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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30683
                                                              17-MAR-2014
                                                              02:56 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---oOo---
________________________________________________________________
                         STACEY COSTALES,
          Respondent/Plaintiff-Appellant/Cross-Appellee,
                                    vs.
     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.
________________________________________________________________

                               SCWC-30683
         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (ICA NO. 30683; CIV. NO. 07-1-2360)
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                               MARCH 17, 2014

       RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.1

              AMENDED OPINION OF THE COURT BY McKENNA, J.

I.    Introduction

      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, No. 30683 (App. May 30, 2012) (mem.) at 21.

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 claimant, by reason of the same subject

matter, against the employee of the State whose act or omission

gave rise to the claim.”




1
      Associate Justice Acoba, who heard oral argument and signed the opinion
filed on February 27, 2014, retired on February 28, 2014.


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       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.

II.    Background

       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.


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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


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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.”

     B.   Trial

     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 they did not report Rosete because they


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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


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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




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     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]


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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 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


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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 jury2 as relevant

to the other defendants’ notice, over Rosete’s objection that the

2
      That deposition testimony was not transcribed by the court reporter,
even though this court required such transcription in Roxas v. Marcos, 89
Hawai‘i 91, 100 n.2, 969 P.2d 1209, 1218 n.2 (1998).


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testimony 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 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 door3 regarding YCO Lia Olione’s conviction

for sexual assault, the parties agreed with the circuit court to

3
      Evidence of other lawsuits against the State, particularly Ruiz v. State
of Hawaii, et al., Civil No. 04-1-1739-09 (KSSA), which arose from a 2003
alleged sex assault of a ward by Olione, had been previously excluded by an
order granting in part and denying in part one of the State’s motions in
limine.


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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-


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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 dorms at
          night?
          A: Yes, I have.
          Q: And, during those times did you allow them to punch the
          clock?
          A: No, ma’am.
          Q: During the nights when you took [Costales] out of her
          room, you allowed her to watch TV, right?
          A: My answer would be yes, but, I would have to explain
          myself though. When we take them out, the T.V.’s already on
          because that’s what we’re doing, we’re watching TV. And, --
          and, we’d be taking out wards for numerous reasons. If they
          come out –- out of the dorm, they’re in the living room area
          where the T.V’s at I’m sure that they would be watching.
          Q: And, you do this during the time when they’re supposed
          to be locked up and in their dorm and sleeping, right?
          A: Yes, ma’am.
          Q: And, you would give her candies and cigarettes during
          these nights; isn’t that correct?
          A: That’s not true.
          Q: And you would make her massage your feet during these
          nights; is that correct?
          A: That is not correct.
          Q: And, did you not talk dirty to her during these nights?
          A: That is absolutely not true.
          Q: Did you not tell her that she was sexy?
          A: No.
          Q: Did you ever –- did you not tell her that you wanted to
          fuck her brains out.
          A: I did not.


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           Q: And, did you not touch her in a sexual way?
           A: No, ma’am.
           Q: Did you sexually assault[] Stacey Costales with your
           fingers?
           A: No.
           Q: Did you sexually assault[] her with your penis?
           A: Negative.


           8.   Testimony of Stacey Costales

     Costales also took the stand.        She testified that wards

feared Rosete because he had physically abused her and other

wards.   She testified that she and other wards did not report the

physical abuse because nothing would have been done about it.

She testified that Rosete would boast that all he would get was a

“slap on the wrist” if any of the wards reported his behavior.

Costales also testified that Rosete called the wards “bitches”

and “sluts.”    He would often humiliate the wards by making them

wear “I’m stupid” signs and by making them bark like dogs for

their food.

     She testified that she began to trust Rosete after he

started counseling her and taking her out of her dorm at night to

give her candy, Zippy’s food, and cigarettes.          She testified that

she punched the time clock for Rosete, massaged his feet, made

toast for him, and grabbed mattresses from the isolation rooms

for him.   She testified that after Rosete befriended her, he

“started doing things to [her],” including touching her breasts

and vagina twice, before having sexual intercourse with her.                He

also told Costales she was “sexy” and that he “want[ed] to fuck



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[her] brains out.”    She elaborated that the night Rosete had              sex

with her, he had asked her to bring him a mattress from an

isolation room; when Costales was in the isolation room, Rosete

followed her and pushed her onto the mattress, “got on top of

[her], pulled [her] clothes off and put himself inside of [her].”

He stopped because he heard something and went to check it out.

          9.   Testimony of Susan Thain

     Portions of the deposition testimony of retired HYCF teacher

Susan Thain were read to the jury after Thain was declared

unavailable.   Thain testified that she was not aware that

Costales was sexually assaulted, but she testified that she knew

two other wards were raped.      She testified that other YCOs were

having what she surmised to be a sexual relationship with another

ward, based on the ward’s statements to her.          That same ward was

also talked into stripping down by another YCO, who told her he

wanted to use her as a clothing model.         Thain testified that, in

general the YCOs would often “swat [a] girl on the butt” or make

passing comments she considered inappropriate.

     Thain testified that she witnessed YCOs physically beating

the wards, once to the point where a ward became unconscious.

She testified that when she reported the abuse, the YCOs would

harass and threaten her, and she believed her car was vandalized

by one of them.




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     C.    Jury Instructions, Special Verdict Form, Findings of
           Fact and Conclusions of Law, and Final Judgment

     Relevant to this appeal, the only instruction on the

difference between official and individual capacity was the

following:

                 If a State employee is found liable in his official
           capacity, then the State is responsible.
                 If a State employee is found liable in his individual
           capacity, then that State employee is personally
           responsible.

Also relevant to this appeal, the circuit court charged the jury

with the following instructions concerning separating each

defendant’s rights:

                 Similarly, each defendant in this case has separate
           and distinct rights. You must decide the case of each
           defendant separately, as if it were a separate lawsuit.
           Unless I tell you otherwise, these instructions apply to all
           the defendants.

     The jury entered its answers on the special verdict form as

follows:

           QUESTION NO. 1:

                 Did Scott Rosete sexually assault Plaintiff Stacey
           Costales?

                        Yes _X_ (12)        No ___

           If you answered “Yes”, proceed to Question No. 2. If you
           answered “No”, proceed to the end of this form, date and
           sign it, and then call the Bailiff.

           QUESTION NO. 2:

                 Was Scott Rosete’s sexual assault a legal cause of
           Plaintiff Stacey Costales’ injury?

                        Yes _X_ (12)        No ___

           If you answered “Yes”, proceed to Question No. 3. If you
           answered “No”, proceed to the end of his [sic] form, date
           and sign it, and then call the Bailiff.




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       QUESTION NO. 3:

             Before December 12, 2005, did Stacey Costales
       discover, or reasonably should have discovered, that she was
       psychologically or emotionally injured by Defendant Rosete’s
       sexual assaults?

                    Yes ___        No _X_ (12)

       If you answered “Yes”, proceed to the end of this form, date
       and sign it, and then call the Bailiff. If you answered
       “No”, proceed to Question No. 4

       QUESTION NO. 4:

             Was Melvin Ando negligent?

                    Yes _X_ (12)         No ___

       If you answered “Yes”, proceed to Question No. 5.   If you
       answered “No”, proceed to Question No. 6.

       QUESTION NO. 5:

             Was the negligence of Melvin Ando a legal cause of
       Plaintiff Stacey Costales’ injury?

                    Yes _X_ (12)         No ___

       Proceed to Question No. 6.

       QUESTION NO. 6:

             Was Glenn Yoshimoto negligent?

                    Yes _X_ (12)         No ___

       If you answered “Yes”, proceed to Question No. 7.   If you
       answered “No”, proceed to Question No. 8.


       QUESTION NO. 7:

             Was the negligence of Glenn Yoshimoto a legal cause of
       Plaintiff Stacey Costales’ injury?

                    Yes _X_ (12)         No ___

       Proceed to Question No. 8.

       QUESTION NO. 8:

             Was the State of Hawaii (or any of its agencies
       including the Department of Human Services and/or the Office
       of Youth Services) negligent?

                    Yes _X_ (12)         No ___



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       If you answered “Yes”, proceed to Question No. 9.   If you
       answered “No”, proceed to Question No. 10.

       QUESTION NO. 9:

             Was the negligence of the State of Hawaii (or any of
       its agencies including the Department of Human Services
       and/or the Office of Youth Services), a legal cause of
       Plaintiff Stacey Costales’ injury?

                    Yes _X_ (12)        No ___

       Proceed to Question No. 10.

       QUESTION NO. 10:

             If you have found one or more of the parties above at
       fault, and that its or his actions were a legal cause of
       Plaintiff Stacey Costales’ injury, for each party, enter the
       percentage of fault you attribute to that party. Please
       note that the total of the percentages must equal 100%.

             Scott Rosete            62%
             Melvin Ando             9%
             Glenn Yoshimoto         15%
             State of Hawaii
                   (Department of Human Services and/or the Office
                   of Youth Services) 14%
             TOTAL                   100%

       QUESTION NO. 11 – (Special Damages)

             Without regard to any possible apportionment of her
       damages, what is the total amount of Plaintiff Stacey
       Costales’ special damages?

             1) Scott Rosete
             Official Capacity $__________
             Individual Capacity     $67,000 (12)
             2) Melvin Ando
             Official Capacity $__________
             Individual Capacity $__________
             3) Glenn Yoshimoto
             Official Capacity $__________
             Individual Capacity $__________
             4) State of Hawaii      $__________
             (Department of
             Human Services and/or
             The Office of Youth Services)
             TOTAL                   $67,000

       QUESTION NO. 12 – (General Damages)

             Without regard to any possible appointment [sic] of
       her damages, what is the total amount of Plaintiff Stacey
       Costales’ general damages?




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           1) Scott Rosete
                 Official Capacity       $200,000 (12)
                 Individual Capacity     $200,000 (12)
           2) Melvin Ando
                 Official Capacity       $100,000 (12)
                 Individual Capacity     $50,000 (12)
           3) Glenn Yoshimoto
                 Official Capacity       $150,000 (11)
                 Individual Capacity     $150,000 (11)
           4) State of Hawaii            $300,000 (12)
                 (Department of Human
                 Services and/or the Office
                 Of Youth Services)
           TOTAL                         $1,150,000

           QUESTION NO. 13:

                 What percentage of Plaintiff Stacey Costales’ damages,
           if any, is attributable to any of the following:
                 a. Pre-existing Injury/Condition ___%
                 b. January/February 2002 Incidents 75%
                 c. Subsequent injury/condition 25%
                 TOTAL (Note: The total must equal 100%) 100%

           QUESTION No. [14] – (Punitive Damages)

                 What is the total amount of any punitive damages that
           Plaintiff Stacey Costales should receive from each
           Defendant?

           Scott Rosete $300,000
           Melvin Ando $_______
           Glenn Yoshimoto $_______
           TOTAL $300,000

The jury’s answers closely tracked Costales’ request for damages

in her closing argument:      “For Mr. Rosete, we’re asking $600,000.

$300,000 for compensation, $300,000 for punitive damages. . . .

The State?   $300,000.    Mr. Ando?        $300,000.   Mr. Yoshimoto?

Same.   Because they’re equally responsible. . . .           And for future

care and psychotherapy, $67,000.           This is the total of one

million five sixty-seven.”      In closing, Costales also asserted

that 75% of her depression resulted from Rosete’s sexual assault.

     The circuit court filed its Findings of Fact and Conclusions



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of Law, which adopted the jury’s special verdict findings as to

Rosete, in his individual capacity, and adopted the advisory

jury’s special verdict findings as to the remaining defendants.

     The circuit court entered final judgment as follows:

                With respect to Claim I of Plaintiff’s Complaint,
          relating to Plaintiff’s claim of assault and battery against
          Defendant Scott Rosete, Judgment is hereby entered in favor
          of Plaintiff Stacey Costales and against Defendant Scott
          Rosete.
                With respect to Claim II of Plaintiff’s Complaint,
          relating to Plaintiff’s claim of negligence, Judgment is
          hereby entered in favor of Plaintiff Stacey Costales and
          against Defendants State of Hawaii, Office of Youth
          Services, Department of Human Services, Melvin Ando and
          Glenn Yoshimoto.
                With respect to Claim III of Plaintiff’s Complaint,
          relating to Plaintiff’s claim of intentional and negligent
          infliction of emotional distress, Judgment is hereby entered
          in favor of Plaintiff Stacey Costales and against Defendants
          Scott Rosete, State of Hawaii, Office of Youth Services,
          Department of Human Services, Melvin Ando and Glenn
          Yoshimoto.
                With respect to Claim IV of Plaintiff’s Complaint,
          relating to Plaintiff’s claim for punitive damages, Judgment
          is hereby entered in favor of Plaintiff Stacey Costales and
          against Defendant Scott Rosete in the amount of $300,000.00.
                Without regard to any apportionment, Plaintiff
          Stacey[] Costales’ special damages are $67,000 and her
          general damages are $1,150,000.00.
                Without regard to any apportionment, Plaintiff’s total
          special, general and punitive damages are $1,517,000,000.
          [sic]
                Applying the 25% apportionment for Plaintiff’s
          subsequent injury/condition, Plaintiff Stacey Costales’
          combined special and general damages are $912,750.00.
                Pursuant to the Court’s February 9, 2010 Order
          Granting in Part and Denying in Part Plaintiff’s Motion for
          Taxation of Costs and Pre-Judgment Interest, Plaintiff
          Stacey Costales is entitled to costs in the amount of
          $12,438.27 against Defendants, except $1,993.19 of which is
          not taxable against Defendant Scott Rosete in his individual
          capacity; Plaintiff is not entitled to pre-judgment
          interest.
                Judgment in Plaintiff Stacey Costales’ favor, and
          against all Defendants, is hereby entered in the total
          amount of $1,225,188.27.
                All remaining parties or issues to this case are
          dismissed.




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       D.   Post-Trial Motions4

       Rosete moved for judgment as a matter of law or,

alternatively, for a new trial.        Rosete argued that the “torrent

of evidence . . . with regard to alleged abuses by others” at

HYCF should have been excluded as to Rosete as more prejudicial

than probative.     Rosete also argued that the special verdict form

was inconsistent and confusing.        Rosete then argued that Costales

could not take judgment against both Rosete and the State, citing

HRS § 662-10, which states, “The judgment in an action under this

chapter shall constitute a complete bar to any action by the

claimant, by reason of the same subject matter, against the

employee of the State whose act or omission gave rise to the

claim.”

       The circuit court issued its Order Granting in Part and

Denying in Part Defendant Rosete’s, in his Individual Capacity,

Motion for Judgment as a Matter of Law and Alternative Motion for

a New Trial.     The motion was granted as to Rosete’s request for a

new trial and denied as to his motion for judgment as a matter of

law.    The only basis for the new trial was the irreconcilable

conflict in the jury’s answers to special verdict question

numbers 10 and 12:      “The court finds that an irreconcilable


4
      Effective January 28, 2010, Judge Marks’ previously assigned civil cases
were transferred and reassigned to Judge Rhonda Nishimura. Judge Marks
presided over the trial in this case; Judge Nishimura presided over the bulk
of the post-trial motions in this case.


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conflict exists between the jury’s answers in the percentage

allocation of fault amongst the defendants and the monetary

damages allocated amongst the defendants.”

      Costales moved for reconsideration of the circuit court’s

order.     Costales included as “new evidence” declarations from

nine jurors5 stating that they intended to award Costales the

dollar amounts assigned to all defendants in question number 12

of the special verdict and that the percentages of fault

allocated in question number 10 did not control.            Alternatively,

Costales argued that if a new trial were unavoidable, the issues

upon re-trial should be limited to the allocation of general

damages among the defendants, as the defendants did not dispute

that they were 100% at fault and that the total damages were

$1,150,000.00.     The circuit court denied Costales’ motion for

reconsideration.6

      E.   ICA Appeal

      This appeal reached the ICA on the circuit court’s order

granting Costales’ Motion for Interlocutory Appeal of the order

granting Rosete, in his individual capacity, a new trial, and the

order denying her motion for reconsideration of that order.

5
      Costales later filed similar declarations from two more jurors.

6
      The trial court left it to the appellate courts to consider the juror
declarations. The ICA concluded (and we agree) that the juror declarations
concerned the jurors’ intent; therefore, the circuit court properly declined
to consider the declarations because they were barred under HRE Rule 606.
Costales, mem. op. at 17-18.



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     Rosete, in his individual capacity, filed a cross-appeal,

raising as points of error the circuit court’s admission of the

other defendants’ bad acts, the circuit court’s failure to grant

Rosete a new trial on the additional basis of prejudice from

these bad acts, and HRS § 662-10’s judgment bar.

     In Costales’ answering brief, she counter-argued, “The Trial

Court was correct in admitting evidence of prior physical and

sexual abuse of other HYCF wards by Defendants Rosete and other

guards to show notice of a dangerous condition and opportunity.”

Costales also argued that Rosete was not prejudiced by the

admission of the other defendants’ bad acts because the evidence

was overwhelming that Rosete sexually assaulted Costales.

Further, she argued that Rosete waived his argument for failing

to move for limiting instructions as to this evidence at trial.

Lastly, as to Rosete’s HRS § 662-10 argument, Costales counter-

argued that there is no Hawai‘i case law interpreting the

statute, but she cited Breed v. Shaner, 57 Haw. 656, 665, 562

P.2d 436, 442 (1977), for the general proposition that Hawai‘i’s

STLA should be liberally construed to compensate victims for the

negligent conduct of State employees.

     The ICA issued a Memorandum Opinion, remanding this case

“for a new trial limited to the allocation of fault and damages

among the defendants.”     Costales, mem. op. at 21.        The ICA

concluded that the evidence of the other defendants’ bad acts was


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admissible to show notice.      Costales, mem. op. at 12.        Further,

the ICA concluded that Olione’s deposition testimony concerning

his sexual assault of another ward was admissible once Yoshimoto

opened the door.    Costales, mem. op. at 13.        Moreover, the ICA

concluded that all of this evidence was not unfairly prejudicial

to Rosete because the circuit court instructed the jury to

consider evidence against each defendant separately.           Costales,

mem. op. at 13.

     The ICA also rejected Rosete’s argument that HRS § 662-10

precluded judgment against both him and the State.           Costales,

mem. op. at 15.     It concluded, “Plainly read, the statute

precludes subsequent claims on the same subject matter, but does

not bar claims against multiple defendants.”          Costales, mem. op.

at 15 (citing Rodriguez v. Handy, 873 F.2d 814, 816 n.1 (5th Cir.

1989)).

     The single issue in which the ICA concluded that the circuit

court erred was in ordering a new trial without a limitation on

issues, because the defendants did not dispute that their

combined fault was 100%, nor did they argue that the damage award

was unreasonable.    Costales, mem. op. at 18.        The ICA concluded,

“The circuit court ignored the supreme court’s conclusion in Dias

[v. Vanek, 67 Haw. 114, 118, 679 P.2d 133, 136 (1984)] that the

preferred remedy for such a verdict is a new trial limited to the

issue of damages.”     Costales, mem. op. at 20 (emphasis in


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original).     The ICA then remanded the case for a new trial

“limited to the allocation of fault and damages among the

defendants.”     Costales, mem. op. at 21.

III.    Standards of Review

       A.   Motion for New Trial

             Both the grant and the denial of a motion for new trial
             [are] within the trial court’s discretion, and we will not
             reverse that decision absent a clear abuse of discretion.
             An abuse of discretion occurs “where the trial court has
             clearly exceeded the bounds of reason or disregarded rules
             or principles of law or practice to the substantial
             detriment of a party litigant.”

State by Bronster v. U. S. Steel Corp., 82 Hawai‘i 32, 54, 919

P.2d 294, 316 (1996) (citations omitted).           It is also within the

appellate court’s discretion to limit the issues of a new trial

upon remand.     Miyamoto v. Lum, 104 Hawai‘i 1, 10, 84 P.3d 509,

518 (2004).

       B.   Evidentiary Rulings

             [D]ifferent standards of review must be applied to trial
             court decisions regarding the admissibility of evidence,
             depending on the requirements of the particular rule of
             evidence at issue. When application of a particular
             evidentiary rule can yield only one correct result, the
             proper standard for appellate review is the right/wrong
             standard. Where the evidentiary ruling at issue concerns
             admissibility based upon relevance, under [Hawai#i Rules of
             Evidence (HRE)] Rules 401 and 402, the proper standard of
             appellate review is the right/wrong standard. . . .
             Evidentiary decisions based on HRE Rule 403, which require a
             “judgment call” on the part of the trial court, are reviewed
             for an abuse of discretion.

Tabieros v. Clark Equip. Co., 85 Hawai#i 336, 350-51, 944 P.2d

1279, 1293-94 (1997).




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       C.   Statutory Construction

       Interpretation of a statute is a question of law, which this

court reviews de novo.        See Molinar v. Schweizer, 95 Hawai‘i 331,

334-35, 22 P.3d 978, 981-82 (2001) (citation omitted).

IV.    Discussion

       As a preliminary matter, the circuit court and ICA properly

concluded that the special verdict form was defective.               It is

true that the trial court has “‘complete discretion’ over the

type of verdict form” to use.          Montalvo v. Lapez, 77 Hawai‘i 282,

292, 884 P.2d 345, 355 (1994) (citations omitted).              “When . . .

the trial court ‘require[s] a jury to return only a special

verdict in the form of a special written finding upon each issue

of fact,’ HRCP 49(a)[7] compels the judge to ‘give to the jury

such explanation and instruction concerning the matter thus


7
       Hawai‘i Rules of Civil Procedure Rule 49(a) (2009) provides:
             Special verdicts. The court may require a jury to return
             only a special verdict in the form of a special written
             finding upon each issue of fact. In that event the court
             may submit to the jury written questions susceptible of
             categorical or other brief answer or may submit written
             forms of the several special findings which might properly
             be made under the pleadings and evidence; or it may use
             such other method of submitting the issues and requiring the
             written findings thereon as it deems most appropriate. The
             court shall give to the jury such explanation and
             instruction concerning the matter thus submitted as may be
             necessary to enable the jury to make its findings upon each
             issue. If in so doing the court omits any issue of fact
             raised by the pleadings or by the evidence, each party
             waives the right to a trial by jury of the issue so omitted
             unless before the jury retires the party demands its
             submission to the jury. As to an issue omitted without such
             demand the court may make a finding; or, if it fails to do
             so, it shall be deemed to have made a finding in accord with
             the judgment on the special verdict.


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submitted as may be necessary to enable the jury to make its

findings upon each issue.’”      Knodle v. Waikiki Gateway Hotel, 69

Haw. 376, 383, 742 P.2d 377, 382 (1987) (footnote modified).                The

questions on the special verdict form, however, “may be so

defective that they constitute reversible error.           In analyzing

alleged errors in special verdict forms, the instructions and the

interrogatories on the verdict form are considered as a whole.”

Montalvo, 77 Hawai‘i at 292, 884 P.2d at 355 (citations omitted).

     In this case, the special verdict form and its accompanying

jury instructions were defective.        The jury instructions did not

inform the jury as to the circumstances under which Rosete,

Yoshimoto, and Ando would be liable in their individual versus

official capacities for the general damage amounts the jury

assigned in special verdict question number 12.          Ordinarily, a

public official is qualifiedly immune from liability.            Medeiros

v. Kondo, 55 Haw. 499, 505, 522 P.2d 1269, 1272 (1974).             To

defeat a public official’s claim of qualified immunity, the

burden is on the plaintiff to adduce “clear and convincing proof

that [the public official] defendant was motivated by malice and

not by an otherwise proper purpose.”        Id.   “If it is determined

that [the individual defendant] was acting within the scope of

his employment as a public official, then he can be held liable

for general, special, and punitive damages (1) if he maliciously

exercised his official discretion, or (2) if he maliciously


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committed a tort against plaintiffs. . . .”          Kajiya v. Dep’t of

Water Supply, 2 Haw. App. 221, 227, 629 P.2d 635, 640 (App. 1981)

(citations and footnote omitted).

     “Unless the issue is removed from the case by uncontested

affidavits and depositions, the existence or absence of malice is

a question for the jury.”      Kajiya, 2 Haw. App. at 227, 629 P.2d

at 640.   In this case, there was no jury instruction on malice or

improper purpose; therefore, when the jury assigned damage

amounts to Rosete, Ando, and Yoshimoto in their individual and

official capacities in special verdict question number 12, it was

not informed that Costales had to meet a higher burden of proof

in order to hold the individual defendants personally liable for

her damages.

     Second, the jury’s answers to special verdict question

numbers 10 and 12 were irreconcilably in conflict.           “A conflict

in the answers to questions in a special verdict does not

automatically warrant a new trial; a new trial will be ordered

only if the conflict is irreconcilable.”         Kalilikane v. McCravey,

69 Haw. 145, 152, 737 P.2d 862, 867 (1987) (citation omitted).

Although the ICA has previously cited to Texas authority for the

proposition that an irreconcilable conflict in a special verdict

form exists when “one of the answers would require a judgment in

favor of the plaintiff and the other would require a judgment in

favor of the defendant . . . necessarily requir[ing] the entry of


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a judgment different from that which the court has entered,” we

have also found an irreconcilable conflict in situations where

there was no question that the judgment would be for the

plaintiff.   Compare Dunbar v. Thompson, 79 Hawai‘i 306, 312-13,

901 P.2d 1285, 1291-92 (App. 1995) (citing Vieau v. City & County

of Honolulu, 3 Haw. App. 492, 499, 653 P.2d 1161, 1166 (1982)

(citing Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex, 197,

206, 222 S.W.2d 985, 991 (1949))) with Ray v. Kapiolani Med.

Specialists, 125 Hawai‘i 253, 261-62, 259 P.3d 569, 577-78 (2011)

(observing that the jury’s answers to the special verdict form

were irreconcilably in conflict based on the facts of the case,

where the jury found that a doctor’s treatment of a plaintiff did

not cause injury but found that the doctor’s failure to properly

inform the plaintiff did).

     In this case, the special verdict form called upon the jury

to assign damages in two ways:       special verdict question number

10 asked the jury to assign percentages of fault for Costales’

injury among all the defendants, while special verdict question

number 12 asked the jury to break down general damages owed to

Costales by the State and by Rosete, Ando, and Yoshimoto.              The

jury answered question number 12 in a manner mathematically

inconsistent with their answer to question number 10.            The

answers to these questions were irreconcilably in conflict.              Like

Ray, even though the judgment for plaintiff is not at issue, the


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jury’s answers to special verdict question numbers 10 and 12 are

irreconcilably in conflict because it is unclear what amount of

general and special damages Rosete, Ando, and Yoshimoto owe to

Costales, and in what capacity (individual or official).

Therefore, a new trial is warranted.

     The next section discusses the issues to be determined upon

re-trial.

     A.   New Trial Limited to the Allocation of Fault and
          Damages among the Defendants
     On certiorari, Rosete argues that the ICA erred in ordering


an entirely new trial limited to the allocation of fault and

damages among the defendants.       Further, he argues in conclusory

fashion that “[t]he concept of seating a new jury merely to

reallocate a prior jury’s dueling verdicts is unprecedented and

denies either the state an advisory jury or Mr. Rosete an actual

jury verdict.”    In any event, he argues the new jury would have

to hear all the evidence, making the ICA’s remand impractical.

Rosete makes plain that the primary reason he seeks a new trial

is to exclude evidence heard in the first trial that he argues

was unfairly prejudicial to him, an issue that is discussed in

the next subsection.

     In Costales’ Response, she counter-argues (1) limiting re-

trial to the “allocation of damages” is the preferred remedy

under Dias, 67 Haw. 114, 679 P.2d 133; (2) such a limitation



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promotes judicial economy and fairness, particularly in light of

the fact that the defendants do not contest that they were 100%

liable for Costales’ injury or that the total damages awarded

were reasonable; (3) the limited re-trial is a practical solution

and will not require recalling many of the liability and damages

witnesses; and (4) Rosete’s request for a completely new trial is

a thinly veiled attempt at a “second bite of the apple.”

     The ICA’s remand of this case for a re-trial “limited to the

allocation of fault and damages” is problematic.           Costales, mem.

op. at 21.   The ICA cited Dias for the proposition that “the

preferred remedy for [an irreconcilable conflict in a special

verdict form] is a new trial limited to the issue of damages.”

Costales, mem. op. at 20 (emphasis in original).           Dias, however,

does not squarely address the situation in this case:            an

uncontested total damage award where the allocation of fault, in

addition to damages, among the defendants is ambiguous.

     In Dias, homebuyers (the Diases) sued homesellers (the

Vaneks) for fraud, after the Vaneks previously represented that

their termite inspector found no evidence of termites in the

home, and after the Diases found termites in one of the walls.

67 Haw. at 115-16, 679 P.2d at 134-35.         The Diases stopped making

monthly payments to the Vaneks under their agreement of sale, and

the Vaneks made a counterclaim against the Diases for breach of

the agreement of sale.     67 Haw. at 116, 679 P.2d at 135.


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       The jury found, inter alia, that the Diases breached the

agreement of sale and were liable to the Vaneks for $6,263.                Id.

The trial court, without explanation, allowed the Vaneks to keep

the down payment on the agreement of sale and ordered the Diases

to pay the $6,263 in damages to the Vaneks in addition to that.

Id.    The Diases appealed.       Id.

       This court acknowledged that Hawai‘i law allowed the seller

to retain payments made as liquidated damages.             67 Haw. at 116-

17, 679 P.2d at 135.        However, this court observed that the trial

court’s instruction to the jury regarding the down payment

mentioned only that a rescission of the agreement of sale (which

the jury did not find was warranted) would allow the Diases to

get their down payment back; the instructions made no mention of

what would happen to the down payment if the Diases did not

succeed in rescinding the agreement of sale.             67 Haw. at 117, 679

P.2d at 135-36.       Thus, it was unclear what the jury understood

would happen to the down payment, and it was unclear whether the

jury’s award of $2,263 accounted for the down payment or not.                  67

Haw. at 118, 679 P.2d at 136.           Thus, this court held that the

trial court erred in awarding the down payment to the Vaneks,

further clarifying, “The preferred remedy of an ambiguous verdict

is to have the jurors return to clarify the verdict.              Here, the

jury had been discharged, and the only available remedy is a

remand for a new trial limited to the issue of damages[.]”                Id.


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      This case is similar to Dias in some respects but not

others.   The jury’s special verdict, like the verdict in Dias,

was unclear, because the percentage fault in question number 10

was mathematically inconsistent with the damages breakdown in

question number 12.      Further, like Dias, the jury in this case

had already been discharged and could not be called in to clarify

the verdict.

      However, all the Dias remedy speaks to is re-trial on the

contested issue of damages.       In this case, the total amount of

damages is uncontested.8      At no point did Rosete (or the other

defendants) argue that the jury award was unreasonable or that

the defendants were not collectively 100% liable to the

Plaintiff.    Rather, Rosete argued that the confusion in the

jury’s special verdict pertained to whether the percentages of

fault in question number 10 control, or whether the damages

breakdown in question number 12 controls.          As such, Dias’s remedy

of a new trial limited to damages does not squarely address the

ambiguity in the special verdict at bar.

      Further, not all of the damages determinations are

contested.    Therefore, the Dias remedy, as applied to this case

on remand, is not properly limited.         We therefore further limit

the damages issues to be re-tried to those that are contested and


8
      No party disputes the jury’s answers to special verdict question numbers
1, 2, 4, 5, 6, 7, 8, and 9, which establish that each defendant’s actions or
omissions were the legal cause of Costales’ injuries.


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that are “sufficiently separate” from those damages issues that

are not contested on appeal.      See Miyamoto, 104 Hawai‘i at 10, 84

P.3d at 518 (inferring that where trial issues are “sufficiently

separate,” a re-trial on remand can be limited to certain

issues).   Not at issue on re-trial are the following

determinations.    First, the jury’s answer to question number 14

established that Rosete is liable to Costales for $300,000 in

punitive damages; there is no question that Rosete is liable in

his individual capacity for punitive damages.          See HRS § 662-2

(1993) (“The State hereby waives its immunity for liability for

the torts of its employees . . . but shall not be liable for . .

. punitive damages.”)     Second, the jury’s answer to question

number 13 established that 25% of Costales’ damages can be

apportioned to an injury or condition that arose subsequent to

the 2002 sexual assaults; no party disputes this determination.

These damage determinations shall not be re-tried upon remand.

Therefore, we affirm the circuit court’s Final Judgment to the

extent that it awarded Costales $300,000 in punitive damages from

Rosete, in his individual capacity.

     In this case, due to the irreconcilable conflict in the

jury’s answers to special verdict question numbers 10 and 12, and

due to the absence of a Medeiros jury instruction, re-trial on

remand shall be limited to the allocation of liability and of

general and special damages among the defendants, with an


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instruction to be given to the jury regarding when a State

employee can be personally liable due to malice or improper

purpose.    In other words, the re-trial shall be limited to a

redetermination of the allocation of fault and damages under

special verdict form question numbers 10, 11, and 12.

      B.   Admission of the Other Defendants’ Bad Acts

      On certiorari, Rosete argues that he is entitled to an

entirely new trial, not limited to the issue of allocation of

fault and damages, because he was unfairly prejudiced by the

admission of the other defendants’ bad acts.           Although he

concedes that the bad act evidence was admissible to show notice

of a dangerous condition relevant to Costales’ negligence claims

against the State, he argues that the jury found him “guilty by

association” with the other defendants, as evidenced by the

            illogical division of damages between the accused rapist and
            negligent co-defendants. By definition, an intentional
            tortfeasor causes more damage than those whose negligence
            contributed to the harm . . . but that was not the finding
            of this confused and angry jury,

who attributed 18% of the damage to Rosete and 82% of the damage

to the other defendants.9      Rosete argues that the torrent of bad

act evidence attributable to the other defendants roused the jury

to overmastering hostility towards them, thereby distracting the

jury from the question of whether Rosete committed the sexual

assault against Costales.
9
      This argument is disingenuous for Rosete to make; it should be in his
interest to accept an 18% allocation of fault and not advocate that the jury
should have found him more at fault.


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     In Costales’ Response, she argues that Rosete’s argument

that he was prejudiced by the admission of the other defendants’

bad acts is oversimplified; she argued that testimony simply

adverse to Rosete is not prejudicial.        Further, she argued that

Rosete could have (1) asked for his trial to be bifurcated from

the other defendants but did not; and (2) asked for a limiting

instruction but did not.      Moreover, she argued that the circuit

court instructed the jury that “each defendant in this case has

separate and distinct rights.       You must decide the case of each

defendant separately, as if it were a separate lawsuit.”            She

argued that the jury was presumed to follow the court’s

instructions.

     The ICA’s disposition of the issue was proper.           The record

does not reflect that Rosete ever requested a limiting

instruction as to evidence of the other defendants’ bad acts,

even after it became clear that the circuit court was admitting

the evidence as relevant to the issue of their notice of a

dangerous condition.     HRE Rule 105 states, “When evidence which

is admissible as to one party or for one purpose but not

admissible as to another party or for another purpose is

admitted, the court, upon request, shall restrict the evidence to

its proper scope and instruct the jury accordingly.”           Further,

the parties acknowledged that Yoshimoto opened the door regarding

YCO Lia Olione’s conviction for sexual assault and stipulated to


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the fact of conviction.     In fact, Rosete wanted the jury to know

that it was Olione –- not Rosete --        who was convicted of sex

assault.

     Moreover, even considering the allegedly adverse impact of

this evidence upon Rosete’s defense, it is unlikely that the jury

was distracted by it in assessing whether Rosete sexually

assaulted Costales, because there was a similar “torrent” of

graphic testimony on that issue by Costales and her witnesses,

rebutted only by Rosete’s bare assertions that he did not

sexually assault Costales.      With or without the admission of the

bad acts of the other defendants, the jury would likely have

found Rosete liable for sexually assaulting Costales.

Consequently, on certiorari, Rosete has not shown how the

admission of bad acts going towards the issue of the other

defendants’ negligence prejudiced him.

     C.    HRS § 662-10

     Rosete argues that HRS § 662-10 precludes a contemporaneous

judgment against both the State of Hawai‘i and Rosete in his

individual capacity.      It is true that HRS § 662-10 states, “The

judgment in an action under this chapter shall constitute a

complete bar to any action by the claimant, by reason of the same

subject matter, against the employee of the State whose act or

omission gave rise to the claim.”        However, the provisions of

Chapter 662, including HRS § 662-10’s judgment bar, does not


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apply to Costales’ claim of assault and battery against Rosete in

his individual capacity.        HRS § 662-15 (Supp. 2004) states, “This

chapter [Chapter 662] shall not apply to . . . [a]ny claim

arising out of assault, battery, false imprisonment, false

arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights.

. . .”    Therefore, HRS § 662-10 does not apply to bar Costales’

intentional tort claim against Rosete in his individual

capacity.10
10
      In rejecting Rosete’s argument, the ICA misused federal case law
interpreting 28 U.S.C. § 2676 (2006). Costales, mem. op. at 15. The ICA took
a footnote from Rodriguez, 873 F.2d at 816 n.1, out of context to support its
conclusion that 28 U.S.C. § 2676 (and, analogously, HRS § 662-10) bars only
the subsequent judgment against an individual government employee following a
judgment against the government. The complete footnote in Rodriguez reads:
            The plaintiffs contend that § 2676 is an affirmative defense
            which the individual defendants waived by failing to
            affirmatively plead it. The flaw in this argument is that §
            2676 is applicable only after a plaintiff obtains a judgment
            against the United States. In this case the judgment
            against the United States was entered at the same time as
            the judgment against the individual. Therefore, the
            individual defendants could not have plead § 2676 as an
            affirmative defense.
873 F.2d at 816, n.1 (emphasis added). The point in the Rodriguez footnote
was that 28 U.S.C. § 2676 does not bar a Bivens claim against an individual
government defendant from the outset, even though the Bivens claim accompanies
a Federal Tort Claims Act (“FTCA”) claim, and even if the Bivens claim might
later be precluded by a judgment on the FTCA claim. (A “Bivens claim” refers
to the private right of action for money damages based on constitutional
violations committed by federal agents in the performance of their official
duties, which was judicially created by Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).)
      The ICA, however, characterized the emphasized language above as the
“holding” in Rodriguez, ignoring the rest of the opinion, which held that a
even contemporaneous entry of judgment on an FTCA claim bars the entry of
judgment on a Bivens claim, under 28 U.S.C. § 2676. Rodriguez, 873 F.2d at
816:
            [T]he price of obtaining an FTCA judgment against the United
            States based on a given incident is the loss of all claims
            arising from that incident against the United States’
            agents: “The moment judgment was entered against the
            government, then by virtue of section 2676, [the individual
                                                      (continued . . .)



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      In a case factually similar to the instant one, we held:

            [W]here the plaintiff’s negligence claim seeks to hold the
            State liable for the conduct of state employees other than
            the alleged tortfeasor, pursuant to theories of negligent
            hiring, retention, supervision, or the like, the plaintiff’s
            claim does not necessarily “arise out of” the hired,
            retained, or supervised employee’s intentional tort.
            Rather, if the State knew, or reasonably should have
            anticipated, that one of its employees would commit an
            intentional tort against a person to whom the State owed a
            duty of care, the State is liable for the negligence of
            those employees who were in a position to take reasonable
            precautions against the anticipated harm.

Doe Parents No. 1 v. Dep’t of Educ., 100 Hawai‘i 34, 68, 58 P.3d

545, 579 (2002) (emphasis added).          Therefore, HRS § 662-10 does

not bar Costales from obtaining contemporaneous judgments from

Rosete in his individual capacity and from the State.                To the

extent that recovery against the State is predicated on the

alleged negligence of Rosete’s superiors in hiring, supervising,

training, and retaining him, such a claim does not involve “the

same subject matter” as the intentional tort claims against

Rosete.

V.   Conclusion

      For the foregoing reasons, the ICA’s Judgment on Appeal is

vacated.    The circuit court’s Order Granting in Part and Denying

in Part Defendant Rosete’s, in his Individual Capacity, Motion

for Judgment as a Matter of Law and Alternative Motion for a New

Trial is affirmed, and this case is remanded for further

            9
              (continued . . .)
            agent] was no longer answerable to [the plaintiff] for
            damages.”
(citing Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987)).



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proceedings consistent with this opinion.            Specifically, the

circuit court shall limit the issues of the new trial to the

allocation of fault and of general and special damages among the

defendants, with an instruction to be given to the jury regarding

when a State employee can be personally liable due to malice or

improper purpose pursuant to Medeiros v. Kondo, 55 Haw. 499, 505,

522 P.2d 1269, 1272 (1974).         In other words, the re-trial shall

be limited to a redetermination of the allocation of fault and

damages under special verdict form question numbers 10, 11, and

12.


C. Bryan Fitzgerald and              /s/ Mark E. Recktenwald
Deborah Day Emerson
for petitioner                       /s/ Paula A. Nakayama

Sue V. Hansen and                    /s/ Sabrina S. McKenna
Charles W. Crumpton
for respondent                       /s/ Richard W. Pollack




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