JANAE D. VICTOR, Individually and as Prochein Ami of SINJIN VICTOR, a Minor, Plaintiffs- Appellants,
MICHAEL C. KOGA, DOREEN F. KOGA, Defendants-Appellees, and LYLE M. NONAKA and DOE ONE through DOE TEN, Defendants
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 09-1-2122)
Joyce J. Uehara and Dan S. Ikehara for Plaintiffs-Appellants.
Randall Y.S. Chung and Tani (Chung & Ikehara) for Michael C. Koga and Doreen F. Koga Defendants-Appellees.
Fujise, Presiding Judge, Reifurth and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Plaintiffs-Appellants Janae D. Victor ("Janae"), Individually and as Prochein Ami of her minor son ("Minor"), (collectively, the "Victors") appeal from the February 23, 2010 Order Granting Defendants Michael C. Koga and Doreen F. Koga's Motion to Dismiss Complaint for Failure to State a Claim And/Or Motion for Summary Judgment,  entered in the Circuit Court of the First Circuit ("Circuit Court").
This appeal arises out of two incidents of sexual assault committed by Defendant Lyle M. Nonaka ("Nonaka") against Minor at the home of Defendants-Appellees Michael C. Koga and Doreen F. Koga ("Doreen") (collectively, the "Kogas"), where Nonaka also resided. The Victors raise a single point of error, contending that the Circuit Court improperly granted summary judgment on the issue of whether the Kogas were on notice as to Nonaka's propensity to commit sexual assault given "the strong physical evidence of [Nonaka1s] deviant sexual behavior.In support, the Victors advance various arguments, which we summarize as follows: (1) that the Kogas, as homeowners, had a special relationship toward Minor, who was an invitee under Restatement (Second) of Torts § 314A(3); (2) that the Kogas had notice that Nonaka posed an unreasonable risk of harm to Minor; (3) that Minor, as a minor, belonged to a protected "identifiable class of plaintiffs, " thereby imposing a duty on the Kogas toward Minor; (4) that the Kogas had "particular foreseeability" or "special knowledge" that Nonaka posed a risk of foreseeable harm toward Minor; and (5) that the Kogas had a duty to protect Janae from emotional distress.
Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve the Victors' appeal as follows:
Nonaka is Doreen's younger brother. He lived, at the time, in the downstairs portion of the Kogas' home in Aiea, Hawai'i (the "Property"). In 2007, on two separate occasions, Nonaka sexually assaulted Minor, a fourteen-year-old boy, whom Nonaka had invited into his portion of the Kogas1 residence. The Kogas did not know Minor or that Nonaka had invited Minor to the house. Nonaka pled guilty to multiple counts of sexual assault in a separate criminal case.
In the instant case, the Victors' complaint stated four counts against the Kogas, each of which alleged a duty on the part of the Kogas to Minor or Janae, and a subsequent breach of that duty. The Circuit Court granted summary judgment in favor of the Kogas on all of the counts against them. The court explained that it was unable to find a legal duty owed by the Kogas to the Victors, that there was no special relationship between the Kogas and either Nonaka or Minor, that there was no notice to the Kogas that Nonaka had any dangerous propensities, and that the incidents were not foreseeable to the Kogas.
A. Special relationship
The Victors argue that because the Kogas were owners, possessors, or occupiers of land or property, and because Minor was an invitee or licensee on the Property, a special relationship existed such that the Kogas were required to use ordinary care to protect Minor. The Victors rely on Atahan v. Muramoto, 91 Hawai'i 345, 984 P.2d 104 (App. 1999), overruled on other grounds by Lansdell v. Cnty. of Kauai, 110 Hawai'i 189, 130 P.3d 1054 (2006), ...