Kanakaole v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-OCT-2024
07:57 AM
Dkt. 95 MO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

REINA KANAKAOLE, individually and as next of friend for I.K.,
a minor, Plaintiffs/Counterclaim Defendants-Appellants,
v.
STATE OF HAWAII, Defendant/Counterclaimant/
Cross-claimant/Cross-claim Defendant-Appellee,
and
STEPHANIE ALBORNOZ, Defendant-Appellee,
and
A.K., a minor; JONATHAN LEFITI and JENNIE LEFITI,
Defendants/Cross-claimants-Appellees,
and
DOE DEFENDANTS 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CC161000354)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

Reina Kanakaole, for herself and as next friend of a
minor, I.K.K. (IKK), sued the State of Hawai#i, Stephanie
Albornoz, and others1 in the Circuit Court of the Third Circuit.
Kanakaole alleged that IKK was a public school student in
Albornoz's kindergarten class when he was sexually assaulted by a
classmate because of the State's and Albornoz's negligence.
After a bench trial on liability, the court entered findings of

1
The other defendants are not parties to this appeal.
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fact and conclusions of law (COL) on October 30, 2019.2 Judgment
for the State and Albornoz was entered on February 24, 2020.
Kanakaole appealed. We remanded for entry of an appealable
judgment. The Amended Final Judgment was entered on January 22,
2021. We affirm.

Points of Error

Kanakaole challenges COL nos. 2, 4, 5, 6, 7, and 8.
She also contends the trial court erred by ruling she did not
prove "a causal connection between the alleged harm or injury and
any breach of duty by the State" in the liability-only bench
trial.

Standard of Review

We review conclusions of law de novo under the
right/wrong standard. O'Grady v. State, 140 Hawai#i 36, 43, 398
P.3d 625, 632 (2017). A ruling involving mixed questions of fact
and law is reviewed under the clearly erroneous standard because
it implicates the facts and circumstances of the specific case.
Id. A ruling supported by the trial court's findings of fact and
applying the correct rule of law will not be overturned. Id.

Facts of the Case

The trial court's findings of fact are binding on
appeal because Kanakaole does not challenge them. Okada Trucking
Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459, 40 P.3d 73, 82
(2002). On November 7, 2011, IKK and AKK were five-year-old male
students in Albornoz's kindergarten class. They were disrupting
a class lesson. Albornoz gave them three warnings, then sent
them to their tables for "time out." The other students were
seated on the classroom carpet in front of Albornoz for the
lesson.

2
The Honorable Henry T. Nakamoto presided.

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IKK's and AKK's tables were near or next to each other
and both were near the open classroom door. The boys weren't
sitting properly at their tables. Albornoz interrupted the
lesson and gave the boys a choice to stop playing around or lose
recess time. They continued to play around. Albornoz decided to
speak to them about their behavior during recess. She heard only
playful chatter between the boys while they were on time-out; she
heard no verbal protest, angry objection, or call for help from
either boy. She saw no physical struggle.
No more than ten minutes after IKK and AKK had been
sent to time-out, Linda Likiche came to the classroom. She was
the English Language Learner (ELL) tutor, and had come to take
IKK for a scheduled lesson. As Likiche approached the open door
she saw IKK sitting in a chair with his legs spread apart. AKK
was kneeling with his head in IKK's groin area. When the boys
noticed Likiche, AKK stood up and wiped his mouth. Likiche saw
that the leg of IKK's shorts was pulled up. IKK had to pull down
the leg of his shorts to cover himself when he stood up. Likiche
was in shock believing she had seen what could have been oral-
genital contact between the children. Likiche acknowledged
Albornoz as she took IKK from the classroom, but didn't tell
Albornoz what she had just seen.
Albornoz saw no danger or risk of harm to either
student during their time-out. IKK did not call out to Albornoz
when AKK touched his pants or body. IKK did not stand up, walk
away, yell, fight with AKK, or act in any other way that would
have given Albornoz notice about the misconduct. Albornoz did
not see the act of inappropriate touching given her location in
the classroom and her activity with the other students. Only
later that day did Albornoz learn that Likiche had seen what she
believed was AKK's mouth on IKK's penis when she came into the
classroom to pick up IKK.
There was no evidence that Albornoz acted other than in
the course and scope of her employment as a teacher for the State
Department of Education (DOE), or that she acted with malice,

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spite or ill will toward IKK while she conducted her kindergarten
class that day.
Brad Asakura was the school counselor. He interviewed
both boys. AKK told him, "I had to put my head down on my desk
because I wasn't listening. I was underneath [IKK's] desk
looking at his boto. I was touching his boto with my han[d]."
AKK said that IKK took his penis out, said "go under my desk" and
"touch my boto."
Asakura asked AKK if he touched IKK's penis with
anything besides his hand.
AKK said "no."
Asakura asked again, "just with hands?"
AKK said "yes."
Asakura asked him if he was telling the truth.
AKK said "no," but he didn't want to say what else
happened.
Asakura asked him if anyone had touched him like that
before.
AKK said "no."
Asakura asked AKK if he had touched anyone like that
before.
AKK said "yes," IKK at AKK's desk.
Asakura then interviewed IKK, who said he was sitting
at his desk and AKK was under the desk. He claimed he told the
ELL teacher (Likiche) that AKK was only using his hand. After
consulting with school administrators, Asakura contacted the
Hawai#i County Police Department, Child Protective Services, and
the boys' parents.

Analysis

A plaintiff claiming negligence must prove (1) a duty
recognized by the law that the defendant owed to the plaintiff;
(2) a breach of the duty; (3) that the defendant's breach was the
legal cause of the plaintiff's harm; and (4) actual damages.
O'Grady, 140 Hawai#i at 43, 398 P.3d at 632.

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(1) On the issue of duty, Kanakaole argues "the trial
court erred in its conclusion[s] of law (Nos. 4, 5, 6, and 8)
that the State owed no duty to prevent inappropriate touching in
a classroom." Kanakaole's argument conflates the trial court's
conclusion of law about the State's legal duty with its mixed
finding and conclusion that the risk of harm to IKK was not
reasonably foreseeable.
The existence of a legal duty "is entirely a question
of law." Bidar v. Amfac, Inc., 66 Haw. 547, 552, 669 P.2d 154,
158 (1983) (citing W. Prosser, Handbook of the Law of Torts § 37,
at 206 (4th ed. 1971)). Here, the trial court concluded:

4. The State, standing in loco parentis, owes
students and their parents a duty to take reasonable steps
to prevent reasonably foreseeable harms to its students.
Doe Parents No. 1 v. State, Dep't of Educ., 100 Haw. 34,
72-74, 58 P.3d 545, 583-85 (2002), as amended (Dec. 5,
2002[)]. There is no evidence that the State knew or
reasonably should have anticipated that AKK or IKK would
participate in an inappropriate touching while on time out
in their kindergarten classroom on November 7, 2011, even
though Ms. Albornoz knew the boys were not taking their time
out properly by quietly placing their heads down on their
desks.

The first sentence of COL no. 4 is right. In Doe
Parents No. 1 v. State, 100 Hawai#i 34, 58 P.3d 545 (2002), the
supreme court held that the DOE, "standing in loco parentis, owes
students and their parents a duty to take reasonable steps to
prevent reasonably foreseeable harms to its students." 100
Hawai#i at 74, 58 P.3d at 585. The supreme court also held that
the State's duty arising from the in loco parentis relationship
is "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." Id. at 80, 58 P.3d at 591
(emphasis added).
The second sentence of COL no. 4 is a mixed finding and
conclusion. It is not clearly erroneous. It is supported by the
trial court's unchallenged findings of fact. Kanakaole cites no

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evidence in the record that Albornoz could have anticipated, or
reasonably should have anticipated, that AKK would touch IKK's
penis if the boys were sent into time-out together. Instead, she
argues that even in "the absence of notice of a specific
inappropriate touching, the State still owes a duty of
generalized supervision in this case to stop prohibited student
conduct, which may give rise to inappropriate touching."
(Emphasis added.) She cites Miller v. Yoshimoto, 56 Haw. 333,
536 P.2d 1195 (1975) and Kim v. State, 62 Haw. 483, 616 P.2d 1376
(1980). Neither case supports her argument.
In Miller, the plaintiff was hit by a rock thrown by
another student on school grounds. The supreme court held that
the DOE did not owe a duty to supervise the area from where the
rock was thrown because the plaintiff "failed to adduce any
evidence showing that the area in which [she] was injured was
dangerous in character or likely to be dangerous because of known
deviant conduct of students or of others, requiring specific
supervision by the appellee." 56 Haw. at 341, 536 P.2d at 1200.
In Kim, the plaintiff was beaten by another student who
entered a classroom from the hallway. The supreme court held
that the DOE did not owe a duty to supervise either the assailant
or the plaintiff because the circumstances of which it was aware
were "not such that would give rise to a probability of an
invasion of the classroom by another student with a proclivity
for physical harm. As the peril was neither known nor reasonably
foreseeable, there was no basis for the establishment of
'specific supervision' to cope with the danger." 62 Haw. at 492,
616 P.2d at 1382.
The trial court concluded:

5. The State's duty reasonably to supervise
students "entails 'general supervision of students, unless
specific needs, or a dangerous or likely to be dangerous
situation calls for specific supervision.'["] Miller v.
Yoshimoto, 56 Haw. 333, 340, 536 P.2d 1195, 1199 (1975) and
Kim v. State of Hawaii, 62 Haw. 483, 485, 616 P.2d 1376
(1980). There is no evidence that the State had notice or
should have foreseen that the 5 year old boys were at risk
for participating in inappropriate touching as would impose

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on the State a duty to specifically supervise these students
to avoid the risk of such behavior on November 7, 2011.

The first sentence of COL no. 5 is right. The second sentence is
a finding of fact. Kanakaole cites no evidence in the record
showing the State or Albornoz should have foreseen that AKK would
touch IKK's penis if the boys were sent into time-out together.
The second sentence of COL no. 5 is not clearly erroneous.
The trial court concluded:

6. The State had no notice or evidence that either
IKK or AKK had previously participated in any inappropriate
touching or other socially unacceptable behavior at school
which would make it reasonably foreseeable that IKK and AKK
would participate in or permit an act of inappropriate
touching in their open kindergarten classroom.

COL no. 6 is a mixed finding and conclusion. Kanakaole cites no
evidence in the record of IKK or AKK inappropriately touching
each other or anyone else, or behaving in any other way that
could make it reasonably foreseeable that AKK would touch IKK's
penis if the boys were sent into time-out together. COL no. 6 is
not clearly erroneous.
The trial court concluded:

8. In the context of determining the existence and
scope of a duty, foreseeability is a question of law for the
court to determine. See Ballard v. Uribe, 41 Cal.3d 564,
224 Cal. Rptr. 664, 715 P.2d 624, 629 n. 6 (1986); Knoll v.
Bd. of Regents of the Univ. of Neb., 258 Neb. 1, 601 N.W.2d
757, 762-63 (1999); Clohesy v. Food Circus Supermarkets,
Inc., 149 N.J. 496, 694 A.2d 1017, 1020-21 (1997) cited with
approval in Pulawa v. GTE Hawaiian Tel, 112 Haw. 3, 13, 143
P.3d 1205, 1215 (2006). The State had no duty to prevent
the unexpected misbehavior involving inappropriate touching
by the children given their young age, and the lack of any
knowledge or prior circumstances which would have made the
boys' behavior foreseeable when they misbehaved on their
time out in the public setting of a kindergarten classroom.

The first sentence of COL no. 8 is right. In Pulawa v. GTE
Hawaiian Tel, 112 Hawai#i 3, 143 P.3d 1205 (2006), the supreme
court held that foreseeability is a question of law for the court
when determining the existence and scope of a duty, but a
question of fact when determining breach of duty and causation.
Id. at 13, 143 P.3d at 1215.

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The second sentence of COL no. 8 is a mixed finding and
conclusion. The trial court concluded that the State did not owe
a duty to Kanakaole (or IKK) to prevent IKK and AKK from being
sent into time-out together, or to continuously monitor their
conduct, because there was no evidence that Albornoz should
reasonably have foreseen that AKK would touch IKK's penis during
the time-out. The second sentence of COL no. 8 is not clearly
erroneous. See O'Grady, 140 Hawai#i at 51, 398 P.3d at 640
("[F]oreseeability, as it relates to duty, is a question of law
that takes into account the presence and extent of the risks
associated with particular conduct."); Pulawa, 112 Hawai#i at 14,
143 P.3d at 1216 ("Inasmuch as the issue of foreseeability in the
context of duty is a question of law for the court to resolve,
the court, not the trier of fact, must determine the existence
and scope of duty, if any, owed by [the defendant] to the
plaintiffs.").

(2) On the issue of breach, Kanakaole argues the trial
court erred in concluding the State did not breach its duty of
care. The court concluded:

7. If the harm is not reasonably foreseeable, the
defendant will not be deemed to have breached the duty of
care that he or she owes to a foreseeable plaintiff. See,
e.g., Knodle, 69 Haw. at 385, 388, 742 P.2d at 383, 385
(noting that what is reasonable under the circumstances of
any given negligence case for purposes of determining
whether the defendant's conduct breached his or her duty of
care "is marked out by the foreseeable range of danger" and,
thus, there must be "some probability of harm sufficiently
serious that [a reasonable and prudent person] would take
precautions to avoid it" (citations omitted)). Doe Parents
No. 1 v. State, Dep't of Educ., 100 Haw. 34, 71-72, 58 P.3d
545, 582-83 (2002), as amended (Dec. 5, 2002). The State
did not breach the duty of care owed to Plaintiff.

The first sentence of COL no. 7 is right. See Knodle v. Waikiki
Gateway Hotel, Inc., 69 Haw. 376, 385, 742 P.2d 377, 383 (1987);
Doe Parents No. 1, 100 Hawai#i at 71–72, 58 P.3d at 582–83 ("[I]f
the State has entered into a custodial relationship with a
particular person, then the State owes that person an affirmative
duty to take reasonable steps to prevent any harm — which the

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State foresees or should reasonably anticipate — befalling its
ward, either by his or her own hand or by that of another.")
(emphasis added) (footnote omitted).
The second sentence of COL no. 7 is a mixed finding and
conclusion. Albornoz putting IKK and AKK into time-out together
without continuously monitoring their conduct could not have been
a breach of her general duty "to take reasonable steps to prevent
reasonably foreseeable harms to [her] students[,]" Doe Parents
No. 1, 100 Hawai#i at 74, 58 P.3d at 585, because there was no
evidence she should reasonably have foreseen that AKK would touch
IKK's penis. The second sentence of COL no. 7 is not clearly
erroneous.
(3) On the issue of causation, the trial court
concluded:

2. O'Grady v. State of Hawaii, 140 Hawaii 36, 398
P.3d 625 (2017) sets out a plaintiff's obligation to
establish causation as a necessary element of a plaintiff's
case in a bifurcated bench trial on liability only.
Plaintiff here has failed to present any evidence
establishing causation and incorrectly asserts in
Plaintiff's Trial Brief filed September 27, 2019 at page 5
that ". . . the only issue for this liability-only trial is
whether Defendants owed a duty and whether this duty was
breached." Plaintiff is wrong on the law and deficient in
evidence establishing a causal connection between any
alleged harm or injury and any breach of duty by the State.

Like this case, O'Grady involved a bifurcated bench
trial on liability only. 140 Hawai#i at 41, 398 P.3d at 630.
The trial court concluded the State owed a duty of care to the
O'Gradys and found a breach of duty, but held that the O'Gradys
did not prove causation. Id. In the O'Gradys' appeal, the
supreme court held the trial court "misapprehended the relevant
legal standard" for causation, id. at 48, 398 P.3d at 637, and
remanded the case "for application of the proper legal
standard[,]" id. at 52, 398 P.3d at 641. The case would not have
been decided that way if causation wasn't a necessary element of
a plaintiff's proof in a liability-only bench trial. The first
sentence of COL no. 2 is right.

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The second and third sentences of COL no. 2 are mixed
findings and conclusions. In O'Grady the supreme court applied a
two-step analysis to determine whether the defendant's conduct
was the legal cause of the plaintiff's injuries: (a) the
defendant's conduct is a substantial factor in bringing about the
harm, and (b) there is no rule of law relieving the defendant
from liability because of the manner in which their negligence
resulted in the harm. 140 Hawai#i at 44, 398 P.3d at 633. Here,
even if Albornoz's conduct — putting IKK and AKK into time-out
after they continued disrupting a lesson after three warnings and
continuing the lesson for the rest of the students — was a
substantial factor in bringing about harm to IKK, "the remaining
issue is whether [Albornoz] should be relieved of liability
because a subsequent act or occurrence was not reasonably
foreseeable under any rational view of the evidence." Id. at 51,
398 P.3d at 640. The trial court found that Kanakaole "failed to
present any evidence establishing causation" and was "deficient
in evidence establishing a causal connection between any alleged
harm or injury and any breach of duty by the State." Kanakaole
cites no evidence in the record that shows Albornoz could have
anticipated, or reasonably should have anticipated, that AKK
would touch IKK's penis if the boys were sent into time-out
together. The second and third sentences of COL no. 2 are not
clearly erroneous.

Conclusion

The Amended Final Judgment entered on January 22, 2021,
is affirmed.
DATED: Honolulu, Hawai#i, October 4, 2024.

On the briefs:
/s/ Katherine G. Leonard
Joseph P.H. Ahuna, Jr. Acting Chief Judge
David K. Ahuna,
for Plaintiffs/Counterclaim /s/ Keith K. Hiraoka
Defendants-Appellants. Associate Judge

Caron M. Inagaki, /s/ Karen T. Nakasone
Kathy K. Higham, Associate Judge

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Willliam K. Awong,
Deputy Attorneys General,
State of Hawai#i,
for State of Hawai#i.

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