[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@ (continued)]]
[[Part VII, ADuties and Powers of Personal Representatives@]]

'560:3-703
General duties; relation and liability to persons interested in estate; standing to sue.

    (a) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by section 560:7-302. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this chapter, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred upon the personal representative by this chapter, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.

    (b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning the personal representative's appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse or reciprocal beneficiary, any minor and dependent children and any pretermitted child of the decedent as described elsewhere in this chapter.

    (c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at the decedent's death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as the decedent had immediately prior to death.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:3-713
Sale, encumbrance, or transaction involving conflict of interest; voidable; exceptions.

    Any sale or encumbrance to the personal representative, the personal representative's spouse or reciprocal beneficiary, agent, or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:

  1. The will or a contract entered into by the decedent expressly authorized the transaction; or
  2. The transaction is approved by the court after notice to interested persons.

[L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@ (continued)]]
[[Part IX, ASpecial Provisions Relating to Distribution@]]

'560:3-901
Successors' rights if no administration.

    In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession.

    Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption or intestacy may establish title thereto by proof of the decedent's ownership, decedent's death, and their relationship to the decedent.

    Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse or reciprocal beneficiary and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:3-902
Distribution; order in which assets appropriated; abatement.

    (a) Except as provided in subsection (b) and except as may otherwise be provided in connection with the share of the surviving spouse or reciprocal beneficiary who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

  1. Property not disposed of by the will;
  2. Residuary devises;
  3. General devises;
  4. Specific devises.

For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

    (b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

    (c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:3-906
Distribution in kind; valuation; method.

    (a) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:

  1. A specific devisee is entitled to distribution of the thing devised to that person, and a spouse, reciprocal beneficiary, or child who has selected particular assets of an estate as provided in section 560:2-402 shall receive the items selected;
  2. Any homestead or family allowance or devise of a stated sum of money may be satisfied in kind provided:
    1. The person entitled to the payment has not demanded payment in cash;
    2. The property distributed in kind is valued at fair market value as of the date of its distribution; and
    3. No residuary devisee has requested that the asset in question remain a part of the residue of the estate;
  3. For the purpose of valuation under paragraph (2) securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised;
  4. The residuary estate shall be distributed in any equitable manner.

    (b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset the distributee is to receive, if not waived earlier in writing, terminates if the distributee fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:3-915
Distribution to person under disability.

    (a) A personal representative may discharge the obligation to distribute to any person under legal disability by distributing in a manner expressly provided in the will.

    (b) Unless contrary to an express provision in the will, the personal representative may discharge the obligation to distribute to a minor or person under other disability as authorized by section 560:5-101 or any other statute. If the personal representative knows that a conservator has been appointed or that a proceeding for appointment of a conservator is pending, the personal representative is authorized to distribute only to the conservator.

    (c) If the heir or devisee is under disability other than minority, the personal representative is authorized to distribute to:

  1. An attorney in fact who has authority under a power of attorney to receive property for that person; or
  2. The spouse or reciprocal beneficiary, parent, or other close relative with whom the person under disability resides if the distribution is of amounts not exceeding $10,000 a year, or property not exceeding $10,000 in value, unless the court authorizes a larger amount or greater value. Persons receiving money or property for the disabled person are obligated to apply the money or property to the support of that person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the support of the disabled person. Excess sums must be preserved for future support of the disabled person. The personal representative is not responsible for the proper application of money or property distributed pursuant to this subsection.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:3-916
Apportionment of estate taxes.

    (a) For purposes of this section:

    "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this State.

    AFiduciary" means personal representative or trustee.

    APerson" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency.

    APerson interested in the estate" means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee.

    AState" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

    ATax" means the federal estate tax and the additional inheritance tax imposed by Hawaii and interest and penalties imposed in addition to the tax.

    (b) Except as provided in subsection (i) and, unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this chapter, the method described in the will controls.

    (c)

  1. The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose may determine the apportionment of the tax;
  2. If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable;
  3. If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge the fiduciary with the amount of the assessed penalties and interest;
  4. In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this chapter the determination of the court in respect thereto shall be prima facie correct.

    (d)

  1. The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to that person, the amount of tax attributable to that person's interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this chapter;
  2. If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.

    (e)

  1. In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate and for any deductions and credits allowed by the law imposing the tax;
  2. Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal;
  3. Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or the decedent's estate inures to the proportionate benefit of all persons liable to apportionment;
  4. Any credit for inheritance, succession or estate taxes or taxes in the nature thereof applicable to property or interests includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax;
  5. To the extent that property passing to or in trust for a surviving spouse or reciprocal beneficiary or any charitable, public or similar purpose is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (b) hereof, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under section 2053(d) of the Internal Revenue Code of 1986, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.

    (f) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.

    (g) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three-month period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.

    (h) A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this State and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this State or who owns property in this State subject to attachment or execution. For the purposes of the action the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct.

    (i) If the liabilities of persons interested in the estate as prescribed by this chapter differ from those which result under the federal estate tax law, the liabilities imposed by the federal law will control and the balance of this section shall apply as if the resulting liabilities had been prescribed herein.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:3, AProbate of Wills and Administration@ (continued)]]
[[Part XII, ACollection of Personal Property by Affidavit and
Summary Administration Procedure for Small Estates@]]

'560:3-1212
Estates of persons leaving no known relatives.

    Every coroner or medical examiner who is called to investigate the death of any person leaving no known spouse or reciprocal beneficiary, issue, parent, grandparent, or issue of grandparents over the age of majority in the State, shall take immediate charge of the decedent's personal effects and if in the discretion of the coroner the value of such personal effects is in excess of $2,500, forthwith deliver them to the clerk of the court of the judicial circuit in which such decedent died.

    If after ten days no person appears, competent to initiate appropriate probate proceedings, the clerk shall administer the estate pursuant to the provisions of this part; provided that if the decedent's estate is of a value exceeding $60,000, the clerk shall notify the judge of the circuit having charge of the probate calendar, and shall petition for the appointment of a personal representative of such estate other than the clerk.

    In the meantime the clerk may take such steps as may be appropriate to preserve and conserve the real and personal property of the decedent. All expenses in connection with the taking possession, care, and conservation of the property and with such proceedings shall be proper charges against the estate of the decedent.

    The corporation counsel or county attorney of each county shall advise, assist, and represent as far as necessary any of such officers in the performance of any act or the institution or prosecution of any proceeding required by this section.

    If the decedent's estate is of a value not exceeding $2,500 and the decedent has no known relatives or whose relatives have failed to indicate any means of disposition of the estate, then the coroner or medical examiner having custody of the property shall dispose of the property in an appropriate manner, which may be any one of the following or a combination thereof:

  1. Where the estate consists only of money and is not in excess of $2,500 and expenditures have been made in connection with such death, to reimburse the appropriate city and/or county office that made the disbursement to defray said expenses;
  2. Where the estate consists of cash or personal belongings of monetary value, or both, not exceeding $2,500, to liquidate the personal belongings and apply the proceeds, together with the cash, if the total does not exceed $2,500, in accordance with paragraph (1);
  3. Where the assets in the estate are of no monetary value (unsalable) and in the best judgment and discretion of the coroner or medical examiner can be used by some charitable institution, to donate the assets to whatever charitable institution is willing and able to pick up the assets in question;
  4. Where the assets have no value whatsoever or are in such condition that, in the best judgment and discretion of the coroner or medical examiner, a charitable institution cannot use the properties, or will not receive the properties, to destroy the same in any manner the coroner or medical examiner sees fit; and
  5. If under paragraphs (1) and (2), there are assets remaining, then the coroner or medical examiner shall forthwith forward the same to the state director of finance for disposition as provided in chapter 523A.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:5, AProtection of Persons Under Disability and
Their Property@]]
[[Part III, AGuardians of the Person of Incapacitated Persons@]]

'560:5-301
Testamentary nomination of guardian of the person for incapacitated person.

    The parent or spouse or reciprocal beneficiary of an incapacitated person may by will nominate a guardian of the person of the incapacitated person. The family court shall give preference to any such nominee, but the court may appoint someone other than the testamentary nominee upon a showing of cause.

    A testamentary nomination by a spouse or reciprocal beneficiary shall be preferred by the family court over a nomination by a parent.

    [L 1976, c 200, pt of '1; am L 1997, c 383, '19]

'560:5-309
Notices in guardianship proceedings.

    (a) In a proceeding for the appointment or removal of a guardian of the person of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of the time and place of hearing shall be given by the petitioner to each of the following:

  1. The ward or the person concerning whom the proceeding has been commenced and the ward's or person's spouse or reciprocal beneficiary, legal parents, and adult children;
  2. Any person who is serving as the guardian of the ward's or person's estate or who has care and custody of the ward or person;
  3. In case no other person is notified under paragraph (1), at least one of the ward's or person's closest adult relatives, if any can be found; and
  4. The office of the public guardian where the public guardian is being nominated as guardian of the person of an incapacitated person.

    (b) Notice shall be served personally on the alleged incapacitated person, the person's spouse or reciprocal beneficiary, the person's legal parents, and the person's adult children, if they can be found within the State. Notice to any of those who cannot be found within the State and to all other persons except the alleged incapacitated person shall be given as provided in section 560:1-401. For good cause, the court may waive notice to any person in subsection (a)(1) or (3), other than the ward, upon a showing that all reasonable efforts have been made to ascertain the identity and address of the person or to effect notice, that the efforts were unsuccessful, and that further efforts should not be required because that person has not demonstrated a reasonable degree of interest or concern in the subject. Waiver of notice by the person alleged to be incapacitated is not effective unless the person attends the hearing or the person's waiver of notice is confirmed in an interview with the individual sent by the family court to interview the person. Except as provided in section 560:5-303, representation of the alleged incapacitated person by a guardian ad litem is not necessary.

    (c) Grandparents shall be notified in all proceedings involving minors. For good cause, the court may waive notice to a grandparent upon a showing that all reasonable efforts have been made to ascertain the identity and address of the person or to effect notice, that the efforts were unsuccessful, and that further efforts should not be required because that person has not demonstrated a reasonable degree of interest or concern in the subject.

    [L 1976, c 200, pt of '1; am L 1981, c 216, '1; am L 1983, c 124, '12; am L 1989, c 43, '1; am L 1997, c 383, '19; am L 1999, c 298, '1]

[[annotations:]]
Rules of Court

Notice, see HPR rules 104, 105.

'560:5-311
Who may be guardian of the person; priorities.

    (a) The family court may appoint any competent person or any non-profit agency or corporation, public or private, as guardian of the person of an incapacitated person and in the selection thereof, the family court shall in all cases consider the best interests of the ward.

    (b) Except as otherwise provided in section 560:5-301, persons who are not disqualified are entitled to consideration for appointment in the following order:

  1. The spouse or reciprocal beneficiary of the incapacitated person, including a person nominated by will or other writing signed by a deceased spouse or reciprocal beneficiary;
  2. An adult child of the incapacitated person;
  3. A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
  4. Any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition;
  5. A person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person. The family court, for good cause, may pass over a person having priority and appoint a person having less or no priority.

    [L 1976, c 200, pt of '1; am L 1981, c 92, '2; gen ch 1985; am L 1997, c 383, '19]

'560:5-312
General powers and duties of guardian of the person.

    (a) A guardian of the person of an incapacitated person has the same powers, rights and duties respecting the guardian's ward that a parent has respecting the parent's unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian of the person has the following powers and duties, except as modified by order of the family court:

  1. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled to custody of the person of the guardian's ward and may establish the ward's place of abode within or without this State.
  2. If entitled to custody of the guardian's ward the guardian shall make provision for the care, comfort and maintenance of the guardian's ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, the guardian shall take reasonable care of the guardian's ward's clothing, furniture, vehicles and other personal effects and commence protective proceedings if other property of the guardian's ward is in need of protection.
  3. The guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service.
  4. If no guardian of the property of the ward has been appointed, the guardian may:
    1. Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform the person's duty;
    2. Receive money and tangible property deliverable to the ward and apply the money and property for support, care and education of the ward; but, the guardian may not use funds from the guardian's ward's estate for room and board which the guardian, the guardian's spouse or reciprocal beneficiary, parent, or child have furnished the ward unless a charge for the service is approved by order of the family court made upon notice to at least one of the next of kin of the ward, if notice is possible. The guardian must exercise care to conserve any excess for the ward's needs.
  5. The guardian shall report the condition of the guardian's ward and of the estate which has been subject to the guardian's possession or control, as required by the family court or family court rule.
  6. If a guardian of the property has been appointed, all of the ward's estate received by the guardian of the person in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the guardian of the property for management as provided in this chapter, and the guardian of the person must account to the guardian of the property for funds expended.

    (b) Any guardian of the person of one for whom a guardian of the property also has been appointed shall control the custody and care of the ward, and is entitled to receive reasonable sums for the guardian of the person's services and for room and board furnished to the ward as agreed upon between the guardian of the person and the guardian of the property, provided the amounts agreed upon are reasonable under the circumstances. The guardian of the person may request the guardian of the property to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

    [L 1976, c 200, pt of '1; gen ch 1985; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:5, AProtection of Persons Under Disability and
Their Property@ (continued)]]
[[Part IV, AProtection of Property of Persons Under Disability and Minors@]]

'560:5-408
Permissible court orders.

    The court has the following powers which may be exercised directly or through a guardian of the property in respect to the estate and affairs of protected persons:

  1. While a petition for appointment of a guardian of the property or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the person's benefit or the benefit of the person's dependents.
  2. After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, the minor's family and members of the minor's household.
  3. After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, and subject to the limitations as to specified powers as contained in [paragraph] (4) below, the court has, for the benefit of the person and members of the person's household, all the powers over the person's estate and affairs which the person could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to power to make gifts, to convey or release the person's contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release the person's powers as trustee, personal representative, custodian for minors, guardian of the property, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond the person's disability or life, to exercise options of the disabled person to purchase securities or other property, to exercise the person's rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, to exercise the person's right to an elective share in the estate of the person's deceased spouse or reciprocal beneficiary and to renounce any interest by testate or intestate succession or by inter vivos transfer.
  4. The court may exercise or direct the exercise of, its authority to sell, mortgage, lease or otherwise encumber the real property of the protected person, to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding twenty per cent of any year's income of the estate or to change beneficiaries under insurance and annuity policies, only if satisfied, after a hearing preceded by notice pursuant to section 560:1-401 to the persons entitled to notice under section 560:5-405, that it is in the best interests of the protected person, and that the person either is incapable of consenting or has consented to the proposed exercise of power.
  5. An order made pursuant to this section determining that a basis for appointment of a guardian of the property or other protective order

    [L 1976, c 200, pt of '1; gen ch 1985; am L 1997, c 383, '19]

'560:5-410
Who may be appointed guardian of the property; priorities.

    (a) The court may appoint an individual, or a corporation with general power to serve as trustee, as guardian of the property of a protected person, and, in the selection thereof, the court shall in all cases consider the best interests of the protected person. The following are entitled to consideration for appointment in the following order:

  1. A guardian of the property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
  2. An individual or corporation nominated by the protected person if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
  3. The spouse or reciprocal beneficiary of the protected person;
  4. An adult child of the protected person;
  5. A parent of the protected person, or a person nominated by the will of a deceased parent;
  6. Any relative of the protected person with whom he has resided for more than six months prior to the filing of the petition;
  7. A person nominated by the person who is caring for him or paying benefits to him.

    (b) A person in priorities (1), (3), (4), (5), or (6) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court, for good cause may pass over a person having priority and appoint a person having less priority or no priority.

    [L 1976, c 200, pt of '1; am L 1997, c 383, '19]

 

'560:5-422
Sale, encumbrance or transaction involving conflict of interest; court approval.

    Any sale or encumbrance to a guardian of the property, the guardian's spouse or reciprocal beneficiary, agent or attorney, or any corporation or trust in which the guardian has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest must be approved by the court after notice to interested persons and others as directed by the court.

    [L 1976, c 200, pt of '1; gen ch 1985; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:5, AProtection of Persons Under Disability and
Their Property@ (continued)]]
[[Part VI, AIncapacitated Persons Sterilization Rights@]]

'560:5-601
Definitions.

    As used in this Part:

    "Adult" means an individual who has attained the age of eighteen years.

    ACourt" means any duly constituted court.

    AIncapacitated person" means a person as defined in section 560:5-101(2).

    AInformed assent" means a process by which a ward who lacks the legal capacity to consent to sterilization is given a fair opportunity to acknowledge the nature, risks, and consequences of the procedure and, insofar as the ward is able to, indicates willingness and choice to undergo sterilization.

    AInterested person" means an interested, responsible adult, including but not limited to a public official, the legal guardian, spouse or reciprocal beneficiary, parent, legal counsel, adult child, or next of kin of a person allegedly mentally ill, mentally deficient, or as otherwise provided in this chapter.

    AJudge" means any judge of the family court or per diem judge appointed by the chief justice as provided in section 604-2.

    ALicensed physician" means any person who is licensed to practice medicine in Hawaii under chapter 453 or 460.

    ARecords" include, but is not limited to, all written clinical information, observations and reports, or fiscal documents relating to a ward who has undergone or is about to undergo sterilization and which is related to the sterilization.

    ASterilization" means any medical or surgical operation or procedure which can be expected to result in a patient's permanent inability to reproduce.

    AWard" means an incapacitated person for whom a guardian of the person has been appointed and who, because of the terms of the appointment of the guardian, lacks the legal power to consent to sterilization.

    [L 1986, c 81, pt of '2; am L 1989, c 130, '3; am L 1997, c 383, '19]

[[annotations:]]
Revision Note

In definition of judge, "604-2" substituted for "604-1".

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:6, ANonprobate Transfers@]]
[[Part I, AMultiple-Party Accounts@]]

'560:6-107
Rights against multiple-party accounts.

    A transfer to a survivor of a multiple-party account can be set aside, to the extent described below, in the event the assets in the hands of the personal representative of the deceased party are insufficient to pay taxes, expenses of administration, and homestead and family allowances under sections 560:2-402 and 560:2-404.

    A surviving party, payable-on-death payee, or beneficiary who receives payment from a multiple-party account after the death of a deceased party may, on application of the personal representative of the deceased party's estate, the surviving spouse or reciprocal beneficiary of the deceased party, or one acting for a dependent or minor child of the deceased party, be required to account to said personal representative for the deceased party's net contribution to the account to the extent necessary to discharge the insufficiency described above.

    No proceeding to assert this right shall be commenced later than two years following the death of the deceased party.

    Sums recovered hereunder shall be administered as part of the decedent's estate.

    This section shall not affect the right of a financial institution to make payment on multiple-party accounts according to the terms thereof, or make it liable to the estate of a deceased party unless before payment either the institution has been served with process in a proceeding by the personal representative or the institution has actual knowledge that making payment will jeopardize the payment of the taxes, expenses and allowances above mentioned.

    [L 1976, c 200, pt of '1; am L 1977, c 144, '51; am L 1996, c 288, '4; am L 1997, c 383, '19]

[[Note: Chapter 572C falls under the broad category of laws known as Title 31, AFamily@]]

[[CHAPTER 572C, AReciprocal Beneficiaries@]]

['572C-1]
Purpose.

    The purpose of this chapter is to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law.

    [L 1997, c 383, pt of '1]

['572C-2]
Findings.

    The legislature finds that the people of Hawaii choose to preserve the tradition of marriage as a unique social institution based upon the committed union of one man and one woman.

    The legislature further finds that because of its unique status, marriage provides access to a multiplicity of rights and benefits throughout our laws that are contingent upon that status. As such, marriage should be subject to restrictions such as prohibiting respective parties to a valid marriage contract from standing in relation to each other, i.e., brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew.

    However, the legislature concurrently acknowledges that there are many individuals who have significant personal, emotional, and economic relationships with another individual yet are prohibited by such legal restrictions from marrying. For example, two individuals who are related to one another, such as a widowed mother and her unmarried son, or two individuals who are of the same gender.

    Therefore, the legislature believes that certain rights and benefits presently available only to married couples should be made available to couples comprised of two individuals who are legally prohibited from marrying one another.

    [L 1997, c 383, pt of '1]

['572C-3]
Definitions.

    For the purposes of this chapter:

    "Declaration of reciprocal beneficiary relationship" means a statement in a form issued by the director that declares the intent of two people to enter into a relationship. By signing it, two people swear under penalty of perjury that they meet the requirements for a valid reciprocal beneficiary relationship.

    ADirector" means the director of health.

    AReciprocal beneficiaries" means two adults who are parties to a valid reciprocal beneficiary relationship and meet the requisites for a valid reciprocal beneficiary relationship as defined in section 572C-4.

    [L 1997, c 383, pt of '1]

['572C-4]
Requisites of a valid reciprocal beneficiary relationship.

    In order to enter into a valid reciprocal beneficiary relationship, it shall be necessary that:

  1. Each of the parties be at least eighteen years old;
  2. Neither of the parties be married nor a party to another reciprocal beneficiary relationship;
  3. The parties be legally prohibited from marrying one another under chapter 572;
  4. Consent of either party to the reciprocal beneficiary relationship has not been obtained by force, duress, or fraud; and
  5. Each of the parties sign a declaration of reciprocal beneficiary relationship as provided in section 572C-5.

    [L 1997, c 383, pt of '1]

['572C-5]
Registration as reciprocal beneficiaries; filing fees; records.

    (a) Two persons, who meet the criteria set out in section 572C-4, may enter into a reciprocal beneficiary relationship and register their relationship as reciprocal beneficiaries by filing a signed notarized declaration of reciprocal beneficiary relationship with the director. For the filing of the declaration, the director shall collect a fee of $8, which shall be remitted to the director of finance for deposit into the general fund.

    (b) Upon the payment of the fee, the director shall register the declaration and provide a certificate of reciprocal beneficiary relationship to each party named on the declaration. The director shall maintain a record of each declaration of reciprocal beneficiary relationship filed with or issued by the director.

    [L 1997, c 383, pt of '1]

['572C-6]
Rights and obligations.

    Upon the issuance of a certificate of reciprocal beneficiary relationship, the parties named in the certificate shall be entitled to those rights and obligations provided by the law to reciprocal beneficiaries.

    Unless otherwise expressly provided by law, reciprocal beneficiaries shall not have the same rights and obligations under the law that are conferred through marriage under chapter 572.

    [L 1997, c 383, pt of '1]

['572C-7]
Termination of reciprocal beneficiary relationship; filing fees and records; termination upon marriage.

    (a) Either party to a reciprocal beneficiary relationship may terminate the relationship by filing a signed notarized declaration of termination of reciprocal beneficiary relationship by either of the reciprocal beneficiaries with the director. For the filing of the declaration, the director shall collect a fee of $8, which shall be remitted to the director of finance for deposit into the general fund.

    (b) Upon the payment of the fee, the director shall file the declaration and issue a certificate of termination of reciprocal beneficiary relationship to each party of the former relationship. The director shall maintain a record of each declaration and certificate of termination of reciprocal beneficiary relationship filed with or issued by the director.

    (c) Any marriage license subsequently issued by the department to any individual registered as a reciprocal beneficiary shall automatically terminate the individual's existing reciprocal beneficiary relationship.

    (d) If either party to a reciprocal beneficiary relationship enters into a legal marriage, the parties shall no longer have a reciprocal beneficiary relationship and shall no longer be entitled to the rights and benefits of reciprocal beneficiaries.

    [L 1997, c 383, pt of '1]

[[Chapter 586, ADomestic Abuse Protective Orders@]]

'586-1
Definitions.

    As used in this chapter:

    "Domestic abuse" means:

  1. Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members; or
  2. Any act which would constitute an offense under section 709-906, or under part V or VI of chapter 707 committed against a minor family or household member by an adult family or household member.

    AExtreme psychological abuse" means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.

    AMalicious property damage" means an intentional or knowing damage to the property of another, without his consent, with an intent to thereby cause emotional distress.

    AFamily or household member" means spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

    [L 1982, c 123, pt of '2; am L 1987, c 359, '2; am L 1997, c 383, '64; am L 1998, c 172, '1]

[[Chapter 632, ADeclaratory Judgments@]]

[[No part of this Chapter directly mentions reciprocal beneficiaries, nor was the Chapter mentioned in the group of laws passed in 1997 establishing reciprocal-beneficiary rights and benefits. The Chapter deals with granting the right to certain courts to make certain judgments. The annotation to the cover page of the Chapter says the following:]]

[[annotations:]]
Attorney General Opinions

To the extent that the reciprocal beneficiaries act [L 1997, c 383] does impose obligations on insurers, it may provide a basis for affected persons to seek relief by, for example, seeking declaratory relief under this chapter. Att. Gen. Op. 97-10.

 

[[Chapter 663, ATort Actions@]]
[[Part I, ALiability; Survival of Actions@]]

'663-1
Torts, who may sue and for what.

    Except as otherwise provided, all persons residing or being in the State shall be personally responsible in damages, for trespass or injury, whether direct or consequential, to the person or property of others, or to their spouses or reciprocal beneficiaries, children under majority, or wards, by such offending party, or the offending party's child under majority, or by the offending party's command, or by the offending party's animals, domestic or wild; and the party aggrieved may prosecute therefor in the proper courts.

    [CC 1859, '1125; RL 1925, '2365; RL 1935, '4049; RL 1945, '10485; RL 1955, '246-1; HRS '663-1; am L 1972, c 144, '2(a) and c 189, '1; gen ch 1985; am L 1997, c 383, '65]

[[Note: the annotations for this seemingly short Section are quite long. ATorts@ are wrongs committed by one party against another, and so are the basis for a great many lawsuits. Because of the 1997 package of laws concerning reciprocal beneficiaries, couples are drawn into this arena under the terms above, and so all annotations are included below for that Section. Note that Section 663-3, below but based on the Section above, allows for AWrongful Death Complaints@ and benefits, an important right and benefit granted to reciprocal beneficiary couples.]]

[[annotations:]]
Cross References

Guardian ad litem, see '551-2.

Natural guardian; liability for torts of child, see '577-3.

Suits by and against, see '572-28.

Rules of Court
Guardian ad litem, see HRCP rule 17(c); DCRCP rule 17(c).

Affirmative defenses, see HRCP rule 8(c); DCRCP rule 8(c).

Law Journals and Reviews
Negligent Infliction of Emotional Harm. 7 HBJ 148.

Apportionment of Personal Injury Damages and Expert Medical Opinion in Hawaii. 8 HBJ 25.

Negligent Infliction of Mental Distress: Rodrigues v. State and Leong v. Takasaki. 11 HBJ 29.

Johnson v. Raybestos-Manhattan, Inc.: The Death of State of the Art Evidence in Strict Products Liability Actions Involving Inherently Dangerous Products. 11 UH L. Rev. 175.

Wolsk v. State: A Limitation of Governmental Premises Liability. 9 UH L. Rev. 301.

Knodle v. Waikiki Gateway Hotel, Inc.: Imposing a Duty to Protect Against Third Party Criminal Conduct on the Premises. 11 UH L. Rev. 231.

Tort Law--Bertelmann v. Taas Associates: Limits on Dram Shop Liability; Barring Recovery of Bar Patrons, Their Estates and Survivors. 11 UH L. Rev. 277.

Masaki v. General Motors Corp.: Negligent Infliction of Emotional Distress and Loss of Filial Consortium. 12 UH L. Rev. 215.

Johnston v. KFC National Management Co.: Employer Social-Host Liability for Torts of Intoxicated Employees. 14 UH L. Rev. 82.

Latent Disease and Toxic Torts in Hawaii: Analysis of the Statute of Limitations, the Rule Against Splitting Causes of Action and Nonidentification Theories of Liability. 15 UH L. Rev. 137.

Henderson v. Professional Coatings Corp.: Narrowing Third-Party Liability in Automobile Accidents. 15 UH L. Rev. 353.

Sexual Harassment in the Workplace: Remedies Available to Victims in Hawaii. 15 UH L. Rev. 453.

AIDS Phobia: The Infliction of Emotional Distress and the Fear of AIDS. 16 UH L. Rev. 143.

Reyes v. Kuboyama: Vendor Liability for the Sale of Intoxicating Liquor to Minors under a Common Law Negligence Theory. 17 UH L. Rev. 355.

Empowering Battered Women: Changes in Domestic Violence Laws in Hawai`i. 17 UH L. Rev. 575.

Seller Beware: New Law Protects Hawai`i Home Buyers. 18 UH L. Rev. 981.

BMW v. Gore: Curbing Excessive Punitive Damages. 19 UH L. Rev. 311.

Touchette v. Ganal: Reaffirming the Judicial Activism of the Hawai`i Supreme Court. 19 UH L. Rev. 345.

Interspousal Torts: A Procedural Framework for Hawai`i. 19 UH L. Rev. 377.

The Best Place, Inc. v. Penn America Insurance Company: Hawai`i Bad Faith Cause of Action for Insurer Misconduct. 19 UH L. Rev. 845.

Cyberprivacy on the Corporate Intranet: Does the Law Allow Private-Sector Employers to Read Their Employees' E-mail? 20 UH L. Rev. 165.

The Misappropriation Doctrine in Cyberspace: Protecting the Commercial Value of "Hot News" Information. 20 UH L. Rev. 421.

Case Notes
Where plaintiffs argued that State waived its Eleventh Amendment immunity through the enactment of '353-14 and the State's Tort Claims Act [sic], '662-2 and this section, no express consent or applicable waiver provisions found. 940 F. Supp. 1523.

Children. Parent liable for tort of minor child when child would be liable. 15 H. 124; 23 H. 541, 543.

Father not liable for act of infant unemancipated from childish instincts. 8 H. 715.

Liability of infant for damages to hired chattel resulting from infant's immoderate use of the chattel. 8 H. 237.

Contributory negligence of mother of six-year old child not imputed to child. 29 H. 604. See 47 H. 281, 287, 386 P.2d 872.

Degree of care toward children on highway. 40 H. 417.

Child has no cause of action for injuries to parent not resulting in death. 41 H. 634; 244 F.2d 604.

A six-year old may be capable of contributory negligence; minor's standard of care. 47 H. 281, 386 P.2d 872.

Minor children liable in tort to parents, when. 51 H. 74, 450 P.2d 998.

Minor children may sue their parents for negligence. 51 H. 484, 462 P.2d 1007.

Negligence; standard of care for children. 54 H. 611, 513 P.2d 487.

Parent may recover damages for loss of filial consortium of an injured adult child. 71 H. 1, 780 P.2d 566.

Causation. Intervening negligence and proximate causation. 45 H. 128, 363 P.2d 969.

Negligence. Causation construed. 57 H. 460, 558 P.2d 1018.

Where causation is a primary issue, it is plain and reversible error for a trial court not to explain the meaning of "legal cause" to a jury. 77 H. 282, 884 P.2d 345.

When read as a whole, or when considering both jury instruction where trial court used term "legal cause" as opposed to "substantial factor" and instruction that properly defined "legal cause", the instructions given were not prejudicially insufficient, erroneous, inconsistent, or misleading. 78 H. 230, 891 P.2d 1022.

In breach of express warranty actions based on seller's failure to deliver goods in conformance with an express promise, affirmation of fact, or description, "substantial factor" test proper standard to apply in determining proximate cause. 86 H. 383 (App.), 949 P.2d 1004.

Damages. Defendant insurance company's motion for summary judgment granted as to plaintiff's claim for punitive damages, where plaintiff alleged that defendant's conduct was wanton and oppressive; there was not sufficient evidence to reach clear and convincing standard, and thus the question of punitives could not be put to a jury. 999 F. Supp. 1369.

If plaintiff succeeded on bad faith claim, and plaintiff could show that plaintiff's emotional distress damages were proximately caused by defendant insurance company's actions, plaintiff could recover damages for plaintiff's emotional distress as incidentally flowing from the breach. 999 F. Supp. 1369.

Where court construed plaintiff's claim as one for tortious breach of contract, as court could not identify a breach of contract, it necessarily followed that there was no material issue of fact whether defendant's alleged breach of contract was sufficiently "wanton or reckless" to justify recovery for tortious breach. 11 F. Supp. 2d 1204.

Punitive damages not allowed against principal unless principal participated in the wrongful act or authorized or approved it. 8 H. 411; 24 H. 579; 29 H. 524.

Punitive damages may be awarded though actual damages nominal. 40 H. 492.

Explosives, concussion damage. 42 H. 353.

Use of mathematical formula to compute damages for pain and suffering improper. 47 H. 408, 390 P.2d 740; 48 H. 22, 395 P.2d 365. But see '635-52.

Defendant title company was liable to plaintiffs only for damages limited to the transaction for which certificate of title search was intended to influence, that is, only for damages plaintiffs suffered in the transaction wherein they purchased the property; defendant=s negligence was not the proximate cause of the loss of anticipated profits. 51 H. 462, 462 P.2d 905.

Clear and convincing standard of proof adopted for all punitive damage claims. 71 H. 1, 780 P.2d 566.

Punitive damages may be awarded in products liability action based on underlying theory of strict liability where plaintiff proves requisite aggravating conduct on part of defendant. 71 H. 1, 780 P.2d 566.

Plaintiff has duty to mitigate damages. 56 H. 507, 542 P.2d 1265.

Mental distress damages may be recovered in a products liability implied warranty action. 74 H. 1, 837 P.2d 1273.

Apportionment of damages, discussed, where plaintiff had a pre-existing condition, had been injured or plaintiff=s condition had been aggravated by independent acts of successive tortfeasors, and had allegedly caused some of plaintiff=s own injuries after the accident from which plaintiff had brought suit. 77 H. 282, 884 P.2d 345.

Circuit court correctly granted plaintiff-appellee=s motion for directed verdict as to punitive damages regarding interference with contract claim, where defendants-appellants failed to show actual damages. 78 H. 40, 890 P.2d 277.

Punitive damages may not be awarded in bad faith tort case unless evidence reflects something more than the conduct necessary to establish the tort. 82 H. 120, 920 P.2d 334.

Emotional distress damages resulting from breach of contract recoverable only where parties specifically provide for them in the contract or where the nature of the contract clearly indicates that such damages are within the parties= contemplation or expectation in the event of a breach. 89 H. 234, 971 P.2d 707.

Tort recovery, including recovery of punitive damages, is not allowed under Hawaii law for breach of contract in the absence of conduct that

  1. violates a duty that is independently recognized by principles of tort law and
  2. transcends the breach of the contract.
89 H. 234, 971 P.2d 707.

Where plaintiff alleging defamation failed to prove "actual damages" caused by newspaper=s negligence, summary judgment for newspaper properly granted. 89 H. 254, 971 P.2d 1089.

Inconsistent for jury not to award pain and suffering general damages where it awarded special damages for medical expenses and lost wages. 80 H. 188 (App.), 907 P.2d 774.

APure" comparative negligence principles should be applied to reduce a plaintiff's recovery in those tort actions for breach of express warranty where a plaintiff is found to be negligent. 86 H. 383 (App.), 949 P.2d 1004.

Defamation. Defendants' statements implying attorney's poor client representation constitutionally protected speech and not defamatory where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false. 56 F.3d 1147.

False statement that attorney had been a prosecutor in South Africa was libelous per se; no recovery for defamation based on a truthful statement of fact. 825 F. Supp. 906.

Some statements that allegedly defamed plaintiff or cast plaintiff in false light were privileged expressions of opinion. 825 F. Supp. 906.

Plaintiff was not a public figure for purposes of its defamation claim. 833 F. Supp. 802.

Statements in editorial about plaintiff (when plaintiff was mayor) were protected by First Amendment and thus, not actionable. 930 F. Supp. 1403.

Where alleged defamatory statements occurred during a conversation between an employee of defendant and representatives of defendant's temporary disability insurer, there was a qualified privilege as defendant and its insurer shared a common interest, their business relationship; an employer who communicates information to its insurance carrier is acting, at the very least, to promote the private interest of the companies; questions remained regarding potential abuse of the privilege. 26 F. Supp. 2d 1241.

Public official. 50 H. 648, 448 P.2d 337.

Qualified privilege; publication. 52 H. 366, 477 P.2d 162.

Libel per se; qualified privilege. 53 H. 456, 497 P.2d 40.

Broadcast charging falsely that person is communist is libel per se. 56 H. 522, 543 P.2d 1356.

Qualified privilege discussed. 57 H. 390, 557 P.2d 1334.

Trial court clearly erred, to defendant's prejudice, by leaving to jury determination of existence of a qualified privilege. 76 H. 310, 876 P.2d 1278.

Defendant=s statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff; statement thus was constitutionally protected. 88 H. 94, 962 P.2d 353.

Where plaintiff in defamation action failed to prove that newspaper had acted with actual malice when it erroneously published story naming plaintiff as the target of an investigation, summary judgment for newspaper properly granted. 89 H. 254, 971 P.2d 1089.

Defenses. Fact that manufacturers of blood clotting agent followed industry standards in negligence action by hemophiliac patients who tested positive for HIV did not necessarily immunize defendants from liability. 971 F.2d 375.

Where defendant contended that claim for breach of implied covenant of good faith and fair dealing was barred by two-year statute of limitations governing damage to persons and property ('657-7), since there is no element in the cause of action for bad faith that requires a plaintiff to suffer personal injury, it is not in reality a cause of action based upon a "personal injury", and the applicable statute of limitations is six years and is found in the catchall provision of '657-1 ('657-1(4)). 986 F. Supp. 1334.

It could not be disputed that by the time the underinsured motorist benefits were paid, plaintiff either knew or should have known that defendant's alleged refusal to engage in settlement negotiations caused plaintiff injury; any claims for emotional distress were time-barred. 11 F. Supp. 2d 1204.

Limitations period applicable to cause of action for bad faith, discussed; where complaint was not filed until almost one year after the limitations period had lapsed, to the extent that complaint alleged a claim for the tort of bad faith denial of benefits, summary judgment granted in favor of defendant as to plaintiff's claim for tort of bad faith. 11 F. Supp. 2d 1204.

Contributory negligence. 48 H. 22, 395 P.2d 365.

Assumption of risk. 49 H. 1, 406 P.2d 887; 49 H. 351, 417 P.2d 816.

Unavoidable accident. 47 H. 408, 390 P.2d 740; 48 H. 330, 402 P.2d 289.

Comparative negligence applies only to claims accruing after July 14, 1969, and the rule of contributory negligence continues on claims that accrued before that date. 52 H. 129, 471 P.2d 524.

Interspousal tort immunity upheld. 63 H. 653, 634 P.2d 586.

In implied warranty and strict products liability tort actions, express assumption of risk is available as separate defense that may bar recovery; implied assumption of risk is defense only when plaintiff's assumption of risk is a form of contributory negligence. 74 H. 1, 837 P.2d 1273.

Assumption of risk defense generally applied to tort claims for relief. 74 H. 85, 839 P.2d 10.

UCC statute of limitations applies to breach of express warranty claim for personal injury. 86 H. 383 (App.), 949 P.2d 1004.

Dram shop. Person injured by intoxicated person may recover from tavern which supplied liquor to the intoxicated person in violation of statute. 62 H. 131, 612 P.2d 533.

Duty. Plaintiff failed to demonstrate facts to establish duty owed by defendant, where, inter alia, no evidence found of custody or control of plaintiff's employer's machinery or employees that would create special relationship between defendant and plaintiff's employer or plaintiff. 863 F. Supp. 1193.

In case arising out of alleged assault on airplane, tort claim for breach of duty of reasonable care preempted by Airlines Deregulation Act. 905 F. Supp. 823.

Evidence demonstrated that plaintiffs had never had a relationship with defendant; without a relationship between plaintiffs and defendant, there could be no legal duty. 920 F. Supp. 1080.

Defendant did not owe plaintiffs a duty to deny doctor hospital privileges, where defendant could not reasonably foresee that plaintiff would be injured as a result of doctor's performance of plaintiff's hip revision surgery. 985 F. Supp. 1241.

Where plaintiffs asserted cause of action against defendant for negligent supervision, contending that based on defendant's knowledge of doctor's prior substance abuse, defendant had a duty to supervise doctor's surgical procedures, defendant did not have a duty to specifically supervise doctor's surgical procedures, as opposed to any other physician on its medical staff. 985 F. Supp. 1241.

Defendant, which acted as custodian, granted summary judgment on counts where plaintiff alleged that defendant acted in a negligent or grossly negligent manner by permitting securities to be substituted into custodial account and by releasing cash as alleged. 30 F. Supp. 2d 1255.

Liability not extended to non-commercial suppliers of alcoholic beverages, i.e., the social host. 71 H. 229, 788 P.2d 159.

No finding of negligence where defendants had no duty to protect plaintiff from criminal acts of third person. 73 H. 158, 829 P.2d 512.

Publisher of work of general circulation that neither authored nor guaranteed the contents of its publication had no duty to warn public of accuracy of contents of its publication. 73 H. 359, 833 P.2d 70.

Trial court correctly refused to recognize new tort duty on part of motorcyclists to wear protective headgear. 74 H. 308, 844 P.2d 670.

Section 281-78(a)(2)(A) (1989) imposes a duty to innocent third parties upon a liquor licensee who sells alcohol to a minor; the duty includes the situation where an innocent third party has been injured by an intoxicated minor other than the minor to whom the liquor was sold, subject to determinations by the trier of fact on the issue of reasonable foreseeability. 76 H. 137, 870 P.2d 1281.

Circuit court erred in granting defendants' motion for summary judgment where plaintiff was a business visitor of hotel and there was a genuine issue of material fact regarding issue of reasonable foreseeability. 79 H. 110, 899 P.2d 393.

Insurer has legal duty, implied in first-and third-party insurance contracts, to act in good faith in dealing with insured; breach of that duty gives rise to independent tort cause of action. 82 H. 120, 920 P.2d 334.

Plaintiff's allegations stated a claim that potentially could warrant relief under a theory based on duty by defendant wife to refrain from conduct that would create an unreasonable risk of harm to another through husband's conduct. 82 H. 293, 922 P.2d 347.

Where deceased was not in the custody of defendant, a special relationship did not exist to impose a duty on defendant to prevent deceased's suicide. 83 H. 154, 925 P.2d 324.

Manufacturer not negligent in failing to warn of "blind zone" danger where danger involved in using straddle carrier was obvious and apparent, discernible by casual inspection, and generally known and recognized. 85 H. 336, 944 P.2d 1279.

Manufacturers are not subject in Hawaii to an independent, continuing duty to retrofit its products, subsequent to their manufacture and sale, with post-manufacture safety devices that were unavailable at the time of manufacture. 85 H. 336, 944 P.2d 1279.

No duty by insurance agent to advise insured of option to stack coverage where no evidence agent had informed insureds in the past of changes in insurance laws such that insured would rely on agent to inform them of changes in available coverage without their inquiry. 87 H. 307, 955 P.2d 100.

As dangers of riding unrestrained in open cargo bed of pickup truck are obvious and generally known to ordinary user, truck manufacturer had no duty to warn potential passengers of those dangers. 87 H. 413, 958 P.2d 535.

Hawaii civil rights commission is subject to a duty to follow its own administrative rules, utilizing reasonable care, and was potentially negligent for instituting legal action barred by its own administrative rules. 88 H. 85, 962 P.2d 344.

Where police department did not have "special relationship" with victim, department did not have duty to protect victim or victim=s parents from harm caused by assailant. 89 H. 315, 972 P.2d 1081.

Non-liquor licensee social host does not have non-statutory tort law duty to protect third persons from risks of personal injury and/or property damage caused when certain events occur in certain sequence. 9 H. App. 490, 851 P.2d 332.

Because of the obvious danger to young children, it was unreasonable to require that swimming pool manufacturer furnish labels with its pools warning of that danger; swimming pool manufacturer=s duty to put a safe product on the market includes duty to take such measures in manufacturing and marketing the pool as will reasonably protect against injury to young children arising from their use of the pool. 10 H. App. 547, 879 P.2d 572.

An accountant may be held liable to third parties under '552(2) of Restatement of Torts for negligence in the preparation of an audit report. 86 H. 301 (App.), 949 P.2d 141.

Government. State which holds open a public thoroughfare for travel has duty to maintain it in condition safe for travel. 50 H. 497, 443 P.2d 142.

A nonjudicial government officer has no immunity from suit and is liable if officer was motivated by malice and not by an otherwise proper purpose. 55 H. 499, 522 P.2d 1269.

A public official can be held liable for damages for the malicious exercise of discretion. 2 H. App. 176, 628 P.2d 634.

Nonjudicial government official can be held liable for general, special, and punitive damages if official maliciously exercised official discretion or maliciously committed a tort. 2 H. App. 221, 629 P.2d 635.

Landowner. Liability of wife who is joint owner of land with husband for collapse of retaining wall. 47 H. 149, 384 P.2d 303.

Occupier of land has duty to use reasonable care for the safety of all persons reasonably anticipated to be on premises, regardless of status of individual. 51 H. 134, 452 P.2d 445; 51 H. 299, 459 P.2d 198.

Liability of landowner for injuries caused by landowner's dog to trespassers discussed. 57 H. 620, 562 P.2d 779.

Occupier of land--extent of duty to warn of dangers on premises. 60 H. 32, 586 P.2d 1037.

If a condition exists upon land which poses an unreasonable risk of harm to persons using the land, then the possessor of the land, if the possessor knows, or should have known of the unreasonable risk, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or adequately to warn users against it. 70 H. 415, 772 P.2d 693.

Where plaintiff was injured on motocross track, an area of raceway park not thrown open for admission of the public, Restatement (Second) of Torts '359 could not be a basis for lessor=s liability; lessor not liable under Restatement (Second) of Torts '358, where plaintiffs failed to adduce any facts demonstrating that lessees or sublessees did not know or have reason to know track=s lighting was dangerously inadequate. 76 H. 77, 869 P.2d 216.

Continuing-tort exception, which tolls running of statute of limitations under '662-4, adopted; thus, where an actor continuously diverts water over which he or she has direct control onto another=s land, and the diversion causes continuous and substantial damage to that person=s property and the actor knows of this damage, such an act may present evidence of a continuous tort. 88 H. 241 (App.), 965 P.2d 783.

To recover in negligence, it must be shown that owner or occupant of premises knew or should have known of the hazard causing the injuries. 1 H. App. 554, 623 P.2d 446.

Malicious prosecution. Summary judgment granted in favor of defendants on plaintiff=s malicious prosecution claim, where defendant police officer and defendant resident manager had probable cause to arrest plaintiff for harassment. 855 F. Supp. 1167. 5 H. 609; 6 H. 300; 7 H. 346; 7 H. 569; 10 H. 588; 43 H. 321; 49 H. 416, 421 P.2d 289; 2 H. App. 316, 631 P.2d 600.

In actions for malicious prosecution and false imprisonment, district court conviction conclusively establishes probable cause even if conviction is reversed. 56 H. 383, 538 P.2d 320.

Appellants= state tort claims for false arrest, false imprisonment, and malicious prosecution failed as a matter of law because appellants did not contest the preliminary hearing determination of probable cause and their commitment to circuit court for trial. Appellants failed to cite to any persuasive or relevant authority in support of their contention that where actions or inactions of the prosecutor subsequent to a preliminary hearing "erodes" probable cause, an action for false arrest, false imprisonment, or malicious prosecution arises. 76 H. 219, 873 P.2d 98.

Malpractice. See 43 H. 289.

Physician and surgeon; doctrine of informed consent; duty of physician to make full disclosure. 52 H. 188, 473 P.2d 116.

Manufacturer's package insert, in and of itself, may not establish the relevant standard of care in a medical negligence action. 78 H. 287, 893 P.2d 138.

The question of part (b) causation in an action based on doctrine of informed consent is to be judged by an objective standard, that is, whether a reasonable person in plaintiff-patient's position would have consented to the treatment that led to his or her injuries had plaintiff-patient been properly informed of the risk of the injury that befell him or her. 79 H. 362, 903 P.2d 667.

A consulting physician does not owe a duty to a patient to warn of the inherent risks of a proposed treatment or surgery; however, a physician tendering a second opinion has an obligation to inform a patient of the nature of the proposed treatment or surgery, its risks, and alternatives. 87 H. 183, 953 P.2d 561.

Court erred in holding that plaintff was required to prove by expert testimony that a dentist owes a duty to disclose the risks or potential complications of surgery. 87 H. 183, 953 P.2d 561.

Where physician retained degree of participation in treatment, by way of control, consultation and otherwise, physician had continuing responsibility to properly advise patient of the risks and alternatives to the proposed surgery. 87 H. 183, 953 P.2d 561.

Attorney representing a client may be personally liable to an adverse party or a third person as a result of attorney's intentional tortious act. 1 H. App. 379, 620 P.2d 733.

Master and servant. Negligence claim against employer for failure to conduct adequate investigation of misconduct allegation against employee preempted by Labor Management Relations Act. 817 F. Supp. 850.

In action arising out of citizen=s arrest of plaintiff by defendant resident manager, summary judgment granted in favor of defendant association of apartment owners on both negligent employment and supervision causes of action where plaintiff presented no evidence that defendant association knew or had any reason to know that defendant resident manager posed a threat to plaintiff. 855 F. Supp. 1167.

Where plaintiffs asserted cause of action against defendant for negligent supervision, contending that based on defendant's knowledge of doctor's prior substance abuse, defendant had a duty to supervise doctor's surgical procedures, defendant did not have a duty to specifically supervise doctor's surgical procedures, as opposed to any other physician on its medical staff. 985 F. Supp. 1241.

Discussion of master-servant relationship. 8 H. 168.

Master liable for servants' negligence. 3 H. 170; 29 H. 604; 30 H. 17; see 32 H. 246, aff'd 66 F.2d 929; 30 H. 452.

Employer's liability for false imprisonment. 8 H. 411.

Employer not liable for tort of employee committed while driving car furnished by employer for employee's personal use and so used. 32 H. 246, aff'd 66 F.2d 929.

Detour of 400 feet from route by servant does not necessarily relieve master from liability. 30 H. 457.

Administrator personally liable for negligence of servant even though committed within scope of estate's business. 11 H. 557.

Master's liability for theft by employee. 50 H. 477, 442 P.2d 460.

Various bases for holding employer liable for torts of employee discussed. 50 H. 628, 446 P.2d 821.

Liability of employer for negligence of employees hired out to third persons; doctrine of loaned servant. 52 H. 379, 477 P.2d 611.

Where statutory employer secured workers= compensation coverage as required under chapter 386 by paying a fee for that purpose to the lending employer, and employee received a statutory award for work-connected injuries, statutory employer was entitled to tort immunity. 88 H. 140, 963 P.2d 349.

Hawaii law does not recognize tortious breach of contract actions in the employment context. 89 H. 234, 971 P.2d 707.

Evidence did not support conclusion that employment relationship existed between defendants; even if employment relationship existed, defendant was not acting in scope of employment. 10 H. App. 298, 869 P.2d 1352.

Mental distress. Summary judgment granted in favor of defendants on plaintiff's intentional and negligent infliction of emotional distress claims in action arising out of citizen=s arrest of plaintiff. 855 F. Supp. 1167.

Defendant=s comments, while certainly distasteful, did not rise to level of outrageousness necessary to maintain intentional infliction of emotional distress claim. 866 F. Supp. 1285.

Because plaintiffs did not allege physical injury, there could be no recovery for negligent infliction of emotional distress claim; allegations about defendants= acts fell within meaning of outrageous conduct regarding intentional infliction of emotional distress claim. 895 F. Supp. 1365.

Where damage alleged by plaintiffs was to an expectancy in a life insurance contract, such damage did not qualify as sufficient to give rise to cause of action for negligent infliction of emotional distress; intentional infliction of emotional distress claim dismissed where alleged conduct did not qualify as "outrageous" under Hawaii law. 900 F. Supp. 1339.

Intentional infliction of emotional distress claim rejected, where editorial about plaintiff (when plaintiff was mayor) contained no false factual assertions and "actual malice" could not be established. 930 F. Supp. 1403.

If plaintiff succeeded on bad faith claim, and plaintiff could show that plaintiff's emotional distress damages were proximately caused by defendant insurance company's actions, plaintiff could recover damages for plaintiff's emotional distress as incidentally flowing from the breach. 999 F. Supp. 1369.

Plaintiffs' claims for intentional infliction of emotional distress not barred by Hawaii's Workers' Compensation Act; plaintiffs' claims for negligent infliction of emotional distress barred by the Act. Defendant's motion for summary judgment granted with respect to plaintiffs' claims for negligent and/or intentional infliction of emotional distress, where, inter alia, plaintiffs had not alleged sufficient conduct by defendant to establish a claim for emotional distress. 2 F. Supp. 2d 1295.

It could not be disputed that by the time the underinsured motorist benefits were paid, plaintiff either knew or should have known that defendant's alleged refusal to engage in settlement negotiations caused plaintiff injury; any claims for emotional distress were time-barred. 11 F. Supp. 2d 1204.

Infliction of mental suffering. 39 H. 370.

Negligent infliction of mental distress, actionable when. 52 H. 156, 472 P.2d 509; 55 H. 398, 520 P.2d 758.

Negligent infliction of mental distress: plaintiff must be within reasonable distance of scene of accident. 56 H. 204, 532 P.2d 673.

Damages for emotional distress may be recoverable where there is wanton and reckless breach of contract. 62 H. 594, 618 P.2d 283.

Negligent v. intentional infliction of emotional distress. 64 H. 464, 643 P.2d 532.

Trial court did not err in awarding damages for emotional distress to parents, where appellants claimed parents not entitled to recover damages for emotional distress because they were not present at scene of son=s accident and did not suffer any physical manifestations of emotional distress. 71 H. 1, 780 P.2d 566.

Mental distress damages may be recovered in a products liability implied warranty action. 74 H. 1, 837 P.2d 1273.

Jury instruction concerning negligent infliction of emotional distress should contain the requirement of physical injury to a person, if plaintiff was able to demonstrate such injury. 76 H. 310, 876 P.2d 1278.

Because plaintiff failed to adduce any evidence that defendant acted unreasonably in the course of discharging plaintiff, plaintiff=s claim for intentional infliction of emotional distress was properly dismissed on summary judgment; circuit court properly entered summary judgment in favor of defendant on plaintiff=s negligent infliction of emotional distress claim, where plaintiff presented no evidence of any physical injury to plaintiff or anyone else. 76 H. 454, 879 P.2d 1037.

Defendant father's statement to sister of childhood sexual abuse victim defendant allegedly abused was not so unreasonable or outrageous as to give rise to cause of action by victim for intentional infliction of emotional distress. 83 H. 28, 924 P.2d 196.

Negligent infliction of emotional distress claim denied where plaintiffs failed to furnish evidence of greater mental stress than transient "concern", "worry", and "upset". 85 H. 336, 944 P.2d 1279.

Claim for negligent and/or intentional infliction of emotional distress against Hawaii civil rights commission not barred under '662-15(1), as acts of investigating complaint, instituting suit based on finding of reasonable cause, and sending demand letter were part of routine operations of commission and did not involve broad policy considerations encompassed within the discretionary function exception. 88 H. 85, 962 P.2d 344.

No intentional infliction of emotional distress as commission=s act of sending official letter to settle complaint if appellant paid monetary damages and took out newspaper ad not "outrageous". 88 H. 85, 962 P.2d 344.

Where appellant=s counterclaim lacked any allegation of physical injury to appellant or another as a result of the conduct of the Hawaii civil rights commission, action for negligent infliction of emotional distress could not be maintained. 88 H. 85, 962 P.2d 344.

Emotional distress damages resulting from breach of contract recoverable only where parties specifically provide for them in the contract or where the nature of the contract clearly indicates that such damages are within the parties= contemplation or expectation in the event of a breach. 89 H. 234, 971 P.2d 707.

Emotional distress for failure to make payments on time under a real estate sale contract. 2 H. App. 188, 628 P.2d 214.

Record did not support a finding that defendants wantonly and recklessly breached sub-agreement of sale so as to be liable to plaintiffs for emotional distress damages. 10 H. App. 461, 878 P.2d 725.

An employee may bring action against employer for intentional infliction of emotional distress caused by discrimination in violation of '378-2, and this action is not barred by exclusivity provision of '386-5. 87 H. 57 (App.), 951 P.2d 507.

Motor vehicles. Negligence of driver of automobile not imputed to guests. 31 H. 750. Guest's duty of care. 31 H. 123. Duty of driver to guest. 31 H. 123.

Automobile rear-end collision. 48 H. 411, 405 P.2d 323.

Employers not liable for acts of employees resulting in automobile accident under theories of respondeat superior, negligent entrustment, or general negligence. 72 H. 387, 819 P.2d 84.

Driving vehicle with blood alcohol level above legal limit does not establish actionable or contributory negligence unless causal relationship is established between driver's alleged intoxication and accident. 73 H. 385, 834 P.2d 279.

Where appellants alleged that defendant was liable for deaths caused by drunk driving of one of its employees, appellants presented colorable claim of liability under theory of respondeat superior and viable claim for negligent failure to control an employee under Restatement (Second) of Torts '317. 76 H. 433, 879 P.2d 538.

Products liability. Appellants failed to raise genuine issue of material fact as to whether raw material manufacturer had duty to warn appellants of dangers posed by use of raw material in production of implant devices. 82 F.3d 894.

Contractor not liable under strict products liability doctrine absent evidence that contractor was in product chain of title. 789 F. Supp. 1521.

Because court could not make factual determination as to whether brushless exciter and generator were one "product", court would not grant summary judgment to the effect that all damages claimed under tort and strict liability theories were barred by doctrine of economic loss. 838 F. Supp. 1390.

Device implanted in plaintiff's leg had no requirements imposed upon it by Medical Device Amendments to Federal Food, Drug, and Cosmetic Act or Food and Drug Administration which would preempt state tort claims. 841 F. Supp. 327.

Defendants= motion for partial summary judgment on plaintiff=s claim for strict product liability granted, where defendants did not play integral role in production or marketing of lanai tile, and tile did not constitute a "product" under Hawaii law. 841 F. Supp. 986.

Plaintiffs failed to meet burden of proving that defendant placed defective product in the stream of commerce. 844 F. Supp. 590.

There was no legal basis for requiring raw material supplier to warn ultimate consumers of implant. 844 F. Supp. 590.

Economic loss doctrine applied to tort actions in the case, barring any cause of action in tort and strict liability, where plaintiff suffered only pecuniary injury as result of defendants' alleged conduct and was limited to recovery under law of contract. 955 F. Supp. 1213.

Strict products liability-adoption of doctrine, proof of defect, parties in chain of distribution. 52 H. 71, 470 P.2d 240.

In strict products liability action, state-of-the-art evidence not admissible to establish whether seller knew or should have known of dangerousness of product. 69 H. 287, 740 P.2d 548; 960 F.2d 806.

Punitive damages may be awarded in products liability action based on underlying theory of strict liability where plaintiff proves requisite aggravating conduct on part of defendant. 71 H. 1, 780 P.2d 566.

Publication is not a "product". 73 H. 359, 833 P.2d 70.

To bring implied warranty of merchantability action for personal injury, plaintiff must show product unmerchantability sufficient to avoid summary judgment on issue of defectiveness in a tort strict products liability suit. 74 H. 1, 837 P.2d 1273.

Economic loss rule applies to bar recovery of pure economic loss in actions based on products liability but does not bar actions based on negligent misrepresentation or fraud. 82 H. 32, 919 P.2d 294.

Manufacturer not negligent in failing to warn of "blind zone" danger where danger involved in using straddle carrier was obvious and apparent, discernible by casual inspection, and generally known and recognized. 85 H. 336, 944 P.2d 1279.

Negligence and strict products liability claims against defendants for defective manufacture or design of fungicide not preempted by Federal Insecticide, Fungicide, and Rodenticide Act. 86 H. 214, 948 P.2d 1055.

Where defendants voluntarily assumed express warranty on fungicide label, and though express warranty on label was EPA approved it was not mandated under Federal Insecticide, Fungicide, and Rodenticide Act, Act did not preempt plaintiffs' claims for breach of express warranty. 86 H. 214, 948 P.2d 1055.

As dangers of riding unrestrained in open cargo bed of pickup truck are obvious and generally known to ordinary user, truck manufacturer had no duty to warn potential passengers of those dangers. 87 H. 413, 958 P.2d 535.

Escalator was not a "product" for purposes of strict liability claim against department store where it was located, but was a "product" for purposes of strict liability claims against manufacturer and distributor. 89 H. 204, 970 P.2d 972.

It is not always necessary to produce the specific instrumentality causing the accident to prove a case in products liability. 1 H. App. 111, 615 P.2d 749.

Negligence and strict liability principles, discussed. 10 H. App. 547, 879 P.2d 572.

In breach of express warranty actions based on seller's failure to deliver goods in conformance with an express promise, affirmation of fact, or description, "substantial factor" test proper standard to apply in determining proximate cause. 86 H. 383 (App.), 949 P.2d 1004.

UCC statute of limitations applies to breach of express warranty claim for personal injury. 86 H. 383 (App.), 949 P.2d 1004.

Res ipsa loquitur. Doctrine of res ipsa loquitur under Hawaii tort law did not apply in action under Federal Tort Claims Act for injuries suffered by hand grenade thrown in restaurant parking lot. 938 F.2d 158.

Where inference of negligence raised by res ipsa loquitur is so strong that jury could not reasonably reject it, court may enter judgment n.o.v. 57 H. 279, 554 P.2d 1137.

Instruction. 59 H. 319, 582 P.2d 710.

Elements were not established satisfactorily so as to warrant application of the doctrine; invocation of the doctrine does not establish a presumption of negligence or shift the burden of proof. 77 H. 269 (App.), 883 P.2d 691. See 40 H. 198; 43 H. 289, reh'g den. 43 H. 330; 48 H. 330, 335, 402 P.2d 289; 49 H. 77, 412 P.2d 669, reh'g den. 49 H. 267, 414 P.2d 428.

Other torts. Defendants' statements implying attorney's poor client representation did not place attorney in false light where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false. 56 F.3d 1147.

District court did not err in rejecting appellants= trademark claim, since appellants could offer no evidence that trademark holder voluntarily licensed its trademark to manufacturer or that trademark holder had significant involvement in design, manufacture, or distribution of manufacturer=s implant. 82 F.3d 894.

Plaintiffs= argument that since manufacturer improperly used defendant=s trademark, and defendant failed to prevent this improper use, defendant was liable for alleged defective nature of implant, rejected. 844 F. Supp. 590.

Plaintiff could not prevail on false imprisonment claim, where defendant police officer and defendant resident manager had probable cause to arrest plaintiff for harassment. 855 F. Supp. 1167.

Defendant=s motion to dismiss count regarding tortious interference with contract denied, where defendant alleged that a director or officer may not be liable for tortiously interfering with corporation=s contract unless the director or officer acted solely for personal benefit; plaintiffs stated a claim for tortious interference with contract. 895 F. Supp. 1365.

In case arising out of alleged assault on airplane, tort claims for assault and battery preempted by Airlines Deregulation Act. 905 F. Supp. 823.

Plaintiffs failed to demonstrate that their claim for tortious interference with contract had any factual basis. 920 F. Supp. 1080.

Hawaii supreme court, seeking to avoid inequitable or absurd result, would allow plaintiff's bad faith claim, where plaintiff submitted claims to defendant insurer for losses suffered as a third-party beneficiary of insurance contract. 947 F. Supp. 429.

Independent cause of action for breach of covenant of good faith and fair dealing would not lie, where there was no coverage liability on underlying insurance policy. 955 F. Supp. 1218.

Where defendant contended that claim for breach of implied covenant of good faith and fair dealing was barred by two-year statute of limitations governing damage to persons and property ('657-7), since there is no element in the cause of action for bad faith that requires a plaintiff to suffer personal injury, it is not in reality a cause of action based upon a "personal injury", and the applicable statute of limitations is six years and is found in the catchall provision of '657-1 ('657-1(4)). 986 F. Supp. 1334.

Limitations period applicable to cause of action for bad faith, discussed; where complaint was not filed until almost one year after the limitations period had lapsed, to the extent that complaint alleged a claim for the tort of bad faith denial of benefits, summary judgment granted in favor of defendant as to plaintiff's claim for tort of bad faith. 11 F. Supp. 2d 1204.

Violations of the unfair settlement provision, '431:13-103(a), may be used as evidence to indicate bad faith in accordance with the guidelines of Best Place, Inc. v. Penn America Ins. Co. 27 F. Supp. 2d 1211.

Plaintiff failed to exhaust the administrative remedies provided to plaintiff by chapter 386; prior to filing a separate suit for bad faith denial of benefits or payments, plaintiff must first exhaust all available administrative remedies before the department of labor and industrial relations, disability compensation division. 28 F. Supp. 2d 588.

Assault aboard ship. 2 H. 255; 29 H. 564.

Wilful negligence. 30 H. 12.

Public contractor. 31 H. 296.

Landlord, tenant and third party. 31 H. 740.

Landlord and tenant. 11 H. 395.

Conditional vendee may maintain action for injury to property. 30 H. 44.

Collision defined. 29 H. 101. See 29 H. 122.

Disposal of surface waters, resultant damage. 40 H. 193; 47 H. 68, 384 P.2d 308; 47 H. 329, 388 P.2d 214.

Operator of bathing pools, duty of. 40 H. 513.

Disposal of surface waters. 52 H. 156, 472 P.2d 509.

Liability of one who voluntarily undertakes a course of conduct intended to induce another to engage in an action. 58 H. 502, 573 P.2d 107.

Appellants= state tort claims for false arrest, false imprisonment, and malicious prosecution failed as a matter of law because appellants did not contest the preliminary hearing determination of probable cause and their commitment to circuit court for trial. Appellants failed to cite to any persuasive or relevant authority in support of their contention that where actions or inactions of the prosecutor subsequent to a preliminary hearing "erodes" probable cause, an action for false arrest, false imprisonment, or malicious prosecution arises. 76 H. 219, 873 P.2d 98.

Where defendants-appellants brought interference with contract claim against plaintiff-appellee, there was no evidence that plaintiff-appellee intentionally induced [third party] to breach agreement with defendants-appellants, and defendants-appellants failed to prove damages resulting from the alleged breach. 78 H. 40, 890 P.2d 277.

Bad faith cause of action may be brought by first-party insured for insurer misconduct. 82 H. 120, 920 P.2d 334.

Breach of implied contractual duties owed by workers' compensation insurer to employee, including duty to handle and pay claims in good faith, gives rise to independent tort cause of action by employee, the intended third-party beneficiary. 83 H. 457, 927 P.2d 858.

Claimant not precluded by exclusivity provision of '386-5 from seeking common law tort remedies against employer's insurer where injuries allegedly caused by insurer's denial of medical benefits and disability payments not "work injuries" within scope of chapter 386. 83 H. 457, 927 P.2d 858.

In the context of construction litigation regarding the alleged negligence of design professionals, a tort action for negligent misrepresentation alleging damages based purely on economic loss is not available to a party in privity of contract with a design professional; recovery limited to contract remedies. 87 H. 466, 959 P.2d 836.

Hawaii law does not recognize tortious breach of contract actions in the employment context. 89 H. 234, 971 P.2d 707.

Tort recovery, including recovery of punitive damages, is not allowed under Hawaii law for breach of contract in the absence of conduct that (1) violates a duty that is independently recognized by principles of tort law and (2) transcends the breach of the contract. 89 H. 234, 971 P.2d 707.

Where insured presented evidence that raised genuine issue of material fact as to insurer=s liability for bad faith if insurer=s law firm=s conduct of defense breached law firm=s duties towards insured and breach was causally induced by insurer=s actions, summary judgment erroneously entered in favor of insurer on insured=s bad faith claim. 90 H. 39, 975 P.2d 1159.

Sellers= brokers not entitled as a matter of law to a judgment that they were not liable to buyer for tort of negligent misrepresentation. 6 H. App. 188, 716 P.2d 163.

Where public policy against terminating employee solely because employee suffered a compensable work injury is evidenced in '378-32 and remedy is available under '378-35, judicially created claim of wrongful discharge in violation of public policy could not be maintained. 87 H. 57 (App.), 951 P.2d 507.

A plaintiff alleging the tort of interference with prospective contractual relations must plead and prove six elements. 87 H. 394 (App.), 957 P.2d 1076.

Under circumstances of case, defendant=s communication of information to prospective employer=s manager was privileged because it was truthful; thus, defendant could not be held liable as a matter of law for any alleged intentional interference with plaintiff=s prospective employment contract with prospective employer. 87 H. 394 (App.), 957 P.2d 1076.

Allowance of intrafamily tort suits in Hawaii does not constitute a public policy which may be used to invalidate household exclusion clauses in a homeowner=s policy. 87 H. 430 (App.), 958 P.2d 552.

As action for bad faith against insurer is an independent tort, the proper limitation provision for bringing an action should not be that provided in the insurance policy, but rather that provided in '657-7, which limits causes of action for torts to two years. 88 H. 442 (App.), 967 P.2d 639.

Where insured=s bad faith claim was not "any issue referable to arbitration under an agreement in writing" under '658-5, and action for bad faith in the first-party insurance context is independent of the policy, an ongoing appraisal process did not bar insured from bringing a lawsuit alleging bad faith handling of insured=s claim. 88 H. 442 (App.), 967 P.2d 639.

Sale by real estate broker of client's property to a party in which broker had pecuniary interest without disclosure to client was constructive fraud. 2 H. App. 188, 628 P.2d 214.

False imprisonment. 2 H. App. 655, 638 P.2d 383.

Miscellaneous. Where money is tortiously taken claimant may waive tort and sue in assumpsit. 11 H. 270.

Contract of bailment, duty of bailor. 28 H. 145; 47 H. 588, 393 P.2d 171.

Pleading scope of authority. 29 H. 604; 30 H. 452.

Last clear chance, essential elements. 52 H. 129, 471 P.2d 524.

Choice of law. 63 H. 653, 634 P.2d 586.

'663-3

Death by wrongful act.

(a) When the death of a person is caused by the wrongful act, neglect, or default of any person, the deceased's legal representative, or any of the persons enumerated in subsection (b), may maintain an action against the person causing the death or against the person responsible for the death. The action shall be maintained on behalf of the persons enumerated in subsection (b), except that the legal representative may recover on behalf of the estate the reasonable expenses of the deceased's last illness and burial.

(b) In any action under this section, such damages may be given as under the circumstances shall be deemed fair and just compensation, with reference to the pecuniary injury and loss of love and affection, including:

(1) Loss of society, companionship, comfort, consortium, or protection;

(2) Loss of marital care, attention, advice, or counsel;

(3) Loss of care, attention, advice, or counsel of a reciprocal beneficiary as defined in chapter 572C;

(4) Loss of filial care or attention; or

(5) Loss of parental care, training, guidance, or education, suffered as a result of the death of the person; by the surviving spouse, reciprocal beneficiary, children, father, mother, and by any person wholly or partly dependent upon the deceased person. The jury or court sitting without jury shall allocate the damages to the persons entitled thereto in its verdict or judgment, and any damages recovered under this section, except for reasonable expenses of last illness and burial, shall not constitute a part of the estate of the deceased. Any action brought under this section shall be commenced within two years from the date of death of the injured person, except as otherwise provided.

[L 1923, c 245, '1; RL 1925, '2681; am L 1931, c 16, '1; am L 1933, c 139, '1; RL 1935, '4052; RL 1945, '10486; am L 1955, c 205, '1; RL 1955, '246-2; HRS '663-3; am L 1972, c 144, '2(c); am L 1997, c 383, '20]

[[See also the note written above for Section 663-1, above that Section=s annotations.]]

[[annotations:]]

Rules of Court

See HRCP rule 17.

Law Journals and Reviews

Masaki v. General Motors Corp.: Negligent Infliction of Emotion Distress and Loss of Filial Consortium. 12 UH L. Rev. 215.

Punitive Damages in Hawaii: Curbing Unwarranted Expansion. 13 UH L. Rev. 659.

Case Notes

Action barred in Hawaii district courts under Death on the High Seas Act. 230 F.2d 780.

Section does not authorize punitive damages. 644 F.2d 594.

No recovery on the facts, by father and sister of victim of shell explosion. 158 F. Supp. 394.

Parents may bring an action for wrongful death of a viable fetus. 745 F. Supp. 1573.

Cause of action existed for child's loss of consortium despite non-fatal injury to parent. 781 F. Supp. 1487.

Damages parents entitled to for loss of son, discussed. 823 F. Supp. 778.

Limitations period in section applied, where defendants argued that plaintiff=s wrongful death action was derivative of the claims of the estate and therefore barred by applicable statutes of limitation; statute of limitations governing plaintiff=s claim should begin to run when plaintiff experienced plaintiff=s injury, not when plaintiff=s husband knew of husband=s injury. 854 F. Supp. 702.

Prior to this enactment, no action maintainable by parent for death of adult daughter by wrongful act. 27 H. 626.

There was a common-law action for death of spouse or minor child. 2 H. 209; 16 H. 615.

Common-law action based on relationship of husband and wife and parent and child not abrogated by this section prior to 1955 amendments. 37 H. 571. See 45 H. 373, 394, 369 P.2d 96, reh'g den. 45 H. 443, 369 P.2d 114, as to effect of 1955 amendments.

Child has no cause of action for injuries to parent not resulting in death. 41 H. 634; 244 F.2d 604.

Action against employer barred where dependent of decedent has remedy for compensation under Workmen's Compensation Act. 41 H. 422; 42 H. 518.

Effect of Workmen's Compensation Law prior to 1931 amendments. 32 H. 61; 32 H. 153.

Relationship between this section and '663-7 discussed. 45 H. 373, 369 P.2d 96.

Damages: 34 H. 5; 34 H. 426; 40 H. 691.

Damages to widow and children for loss of support and loss of love, care, affection and guidance. 282 F.2d 599.

Recovery for loss of support, computation of. 245 F. Supp. 981, 1012-1016, aff'd 381 F.2d 965.

Recovery by widow and child of decedent for loss of consortium and parental care. 245 F. Supp. 981, 1017-1018, aff'd 381 F.2d 965.

Although trial court may not have been completely accurate in certain particulars in awarding damages, not set aside if the total award is reasonable. 499 F.2d 866.

Parties, prior to 1933 amendment. 32 H. 611. See 135 F. Supp. 376; 244 F.2d 604.

Dependents, who are. 34 H. 426, 442.

The limitations period is tolled by '657-13 during minority of surviving children. 63 H. 273, 626 P.2d 182; 69 H. 410, 745 P.2d 285.

If decedent had no cause of action, survivors had none. 69 H. 95, 735 P.2d 930.

Since claims were derivative in nature and arose from a single person, defendant was not underinsured. 70 H. 42, 759 P.2d 1374.

Section does not distinguish between minor and adult children. 71 H. 1, 780 P.2d 566.

Section entitles any person wholly or partially dependent on deceased to raise claims for both pecuniary injuries and loss of love and affection. 75 H. 544, 867 P.2d 220.

A breach of express warranty action could be a basis for a derivative wrongful death action brought pursuant to this section. 86 H. 383 (App.), 949 P.2d 1004.

As cause of action for punitive damages survives the death of the decedent under '663-7, punitive damages are not recoverable in an action under this section. 87 H. 273 (App.), 954 P.2d 652.

Claims brought under this section must relate to the general loss of love and affection suffered by the designated survivors. 87 H. 273 (App.), 954 P.2d 652.

Cited: 349 F.2d 693, 698; 134 F. Supp. 868, 870; 351 F. Supp. 185, 187; 41 H. 603, 604; 45 H. 443, 444, 369 P.2d 96.

 

 

[[Chapters 701-713, APenal Code@]]

[[Chapter 706, ADisposition of Convicted Defendants@]]

[[Part IV, AImprisonment@]]

'706-670.5

Notice of parole or final unconditional release.

(1) As used in this section, the following terms have the following meanings:

"Offense against the person" means any of the offenses described in chapter 707 and includes any attempt to commit any of those offenses.

APrisoner" or "parolee" means a person who has been convicted of an offense against the person.

ASurviving immediate family member" means a person who is a surviving grandparent, parent, sibling, spouse or reciprocal beneficiary, child, or legal guardian of a deceased victim.

AVictim" means the person who was the victim of the offense against the person for which the prisoner or parolee was convicted.

(2) The Hawaii paroling authority shall give written notice of the parole or release from parole of a prisoner or parolee to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

(3) The department of public safety shall give written notice of the final unconditional release of a prisoner or parolee, who has not been previously paroled or discharged, to each victim who has submitted a written request for notice or to a surviving immediate family member who has submitted a written request for notice.

(4) The authority or department, as the case may be, shall provide written notice to the victim or surviving immediate family member at the address given on the written request for notice or such other address as may be provided by the victim or surviving immediate family member, not less than ten days prior to parole or final unconditional release. The authority or department, in its discretion, may instead give written notice to the witness or victim counselor programs in the prosecuting attorney's office in the county where the victim or the surviving immediate family member resides.

(5) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority.

[L 1983, c 184, '2(2); am L 1985, c 227, '1; am L 1987, c 338, '10; am L 1989, c 211, '8; am L 1997, c 383, '66]

[[annotations:]]

Revision Note

Subsection designations changed to conform to style of Penal Code.

Cross References

Notice of escape, see '706-673.

Sex offender registration, see chapter 846E.

COMMENTARY ON '706-670.5

Act 184, Session Laws 1983, added this section to require notification to a crime victim if a defendant who harmed the victim is released into the community after conviction. This addition was intended to insure that crime victims "are treated with fairness and respect" and that agencies in the criminal justice system cooperate with each other to provide information and other help to crime victims. House Conference Committee Report No. 46.

Act 227, Session Laws 1985, amended this section so that:

(1) victims or surviving immediate family members of a deceased victim are notified whenever the offender is paroled or unconditionally released; and

(2) in lieu of notifying a victim or surviving family member, the appropriate authorities may notify the witness or victim counselor programs in the county where the victim or a family member resides.

Under prior law, only the victim was notified of the parole or unconditional release. House Conference Committee Report No. 5, Senate Conference Committee Report No. 4.

Act 383, Session Laws 1997, amended this section by amending the definition of "surviving immediate family member" to include a reciprocal beneficiary. The amendment establishes the status of reciprocal beneficiaries and provides certain state governmental benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to victims rights. Conference Committee Report No. 2.

 

'706-673

Notice of escape.

(1) As used in this section, the following terms have the following meanings:

"Offense against the person" means any of the offenses described in chapter 707 and includes any attempt to commit any of those offenses.

APrisoner" means a person who has been convicted of an offense against the person.

ASurviving immediate family member" means a person who is a surviving grandparent, parent, sibling, spouse or reciprocal beneficiary, child, or legal guardian of a deceased victim.

AVictim" means the person who was the victim of the offense against the person for which the prisoner was convicted.

(2) Upon written request, the department of public safety shall give notice of the escape of a prisoner, immediately following the escape, by the most reasonable and expedient means available, to each victim or a surviving immediate family member of the victim, through the victim witness assistance program in the county where the crime was committed.

(3) Neither the failure of any state officer or employee to carry out the requirements of this section nor compliance with it shall subject the State, the officer, or employee to liability in any civil action. However, such failure may provide a basis for such disciplinary action as may be deemed appropriate by a competent authority.

[L 1990, c 193, '1; am L 1997, c 383, '67]

[[annotations:]]

Cross References

Sex offender registration, see chapter 846E.

COMMENTARY ON '706-673

Act 193, Session Laws 1990, added this section which would require the department of public safety to notify victims or their next-of-kin of an escape by the prisoner who committed a crime against the victim. The legislature felt this requirement would make victims of crimes feel more secure knowing they would be notified immediately if the prisoner escaped. Senate Standing Committee Report No. 2935.

Act 383, Session Laws 1997, amended this section by amending the definition of "surviving immediate family member" to include a reciprocal beneficiary. The amendment establishes the status of reciprocal beneficiaries and provides certain state governmental benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to victims rights. Conference Committee Report No. 2.

 

 

[[Chapters 701-713, APenal Code@ (continued)]]

[[Chapter 707, AOffences Against the Person@]]

[[Part VII, AExtortion@]]

'707-769

Defenses to extortion.

(1) It is a defense to a prosecution for extortion as defined by paragraph (1) of section 707-764 that the defendant:

(a) Was unaware that the property or service was that of another; or

(b) Believed that the defendant was entitled to the property or services under a claim or right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

(2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for extortion under paragraph (1) of section 707-764 that:

(a) The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and

(b) The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

(3) "Household belongings" means furniture, personal effects, vehicles, or money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

(4) It is an affirmative defense to a prosecution for extortion as defined in paragraphs (1) and (2) of section 707-764 and as further defined by subparagraphs (e), (f), (g), and (i), that the defendant believed the threatened accusation, penal charge, or exposure to be true, or the proposed action of a public servant was justified, and that the defendant's sole intention was to compel or induce the victim to give property or services to the defendant due the defendant as restitution or indemnification for harm done, or as compensation for property obtained or lawful services performed, or to induce the victim to take reasonable action to prevent or to remedy the wrong which was the subject of the threatened accusation, charge, exposure, or action of a public servant in circumstances to which the threat relates.

(5) In a prosecution for extortion as defined in paragraph (1) of section 707-764, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled.

[L 1979, c 106, pt of '1; gen ch 1993; am L 1997, c 383, '68]

[[annotations:]]

Case Notes

Defendant's attempt to obtain plaintiff's property was made under claim of [sic] right. 855 F. Supp. 1156.

COMMENTARY ON ''707-764 TO 769

Act 106, Session Laws 1979, established these sections as part of a consolidation of laws pertaining to extortion wherein the Legislature sought to make those laws simpler and more comprehensive. The Legislature rejected a provision making acts which caused the victim "great mental anguish" extortion in the first degree on the grounds that such a standard is too subjective, and would differ from one individual to the next. Conference Committee Report No. 43.

Act 28, Session Laws 1993, amended '707-766 by stating the elements of the offense of extortion in the second degree in the disjunctive, consistent with the intent of the 1979 legislature in enacting that section, and by making the language of that section gender neutral. House Standing Committee Report No. 190, Senate Standing Committee Report No. 1121.

Act 383, Session Laws 1997, amended '707-769 to provide a defense to prosecution for extortion to reciprocal beneficiaries. In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits, and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage. Conference Committee Report No. 2.

 

 

[[Chapters 701-713, APenal Code@ (continued)]]

[[Chapter 708, AOffences Against Property@]]

[[Part IV, ATheft and Related Offences@]]

'708-834

Defenses: unawareness of ownership; claim of right; household belongings; co-interest not a defense.

(1) It is a defense to a prosecution for theft that the defendant:

(a) Was unaware that the property or service was that of another; or

(b) Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

(2) If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for theft of property that:

(a) The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and

(b) The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

(3) "Household belongings" means furniture, personal effects, vehicles, money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

(4) In a prosecution for theft, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled.

[L 1972, c 9, pt of '1; am L 1979, c 106, '8; am L 1980, c 232, '41; gen ch 1993; am L 1997, c 383, '69]

[[annotations:]]

COMMENTARY ON '708-834

[[Note: the footnotes in this commentary, numbered 1-3 and each enclosed in single brackets, are given at the end of all the annotations on this Section.]]

Both the defenses allowed under '708-834(1) are probably unnecessary in light of an informed reading of the substantive definitions of the various modes of theft. The existence of either condition (a) or (b) would relieve the actor of the culpability required to establish the offense: the actor could not have intended to deprive another of property (or refuse payment for services) unless the actor was aware that the property or services were that of another; and a claim of right, assuming that it amounts to a belief that the actor is the true owner, would not only indicate that the actor did not have the requisite mental state, it would constitute a mistake of fact defense under '702-218. The summary and restatement of this subsection is principally for purposes of clarity and emphasis. The marital defense of subsection (2) is based upon various theories. First, the uncertainty of ownership of much household property, together with the potential bitterness of interspousal conflict, provide numerous opportunities for a miscarriage of justice.[1] Alternatively, it is said that household belongings, defined in subsection (3), constitute a kind of "common pool of wealth," and that misappropriations in this context are so generally tolerated as not to deviate substantially from socially-accepted norms. A wife who rifles her husband's wallet, or a husband who pawns his wife's jewelry, does not present a grave danger to the community, so long as the activity is so confined. Finally, criminal courts are unsuited to handle breakdowns in the family structure of which interspousal theft complaints are only a symptom.[2] Subsection (4) is intended to cover the situation where an aggrieved person attempts to seek an informal solution by threatening legal action unless restitution, indemnification, or compensation is made. The most significant instance of this device is the waiver of prosecution commonly offered by insurance companies in exchange for the return of valuable merchandise. The rationale here is that it is hardly fair to penalize someone for trying to recover one's own goods (or the value thereof), nor could the penal law realistically expect to suppress such natural inclinations. Subsection (5) merely requires that the interest which the actor asserts under a claim of right must be inconsistent with that of the victim. The premise is that if the interest is not inconsistent, it does not justify the actor's possession as opposed to that of the victim. Furthermore, it is felt that "co- owners should be as well protected against the depredations of other co-owners as they are against outsiders."[3]

SUPPLEMENTAL COMMENTARY ON '708-834

Act 106, Session Laws 1979, amended this section as part of a consolidation of laws pertaining to extortion.

Act 232, Session Laws 1980, added subsection (4) and the words "co-interest not a defense" in the section heading to restore language erroneously omitted by L 1979, Act 107, '8.

Act 383, Session Laws 1997, amended this section to provide a defense to prosecution for theft of property to reciprocal beneficiaries. In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage. Conference Committee Report No. 2.

Case Notes

Claim of right defense discussed. 62 H. 25, 608 P.2d 855.

Claim of right defense to theft under this section does not apply in a prosecution for robbery. 83 H. 264, 925 P.2d 1088.

Subsection (1)(b)=s defense was not applicable to offense of unauthorized control of propelled vehicle ('708-836). 10 H. App. 200, 862 P.2d 1073.

________________

'708-834 Commentary [[Footnotes]]:

1. M.P.C., Tentative Draft No. 2, comments at 104 (1954).

2. Id. at 104-5.

3. See Prop. Mich. Rev. Cr. Code, comments at 246.

 

 

[[Chapters 701-713, APenal Code@ (continued)]]

[[Chapter 709, AOffences Against the Family and Against Incompetents@]]

'709-906

Abuse of family or household members; penalty.

(1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter. For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:

(a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;

(b) Where the police officer has reasonable grounds to believe that there is probable danger of further physical abuse or harm being inflicted by one person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of twenty-four hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;

(c) Where the police officer makes the finding referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;

(d) All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

(e) If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

(f) The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

(a) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For a second offense and any other subsequent offense that occurs within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days. Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

(7) For any subsequent offense occurring within two years after a second misdemeanor conviction, the person shall be charged with a class C felony.

(8) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(9) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(10) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(11) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.

(12) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.

(13) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

(14) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court.

[L 1973, c 189, '1; am L 1980, c 106, '1 and c 266, '2; am L 1981, c 82, '37; am L 1983, c 248, '1; am L 1985, c 143, '1; am L 1986, c 244, '1; am L 1987, c 360, '1; am L 1991, c 215, ''2, 4 and c 257, ''1, 2; am L 1992, c 290, '7; am L 1994, c 182, ''1, 3; am L 1995, c 116, '1; am L 1996, c 201, '2; am L 1997, c 321, '1, c 323, '1, and c 383, '70; am L 1998, c 172, '8; am L 1999, c 18, '18]

[[annotations:]]

Cross References

Shelters, unlawful entry, see '708-816.5.

COMMENTARY ON '709-906

This section was added by Act 189, Session Laws 1973, to provide protection to a spouse from being physically abused by the other spouse. Standing Committee Report No. 828 (1973) states: "It is apparent today that there is little, if any, protection for a spouse beaten by the other spouse.... This bill is intended to alleviate this problem to a certain extent. A police officer, upon arrival at the scene, is given the power to arrest if the offense is committed in his presence. Section 571-14(2)(B) gives the family court exclusive jurisdiction over any adult charged with an offense, other than a felony, against the person of the defendant's husband or wife. Section 571-42 establishes the procedure to be followed in such cases. It is intended by your Committee that these laws be enforced to the extent that they will afford the abused spouse the necessary protection needed. Further, unless it appears adverse to the best interests of all concerned, the family unity should be retained without the necessity of the abusing spouse being branded a 'criminal.' Toward this end, the courts are asked to aid these persons needing its assistance in order that they may be rehabilitated."

SUPPLEMENTAL COMMENTARY ON '709-906

Act 106, Session Laws 1980, amended subsection (1) to authorize the police to transport the victim of spouse abuse to a safe place when in the investigating officer's judgment it is reasonably necessary to do so and there is no effective alternative transportation. Senate Standing Committee Report No. 667-80, House Standing Committee Report No. 875-80.

Act 266, Session Laws 1980, amended subsections (2) and (3) to authorize a police officer to make an arrest or take the actions specified in subsection (3) regardless of whether the physical abuse occurred in the officer's presence or not. The changes to this section and the enactment of '709-907 were intended to expand the protection and remedies available to a spouse who is the victim of non-felonious offense against the person committed by the other spouse. While recognizing the expertise of the family court, the conference committee stated that "your Committee is concerned that family court administrative policies may be diverting an inordinate number of petitions for summonses to counseling, and respectfully recommends that the court review its policy to ensure that the remedy the law creates not be vitiated by undue reluctance to employ it." Conference Committee Report No. 29-80 (33-80).

Act 82, Session Laws 1981, substituted "the abused person" for "such person" in the last sentence of subsection (1) for purposes of clarity.

Act 248, Session Laws 1983, amended this section and repealed '709-907. Two of the changes made in this section were intended to encourage more immediate police action in spouse abuse cases: the removal of the requirement that "substantial" physical harm to a spouse occur before police can act and the granting of civil immunity to police who act in good faith when arresting persons for spouse abuse. Along with other changes, these changes were felt to "greatly assist in dealing with spouse abuse." The section was also amended to substitute sex-neutral terms for gender-based language. Senate Standing Committee Report No. 793.

Act 143, Session Laws 1985, amended the spouse abuse law to:

(1) require police to prepare a written report if there are reasonable grounds to believe that abuse exists;

(2) increase the "cooling off" period to twelve hours;

(3) require the arrest of the abuser who refuses to leave the premises when ordered by police or who returns before the "cooling off" period expires;

(4) mandate a minimum 48-hour jail term and counseling and treatment of a convicted abuser; and

(5) extend coverage of the law to protect family or household members from abuse.

These changes are intended to effectively address and combat family violence and its effect on the community. Senate Conference Committee Report No. 6, House Conference Committee Report No. 15.

Act 244, Session Laws 1986, required police to issue written citations to abusive persons ordered to leave the premises of a family or household for a cooling off period. The written citation would accomplish a number of purposes. First, it informs the abusive person of the conditions of the cooling off period. Second, the citation helps insure that the cooling off period is observed. Third, responding police may use the citation as an efficient means of transmitting information to police on subsequent shifts who are resummoned to the same household where the abuse occurred. Finally, the citation eases prosecution of the abusive person since it records the exact facts of the alleged abuse and provides proof that the defendant was notified of the conditions of the cooling off period. House Standing Committee Report No. 518-86, Senate Standing Committee Report No. 940-86.

Act 360, Session Laws 1987, changed the time period before which a person convicted under this section may apply for an order to expunge their records, from one year to five years. The legislature found that the five year period would cover a crucial period in which reabuse is frequent. The legislature stated a five year period would provide a more realistic time period in which a person may demonstrate that expungement is warranted. Senate Standing Committee Report Nos. 879 and 1126.

Act 290, Session Laws 1992, amended this section by providing that for the first offense of the abuse of a household member the person shall serve a minimum jail sentence of forty-eight hours, and, for subsequent offenses occurring within one year of the previous offense, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days. Conference Committee Report No. 122.

Act 182, Session Laws 1994, amended this section to provide for a twenty-four hour cooling off period and to extend the cooling off period until the first day following a weekend or legal holiday. Conference Committee Report No. 50.

Act 116, Session Laws 1995, deleted the repeal date of the amendment to this section made by Act 182, Session Laws 1994, which provided for a twenty-four hour cooling off period. The legislature found that the cooling off period imposed by the police in certain circumstances was very successful in preventing further domestic violence; the cooling off period created a "safe" period during which abuse victims might seek refuge in a shelter or use other safety options. Making the twenty-four hour cooling off period a permanent requirement would allow the police to continue to use the cooling off period to prevent domestic abuse. House Standing Committee Report No. 1566.

Act 321, Session Laws 1997, amended this section by deleting subsection (13) to eliminate the possibility of expungement of records relating to a person's arrest, trial, conviction, dismissal, or discharge involving abuse of a family or household member. The legislature found that domestic violence was a serious crime affecting many families in the community, and for which perpetrators must be held accountable. Further, the repetitive and retaliatory nature of domestic violence required accurate and complete documentation of a perpetrator's history for the future safety of the victim and the victim's family. Senate Standing Committee Report No. 1553.

Act 323, Session Laws 1997, amended subsection (4) by prohibiting contact with a victim of domestic violence, regardless of location, during the "cooling off" period. The Act prohibited the perpetrator of domestic violence from "initiating" contact with the victim so that a violation of subsection (4) was avoided in the event that the victim had reason to contact the perpetrator. The legislature found that the provisions regarding the "cooling off" orders issued by police have had a significant impact in denying domestic violence perpetrators access to their victims. However, its success has been limited in part by the fact that the protection extends only to the premises and not to the victims themselves or to other locations that might be important to the victims, such as their place of employment. The legislature believed that extending the temporary protective legal shield to victims, regardless of their location, would remedy the problem. House Standing Committee Report No. 1481.

Act 383, Session Laws 1997, amended this section by amending the definition of "family or household member" to include reciprocal beneficiaries and former reciprocal beneficiaries. The amendment establishes the status of reciprocal beneficiaries and provides rights and benefits to those with that status. Among the benefits extended to reciprocal beneficiaries which are substantially equivalent to those extended to spouses is legal standing relating to domestic violence family status. Conference Committee Report No. 2.

Act 172, Session Laws 1998, amended this section by, among other things, adding persons who have a child in common to the definition of "family or household member", changing the term "cooling off period" to "period of separation", and making the third offense of abuse of family or household member within two years of the second conviction a felony. Act 172 also amended the section to require that defendants convicted of abuse of family or household member be immediately incarcerated, clarifying that the amendment did not affect the defendant's right to bail pending appeal pursuant to chapter 804, and that the court, upon a finding of special circumstances, may stay the imposition of the jail term. Additionally, Act 172 deleted "recent" with respect to police issuance of twenty-four hour warnings. Under current law, if a police officer had reasonable grounds to believe that there was recent physical abuse or harm, the officer may order the abuser to leave the premises for a cooling off period of twenty-four hours. The legislature found that police officers responding to a domestic violence complaint had to make quick decisions on whether or not to remove an abuser from a home. The decision was often delayed because an officer had to interpret how "recently" the physical abuse occurred. Deleting the ambiguous term would result in more twenty-four hour warnings, thereby protecting more victims of domestic abuse. Act 172 also substituted the phrase "domestic violence intervention" for "domestic violence treatment or counseling"; the change reflected the current language in the domestic violence community. Conference Committee Report No. 80, House Standing Committee Report No. 578-98.

Law Journals and Reviews

Essay: When Less Is More--Can Reducing Penalties Reduce Household Violence? 19 UH L. Rev. 37.

Case Notes

Term "physical abuse" is not vague or overbroad. 69 H. 620, 753 P.2d 1250.

Refusal to sign the twelve hour warning was not a crime. 71 H. 53, 781 P.2d 1041.

Mutual affray is not a defense. 71 H. 165, 785 P.2d 1320.

Statute is not unconstitutionally vague or overbroad; victim residing in the same dwelling with defendant for fourteen weeks in another person's house was considered a "family or household member." 71 H. 479, 795 P.2d 280.

Not violated by parent who hit child with belt. 72 H. 241, 813 P.2d 1382.

Constitutional right to confrontation violated. 72 H. 469, 822 P.2d 519.

Trial court's imposition of sentence based solely on unsupported finding that "victim lied for the defendant" unconstitutionally punished defendant for an uncharged crime. 72 H. 521, 824 P.2d 837.

Because a person convicted of offense may be imprisoned for up to one year, the court had a duty to inform defendant of defendant's right to trial by jury in order to ensure a knowing and voluntary waiver of that right. 75 H. 118, 857 P.2d 576.

Prosecution not precluded by principles of double jeopardy from re-trying defendant, where testimony constituted substantial evidence supporting trial court's conviction. 75 H. 118, 857 P.2d 576.

Double jeopardy clause of Hawaii constitution barred unlawful imprisonment but not terroristic threatening prosecution of defendant who had been found guilty of abuse under this section. 75 H. 446, 865 P.2d 150.

Absence of any evidence in the record that defendant and complaining witness were family or household members recognized as plain error necessitating reversal of defendant=s conviction. 78 H. 185, 891 P.2d 272.

Requisite state of mind for violation of subsection (1) is intentionally, knowingly, or recklessly; prosecution need only prove recklessness. 81 H. 131, 913 P.2d 57.

Substantial evidence proved defendant consciously disregarded substantial and unjustifiable risk of physically abusing wife by slapping her on side of head. 81 H. 131, 913 P.2d 57.

Police not authorized to order domestic disputants to separate except as specified in this section. 7 H. App. 28, 742 P.2d 388.

Where extended family lives together as a common household, defendant and daughter-in-law were "residing in the same dwelling unit". 9 H. App. 325, 839 P.2d 530.

When family court implicitly entered a deferred acceptance of guilty plea pursuant to '853-1 and conditioned deferral upon defendant=s submitting to counseling according to schedule and not committing any subsequent offenses, family court violated '853-4(2), where defendant was charged with abuse of family and household members. 10 H. App. 148, 861 P.2d 759.

The fact that defendant was a "family or household member" for purposes of this section did not satisfy '571-14(1)=s subject matter jurisdiction factual criteria because a "family or household member" is not by that fact "the child=s parent or guardian or ... any other person having the child=s legal or physical custody". 77 H. 260 (App.), 883 P.2d 682.

In subsection (1), to "physically abuse" someone means to maltreat in such a manner as to cause injury, hurt, or damage to that person's body. 79 H. 413 (App.), 903 P.2d 718.

As defendant's striking of husband did actually cause harm sought to be prevented by this section, no abuse of discretion where trial court holds that infraction not too trivial to warrant the condemnation of conviction under '702-236. 79 H. 419 (App.), 903 P.2d 723.

Insufficient evidence to convict under this section where evidence only showed that victim was injured and defendant's statement of wanting to apologize was not necessarily for the violative conduct. 80 H. 469 (App.), 911 P.2d 104.

Alleged abuse or harm inflicted less than one day earlier was "recent" under this section (1992). 82 H. 381 (App.), 922 P.2d 994.

Complainant's out-of-court statements not hearsay under HRE Rule 801 where offered by State not for their truth, but to show that police had reasonable grounds under this section to issue warning citation which defendant subsequently violated. 82 H. 381 (App.), 922 P.2d 994.

Paragraph (4) not unconstitutionally overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member. 82 H. 381 (App.), 922 P.2d 994.

AReasonable grounds" standard in paragraph (4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations. 82 H. 381 (App.), 922 P.2d 994.

An uncorroborated prior inconsistent statement of a family or household member offered under HRE Rule 613 and HRE Rule 802.1 as substantive evidence of the facts stated therein may be sufficient, if believed, to establish physical abuse and the manner in which such abuse was inflicted in a prosecution for physical abuse of a family or household member under this section. 84 H. 253 (App.), 933 P.2d 90.

Where defendant lived with victim at victim's residence "probably three to four nights a week", defendant and victim were "persons jointly residing or formerly residing in the same dwelling unit". 85 H. 512 (App.), 946 P.2d 620.

 

 

[[Chapter 801D, ARights of Victims and Witnesses in Criminal Proceedings@]]

'801D-2

Definitions.

In this chapter:

"Crime" means an act or omission committed by an adult or juvenile that would constitute an offense against the person under the Penal Code of this State.

AHomicide victim" means a person whose death was caused by another person under part II of chapter 707.

AMajor developments" means arrest or release of the suspect by the police, case deferral by the police, referral to the prosecutor by the police, rejection of the case by the prosecutor, preliminary hearing date, grand jury date, trial and sentencing dates, and the disposition of the case.

ASurviving immediate family members" means surviving grandparents, parents, siblings, spouse, reciprocal beneficiary, children, and any legal guardian of the homicide victim.

AVictim" means a person against whom a crime has been committed by either an adult or a juvenile.

AWitness" means a person whose testimony or knowledge is desired in any proceeding or investigation by a grand jury or in a criminal investigation, action, prosecution, or proceeding.

[L 1988, c 261, pt of '1; am L 1997, c 383, '71]