STACEY COSTALES, Respondent/Plaintiff-Appellant/Cross-Appellee,
SCOTT ROSETE, in his official and individual capacity, Petitioner/Defendant-Appellee/Cross-Appellant, and MELVIN ANDO, in his official and individual capacity; GLENN YOSHIMOTO, in his official and individual capacity; STATE OF HAWAI'I; DEPARTMENT OF HUMAN SERVICES; OFFICE OF YOUTH SERVICES, Petitioners/Defendants-Appellees/Cross-Appellants, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants
As Amended March 17, 2014.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. ICA NO. 30683; CIV. NO. 07-1-2360.
C. Bryan Fitzgerald and Deborah Day Emerson, for petitioner.
Sue V. Hansen and Charles W. Crumpton, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.
[133 Hawai'i 126] AMENDED OPINION
In this appeal, a youth correctional officer (" YCO" ) found liable for sexual assault against a ward seeks review of the ICA's Judgment on Appeal, entered pursuant to its Memorandum Opinion, which remanded this case for a new trial limited to the issue of allocation of fault and damages, due to an irreconcilable conflict in the jury's special verdict answers.
Costales v. Rosete, 127 Haw. 412, 279 P.3d 77, (App. 2012) (mem.). The YCO seeks a completely new trial without limitation on the basis that he was prejudiced by the admission of evidence of his State co-defendants' bad acts. He also seeks to preclude judgment against him in his individual capacity based upon Hawai'i Revised Statutes (" HRS" ) § 662-10 (1993)'s " judgment bar," which states, " The judgment in an action [against the State under the State Tort Liability Act] shall constitute a complete bar to any action by the
[133 Hawai'i 127] claimant, by reason of the same subject matter, against the employee of the State whose act or omission gave rise to the claim."
We hold that the ICA was correct in limiting the issues on re-trial to the allocation of fault and damages, but it should have further limited the damages issues to be re-tried to the measure of general and special damages each defendant should pay, with the jury properly instructed on when each defendant can be held liable in his individual (versus official) capacity. We also hold that in this case HRS § 662-10 does not bar contemporaneous judgments against the State and against Rosete in his individual capacity.
We therefore vacate the ICA's Judgment on Appeal, entered pursuant to its Memorandum Opinion, and affirm the circuit court's order granting Rosete a new trial, with the issues limited on re-trial in a manner consistent with this opinion.
A. Complaint and Answer
On December 13, 2007, Plaintiff Stacey Costales filed her Complaint against Scott Rosete (a YCO at Hawai'i Youth Correctional Facility, or " HYCF" ), in his individual and official capacities, Melvin Ando (a former HYCF administrator), in his individual and official capacities, Glenn Yoshimoto (a former HYCF correction supervisor), in his individual and official capacities, the State of Hawai'i, Department of Human Services (" DHS" ), and the Office of Youth Services (" OYS" ). Count One of the Complaint alleged Assault and Battery, as against Rosete. Costales alleged that Rosete took her out of her cell and sexually assaulted her in 2002 while she was a minor ward detained at HYCF.
Count Two of the Complaint alleged Negligence, as against the State, OYS, DHS, Yoshimoto, and Ando for failing to protect Costales from harm. Specifically, Costales alleged negligent hiring, supervision, and retention of Rosete; negligent failure to properly train the HYCF YCOs, including Rosete; negligent failure to properly and thoroughly investigate assaults and batteries committed by HYCF YCOs, including Rosete; negligent failure to adequately reprimand YCOs, including Rosete, to prevent them from harming other wards or from working at HYCF; negligent management of HYCF; and negligent and unreasonable failure to adopt and implement policies and procedures to supervise and care for wards detained at HYCF in order to prevent assaults and batteries against wards. Costales alleged that Ando and Yoshimoto were not protected by qualified immunity because these defendants acted with malice and/or for an improper purpose. Costales further alleged that these defendants endorsed a pattern or practice of conduct that created an unreasonably dangerous condition at HYCF.
Count Three of the Complaint alleged Intentional and Negligent Infliction of Emotional Distress by each of the defendants. Count Four of the Complaint sought punitive damages against Rosete, Ando, and Yoshimoto. Costales prayed for general, compensatory, and special damages in an amount to be proven at trial; punitive damages; pre- and post-judgment interest; and such other and further relief as the court deemed just and equitable.
Rosete then filed his Answer to Plaintiff's Complaint, denying the allegations contained in the First, Second, and Third Claims. He also raised HRS § 662-10 as a defense, arguing that Costales was barred " from obtaining judgment against both the State of Hawai'i (including any State agency, employee, or official, in an official capacity) and Defendant Rosete."
Rosete, in his individual capacity, was tried along with the rest of the defendants. Rosete, in his individual capacity, was tried by a jury. The jury was advisory as to the remaining defendants.
1. Testimony of Former Wards
At trial, Costales called as witnesses three former wards who were residing at HYCF at the time of the alleged assault. Each testified that Rosete was physically and verbally abusive. One ward testified that Rosete had discussed sex with her and sexually touched her as well. The former wards testified that the other YCOs saw Rosete's behavior but did nothing about it. They also testified that
[133 Hawai'i 128] they did not report Rosete because they were scared of him, and Rosete would boast that nothing would happen to him if they reported him anyway.
The former wards also testified that for months, Rosete and another YCO would bring out certain girls (including Costales) at night, paper over the windows to the girls' dorm so the other wards would not see what was happening, give the girls food and cigarettes, receive massages, and sleep while the girls punched their time cards.
Regarding whether Rosete allegedly sexually assaulted Costales, one former ward testified that Costales had returned from being taken out one night and was " crying and said she was scared, she didn't know what to do." The former ward testified that Costales told her Rosete " had sex. He put it in two times and then pulled out." Another former ward testified that on the night of the alleged sexual assault, Costales looked scared and begged her to stay up all night with her, telling her in incomplete sentences only such information as, " [Rosete] took me to [an isolation room]. There was a mattress." Costales stopped short of full disclosure to this former ward.
2. Testimony of Carl Imakyure
Costales also called Carl Imakyure, a Children and Youth Specialist V with the Office of Youth Services, a division within the State of Hawaii's Department of Human Services. He testified that late 2004 or early 2005, he was asked to conduct a " systems investigation into HYCF," in other words, to look at " regular patterns of behavior pertaining . . . to programs, staff training, any incidents of neglect or abuse, anything that would seem to be consistent over at the HYCF," with a focus on Yoshimoto's contribution to the institutional culture. The relevant time frame for Imakyure's systems investigation was from 2000 or 2001 up to 2003 or 2004, but he looked at data from 1999 to 2003.
Imakyure's report concluded that there was a " lack of training" at HYCF, that Yoshimoto had a difficult time disciplining the staff such that " there was a continuing pattern of abuse by staff by particular YCOs," and that " the YCOs did not have the kind of close oversight and supervision needed at that time to ensure the safety and the care of these youths." Imakyure testified that he concluded in his report that Yoshimoto was grossly negligent. He also acknowledged that his report questioned whether Yoshimoto possessed compassion for the youth at HYCF. Imakyure testified that he did not recall coming across any information in his investigation concerning Rosete. The record does not reflect that Rosete requested a limiting instruction during Imakyure's testimony (or during the final charge to the jury).
3. Testimony of Harold Fitchett
Costales called Harold Fitchett, an investigator with the Attorney General's office, whom Ando asked to investigate Rosete's rumored sex assault of Costales. Fitchett tape-recorded his interview with Costales, which took place on June 7, 2002. On the recording, Costales explained that Rosete committed misconduct of a sexual nature " four or five times" in January or February 2002, shortly before she was released from HYCF. Costales stated that Rosete and another YCO would remove her and another ward from their dormitory during the first shift, and the two girls would punch the time clock for the YCOs. She stated that the first time Rosete sexually assaulted her, she was lying on a couch in the staff area, Rosete laid next to her, and " was fingering [her] on top of the [couch]" and " pulling [her] pants and doing whatever to [her]." She stated that Rosete told her to be quiet and that she was scared, so she did not say anything. Costales stated that Rosete also " fondl[ed her] breast and stuff . . . with his hands." Costales stated that, although she was not physically hurt, she was scared because Rosete had beaten up other wards in the past.
Costales stated that the second incident of sexual assault happened two or three days after the first and was similar to the first. Costales stated that the third incident consisted of " nothing physical," but " sexual comments." Rosete told her he " want[ed] to fuck [her] brains out," and that they " look[ed] sexy." Costales stated that, by the time the fourth incident came around, she was " just fucken losing it" because she was scared of Rosete and what would happen next. She stated that Rosete came into her
[133 Hawai'i 129] cell that night, " laid on [her] bed with [her] and covered [her] mouth. And he was just, like, kissing [her] neck, kissing [her] ear." Costales said she started crying and asking Rosete why he was doing this to her, and Rosete covered her mouth and told her to " shut up." At that point, a timer bell went off, and Rosete left Costales' cell to punch the clock. When he returned, he removed Costales from her cell and took her to an isolation room in the back of the dorm. Costales stated that Rosete " laid [her] down on the mattress in the back of the dorms and he was fingering [her] once again, um, just kissing [her] . . . doing things with [her]. . . And then he tried to shove his [penis] in [her] ..... And when he shoved it in, he shoved it in." Rosete stopped because he heard a noise and went to check on it. In the meantime, Costales returned to her cell, washed herself off, and another ward asked her what happened. When Rosete returned, he called her a " fucken bitch" and stated that she " ruined it all" because he " wanted to do things to [her]."
Costales also told Fitchett that another YCO had sexually assaulted one ward and physically assaulted other wards, including Costales. Fitchett further testified that he was directed by the union representing the HYCF YCOs to destroy all the records of his investigations into the abuses at HYCF.
4. Testimony of Linda Hadley
Costales called Linda Hadley, a former nurse and administrator at HYCF. She testified that she told a senate committee about " [v]erbal abuse, physical abuse. . .[,] sexual abuse," and the " lack of concern by administration to provide the safety that was needed for the kids" at HYCF. Hadley testified to the lack of training or supervision of the YCOs. Hadley was familiar with Rosete and characterized him as a " very authoritative person" who " [l]ike[d] to have control over the kids." Hadley did not know that Costales had been assaulted. The record does not reflect that Rosete requested a limiting instruction at the time of Hadley's testimony (or during the final charge to the jury).
5. Testimony of Lia Olione
Lia Olione, an HYCF YCO, had his deposition testimony read into evidence after he invoked his Fifth Amendment right against self-incrimination and was declared unavailable. The circuit court allowed portions of his deposition in another HYCF guard-on-ward sexual assault case to be read to the jury  as relevant to the other defendants' notice, over Rosete's objection that the estimony violated Hawai'i Rules of Evidence (" HRE" ) Rules 401, 402, 403, 404, 602, and 802, and that he was not noticed for the deposition. Relevant to Rosete's appeal, Olione testified to the following:
-- He received no training, including how to deal with adolescents, when he was hired by HYCF.
-- He did not believe he and the other YCOs were adequately supervised by their immediate superiors or by Ando and Yoshimoto.
-- He slept on the job because " [n]obody check[ed] on [him]."
-- He opined, " I don't think anybody checks on anybody in that facility." He opined that " [e]verybody was doing as they see fit," including supervisors.
-- A female ward told him that YCOs were having sex with female wards. Although he knew such contact was prohibited, he did not report it to Ando or Yoshimoto because " [t]he whole facility was out of control . . . Nobody was doing anything."
-- He agreed that YCOs verbally abused the wards and that this abuse went unreported to Ando or Yoshimoto.
-- Abusive YCOs were allowed to keep their positions and continue their verbally, physically, and/or sexually abusive behavior.
-- He agreed that the YCOs -- not the HYCF administration --were in control and that the resulting atmosphere was one of desperation and terror for the wards.
-- There was a " lack of discipline . . . almost to the point where we [YCOs] [we]re encouraged to do wrong since there [wa]s
[133 Hawai'i 130] no discipline, and no close supervision. . . ."
6. Testimony of Glenn Yoshimoto
Costales called Glenn Yoshimoto, who testified that a YCO accused of sexually harassing a ward continued to work at HYCF " until he went to prison." Because the parties acknowledged that Yoshimoto opened the door  regarding YCO Lia Olione's conviction for sexual assault, the parties agreed with the circuit court to stipulate to the fact of conviction. The stipulation read to the jury was as follows:
The parties in this case through their lawyers have stipulated to certain facts and you must consider those facts as having been conclusively proved.
The facts that they have stipulated to are that Mr. Olione was found guilty of and stated the following:
On June 15, 2003, while employed at a State correctional facility I had sexual intercourse and inserted my finger into the vagina of SM . . . an inmate/ward of the correctional facility.
I also touched the breasts of inmate[/]ward SM a person less than 16 but at least fourteen who was more than five years younger than myself and to whom I was not married.
In June 2003 I recklessly threatened SM by word or conduct on more than one occasion for the same purpose.
In fact, Rosete wanted the jury to know that it was Olione who was convicted of sex assault, lest the jury believe that the incident involved Rosete. Rosete did not request a limiting instruction at the time of the stipulation, and the record does not reflect that he requested a limiting instruction as part of the jury's final charge.
When Yoshimoto's testimony resumed, Plaintiff's counsel questioned him about the destruction of ward complaints; YCO-on-ward verbal, physical, and sexual abuse; and Costales' own grievances about being beaten by another YCO (not Rosete) and being placed in isolation with insufficient food and sleep time. Yoshimoto alternately denied the incidents happened, denied knowledge or recollection of these incidents, disclaimed responsibility for those incidents that occurred while sub-contractors ran the HYCF school, justified the incidents as reasonable use of force, or asserted that verbal abuse at HYCF was too pervasive to reduce or eliminate. Rosete did not request a limiting instruction at the time of Yoshimoto's testimony, and the record does not reflect that he requested a limiting instruction as part of the jury's final charge.
7. Testimony of Scott Rosete
Costales also called Rosete, then a YCO supervisor on paid leave from HYCF, to testify. His testimony regarding the time period of the alleged sexual assaults follows:
Q [by Costales' counsel]: Did you ever take [Costales] out of her dorm at night?
A [by Rosete]: I'm sure I did.
Q: Did you ever take any other girls out of their ...