales’ favor, and
against all Defendants, is hereby entered in the total
amount of $1,225,188.27.
All remaining parties or issues to this case are
dismissed.
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D. Post-Trial Motions4
Rosete moved for judgment as a matter of law or,
alternatively, for a new trial. Rosete argued that the “torrent
of evidence . . . with regard to alleged abuses by others” at
HYCF should have been excluded as to Rosete as more prejudicial
than probative. Rosete also argued that the special verdict form
was inconsistent and confusing. Rosete then argued that Costales
could not take judgment against both Rosete and the State, citing
HRS § 662-10, which states, “The judgment in an action under this
chapter shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against the
employee of the State whose act or omission gave rise to the
claim.”
The circuit court issued its Order Granting in Part and
Denying in Part Defendant Rosete’s, in his Individual Capacity,
Motion for Judgment as a Matter of Law and Alternative Motion for
a New Trial. The motion was granted as to Rosete’s request for a
new trial and denied as to his motion for judgment as a matter of
law. The only basis for the new trial was the irreconcilable
conflict in the jury’s answers to special verdict question
numbers 10 and 12: “The court finds that an irreconcilable
4
Effective January 28, 2010, Judge Marks’ previously assigned civil cases
were transferred and reassigned to Judge Rhonda Nishimura. Judge Marks
presided over the trial in this case; Judge Nishimura presided over the bulk
of the post-trial motions in this case.
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conflict exists between the jury’s answers in the percentage
allocation of fault amongst the defendants and the monetary
damages allocated amongst the defendants.”
Costales moved for reconsideration of the circuit court’s
order. Costales included as “new evidence” declarations from
nine jurors5 stating that they intended to award Costales the
dollar amounts assigned to all defendants in question number 12
of the special verdict and that the percentages of fault
allocated in question number 10 did not control. Alternatively,
Costales argued that if a new trial were unavoidable, the issues
upon re-trial should be limited to the allocation of general
damages among the defendants, as the defendants did not dispute
that they were 100% at fault and that the total damages were
$1,150,000.00. The circuit court denied Costales’ motion for
reconsideration.6
E. ICA Appeal
This appeal reached the ICA on the circuit court’s order
granting Costales’ Motion for Interlocutory Appeal of the order
granting Rosete, in his individual capacity, a new trial, and the
order denying her motion for reconsideration of that order.
5
Costales later filed similar declarations from two more jurors.
6
The trial court left it to the appellate courts to consider the juror
declarations. The ICA concluded (and we agree) that the juror declarations
concerned the jurors’ intent; therefore, the circuit court properly declined
to consider the declarations because they were barred under HRE Rule 606.
Costales, mem. op. at 17-18.
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Rosete, in his individual capacity, filed a cross-appeal,
raising as points of error the circuit court’s admission of the
other defendants’ bad acts, the circuit court’s failure to grant
Rosete a new trial on the additional basis of prejudice from
these bad acts, and HRS § 662-10’s judgment bar.
In Costales’ answering brief, she counter-argued, “The Trial
Court was correct in admitting evidence of prior physical and
sexual abuse of other HYCF wards by Defendants Rosete and other
guards to show notice of a dangerous condition and opportunity.”
Costales also argued that Rosete was not prejudiced by the
admission of the other defendants’ bad acts because the evidence
was overwhelming that Rosete sexually assaulted Costales.
Further, she argued that Rosete waived his argument for failing
to move for limiting instructions as to this evidence at trial.
Lastly, as to Rosete’s HRS § 662-10 argument, Costales counter-
argued that there is no Hawai‘i case law interpreting the
statute, but she cited Breed v. Shaner, 57 Haw. 656, 665, 562
P.2d 436, 442 (1977), for the general proposition that Hawai‘i’s
STLA should be liberally construed to compensate victims for the
negligent conduct of State employees.
The ICA issued a Memorandum Opinion, remanding this case
“for a new trial limited to the allocation of fault and damages
among the defendants.” Costales, mem. op. at 21. The ICA
concluded that the evidence of the other defendants’ bad acts was
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admissible to show notice. Costales, mem. op. at 12. Further,
the ICA concluded that Olione’s deposition testimony concerning
his sexual assault of another ward was admissible once Yoshimoto
opened the door. Costales, mem. op. at 13. Moreover, the ICA
concluded that all of this evidence was not unfairly prejudicial
to Rosete because the circuit court instructed the jury to
consider evidence against each defendant separately. Costales,
mem. op. at 13.
The ICA also rejected Rosete’s argument that HRS § 662-10
precluded judgment against both him and the State. Costales,
mem. op. at 15. It concluded, “Plainly read, the statute
precludes subsequent claims on the same subject matter, but does
not bar claims against multiple defendants.” Costales, mem. op.
at 15 (citing Rodriguez v. Handy, 873 F.2d 814, 816 n.1 (5th Cir.
1989)).
The single issue in which the ICA concluded that the circuit
court erred was in ordering a new trial without a limitation on
issues, because the defendants did not dispute that their
combined fault was 100%, nor did they argue that the damage award
was unreasonable. Costales, mem. op. at 18. The ICA concluded,
“The circuit court ignored the supreme court’s conclusion in Dias
[v. Vanek, 67 Haw. 114, 118, 679 P.2d 133, 136 (1984)] that the
preferred remedy for such a verdict is a new trial limited to the
issue of damages.” Costales, mem. op. at 20 (emphasis in
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original). The ICA then remanded the case for a new trial
“limited to the allocation of fault and damages among the
defendants.” Costales, mem. op. at 21.
III. Standards of Review
A. Motion for New Trial
Both the grant and the denial of a motion for new trial
[are] within the trial court’s discretion, and we will not
reverse that decision absent a clear abuse of discretion.
An abuse of discretion occurs “where the trial court has
clearly exceeded the bounds of reason or disregarded rules
or principles of law or practice to the substantial
detriment of a party litigant.”
State by Bronster v. U. S. Steel Corp., 82 Hawai‘i 32, 54, 919
P.2d 294, 316 (1996) (citations omitted). It is also within the
appellate court’s discretion to limit the issues of a new trial
upon remand. Miyamoto v. Lum, 104 Hawai‘i 1, 10, 84 P.3d 509,
518 (2004).
B. Evidentiary Rulings
[D]ifferent standards of review must be applied to trial
court decisions regarding the admissibility of evidence,
depending on the requirements of the particular rule of
evidence at issue. When application of a particular
evidentiary rule can yield only one correct result, the
proper standard for appellate review is the right/wrong
standard. Where the evidentiary ruling at issue concerns
admissibility based upon relevance, under [Hawai#i Rules of
Evidence (HRE)] Rules 401 and 402, the proper standard of
appellate review is the right/wrong standard. . . .
Evidentiary decisions based on HRE Rule 403, which require a
“judgment call” on the part of the trial court, are reviewed
for an abuse of discretion.
Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 350-51, 944 P.2d
1279, 1293-94 (1997).
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C. Statutory Construction
Interpretation of a statute is a question of law, which this
court reviews de novo. See Molinar v. Schweizer, 95 Hawai‘i 331,
334-35, 22 P.3d 978, 981-82 (2001) (citation omitted).
IV. Discussion
As a preliminary matter, the circuit court and ICA properly
concluded that the special verdict form was defective. It is
true that the trial court has “‘complete discretion’ over the
type of verdict form” to use. Montalvo v. Lapez, 77 Hawai‘i 282,
292, 884 P.2d 345, 355 (1994) (citations omitted). “When . . .
the trial court ‘require[s] a jury to return only a special
verdict in the form of a special written finding upon each issue
of fact,’ HRCP 49(a)[7] compels the judge to ‘give to the jury
such explanation and instruction concerning the matter thus
7
Hawai‘i Rules of Civil Procedure Rule 49(a) (2009) provides:
Special verdicts. The court may require a jury to return
only a special verdict in the form of a special written
finding upon each issue of fact. In that event the court
may submit to the jury written questions susceptible of
categorical or other brief answer or may submit written
forms of the several special findings which might properly
be made under the pleadings and evidence; or it may use
such other method of submitting the issues and requiring the
written findings thereon as it deems most appropriate. The
court shall give to the jury such explanation and
instruction concerning the matter thus submitted as may be
necessary to enable the jury to make its findings upon each
issue. If in so doing the court omits any issue of fact
raised by the pleadings or by the evidence, each party
waives the right to a trial by jury of the issue so omitted
unless before the jury retires the party demands its
submission to the jury. As to an issue omitted without such
demand the court may make a finding; or, if it fails to do
so, it shall be deemed to have made a finding in accord with
the judgment on the special verdict.
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submitted as may be necessary to enable the jury to make its
findings upon each issue.’” Knodle v. Waikiki Gateway Hotel, 69
Haw. 376, 383, 742 P.2d 377, 382 (1987) (footnote modified). The
questions on the special verdict form, however, “may be so
defective that they constitute reversible error. In analyzing
alleged errors in special verdict forms, the instructions and the
interrogatories on the verdict form are considered as a whole.”
Montalvo, 77 Hawai‘i at 292, 884 P.2d at 355 (citations omitted).
In this case, the special verdict form and its accompanying
jury instructions were defective. The jury instructions did not
inform the jury as to the circumstances under which Rosete,
Yoshimoto, and Ando would be liable in their individual versus
official capacities for the general damage amounts the jury
assigned in special verdict question number 12. Ordinarily, a
public official is qualifiedly immune from liability. Medeiros
v. Kondo, 55 Haw. 499, 505, 522 P.2d 1269, 1272 (1974). To
defeat a public official’s claim of qualified immunity, the
burden is on the plaintiff to adduce “clear and convincing proof
that [the public official] defendant was motivated by malice and
not by an otherwise proper purpose.” Id. “If it is determined
that [the individual defendant] was acting within the scope of
his employment as a public official, then he can be held liable
for general, special, and punitive damages (1) if he maliciously
exercised his official discretion, or (2) if he maliciously
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committed a tort against plaintiffs. . . .” Kajiya v. Dep’t of
Water Supply, 2 Haw. App. 221, 227, 629 P.2d 635, 640 (App. 1981)
(citations and footnote omitted).
“Unless the issue is removed from the case by uncontested
affidavits and depositions, the existence or absence of malice is
a question for the jury.” Kajiya, 2 Haw. App. at 227, 629 P.2d
at 640. In this case, there was no jury instruction on malice or
improper purpose; therefore, when the jury assigned damage
amounts to Rosete, Ando, and Yoshimoto in their individual and
official capacities in special verdict question number 12, it was
not informed that Costales had to meet a higher burden of proof
in order to hold the individual defendants personally liable for
her damages.
Second, the jury’s answers to special verdict question
numbers 10 and 12 were irreconcilably in conflict. “A conflict
in the answers to questions in a special verdict does not
automatically warrant a new trial; a new trial will be ordered
only if the conflict is irreconcilable.” Kalilikane v. McCravey,
69 Haw. 145, 152, 737 P.2d 862, 867 (1987) (citation omitted).
Although the ICA has previously cited to Texas authority for the
proposition that an irreconcilable conflict in a special verdict
form exists when “one of the answers would require a judgment in
favor of the plaintiff and the other would require a judgment in
favor of the defendant . . . necessarily requir[ing] the entry of
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a judgment different from that which the court has entered,” we
have also found an irreconcilable conflict in situations where
there was no question that the judgment would be for the
plaintiff. Compare Dunbar v. Thompson, 79 Hawai‘i 306, 312-13,
901 P.2d 1285, 1291-92 (App. 1995) (citing Vieau v. City & County
of Honolulu, 3 Haw. App. 492, 499, 653 P.2d 1161, 1166 (1982)
(citing Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex, 197,
206, 222 S.W.2d 985, 991 (1949))) with Ray v. Kapiolani Med.
Specialists, 125 Hawai‘i 253, 261-62, 259 P.3d 569, 577-78 (2011)
(observing that the jury’s answers to the special verdict form
were irreconcilably in conflict based on the facts of the case,
where the jury found that a doctor’s treatment of a plaintiff did
not cause injury but found that the doctor’s failure to properly
inform the plaintiff did).
In this case, the special verdict form called upon the jury
to assign damages in two ways: special verdict question number
10 asked the jury to assign percentages of fault for Costales’
injury among all the defendants, while special verdict question
number 12 asked the jury to break down general damages owed to
Costales by the State and by Rosete, Ando, and Yoshimoto. The
jury answered question number 12 in a manner mathematically
inconsistent with their answer to question number 10. The
answers to these questions were irreconcilably in conflict. Like
Ray, even though the judgment for plaintiff is not at issue, the
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jury’s answers to special verdict question numbers 10 and 12 are
irreconcilably in conflict because it is unclear what amount of
general and special damages Rosete, Ando, and Yoshimoto owe to
Costales, and in what capacity (individual or official).
Therefore, a new trial is warranted.
The next section discusses the issues to be determined upon
re-trial.
A. New Trial Limited to the Allocation of Fault and
Damages among the Defendants
On certiorari, Rosete argues that the ICA erred in ordering
an entirely new trial limited to the allocation of fault and
damages among the defendants. Further, he argues in conclusory
fashion that “[t]he concept of seating a new jury merely to
reallocate a prior jury’s dueling verdicts is unprecedented and
denies either the state an advisory jury or Mr. Rosete an actual
jury verdict.” In any event, he argues the new jury would have
to hear all the evidence, making the ICA’s remand impractical.
Rosete makes plain that the primary reason he seeks a new trial
is to exclude evidence heard in the first trial that he argues
was unfairly prejudicial to him, an issue that is discussed in
the next subsection.
In Costales’ Response, she counter-argues (1) limiting re-
trial to the “allocation of damages” is the preferred remedy
under Dias, 67 Haw. 114, 679 P.2d 133; (2) such a limitation
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promotes judicial economy and fairness, particularly in light of
the fact that the defendants do not contest that they were 100%
liable for Costales’ injury or that the total damages awarded
were reasonable; (3) the limited re-trial is a practical solution
and will not require recalling many of the liability and damages
witnesses; and (4) Rosete’s request for a completely new trial is
a thinly veiled attempt at a “second bite of the apple.”
The ICA’s remand of this case for a re-trial “limited to the
allocation of fault and damages” is problematic. Costales, mem.
op. at 21. The ICA cited Dias for the proposition that “the
preferred remedy for [an irreconcilable conflict in a special
verdict form] is a new trial limited to the issue of damages.”
Costales, mem. op. at 20 (emphasis in original). Dias, however,
does not squarely address the situation in this case: an
uncontested total damage award where the allocation of fault, in
addition to damages, among the defendants is ambiguous.
In Dias, homebuyers (the Diases) sued homesellers (the
Vaneks) for fraud, after the Vaneks previously represented that
their termite inspector found no evidence of termites in the
home, and after the Diases found termites in one of the walls.
67 Haw. at 115-16, 679 P.2d at 134-35. The Diases stopped making
monthly payments to the Vaneks under their agreement of sale, and
the Vaneks made a counterclaim against the Diases for breach of
the agreement of sale. 67 Haw. at 116, 679 P.2d at 135.
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The jury found, inter alia, that the Diases breached the
agreement of sale and were liable to the Vaneks for $6,263. Id.
The trial court, without explanation, allowed the Vaneks to keep
the down payment on the agreement of sale and ordered the Diases
to pay the $6,263 in damages to the Vaneks in addition to that.
Id. The Diases appealed. Id.
This court acknowledged that Hawai‘i law allowed the seller
to retain payments made as liquidated damages. 67 Haw. at 116-
17, 679 P.2d at 135. However, this court observed that the trial
court’s instruction to the jury regarding the down payment
mentioned only that a rescission of the agreement of sale (which
the jury did not find was warranted) would allow the Diases to
get their down payment back; the instructions made no mention of
what would happen to the down payment if the Diases did not
succeed in rescinding the agreement of sale. 67 Haw. at 117, 679
P.2d at 135-36. Thus, it was unclear what the jury understood
would happen to the down payment, and it was unclear whether the
jury’s award of $2,263 accounted for the down payment or not. 67
Haw. at 118, 679 P.2d at 136. Thus, this court held that the
trial court erred in awarding the down payment to the Vaneks,
further clarifying, “The preferred remedy of an ambiguous verdict
is to have the jurors return to clarify the verdict. Here, the
jury had been discharged, and the only available remedy is a
remand for a new trial limited to the issue of damages[.]” Id.
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This case is similar to Dias in some respects but not
others. The jury’s special verdict, like the verdict in Dias,
was unclear, because the percentage fault in question number 10
was mathematically inconsistent with the damages breakdown in
question number 12. Further, like Dias, the jury in this case
had already been discharged and could not be called in to clarify
the verdict.
However, all the Dias remedy speaks to is re-trial on the
contested issue of damages. In this case, the total amount of
damages is uncontested.8 At no point did Rosete (or the other
defendants) argue that the jury award was unreasonable or that
the defendants were not collectively 100% liable to the
Plaintiff. Rather, Rosete argued that the confusion in the
jury’s special verdict pertained to whether the percentages of
fault in question number 10 control, or whether the damages
breakdown in question number 12 controls. As such, Dias’s remedy
of a new trial limited to damages does not squarely address the
ambiguity in the special verdict at bar.
Further, not all of the damages determinations are
contested. Therefore, the Dias remedy, as applied to this case
on remand, is not properly limited. We therefore further limit
the damages issues to be re-tried to those that are contested and
8
No party disputes the jury’s answers to special verdict question numbers
1, 2, 4, 5, 6, 7, 8, and 9, which establish that each defendant’s actions or
omissions were the legal cause of Costales’ injuries.
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that are “sufficiently separate” from those damages issues that
are not contested on appeal. See Miyamoto, 104 Hawai‘i at 10, 84
P.3d at 518 (inferring that where trial issues are “sufficiently
separate,” a re-trial on remand can be limited to certain
issues). Not at issue on re-trial are the following
determinations. First, the jury’s answer to question number 14
established that Rosete is liable to Costales for $300,000 in
punitive damages; there is no question that Rosete is liable in
his individual capacity for punitive damages. See HRS § 662-2
(1993) (“The State hereby waives its immunity for liability for
the torts of its employees . . . but shall not be liable for . .
. punitive damages.”) Second, the jury’s answer to question
number 13 established that 25% of Costales’ damages can be
apportioned to an injury or condition that arose subsequent to
the 2002 sexual assaults; no party disputes this determination.
These damage determinations shall not be re-tried upon remand.
Therefore, we affirm the circuit court’s Final Judgment to the
extent that it awarded Costales $300,000 in punitive damages from
Rosete, in his individual capacity.
In this case, due to the irreconcilable conflict in the
jury’s answers to special verdict question numbers 10 and 12, and
due to the absence of a Medeiros jury instruction, re-trial on
remand shall be limited to the allocation of liability and of
general and special damages among the defendants, with an
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instruction to be given to the jury regarding when a State
employee can be personally liable due to malice or improper
purpose. In other words, the re-trial shall be limited to a
redetermination of the allocation of fault and damages under
special verdict form question numbers 10, 11, and 12.
B. Admission of the Other Defendants’ Bad Acts
On certiorari, Rosete argues that he is entitled to an
entirely new trial, not limited to the issue of allocation of
fault and damages, because he was unfairly prejudiced by the
admission of the other defendants’ bad acts. Although he
concedes that the bad act evidence was admissible to show notice
of a dangerous condition relevant to Costales’ negligence claims
against the State, he argues that the jury found him “guilty by
association” with the other defendants, as evidenced by the
illogical division of damages between the accused rapist and
negligent co-defendants. By definition, an intentional
tortfeasor causes more damage than those whose negligence
contributed to the harm . . . but that was not the finding
of this confused and angry jury,
who attributed 18% of the damage to Rosete and 82% of the damage
to the other defendants.9 Rosete argues that the torrent of bad
act evidence attributable to the other defendants roused the jury
to overmastering hostility towards them, thereby distracting the
jury from the question of whether Rosete committed the sexual
assault against Costales.
9
This argument is disingenuous for Rosete to make; it should be in his
interest to accept an 18% allocation of fault and not advocate that the jury
should have found him more at fault.
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In Costales’ Response, she argues that Rosete’s argument
that he was prejudiced by the admission of the other defendants’
bad acts is oversimplified; she argued that testimony simply
adverse to Rosete is not prejudicial. Further, she argued that
Rosete could have (1) asked for his trial to be bifurcated from
the other defendants but did not; and (2) asked for a limiting
instruction but did not. Moreover, she argued that the circuit
court instructed the jury that “each defendant in this case has
separate and distinct rights. You must decide the case of each
defendant separately, as if it were a separate lawsuit.” She
argued that the jury was presumed to follow the court’s
instructions.
The ICA’s disposition of the issue was proper. The record
does not reflect that Rosete ever requested a limiting
instruction as to evidence of the other defendants’ bad acts,
even after it became clear that the circuit court was admitting
the evidence as relevant to the issue of their notice of a
dangerous condition. HRE Rule 105 states, “When evidence which
is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly.” Further,
the parties acknowledged that Yoshimoto opened the door regarding
YCO Lia Olione’s conviction for sexual assault and stipulated to
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the fact of conviction. In fact, Rosete wanted the jury to know
that it was Olione –- not Rosete -- who was convicted of sex
assault.
Moreover, even considering the allegedly adverse impact of
this evidence upon Rosete’s defense, it is unlikely that the jury
was distracted by it in assessing whether Rosete sexually
assaulted Costales, because there was a similar “torrent” of
graphic testimony on that issue by Costales and her witnesses,
rebutted only by Rosete’s bare assertions that he did not
sexually assault Costales. With or without the admission of the
bad acts of the other defendants, the jury would likely have
found Rosete liable for sexually assaulting Costales.
Consequently, on certiorari, Rosete has not shown how the
admission of bad acts going towards the issue of the other
defendants’ negligence prejudiced him.
C. HRS § 662-10
Rosete argues that HRS § 662-10 precludes a contemporaneous
judgment against both the State of Hawai‘i and Rosete in his
individual capacity. It is true that HRS § 662-10 states, “The
judgment in an action under this chapter shall constitute a
complete bar to any action by the claimant, by reason of the same
subject matter, against the employee of the State whose act or
omission gave rise to the claim.” However, the provisions of
Chapter 662, including HRS § 662-10’s judgment bar, does not
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apply to Costales’ claim of assault and battery against Rosete in
his individual capacity. HRS § 662-15 (Supp. 2004) states, “This
chapter [Chapter 662] shall not apply to . . . [a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
. . .” Therefore, HRS § 662-10 does not apply to bar Costales’
intentional tort claim against Rosete in his individual
capacity.10
10
In rejecting Rosete’s argument, the ICA misused federal case law
interpreting 28 U.S.C. § 2676 (2006). Costales, mem. op. at 15. The ICA took
a footnote from Rodriguez, 873 F.2d at 816 n.1, out of context to support its
conclusion that 28 U.S.C. § 2676 (and, analogously, HRS § 662-10) bars only
the subsequent judgment against an individual government employee following a
judgment against the government. The complete footnote in Rodriguez reads:
The plaintiffs contend that § 2676 is an affirmative defense
which the individual defendants waived by failing to
affirmatively plead it. The flaw in this argument is that §
2676 is applicable only after a plaintiff obtains a judgment
against the United States. In this case the judgment
against the United States was entered at the same time as
the judgment against the individual. Therefore, the
individual defendants could not have plead § 2676 as an
affirmative defense.
873 F.2d at 816, n.1 (emphasis added). The point in the Rodriguez footnote
was that 28 U.S.C. § 2676 does not bar a Bivens claim against an individual
government defendant from the outset, even though the Bivens claim accompanies
a Federal Tort Claims Act (“FTCA”) claim, and even if the Bivens claim might
later be precluded by a judgment on the FTCA claim. (A “Bivens claim” refers
to the private right of action for money damages based on constitutional
violations committed by federal agents in the performance of their official
duties, which was judicially created by Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).)
The ICA, however, characterized the emphasized language above as the
“holding” in Rodriguez, ignoring the rest of the opinion, which held that a
even contemporaneous entry of judgment on an FTCA claim bars the entry of
judgment on a Bivens claim, under 28 U.S.C. § 2676. Rodriguez, 873 F.2d at
816:
[T]he price of obtaining an FTCA judgment against the United
States based on a given incident is the loss of all claims
arising from that incident against the United States’
agents: “The moment judgment was entered against the
government, then by virtue of section 2676, [the individual
(continued . . .)
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In a case factually similar to the instant one, we held:
[W]here the plaintiff’s negligence claim seeks to hold the
State liable for the conduct of state employees other than
the alleged tortfeasor, pursuant to theories of negligent
hiring, retention, supervision, or the like, the plaintiff’s
claim does not necessarily “arise out of” the hired,
retained, or supervised employee’s intentional tort.
Rather, if the State knew, or reasonably should have
anticipated, that one of its employees would commit an
intentional tort against a person to whom the State owed a
duty of care, the State is liable for the negligence of
those employees who were in a position to take reasonable
precautions against the anticipated harm.
Doe Parents No. 1 v. Dep’t of Educ., 100 Hawai‘i 34, 68, 58 P.3d
545, 579 (2002) (emphasis added). Therefore, HRS § 662-10 does
not bar Costales from obtaining contemporaneous judgments from
Rosete in his individual capacity and from the State. To the
extent that recovery against the State is predicated on the
alleged negligence of Rosete’s superiors in hiring, supervising,
training, and retaining him, such a claim does not involve “the
same subject matter” as the intentional tort claims against
Rosete.
V. Conclusion
For the foregoing reasons, the ICA’s Judgment on Appeal is
vacated. The circuit court’s Order Granting in Part and Denying
in Part Defendant Rosete’s, in his Individual Capacity, Motion
for Judgment as a Matter of Law and Alternative Motion for a New
Trial is affirmed, and this case is remanded for further
9
(continued . . .)
agent] was no longer answerable to [the plaintiff] for
damages.”
(citing Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987)).
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proceedings consistent with this opinion. Specifically, the
circuit court shall limit the issues of the new trial to the
allocation of fault and of general and special damages among the
defendants, with an instruction to be given to the jury regarding
when a State employee can be personally liable due to malice or
improper purpose pursuant to Medeiros v. Kondo, 55 Haw. 499, 505,
522 P.2d 1269, 1272 (1974). In other words, the re-trial shall
be limited to a redetermination of the allocation of fault and
damages under special verdict form question numbers 10, 11, and
12.
C. Bryan Fitzgerald and /s/ Mark E. Recktenwald
Deborah Day Emerson
for petitioner /s/ Paula A. Nakayama
Sue V. Hansen and /s/ Sabrina S. McKenna
Charles W. Crumpton
for respondent /s/ Richard W. Pollack
40