Key Points

  • A trial court's sua sponte allocation of fault to nonparties under HRS § 663-10.5, without notice and an opportunity to be heard, violates the Hawaii Constitution's due process clause.
  • Before a plaintiff's recovery is reduced by nonparty fault, the party seeking apportionment must give timely notice, identify each nonparty with particularity, and prove tortfeasor status and percentage of fault, and the court must make findings on each.
  • Apportionment of fault to a nonparty 'other tortfeasor' under HRS § 663-10.5 is an affirmative defense on which the government bears the burden; the State waived it here.
  • The evidence was insufficient to treat the male students as 'other tortfeasors,' given the trial court's own finding of little to no evidence that they knew or should have known Amy lacked capacity to consent.
  • A party seeking to bar a deposition on medical or psychological grounds must present competent, specific, and documented evidence of a substantial risk of serious harm; the trial court properly denied a third deposition, a Rule 35 examination, and the State's excessive-damages challenge.

The Hawaii Supreme Court on Oct. 9 restored $4.25 million that a trial judge had cut from a $14.2 million negligence award against the State. The award went to a cognitively disabled former McKinley High School student and her mother. The court held that the judge violated their due-process rights by blaming the male students who abused her for part of the harm, a step the State had never asked the judge to take.

Justice Sabrina S. McKenna wrote for a unanimous five-member court that included Circuit Judge Catherine H. Remigio, who sat because of a vacancy. The court ordered the Circuit Court of the First Circuit to enter an amended judgment awarding the student, identified by the pseudonym "Amy," and her mother the full $14,167,354.81. The trial court's reduction had left a judgment of $9,917,148.37.

The decision sets the minimum procedures due process requires before a court may shrink a plaintiff's recovery under Hawaii Revised Statutes § 663-10.5. That statute abolishes joint and several liability for government entities. The court also held, on a question it said it had not addressed before, that a government entity seeking to shift fault to a nonparty under the statute is raising an affirmative defense, which it must plead and prove.

Amy entered McKinley in 2008 functioning "at the level of a five-year-old, or even younger," with a tested IQ of 40, according to the trial court's findings as recounted in the opinion. Over the next three years, teachers repeatedly heard that she was performing sex acts on boys at school, and her mother repeatedly asked for closer supervision. In August 2011 Amy suffered what the opinion called "a catastrophic psychotic breakdown." She was hospitalized for three months and diagnosed with post-traumatic stress disorder that the trial court found persistent and untreatable.

After a 66-day bench trial in 2021, the circuit court found the State negligent and assessed $14,167,354.81 in damages, including $7.87 million for Amy's future care. In its written decision the court then allocated 30 percent of the fault to the boys, collectively, and reduced the award by that share. It did so "without any request from the State that it do so," Justice McKenna wrote. The State had argued only that fault should go to the mother for failing to share information with the school, and the trial court rejected that argument.

"This sua sponte apportionment is the main issue on appeal," Justice McKenna wrote. The court held that "the circuit court's sua sponte allocation of fault to the male students violated Plaintiffs' Hawaiʻi constitutional due process rights." The opinion noted that the State had argued in closing that "the boys were not responsible for Amy's injuries," contending that the alleged assaults "either were not proven to have occurred, were consensual, or otherwise could not be attributed to any negligence" by the Department of Education.

The court listed four safeguards that must come before any such reduction. A party seeking apportionment must give timely notice, through its pleadings or a prompt amendment, that it intends to blame an identified nonparty, early enough before trial to allow discovery. It must identify each nonparty with enough particularity for the court to decide whether that person is legally liable. It bears the burden of proving both that status and a percentage of fault. And the trial court must make findings on each nonparty. "These procedures would not eliminate nonparty apportionment under HRS § 663-10.5," Justice McKenna wrote. "They would simply ensure that a plaintiff's adjudicated recovery is reduced only after the legal and factual basis for doing so has been meaningfully litigated and established."

The court also held that the record could not support the allocation in any event. The trial court had itself found "little to no evidence the boys were aware or should have been aware that Amy lacked ability to consent to sex," and it never determined that any particular student committed an actionable tort. Its decision to lump together "all persons who abused [Amy] sexually during the relevant time period" was "also insufficient," the court held.

The State had argued that the statute is merely a limit on its liability rather than an affirmative defense. The State "cites no authority for that proposition," the court wrote, pointing to decisions from Kansas, Florida and the Tenth Circuit that treat blaming a nonparty as an affirmative defense; the Kansas and Florida decisions put the burden of proof on the defendant. Because the State never tried to carry that burden, the court held, it "waived any argument that its liability should be reduced based on the male students' alleged fault." The opinion also faulted the State for relying on a 2006 unpublished order, noting that "it is highly improper to cite uncitable dispositions."

On the State's cross-appeal, the court upheld the trial court's refusal to allow a third deposition of Amy or a mental examination under Hawaii Rule of Civil Procedure 35. Her symptoms worsened after two 90-minute deposition sessions in 2016, and a court-appointed neutral psychologist advised against further questioning. Announcing a general standard, the court held that "a party seeking to prohibit a deposition on medical or psychological grounds must present competent, specific, and documented evidence demonstrating that the proposed deposition poses a substantial risk of serious harm." Trial courts should then consider whether reasonable accommodations could reduce that risk, the court wrote. The court also rejected the State's argument that the damages were excessive.

Eric G. Ferrer, Susan K. Dorsey and William Meheula represented Amy and her mother. The State was represented by Anne E. Lopez, Skyler G. Cruz and Jennifer H. Crum.

The court vacated the circuit court's Nov. 28, 2022, final judgment to the extent it allocated fault to nonparties and reduced the damages, and affirmed the judgment in all other respects. The case now returns to the circuit court for entry of an amended final judgment awarding the plaintiffs the full damages that court found.