Kauhako v. State of Hawaii Board of Education Department Of Education et al

Filing 83

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 63 MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 9/9/2015. ~ Defendants' Motion for Summary Judgment is GRANTED in part as to Count III, all claims against Defendant Nelson Shigeta, and for punitive damages against the State. The motion is DENIED in all other respects The following claims remain for trial: Count I against the DOE (Title IX); Count V (Negligent Supervision); Count VII (Negligence ); Count VIII (Gross Negligence); Count X (IIED); and Count XI (NIED). (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

ANGELICA J. KAUHAKO,
individually and as parent and next
friend of her minor child, MARIANA
DOE,
Plaintiff,

CIVIL NO. 13-00567 DKW-BMK

ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

vs.
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, NELSON SHIGETA,
individually and as principal of
Waianae High School, KRISTIN
LINDQUIST, individually and as care
coordinator of Waianae High School,
DOE DEFENDANTS 1-10,
Defendants.
________________________________
STATE OF HAWAII BOARD OF
EDUCATION DEPARTMENT OF
EDUCATION, NELSON SHIGETA,
individually and as principal of
Waianae High School, and KRISTIN
LINDQUIST, individually and as care
coordinator of Waianae High School,
Defendants and
Third-Party Plaintiffs,

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vs.

RUSTON TOM; DOE DEFENDANTS
1-10,
Third-Party Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Plaintiff Angela Kauhako alleges that Ruston Tom, an adult male special
education student, sexually assaulted her minor daughter, Mariana Doe, also a
special education student, at Waianae High School while under the care and
supervision of the Defendant Department of Education (“DOE”). Defendants – the
DOE, School Principal Nelson Shigeta, and Student Care Coordinator Kristin
Lindquist – move for summary judgment on the remaining claims against them.
The motion is GRANTED with respect to Count III for premises liability, all
claims against Shigeta, and for punitive damages against the DOE. Because
genuine issues of material fact persist with respect to Kauhako’s Title IX and
remaining tort claims based on Defendants’ alleged knowledge of a prior incident

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between these students, the motion is DENIED in all other respects, as set forth
below.
BACKGROUND
Although the parties dispute the precise factual chronology, Kauhako alleges
that Ruston sexually assaulted Mariana1 during school hours at least twice during
the 2012-2013 school year, including an on-campus incident on April 18, 2013. Of
significance to the instant motion is whether and when Defendants had notice of
the alleged assaults.
According to Kauhako, “in late October or early November 2012, I found
out from Mariana after she came home from school that she and Ruston and a
couple of other children had gone off campus and that as they were returning to
school Ruston tried to press up against her body and touched her breast.” Kauhako
Decl. ¶ 4. Kauhako says that, during a telephone call with Lindquist prior to a
November 9, 2012 individualized education program (“IEP”)2 meeting, she
“mention[ed] to Ms. Lindquist that Mariana had gone off campus with Ruston and
a couple of other kids.” Kauhako Decl. ¶ 5. Lindquist purportedly responded that

1

The Court adopts the parties’ use of certain first names to aid in clarity.

2

Special education students receive instruction pursuant to an IEP that is specifically tailored to
each student’s needs and updated annually. When Mariana began attending Waianae, her IEP
dated March 28, 2012 was the controlling plan for her education. Lindquist Decl. ¶¶ 4-5, Ex. A.

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Kauhako could bring up her concerns relating to this incident at the IEP meeting.
Kauhako Decl. ¶ 6. Kauhako states, that at the IEP meeting scheduled for
November 9, 2012, but held on November 13, 2012, “I brought up the off-campus
incident, and I said I don’t know what exactly happened, but Mariana told me that
Ruston had tried to press against her body and touched her breast when they were
walking back to the school campus.” Kauhako Decl. ¶ 9.
She claims that she also told Lindquist and Geri Martin, a vice principal, that
she was concerned that Mariana was allowed to walk around campus without
supervision. Kauhako requested that the school provide one-on-one supervision to
Mariana during school hours because she could not be left unattended due to her
vulnerability. Kauhako Decl. ¶ 10. According to Kauhako, “their response to my
concerns was they did not need to provide a one-on-one aide because Mariana was
somewhat getting one-on-one already, and said they would have Mariana stay
close to the class during recess.” Kauhako Decl. ¶ 11. She claims that she was not
completely satisfied with this response at the November 13, 2012 meeting, but that
she was assured by Lindquist that “Mariana would be watched at all times” and
that she did not have to worry. Kauhako Decl. ¶ 13.
The IEP Meeting Report generated by the DOE does not reflect any
discussion at the meeting of Kauhako’s concerns that Mariana had gone off
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campus with Ruston, which prompted Kauhako to request a one-on-one aide.
Defs.’ Ex. C. Kauhako asserts that the report is “not entirely accurate.” Kauhako
Decl. ¶ 14. The report notes that Kauhako “voiced some concerns about the peers
that Mariana spends time with” but it stops short of documenting the specific
concerns Kauhako claims to have raised about Mariana being touched
inappropriately by Ruston. Kauhako Decl. ¶ 15.
The DOE recounts a different version of the events in late 2012. According
to Lindquist, early in the school year, she realized that Mariana needed more
instruction in social skills, because at recess, Mariana would wander to the 9th
grade regular education area and the 9th grade girls would make fun of her. As a
result, during non-class times, Lindquist would not allow Mariana to go outside a
small area close to the classroom so that Lindquist could more closely monitor her.
Lindquist Decl. ¶¶ 6-7. On October 30, 2012, the school sent Kauhako a notice
regarding Mariana’s annual IEP meeting, originally scheduled for November 9,
2012. Lindquist Decl. ¶ 8, Ex. B. At the November 13, 2012 IEP meeting,
Lindquist contends that Kauhako did not raise any concerns about a sexual assault
on Mariana. She asserts that the only concern raised was protecting Mariana from
negative interactions with other students who made fun of her. Lindquist Decl.
¶ 10. According to Lindquist, Kauhako was concerned “about the peers that
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Mariana spends time with,” which Lindquist understood to mean Mariana’s
interactions with the regular education students and her classmates who had
behavioral challenges. Lindquist Decl. ¶ 10, Ex. C.
The DOE contends that it was not until December 4, 2012 that Mariana and
Ruston went off campus before school to a nearby food establishment – rather than
sometime prior to the November 13, 2012 IEP meeting. According to Lindquist,
when they returned to campus, they were counseled about not leaving campus
during the school day. Mariana never told Lindquist that anything “bad had
happened either when they went off campus or when they returned.” Lindquist
Decl. ¶ 11. Lindquist claims that this was the only time she was aware of that
Mariana and Ruston went off campus. Lindquist Decl. ¶¶ 11-12. On December 5,
2012, Dean of Students, Dean Shimada, notified Kauhako about the off campus
trip by telephone, and during that conversation, Kauhako did not express any
concerns about Mariana. Shimada Decl. ¶¶ 4-5. Lindquist also insists that at no
time “either before or after December 4, 2012 did Mariana or [Kauhako] ever tell
me that Mariana had been subjected to any inappropriate behavior by any other
student.” Lindquist Decl. ¶ 11.
On April 12, 2013, several students in Lindquist’s class—including Mariana,
Ruston, and other students named Ashley, and Kaniela—volunteered to work at a
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school musical program. Kauhako also attended this function. Lindquist Decl.
¶ 18. On April 15, 16, and 17, Mariana and Ruston both attended school and
behaved normally. According to Lindquist, nothing indicated that either student
had engaged in or experienced inappropriate behavior or been harmed. Lindquist
Decl. ¶¶ 20-21. According to Kauhako, however –
My daughter reported that a rape had occurred in the co-ed
bathroom at school during school hours. She said that it
happened on Mon (4/15/13), Tues (4/16/13), and Wed.
(4/17/13) and that no one knew anything until Ruston and she
were approached by her school teacher on April 18th after
Ruston was “looking like he did something wrong,” according
to Ms. [Lindquist].
Kauhako Ex. 1 (11/28/2014 Answers to Interrogatories) at 9.
On April 18, 2013, a little after 8:00 a.m., Educational Assistant (“EA”)
Patricia Sofa gave Mariana permission to use the bathroom. Ruston was still in the
classroom when Sofa gave Mariana permission to go. Declaration of Patricia Sofa
(“Sofa Decl.”) ¶ 5. According to Sofa, Mariana was gone from the classroom for
“about ten minutes or less. Before Mariana came back into the classroom, [Sofa]
looked outside and saw that Mariana was talking to Taylor near our classroom.
Taylor is another student in our classroom.” Sofa Decl. ¶ 8.
During the time that Mariana was out of the classroom, EA Joann DeCambra
gave Ruston permission to go to the bathroom. According to DeCambra,
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“[b]ecause I could see the urgency of his need to go, I gave him permission. When
I gave Ruston permission to go to the bathroom, I knew that Mariana had just left
the classroom to go to the bathroom also.” Declaration of Joann DeCambra
(“DeCambra Decl.”) ¶ 5. DeCambra explained that—
Ruston (and the other boys in our classroom) used a bathroom
that was farther away from our classroom and in the opposite
direction of the bathroom in the agricultural complex (the “AG
bathroom”). The AG bathroom was close to our classroom and
was used by the agriculture students and another classroom of
students with severe disabilities. When Ruston went to the
bathroom, he always used the bathroom farther away from our
classroom that the boys were supposed to use. When I gave
Ruston permission to go to the bathroom, I assumed that he
would use his regular bathroom and never thought that he
would use the AG bathroom.
DeCambra Decl. ¶ 6. Ruston came back to the classroom quickly and was not
gone for more than five minutes. DeCambra Decl. ¶ 7.
Kauhako claims that Ruston went into the AG bathroom while Mariana was
in it and sexually assaulted her. Kauhako Ex. 1 (11/28/2014 Answers to
Interrogatories).3 When Ruston returned to the classroom on April 18, 2013, he

3

According to Kauhako, Mariana asked Lindquist for permission to use the bathroom on April
18, 2013. She states that, as Mariana walked to the bathroom, Ruston followed her and did not
say anything. See Kauhako Ex. 2 (11/28/2014 Answers to Interrogatories). Kauhako asserts
that –
After she came out of the bathroom and washed her hands, Ruston
grabbed her and took off her clothes. He said, “Can I have sex with you?”

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appeared distraught to Lindquist, and she immediately spoke with him. As a result
of this conversation, she “felt that something may have happened” so she “took
care of Mariana and Ruston, and then notified Dean Shimada[.]” Lindquist Decl. ¶
19. According to Shimada, after he learned “that something may have happened
between Mariana and Ruston, [he] ensured that the two students were separated at
school. Ruston was sent home and not allowed to return to school.” Shimada
Decl. ¶ 8.4 Shimada called the Honolulu Police Department (“HPD”) to report a
possible incident involving students, and an HPD officer came to the school to
speak with Mariana. Shimada Decl. ¶ 7. At 9:32 a.m., Shimada called Kauhako to
inform her of a possible incident at school. According to Shimada, during this
telephone conversation, Kauhako told him that “Mariana had gone off campus in
the past and that something similar had happened.” Shimada Decl. ¶ 6. Shimada
declares that this was the first time that he had been told of prior incidents
“involving inappropriate conduct toward Mariana at school.” Shimada Decl. ¶ 6.

Mariana said, “no.” She was still standing. He said, “Can you unzip your
pants?” and Mariana said, “no.” Ruston went ahead and unzipped her
pants (she was wearing jeans) and pulled her jeans and panty down to her
ankles. Then Ruston pulled down his pants. Mariana asked, “What are
you doing?” and Ruston said, “Let me show you.” Then he showed her
his penis. Then he had sex with her while they were still standing up.
Kauhako Ex. 2 at 2.
In early May 2013, Ruston returned to school and was placed in a different classroom than
Mariana. Shimada Decl. ¶ 8.
4

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On April 18, 2013, Shimada accessed the security camera videos of the door
to the AG bathroom. He reviewed the security video from April 18, 2013. That
video showed that Mariana and Ruston did not use the AG bathroom at the same
time on April 18, 2013. Shimada’s review of the security camera video showed
that, at 8:05:10 a.m., Mariana went to the door of the AG bathroom and then turned
around and left the area. Approximately forty seconds later, 8:05:50 a.m., Ruston
went to the door of the AG bathroom, latched it open and went in. Ruston came
out of the bathroom approximately one minute and 20 seconds later. No other
person entered the bathroom while Ruston was there. Shimada Decl. ¶¶ 14-15.
Shimada also reviewed the security camera footage from April 15, 16, and 17.
According to Shimada, this footage did not show Mariana and Ruston using the
AG bathroom at the same time on any of these days. Shimada Decl. ¶ 16.
With respect to school accommodations, Lindquist explains that Mariana
was allowed to go to the restroom on campus alone, but the teacher or educational
assistants in the classroom would keep track of the time that Mariana was gone.
Lindquist Decl. ¶¶ 14-15. According to school officials, there is a bathroom used
by both male and female students in the Agriculture Complex (“AG Complex”)
with showers, and its original purpose was for agriculture students who got

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muddied during the day and needed to clean up. Declaration of Lei Aken (“Aken
Decl.”) ¶ 4. Male and female agriculture students may use this bathroom, but
are not allowed to use it at the same time. Aken Decl. ¶ 6.
Since 2008, the AG bathroom has also been used by special education
students with severe disabilities. These disabled male and female students may use
this bathroom at the same time depending on necessity and scheduling with the
agriculture students. However, when these disabled students use the bathroom,
they are always accompanied by an adult and are supervised. Declaration of
Jenine Ibanez (“Ibanez Decl.”) ¶¶ 4-6. When the special education students use the
AG bathroom, they close the outside door, and the agriculture students know that a
special education student is using the bathroom and that they must wait until the
special education student comes out. Aken Decl. ¶ 8. Mariana was allowed to use
the AG bathroom because it was close to her classroom, and Mariana needed to use
the restroom often during the day. Lindquist Decl. ¶ 15. Ruston also was allowed
to go to the restroom on campus alone, and Lindquist or the EAs in the classroom
would keep track of the time that Ruston was gone to the restroom. Lindquist
Decl. ¶ 17. According to Lindquist, Ruston and Mariana were not supposed to use
the same restroom on campus, nor were any of the male students in Lindquist’s

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classroom allowed to use the same restroom as the female students. Lindquist
Decl. ¶ 13.
Defendants attest that they were never notified by Kauhako of any problems
or concerns of inappropriate or improper behavior towards Mariana by another
student or by any school staff. Shigeta Decl. ¶ 5; Shimada Decl. ¶¶ 5-12; Lindquist
Decl. ¶¶ 7, 10-11, 26-27. According to Lindquist, she was never informed by any
one that “Mariana had been harassed, abused, or molested, as alleged in the First
Amended Complaint. If I were ever to find out that Mariana was harmed in any
way, I would have immediately taken action to end the alleged improper behavior
and to ensure her safety.” Lindquist Decl. ¶27.
Both Lindquist and Shimada claim that Ruston was a good student who
never caused any problems at school. Neither would have expected him to engage
in any inappropriate behavior. See Shimada Decl. ¶ 17; Lindquist Decl. ¶¶ 22-25.
Lindquist taught Ruston for several years, and explained that he is a highfunctioning student, particularly in the social area. Lindquist Decl. ¶ 23.
According to Lindquist –
Because Ruston was a model student and always polite and
well-behaved, I would never suspect him of doing anything to
any other student that would be harmful or inappropriate. I
never saw him engage in any behavior that was inappropriate,
either sexual or otherwise. I never had any complaints from
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anyone about any improper behavior from Ruston. I never had
any indication or reason to believe that Ruston required any
extra or special supervision.
Lindquist Decl. ¶ 25.
Kauhako seeks damages from the DOE, and Shigeta and Lindquist in their
individual capacities, alleging that Defendants had notice of sexual assaults against
Mariana prior to April 18, 2013, and that they placed Mariana in a dangerous
situation by allowing both male and female special education students to use the
AG bathroom.
The Court previously granted Defendants judgment on the pleadings with
respect to several counts – Count II (Section 1983); Count IV (Sexual Assault and
Battery); Count VI (Negligent Hiring, Training and/or Supervision); Count IX
(Willful and Wanton Conduct/Reckless Disregard); and Count XII (Respondeat
Superior, Agency Liability and/or Vicarious Liability) – and the duplicative claims
against Shigeta and Lindquist in their official capacities. Kauhako’s Title IX claim
(Count I) and premises liability claim (Count III) remain against the DOE only.
The following tort claims also remain: negligent supervision (Count V), negligence
(Count VII), gross negligence (Count VIII), intentional infliction of emotional
distress (“IIED”) (Count X), and negligent infliction of emotional distress
(“NIED”) (Count XI). Kauhako also seeks punitive damages.
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Defendants move for summary judgment on all remaining claims.
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
I.

Count I: Title IX
The DOE argues that it is entitled to summary judgment on Count I for

violation of Title IX because it was not deliberately indifferent to known acts of
sexual harassment and because Mariana suffered no loss of educational
opportunity. The statute provides, in pertinent part:
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or
activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). In order to state a prima facie case under Title IX that is
predicated on a student’s sexual harassment, a plaintiff must allege that: (1) the
sexual harassment was so severe, pervasive, and objectively offensive that it could
be said to deprive the plaintiff of access to educational opportunities or benefits;
(2) the defendant had actual knowledge of the sexual harassment; and (3) the

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defendant was deliberately indifferent to the harassment. See Reese v. Jefferson
Sch. Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000); Lopez v. Regents of
University of Cal., 5 F. Supp. 3d 1106, 1120-22 (N.D. Cal. 2013).
The Court first addresses the DOE’s contention that it did not have adequate
notice of the offending conduct and that it was not deliberately indifferent. Where
a Title IX claim is predicated on a student’s sexual harassment, notice on the part
of the federal funding recipient is critical because “it is the deliberate failure to
curtail known harassment, rather than the harassment itself, that constitutes the
intentional Title IX violation.” Mansourian v. Regents of University of Cal., 602
F.3d 957, 967 (9th Cir. 2010) (citing Davis v. Monroe County Bd. of Educ., 526
U.S. 629, 641 (1999)). “The actual notice requirement under Title IX is satisfied
where an ‘appropriate official possessed enough knowledge of the harassment that
it reasonably could have responded with remedial measures to address the kind of
harassment upon which plaintiff’s legal claim is based.’” Lopez, 5 F. Supp. 3d at
1122-23 (quoting Folkes v. N.Y. College of Osteopathic Medicine, 214 F. Supp. 2d
273, 285 (E.D.N.Y. 2002)).
According to the DOE, there is no evidence that anyone at the school was
notified that Mariana was allegedly attacked on or before December 4, 2012. See
Mem.in Supp. at 12-13. And although the DOE was aware of the December 4,
15

2012 off-campus incident, which it promptly reported to Kauhako, there is no
evidence of any sexual misconduct associated with that incident. In fact, the DOE
contends that, other than the events of April 18, 2013, there is no evidence that
Lindquist, Shigeta, Shimada, or anyone else at the school had any notice that
Mariana had been subject to sexual harassment, sexual abuse, or sexually
inappropriate behavior.
According to Kauhako, however, she did tell Lindquist about an earlier
incident involving Mariana and Ruston. Kauhako claims that, “in late October or
early November 2012, I found out from Mariana after she came home from school
that she and Ruston and a couple of other children had gone off campus and that as
they were returning to school Ruston tried to press up against her body and
touched her breast.” Kauhako Decl. ¶ 4. Kauhako says that, during a telephone
call with Lindquist prior to the November IEP meeting, she told Lindquist “that
Mariana had gone off campus with Ruston and a couple of other kids.” Kauhako
Decl. ¶ 5. Lindquist purportedly responded that Kauhako could bring up her
concerns relating to this incident at the IEP meeting. Kauhako Decl. ¶ 6. Kauhako
states that at the IEP meeting, “I brought up the off-campus incident, and I said I
don’t know what exactly happened, but Mariana told me that Ruston had tried to

16

press against her body and touched her breast when they were walking back to the
school campus.” Kauhako Decl. ¶ 9. Lindquist disputes this version of events.
Lindquist contends that Kauhako did not raise any concerns about a sexual
assault on Mariana either before or during the November 13, 2012 IEP meeting.
She asserts that the only concern raised was protecting Mariana from negative
interactions with other students who made fun of her. Lindquist Decl. ¶ 10.
According to Lindquist, Kauhako was concerned “about the peers that Mariana
spends time with,” which Lindquist understood to mean Mariana’s interactions
with the regular education students and her classmates who had behavioral
challenges. Lindquist Decl. ¶ 10, Ex. C. The DOE insists that the record shows
that it was not until December 4, 2012 that Mariana and Ruston went off campus
before school to a nearby food establishment – rather than sometime prior to the
November 13, 2012 IEP meeting – and when they returned to campus, Mariana
never told her teachers that anything “bad had happened either when they went off
campus or when they returned.” Lindquist Decl. ¶¶ 11-12; Shimada Decl. ¶ 4.
Lindquist declares that at no time “either before or after December 4, 2012, did
Mariana or [Kauhako] ever tell me that Mariana had been subjected to any
inappropriate behavior by any other student.” Lindquist Decl. ¶ 11.

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Kauhako maintains that Lindquist’s statements in the IEP meeting reports
and in Lindquist’s declaration regarding the lack of notice and about a sexual
assault or any other inappropriate sexual behavior towards Mariana are “not
accurate.” Kauhako Decl. ¶¶ 7-8. In opposition to the motion, Kauhako presented
sworn testimony that she told Lindquist that Mariana and Ruston had been off
campus sometime before the November IEP meeting, and that Ruston had tried to
press against Mariana’s body and touched her breast when they were walking back
to the school campus. The DOE, however, points to Kauhako’s deposition
testimony, in which she stated that there was only one time that Mariana went off
campus, and that Kauhako found out about that incident when the school contacted
her in December 2012. See Defs.’ Ex. E (Kauhako 4/27/15 Dep. Tr. at 88). At this
stage of the litigation, the Court is mindful that “reasonable minds could differ as
to the import” of Kauhako’s deposition testimony, see Anderson v. Liberty Lobby,
477 U.S. 242, 250-51 (1986), and that the evidence and inferences from it, when
viewed favorably to her, are sufficient to support a Title IX claim.
If a jury were to believe the version of events set forth in Kauhako’s
declaration, a reasonable jury could find that Defendants were both on notice and
acted with deliberate indifference. “Deliberate indifference is found if the school
administrator responds to known peer harassment in a manner that is clearly
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unreasonable.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135 (9th
Cir. 2003) (citing Davis, 526 U.S. at 649). Failure to take any steps to investigate
and stop the harassment would support a finding of deliberate indifference. Id. at
1135-36; see also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034
(9th Cir. 1998).
Viewing the record in the light most favorable to Kauhako—as the Court
must at this time—Defendants were arguably aware of the conduct occurring
between the same actors during school hours in relatively close temporal proximity
to the alleged April 18, 2013 sexual assault. The Court does not make credibility
determinations or weigh conflicting evidence at the summary judgment stage. See
Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (“[C]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”) (citations
omitted). Although it is uncertain whether Kauhako can ultimately prove
deliberate indifference by the DOE, at this stage of the proceedings, she provided
sufficient evidence to create issues of fact warranting a trial on the merits. See
Anderson, 477 U.S. at 251-52 (stating that summary judgment requires
determination of “whether the evidence presents a sufficient disagreement to

19

require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). Accordingly, summary judgment is denied.
The Court also concludes that Kauhako has raised a triable issue of lost
educational opportunity. Kauhako avers that Mariana suffered severe sexual
harassment and assault at the hands of another student. See Doe v. Galster, 768
F.3d 611, 618 (7th Cir. 2014) (Noting that “violent physical attacks . . . added up to
severe or pervasive harassment that denied Doe equal access to educational
benefits or opportunities. These attacks could qualify as ‘objectively offensive.’”)
(citing Davis, 526 U.S. at 650). Mariana also missed school on Friday, April 19,
2013 for a physical examination at the Sex Abuse Treatment Center, the day after
the alleged sexual assault. Kauhako Exs. 4 (4/19/13 Medical Form) & 5 (4/13
Calendar). She also attended 28 counseling sessions during the school day, over a
21-month period, for treatment of post-traumatic stress disorder and other
symptoms following the alleged sexual assault. Kauhako Ex. 6 (5/29/15 Lynch
Dep. Tr. at 177-182). These schools absences, which Kauhako traces to the
alleged sexual assault, could be said to have deprived Mariana of access to
educational opportunities or benefits. See, e.g., Davis, 526 U.S. at 651 (“[a]
plaintiff must establish sexual harassment of students that is so severe, pervasive,
and objectively offensive, and that so undermines and detracts from the victims’
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educational experience, that the victim-students are effectively denied equal access
to an institution’s resources and opportunities.”); id. at 654 (Reversing dismissal of
complaint where plaintiff alleged that “harassment had a concrete, negative effect
on her daughter’s ability to receive an education.”); Murrell v. School District No.
1, 186 F.3d 1238, 1248 (10th Cir. 1999) (Finding that a complaint sufficiently
alleged severe harassment where the victim was sexually assaulted for a month,
eventually hospitalized, and then rendered homebound by the abuse.); cf. Al-Rifai
v. Willows Unified Sch. Dist., 469 F. App’x 647, 649 (9th Cir. 2012) (Affirming
dismissal of Title IX claim against school district where the “specific allegations
amount to simple teasing and name-calling—for which Title IX damages are not
available.”). Here, the Court concludes that genuine issues of material fact
preclude summary judgment on this point as well.
The Court observes that a jury could reasonably reject liability under Title
IX and is mindful that the DOE has offered evidence that would support a verdict
in its favor. For example, the testimony of Lindquist and Shimada contradict
Kauhako’s account, and IEP meeting notes and Shimada’s call logs corroborate the
DOE’s version of events. However, that the DOE has presented evidence in its
defense does not undermine the Court’s conclusion that there is a genuine dispute

21

that requires resolution by a jury. Accordingly, Defendants’ motion is DENIED as
to Count I.
II.

Count III: Premises Liability
The DOE argues that it is entitled to summary judgment on Count III, for

premises liability, in which Kauhako alleges that the school maintained an
unreasonably dangerous condition: allowing both male and female special
education students to use the AG bathroom, knowing that one of the male students
“preyed on a female special education student who by her obvious limitations was
extremely vulnerable and defenseless.” Mem. in Opp. at 11.
In order to maintain a claim based on premises liability, Kauhako must
establish that a condition existed at the school which posed an unreasonable risk of
harm, and that the DOE failed to take reasonable steps to eliminate that risk or to
adequately warn users about it. See Corbett v. Ass’n of Apartment Owners of
Wailua Bayview Apartments, 70 Haw. 415, 417, 772 P.2d 693, 695 (1989)). The
DOE argues that because (1) there was no unsafe condition; and (2) it had no
notice of any unsafe condition, there were no “steps” that it was obligated to take.
The DOE contends that there is no “co-ed” bathroom as alleged in the
complaint. The AG bathroom is not accessed by male and female students
simultaneously. Male and female agriculture students use it at separate times and
22

are strictly segregated by gender. Aken Decl. ¶¶ 6-10. The AG bathroom is also
used by severely disabled students, who are not high functioning, whose classroom
is two doors away in the AG complex. Ibanez Decl. ¶¶ 4-5. Because the AG
bathroom is near their classroom, the severely disabled students, both male and
female, sometimes use this restroom accompanied by an adult aide. Some of these
students will also use the AG bathroom shower facilities or to change clothes
because of the nature of their disabilities. Ibanez Decl. ¶¶ 6-7. The majority of the
special education students in Lindquist’s class, however, were higher functioning
and able to use the restroom unaccompanied, including Mariana and Ruston.
Because Mariana used the bathroom more frequently than her other students,
Mariana was allowed into the AG bathroom that was closer to Lindquist’s
classroom. When she would leave to go to the bathroom, the teachers would keep
track of how long she was gone. Lindquist Decl. ¶¶ 13-15. Other students in
Mariana’s class did not have permission to use the AG bathroom, including
Ruston.
In opposition, Kauhako does not set forth facts demonstrating that the school
maintained a co-ed bathroom that created an unreasonably dangerous condition.
Instead, Kauhako argues that “Defendants knew or should have known that
designating only a single bathroom [for] both male and female special education
23

students was a recipe for disaster for Mariana Doe . . . . By creating that situation,
Defendants placed Mariana in a dangerous situation, which they themselves
created.” Mem. in Opp. at 11. There is no evidence, however, that the DOE
designated a single bathroom for both male and female special education students
to access unaccompanied by an adult aide.
The DOE also contends that it had no notice of any unsafe condition arising
from the AG bathroom facility usage.

The owner or occupant of land will be

liable “if the owner or occupant was previously put on actual or constructive notice
of an unreasonably unsafe condition that caused the injury.” Mohler v. Kipu Ranch
Adventures, LLC, 2014 WL 5817538, at *8 (D. Haw. Nov. 7, 2014) (citations
omitted). Viewing the facts in the light most favorable to Kauhako, there is no
evidence before April 18, 2013 of any incident occurring in the AG bathroom to
give the DOE actual or constructive notice of the alleged dangerous condition.
Quite simply, Kauhako presents zero evidence on this point; hence, there is no
question of fact regarding any unsafe condition that “existed for such a period of
time that the owner or occupant should have been able to detect it through the
exercise of reasonable diligence.” Id. Kauhako, the nonmoving party “cannot
defeat summary judgment with allegations in the complaint, or with unsupported
conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d
24

1107, 1112 (9th Cir. 2003). Because she fails to establish a genuine issue of fact
that a condition existed at the school which posed an unreasonable risk of harm,
the DOE is entitled to summary judgment on Kauhako’s premises liability claim.
Accordingly, Defendants’ motion is GRANTED as to Count III.
III.

Claims Against Shigeta
The record demonstrates that Principal Shigeta did not play a direct role in

any of the events alleged in the complaint. According to Shigeta, prior to April 18,
2013, he was never notified of any problems or concerns regarding Mariana. He
was notified by Vice-Principal Shimada about the incident involving Mariana and
Ruston on April 18, 2013. Shigeta Decl. ¶ 5. He did not attend any of Mariana’s
IEP meetings or speak with Kauhako. His uncontroverted declaration is clear on
this point: “While I was Principal at [Waianae High School], I did not have any
personal contact with [Kauhako] regarding her daughter, Mariana.” Shigeta Decl.
¶ 4. He is also clear that “[n]o one ever informed me that Mariana had been
harassed, abused or molested, as alleged in the First Amended Complaint.”
Shigeta Decl. ¶ 8.
In opposition to the motion, Kauhako states only: “I was told by the school
that whenever an incident report is made, Principal Nelson Shigeta is provided a
copy and informed of the matter. [T]his is why I disagree with Ms. Lindquist’s
25

statement in paragraph 6 of her June 9, 2015 declaration that at no time did I ever
request or tell her that Mariana should have a one-on-one aide at school.”
Kauhako Decl. ¶¶ 17. At her deposition, Kauhako responded that she does not
remember if she ever spoke to Shigeta or not. Defs.’ Ex. E (Kauhako 4/27/15 Dep.
Tr. at 68-69). In the absence of any genuine issue of fact regarding his personal
involvement or knowledge of events sufficient to support a finding of liability,
Defendants’ motion is GRANTED as to Shigeta.
IV.

Remaining Tort Claims
A.

Counts V, VII, VIII, and XI: Negligence Claims

Defendants move for summary judgment on Count V (Negligent
Supervision), Count VII (Negligence), Count VIII (Gross Negligence), and Count
XI (NIED), arguing that they did not breach any duty owed to Kauhako or
Mariana. As a preliminary matter, the Court observes the DOE’s duty, recognized
under Hawai‘i state law, standing in loco parentis, to take reasonable steps to
prevent reasonably foreseeable harms to its students. Doe Parents No. 1 v. State,
Dep’t of Educ., 100 Hawai‘i 34, 74, 58 P.3d 545, 585 (2002). Because the Court
finds that genuine issues of fact exist as to whether Defendants had notice of
specific previous sexual harassment, the motion is denied with respect to these
negligence-based claims.
26

1.

Count V: Negligent Supervision

The DOE acknowledges its duty to protect students from foreseeable harms
that schools reasonably should anticipate. Mem. in Supp. at 20. It argues,
however, that it has no duty to “monitor” or “control” its students, nor did it breach
a duty in this case where “there was no notice to the State that could possibly allow
the State to foresee that Ruston would [allegedly] commit an intentional act.” Id.
at 21. According to his teachers, Ruston was a model student, and there was no
reason to believe that he required special supervision. See Lindquist Decl. ¶¶ 17,
22-25; DeCambra Decl. ¶ 8. Moreover, Mariana was closely supervised, and
Lindquist denies any prior knowledge that she had been harmed by Ruston. See
Lindquist Decl. ¶¶ 26-27 (“When Mariana was in my classroom at school, I did all
that I could do to make sure that she was safe. No one ever informed me that
Mariana had been harassed, abused or molested, as alleged in the First Amended
Complaint. If I were ever to find out that Mariana was harmed in any way, I would
have immediately taken action to end the alleged improper behavior and to ensure
her safety.”).
Kauhako, however, avers that she told Lindquist before the November 2012
IEP meeting that Mariana and Ruston went off campus, and that Ruston had tried
to press against Mariana’s body and touched her breast. According to Kauhako,
27

she asked for the one-on-one adult aide to provide Mariana extra supervision to
ensure her safety, which the DOE maintained was not necessary. Kauhako Decl.
¶¶ 4-14; Kauhako Ex. 1. Although the DOE disputes this account, the Court must
view the evidence in the light most favorable to the non-moving party. With this
standard in mind, the Court concludes that a jury could find that because the DOE
either knew or “reasonably should have foreseen that a particular student would
harm another, it [owed] a duty specifically to supervise either the assailant or the
student [allegedly] harmed by him.” Doe Parents No. 1, 100 Hawai‘i at 80, 58
P.3d at 591 (citing Kim v. State, 62 Haw. 483, 492, 616 P.2d 1376, 1382 (1980)).
Accordingly, a triable issue of fact exists regarding whether Defendants’ conduct
fell short of its duty to reasonably supervise students. Defendants’ motion is
DENIED as to Count V.
2.

Counts VII and VIII: Negligence and Gross Negligence

Defendants seek summary judgment on Kauhako’s negligence and gross
negligence claims, arguing no legal duty was breached with respect to the alleged
sexual assault in the AG bathroom. In order to succeed on a claim for negligence,
a party must show:
1. A duty, or obligation, recognized by the law, requiring the actor
to conform to a certain standard of conduct for the protection of
others against unreasonable risks.
28

2. A failure on [the actor’s part] to conform to the standard
required . . .
3. A reasonable close causal connection between the conduct and
the resulting injury . . .
4. Actual loss or damage resulting to the interests of another . . .
White v. Sabatino, 415 F. Supp. 2d 1163, 1173 (D. Haw. 2006) (citation omitted).
In order to succeed on a claim for gross negligence a party must show “that
there has been an entire want of care” which raises a presumption of conscious
indifference to consequences.” Mullaney v. Hilton Hotels Corp., 634 F. Supp. 2d
1130, 1154 (D. Haw. 2009).
Gross negligence “is simply a point on a continuum or
probability, and its presence depends on the particular
circumstances of each case.” Royal Ins. Co. of Am., 194 F.3d at
1015 (internal citation and quotation omitted); Pancakes of
Hawai‘i, Inc., 85 Hawai‘i at 293, 944 P.2d 83 (“The element of
culpability that characterizes all negligence is in gross
negligence magnified to a high degree as compared with that
present in ordinary negligence.” (internal citation and quotation
omitted)).
Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1234 (D. Haw. 2010).
Kauhako creates triable issues of fact on her claims for negligence and gross
negligence. There is no dispute that a duty of care is owed to the DOE’s students.
See Victor v. Koga, 131 Hawai‘i 253, 317 P.3d 697 (App. 2014) (discussing the

29

DOE’s statutory duty to protect its students from reasonably foreseeable harm, and
the special relationship with its students, which obligates the DOE to exert
reasonable care in ensuring each student’s safety and welfare, as would a
reasonably prudent parent) (citing Doe Parents, 100 Hawai‘i at 79180, 58 P.3d at
590-91). The record is disputed, however, with respect to whether Defendants had
notice of any reasonably foreseeably harm and whether the duty was breached for
purposes of Kauhako’s negligence claims. Although Lindquist swears that she
took extra steps to ensure that Mariana was safe at school, Kauhako presents
evidence that she told Lindquist that Mariana was sexually harassed and/or
assaulted by Ruston prior to or at the November 2012 IEP meeting, but that the
school took no action on this specific report. Kauhako sufficiently raises an issue
of fact demonstrating Defendants’ “entire want of care,” and raising a presumption
of “conscious indifference to consequences.” Mullaney, 634 F. Supp. 2d at 1154.
In other words, if the jury were to believe Kauhako’s version of events, it could
reasonably conclude that Defendants were grossly negligent based upon
“indifference to a present legal duty and utter forgetfulness of legal obligations so
far as other persons may be affected.” Pancakes of Haw., 85 Hawai‘i at 293, 944
P.2d at 90. Defendants’ motion is DENIED as to Count VII and Count VIII.

30

3.

Count XI: Negligent Infliction of Emotional Distress

Defendants ask the Court for judgment on Kauhako’s negligent infliction of
emotional distress (“NIED”) claim because the “State has no duty to be an insurer
of its students’ safety,” and because no duty to Mariana or Kauhako has been
breached. The elements of a claim for NIED are: (1) the defendant engaged in
negligent conduct; (2) the plaintiff suffered serious emotional distress; and (3) such
negligent conduct of the defendant was a legal cause of the serious emotional
distress. Caraang v. PNC Mortgage, 795 F. Supp. 2d 1098, 1122 (D. Haw. 2011).
A cognizable claim for NIED under Hawai‘i law also “requires physical injury to
either a person or property,” Calleon v. Miyagi, 76 Hawai‘i 310, 320, 876 P.2d
1278 (1994), or a mental illness. See HRS § 663-8.9. The Hawai‘i Supreme Court
has held with respect to claims for NIED that –
an NIED claim is nothing more than a negligence claim in
which the alleged actual injury is wholly psychic and is
analyzed utilizing ordinary negligence principles. Further, this
court has ‘consistently held, as a general matter, that the
plaintiff must establish some predicate injury either to property
or to another person in order himself or herself to recover for
[NIED].’
Kaho’ohanohano v. Dep’t of Human Serv., 117 Hawai‘i 262,
306-07, 178 P.3d 538, 582-83 (2008) (citing Doe Parents No. 1
v. Dept. of Educ., 100 Hawai‘i 34, 69, 58 P.3d 545, 580 (2002))
(alteration in original) (internal citations omitted).

31

Smallwood v. NCsoft Corp., 730 F. Supp. 2d 1213, 1235 (D. Haw. 2010).
For the reasons discussed above with respect to Kauhako’s other negligencebased claims, her NIED claim survives the present motion. Genuine issues of
material fact exist with respect to whether any duty was breached under the
specific disputed circumstances of this case. With respect to the required injury,
the record would support a reasonable jury finding of both serious emotional
distress and physical injury to Mariana and Kauhako. See Kauhako Ex. 1
(11/28/2014 Answers to Interrogatories) at 10; Ex. 3 (Lee 5/27/15 Dep. Tr. at 2132); Ex. 6 (Lynch 5/29/15 Dep. Tr. at 182-83). Accordingly, Defendants’ motion
is DENIED as to Count XI.
B.

Count X: Intentional Infliction of Emotional Distress

Defendants seek summary judgment on Count X, which alleges that
“Defendants’ wrongful conduct constitutes intentional infliction of emotional
distress.” Complaint ¶ 69. “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.” Hac v. Univ. of Haw., 102 Hawai‘i 92, 106-07, 73
P.3d 46, 60-61 (2003) (adopting IIED standard from Restatement (Second) of
Torts).
32

Defendants first argue that there is no evidence of any intentional or reckless
act on the part of any state defendant. In Nelsen v. Research Corp. of the
University, 805 F. Supp. 837, 851-52 (D. Haw. 1992), the court explained that as to
the first prong, “[r]ecklessness requires that defendant must know, or have reason
to know, the facts which create the risk.” See also Nagata v. Quest Diagnostics
Inc., 303 F. Supp. 2d 1121, 1126 (D. Haw. 2004) (observing that the first element
of a claim for IIED had been broadened to include the definition of reckless as
articulated in Nelsen); Ritchie v. Wahiawa Gen. Hosp., 597 F. Supp. 2d 1100, 1110
(D. Haw. 2009) (“To demonstrate the first element, a plaintiff must show that the
defendant acted either with a ‘desire to inflict severe emotional distress, . . . where
he knows that such distress is certain, or substantially certain, to result from his
conduct’ or ‘recklessly . . . in deliberate disregard of a high degree of probability
that the emotional distress will follow.’”) (quoting Restatement (Second) Torts
Section 46, cmt. i (1965)).
The Court finds that issues of material fact exist as to whether Lindquist
recklessly caused Mariana to suffer severe emotional distress. Although the record
is disputed, as discussed above, Kauhako presents evidence that she told Lindquist
about Ruston’s alleged prior sexual assault, but that the school took no action on
her report. A jury could find that Lindquist had reason to know that there was a
33

degree of risk that her acts or omissions would cause serious harm to Mariana, and
that she disregarded that risk. Accordingly, a reasonable jury could find that
Lindquist’s conduct was reckless, thereby satisfying the first element of an IIED
claim.
To the extent Defendants argue that the alleged conduct is not sufficiently
outrageous, the Court agrees that the issue is a close one. The Restatement
describes what constitutes “outrageous” conduct:
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
Restatement (Second) of Torts § 46, cmt. d. (1965). “The question whether the
actions of the alleged tortfeasor are . . . outrageous is for the court in the first
instance, although where reasonable persons may differ on that question it should
be left to the jury.” Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121, 1127
(D. Haw. 2004); see also Hughes v. Mayoral, 721 F. Supp. 2d 947, 964-65 (D.
34

Haw. 2010). Courts have found that “sexually harassing behavior, racial slurs, and
accusations of criminal conduct could all possibly be considered outrageous
conduct,” see Nagata, 303 F. Supp. 2d at 1128 (citing Lapinad v. Pacific
Oldsmobile-GMC, Inc., 679 F. Supp. 991, 996 (D. Haw. 1988)), and conduct that
does not fit into any of these categories may still raise a question of fact. Cf. id.
(determining that defendant’s delay in disclosing error in drug test could be
considered outrageous).
On balance, the Court finds that issues of material fact exist as to whether
Lindquist’s failure to act on Kauhako’s purported request for action at the
November 2012 IEP meeting rose to the level of outrageous conduct. Construing
the evidence in the light most favorable to Kauhako, the Court determines that a
reasonable juror could find that the reported failure to investigate or follow up on
Kauhako’s report to Lindquist regarding the earlier trip off-campus—that
reportedly included sexual assault and harassment by Ruston of Mariana—which
culminated in the alleged April 18, 2013 sexual assault and allegedly caused
Mariana to suffer post-traumatic stress disorder, is “so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” See
Restatement (Second) of Torts § 46, cmt. d. That is particularly so given
35

Mariana’s unique disabilities and vulnerability, of which the State was aware.
Defendants have not established that, viewing the evidence in the light most
favorable to Kauhako, the conduct is not outrageous as a matter of law.
Accordingly, Defendants’ motion is DENIED as to Count X.
C.

Claims Against Lindquist Not Barred by Conditional Privilege

Lindquist seeks summary judgment on the state tort claims based on the
qualified or conditional privilege recognized under Hawai‘i law. A governmental
official performing a public duty enjoys the protection of what has been termed a
qualified or conditional privilege. See Towse v. Hawaii, 64 Haw. 624, 631, 647
P.2d 696, 702 (1982).
For a tort action to lie against a nonjudicial government official,
the injured party must allege and demonstrate by clear and
convincing proof that the official was motivated by malice and
not by an otherwise proper purpose. Towse, 647 P.2d at 70203; Medeiros, 522 P.2d at 1272. When a public official is
motivated by malice, and not by an otherwise proper purpose,
Hawaii law provides that the cloak of immunity is lost and the
official must defend the suit the same as any other defendant.
Marshall v. Univ. of Haw., 821 P.2d 937, 946 (Haw. Ct. App.
1991), abrogated on other grounds by Hac v. Univ. of Haw., 73
P.3d 46 (Haw. 2003).
The existence or absence of malice is generally a question for
the jury. Runnels, 525 P.2d at 1129. However, when the
existence or absence of malice is demonstrated to the court via
uncontroverted affidavits or depositions, the court may rule on
the existence or absence of malice as a matter of law. See id.
36

Edenfield v. Estate of Willets, 2006 WL 1041724, at *11-12 (D. Haw. Apr. 14,
2006). The Supreme Court of Hawai‘i has held that “the phrase ‘malicious or
improper purpose’ should be defined in its ordinary and usual sense.” Awakuni v.
Awana, 115 Hawai‘i 126, 140-41, 165 P.3d 1027, 1041-42 (2007) (considering
“actual malice” to determine immunity in the context of an alleged breach of
fiduciary duty); Edenfield, 2006 WL 1041724, at *12 (considering “actual malice”
to determine immunity for claims of assault, battery, intentional infliction of
emotional distress and negligent infliction of emotional distress); Ogden v. County
of Maui, 554 F. Supp. 2d 1141, 1153 (D. Haw. 2008) (considering “actual malice”
to determine immunity for a negligence claim).
Malice is “the intent, without justification or excuse, to commit a wrongful
act, reckless disregard of the law or of a person’s legal rights, and ill will;
wickedness of heart.” Awakuni, 115 Hawai‘i at 141, 165 P.3d at 1042 (quoting
Black’s Law Dictionary 976 (8th ed. 2004)) (internal quotation marks omitted).
The Court notes that conduct performed with “reckless disregard of the law or of a
person’s legal rights” may be negligent, even though negligent conduct often does
not involve malice. See, e.g., Long v. Yomes, 2011 WL 4412847, at *7-*8 (D.
Haw. Sept. 20, 2011).

37

Based on the previous discussion of Lindquist’s potential tort liability, a
reasonable jury could find that she acted in reckless disregard of the law when,
according to Kauhako, Lindquist was told of a specific risk of harm to Mariana
based on a previous incident, but failed to take any action responsive to that
risk. Accordingly, because genuine issues of material fact remain, Defendants’
motion is DENIED with respect to Lindquist’s assertion of the state law
conditional privilege.
V.

Punitive Damages
Finally, Defendants seek summary judgment on Kauhako’s request for

punitive damages. Because Kauhako’s IIED and gross negligence claims survive
summary judgment, the Court denies the derivative request for summary judgment
as to Lindquist, the remaining individual capacity defendant. See Kang v.
Harrington, 59 Haw. 652, 660, 587 P.2d 285, 291 (1978) (“An award of punitive
damages is purely incidental to the cause of action.”); see also Lee v. Aiu, 85
Hawai‘i 19, 34, 936 P.2d 655, 670 (1997) (holding record contained substantial
evidence that defendants engaged in the type of “aggravated or outrageous
misconduct” required to impose punitive damages where IIED claim also stood);
Durham v. County of Maui, 692 F.Supp.2d 1256, 1262 (D. Haw. 2010) (“the

38

standard for punitive damages encompasses gross negligence, which is the entire
want of care raising the presumption of indifference to consequences”).
Punitive damages, however, are not available against the DOE. See HRS
§ 662-2; see also Doe ex rel. Doe v. State of Hawaii Dep’t of Educ., 351 F. Supp.
2d 998, 1019 (D. Haw. 2004) (“[U]nder the [Hawaii State Tort Claims Act], the
State of Hawaii explicitly retains its sovereign immunity as to punitive damages.”);
Jones v. Beverly Hills Unified Sch. Dist., 2010 WL 1222016, at *6 (C.D. Cal. Mar.
24, 2010) (punitive damages not available under Title IX); Mansourian v. Bd. of
Regents, 2007 WL 3046034, at *13-*14 (E.D. Cal. Oct. 18, 2007) (same), reversed
on other grounds, Mansourian v. Regents of the Univ. of Cal., 602 F.3d 957 (9th
Cir. Cal. 2010). Accordingly, Defendants’ motion is DENIED with respect to
Lindquist and GRANTED with respect to the DOE.
CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED in part as to
Count III, all claims against Defendant Nelson Shigeta, and for punitive damages
against the State. The motion is DENIED in all other respects
The following claims remain for trial: Count I against the DOE (Title IX);
Count V (Negligent Supervision); Count VII (Negligence); Count VIII (Gross
Negligence); Count X (IIED); and Count XI (NIED).
39

IT IS SO ORDERED.
Dated: September 9, 2015 at Honolulu, Hawai’i.

Kauhako v. State of Hawaii; CV 13-00567 DKW-BMK; ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

40