NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-20-0000379

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.

Electronically Filed

Intermediate Court of Appeals

CAAP-20-0000379

04-OCT-2024

07:57 AM

Dkt. 95 MO
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 oralgenital 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,

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

(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

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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. 

7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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

8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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.

9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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:

Joseph P.H. Ahuna, Jr.

David K. Ahuna,

for Plaintiffs/Counterclaim

Defendants-Appellants.

Caron M. Inagaki,

Kathy K. Higham,

/s/ Katherine G. Leonard

Acting Chief Judge

/s/ Keith K. Hiraoka

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Willliam K. Awong,

Deputy Attorneys General,

State of Hawai#i,

for State of Hawai#i.

11