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                                                             Electronically Filed
                                                             Supreme Court
                                                             SCAP-14-0001363
                                                             07-JUN-2017
                                                             08:53 AM



          IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                               ---o0o---


           MICHAEL PATRICK O’GRADY, individually; and
                 LEILONI O’GRADY, individually,
                     Plaintiffs-Appellants,

                                   vs.

                      STATE OF HAWAIʻI and
         STATE OF HAWAIʻI DEPARTMENT OF TRANSPORTATION,
                     Defendants-Appellees,

                                   and

       THE COUNTY OF HAWAIʻI; HAWAIIAN ELECTRIC COMPANY;
      HAWAIIAN ELECTRIC LIGHT COMPANY; HAWAIIAN ELECTRIC
              INDUSTRIES, INC.; HULU LOLO, INC.;
                  and DOES 1—100, inclusive,

                              Defendants.


                           SCAP-14-0001363

      APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
            (CAAP-14-0001363; CIV. NO. 07-01-0372)

                             JUNE 7, 2017

   RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT COURT JUDGE CRABTREE, IN PLACE OF NAKAYAMA, J., RECUSED
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                 OPINION OF THE COURT BY POLLACK, J.

            This case concerns a negligence action against the

State of Hawai#i and the State of Hawaiʻi Department of

Transportation (collectively, the “State”) involving a rockfall

and related car accident on a state highway.          The Circuit Court

of the Third Circuit (the “circuit court”) determined that,

although the State breached a duty of care owed to the

plaintiffs, the State was not liable because the plaintiffs

failed to prove legal causation.         The issues presented on appeal

are whether the circuit court erred in holding that the State’s

breach of its duty of care was not a legal cause of the

plaintiffs’ injuries and whether the discretionary function

exception applies in this case.       We conclude that the circuit

court misapprehended the relevant standard for evaluating legal

causation; accordingly, we remand the case to the circuit court

for application of the correct standard.         We also address the

applicability of the discretionary function exception.

                              I. BACKGROUND

            Michael and Leiloni O’Grady were driving on Route 11

in the County of Hawaiʻi on March 8, 2007, when a rockfall

occurred.   A boulder and other material fell onto the highway,

and a portion of the rockfall struck the O’Gradys’ vehicle,

resulting in their injuries.




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          At the time of the accident, Route 11 was a public

highway that the State was responsible for maintaining.            Because

of Route 11’s location, it fell within the responsibility of the

State’s Hawaiʻi District (the “Hawaiʻi District”).

          The State’s Rockfall Hazard Rating System project

(“Rockfall Hazard Project” or “RHRS project”) has included the

Hawaiʻi District since the project’s expansion in 2004.            The

project rates rockfall hazards for danger: Class A sites were

determined to be the most dangerous with high potential for

rockfalls, Class B sites were less dangerous, and Class C sites

raised virtually no concerns.       The location of the rockfall in

this case (the “accident site”) was rated as a Class A site on

December 22, 2004, and it remained a Class A site at the time of

the March 8, 2007 accident.

          Rockfall hazards that were classified as Class A sites

were also assessed using a more detailed rating system.            Under

this rating system, the accident site in this case received the

highest possible score for the differential erosion feature and

the differential erosion rates, which concern the geological

character of the slope where the slope consists of two different

materials resulting in differential erosion.          The accident site

also received the highest possible score for the block size

volume, which concerns the potential mass of the material that

was anticipated to fall in the event of a rockfall.


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            Prior to March 8, 2007, the State did not have a

routine ongoing coordinated system in place to protect against

rockfall hazards adjacent to state highways at the time of the

accident.   Hawaiʻi District maintenance employees were not

trained to identify areas with significant rockfall hazards, and

there was minimal integration between the Hawaiʻi Distict

engineer and the State’s Rockfall Hazard Project results.             From

time to time, information from the State’s Rockfall Hazard

Project may have been shared with the Hawaiʻi District; however,

the Hawaiʻi District engineer was not aware of the State’s

Rockfall Hazard Project.

            On December 27, 2007, the O’Gradys filed their first

amended complaint for damages in the circuit court.           The

O’Gradys sought general, special, and exemplary damages against

the State under four theories of liability: negligence,

dangerous condition of public property, vicarious liability, and

loss of consortium.

            A non-jury, bifurcated trial on liability was held by

the circuit court in November and December of 2011.           After

finding that the State owed a duty of care to the O’Gradys and

that it had breached this duty, the circuit court determined

that the State was not liable to the O’Gradys based on its

conclusion that the O’Gradys failed to prove legal causation.

The court later issued “Amended Findings of Fact and Conclusions


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of Law” on May 17, 2012.      The circuit court’s findings of fact

and conclusions of law found that the O’Gradys were injured as a

result of the rockfall and that the State was responsible for

the maintenance of the road where the accident occurred.            The

circuit court found that the accident site was initially rated

as a Class A site on December 22, 2004, and that a Class A site

is one that is determined to be the most dangerous with a high

potential for rockfalls.      The circuit court also found as

follows:

           On occasion, the following might have occurred: (a) the
           State employees may have noticed an area which experienced
           frequent rockfalls on the roadway or the shoulder, (b) the
           State employees may have informed the supervisor, (c) the
           supervisor may have informed the District Engineer, (d) the
           District Engineer may have asked that a geotechnical
           engineer come from Honolulu, (e) the geotechnical engineer
           may have come from Honolulu and undertaken a study, and (f)
           based upon the study, the State may have obtained the
           funding to address the rockfall hazard.

The circuit court determined that in order to reasonably address

the danger of rockfalls adjacent to State highways, the Hawaiʻi

District should have

           (a) had a system of routine, ongoing maintenance, (b)
           trained its maintenance personnel to recognize potential
           rockfall hazards, (c) had the ability to undertake rockfall
           prevention projects which reasonably fell within a roadway
           maintenance budget, and (d) consulted regularly with a
           geotechnical engineer who had information regarding the
           findings of the RHRS project in order to integrate
           information held between them.

The court found that the Hawaiʻi District did not fulfill the

above-listed responsibilities.




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            The circuit court made the following additional

findings of fact, which are challenged on appeal by the

O’Gradys:

            6. The purpose of the RHRS was to identify the rockfall
            hazards adjacent to State highways in order to implement
            remedial work. The intent was to use the information
            garnered from the RHRS project to choose large-scale
            projects which would be funded by the Legislature of the
            State of Hawaiʻi (the “Legislature”) and with Federal
            funding.

            . . . .

            14. However, Plaintiffs have failed to prove that from
            December 22, 2004 until March 8, 2007, it was reasonably
            foreseeable that a rockfall at the Accident Site was so
            imminent that it was necessary for the State to immediately
            address the rockfall potential.

            15. Plaintiffs failed to present evidence from which it
            could be reasonably determined what the cost would have
            been for the work required to eliminate the rockfall hazard
            at the Accident Site prior to March 8, 2007.

            16. According to Plaintiffs’ expert, Dr. John Lockwood, the
            scale of the rockfall at the Accident Site on March 8,
            2007, was approximately 70 cubic yards of material weighing
            between 150 to 175 tons. Although the size of the rockfall
            itself does not necessarily correlate to the scale of work
            which would have been required to eliminate the rockfall
            hazard at the Accident Site prior to March 8, 2007, a fair
            inference is that it would have been a large-scale project.

            17. The cost of the work performed by Janod, Inc. in
            advising State personnel on how to bring down the rock at
            the Accident Site after the March 8, 2007 accident,
            $1,453.22, is not an accurate measure of the cost of the
            work which would have been required to eliminate the
            rockfall hazard at the Accident Site prior to March 8,
            2007. The March 8, 2007 rockfall had significantly altered
            the Accident Site prior to the remedial work performed
            after the rockfall.

            18. Plaintiffs failed to prove that from December 22, 2004
            to March 8, 2007, the Hawaiʻi District had employees and
            equipment to eliminate the rockfall hazard at the Accident
            Site.

            19. Plaintiffs failed to prove that from December 22, 2004
            to March 8, 2007, the Hawaiʻi District had the funds
            available to engage a private entity to eliminate the
            rockfall hazard at the Accident Site.


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          20. Plaintiffs failed to prove that if the Hawaiʻi District
          performed the actions suggested under Paragraph 13 above,
          this would have probably resulted in the Hawaiʻi District
          taking action to eliminate the rockfall hazard at the
          Accident Site between December 22, 2004 to March 8, 2007.

          21. Plaintiffs have failed to prove that wrongful conduct
          on the part of the State, if any, was a substantial factor
          in causing the March 8, 2007 accident and their consequent
          injuries.

          The circuit court concluded that the State owed “a

duty of care to travelers on a state highway to maintain the

highway so it is reasonably safe for travel,” which includes

“the duty to exercise ordinary care to maintain the areas

adjacent to the highway so that the highway is reasonably safe

from rockfalls.”    The court further concluded that the State

“breached this duty of care by not having a routine, coordinated

system of rockfall mitigation at the operational level in the

Hawaiʻi District from December 22, 2004 to March 8, 2007.”

Nonetheless, the circuit court determined in conclusion of law

(“COL”) 4 that the State was not liable to the O’Gradys, based

on its conclusion in COL 3 that the O’Gradys “failed to prove by

a preponderance of the evidence that this breach of the duty of

care was a proximate cause of the March 8, 2007 accident and

their consequent injuries.”

          The circuit court also concluded the following with

regard to the discretionary function exception:

          5. Under HRS § 662-15(1), the State is not liable for its
          acts of its employees in the performance of a
          “discretionary function”. In determining whether the
          discretionary function exception to liability applies, the



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          issue is whether broad policy considerations are involved
          rather than operational decisions regarding routine
          everyday matters. If the former, then the discretionary
          function exception applies and the State is not liable for
          the conduct which falls within the exception.

          6. Ordinary, everyday maintenance of areas adjacent to a
          State highway in order to prevent or mitigate rockfalls
          onto the highway is an operational level activity. The
          decision to undertake a large-scale rockfall prevention or
          mitigation project which requires a specific appropriation
          from the Legislature or Federal funding may fall within the
          discretionary function exception. However, the State
          should not escape liability under the discretionary
          function exception merely by choosing to address rockfalls
          onto a State highway only with large-scale projects and
          declining to use routine, everyday maintenance to address
          the risk.

          The circuit court entered final judgment on December

11, 2014, and the O’Gradys timely appealed.          We granted the

O’Gradys’ request to transfer the appeal to this court.

                        II. STANDARDS OF REVIEW

          The circuit court’s findings of fact are reviewed

under the clearly erroneous standard:

          A finding of fact is clearly erroneous when, despite
          evidence to support the finding, the appellate court is
          left with the definite and firm conviction in reviewing the
          entire evidence that a mistake has been committed. A
          finding of fact is also clearly erroneous when the record
          lacks substantial evidence to support the finding. We have
          defined ‘substantial evidence’ as credible evidence which
          is of sufficient quality and probative value to enable a
          person of reasonable caution to support a conclusion.

In re Grievance Arbitration Between State of Haw. Org. of Police

Officers, 135 Hawaiʻi 456, 461–62, 353 P.3d 998, 1003–04 (2015)

(quoting Daiichi Haw. Real Estate Corp. v. Lichter, 103 Hawaiʻi

325, 337, 82 P.3d 411, 423 (2003)).




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                           Conclusions of law are ordinarily reviewed under the

right/wrong standard.                                      Estate of Klink ex rel. Klink v. State,

113 Hawaiʻi 332, 351, 152 P.3d 504, 523 (2007).                                       Thus, a

conclusion of law that is supported by the trial court’s

findings of fact and reflects an application of the correct rule

of law will not be overturned.                                     Id.   However, when a conclusion

of law presents mixed questions of fact and law, we review it

under the clearly erroneous standard because the court’s

conclusions are dependent on the facts and circumstances of each

individual case.                                 Id.

                                                             III. DISCUSSION

                           The O’Gradys raise two points of error on appeal.

First, the O’Gradys assert that the circuit court erred in

holding that the State’s breach of its duty of care was not a

legal cause of the O’Gradys’ injuries.1                                        Second, the O’Gradys

assert that the circuit court erred in relying on the

discretionary function exception to support its decision.2

                           In order to establish a defendant’s liability for

negligence, a plaintiff must prove (1) a duty recognized by the

																																																								
             1
            The O’Gradys assert that this error is reflected in the circuit
court’s findings and conclusions, in particular, FOFs 6, 14, 15, 16, 17, 18,
19, 20, 21, and COLs 3-4.
             2
            The O’Gradys assert that this error is reflected in the circuit
court’s findings and conclusions, in particular, COLs 5 and 6, and also in
all other findings and conclusions the circuit court relied on in determining
liability, including FOFs 6, 14, 15, 16, 17, 18, 19, 20, 21, and COLs 3-4.




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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.                                      See, e.g., Doe

Parents No. 1 v. Dep’t of Educ., 100 Hawaiʻi 34, 68, 58 P.3d 545,

579 (2002).                        In this case, we only review the third of these

four elements--legal cause--as the circuit court’s conclusions

with respect to duty and breach have not been raised on appeal

and the lower court has not yet ruled on the issue of damages.

We also address the application of the discretionary function

exception to this case.

                                                           A. Causation Analysis

                           This court has long required a plaintiff to prove that

the defendant’s conduct was the legal cause of his or her

injuries as one of the prima facie elements of negligence.                                      See

Mitchell v. Branch, 45 Hawaiʻi 128, 132, 363 P.2d 969, 973 (1961)

(adopting the Restatement (First) of Torts § 431’s (Am. Law.

Inst. 1934) [hereinafter First Restatement] definition of “legal

cause” as the “best definition and the most workable test of

proximate or legal cause”).3                                      “Legal cause” refers to a cause

																																																								
	     3
        	   Although the term “legal cause” is synonymous with the term
“proximate cause,” this court has generally used the term “legal cause.”
Estate of Klink ex rel. Klink v. State, 113 Hawaiʻi 332, 338 n.3, 152 P.3d
504, 510 n.3 (2007). However, we suggest that the Standing Committee on the
Hawaiʻi Standard Civil Jury Instructions consider whether it would be
appropriate to eliminate reference of the term “legal cause” as it may
unnecessarily complicate the factual determinations a jury is requested to
make. See Restatement (Third) of Torts: Phys. & Emot. Harm Special Note on
Proximate Cause (2010) (discussing the reasons why the Third Restatement does
                                                             (continued . . .)


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that is legally sufficient to result in liability.            See Black’s

Law Dictionary 265 (10th ed. 2014) (defining “proximate cause”).

Our law does not hold a defendant liable for every possible

result of his or her conduct as the causal sequence resulting

from a single action could theoretically continue indefinitely

and particular policy concerns weigh in favor of limiting

liability under certain circumstances.          The range of injuries

that a defendant is liable for is sometimes referred to as the

scope of the defendant’s liability.          Thus, the term “legal

cause” embodies both the concept of factual causation and the

defendant’s scope of liability.4          See Restatement (Third) of

Torts: Phys. & Emot. Harm Special Note on Proximate Cause (2010)

[hereinafter Third Restatement] (explaining that the term “legal

cause” encompasses both factual cause and scope of liability).




(. . . continued)
not use the “legal cause” terminology in its formulation of the elements of
negligence).
      4
            It is noted that our caselaw often refers to the existence of
factual causation as the presence of the requisite “causal connection” or
“causal relationship.” See, e.g., Winfrey v. GGP Ala Moana LLC, 130 Hawaiʻi
262, 272, 308 P.3d 891, 901 (2013) (noting that there was no “causal
connection” between the defendant’s conduct and plaintiff’s injuries);
Taylor-Rice v. State, 91 Hawaiʻi 60, 76, 979 P.2d 1086, 1102 (1999)
(“[D]riving . . . while under the influence of intoxicating liquor does not
constitute actionable negligence or contributory negligence unless there is a
causal relationship between the intoxication and the accident.” (second
alteration in original) (quoting McKenna v. Volkswagenwerk
Aktiengesellschaft, 57 Haw. 460, 468, 558 P.2d 1018, 1024 (1977))); Mitchell,
45 Haw. at 131, 363 P.2d at 973 (“To impose liability on a negligent party
for an injury to another, there must be a causal connection between the
negligent act and the injury.”).




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          We apply a two-step analysis for determining whether

the defendant’s conduct was the legal cause of the plaintiff’s

injuries; the defendant’s conduct is the legal cause of the harm

to the plaintiff if

          (a) [the actor’s] conduct is a substantial factor in
          bringing about the harm, and

          (b) there is no rule of law relieving the actor from
          liability because of the manner in which his [or her]
          negligence has resulted in the harm.

Taylor-Rice v. State, 91 Hawaiʻi 60, 74, 979 P.2d 1086, 1100

(1999) (format altered) (quoting Mitchell, 45 Haw. at 132, 363

P.2d at 973).   This analysis is often referred to in our caselaw

as the Mitchell test.     The first prong of the Mitchell test

involves a factual determination--whether the defendant’s

conduct was a substantial factor in bringing about the harm.

McKenna v. Volkswagenwerk Aktiengesellschaft, 57 Haw. 460, 465,

558 P.2d 1018, 1022 (1977).      And the second prong involves a

legal determination--whether there is any rule of law relieving

the actor from liability because of the manner in which the harm

resulted from the conduct.      Id.    The requirement that a

plaintiff prove legal causation may be better understood as a

requirement that the plaintiff prove that the harm was a legal

result of the defendant’s conduct.




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     1.   The First Mitchell Prong: Whether the defendant’s
          conduct was a substantial factor in bringing about the
          harm.

          In establishing legal causation, the plaintiff must

first establish that the requisite factual, causal connection is

present under the first Mitchell prong--“the negligence of the

defendant was more likely than not a substantial factor in

bringing about the result complained of.”         See McKenna, 57 Haw.

at 465-66, 558 P.2d at 1022.      “The inquiry under the first arm

of the Mitchell test is essentially whether the act of the

defendant was a cause in fact of the plaintiff’s injury.”            Id.

          The substantial factor analysis comes from the First

Restatement and was adopted in Mitchell.         45 Haw. at 132, 363

P.2d at 973.   In applying the first prong of the Mitchell test,

the court elaborated that the defendant’s conduct “need not have

been the whole cause or the only factor”--“[i]t was enough that

his [or her] negligence was a substantial factor in causing

plaintiff’s injuries.”     Id. at 132, 363 P.2d at 973 (citing

First Restatement §§ 431, 433, 435); see also Taylor-Rice, 91

Hawaiʻi at 74, 979 P.2d at 1100 (same); Knodle v. Waikiki Gateway

Hotel, Inc., 69 Haw. 376, 389-90, 742 P.2d 377, 386 (1987)

(observing that our law does not require that the event would

not have occurred absent the conduct but instead covers the

situation where two or more causes contribute to the harm).




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                           The comments to the First Restatement provide

insightful commentary on the meaning of “substantial factor.”

The comments indicate that the term “substantial” was meant to

avoid the imposition of liability for conduct that has an

insignificant impact in creating the causal circumstances

leading to the injuries:

                           The word “substantial” is used to denote the fact that the
                           defendant’s conduct has such an effect in producing the
                           harm as to lead reasonable men to regard it as a cause,
                           using that word in the popular sense in which there always
                           lurks the idea of responsibility, rather than in the so-
                           called “philosophic sense,” which includes every one of the
                           great number of events without which any happening would
                           not have occurred. Each of these events is a cause in the
                           so-called “philosophic sense,” yet the effect of many of
                           them is so insignificant that no ordinary mind would think
                           of them as causes.

First Restatement § 431 cmt. a (emphases added).                                 In

distinguishing between substantial and remote causes, the

drafters of the First Restatement used the term “substantial

factor” to denote that the defendant’s conduct may be reasonably

regarded as a cause of the injury.                                 Id.   This is reiterated in a

subsequent comment from the First Restatement in which the

drafters note that the relevant issue is “whether the

defendant’s negligence has a substantial as distinguished from a

merely negligible effect in bringing about the plaintiff’s

harm.”                Id. § 431 cmt. b.5                   Thus, the drafters of the First

																																																								
             5
                           The comment states the following:

                           In such a case, the question, whether the defendant’s
                           negligence has a substantial as distinguished from a merely
                                                                            (continued . . .)


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Restatement did not contemplate that the substantial factor

requirement would operate as a significant hurdle to plaintiffs

in proving legal causation.

            Similarly, many jurisdictions recognize that the term

“substantial” denotes a factor that has had more than a

negligible or trivial impact on the circumstances leading to the

cause of the injury; and, thus, a substantial factor is one that

a reasonable person would consider to have contributed to the

harm.   Raven H. v. Gamette, 68 Cal. Rptr. 3d 897, 901 (Cal. Ct.

App. 2007) (“A substantial factor in causing harm is a factor

that a reasonable person would consider to have contributed to

the harm.    It must be more than a remote or trivial factor.”

(quoting Judicial Council of California Civil Jury Instruction §

430 (2007))); Komlodi v. Picciano, 89 A.3d 1234, 1254 (N.J.

2014) (“A substantial factor is one that is ‘not a remote,

trivial or inconsequential cause.’” (quoting New Jersey’s Model

Jury Charge (Civil) § 6.13 (May 1998))); Verdicchio v. Ricca,



(. . . continued)
            negligible effect in bringing about the plaintiff’s harm,
            does not arise if the testimony clearly proves that the
            harm is from a cause other than the actor’s negligence.
            Indeed, the testimony often makes it clear that, if the
            defendant’s conduct had any effect, the effect was
            substantial. It is only where the evidence permits a
            reasonable finding that the defendant’s conduct had some
            effect that the question whether the effect was substantial
            rather than negligible becomes important.

First Restatement § 431 cmt. b (emphasis added).	




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843 A.2d 1042, 1056 (N.J. 2004) (“Conduct is a substantial

factor if it would ‘lead the trier of fact, as a reasonable

person, to regard it as a cause, using that word in the popular

sense.’” (quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law:

Liability & Litigation § 4.03 (West Grp. 2002))); Jeter v.

Owens-Corning Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. Ct.

1998) (noting that the Pennsylvania Supreme Court has “cited

with approval the comments to § 431 of the Restatement which

defined ‘substantial factor’ as ‘conduct [that] has such an

effect in producing the harm as to lead reasonable men to regard

it as a cause, using that word in the popular sense’” (quoting

Restatement (Second) of Torts § 431 (1965) [hereinafter Second

Restatement]); Lewis v. State, 73 S.W.3d 88, 93 (Tenn. Ct. App.

2001) (distinguishing substantial causes from those that are

“merely causes in the ‘philosophic sense’”); State v. Rash, 659

N.W.2d 189, 192 (Wis. Ct. App. 2003) (“The phrase ‘substantial

factor’ denotes that the defendant’s conduct has such an effect

in producing the harm as to lead the trier of fact, as a

reasonable person, to regard it as a cause, using that word in

the popular sense.” (quoting Merco Distrib. Corp. v. Commercial

Police Alarm Co., 267 N.W.2d 652, 654 (Wis. 1978))); see also

Menne v. Celotex Corp., 861 F.2d 1453, 1459 (10th Cir. 1988)

(observing that Nebraska uses the term “substantial” to

distinguish from situations where the causation “is so slight as


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not to be a substantial factor”); Barrett v. Harris, 86 P.3d

954, 961 (Ariz. Ct. App. 2004) (noting that the Arizona Supreme

Court has indicated that “if it could be assured that jurors

understood the term ‘substantial factor’ to mean not imaginary,

illusive or insignificant, the court would not dispute its use”

(citing McDowell v. Davis, 448 P.2d 869, 871–72 (Ariz. 1968))).

                           This feature of negligence law was further clarified

by the Third Restatement.                                  The Third Restatement no longer

employs the “substantial factor” terminology, § 36 cmt. a,

providing instead for the following limitation on the

defendant’s liability: “When an actor’s negligent conduct

constitutes only a trivial contribution to” the circumstances

that factually cause the harm under § 27, “the harm is not

within the scope of the actor’s liability.”                                 Id. § 36.

Accordingly, instead of using the “substantial factor”

formulation, the Third Restatement defines a defendant’s scope

of liability to exclude liability for injuries under

circumstances where the defendant’s conduct was only a trivial

contribution to producing the harm and there were multiple

sufficient causes of the harm.6


																																																								
             6
            The Third Restatement also no longer uses the term “legal cause,”
which the previous restatements used to encompass the two distinct inquiries
of factual cause and proximate cause. Third Restatement § 26 cmt. a. The
comments to the Third Restatement note the “importance of distinguishing
clearly between ‘factual cause’ and ‘proximate cause.’” Id. Accordingly,
the Third Restatement separates “factual cause” from “proximate cause” (also
                                                             (continued . . .)


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            In light of the adoption of the substantial factor

analysis in Mitchell for legal causation, this court has

rejected jury instructions that deviate from the substantial

factor analysis.      In Knodle, the trial court instructed the jury

that legal cause of an injury was defined as “that cause which

in direct, unbroken sequence, produced the injury, and without

which the injury would not have occurred.”           69 Haw. at 392, 742

P.2d at 387.     Knodle rejected this instruction because it was

essentially “a variant of the ‘but for’ rule” and thus placed

“emphasis on ‘factual quantum’ rather than ‘legal significance’

in the circumstances,” both of which were contrary to the

“substantial factor” test adopted by this court in Mitchell.

Id.   Additionally, Knodle expressed concern that the trial

court’s causation instruction would preclude recovery where harm

(. . . continued)
referred to as the defendant’s “scope of liability”) into separate elements
of the negligence tort. Id.

            The Third Restatement’s revised approach to causation “has been
embraced by a number of courts and, properly understood, merely represents a
shift in terminology.” See Drumgold v. Callahan, 707 F.3d 28, 50 n.15 (1st
Cir. 2013) (citing June v. Union Carbide Corp., 577 F.3d 1234, 1240 (10th
Cir. 2009); Thompson v. Kaczinski, 774 N.W.2d 829, 837 (Iowa 2009)); see also
June, 577 F.3d at 1239 (noting that the Third Restatement’s treatment of
multiple causes is “more precise, and clearer,” than the Second Restatement
and that the “ultimate legal standards in the two Restatements are
essentially identical for [the court’s] purposes”); Otal Invs. Ltd. v. M.V.
Clary, 494 F.3d 40, 59 (2d Cir. 2007) (applying the Third Restatement’s
analysis for factual causation and scope of liability); Reigel v.
SavaSeniorCare L.L.C., 292 P.3d 977, 987 (Colo. App. 2011) (agreeing with the
Tenth Circuit’s decision in June, supra, and holding that Colorado required
that plaintiff establish “but-for” causation rather than Colorado’s
“substantial risk” test); Ford Motor Co. v. Boomer, 736 S.E.2d 724, 730 (Va.
2013) (agreeing with the Third Restatement’s elimination of the “substantial
factor” terminology).




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resulted from multiple causes, none of which would have been

sufficient to cause the injury on its own.         See id. at 389, 742

P.2d at 386.   Indeed, such a standard would be contrary to

Mitchell’s substantial factor analysis--that the defendant’s

conduct “need not have been the whole cause or the only factor”

because it is sufficient if the defendant’s negligence “was a

substantial factor in causing plaintiff’s injuries.”           Mitchell,

45 Haw. at 132, 363 P.2d at 973.         The Knodle court clarified

that our law recognizes that a single injury may be the result

of multiple contributing causes.         See also Montalvo v. Lapez, 77

Hawaiʻi 282, 288, 884 P.2d 345, 351 (1994) (noting that a jury

instruction focusing only on actual causation without the

“substantial factor” language was not helpful to the jury

because it was an insufficient explanation of the requisite

factual causation as defined by Mitchell).

          In summary, the term “substantial factor” is not meant

to serve as a significant burden to plaintiffs in establishing

factual causation.    The first prong of the Mitchell test

requires that the defendant’s conduct was a substantial, as

opposed to a negligible or trivial, factor in causing the harm.

In other words, a substantial factor is one that a reasonable

person would consider to have contributed to the harm.            The

purpose of the substantial factor requirement is to preclude

liability for injuries that are only tenuously connected to the


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defendant’s conduct because the conduct would not be considered

by a reasonable person to have contributed to the harm.

             2.            The Second Mitchell Prong: Whether any rule of law
                           relieves the actor from liability because of the
                           manner in which the harm resulted from the defendant’s
                           conduct.

                           The second part of the causation analysis considers

whether there are policy concerns or rules of law that would

prevent imposition of liability on the negligent party even

though the actor’s negligence was a substantial factor in

bringing about the harm.                                       Estate of Klink ex rel. Klink v.

State, 113 Hawaiʻi 332, 362, 152 P.3d 504, 534 (2007).                                      These

rules and policy concerns of the second Mitchell prong are based

on the manner in which the defendant’s negligence caused the

harm.              Taylor-Rice, 91 Hawaiʻi at 74, 979 P.2d at 1100.                          Thus,

the second Mitchell prong limits the range of injuries a

defendant will be held accountable for, and, thus, it is

“actually a rule of restrictive liability considered as a

question of causation.”                                       Mitchell, 45 Haw. at 133, 363 P.2d at

974.

                           One of the most common rules of law that is applied

under the second Mitchell prong is the rule with respect to

superseding causes.7                                       A separate act that occurs after the

																																																								
             7
            Aside from superseding causes, other “rule[s] of law relieving
the actor from liability,” Taylor-Rice, 91 Hawai#i at 74, 979 P.2d at 1100,
include cases where “the tortious aspect of the actor’s conduct was of a type
                                                              (continued . . .)


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defendant’s culpable conduct will be considered a superseding

cause that relieves the defendant of liability if the second act

“break[s] the chain of causation.”         See Taylor-Rice, 91 Hawaiʻi

at 76, 979 P.2d at 1102.       Whether a later act is considered to

be a superseding cause depends on whether the second act was not

foreseeable at the time the defendant’s conduct occurred.             Id.

(observing that a “superseding cause” is considered to “break

the chain of causation” where “under no rational interpretation

of the evidence[] could the later act of negligence have been

reasonably foreseen” (quoting McKenna, 57 Haw. at 466, 558 P.2d

at 1022)).

             Although the plaintiff bears the burden of proving

each of the elements of negligence by a preponderance of the

evidence, including both prongs of the Mitchell test, e.g., Doe

v. Grosvenor Props. (Haw.) Ltd., 73 Haw. 158, 169, 829 P.2d 512,

518 (1992), the plaintiff will ordinarily satisfy his or her

evidentiary burden with respect to legal causation by

establishing, by a preponderance of the evidence, that the

defendant’s conduct was a substantial factor in bringing about

(. . . continued)
that does not generally increase the risk of th[e] harm [that it caused],”
Third Restatement § 30; certain applications of the “preexisting conditions
and unforeseeable harm” rule, id. § 31 & cmt. c; the limitations to the
“rescue doctrine”, id. § 32 & cmt. c; the exception to the rule governing the
scope of liability for intentional and reckless tortfeasors, id. § 33 & cmt.
f; and the limitations to the rule that makes actors liable for enhanced harm
due to efforts of third parties to render medical or other aid, id. § 35 &
cmt. c. See also Second Restatement §§ 435—61.




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the harm.                     In other words, although the plaintiff is required to

establish both prongs of legal causation as part of its prima

facie case, additional facts are typically not involved

regarding the second prong.                                See Third Restatement § 29 cmt. a

(“Although scope of liability is an element of a prima facie

case, facts beyond those established for the other elements of

the tort are almost never involved.”).                                  This is because the

second prong “functions as a limitation on liability in a select

group of cases, operating more like an affirmative defense,

although formally it is not one.”                                 Id.

                           Because the second Mitchell prong functions as a rule

of restrictive liability, a plaintiff is not required to prove

the non-application of every possible rule or policy that could

theoretically apply to a particular case.8                                 For example, a

																																																								
      8
            The ICA has previously held “that, although the plaintiff must
prove that no other cause is a superseding cause . . ., the ‘burden arises
only when defendant produces sufficient evidence to raise the issue.’”
Keomaka v. Zakaib, 8 Haw. App. 518, 530, 811 P.2d 478, 485–86 (1991) (quoting
Leyson v. Steuermann, 5 Haw. App. 504, 517 n.11, 705 P.2d 37, 47 n.11 (1985),
overruled on other grounds by Bernard v. Char, 79 Hawai#i 362, 903 P.2d 667
(1995)). This is similar to the burden-shifting approach that this court
adopted in strict products liability cases, in which plaintiffs would
“shoulder the ultimate burden of proof,” Stender v. Vincent, 92 Hawai#i 355,
373, 992 P.2d 50, 68 (2000), or “more precisely, the risk of non-persuasion,”
on the issue of substantial change only after the defendant has “allege[d]
the substantial changes he [or she] expects [the] plaintiff to try to
disprove,” id. at 372, 992 P.2d at 67 (quoting Southwire Co. v. Beloit E.
Corp., 370 F. Supp. 842, 857 (E.D. Pa. 1974)). We agree with the ICA’s
placement of the burden of proof with respect to superseding causes in
negligence cases. Just as plaintiffs in strict products liability cases
should not be saddled “with the burden of proving a negative from the
outset,” so should plaintiffs not have the initial burden as to superseding
causes in negligence cases. Id. at 373, 992 P.2d at 68. Thus, in negligence
cases, the defendant bears the initial burden of introducing “evidence to
raise the issue of superseding cause” before the ultimate burden could shift
                                                              (continued . . .)


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plaintiff is not required to prove the absence of a superseding

cause as a part of its prima facie case of negligence.               Indeed,

evidence regarding a superseding cause would only become

relevant if the circumstances leading to the injuries in a

particular case indicate that a superseding cause may have been

involved.

      3.    The circuit court decision in this case.

            In reviewing the circuit court’s findings and

conclusions concerning causation, it is clear that the circuit

court misapprehended the relevant legal standard.               The court

made no finding as to whether the State’s negligence was a

substantial factor in bringing about the O’Gradys’ injuries.

Instead, it appears that the circuit court considered whether

performance of the State’s duty would have completely prevented

any injury to the O’Gradys.       Additionally, the circuit court may

have combined the causation element with the breach element by

requiring that the O’Gradys prove additional “wrongful conduct”

that caused their injuries, and the court may also have blended

the causation element with the duty element by evaluating

whether the rockfall was foreseeable.




(. . . continued)
to the plaintiff of disproving the alleged superseding cause.    Keomaka, 8
Haw. App. at 530, 811 P.2d at 485–86.



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      a. Circuit Court’s Determination that the O’Gradys Failed to
    Prove that Performance of the State’s Duty Would Have Prevented
                       the Rockfall From Occurring

                           The circuit court appears to have required the

O’Gradys to prove that the State’s fulfillment of its duty of

care would have prevented the rockfall from occurring.                                  In

finding of fact (“FOF”) 13, the circuit court found that the

State should have undertaken several specific measures “in order

to reasonably address the danger of rockfalls adjacent to the

State highways.”9                                  This finding is consistent with the circuit

court’s conclusion that the State breached its duty of care “by

not having a routine, coordinated system of rockfall mitigation

at the operational level.”                                  The circuit court also found in FOF

20 that the O’Gradys “failed to prove” that, if the State

performed its duty by complying with the listed measures in FOF

13, “this would have probably resulted in the [State] taking

action to eliminate the rockfall hazard” prior to the O’Gradys’

accident.                     In other words, the circuit court determined that the


																																																								
             9
            The circuit court found that in order to reasonably address the
danger of rockfalls adjacent to State highways, the Hawaiʻi District of the
State should have

                           (a) had a system of routine, ongoing maintenance, (b)
                           trained its maintenance personnel to recognize potential
                           rockfall hazards, (c) had the ability to undertake rockfall
                           prevention projects which reasonably fell within a roadway
                           maintenance budget, and (d) consulted regularly with a
                           geotechnical engineer who had information regarding the
                           findings of the RHRS project in order to integrate
                           information held between them.




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O’Gradys did not prove that the performance of the State’s duty

would have prevented the rockfall from occurring.

                           As discussed, the causation element of negligence

requires proof that the defendant’s conduct was a legal cause of

the harm.                     The first Mitchell prong requires a determination

that the defendant’s conduct was a substantial factor in

bringing about the harm.                                   Taylor-Rice, 91 Hawaiʻi at 74, 979 P.2d

at 1100.                   Instead of considering whether the State’s conduct was

a substantial factor in bringing about the harm, the circuit

court considered whether the State’s performance of its duty

would have prevented the rockfall from occurring.                                   The circuit

court’s analysis is essentially the same as the jury instruction

that this court rejected in Knodle in that it frames the issue

of legal cause as “that ‘without which the injury would not have

occurred.’”10                          See Knodle, 69 Haw. at 389, 392, 742 P.2d at 386-

87 (rejecting a rule that “the defendant’s conduct is not a

cause of the event[] if the event would have occurred without

it”).              A court may not frame its legal causation analysis in a

manner that does not allow for multiple causes of a single

injury.                 Id. at 389-90, 742 P.2d at 386-87 (observing that under

the Mitchell test, the defendant’s conduct “need not have been
																																																								
	     10
            In Knodle, the trial court defined “proximate cause” of an injury
as “that cause which in direct, unbroken sequence, produces the injury, and
without which the injury would not have occurred.” 69 Haw. at 392, 742 P.2d
at 387.	




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the whole cause or the only factor” and that multiple causes may

each be a cause even if each cause alone would not have been

sufficient to cause the harm (quoting Mitchell, 45 Haw. at 132,

363 P.2d at 973)).

          Additionally, the circuit court’s apparent assumption

that the only means to prevent the accident was to eliminate the

rockfall is also flawed because, had the State performed the

duties listed in FOF 13, the State may have taken other

precautions to avoid the accident such as warning travelers of

the potential hazard or closing the road.         In any event, the

analysis under the first prong of the Mitchell test is whether

the State’s conduct was a substantial factor in causing the

O’Gradys’ injuries based on the facts presented.           As the Knodle

court explained,

          It was error . . . to speak of legal cause as that “without
          which the injury would not have occurred” in the face of
          our holding in Mitchell v. Branch, where in affirming a
          judgment against the defendant we said that “[i]t was
          enough that his negligence was a substantial factor in
          causing plaintiff’s injuries.”

Knodle, 69 Haw. at 392, 742 P.2d at 387 (second alteration in

original) (quoting Mitchell, 45 Haw. at 132, 363 P.2d at 973).

          The circuit court’s analysis may have been influenced

by a concern that the State did not have funds available to take

appropriate remedial measures, as FOFs 15-19 considered the

availability of funds and equipment to eliminate the rockfall




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hazard.11                   The circuit court appears to have reasoned that, even

if the State had satisfied its duties, the accident would have

occurred anyway because of the lack of funds and equipment to

properly remedy the accident site.                                  However, the State’s conduct

“need not have been the whole cause or the only factor in

bringing about the harm.”                                  See Taylor-Rice, 91 Hawaiʻi at 74, 979

P.2d at 1100; Knodle, 69 Haw. at 389-90, 742 P.2d at 386.

Further, a contention that the State lacked the necessary funds

to remedy a particular hazard may be one of the many factors--

each of which is not outcome-determinative on its own--that are

relevant to the balancing analysis generally utilized in

determining whether to impose a duty to remediate that hazard,

but it is not part of the causation analysis.12                                 In this case,

																																																								
             11
            FOFs 15, 16, and 17 concerned the cost of eliminating the
rockfall hazard and included the circuit court’s assessment that the O’Gradys
“failed to present evidence” sufficient for the court to determine the cost
of eliminating the rockfall hazard. In FOF 18, the court found that the
O’Gradys “failed to prove” that “the Hawaiʻi District had employees and
equipment to eliminate the rockfall hazard.” In FOF 19, the court found that
the O’Gradys “failed to prove” that “the Hawaiʻi District had the funds
available to engage a private entity to eliminate the rockfall hazard at the
Accident Site.”
             12
            Pulawa emphasized that this court has considered relevant the
following factors in the course of determining whether to impose a duty:

                           [W]hether a special relationship exists, the foreseeability
                           of harm to the injured party, the degree of certainty that
                           the injured party suffered injury, the closeness of the
                           connection between the defendants’ conduct and the injury
                           suffered, the moral blame attached to the defendants, the
                           policy of preventing harm, the extent of the burden to the
                           defendants and consequences to the community of imposing a
                           duty to exercise care with resulting liability for breach,
                           and the availability, cost, and prevalence of insurance for
                           the risk involved.
                                                                                   (continued . . .)


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the issue of duty is not before us.         See generally Taylor-Rice,

91 Hawai#i at 70, 979 P.2d at 1096 (defining the State’s duty

with respect to designing, constructing, and maintaining public

highways).

             Thus, the O’Gradys were not required to prove that the

State’s performance of its duty would have probably prevented

the accident from occurring or to refute the hypothetical that,

even if the State had satisfied its duties, the accident would

have occurred anyway.      Rather, it was necessary for the O’Gradys

to establish that the State’s conduct was a substantial factor

in bringing about their injuries.          To the extent that there were

other causes of the O’Gradys’ injuries, the plaintiffs only

needed to prove that the State’s tortious conduct was “a

substantial factor in bringing about the harm.”            E.g., id. at

74, 979 P.2d at 1100.      Accordingly, the circuit court erred to

the extent it required the O’Gradys to prove that the State’s

(. . . continued)
Pulawa v. GTE Hawaiian Tel, 112 Hawaiʻi 3, 12, 143 P.3d 1205, 1214 (2006)
(alteration in original) (quoting Blair v. Ing, 95 Hawai#i 247, 260, 21 P.3d
452, 465 (2001)). Notably, the burden to defendants and the consequences of
imposing a duty to exercise care with resulting liability are merely
components of the multifactor analytical framework. Id. Pulawa also
reiterates that the determination of whether duty is owed requires “the
considerations of policy which favor the [plaintiff’s] recovery against those
which favor limiting the [defendant’s] liability” and that “[t]he question of
whether one owes a duty to another must be decided on a case-by-case basis.”
Id. (alterations in original) (quoting Blair, 95 Hawai#i at 259—60, 21 P.3d at
464—65); see also Molfino v. Yuen, 134 Hawaiʻi 181, 184-85, 339 P.3d 679, 682-
83 (2014) (“Whether a duty exists is a ‘question of fairness that involves a
weighing of the nature of the risk, the magnitude of the burden of guarding
against the risk, and the public interest in the proposed solution’” (quoting
Hao v. Campbell Estate, 76 Hawai#i 77, 80, 869, P.2d 216, 219 (1994))).



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satisfactory performance of its duties would have likely

resulted in elimination of the rockfall hazard.             By extension,

the circuit court’s FOFs 18, 19, and 20 are clearly erroneous as

they appear to be based on a misapprehension of the law.

    b. Circuit Court’s Conclusion that the O’Gradys Failed to Prove
         that the State’s Wrongful Conduct Caused the Injuries

             The circuit court may also have combined the causation

element with the breach element.            In FOF 21, the circuit court

concluded that the O’Gradys “failed to prove that wrongful

conduct on the part of the State, if any, was a substantial

factor in causing the March 8, 2007 accident and their

consequent injuries.”        Thus, the circuit court’s finding may

have been based on an understanding that the O’Gradys were

required to prove that the State engaged in “wrongful conduct”

and that this “wrongful conduct” was a substantial factor with

respect to the O’Gradys’ injuries.           However, under Hawaiʻi law,

the State may be held liable for breach of a duty to mitigate a

hazard without a showing of “wrongful conduct.”             For example, in

Klink, the State breached its “duty to maintain the highway in a

reasonably safe condition, which included the duty to mitigate

and warn of known hazards.”         113 Hawaiʻi at 356-61, 152 P.3d at

528-33.     The Klink court determined that the trial court

“clearly erred when it found that the State’s failure to install

[the necessary corrective measure], to take other remedial



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action, or to warn adequately of the severity of the hazard

faced by motorists on the bypass during moderate to heavy rains

was not a substantial factor in bringing about” the plaintiff’s

death.   Id. at 362, 152 P.3d at 534.       Thus, the appropriate

analysis was whether the State’s breach was a substantial factor

in bringing about the harm, not whether affirmative “wrongful

conduct” on the State’s part was a substantial factor in

bringing about the harm.      See also Kahoʻohanohano v. Dep’t of

Human Servs., 117 Hawaiʻi 262, 306, 178 P.3d 538, 582 (2008)

(affirming circuit court finding that the Department of Human

Services was the legal cause of plaintiff’s injuries based on

its failure to conduct a reasonable investigation into a report

of child abuse); Taylor-Rice, 91 Hawaiʻi at 75, 979 P.2d at 1101

(determining that the circuit court did not err in finding

factual causation because the State’s breach of its duty to

maintain a guardrail in a reasonably safe condition could be

deemed a substantial factor in causing the plaintiff’s

injuries).   Accordingly, to the extent that the circuit court

required the O’Gradys to prove an affirmative, wrongful act in

addition to the State’s breach, it was error, and the circuit

court’s FOF 21 is clearly erroneous.




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    c. Circuit Court’s Finding That the O’Gradys Failed to Establish
                      the Imminence of the Rockfall

                           The circuit court may have also overlapped the issue

of causation with the issue of whether a duty was owed.                              In FOF

14, the circuit court found that the O’Gradys failed to

establish the foreseeability of the rockfall:

                           However, Plaintiffs have failed to prove that from December
                           22, 2004 until March 8, 2007, it was reasonably foreseeable
                           that a rockfall at the Accident Site was so imminent that
                           it was necessary for the State to immediately address the
                           rockfall potential.

Since the circuit court also concluded that the State breached

its duty to the O’Gradys to maintain the highway so that it was

reasonably safe from rockfalls, it appears that the circuit

court considered FOF 14 as relevant to the issue of causation.13

                           Foreseeability of the risk associated with one’s

conduct is an issue that relates to the duty of care.                              In Pulawa

v. GTE Hawaiian Tel, this court discussed the concept of

foreseeability in the context of duty: “The test of

foreseeability ‘is whether there is some probability of harm

sufficiently serious that a reasonable and prudent person would

take precautions to avoid it.’”                              112 Hawaiʻi 3, 11-14, 143 P.3d

1205, 1213-16 (2006) (quoting Knodle, 69 Haw. at 388, 742 P.2d

at 385 (1987)).                               Thus, foreseeability, as it relates to duty, is

																																																								
	     13
         	  The O’Gradys’ opening brief indicates that this finding concerns
the issue of causation, and it does not appear that the State’s answering
brief disagrees.	




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a question of law that takes into account the presence and

extent of the risks associated with particular conduct.            Id.;

see also Third Restatement § 7 cmt. j (“A no-duty ruling

represents a determination, a purely legal question, that no

liability should be imposed on actors in a category of cases.”).

             Foreseeability in the context of legal causation is an

issue that arises by application of the second prong of the

Mitchell test; it is not relevant to the first prong of the

Mitchell test.    For example, the question of foreseeability

arises with respect to a superseding or intervening cause, which

raises the issue of whether a subsequent act or occurrence in

the causal sequence was foreseeable.        If the subsequent act or

occurrence was not reasonably foreseeable under any rational

interpretation of the evidence, then it is considered to “break

the chain of causation,” and the defendant is relieved of

liability.    Taylor-Rice, 91 Hawaiʻi at 76, 979 P.2d at 1102

(quoting McKenna, 57 Haw. at 466, 558 P.2d at 1022).           Thus,

assuming that the defendant’s conduct breached a duty of care to

the plaintiff and that this conduct was a substantial factor in

causing the plaintiff’s injuries, the remaining issue is whether

a defendant should be relieved of liability because a subsequent

act or occurrence was not reasonably foreseeable under any

rational view of the evidence.       Id.; see Third Restatement § 34

cmt. e; see also Pulawa, 112 Hawaiʻi at 13, 143 P.3d at 1215


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(noting that foreseeability that pertains to legal cause

“relates to remoteness rather than the existence of a duty”).

                           Accordingly, as FOF 14 concerns the foreseeability of

the risks associated with the defendant’s conduct (i.e., that

the plaintiffs failed to prove the “rockfall at the Accident

Site was so imminent that it was necessary for the State to

immediately address the rockfall potential”), it is not relevant

to the issue of causation.                                 In other words, the circuit court’s

reference to the imminence of the rockfall relates to the

foreseeability of the risks associated with the State’s conduct,

and any such consideration of the foreseeability of the risks

relates to the issue of duty and not causation.                                Accordingly, to

the extent the court considered FOF 14 as related to the

question of causation, it was error.14

                           Further, there does not appear to be any superseding

or intervening cause asserted by the State that would relieve it

from liability under the second prong of the Mitchell test.                                The

court in Klink determined that the State’s breach of its duty of

care to maintain the roads in a reasonably safe condition at the

site of the accident was the legal cause of a motorist’s

																																																								
      14
            It is noted that our law does not support the proposition that a
plaintiff must prove that a risk is imminent in order for a reasonably
prudent person to protect against it. The question of foreseeability as it
relates to duty “is whether there is some probability of harm sufficiently
serious that a reasonable and prudent person would take precautions to avoid
it.” Pulawa, 112 Hawaiʻi at 12, 143 P.3d at 1214.




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injuries where water runoff created sheet flow.          Klink, 113

Hawaiʻi at 361-63, 152 P.3d at 533-35.        In considering the second

arm of the Mitchell analysis--whether there were any policy

concerns or rules of law that would prevent imposition of

liability--the court observed that the State is not the insurer

of absolute personal safety on highways.         Id. at 362, 152 P.3d

at 534.   However, Klink concluded that the harm fell within the

State’s scope of liability, noting that the State did not allege

any contributory negligence or any other superseding cause that

would relieve the State of liability.        Id.

             Similar to Klink, the evidence in this case does not

indicate that there is contributory negligence or any

superseding or intervening event that would relieve the State of

liability.    Nonetheless, the State argues that it should be

relieved of any liability for its breach of its duty of care

because it has articulated a reasonable justification for the

delay in mitigating the hazard.       The State argues that this case

is distinguishable from Klink because there are other sites on

the Island of Hawai#i that are more dangerous than the accident

site, the State lacked the necessary funding and resources to

mitigate the hazard, and the State “conducted regular highway

inspections and received other reports of potential but not

necessarily imminent rockfall hazards.”         These justifications,

however, relate to whether the State owed a duty of care and


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whether that duty was breached, and the circuit court’s

conclusions as to duty and breach have not been raised on

appeal.   See Pulawa, 112 Hawaiʻi at 12, 143 P.3d at 1214 (noting

factors a court considers in determining whether to impose a

duty including “the moral blame attached to the defendants,”

“the policy of preventing harm,” and “the extent of the burden

to the defendants and consequences to the community of imposing

a duty to exercise care with resulting liability for breach”).

             As stated, the second Mitchell prong involves the

application of various rules and policy concerns to limit the

defendant’s liability because of the manner in which the

defendant’s conduct caused the harm.        Taylor-Rice, 91 Hawaiʻi at

74, 979 P.2d at 1100.     The analysis of the second Mitchell prong

is not an opportunity to revisit the duty and breach elements of

negligence.    Rather, the second Mitchell prong will limit the

range of injuries a defendant is held liable for based on rules

of law that apply because of the circumstances surrounding the

causation of the injuries.      The causation analysis is thus

focused on the injuries and the manner in which the injuries

occurred.    Accordingly, the State’s arguments concerning the

reasonableness of its conduct and the foreseeability of the

associated risks are not relevant to the issue of legal

causation.




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             d. Conclusion Regarding Causation Analysis

            For the reasons discussed, the circuit court clearly

misapprehended the relevant legal standard with regard to

whether the State’s conduct was the legal cause of the O’Gradys’

injuries.   Accordingly, the circuit court erred to the extent it

determined the State was not liable because the State’s breach

of its duty was not the legal cause of the O’Gradys’ injuries.

We thus vacate the circuit court’s decision and remand the case

to the circuit court for application of the proper legal

standard.

            As this court has previously observed, the State “is

not the insurer of the safety of travelers over the highways of

the State,” but the State has a duty “to design and construct

its highways in such a manner as to make them reasonably safe

for their intended use” and to “maintain them in a reasonably

safe condition.”    Klink, 113 Hawaiʻi at 362, 152 P.3d at 534

(quoting Pickering v. State, 57 Haw. 405, 409, 557 P.2d 125, 128

(1976)).    In this case, the circuit court determined that this

responsibility includes “the duty to exercise ordinary care to

maintain the areas adjacent to the highway so that the highway

is reasonably safe from rockfalls.”        The circuit court also

determined that the State “breached this duty of care by not

having a routine, coordinated system of rockfall mitigation at

the operational level in the Hawaiʻi District.”          Therefore, on


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remand, the circuit court is to determine whether the State’s

breach of its duty was the legal cause, as discussed herein, of

the O’Gradys’ injuries.

                                         B. Discretionary Function Exception

                           The O’Gradys assert that the circuit court erred in

relying on the discretionary function exception in its decision.

Contrary to the O’Gradys’ assertion, although the circuit court

discussed the discretionary function exception in its COLs, it

appears that the circuit court did not rely on this exception in

reaching its conclusion that the State was not liable to the

O’Gradys.15                      In light of our remand to the circuit court, we

address the circuit court’s observations regarding the

discretionary function exception and consider its applicability

in this case.16                             We initially note that the application of the

																																																								
             15
            We interpret the circuit court’s conclusions regarding the
discretionary function exception to be observations on the part of the
circuit court as it did not ultimately determine whether the exception
applied in this case. Specifically, the circuit court concluded that
“[o]rdinary, everyday maintenance of areas adjacent to a State highway in
order to prevent or mitigate rockfalls onto the highway is an operational
activity.” The court also observed that a decision to undertake a large-
scale rockfall prevention or mitigation project “may fall within the
discretionary function exception” if it is contingent on a specific
legislative appropriation; however, the court also noted that “the State
should not escape liability under the discretionary function exception merely
by choosing to address rockfalls onto a State highway only with large-scale
projects and declining to use routine, everyday maintenance to address the
risk.” We note that the State did not cross-appeal the circuit court’s
conclusions regarding the discretionary function exception.
      16
            The O’Gradys filed a motion in limine in the circuit court
seeking preclusion of the discretionary function exception at trial, and the
court denied the motion. The O’Gradys argue that the circuit court abused
its discretion in denying their motion in limine. We note that the circuit
court properly denied the O’Gradys’ motion in limine, as the motion in this
                                                             (continued . . .)


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discretionary function exception operates separately from the

elements of negligence and entails a separate analysis.             See

Taylor-Rice v. State, 91 Hawaiʻi 60, 77, 979 P.2d 1086, 1103

(1999) (discussing the discretionary function exception

separately from the elements of negligence).

            Under the State Tort Liability Act, the State waives

its immunity for tort liability.          See HRS § 662-2 (1993).17       The

State Tort Liability Act includes several exceptions to its

applicability, including for claims based on “the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a state officer or

employee, whether or not the discretion involved has been

abused.”   HRS § 662-15(1) (Supp. 2004).18        The purpose of this


(. . . continued)
case was akin to a motion for summary judgment or other dispositive motion.
See Kuroda v. Kuroda, 87 Hawaiʻi 419, 427, 958 P.2d 541, 549 (App. 1998)
(discussing the appropriate purpose of a motion in limine).
      17
            HRS § 662-2 provides, “The State hereby waives its immunity for
liability for the torts of its employees and shall be liable in the same
manner and to the same extent as a private individual under like
circumstances, but shall not be liable for interest prior to judgment or for
punitive damages.”
      18
            HRS § 662-15(1) provides that the State Tort Liability Act shall
not apply to the following:

            Any claim based upon an act or omission of an employee of
            the State, exercising due care, in the execution of a
            statute or regulation, whether or not such statute or
            regulation is valid, or based upon the exercise or
            performance or the failure to exercise or perform a
            discretionary function or duty on the part of a state
            officer or employee, whether or not the discretion involved
            has been abused . . . .




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exception to liability is to “protect the decision-making

processes of state officials and employees which require

evaluation of broad public policies.”                           Taylor-Rice, 91 Hawaiʻi at

77, 979 P.2d at 1103 (quoting Nakahira v. State, 71 Haw. 581,

583, 799 P.2d 959, 961 (1990)).

                           The exceptions listed in HRS § 662-15 are exceptions

to the State’s liability rather than a retention of sovereign

immunity over certain claims, and consequently, the exceptions

do not operate to withdraw subject-matter jurisdiction from the

courts.19                  See Schwartz v. State, 136 Hawaiʻi 258, 263, 361 P.3d

1161, 1166 (2015) (“[S]ubject-matter jurisdiction is fundamental

to a court’s power to act on the merits of a case from the

outset of the action; it may be challenged at any time, but

jurisdiction does not vacillate during the course of a case

depending on the particulars of the matter as it develops.”);

State v. Zimring, 52 Haw. 477, 478, 479 P.2d 205, 206 (1970)

(holding that the trial court erred in its order of dismissal

for failure to state a claim based on the discretionary function

exception).                        Thus, the discretionary function exception operates


																																																								
             19
            The Hawaiʻi State Tort Liability Act provides a general waiver of
its immunity for liability for the torts of its employees, see HRS § 662-2,
and the circuit and district courts have original jurisdiction over such
claims, see HRS § 662-3 (1993). The exceptions provided for in HRS § 662-15
define the scope of the application of the Hawaiʻi State Tort Liability Act
and, consequently, the scope of tort claims that may be brought against the
State.




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similarly to an affirmative defense in that it is separate from

the elements of negligence and relieves the State from

liability.                       Zimring, 52 Haw. at 478, 479 P.2d at 206 (citing

Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952))20

(concluding that any exceptions from the State’s waiver of

sovereign immunity “is a matter of defense”); see also 61A Am.

Jur. 2d Pleading § 300 (2010) (“[A]n affirmative defense is the

defendant’s assertion raising new facts and arguments that, if

true, will defeat the plaintiff’s or prosecution’s claim, even

if all allegations in the complaint are true.”).

                           Generally, the defendant has the burden of proving all

affirmative defenses.                                      U.S. Bank Nat’l Ass’n v. Castro, 131

Hawaiʻi 28, 41, 313 P.3d 717, 730 (2013).                                     Recognition of the

burden on the State to prove application of the discretionary

function exception maximizes both the purpose of the

discretionary function exception and the primary policy of the

State Tort Liability Act to compensate victims of negligent

State conduct.                              See Breed v. Shaner, 57 Haw. 656, 665, 562 P.2d

436, 442 (1977) (noting that the State Tort Liability Act should

be liberally construed to effectuate its purpose of

compensation).                              Additionally, the State is in the best position

																																																								
             20
            Stewart held that if the government desires to rely on the
discretionary function exception, it has a right to do so in defense of the
action, “providing such defense is aptly pleaded and proven.” 199 F.2d at
520.	



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to provide relevant evidence with regard to its decision-making,

and a rule that requires the plaintiff to prove the absence of

any policy consideration would not be practicable.                                 Thus, the

State bears the burden to assert and prove the application of

the discretionary function exception to liability under the

State Tort Liability Act.                                  See Parrott v. United States, 536

F.3d 629, 634–35 (7th Cir. 2008) (concluding that the

discretionary function exception operates as an affirmative

defense to the Federal Tort Claim Act).21

                           The issue that is presented in this case is whether

the State has immunity from claims for its failure to have a

routine, coordinated system of rockfall mitigation at the

																																																								
             21
            Many other jurisdictions consider similar exceptions to be
affirmative defenses, although there is some disagreement. 14 Charles Alan
Wright et al., Federal Practice and Procedure: Jurisdiction and Related
Matters 3d § 3658 (4th ed. 2015) (“The plaintiff bears the initial burden of
alleging subject matter jurisdiction under the FTCA, but generally it is held
that the Government bears the burden of proving the applicability of the
discretionary function exception, although there is disagreement.”); see also
Keller v. United States, 771 F.3d 1021, 1023 (7th Cir. 2014) (“The
discretionary function exception is an affirmative defense to liability under
the FTCA that the government must plead and prove.”); Cestonaro v. United
States, 211 F.3d 749, 756 (3d Cir. 2000) (“The United States has the burden
of proving the applicability of the discretionary function exception.”
(quoting Nat’l Union Fire Ins. v. United States, 115 F.3d 1415, 1417 (9th
Cir. 1997))); Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005) (“The
discretionary function immunity is an affirmative defense raised by the
defendant, and the party asserting immunity has the burden to prove the
immunity.”); Parker v. Lancaster Cty. Sch. Dist. No. 001, 591 N.W.2d 532, 539
(Neb. 1999) (“We have held that this ‘discretionary function exemption’ is an
affirmative defense which must be asserted by answer.”). But see Molchatsky
v. United States, 713 F.3d 159, 162 (2d Cir. 2013) (“Plaintiffs bear the
initial burden to state a claim that is not barred by the [discretionary
function exception].”); Welch v. United States, 409 F.3d 646, 651 (4th Cir.
2005) (“[I]t is the plaintiff’s burden to show that an unequivocal waiver of
sovereign immunity exists and that none of the statute’s waiver exceptions
apply to his particular claim.”).




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operational level.    Because we recognize the need to define the

scope of the discretionary function exception on a case-by-case

basis, we do not consider the circuit court’s observations with

respect to large-scale remediation projects as that issue is not

presented by the appeal in this case.        See Taylor-Rice, 91

Hawaiʻi at 77, 979 P.2d at 1103.

          In determining whether a State action falls within the

discretionary function exception, we consider whether the

challenged conduct involves the “effectuation of broad public

policy” as opposed to “routine,” “operational level activity.”

Id. (internal quotation marks omitted) (quoting Tseu ex rel.

Hobbs v. Jeyte, 88 Hawaiʻi 85, 88, 962 P.2d 344, 347 (1998)).

The exercise of some discretion on the part of a State official

is not necessarily indicative that the exception applies, and

our cases have focused more on distinguishing broader policy

decisions from daily, operational ones.         See Taylor-Rice, 91

Hawaiʻi at 79, 979 P.2d at 1105 (citing Rogers v. State, 51 Haw.

293, 296, 459 P.2d 378, 381 (1969)).        Additionally, we interpret

the State Tort Liability Act in light of its purpose “to

compensate the victims of negligent conduct of state officials

and employees in the same manner and to the same extent as a

private person in like circumstances.”         Breed, 57 Haw. at 665,

562 P.2d at 442 (citing Rogers, 51 Haw. at 293, 459 P.2d at

378).


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          In a previous decision concerning the design of State

highways, we distinguished between broad policy decisions, such

as a decision not to build a prison, and operational government

affairs, such as where to place road signs.          See Taylor-Rice, 91

Hawaiʻi at 78, 979 P.2d at 1104 (discussing the analysis in

Breed); see also Rogers, 51 Haw. at 297, 459 P.2d at 381 (noting

a federal decision that determined that “the decision to

construct a post office building involved discretion but the

omission to install handrails was an operational level act”);

Julius Rothschild & Co. v. State, 66 Haw. 76, 80, 655 P.2d 877,

881 (1982) (holding that the discretionary function exception

applies to the State’s decision of whether to replace or

reconstruct a bridge since “[i]t would require a weighing of

priorities at the higher levels of government, and would surely

entail evaluations based on financial, political and economic

considerations”).    Breed noted that “such matters as the kinds

of road signs to place and where to place them, and which center

line stripings to repaint and when to repaint them, did not

require evaluation of policies but involved implementation of

decisions made in everyday operation of governmental affairs.”

57 Haw. at 666, 562 P.2d at 442 (describing the holding in

Rogers, 51 Haw. at 297, 459 P.2d at 381).         In rejecting the

principle that the designing of a highway would always involve

evaluation of broad policy factors, Breed expressed concern that


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such a generalization would afford the State protection for

negligence not encompassed by the discretionary function

exception:

             [W]e are of the opinion that the decisions made in
             designing a highway do not always fall in this category. A
             curve may be placed in a road to simply get around an
             obstacle. In this situation further facts must be adduced
             on the record to show that the decision to include the
             curve or other design feature involved the evaluation of
             broad policy factors before the court can decide that the
             discretionary function exception applies.

Id. at 667, 562 P.2d at 443.

             In Taylor-Rice, we rejected the argument that the

decision to improve guardrails involved the evaluation of broad

policy considerations.       91 Hawaiʻi at 78, 979 P.2d at 1104.

Taylor-Rice distinguished between the State’s broader policy

regarding guardrails from the implementation of that policy,

noting that the State’s established policy dictated that the

guardrails should have been improved.          Id.   It was also noted

that the post-accident upgrade to the guardrail cost $11,849.83

in maintenance funds and could have also been included in a more

expensive resurfacing project undertaken by the State.             Id.

             This case concerns the State’s failure to have a

routine, coordinated system of rockfall mitigation at the

operational level.      The State’s failure was a breach of the

State’s duty “to exercise ordinary care to maintain the areas

adjacent to the highway so that the highway is reasonably safe

from rockfalls.”      It appears that such rockfall mitigation



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efforts at the operational level would not involve the

consideration of broad public policies.         While it is possible

that certain decisions with regard to how to fulfill the State’s

duty to maintain the highway so that it is reasonably safe from

rockfalls may fall within the discretionary function exception,

this case expressly concerns a routine system at the operational

level, and the State has not adduced evidence to demonstrate

that the lack of such an operational system involved an exercise

of discretion based on broad policy considerations.

             For the reasons discussed, the State’s breach of its

duty of care “by not having a routine, coordinated system of

rockfall mitigation at the operational level” does not fall

within the discretionary function exception.          Additionally, the

O’Gradys challenge FOFs 6 and 15-17, which appear to relate to

whether the lack of a remediation project to eliminate the

rockfall hazard fell within the discretionary function

exception.    As mentioned, the issue presented in this case with

respect to the discretionary function exception is whether the

State has immunity from claims for its failure to have a

routine, coordinated system of rockfall mitigation at the

operational level, and the lack of any large-scale remediation

project to eliminate the rockfall hazard has not been raised.

Thus, these findings are not relevant to whether the




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discretionary function exception applies in the present appeal.22

Additionally, FOFs 15-17 erroneously require the O’Gradys to

prove the inapplicability of the discretionary function

exception; as discussed, the State bears the burden of asserting

and proving the application of the discretionary function

exception.                       In light of the evidence presented, the State has

not established that it is relieved from liability under the

discretionary function exception with regard to the duty

recognized by the circuit court in this case.

                                                           III. CONCLUSION

                           For the reasons discussed above, the circuit court’s

December 11, 2014 “Second Amended Final Judgment” is vacated,

and the case is remanded to the circuit court for further

proceedings consistent with this opinion.

Ronald G. Self and                                                    /s/ Mark E. Recktenwald
Rebecca A. Copeland
for appellants                                                        /s/ Sabrina S. McKenna

Caron M. Inagaki,                                                     /s/ Richard W. Pollack
Randolph R. Slaton,
Henry S. Kim, and                                                     /s/ Michael D. Wilson
Robin M. Kishi
for appellees State of                                                /s/ Jeffrey P. Crabtree
Hawai#i and State of Hawai#i
Department of Transportation


																																																								
             22
            It is noted that these findings also have no relevance to the
question of legal causation as they concern the reasonableness and intent of
the State’s conduct, rather than the circumstances leading to the O’Gradys’
harm.




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