§662-15  Exceptions.  This chapter shall not apply to:

     (1)  Any claim based upon an act or omission of an employee of the State, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved has been abused;

     (2)  Any claim arising in respect of the assessment or collection of any tax, or the detention of any goods or merchandise by law enforcement officers;

     (3)  Any claim for which a remedy is provided elsewhere in the laws of the State;

     (4)  Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights;

     (5)  Any claim arising out of the combatant activities of the Hawaii National Guard and Hawaii state defense force during time of war, or during the times the Hawaii National Guard is engaged in federal service pursuant to section 316, 502, 503, 504, 505, or 709 of title 32 of the United States Code;

     (6)  Any claim arising in a foreign country; or

     (7)  Any claim arising out of the acts or omissions of any boating enforcement officer. [L 1957, c 312, pt of §1; Supp, §245A-15; HRS §662-15; am L 1972, c 164, §2(e); am L 1979, c 195, §2; am L 1986, c 173, §1; am L 1987, c 192, §1; am L 1988, c 135, §1; am L 1991, c 272, §15; am L 1998, c 213, §2; am L 1999, c 115, §§4, 11; am L 2004, c 10, §10]


Cross References


  Claim against the ferry system, see §§268-11 to 268-15.


Law Journals and Reviews


  Rogers v. State:  The Limits of State Tort Liability.  8 HBJ, no. 3, at 89 (1971).

  A Self-Executing Article XI, Section 9--The Door For a Bivens Action for Environmental Rights?  34 UH L. Rev. 187 (2012).


Case Notes


  Section was not applied retroactively.  832 F.2d 1116 (1987).

  Discretionary function exception discussed.  51 H. 150, 454 P.2d 112 (1969).

  Acts done on operational level are not within discretionary function exception.  51 H. 293, 459 P.2d 378 (1969); 52 H. 156, 472 P.2d 509 (1970).

  Distinction between governmental activity and private activity is not valid basis for determining liability.  51 H. 293, 459 P.2d 378 (1969).

  Discretionary function exception discussed re highway design.  57 H. 656, 562 P.2d 436 (1977).

  Claim for negligent and/or intentional infliction of emotional distress against Hawaii civil rights commission not barred under paragraph (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 (1998).

  The discretionary function exception in paragraph (1) is limited to situations in which a government agent is engaged in the effectuation of "broad public policy"; the investigation of a complaint by the Hawaii civil rights commission, in and of itself, does not involve such considerations; thus, a counterclaim for negligence in the performance of an investigation is not barred by sovereign immunity.  88 H. 85, 962 P.2d 344 (1998).

  Decision not to improve guardrail, at time of highway resurfacing project, constituted an operational level decision that did not fall within the discretionary function exception of paragraph (1).  91 H. 60, 979 P.2d 1086 (1999).

  To the extent that the plaintiffs predicated their negligence and negligent infliction of emotional distress claims upon the department of education's (DOE) negligent retention and supervision of teacher, paragraph (4) did not insulate the DOE from liability; given that plaintiffs had alleged that the DOE reasonably should have anticipated that teacher would molest the girl students, their negligent retention and supervision claims did not "arise out" of teacher's acts of molestation.  100 H. 34, 58 P.3d 545 (2002).

  Where a plaintiff's negligence claim against the State seeks to hold the State vicariously liable for a state employee's assault, battery, false imprisonment, etc. under the doctrine of respondeat superior, the State is, pursuant to paragraph (4), immune from the plaintiff's claims.  100 H. 34, 58 P.3d 545 (2002).

  As §40-35 applied to plaintiff's ocean recreation management area permit fee dispute, all of plaintiff's tort claims were barred under paragraph (3), which unambiguously provides that chapter 662 is inapplicable to "any claim for which a remedy is provided elsewhere in the laws of the State"; trial court thus did not err in determining that paragraph (3) barred all of plaintiff's tort claims.  113 H. 184, 150 P.3d 833 (2006).

  Assuming defendants' claims for "unreasonable failure to consent" and "negligent claims handling" fell within the interference with contract rights exception of paragraph (4),  it could not be said that the State improperly interfered with the alleged settlement agreement because, pursuant to §386-8, the State was a necessary party to such agreement.  114 H. 202, 159 P.3d 814 (2007).

  Where Hawaii employer-union health benefits trust fund trustees' decision to adopt a two-tier rate structure for health benefit plans was not a routine, everyday matter, but involved the evaluation of broad policy factors, it fell within the discretionary function exception of paragraph (1).  115 H. 126, 165 P.3d 1027 (2007).

  State has not waived its immunity in defamation actions.  1 H. App. 517, 620 P.2d 771 (1980).

  Cited:  133 H. 453, 331 P.3d 431 (2014).