Report Title:



Reiterates the underlying intent of the discretionary function exception and the intentional tort exception to the State's waiver of sovereign immunity for the torts of its employees. Declares that all of the exceptions to the State's waiver of sovereign immunity are to be broadly construed in the State's favor.


S.B. NO.












SECTION 1. This Act has two separate but related purposes. First, to reiterate the intent underlying the discretionary function and intentional tort exceptions to the State's waiver of sovereign immunity for the torts of its employees in section 662-15 of the State Tort Liability Act, chapter 662, Hawaii Revised Statutes. Second, to declare again that notwithstanding what the Hawaii supreme court has characterized as the "tension between the discretionary function exception and the primary policy of the act to compensate victims of negligent conduct of state officials and employees," Breed v. Shaner, 57 Haw. 656, 667 (1977), it is the legislature's intent that all of the exceptions in section 662-15 be construed broadly in the State's favor. In enacting the State Tort Liability Act, the legislature has already balanced the interests of individuals who may be injured under the circumstances set out in the exceptions, against the interests of the community as a whole, and determined that it is not in the interest of the community as a whole to extend the State's waiver of sovereign immunity to allow individuals injured under those circumstances to recover damages from the State. Applying precedent that is inconsistent with this determination undermines the legislature's intent.

The Federal Tort Claims Act and Hawaii's State Tort Liability Act are similar in many respects. Each act provides a limited waiver of sovereign immunity to allow suits to be brought to recover money damages from the government for injuries caused by the torts of federal and state employees. Each act similarly reserves portions of the government's sovereign immunity by carving out exceptions from the right to sue that both acts confer. Each act provides for a discretionary function exception in language that is nearly identical.

Since its decision in Gaubert v. United States, 499 U.S. 315 (1991), more than a decade ago, the United States Supreme Court has interpreted the federal counterpart to the discretionary function exception in section 662-15(1) as barring all tort claims against the United States, arising out of situations in which a federal agency or employee must balance competing interests and make a judgment call that involves the weighing of economic, social, or political factors. Even in the most mundane contexts, if a decision of this kind must be made before the government is able to proceed, then all actions taken consistent with the decision, whether managerial or operational, routine or complex, come within the discretionary function exception. The United States Supreme Court also concluded that there is a strong presumption that economic, social, and political factors have been considered when a statute or regulation authorizes or requires an agency or its employee to exercise discretion.

However, despite the nearly verbatim provisions of the discretionary function exceptions of the two similarly worded acts, the Hawaii supreme court, in Tseu v. Jeyte, 88 Haw. 85, 90 (1998), rejected the United States Supreme Court's analysis of the federal version of the exception because it would be directly contrary to the Hawaii supreme court's past rulings on the discretionary function exception under Hawaii law to do so and because the court believed that the exception must be construed narrowly, in favor of providing citizens "sufficient protection against the acts of government employees," by limiting its application only to "situations in which the government agent is engaged in the effectuation of 'broad public policy.'"

This is not what was intended by the legislature. Laws that are similarly worded or modeled upon the laws of another jurisdiction provide the citizens of this State with the advantage of that other jurisdiction's experience and thinking, without necessarily binding us to its precedents. The wording of Hawaii's discretionary function exception continues to be nearly identical to that of its federal counterpart because the legislature agrees with the United States that whenever a state agency or employee is given discretion to act, all actions taken to effectuate the exercise of discretion, not just the making of the initial choice, is covered by the discretionary function exception. Without this kind of coverage, too many opportunities are left open for individuals and the courts to second guess the legislature's direct and indirect policy decisions.

Thus, if the department of transportation determines that its annual appropriation for highway improvements is insufficient to upgrade both highway lighting and highway shoulders and if, after weighing financial and safety concerns, a decision is made to upgrade lighting and postpone work on broadening the shoulders of state highways, then any tort claim implicating the adequacy of the shoulder area of a particular state highway is barred by the discretionary function exception.

The legislature is also concerned that the Hawaii supreme court has construed the "intentional tort" exception in section 662-15(4) more narrowly than the legislature intended. In Doe Parents v. State of Hawaii, 100 Haw. 34 (2002), the plaintiffs sued the State and a state employee because their daughters had been tortiously assaulted and battered by the state employee. The court held that the intentional tort exception did not bar the plaintiffs' claim against the State because it was not based upon the assault and battery but rather on the negligence of the state employees who hired the defendant employee. The court's analysis effectively gutted the intentional tort exception and almost guarantees that the State will be a joint tortfeasor whenever a state employee commits an intentional tort. Arguably, federal precedent is not as clear here as it is with respect to the discretionary function exception. Because of this the legislature believes that it is especially important to unequivocally declare that Hawaii's intentional tort exception is intended to bar all claims against the State that are based on injuries resulting from the intentional torts of its employees. Thus, irrespective of whether an intentional tort claim is alleged or proven against a state employee, the State may not be sued because it failed to foresee that an individual it hires would commit an intentional tort once that individual is an employee.

SECTION 2. Section 662-16, Hawaii Revised Statutes, is amended to read as follows:

"662-15 Exceptions. (a) 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 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[;], or any other intentional tort, and any claim for negligent hire or supervision of an employee who is alleged to have committed the intentional tort;

(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 [sections] 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[; or].

(b) The discretionary function exception in subsection (a)(1) shall be interpreted so as to provide the State the same protection from liability and the same type of protection from liability that the United States is afforded pursuant to title 28 United States Code section 2680(a)."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval and shall apply fully to all cases pending in the circuit courts of the State as of the date of its approval, to the extent permitted by law.