* * * NOT FOR PUBLICATION * * *
NO. 25464
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
FRANCES
HILL, Individually and as Special
Administrator for the Estate of David C. Afong, Deceased
Plaintiff-Appellant,
vs.
STATE OF HAWAI`I, Defendant-Appellee,
and
JOHN
SMYTHE, GUY HALL, and DOE ENTITIES 1-10, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 96-2592)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Upon carefully reviewing the record and briefs submitted, we hold as follows:
(1)
HRS § 662-5 and HRS § 662-2 are not unconstitutional. The
doctrine of sovereign immunity derives from the State's
inherent power, not the
Constitution. Alden v. Maine,
527 U.S. 706, 713 (1999). The State has sovereign immunity
except
where there has been a clear relinquishment of immunity and the State
has consented to be sued. The State has
waived
immunity to suit only to the extent specified in HRS chapter 661 and
662. Taylor-Rice v. State,
105 Hawai`i
104, 109-110,
94 P.3d 659, 664-665 (2004). The State has the right to limit its
waiver of sovereign immunity, and
neither HRS § 662-5
or HRS § 662-2 is unconstitutional;
(2)
the legislature did not violate the separation of powers doctrine when
it enacted HRS § 662-5 and HRS § 662-2. Any
waiver of sovereign
immunity is a matter for legislative determination, and the waiver must
be unequivocally expressed
in
the statutory text. Taylor-Rice
105 Hawai`i at 112, 94 P.3d at 667.
(3)
the circuit court correctly ruled that the State owed Afong a duty of
reasonable care for his safety. Ajirogi v. State, 59
Haw. 515, 520-21, 583 P.2d
980, 984 (1978) (State's liability for negligence in exercising control
over persons in its
custody is judged under the
reasonable care standard);
(4)
Hill argues that certain conclusions of law were clearly erroneous.
However, Hill does not allege that the court applied
the incorrect law. Instead,
she argues that the evidence supports facts which contradict the
circuit court's findings. As
such, this court has
reviewed Hill's allegations of factual error. Hill has failed to make
the relevant transcripts she cites a
part of the record on
appeal, contrary to the requirements of Hawai`i Rules of Appellate
Procedure (HRAP) Rule
10(b)(3). Consequently,
this court could not review those transcripts and could only review
those exhibits which were
made a part of
the record on appeal and which were cited by Hill. These exhibits do
not support Hill's allegations.
Therefore, the circuit
court's findings of fact are not clearly erroneous, such that Hill's
argument is without merit;
(5)
The circuit court did not err when it found that Hill failed to prove a
causal relationship between the alleged acts and
omissions of State
employees and Afong's death. Hill did not meet her burden of proving
legal causation. See
Miyamoto
v. Lum, 104 Hawai`i 1, 15, 84 P.3d 509, 523 (2004).
(6)
The circuit court did not abuse its discretion by awarding the State
costs pursuant to Hawai`i Rules of Civil Procedure
(HRCP) Rule 68. It is
undisputed that the State made an HRCP Rule 68 settlement offer to
Hill, which she did not
accept,
and that the judgment after trial was not more favorable to Hill than
the settlement offer. Under these facts,
HRCP Rule 68
provides that Hill must pay the costs incurred by the State after the
making of the settlement offer;
(7)
This court will not review Hill's argument that the circuit court made
factual errors because she failed to include this
argument in her points on
appeal. HRAP Rule 28(b)(4). Assuming arguendo that Hill included
this argument in her
points
of error, she would still not prevail because she alleged the same
factual errors in the circuit court's conclusions of
law and
none of her allegations was supported by the evidence in the record
presented.
IT IS HEREBY ORDERED that the circuit court's final judgment filed is affirmed.
DATED: Honolulu, Hawai`i, January 10, 2005.
On the briefs:
Carl M. Varady
for plaintiff-appellant
Frances Hill
1.
The Honorable Dan T. Kochi presided over this matter.