* * * NOT FOR PUBLICATION * * *
THE SUPREME COURT OF THE STATE OF HAWAI`I
HILL, Individually and as Special
Administrator for the Estate of David C. Afong, Deceased
STATE OF HAWAI`I, Defendant-Appellee,
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:
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;
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.
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);
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;
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).
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;
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
The Honorable Dan T. Kochi presided over this matter.