Hawaii Revised Statutes

PART I. LIABILITY; SURVIVAL OF ACTIONS

§663-1 Torts, who may sue and for what. Except as otherwise provided, all persons residing or being in the State shall be personally responsible in damages, for trespass or injury, whether direct or consequential, to the person or property of others, or to their spouses or reciprocal beneficiaries, children under majority, or wards, by such offending party, or the offending party's child under majority, or by the offending party's command, or by the offending party's animals, domestic or wild; and the party aggrieved may prosecute therefor in the proper courts. [CC 1859, §1125; RL 1925, §2365; RL 1935, §4049; RL 1945, §10485; RL 1955, §246-1; HRS §663-1; am L 1972, c 144, §2(a) and c 189, §1; gen ch 1985; am L 1997, c 383, §65]

Cross References

Guardian ad litem, see §551-2.

Natural guardian; liability for torts of child, see §577-3.

Suits by and against, see §572-28.

Rules of Court

Guardian ad litem, see HRCP rule 17(c); DCRCP rule 17(c). Affirmative defenses, see HRCP rule 8(c); DCRCP rule 8(c).

Law Journals and Reviews

Wrongful Termination Law in Hawaii. V HBJ No. 13, at pg. 71.

Negligent Infliction of Emotional Harm. 7 HBJ 148.

Apportionment of Personal Injury Damages and Expert Medical Opinion in Hawaii. 8 HBJ 25.

Negligent Infliction of Mental Distress: Rodrigues v. State and Leong v. Takasaki. 11 HBJ 29.

Pharmaceutical Soundings in Hawaii. VII HBJ No. 13, at pg. 33.

Hawaii's Loss of Consortium Doctrine: Our Substantive, Relational Interest Focus. VII HBJ No. 13, at pg. 59.

Wolsk v. State: A Limitation of Governmental Premises Liability. 9 UH L. Rev. 301.

Johnson v. Raybestos-Manhattan, Inc.: The Death of State of the Art Evidence in Strict Products Liability Actions Involving Inherently Dangerous Products. 11 UH L. Rev. 175.

Knodle v. Waikiki Gateway Hotel, Inc.: Imposing a Duty to Protect Against Third Party Criminal Conduct on the Premises. 11 UH L. Rev. 231.

Tort Law--Bertelmann v. Taas Associates: Limits on Dram Shop Liability; Barring Recovery of Bar Patrons, Their Estates and Survivors. 11 UH L. Rev. 277.

Masaki v. General Motors Corp.: Negligent Infliction of Emotional Distress and Loss of Filial Consortium. 12 UH L. Rev. 215.

Johnston v. KFC National Management Co.: Employer Social-Host Liability for Torts of Intoxicated Employees. 14 UH L. Rev. 82.

Latent Disease and Toxic Torts in Hawaii: Analysis of the Statute of Limitations, the Rule Against Splitting Causes of Action and Nonidentification Theories of Liability. 15 UH L. Rev. 137.

Henderson v. Professional Coatings Corp.: Narrowing Third-Party Liability in Automobile Accidents. 15 UH L. Rev. 353.

Sexual Harassment in the Workplace: Remedies Available to Victims in Hawaii. 15 UH L. Rev. 453.

AIDS Phobia: The Infliction of Emotional Distress and the Fear of AIDS. 16 UH L. Rev. 143.

Reyes v. Kuboyama: Vendor Liability for the Sale of Intoxicating Liquor to Minors under a Common Law Negligence Theory. 17 UH L. Rev. 355.

Empowering Battered Women: Changes in Domestic Violence Laws in Hawai‘i. 17 UH L. Rev. 575.

Seller Beware: New Law Protects Hawai‘i Home Buyers. 18 UH L. Rev. 981.

BMW v. Gore: Curbing Excessive Punitive Damages. 19 UH L. Rev. 311.

Touchette v. Ganal: Reaffirming the Judicial Activism of the Hawai‘i Supreme Court. 19 UH L. Rev. 345.

Interspousal Torts: A Procedural Framework for Hawai‘i. 19 UH L. Rev. 377.

The Best Place, Inc. v. Penn America Insurance Company: Hawai‘i Bad Faith Cause of Action for Insurer Misconduct. 19 UH L. Rev. 845.

Cyberprivacy on the Corporate Intranet: Does the Law Allow Private-Sector Employers to Read Their Employees' E-mail? 20 UH L. Rev. 165.

The Misappropriation Doctrine in Cyberspace: Protecting the Commercial Value of "Hot News" Information. 20 UH L. Rev. 421.

Russ Francis v. Lee Enterprises: Hawai‘i Turns Away From Tortious Breach of Contract. 23 UH L. Rev. 647.

Hawai‘i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government. 24 UH L. Rev. 411.

Child Pornography on the Internet: The Effect of Section 230 of the Communications Decency Act of 1996 on Tort Recovery for Victims Against Internet Service Providers. 24 UH L. Rev. 763.

Fido Seeks Full Membership In The Family: Dismantling The Property Classification of Companion Animals By Statute. 25 UH L. Rev. 481.

Scientific Expert Admissibility in Mold Exposure Litigation: Establishing Reliability of Methodologies in Light of Hawai‘i's Evidentiary Standard. 26 UH L. Rev. 99.

The Strict Products Liability Sleeper in Hawai‘i: Toward Exclusion of the "Unreasonably Dangerous" Standard. 26 UH L. Rev. 143.

Punishment and Deterrence: Merely a Mantra; A Casenote on State Farm v. Campbell. 26 UH L. Rev. 229.

Holding Hawai‘i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233.

Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.

Global Warming: Attorneys General Declare Public Nuisance. 27 UH L. Rev. 525.

Case Notes

Where plaintiffs argued that State waived its Eleventh Amendment immunity through the enactment of §353-14 and the State's Tort Claims Act [sic], §662-2 and this section, no express consent or applicable waiver provisions found. 940 F. Supp. 1523.

Bad faith.

Hawaii supreme court, seeking to avoid inequitable or absurd result, would allow plaintiff's bad faith claim, where plaintiff submitted claims to defendant insurer for losses suffered as a third-party beneficiary of insurance contract. 947 F. Supp. 429.

Independent cause of action for breach of covenant of good faith and fair dealing would not lie, where there was no coverage liability on underlying insurance policy. 955 F. Supp. 1218.

Where defendant contended that claim for breach of implied covenant of good faith and fair dealing was barred by two-year statute of limitations governing damage to persons and property (§657-7), since there is no element in the cause of action for bad faith that requires a plaintiff to suffer personal injury, it is not in reality a cause of action based upon a "personal injury", and the applicable statute of limitations is six years and is found in the catchall provision of §657-1 (§657-1(4)). 986 F. Supp. 1334.

Limitations period applicable to cause of action for bad faith, discussed; where complaint was not filed until almost one year after the limitations period had lapsed, to the extent that complaint alleged a claim for the tort of bad faith denial of benefits, summary judgment granted in favor of defendant as to plaintiff's claim for tort of bad faith. 11 F. Supp. 2d 1204.

Violations of the unfair settlement provision, §431:13-103(a), may be used as evidence to indicate bad faith in accordance with the guidelines of Best Place, Inc. v. Penn America Ins. Co. 27 F. Supp. 2d 1211.

Plaintiff failed to exhaust the administrative remedies provided to plaintiff by chapter 386; prior to filing a separate suit for bad faith denial of benefits or payments, plaintiff must first exhaust all available administrative remedies before the department of labor and industrial relations, disability compensation division. 28 F. Supp. 2d 588.

Insurer's motion granted to extent it sought summary judgment as to claims against defendant, where uncontradicted evidence was that defendant was the claims handler for subject insurance policy; defendant did not have a contract with plaintiffs; defendant could not be liable to plaintiffs for bad faith. 74 F. Supp. 2d 975.

Insurer's motion for summary judgment granted on defendant's counterclaim alleging that insurer acted in tortious breach of implied covenant of good faith and fair dealing by, among other things, its failure to pay underinsured motorist policy benefits, improper use of "excuse" that defendant violated consent-to-settle clause, and wrongful pursuit of its offset theory. 176 F. Supp. 2d 1005.

Hawaii's Best Place bad faith tort is law that impacts insurance, but does not solely regulate it; therefore, plaintiff's claim as stated arising under Best Place bad faith tort did not fit within Employee Retirement Income Security Act's (ERISA) saving clause. Controlling precedent mandated that plaintiff's claim was related to the processing of a claim and was preempted by ERISA because ERISA's civil remedy was plaintiff's sole avenue of relief. 242 F. Supp. 2d 752.

Where insured alleged that insurer breached covenant of good faith and fair dealing by initiating action for declaratory judgment, insured would be unable to prove by a preponderance of the evidence that insurer's filing of lawsuit was based on an interpretation of disability insurance policy that was unreasonable; among other things, a reasonable jury could decide issue of fraud in insurer's favor based upon insured's failure to include 1990 surgery on insured's application for the policy. 248 F. Supp. 2d 974.

Insurance company did not breach the duty of good faith and fair dealing when it decided not to defend the operator of a concrete recycling plant or indemnify the owner where, inter alia, it appeared that plaintiffs did not disagree with insurance company's assertion that at a minimum, there was a genuine dispute as to whether coverage existed under the insurance policy. 307 F. Supp. 2d 1170.

Bad faith cause of action may be brought by first-party insured for insurer misconduct. 82 H. 120, 920 P.2d 334.

Breach of implied contractual duties owed by workers' compensation insurer to employee, including duty to handle and pay claims in good faith, gives rise to independent tort cause of action by employee, the intended third-party beneficiary. 83 H. 457, 927 P.2d 858.

Where insured presented evidence that raised genuine issue of material fact as to insurer's liability for bad faith if insurer's law firm's conduct of defense breached law firm's duties towards insured and breach was causally induced by insurer's actions, summary judgment erroneously entered in favor of insurer on insured's bad faith claim. 90 H. 39, 975 P.2d 1159.

Any formal recognition of a claim for relief in favor of an injured claimant against a third-party tortfeasor's insurance company for bad faith settlement practices would require the assignment of the insured tortfeasor's rights arising from an underlying insurance contract to the injured plaintiff; the tort of bad faith settlement practices arises only from a contract of insurance. 105 H. 112, 94 P.3d 667.

Where there was no underlying insurance contract from which the duty of good faith settlement practices could arise, injured third-party claimant had no right to sue self-insured car rental company for bad faith. 105 H. 112, 94 P.3d 667.

Where insurer's denial of plaintiff's claim for no-fault benefits was based upon an open question of law--whether "the reasons" as used in §431:10C-304(3)(B) means "all reasons"--there was no bad faith on the part of insurer for not having stated all the reasons for its denial of plaintiff's claim. 109 H. 537, 128 P.3d 850.

Where plaintiff alleged that insurer handled the denial of plaintiff's claim for no-fault benefits in bad faith, plaintiff was not precluded from bringing bad faith claim even where there was no coverage liability on the underlying policy; thus, trial court erred in determining that, because plaintiff's breach of contract claim failed, plaintiff's bad faith claim must fail. 109 H. 537, 128 P.3d 850.

Where the question of whether the underinsured motorist benefits settlement from non-party insurer would trigger the two-year statute of limitations under §431:10C-315(a) (1993) for plaintiff's claim against defendant insurer was an open question of law until this case, there was no bad faith on the part of defendant insurer for having denied plaintiff's claim for no-fault benefits on the basis of the statute of limitations. 109 H. 537, 128 P.3d 850.

As action for bad faith against insurer is an independent tort, the proper limitation provision for bringing an action should not be that provided in the insurance policy, but rather that provided in §657-7, which limits causes of action for torts to two years. 88 H. 442 (App.), 967 P.2d 639.

Where insured's bad faith claim was not "any issue referable to arbitration under an agreement in writing" under §658-5, and action for bad faith in the first-party insurance context is independent of the policy, an ongoing appraisal process did not bar insured from bringing a lawsuit alleging bad faith handling of insured's claim. 88 H. 442 (App.), 967 P.2d 639.

Children.

Parent liable for tort of minor child when child would be liable. 15 H. 124; 23 H. 541, 543. Father not liable for act of infant unemancipated from childish instincts. 8 H. 715. Liability of infant for damages to hired chattel resulting from infant's immoderate use of the chattel. 8 H. 237. Contributory negligence of mother of six-year old child not imputed to child. 29 H. 604. See 47 H. 281, 287, 386 P.2d 872. Degree of care toward children on highway. 40 H. 417.

Child has no cause of action for injuries to parent not resulting in death. 41 H. 634; 244 F.2d 604.

A six-year old may be capable of contributory negligence; minor's standard of care. 47 H. 281, 386 P.2d 872.

Minor children liable in tort to parents, when. 51 H. 74, 450 P.2d 998. Minor children may sue their parents for negligence. 51 H. 484, 462 P.2d 1007.

Negligence; standard of care for children. 54 H. 611, 513 P.2d 487.

Parent may recover damages for loss of filial consortium of an injured adult child. 71 H. 1, 780 P.2d 566.

Causation.

Motion to dismiss count of plaintiffs' third amended complaint alleging that the design, manufacture, and/or production of subject chemicals by certain defendants constituted an ultrahazardous activity granted; the complaint was devoid of any allegation that plaintiffs' claimed injuries flowed directly from the act of manufacturing the subject chemicals, nor could plaintiffs make such causation allegations. 293 F. Supp. 2d 1140.

Intervening negligence and proximate causation. 45 H. 128, 363 P.2d 969.

Negligence. Causation construed. 57 H. 460, 558 P.2d 1018.

Where causation is a primary issue, it is plain and reversible error for a trial court not to explain the meaning of "legal cause" to a jury. 77 H. 282, 884 P.2d 345.

When read as a whole, or when considering both jury instruction where trial court used term "legal cause" as opposed to "substantial factor" and instruction that properly defined "legal cause", the instructions given were not prejudicially insufficient, erroneous, inconsistent, or misleading. 78 H. 230, 891 P.2d 1022.

Where department of education's (DOE) negligent acts contributed to the conditions that facilitated the teacher's molestation of the girl students, the DOE's negligence was a substantial factor in causing the plaintiff parents' injuries; thus, trial court did not err in finding that the DOE's negligence legally caused the plaintiff parents' various psychological injuries. 100 H. 34, 58 P.3d 545.

In breach of express warranty actions based on seller's failure to deliver goods in conformance with an express promise, affirmation of fact, or description, "substantial factor" test proper standard to apply in determining proximate cause. 86 H. 383 (App.), 949 P.2d 1004.

Damages.

Defendant insurance company's motion for summary judgment granted as to plaintiff's claim for punitive damages, where plaintiff alleged that defendant's conduct was wanton and oppressive; there was not sufficient evidence to reach clear and convincing standard, and thus the question of punitives could not be put to a jury. 999 F. Supp. 1369.

If plaintiff succeeded on bad faith claim, and plaintiff could show that plaintiff's emotional distress damages were proximately caused by defendant insurance company's actions, plaintiff could recover damages for plaintiff's emotional distress as incidentally flowing from the breach. 999 F. Supp. 1369.

Any recovery of damages for loss of consortium by (former) spouse limited to duration of plaintiffs' (i.e., patient and patient's spouse) marriage. 125 F. Supp. 2d 1249.

Punitive damages not allowed against principal unless principal participated in the wrongful act or authorized or approved it. 8 H. 411; 24 H. 579; 29 H. 524. Punitive damages may be awarded though actual damages nominal. 40 H. 492.

Explosives, concussion damage. 42 H. 353.

Use of mathematical formula to compute damages for pain and suffering improper. 47 H. 408, 390 P.2d 740; 48 H. 22, 395 P.2d 365. But see §635-52.

Defendant title company was liable to plaintiffs only for damages limited to the transaction for which certificate of title search was intended to influence, that is, only for damages plaintiffs suffered in the transaction wherein they purchased the property; defendant's negligence was not the proximate cause of the loss of anticipated profits. 51 H. 462, 462 P.2d 905.

Clear and convincing standard of proof adopted for all punitive damage claims. 71 H. 1, 780 P.2d 566.

Punitive damages may be awarded in products liability action based on underlying theory of strict liability where plaintiff proves requisite aggravating conduct on part of defendant. 71 H. 1, 780 P.2d 566.

Plaintiff has duty to mitigate damages. 56 H. 507, 542 P.2d 1265.

Mental distress damages may be recovered in a products liability implied warranty action. 74 H. 1, 837 P.2d 1273.

Apportionment of damages, discussed, where plaintiff had a pre-existing condition, had been injured or plaintiff's condition had been aggravated by independent acts of successive tortfeasors, and had allegedly caused some of plaintiff's own injuries after the accident from which plaintiff had brought suit. 77 H. 282, 884 P.2d 345.

Circuit court correctly granted plaintiff-appellee's motion for directed verdict as to punitive damages regarding interference with contract claim, where defendants-appellants failed to show actual damages. 78 H. 40, 890 P.2d 277.

Punitive damages may not be awarded in bad faith tort case unless evidence reflects something more than the conduct necessary to establish the tort. 82 H. 120, 920 P.2d 334.

Emotional distress damages resulting from breach of contract recoverable only where parties specifically provide for them in the contract or where the nature of the contract clearly indicates that such damages are within the parties' contemplation or expectation in the event of a breach. 89 H. 234, 971 P.2d 707.

Tort recovery, including recovery of punitive damages, is not allowed under Hawaii law for breach of contract in the absence of conduct that (1) violates a duty that is independently recognized by principles of tort law and (2) transcends the breach of the contract. 89 H. 234, 971 P.2d 707.

Where plaintiff alleging defamation failed to prove "actual damages" caused by newspaper's negligence, summary judgment for newspaper properly granted. 89 H. 254, 971 P.2d 1089.

Where a person is deprived of the use of his or her property due to the tortious conduct of another, he or she may recover "loss of use" damages; such damages are, as a general matter, limited to the period of time reasonably necessary to obtain a replacement, to effect repairs, or the date upon which the property is returned. 97 H. 38, 33 P.3d 204.

Under Hawaii law, a party is not immune from liability for civil damages based upon that party's fraud engaged in during prior litigation proceedings. 102 H. 149, 73 P.3d 687.

Where award of general damages, consisting of damages to credit, general reputation, and loss of business opportunities, were personal to aircraft lessors, appellate court erred by holding that general damages were assignable. 102 H. 189, 74 P.3d 12.

The collateral source rule prohibits reducing a plaintiff's award of medical special damages to reflect the discounted amount paid by Medicare/Medicaid; the amounts billed in excess of the Medicare/Medicaid amount paid are not irrelevant or inadmissible on the issue of medical special damages. 106 H. 81, 101 P.3d 1149.

Inconsistent for jury not to award pain and suffering general damages where it awarded special damages for medical expenses and lost wages. 80 H. 188 (App.), 907 P.2d 774.

"Pure" comparative negligence principles should be applied to reduce a plaintiff's recovery in those tort actions for breach of express warranty where a plaintiff is found to be negligent. 86 H. 383 (App.), 949 P.2d 1004.

Defamation.

Defendants' statements implying attorney's poor client representation constitutionally protected speech and not defamatory where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false. 56 F.3d 1147.

Totality of the circumstances revealed that statements by president of labor organization were a call to arms, not assertions of objective fact; the statements were not defamatory, and therefore were fully protected by federal labor law. 302 F.3d 998.

False statement that attorney had been a prosecutor in South Africa was libelous per se; no recovery for defamation based on a truthful statement of fact. 825 F. Supp. 906.

Some statements that allegedly defamed plaintiff or cast plaintiff in false light were privileged expressions of opinion. 825 F. Supp. 906.

Plaintiff was not a public figure for purposes of its defamation claim. 833 F. Supp. 802.

Statements in editorial about plaintiff (when plaintiff was mayor) were protected by First Amendment and thus, not actionable. 930 F. Supp. 1403.

Where alleged defamatory statements occurred during a conversation between an employee of defendant and representatives of defendant's temporary disability insurer, there was a qualified privilege as defendant and its insurer shared a common interest, their business relationship; an employer who communicates information to its insurance carrier is acting, at the very least, to promote the private interest of the companies; questions remained regarding potential abuse of the privilege. 26 F. Supp. 2d 1241.

Defendant magazine's motion for judgment on the pleadings, or in the alternative, for summary judgment granted, where, inter alia, plaintiff complained of general taint of magazine article and plaintiff's complaint also identified specific statements in the article that plaintiff took to be defamatory. 190 F. Supp. 2d 1192.

Preemption by Fair Credit Reporting Act of plaintiff's defamation and negligence claims against furnishers of credit information and consumer reporting agencies, discussed. 293 F. Supp. 2d 1167.

Public official. 50 H. 648, 448 P.2d 337.

Qualified privilege; publication. 52 H. 366, 477 P.2d 162.

Libel per se; qualified privilege. 53 H. 456, 497 P.2d 40.

Broadcast charging falsely that person is communist is libel per se. 56 H. 522, 543 P.2d 1356.

Qualified privilege discussed. 57 H. 390, 557 P.2d 1334.

Trial court clearly erred, to defendant's prejudice, by leaving to jury determination of existence of a qualified privilege. 76 H. 310, 876 P.2d 1278.

Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff; statement thus was constitutionally protected. 88 H. 94, 962 P.2d 353.

Where plaintiff in defamation action failed to prove that newspaper had acted with actual malice when it erroneously published story naming plaintiff as the target of an investigation, summary judgment for newspaper properly granted. 89 H. 254, 971 P.2d 1089.

Defenses.

Fact that manufacturers of blood clotting agent followed industry standards in negligence action by hemophiliac patients who tested positive for HIV did not necessarily immunize defendants from liability. 971 F.2d 375.

It could not be disputed that by the time the underinsured motorist benefits were paid, plaintiff either knew or should have known that defendant's alleged refusal to engage in settlement negotiations caused plaintiff injury; any claims for emotional distress were time-barred. 11 F. Supp. 2d 1204.

Plaintiffs' claims against certain defendants were time-barred, where those defendants were first named as parties in first amended complaint filed more than two years after plane crash and the claims did not relate back to the date the original complaint was filed. 289 F. Supp. 2d 1197.

Plaintiffs' negligence claims were dismissed with prejudice; there was no basis for allowing derivative litigation over claims that an opponent's prior litigation conduct in another case amounted to negligence. 330 F. Supp. 2d 1101.

Defendant automobile manufacturer may assert a defense of comparative negligence to plaintiff's negligence and strict liability claims regarding injuries stemming from the "second collision" between plaintiff's head and the steering column that occurred due to the failure of the airbags to deploy. 370 F. Supp. 2d 1091.

Contributory negligence. 48 H. 22, 395 P.2d 365. Assumption of risk. 49 H. 1, 406 P.2d 887; 49 H. 351, 417 P.2d 816. Unavoidable accident. 47 H. 408, 390 P.2d 740; 48 H. 330, 402 P.2d 289.

Comparative negligence applies only to claims accruing after July 14, 1969, and the rule of contributory negligence continues on claims that accrued before that date. 52 H. 129, 471 P.2d 524.

Interspousal tort immunity upheld. 63 H. 653, 634 P.2d 586.

In implied warranty and strict products liability tort actions, express assumption of risk is available as separate defense that may bar recovery; implied assumption of risk is defense only when plaintiff's assumption of risk is a form of contributory negligence. 74 H. 1, 837 P.2d 1273.

Assumption of risk defense generally applied to tort claims for relief. 74 H. 85, 839 P.2d 10.

Compelled self-publication of the reason for termination by a former employee to prospective employers does not satisfy the requirement of publication to a third party necessary to sustain a claim for defamation. 100 H. 149, 58 P.3d 1196.

Union shop steward's claim for defamation was not preempted by the National Labor Relations Act where steward pled that employer's statements impugned steward's reputation and held steward up to scorn and ridicule and feelings of contempt and execration in the community at large, that the statements were untrue and that employer knew that they were untrue at the time, and that the statements were made with malice. 109 H. 520, 128 P.3d 833.

UCC statute of limitations applies to breach of express warranty claim for personal injury. 86 H. 383 (App.), 949 P.2d 1004.

Primary implied assumption of risk is a discrete and complete defense in sports injury cases where the defendant's conduct at issue is an inherent risk of the sports activity; in determining whether the defendant's conduct is an inherent risk of the sports activity, the nature of the activity, the relationship of the defendant to the activity and the relationship of the defendant to the plaintiff must be considered. 96 H. 51 (App.), 25 P.3d 826.

Dram shop.

Person injured by intoxicated person may recover from tavern which supplied liquor to the intoxicated person in violation of statute. 62 H. 131, 612 P.2d 533.

Duty.

Plaintiff failed to demonstrate facts to establish duty owed by defendant, where, inter alia, no evidence found of custody or control of plaintiff's employer's machinery or employees that would create special relationship between defendant and plaintiff's employer or plaintiff. 863 F. Supp. 1193.

In case arising out of alleged assault on airplane, tort claim for breach of duty of reasonable care preempted by Airlines Deregulation Act. 905 F. Supp. 823.

Evidence demonstrated that plaintiffs had never had a relationship with defendant; without a relationship between plaintiffs and defendant, there could be no legal duty. 920 F. Supp. 1080.

Defendant, which acted as custodian, granted summary judgment on counts where plaintiff alleged that defendant acted in a negligent or grossly negligent manner by permitting securities to be substituted into custodial account and by releasing cash as alleged. 30 F. Supp. 2d 1255.

Plaintiff's negligence claim failed as a matter of law; there was no "duty" to not arrest without probable cause. 127 F. Supp. 2d 1129.

In a case arising out of a plane crash where passengers killed in the crash had obtained discounted tour ticket vouchers in exchange for attending a time-share presentation and purchasing a time-share, defendants (companies connected with the time-share presentation and the selling of the ticket vouchers) owed no duty to them. 289 F. Supp. 2d 1197.

No finding of negligence where defendants had no duty to protect plaintiff from criminal acts of third person. 73 H. 158, 829 P.2d 512.

Publisher of work of general circulation that neither authored nor guaranteed the contents of its publication had no duty to warn public of accuracy of contents of its publication. 73 H. 359, 833 P.2d 70.

Trial court correctly refused to recognize new tort duty on part of motorcyclists to wear protective headgear. 74 H. 308, 844 P.2d 670.

Section 281-78(a)(2)(A) (1989) imposes a duty to innocent third parties upon a liquor licensee who sells alcohol to a minor; the duty includes the situation where an innocent third party has been injured by an intoxicated minor other than the minor to whom the liquor was sold, subject to determinations by the trier of fact on the issue of reasonable foreseeability. 76 H. 137, 870 P.2d 1281.

Circuit court erred in granting defendants' motion for summary judgment where plaintiff was a business visitor of hotel and there was a genuine issue of material fact regarding issue of reasonable foreseeability. 79 H. 110, 899 P.2d 393.

Insurer has legal duty, implied in first-and third-party insurance contracts, to act in good faith in dealing with insured; breach of that duty gives rise to independent tort cause of action. 82 H. 120, 920 P.2d 334.

Plaintiff's allegations stated a claim that potentially could warrant relief under a theory based on duty by defendant wife to refrain from conduct that would create an unreasonable risk of harm to another through husband's conduct. 82 H. 293, 922 P.2d 347.

Where deceased was not in the custody of defendant, a special relationship did not exist to impose a duty on defendant to prevent deceased's suicide. 83 H. 154, 925 P.2d 324.

Manufacturer not negligent in failing to warn of "blind zone" danger where danger involved in using straddle carrier was obvious and apparent, discernible by casual inspection, and generally known and recognized. 85 H. 336, 944 P.2d 1279.

Manufacturers are not subject in Hawaii to an independent, continuing duty to retrofit its products, subsequent to their manufacture and sale, with post-manufacture safety devices that were unavailable at the time of manufacture. 85 H. 336, 944 P.2d 1279.

No duty by insurance agent to advise insured of option to stack coverage where no evidence agent had informed insureds in the past of changes in insurance laws such that insured would rely on agent to inform them of changes in available coverage without their inquiry. 87 H. 307, 955 P.2d 100.

As dangers of riding unrestrained in open cargo bed of pickup truck are obvious and generally known to ordinary user, truck manufacturer had no duty to warn potential passengers of those dangers. 87 H. 413, 958 P.2d 535.

Hawaii civil rights commission is subject to a duty to follow its own administrative rules, utilizing reasonable care, and was potentially negligent for instituting legal action barred by its own administrative rules. 88 H. 85, 962 P.2d 344.

Where police department did not have "special relationship" with victim, department did not have duty to protect victim or victim's parents from harm caused by assailant. 89 H. 315, 972 P.2d 1081.

Tire manufacturer and distributor and inner tube manufacturer and distributor did not have duty to warn of dangers of multi-piece rim assembly where neither manufacturer contributed to the alleged defect, had no control over it, and did not produce it. 92 H. 1, 986 P.2d 288.

Where no evidence that road grader owner knew or had reason to know of dangerous condition of tire rim assembly and that condition created a foreseeable risk of harm to tire repairman, plaintiff failed to establish genuine issue of material fact as to whether owner was negligent for failure to discharge its duty of ordinary care or had either actual or constructive notice of possible danger of lock ring exploding. 92 H. 1, 986 P.2d 288.

Because a commercial establishment should be aware of the potentially hazardous conditions that arise from its mode of operation, an injured plaintiff need not prove that the defendant had actual notice of the specific instrumentality causing his or her injury; notice is imputed from the establishment's mode of operation; application of this mode of operation rule limited to circumstances such as in this case. 93 H. 417, 5 P.3d 407.

The duty to use reasonable care in the preparation of a body for funeral, burial, or crematory services, or in the rendition of those services, runs to the decedent's immediate family members who are aware of the services and for whose benefit the services are being performed; immediate family members are defined as the decedent's surviving spouse, reciprocal beneficiary, children, parents, siblings, or any other person who in fact occupies an equivalent status. 96 H. 147, 28 P.3d 982.

A physician does not owe a duty to non-patient third parties injured in an automobile accident caused by the patient's adverse reaction to a medication that is not a controlled substance and negligently prescribed by the physician three days earlier where the alleged negligence involves such "prescribing decisions" as whether to prescribe the medication in the first instance, which medication to prescribe, and the dosage prescribed. 98 H. 296, 47 P.3d 1209.

A physician owes a duty to non-patient third parties injured in an automobile accident caused by an adverse reaction to a medication prescribed three days earlier where the physician has negligently failed to warn the patient that the medication may impair driving ability and where the circumstances are such that the reasonable patient could not have been expected to be aware of the risk without the physician's warning. 98 H. 296, 47 P.3d 1209.

Department of education breached the duty it owed to molested students' parents by (1) reinstating teacher without conducting a reasonable investigation to ascertain another student's allegation; (2) failing to supervise or restrict teacher's contact with children after principal became aware or should have become aware that teacher resumed molestation conduct; and (3) principal's interviewing and inducing students to disclose molestation and failing to notify students' parents of that disclosure. 100 H. 34, 58 P.3d 545.

The duty of care that the department of education (DOE) owes to students and their parents is, on a general level, a duty to take whatever precautions are necessary reasonably to ensure the safety and welfare of the children entrusted to its custody and control against harms that the DOE anticipates, or reasonably should anticipate; this duty arises from the "special relationship" that the DOE shares with its students and their parents. 100 H. 34, 58 P.3d 545.

Appellate court erred in concluding as a matter of law that because privately owned road had been impliedly dedicated to the public, the public had an easement over the road, which would have subjected the owner of the easement to the duty to keep it in repair and to liability for injuries caused by such failure; whether an implied easement exists depends on the parties' intent and was a question of fact for the jury. 103 H. 385, 83 P.3d 100.

While the fact that the privately owned road was platted on a subdivision map, that §265A-1 authorized counties to repair and maintain private streets, and §46-16 authorized counties to regulate traffic on private streets, and each of these factors was significant in determining which party or parties had control of the private roadway, appellate court erred in concluding as a matter of law that defendant property owners did not control roadway and thus had no duty to maintain, repair, or warn of a dangerous condition; the issue of control of the roadway was a question of fact for the jury. 103 H. 385, 83 P.3d 100.

Under Act 190, L 1996, the State is required to warn of "extremely dangerous" ocean conditions (1) that occur at "public beach parks", (2) if these conditions are typical for the specific beach, and (3) if they present a risk of serious injury or death; as the Ke‘anae Landing area was not a public beach park, the State, as the owner and occupier of Ke‘anae Landing and its surrounding ocean water, did not have a duty to warn of any "extremely dangerous" ocean conditions at Ke‘anae Landing. 109 H. 198, 124 P.3d 943.

Where Act 190, Session Laws of Hawaii 1996, imposed no duty upon the State to warn of dangerous natural ocean conditions at "beach accesses, coastal accesses, or in areas that are not public beach parks", trial court correctly concluded that Act 190 relieved the State of any duty to warn plaintiffs of any dangerous ocean conditions at the Ke‘anae Landing area. 109 H. 198, 124 P.3d 943.

Because of the obvious danger to young children, it was unreasonable to require that swimming pool manufacturer furnish labels with its pools warning of that danger; swimming pool manufacturer's duty to put a safe product on the market includes duty to take such measures in manufacturing and marketing the pool as will reasonably protect against injury to young children arising from their use of the pool. 10 H. App. 547, 879 P.2d 572.

An accountant may be held liable to third parties under §552(2) of Restatement of Torts for negligence in the preparation of an audit report. 86 H. 301 (App.), 949 P.2d 141.

As neither a tenant nor a subtenant is a "business visitor" of a landlord's office building, no "special relationship" duty existed between subtenant and office building landlord. 104 H. 500 (App.), 92 P.3d 1010.

Government.

State which holds open a public thoroughfare for travel has duty to maintain it in condition safe for travel. 50 H. 497, 443 P.2d 142.

A nonjudicial government officer has no immunity from suit and is liable if officer was motivated by malice and not by an otherwise proper purpose. 55 H. 499, 522 P.2d 1269.

A public official can be held liable for damages for the malicious exercise of discretion. 2 H. App. 176, 628 P.2d 634.

Nonjudicial government official can be held liable for general, special, and punitive damages if official maliciously exercised official discretion or maliciously committed a tort. 2 H. App. 221, 629 P.2d 635.

Landowner.

Plaintiffs' claim for nuisance denied, where parties in the lawsuit owned neighboring oceanfront lots in a luxury subdivision and plaintiffs alleged that defendants' use of property created an unreasonable and substantial interference with plaintiffs' use and enjoyment of their lot and was thereby a nuisance. 338 F. Supp. 2d 1106.

Liability of wife who is joint owner of land with husband for collapse of retaining wall. 47 H. 149, 384 P.2d 303.

Occupier of land has duty to use reasonable care for the safety of all persons reasonably anticipated to be on premises, regardless of status of individual. 51 H. 134, 452 P.2d 445; 51 H. 299, 459 P.2d 198.

Liability of landowner for injuries caused by landowner's dog to trespassers discussed. 57 H. 620, 562 P.2d 779.

Occupier of land--extent of duty to warn of dangers on premises. 60 H. 32, 586 P.2d 1037.

If a condition exists upon land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn users against it. 70 H. 415, 772 P.2d 693.

Where plaintiff was injured on motocross track, an area of raceway park not thrown open for admission of the public, Restatement (Second) of Torts §359 could not be a basis for lessor's liability; lessor not liable under Restatement (Second) of Torts §358, where plaintiffs failed to adduce any facts demonstrating that lessees or sublessees did not know or have reason to know track's lighting was dangerously inadequate. 76 H. 77, 869 P.2d 216.

Chapter 520, the Hawaii recreational use statute, was not intended to have created a universal defense available to a commercial establishment such as landowner hotel, which has opened its land to the public for commercial gain, against any and all liability for personal injury merely because there is a "recreational" component to the establishment's operation. 93 H. 477, 6 P.3d 349.

Plaintiffs, by averring in their affidavits that they were on landowner's land for a commercial purpose at the time plaintiff was injured, generated a genuine issue of material fact whether they were on the land for a commercial purpose, in which case this chapter would not immunize the landowner from liability, or whether they were present for an exclusively recreational purpose, in which case this chapter would be available to landowner as a defense to plaintiff's negligence claim. 93 H. 477, 6 P.3d 349.

Continuing-tort exception, which tolls running of statute of limitations under §662-4, adopted; thus, where an actor continuously diverts water over which he or she has direct control onto another's land, and the diversion causes continuous and substantial damage to that person's property and the actor knows of this damage, such an act may present evidence of a continuous tort. 88 H. 241 (App.), 965 P.2d 783.

To recover in negligence, it must be shown that owner or occupant of premises knew or should have known of the hazard causing the injuries. 1 H. App. 554, 623 P.2d 446.

Malicious prosecution.

Summary judgment granted in favor of defendants on plaintiff's malicious prosecution claim, where defendant police officer and defendant resident manager had probable cause to arrest plaintiff for harassment. 855 F. Supp. 1167.

Defendants' motion for summary judgment denied in malicious prosecution action, where there was a question of fact as to whether the underlying civil actions were terminated in plaintiff's favor when the actions were voluntarily dismissed with prejudice. 150 F. Supp. 2d 1058.

5 H. 609; 6 H. 300; 7 H. 346; 7 H. 569; 10 H. 588; 43 H. 321; 49 H. 416, 421 P.2d 289; 2 H. App. 316, 631 P.2d 600.

In actions for malicious prosecution and false imprisonment, district court conviction conclusively establishes probable cause even if conviction is reversed. 56 H. 383, 538 P.2d 320.

Appellants' state tort claims for false arrest, false imprisonment, and malicious prosecution failed as a matter of law because appellants did not contest the preliminary hearing determination of probable cause and their commitment to circuit court for trial. Appellants failed to cite to any persuasive or relevant authority in support of their contention that where actions or inactions of the prosecutor subsequent to a preliminary hearing "erodes" probable cause, an action for false arrest, false imprisonment, or malicious prosecution arises. 76 H. 219, 873 P.2d 98.

Union shop steward's claim for malicious prosecution was preempted by the National Labor Relations Act where steward's allegations directly implicated factual conduct covered under the Act; thus, the claim presented a realistic risk of interference with the National Labor Relations Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices. 109 H. 520, 128 P.3d 833.

Malpractice.

Where plaintiffs sought to use certain statements made by defendant physician and the defendants' experts at deposition to show causation, there was insufficient testimony to create a genuine issue of material fact regarding causation; summary judgment in favor of the defendants was appropriate. 289 F.3d 600.

Defendant not required to [obtain] informed consent because of defendant's status as a consulting physician and because defendant did not gratuitously undertake to obtain informed consent. 125 F. Supp. 2d 1249.

Hospital's motion for summary judgment on issue of informed consent granted, where plaintiffs argued, inter alia, that because hospital provided doctors with consent forms (which bore hospital's name) and had an institutional policy regarding informed consent, hospital injected itself in consent process, thereby becoming subject to liability. 125 F. Supp. 2d 1249.

Liability of a hospital for allegedly negligent acts of its independent contractor doctors, discussed. 125 F. Supp. 2d 1249.

Patient's spouse could not recover on a theory of lack of informed consent. 125 F. Supp. 2d 1249.

See 43 H. 289.

Physician and surgeon; doctrine of informed consent; duty of physician to make full disclosure. 52 H. 188, 473 P.2d 116.

Manufacturer's package insert, in and of itself, may not establish the relevant standard of care in a medical negligence action. 78 H. 287, 893 P.2d 138.

The question of part (b) causation in an action based on doctrine of informed consent is to be judged by an objective standard, that is, whether a reasonable person in plaintiff-patient's position would have consented to the treatment that led to his or her injuries had plaintiff-patient been properly informed of the risk of the injury that befell him or her. 79 H. 362, 903 P.2d 667.

A consulting physician does not owe a duty to a patient to warn of the inherent risks of a proposed treatment or surgery; however, a physician tendering a second opinion has an obligation to inform a patient of the nature of the proposed treatment or surgery, its risks, and alternatives. 87 H. 183, 953 P.2d 561.

Court erred in holding that plaintiff was required to prove by expert testimony that a dentist owes a duty to disclose the risks or potential complications of surgery. 87 H. 183, 953 P.2d 561.

Where physician retained degree of participation in treatment, by way of control, consultation and otherwise, physician had continuing responsibility to properly advise patient of the risks and alternatives to the proposed surgery. 87 H. 183, 953 P.2d 561.

Where the relationship between an attorney and a non-client is such that a duty of care would be recognized, the non-client may proceed under either negligence or contract theories of recovery. 95 H. 247, 21 P.3d 452.

Where defendant doctor never properly established at trial the "therapeutic privilege exception" to the requirement that informed consent be obtained before starting patient on antipsychotic medication, trial court erred in refusing to instruct jury concerning the tort of negligent failure to provide informed consent. 98 H. 470, 50 P.3d 946.

Attorney representing a client may be personally liable to an adverse party or a third person as a result of attorney's intentional tortious act. 1 H. App. 379, 620 P.2d 733.

Master and servant.

Negligence claim against employer for failure to conduct adequate investigation of misconduct allegation against employee preempted by Labor Management Relations Act. 817 F. Supp. 850.

In action arising out of citizen's arrest of plaintiff by defendant resident manager, summary judgment granted in favor of defendant association of apartment owners on both negligent employment and supervision causes of action where plaintiff presented no evidence that defendant association knew or had any reason to know that defendant resident manager posed a threat to plaintiff. 855 F. Supp. 1167.

Defendant's motion for summary judgment granted with respect to plaintiff's claim for negligent training and supervision, where no evidence in the record to suggest that the assault on plaintiff was foreseeable to defendant. 126 F. Supp. 2d 1299.

Police officer was an independent contractor, not an employee of defendant that employed the officer as a special duty officer to direct traffic at defendant's construction site on date of incident; defendant could not be held liable under respondeat superior for torts committed by police officer while the officer was performing the officer's public duty as a police officer. 126 F. Supp. 2d 1299.

Exclusivity provision (§386-5) of the workers' compensation law barred plaintiff's negligence-based counts against defendants, where the counts arose "on account" of a work injury suffered by plaintiff; exception provided in exclusivity provision did not afford plaintiff a cause of action, where plaintiff did not allege sexual harassment or sexual assault. 266 F. Supp. 2d 1233.

Discussion of master-servant relationship. 8 H. 168. Master liable for servants' negligence. 3 H. 170; 29 H. 604; 30 H. 17; see 32 H. 246, aff'd 66 F.2d 929; 30 H. 452. Employer's liability for false imprisonment. 8 H. 411. Employer not liable for tort of employee committed while driving car furnished by employer for employee's personal use and so used. 32 H. 246, aff'd 66 F.2d 929. Detour of 400 feet from route by servant does not necessarily relieve master from liability. 30 H. 457. Administrator personally liable for negligence of servant even though committed within scope of estate's business. 11 H. 557.

Master's liability for theft by employee. 50 H. 477, 442 P.2d 460. Various bases for holding employer liable for torts of employee discussed. 50 H. 628, 446 P.2d 821.

Liability of employer for negligence of employees hired out to third persons; doctrine of loaned servant. 52 H. 379, 477 P.2d 611.

Where statutory employer secured workers' compensation coverage as required under chapter 386 by paying a fee for that purpose to the lending employer, and employee received a statutory award for work-connected injuries, statutory employer was entitled to tort immunity. 88 H. 140, 963 P.2d 349.

Hawaii law does not recognize tortious breach of contract actions in the employment context. 89 H. 234, 971 P.2d 707.

Section 386-5, the exclusive remedy provision of the workers' compensation law, bars neither a minor's tort claims for the minor's in utero injuries, nor any otherwise valid claims of any other party that allegedly derive from the minor's injuries. 91 H. 146, 981 P.2d 703.

Evidence did not support conclusion that employment relationship existed between defendants; even if employment relationship existed, defendant was not acting in scope of employment. 10 H. App. 298, 869 P.2d 1352.

Section 386-5, the exclusive remedy provision of the Hawaii workers' compensation law, does not bar a child from bringing a tort action against mother's employer for in utero injuries child personally sustained, allegedly as a result of a work-related accident involving the mother. 91 H. 157 (App.), 981 P.2d 714.

Mental distress.

Summary judgment granted in favor of defendants on plaintiff's intentional and negligent infliction of emotional distress claims in action arising out of citizen's arrest of plaintiff. 855 F. Supp. 1167.

Defendant's comments, while certainly distasteful, did not rise to level of outrageousness necessary to maintain intentional infliction of emotional distress claim. 866 F. Supp. 1285.

Because plaintiffs did not allege physical injury, there could be no recovery for negligent infliction of emotional distress claim; allegations about defendants' acts fell within meaning of outrageous conduct regarding intentional infliction of emotional distress claim. 895 F. Supp. 1365.

Where damage alleged by plaintiffs was to an expectancy in a life insurance contract, such damage did not qualify as sufficient to give rise to cause of action for negligent infliction of emotional distress; intentional infliction of emotional distress claim dismissed where alleged conduct did not qualify as "outrageous" under Hawaii law. 900 F. Supp. 1339.

Intentional infliction of emotional distress claim rejected, where editorial about plaintiff (when plaintiff was mayor) contained no false factual assertions and "actual malice" could not be established. 930 F. Supp. 1403.

Plaintiffs' claims for intentional infliction of emotional distress not barred by Hawaii's Workers' Compensation Act; plaintiffs' claims for negligent infliction of emotional distress barred by the Act. Defendant's motion for summary judgment granted with respect to plaintiffs' claims for negligent and/or intentional infliction of emotional distress, where, inter alia, plaintiffs had not alleged sufficient conduct by defendant to establish a claim for emotional distress. 2 F. Supp. 2d 1295.

Plaintiff could not recover for intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress; among other things, plaintiff had not established an intentional act that supported plaintiff's claim for IIED, where act upon which plaintiff's emotional distress claim was premised was publication of allegedly defamatory magazine article. 190 F. Supp. 2d 1192.

Exclusive remedy provision of Hawaii's workers' compensation law (§386-5) barred plaintiff's claim for negligent infliction of emotional distress, where plaintiff did not claim sexual harassment or assault. 284 F. Supp. 2d 1261.

Summary judgment granted in favor of defendants as to plaintiffs' cause of action for intentional infliction of emotional distress, where plaintiffs failed to produce any evidence or even argument concerning the emotional distress suffered by certain plaintiffs as a result of a defendant's racial slur and acts of discrimination. 300 F. Supp. 2d 1003.

Genuine issues of material fact existed as to every element of plaintiff's claim of intentional infliction of emotional distress; among other things, a reasonable juror could find that defendant's (which tested plaintiff's urine sample) failure to provide information about plaintiff's urine test to plaintiff in a timely manner, which resulted in plaintiff losing plaintiff's job for two years and allegedly caused plaintiff's depression, was outrageous conduct. 303 F. Supp. 2d 1121.

Plaintiff failed to allege facts sufficient to maintain intentional infliction of emotional distress claim, where the claim apparently stemmed from an alleged communication between plaintiff's union and one of defendant's (plaintiff's employer) agents, during which the agent informed the union president that plaintiff was not welcome to return to defendant's premises. 353 F. Supp. 2d 1107.

Plaintiff's claim for negligent infliction of emotional distress denied; defendant, plaintiff's employer, had not caused physical injury to any person or property and reasonable, normally constituted men can and do adequately cope with mental stress engendered by the unfortunate, but not uncommon, experience of losing a job. 353 F. Supp. 2d 1107.

Plaintiff's intentional infliction of emotional distress claim failed as a matter of law because plaintiff had not alleged that defendant engaged in outrageous conduct or that defendant's conduct caused plaintiff extreme emotional distress. 396 F. Supp. 2d 1138.

Infliction of mental suffering. 39 H. 370.

Negligent infliction of mental distress, actionable when. 52 H. 156, 472 P.2d 509; 55 H. 398, 520 P.2d 758.

Negligent infliction of mental distress: plaintiff must be within reasonable distance of scene of accident. 56 H. 204, 532 P.2d 673.

Damages for emotional distress may be recoverable where there is wanton and reckless breach of contract. 62 H. 594, 618 P.2d 283.

Negligent v. intentional infliction of emotional distress. 64 H. 464, 643 P.2d 532.

Plaintiff may rely on events which occurred prior to the limitations period in order to establish intentional infliction of emotional distress claim, as long as the incidents are constant and closely related to the violations which occurred within the period of limitations. 75 F. Supp. 2d 1113.

Trial court did not err in awarding damages for emotional distress to parents, where appellants claimed parents not entitled to recover damages for emotional distress because they were not present at scene of son's accident and did not suffer any physical manifestations of emotional distress. 71 H. 1, 780 P.2d 566.

Mental distress damages may be recovered in a products liability implied warranty action. 74 H. 1, 837 P.2d 1273.

Jury instruction concerning negligent infliction of emotional distress should contain the requirement of physical injury to a person, if plaintiff was able to demonstrate such injury. 76 H. 310, 876 P.2d 1278.

Because plaintiff failed to adduce any evidence that defendant acted unreasonably in the course of discharging plaintiff, plaintiff's claim for intentional infliction of emotional distress was properly dismissed on summary judgment; circuit court properly entered summary judgment in favor of defendant on plaintiff's negligent infliction of emotional distress claim, where plaintiff presented no evidence of any physical injury to plaintiff or anyone else. 76 H. 454, 879 P.2d 1037.

Defendant father's statement to sister of childhood sexual abuse victim defendant allegedly abused was not so unreasonable or outrageous as to give rise to cause of action by victim for intentional infliction of emotional distress. 83 H. 28, 924 P.2d 196.

Negligent infliction of emotional distress claim denied where plaintiffs failed to furnish evidence of greater mental stress than transient "concern", "worry", and "upset". 85 H. 336, 944 P.2d 1279.

Claim for negligent and/or intentional infliction of emotional distress against Hawaii civil rights commission not barred under §662-15(1), as acts of investigating complaint, instituting suit based on finding of reasonable cause, and sending demand letter were part of routine operations of commission and did not involve broad policy considerations encompassed within the discretionary function exception. 88 H. 85, 962 P.2d 344.

No intentional infliction of emotional distress as commission's act of sending official letter to settle complaint if appellant paid monetary damages and took out newspaper ad not "outrageous". 88 H. 85, 962 P.2d 344.

Where appellant's counterclaim lacked any allegation of physical injury to appellant or another as a result of the conduct of the Hawaii civil rights commission, action for negligent infliction of emotional distress could not be maintained. 88 H. 85, 962 P.2d 344.

A claim of negligent infliction of emotional distress for which relief may be granted is stated, inter alia, where the negligent behavior of a defendant subjects an individual to an actual, direct, imminent, and potentially life-endangering threat to his or her physical safety by virtue of exposure to HIV. 91 H. 470, 985 P.2d 661.

A plaintiff states a claim of negligent infliction of emotional distress for which relief may be granted where he or she alleges, inter alia, actual exposure to HIV-positive blood, whether or not there is a predicate physical harm; assuming that the other elements of negligent infliction of emotional distress are proved, a plaintiff is entitled to a recovery if such actual exposure is proved as well. 91 H. 470, 985 P.2d 661.

The elements of the tort of intentional infliction of emotional distress are (1) that the act allegedly causing the harm was intentional or reckless, (2) that the act was outrageous, and (3) that the act caused (4) extreme emotional distress to another. 102 H. 92, 73 P.3d 46.

Union shop steward's claim for intentional infliction of emotional distress was not preempted by the National Labor Relations Act where employer's alleged conduct designed to threaten steward's liberty and reputation went beyond mere "threat, or actuality, of employment discrimination" stemming from a union-related dispute; to the extent that steward could show that those acts were done in a particularly abusive manner, they were outside the purview of preemption. 109 H. 520, 128 P.3d 833.

Where manner in which insurer denied plaintiff's claim for no-fault benefits was not in bad faith and insurer's conduct was thus reasonable, and there was nothing in the record to indicate that plaintiff suffered any extreme emotional distress as a result of insurer's conduct, plaintiff failed to show that a genuine issue of material fact existed with respect to plaintiff's intentional infliction of emotional distress claim and trial court did not err in granting summary judgment in favor of insurer. 109 H. 537, 128 P.3d 850.

Emotional distress for failure to make payments on time under a real estate sale contract. 2 H. App. 188, 628 P.2d 214.

An employee may bring action against employer for intentional infliction of emotional distress caused by discrimination in violation of §378-2, and this action is not barred by exclusivity provision of §386-5. 87 H. 57 (App.), 951 P.2d 507.

Motor vehicles.

Negligence of driver of automobile not imputed to guests. 31 H. 750. Guest's duty of care. 31 H. 123. Duty of driver to guest. 31 H. 123.

Automobile rear-end collision. 48 H. 411, 405 P.2d 323.

Employers not liable for acts of employees resulting in automobile accident under theories of respondeat superior, negligent entrustment, or general negligence. 72 H. 387, 819 P.2d 84.

Driving vehicle with blood alcohol level above legal limit does not establish actionable or contributory negligence unless causal relationship is established between driver's alleged intoxication and accident. 73 H. 385, 834 P.2d 279.

Where appellants alleged that defendant was liable for deaths caused by drunk driving of one of its employees, appellants presented colorable claim of liability under theory of respondeat superior and viable claim for negligent failure to control an employee under Restatement (Second) of Torts §317. 76 H. 433, 879 P.2d 538.

Products liability.

Appellants failed to raise genuine issue of material fact as to whether raw material manufacturer had duty to warn appellants of dangers posed by use of raw material in production of implant devices. 82 F.3d 894.

Contractor not liable under strict products liability doctrine absent evidence that contractor was in product chain of title. 789 F. Supp. 1521.

Because court could not make factual determination as to whether brushless exciter and generator were one "product", court would not grant summary judgment to the effect that all damages claimed under tort and strict liability theories were barred by doctrine of economic loss. 838 F. Supp. 1390.

Device implanted in plaintiff's leg had no requirements imposed upon it by Medical Device Amendments to Federal Food, Drug, and Cosmetic Act or Food and Drug Administration which would preempt state tort claims. 841 F. Supp. 327.

Defendants' motion for partial summary judgment on plaintiff's claim for strict product liability granted, where defendants did not play integral role in production or marketing of lanai tile, and tile did not constitute a "product" under Hawaii law. 841 F. Supp. 986.

Plaintiffs failed to meet burden of proving that defendant placed defective product in the stream of commerce. 844 F. Supp. 590.

There was no legal basis for requiring raw material supplier to warn ultimate consumers of implant. 844 F. Supp. 590.

Economic loss doctrine applied to tort actions in the case, barring any cause of action in tort and strict liability, where plaintiff suffered only pecuniary injury as result of defendants' alleged conduct and was limited to recovery under law of contract. 955 F. Supp. 1213.

Strict liability design defect, breach of implied warranty, and failure to warn claims, and certain negligence claims, e.g., negligent labeling and packaging and negligent design, against certain defendants were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act. 272 F. Supp. 2d 1112.

Strict products liability-adoption of doctrine, proof of defect, parties in chain of distribution. 52 H. 71, 470 P.2d 240.

In strict products liability action, state-of-the-art evidence not admissible to establish whether seller knew or should have known of dangerousness of product. 69 H. 287, 740 P.2d 548; 960 F.2d 806.

Publication is not a "product". 73 H. 359, 833 P.2d 70.

To bring implied warranty of merchantability action for personal injury, plaintiff must show product unmerchantability sufficient to avoid summary judgment on issue of defectiveness in a tort strict products liability suit. 74 H. 1, 837 P.2d 1273.

Economic loss rule applies to bar recovery of pure economic loss in actions based on products liability but does not bar actions based on negligent misrepresentation or fraud. 82 H. 32, 919 P.2d 294.

Negligence and strict products liability claims against defendants for defective manufacture or design of fungicide not preempted by Federal Insecticide, Fungicide, and Rodenticide Act. 86 H. 214, 948 P.2d 1055.

Where defendants voluntarily assumed express warranty on fungicide label, and though express warranty on label was EPA approved it was not mandated under Federal Insecticide, Fungicide, and Rodenticide Act, Act did not preempt plaintiffs' claims for breach of express warranty. 86 H. 214, 948 P.2d 1055.

Escalator was not a "product" for purposes of strict liability claim against department store where it was located, but was a "product" for purposes of strict liability claims against manufacturer and distributor. 89 H. 204, 970 P.2d 972.

Where jurors could conclude either that design of tire rim assembly was cause of tire repairman's death or repairman's own negligence was sole legal cause of death, trial court erred in granting summary judgment for tire manufacturer on issue of tire manufacturer's strict liability for defective design of tire rim assembly. 92 H. 1, 986 P.2d 288.

Where owner of road grader was itself a user and consumer of the wheel components, was not in the business of selling or leasing the tire rim assembly, and did not introduce the harmful product into the stream of commerce, it was not strictly liable for tire repairman's death and was not under a duty to warn of possible dangers associated with the wheel assembly. 92 H. 1, 986 P.2d 288.

It is not always necessary to produce the specific instrumentality causing the accident to prove a case in products liability. 1 H. App. 111, 615 P.2d 749.

Negligence and strict liability principles, discussed. 10 H. App. 547, 879 P.2d 572.

UCC statute of limitations applies to breach of express warranty claim for personal injury. 86 H. 383 (App.), 949 P.2d 1004.

Res ipsa loquitur.

Doctrine of res ipsa loquitur under Hawaii tort law did not apply in action under Federal Tort Claims Act for injuries suffered by hand grenade thrown in restaurant parking lot. 938 F.2d 158.

Where inference of negligence raised by res ipsa loquitur is so strong that jury could not reasonably reject it, court may enter judgment n.o.v. 57 H. 279, 554 P.2d 1137.

Instruction. 59 H. 319, 582 P.2d 710.

Elements were not established satisfactorily so as to warrant application of the doctrine; invocation of the doctrine does not establish a presumption of negligence or shift the burden of proof. 77 H. 269 (App.), 883 P.2d 691.

See 40 H. 198; 43 H. 289, reh'g den. 43 H. 330; 48 H. 330, 335, 402 P.2d 289; 49 H. 77, 412 P.2d 669, reh'g den. 49 H. 267, 414 P.2d 428.

Other torts.

Defendants' statements implying attorney's poor client representation did not place attorney in false light where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false. 56 F.3d 1147.

District court did not err in rejecting appellants' trademark claim, since appellants could offer no evidence that trademark holder voluntarily licensed its trademark to manufacturer or that trademark holder had significant involvement in design, manufacture, or distribution of manufacturer's implant. 82 F.3d 894.

Regardless of whether chapter 387 can form the basis of a Parnar action, Hawai‘i law indicated that appellants (ramp supervisor and ramp agent who contended that they were terminated by airline in connection with ramp supervisor's wage and hour complaint, in violation of public policy) had not produced sufficient evidence to survive summary judgment on such a claim, even if it did exist. 281 F.3d 1054.

Plaintiffs' argument that since manufacturer improperly used defendant's trademark, and defendant failed to prevent this improper use, defendant was liable for alleged defective nature of implant, rejected. 844 F. Supp. 590.

Plaintiff could not prevail on false imprisonment claim, where defendant police officer and defendant resident manager had probable cause to arrest plaintiff for harassment. 855 F. Supp. 1167.

Defendant's motion to dismiss count regarding tortious interference with contract denied, where defendant alleged that a director or officer may not be liable for tortiously interfering with corporation's contract unless the director or officer acted solely for personal benefit; plaintiffs stated a claim for tortious interference with contract. 895 F. Supp. 1365.

In case arising out of alleged assault on airplane, tort claims for assault and battery preempted by Airlines Deregulation Act. 905 F. Supp. 823.

Plaintiffs failed to demonstrate that their claim for tortious interference with contract had any factual basis. 920 F. Supp. 1080.

Plaintiff's motion for partial summary judgment as to conversion claim granted, where defendant converted bill of lading to defendant's own use by sending it to defendant's attorney in Japan to ensure payment of invoice for defendant's services. 101 F. Supp. 2d 1315.

Plaintiff's claim for tortious interference with contractual relations and business (containing separate torts of tortious interference with contractual relations and tortious interference with a prospective business advantage) failed as a matter of law. 190 F. Supp. 2d 1192.

Plaintiff's claim for damages resulting from defendants' allegedly tortious interference with plaintiff's contractual relations with its customers was preempted, where any determination of the applicability of state tort law would require consideration of the scope of various provisions of the collective bargaining agreement between plaintiff and defendant union; even if the claim were not preempted, it would still be dismissed. 250 F. Supp. 2d 1244.

Preemption by Fair Credit Reporting Act of plaintiff's defamation and negligence claims against furnishers of credit information and consumer reporting agencies, discussed. 293 F. Supp. 2d 1167.

Where plaintiff asserted viable claims against defendants under 42 U.S.C. §1981, Title VII, and chapter 378, and each of the statutes provided a sufficient remedy such that the court did not need to fashion any further remedy under the public policy exception, defendants' motion for partial summary judgment granted on plaintiff's claim for violation of public policy. 322 F. Supp. 2d 1101.

Count of plaintiff's complaint sounding in common law wrongful termination in violation of public policy failed to state a claim; there could be no statutorily-based Parnar common law claims where, as with the federal Pregnancy Discrimination and Family and Medical Leave Acts, the statutes themselves provided comprehensive remedial schemes to vindicate their public policies. 324 F. Supp. 2d 1144.

Plaintiffs' spoliation claims failed as a matter of law, where plaintiffs based their spoliation claims on the destruction of plants from the alleged Costa Rica field test; destruction of the plants did not result in plaintiffs' inability to prove the underlying cases. 330 F. Supp. 2d 1101.

Assault aboard ship. 2 H. 255; 29 H. 564. Wilful negligence. 30 H. 12. Public contractor. 31 H. 296. Landlord, tenant and third party. 31 H. 740. Landlord and tenant. 11 H. 395. Conditional vendee may maintain action for injury to property. 30 H. 44. Collision defined. 29 H. 101. See 29 H. 122.

Disposal of surface waters, resultant damage. 40 H. 193; 47 H. 68, 384 P.2d 308; 47 H. 329, 388 P.2d 214. Operator of bathing pools, duty of. 40 H. 513.

Disposal of surface waters. 52 H. 156, 472 P.2d 509.

Liability of one who voluntarily undertakes a course of conduct intended to induce another to engage in an action. 58 H. 502, 573 P.2d 107.

Where defendants-appellants brought interference with contract claim against plaintiff-appellee, there was no evidence that plaintiff-appellee intentionally induced [third party] to breach agreement with defendants-appellants, and defendants-appellants failed to prove damages resulting from the alleged breach. 78 H. 40, 890 P.2d 277.

Claimant not precluded by exclusivity provision of §386-5 from seeking common law tort remedies against employer's insurer where injuries allegedly caused by insurer's denial of medical benefits and disability payments not "work injuries" within scope of chapter 386. 83 H. 457, 927 P.2d 858.

In the context of construction litigation regarding the alleged negligence of design professionals, a tort action for negligent misrepresentation alleging damages based purely on economic loss is not available to a party in privity of contract with a design professional; recovery limited to contract remedies. 87 H. 466, 959 P.2d 836.

Hawaii law does not recognize tortious breach of contract actions in the employment context. 89 H. 234, 971 P.2d 707.

Where plaintiff's claims did not arise under chapter 386, the exclusive remedy and original jurisdiction provisions in the workers' compensation statute did not apply, and where plaintiff's claims for relief of tortious conduct on the part of workers' compensation insurer were not within the original jurisdiction of the labor director, trial court erred in granting summary judgment on that basis. 90 H. 407, 978 P.2d 845.

Conspiracy to commit tortious interference with prospective business advantage between certain "common purpose" defendant corporations and also officer/shareholder of those corporations; claim failed for insufficient evidence. 91 H. 224, 982 P.2d 853.

Tortious interference with prospective business advantage recognized; elements. 91 H. 224, 982 P.2d 853.

Trial court's summary judgment in favor of accountant on appellants' negligence claim for accountant malpractice proper where appellants were incidental, not intended, beneficiaries of the relationship between accountant and client. 95 H. 247, 21 P.3d 452.

Trial court's summary judgment in favor of accountant on appellants' third party beneficiary negligence claim for accountant malpractice proper where appellants were incidental, not intended, beneficiaries of the implied contract between accountant and client. 95 H. 247, 21 P.3d 452.

Plaintiffs' claim of having spent three to five dollars on gasoline in reliance upon car dealership's advertisement, which they alleged was intended to induce them to visit dealership's lot for the purpose of purchasing an automobile, was a showing of sufficient damages for purposes of maintaining a negligent misrepresentation claim; court thus erred in granting summary judgment in favor of dealership on the basis that plaintiffs' damages were inadequate. 98 H. 309, 47 P.3d 1222.

The three to five dollars plaintiffs claimed having spent on gasoline responding to car dealership's advertisement, if proved, satisfied the requirement of "substantial pecuniary loss" necessary to support a claim for relief grounded in fraud. 98 H. 309, 47 P.3d 1222.

State employees' retirement system board has a fiduciary duty to provide its members with clear, understandable information concerning retirement benefits; where failure to do so in case may have resulted in retiree’s unilateral mistake with respect to retiree’s chosen mode of retirement and, additionally, constituted negligent misrepresentation, case remanded to board. 108 H. 212, 118 P.3d 1155.

Union shop steward's claims for abuse of process were preempted by the National Labor Relations Act where, given the circumstances of the case, the State's interest in protecting its citizens from abusive use of the courts and in policing its own court system were insufficient to override the federal labor scheme. 109 H. 520, 128 P.3d 833.

Union shop steward's claim for false light invasion of privacy was not preempted by the National Labor Relations Act where the National Labor Relations Board in an unfair labor practice proceeding would focus on the effect of the alleged acts on steward's association with the labor union while a state court would focus on infringement of the steward's right to privacy, and the interests of an individual in securing his or her privacy is a primary state concern. 109 H. 520, 128 P.3d 833.

Where loan broker did not present evidence showing that bank pursued an improper objective of harming broker or used wrongful means that caused injury in fact, trial court did not err in granting summary judgment in favor of bank on broker's tortious interference with prospective business advantage claim. 109 H. 35 (App.), 122 P.3d 1133.

Without evidence of an act of intentional inducement, loan broker had no basis for its claim that bank tortiously interfered with broker's contractual relationship with borrower; evidence merely of a breached contract was insufficient to sustain a tortious interference with contractual relations claim; thus, trial court did not err in granting summary judgment in favor of bank on broker's tortious interference with contractual relations claim. 109 H. 35 (App.), 122 P.3d 1133.

Sale by real estate broker of client's property to a party in which broker had pecuniary interest without disclosure to client was constructive fraud. 2 H. App. 188, 628 P.2d 214.

False imprisonment. 2 H. App. 655, 638 P.2d 383.

Sellers' brokers not entitled as a matter of law to a judgment that they were not liable to buyer for tort of negligent misrepresentation. 6 H. App. 188, 716 P.2d 163.

Where public policy against terminating employee solely because employee suffered a compensable work injury is evidenced in §378-32 and remedy is available under §378-35, judicially created claim of wrongful discharge in violation of public policy could not be maintained. 87 H. 57 (App.), 951 P.2d 507.

A plaintiff alleging the tort of interference with prospective contractual relations must plead and prove six elements. 87 H. 394 (App.), 957 P.2d 1076.

Under circumstances of case, defendant's communication of information to prospective employer's manager was privileged because it was truthful; thus, defendant could not be held liable as a matter of law for any alleged intentional interference with plaintiff's prospective employment contract with prospective employer. 87 H. 394 (App.), 957 P.2d 1076.

Allowance of intrafamily tort suits in Hawaii does not constitute a public policy which may be used to invalidate household exclusion clauses in a homeowner's policy. 87 H. 430 (App.), 958 P.2d 552.

In a tort case, the payment of the prevailing defendant's costs by the prevailing defendant's insurer pursuant to the insurance policy is not a valid reason for the trial court to decide not to order the losing plaintiff to pay the costs reasonably incurred by the prevailing defendant. 102 H. 119 (App.), 73 P.3d 73.

As Hawaii generally does not apply the theory of an implied warranty of habitability to commercial leases, and plaintiff's sublease was a commercial sublease without any special clause, plaintiff's claim on this basis was correctly adjudicated. 104 H. 500 (App.), 92 P.3d 1010.

Miscellaneous.

In class action brought against major cigarette manufacturers, tobacco trade associations, and the industry's public relations firm, first amended complaint asserted violations of federal RICO statutes; Hawaii's RICO statute, '842-2; federal antitrust statutes; Hawaii's antitrust act, chapter 480; various state common-law torts; and false advertising under '708-871; defendants' motion to dismiss for failure to state a claim granted, where injuries alleged by plaintiffs trust funds in first amended complaint were not direct; even if remoteness doctrine did not bar claims, claims failed for other reasons. 52 F. Supp. 2d 1196.

Where money is tortiously taken claimant may waive tort and sue in assumpsit. 11 H. 270.

Contract of bailment, duty of bailor. 28 H. 145; 47 H. 588, 393 P.2d 171.

Pleading scope of authority. 29 H. 604; 30 H. 452.

Last clear chance, essential elements. 52 H. 129, 471 P.2d 524.

Choice of law. 63 H. 653, 634 P.2d 586.